WP/24619/2006 of Potu Nageswara Rao Vs The Commissioner, Khammam Municipality, on 29 December 2006

Conclusion

ORDER:

This court ordered notice before admission on 24.11.2006 andinasmuch as it was represented by the learned counsel by thepetitioner that in pursuance of the notice issued there is a threat ofdemolition of the premises in question which is a house, interim staywas granted for a limited period and subsequent thereto the same wasextended for a further limited period. The respondent in the writpetition filed W.V.M.P.No.2590 of 2006 to vacate the interim order.

2. The writ petition is filed for a writ of Mandamus declaring actionof the respondent in not issuing licence to the petitioner to run bakery, as illegal, arbitrary and unconstitutional and consequently direct therespondent to issue licence to the petitioner to run bakery and passsuch other suitable orders.

3. It is stated that the petitioner is a physically handicapped (dumband deaf) person and he is an unemployee and the petitioner hadtaken training in preparation of bakery items like bread, puffs, cakes,dilpasand etc., It is stated that the petitioner submitted an applicationto the respondent on 19.10.2006 requesting him to grant licence forestablishment of a bakery and the respondent had received the sameand processed for issuance of licence for bakery. It is also stated thatthe staff of the respondent municipality had informed the petitioner thathis application had been processed and licence will be issued soon. Itis also further stated that the petitioner made preparations to establishmanufacturing unit of bakery items by taking advance loans and madetrials of manufacturing bakery items. While so, to his utter surprise, therespondent issued notice dated 03.11.2006 under Section 366 of theA.P. Municipalities Act, 1965 to discontinue the trade within three daysfrom the date of receipt of the notice. On receipt of the same, thepetitioner got issued a reply notice through an advocate on06.11.2006. Specific stand is taken that the petitioner had notestablished any bakery shop nor the petitioner is doing any trade in hishouse. But in spite of the same, the staff of the respondent has beenregularly visiting his house and threatening the petitioner withdemolition of his house for no fault. It is also stated that the action ofthe respondent in not issuing licence for running bakery is contrary toArticle 19(1)(g) of the Constitution of India. The petitioner and hisfamily members are not having any other source of income for theirlivelihood, and hence, the petitioner is badly in need of establishingsuch bakery. In such circumstances the writ petition is filed praying for appropriate relief already referred to supra.

4. The impugned notice dated 03.11.2006 reads as hereunder.

NOTICE

Sub:- Unlicensed Trades- Discontinuance of theuse of the premises for unlicensed trade of at Bakery.

* * *

Take notice that you are running trade bakery atpremises No.11-8-136/A without obtaining license from theKhammam Municipality under Section 263 of Andhra PradeshMunicipalities Act, 1965.

Hence, you are served with a notice under Section 366to discontinue the trade within (3) days from the date ofreceipt of this notice, failing which statutory action will betaken against you as per rules.”

5. Section 263 of the Andhra Pradesh Municipalities Act, 1965

reads as hereunder:

“ 263. Purposes for which places may not be used without licences:- (1) The council may publish a notificationin the prescribed manner that no place within municipal limitsor at a distance within three kilometers of such limits shall beused for any one or more of the purposes specified inSchedule IV without the license of the Commissioner andexcept in accordance with the conditions specified therein:

Provided that no notification shall take effect—

(a) until sixty days from the date of publication, and (b)except with the previous sanction of the Governmentin any area outside the municipal limits.in any area outside the municipal limits.

(2) The owner or occupier of every such place shall, within thirty days of the publication of such notification, apply to theCommissioner for a licence for the use of such place for suchpurpose.

(3) Applications for renewal of such licences shall be madenot less than thirty days and not more than ninety days beforethe end of every year and applications for licences for placesto be newly opened shall be made not less than thirty daysand not more than ninety days before they are opened.

(4) The Commissioner may, by an order and under suchrestrictions and regulations as to supervision and inspectionas he thinks fit, grant or refuse to grant or renew such licence.

(5) In case the Commissioner refuses to grant or renew anysuch licence, he shall record the reasons therefor.

(6) Every such licence shall expire at the end of theyear, unless for special reasons the Commissioner considersit should expire at an earlier date when it shall expire at suchearlier date as may be specified therein.

(7) Where a licence is granted or renewed under this sectionfor the use of any place outside the municipal limits thecouncil shall pay to the Gram Panchayat; if any, havingjurisdiction over such place, or if there is no such GramPanchayat, to such other authority as the Government mayspecify such portion of the fee received for the grant orrenewal of the licence as the Government may by general orspecial order, direct.”

6. Section 366 of the Andhra Pradesh Municipalities Act, 1965reads as hereunder:

“ 366. Persons empowered to prosecute:- Subject tothe provisions of Section 365, no person shall be tried for anyoffence against the provisions of this Act, or of any rule orbye-law made under it, unless complaint is made by theCommissioner or by a person expressly authorized in thisbehalf by the Council within three months of the commissionof the offence. But nothing therein shall affect the provisions ofthe [Code of Criminal Procedure, 1973 (Central Act 2 of 1974], in regard to the powers of certain magistrates to takecognizance of offences upon information received or upontheir own knowledge or suspicion; Provided that failure to take out a licence, obtainpermission or secure registration under this Act shall, for thepurposes of this section, be deemed a continuing offence untilthe expiration of the period, if any, for which the licencepermission or registration is required and if no period isspecified, complaint may be made at any time within twelvemonths from the commencement of the offence.”

7. In W.V.M.P.No.2590 of 2006 the in-charge commissioner of therespondent municipality filed counter-affidavit taking specific stand thatthe petitioner started bakery in the month of February 2006 withoutapplying for licence. It is also stated that one S.Venkateswara Rao,resident of H.No.11-8/135/A who is neighbour of the petitioner filedcomplaints to the respondent on 16.7.2006, 4.9.2006, 13.11.2006 and24.11.2006 continuously that one Potu Chittibabu had erected twochimneys using firewood, making bakery food products delivering thickblack smoke causing air and environmental pollution to theneighbouring houses of the locality. Due to continuous smoke, edibleoils smell, green chillies fry and noise smell coming from the unitthereby the neighbouring people are suffering with respiratoryproblems resulting in sleepless nights and these acts are creatinghealth hazard to them. It is also stated that he had submitted relevantphotos of the spot situation for perusal of the respondent also. Further,the neighbouring area people adversely effected with the bakery alsorequested to remove the same from the residential area and thefollowing petitions had been referred to in paragraph 4 of the counter-affidavit.

a)Petition dt.4.9.2006 from J.Neerajakshi, r/o H.No.11-8/15, 8[th] ward Lenin Nagar, Khammam.8/15, 8[th] ward Lenin Nagar, Khammam.

b)Petition dt.20.9.2006 from Basheer Khan, r/o No.11- 8/114, 8[th] ward Lenin Nagar, Khammam.

c)Petition dt.20.9.2006 from Shaik Hussain, r/oH.No.11-8/129, 8[th] ward Lenin Nagar, Khammam.H.No.11-8/129, 8[th] ward Lenin Nagar, Khammam.

d)Petition dt.18.10.2006 from P.Parthasarathy, r/oH.No.11-8/45, 8[th] ward Lenin Nagar, Khammam.H.No.11-8/45, 8[th] ward Lenin Nagar, Khammam.

e)Petition dt.10.11.2006 from 16 residents of 8[th] ward,Lenin Nagar, Khammam.Lenin Nagar, Khammam.

f)Legal Notice from the advocate, dt.13.11.2006.

Further specific stand is taken that one Potu Chittibabu had applied forissuance of licence for manufacturing bakery unit in the name of his socalled brother Potu Nageswara Rao on 19.10.2006. Further specificstand is taken that since there are objections from the neighbours, thelicence was not granted. Further specific stand is taken that inasmuchas it is being continued without valid licence, the respondent issuedthe impugned notice. Further specific stand is taken that the appellateauthority is council and hence in this view of the matter also, the writpetition is liable to be dismissed.

8. The application said to have been submitted by the writpetitioner to the respondent is produced before this court. However,the denial in paragraph 5 of the counter-affidavit is a vague denial. Whatever the reason may be, inasmuch as the said stand had beentaken by the respondent, the writ petitioner is given liberty to submitappropriate application for grant of licence in this regard within aperiod of one week from the date of receipt of a copy of this order andthe respondent to consider the said application in accordance withlaw, if necessary, after putting on notice the objectors and passappropriate orders within a period of two weeks thereafter, till thenstatusquo obtaining as on today to be maintained.

9. The writ petition is disposed of accordingly. No order as to costs.

Date: December 29, 2006.

Note:Issue CC by tomorrow.

//B.O.//

BSB

_________________

(P.S.NARAYANA, J.)