IMPORTANT POINT
Licence and permission are to be granted in accordance with the provisions of Act or any rule or bye-law. Which thus means when the Municipality is vested with powers to entertain an application for opening a private market and grant trade license, it has to issue the licence, which has to be signed by the Secretary, exercising the powers conferred under section 492 of Act, 1994 sub-section (9) and (10) of section 492 are relevant in this context

JUDGMENT :

SHAJI P. CHALY, J.

1. Respondents 1 to 3, i.e. the Mannarkkad Municipality, the Secretary and the Municipal Council in W.P. (C) No. 25817/2020, are the appellants, challenging the legality and correctness of the following interim order passed by the learned Single Judge dated 17.12.2020:

“ORDER:

Admit. Respective Standing Counsel takes notice for the respondents.

In the light of Ext.P1 consent to establish and Ext.P2 consent to operate the fish market, Ext.P8 decision of the Municipality in rejecting the application for licence submitted by the petitioner is prima facie unsustainable, especially in the light of the decision of the Full Bench of this Court in Tomy Thomas vs. State of Kerala, 2019 (3) KLT 987.

In the circumstances, there will be an interim order, as prayed for.”

2. Subject issue relates to trade licence application submitted by the writ petitioner/1st respondent in the appeal to conduct a private market, on the basis that the Secretary of the Municipality is duty bound to issue licence since the writ petitioner has secured consent to establish and consent to operate from the Kerala State Pollution Control Board, evident from Exhibits P1 and P2. The Municipality, on the basis of Exhibit P7 application submitted by the writ petitioner, has passed Exhibit P8 order stating that since the fish market is to be conducted on the side of Kunthipuzha river, there is a chance of river being polluted, which will affect the drinking water source of the people in the locality and it would have serious health problems to the people. It is also stated therein that the place was not inspected by the Pollution Control Board in the presence of Municipal Council and therefore, it was decided not to grant licence and further that action will be taken to consider the application after conducting a joint inspection by the Pollution Control Board and the Municipal Council.

3. The paramount contention advanced in the writ petition was that the application of the writ petitioner was not considered in accordance with the statutory provisions and the Municipal Council has neither shown any advertence to the consent nor considered the same before deciding to reject the application. It was also pointed out that the Pollution Control Board has issued consent to operate to the writ petitioner after verifying the activity to be carried on by the petitioner and taking note of the existence of nearby wells, water sources and river and that the consent was issued after considering the objections of all affected parties also. It was also submitted that there is no provision for any joint inspection of the Municipal Council and the Pollution Control Board in order to issue a trade licence as per the provisions of the Kerala Municipality (Issue of Licenses to Dangerous and Offensive Trades and Other Trades and Factories) Rules, 2011 or under the provisions of the Kerala Municipality Act 1994. That apart it was contended that rule 6 of the Rules, 2011 mandates consideration of the report of the Secretary before a decision is taken by the Council and that the issue is guided by the proposition of law laid down by a Full Bench of this Court in Tomy Thomas vs. State of Kerala, 2019 (3) KLT 987 (FB).

4. In the appeal, the contention raised by the appellants is that, the proposition of law laid down in Tomy Thomas (supra) would not at all attract in the case on hand since the issue herein is in respect of the conduct of a fish market and the Municipal Council is vested with powers to verify in order to identify as to whether the conduct of the fish market would pollute the drinking water source namely the Kunthipuzha river. It was also pointed out that the interim relief sought for by the writ petitioner was a direction to the 2nd appellant herein i.e. the Secretary of the Municipality, to provisionally issue trade licence for conduct of fish market in the building bearing No. 3/1 situated in Sy. Nos. 70/1, 70/2 and 94/4 of Mannarkkad Village which is no