SIVADASAN A Vs. MATTANNUR MUNICIPALITY

JUDGEMENT

(1.) The petitioner is running a service station under the name and style of 'M/s. Lakshmi Service Station', for servicing automobiles. He submits, the main business done in the service station is washing of motor vehicles. The said establishment was being run since 1987. It was having licence from the first respondent Municipality, issued from time to time. For the year 2003-04, the petitioner submitted an application for renewal of the licence, on 22/02/2003. But, the said application was rejected by the Municipality, on the ground that the petitioner failed to produce the consent from the Pollution Control Board for operation of his establishment. Later, Ext. P2 notice was issued, proposing further action to close down the service station and prosecute him. He submitted Ext. P3 reply, which was followed by Ext. P4. In Ext. P4 it was pointed out by the petitioner that other Municipalities are not insisting upon such a condition regarding consent of the Pollution Control Board for renewal of the licence. The petitioner was, later, told by Ext. P5 that as per the circular issued by the Director of Municipalities, for renewal of licence, consent of the Pollution Control Board was mandatory. Since the petitioner failed to produce the consent, his application was rejected. He was again informed that his application for renewal of the licence cannot be allowed. Later, he was served with Ext. P1 complaint from the Judicial First Class Magistrate's Court, Mattannur, filed by the Municipality, for prosecuting him for the offence punishable under S.447 read with S.511 of the Kerala Municipalities Act, 1994. Aggrieved by the above actions of the Municipality, this writ petition was filed seeking the following reliefs:

(2.) The petitioner contended that as long as no Rules are framed under S.447 of the Kerala Municipalities Act, concerning his business, licence under S.447(1) is not necessary. So, Ext. P1 complaint filed against the petitioner is unsustainable in law. In support of the above submission, the petitioner relied on the decision of this Court in Shaji v. State of Kerala, 2004 KHC 19 : 2004 (1) KLT 118 . In the said decision it was held that a private hospital need not take any licence under S.447(1) of the Act. In the absence of any rules framed by the State Government under that Section, it is contended that the petitioner is not liable to take licence for running his establishment. When this writ petition came up for final hearing before the learned Single Judge, it was noticed that there is yet another decision of this Court in Unnikrishnan v. Paravur Municipality, 2007 (4) KHC 921: 2008 (2) KLT 711 , which took a different view. It was held that even in the absence of any rules, a person running a trade in the Municipal area is bound to take licence. In view of the apparent conflict between these two decisions, the matter was referred to the Division Bench.

(3.) The Municipality has filed a counter affidavit, supporting the impugned proceedings. According to the Municipality, it has published a notification under S.447(1) of the Act in the year 1998, in the Kerala Gazette dated 19/05/1998. Service Station is one of the items notified as per the said notification. That notification survives even after the amendment to S.447, in view of S.575(2) of the Kerala Municipalities Act and also in the light of S.23 of the Kerala Interpretation of General Clauses Act, 1125, it is submitted.