High Court of KeralaSingle Judge2016-04-01Writ petitions disposed of; Ext.P14 set aside; ...

Asha K.A. v. Avinissery Grama Panchayath and others

Case / Petition Number:WP(C). Nos. 935 of 2016 (N) and 5276 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2016-04-01
Court Decision / Holding: Ext.P14 order set aside as void for lack of authority; the 2nd respondent (Secretary) to consider all contentions and pass orders within two months from receipt of the judgment, after hearing all parties; all parties to appear before the 2nd respondent on 2 May 2016; the petitions disposed of accordingly (without expressing a binding opinion on merits).
Final Disposition: Writ petitions disposed of; Ext.P14 set aside; remand for consideration by the competent authority with directions to decide within two months; appearance fixed on 2 May 2016.

Parties to the Case

Appellants / Petitioners

Asha K.A.

Respondents

Avinissery Grama Panchayath represented by its Secretary, Thrissur District
Secretary, Avinissery Grama Panchayath, Avinissery
Director of Panchayath, Office of Directorat[e] of Panchayath
Kerala State Pollution Control Board represented by its Secretary, Pattom, Thiruvananthapuram
Environment Engineer, Kerala State Pollution Control Board, District Office, Thrissur
Hindustan Petroleum Corporation Ltd represented by its Senior Regional Manager, Kochi LPG Regional Office, Sea Port - Air Port Road, Irumbanam PO, Kochi 682 380
Addl. 7. Sudheesh S/O Velayudhan, Pampumkadan House, Avinissery PO - 680306
Addl. 8. Suresh P.R S/O Ramakrishnan, Pampumkadan House, Avinissery PO 680306
Addl. 9. Dileep M.J S/O Janardhanan, Malayatil House, Avinissery PO - 680 306, Thrissur District

Legal Representation & Advocates

Counsels for Petitioners

• M. H. Hanil Kumar
• M.R. Dhanil
• P. Sreesha

Counsels for Respondents

• A.T. Anilkumar
• Smt. V. Shylaja
• Lindons C. Davis
• M. Gopikrishnan Nambiar
• M. Ajay (SC), Kerala State Pollution Control Board
• Government Pleader

Case Synopsis & Summary

This writ petition (WP(C) No. 935/2016, heard together with No. 5276/2016) challenges an Ext. P14 order of the Avinissery Grama Panchayath Committee denying a D&O licence to the petitioner for a project involving construction and operation activities, with ties to petroleum and hazardous materials approvals. The petitioner adduced exhibits (EXT. P1–P18) showing communications from Hindustan Petroleum Corporation Ltd (HPCL), building permit (EXT. P2), fire and rescue services clearance (EXT. P4), explosives-related correspondence (EXT. P5), ownership (EXT. P6), licence application (EXT. P8), consent to operate (EXT. P14), and other requisite documents, highlighting an integrated licensing process involving multiple authorities. The court notes that Ext. P14 was issued by a Panchayat Committee lacking power to grant or deny a D&O licence under the Kerala Panchayat Raj Act, 1994 (Sections 232, 233). Relying on Kadaplamattom Grama Panchayat v. Johny Roy, the court holds that licensing decisions under S.232 read with S.233 are ordinarily within the Village Panchayat’s purview, not a Committee. Consequently Ext. P14 is set aside as void. The court directs the 2nd respondent (Secretary) to re-consider all contentions, hear the parties, and pass appropriate orders within two months, with appearance fixed on 2 May 2016, and disposes of the petitions accordingly (without an express ruling on merits).

Provisions of Law Cited

Kerala Panchayat Raj Act, 1994 - Section 232Kerala Panchayat Raj Act, 1994 - Section 233

Legal Doctrines & Maxims

Nullity of orders passed without authority
Within the powers of the Village Panchayat under Section 233; Panchayat Committee cannot pass D&O licences

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext. P14 was issued by a Panchayat Committee lacking authority to grant or deny a D&O licence under the Kerala Panchayat Raj Act; S.232 read with S.233 requires consideration and decision by the Village Panchayat/Secretary, not by a Committee. The sequence of approvals (EXT. P1–P18) demonstrates the need for due process under statutory licensing, including consent to operate and explosives-related clearances, and that denial by a Committee is void for want of jurisdiction.

Contentions of Respondents

The respondents argued that the Panchayat’s order falls within the ambit of the Act and that the petitioner’s challenge should be resolved after due consideration of contentions by the competent authority; the court would not be prejudicing merits but would ensure proper procedure.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kadaplamattom Grama Panchayat v. Johny Roy	2013(3) KLT 1053	Positive	Court relied on Kadaplamattom to hold that licensing decisions under S.233/232 are within the Village Panchayat’s purview, and a Panchayat Committee cannot validly pass such an order.
W.P.(C). No. 39605/2015	WPC 39605/2015	Mentioned Only	Appears as a referenced judgment (EXT. P10) in the order; its ratio is not expressly applied or distinguished in the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **FRIDAY, THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938** **WP(C).NO. 935 OF 2016 (N) --------------------------** ## **PETITIONER(S): -------------** **ASHA K.A., AGED 37 YEARS,** **W/O.RAJU P.B, POOTHERY HOUSE, P.O.AVINISSERY, THRISSUR.** **BY ADVS. SRI.M.H.HANIL KUMAR** **SRI.M.R.DHANIL SMT.P.SREESHA** ## **RESPONDENT(S):** ## **--------------** **1. AVINISSERY GRAMA PANCHAYATH AVINISSERY PO, REPRESENTED BY ITS SECRETARY, THRISSUR DISTRICT 680 306.** **2. THE SECRETARY** **AVINISSERY GRAMA PANCHAYATH, AVINISSERY PO, THRISUR DISTRICT 680 306.** **3. THE DIRECTOR OF PANCHAYATH** **OFFICE OF DIRECTORATE OF PANCHAYATH, THIRUVANANTHAPURAM 695 001.** **4. THE KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS SECRETARY PATTOM, THIRUVANANTHAPURAM 695 004.** **5. ENVIRONMENT ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE THRISSUR, PIN 680 001.** **6. HINDUSTAN PETROLEUM CORPORATION LTD** **REPRESENTED BY ITS SENIOR REGIONAL MANAGER, KOCHI LPG REGIONAL OFFICE, SEA PORT -AIR PORT ROAD, IRUMBANAM PO, KOCHIN 682 380.** **ADDL. 7. SUDHEESH** **S/O.VELAYUDHAN, PAMPUMKADAN HOUSE, AVINISSERY PO. - 680306.** **ADDL. 8. SURESH P.R** **S/O.RAMAKRISHNAN, PAMPUMKADAN HOUSE, AVINISSERY PO680306.** **WP(C).NO. 935 OF 2016 (N)** **--------------------------** **ADDL. 9. DILEEP M.J** **S/O.JANARDHANAN, MALAYATIL HOUSE, AVINISSERY PO. - 680 306, THRISSUR DISTRICT.** **IS IMPLEADED AS PER ORDER DT.01.03.2016 IN I.A. NO. 2234/2016.** **ADDL. BY ADV. SRI.A.T.ANILKUMAR ADDL. BY ADV. SMT.V.SHYLAJA R1,R2 BY ADV. SRI.LINDONS C.DAVIS BY SRI.M.GOPIKRISHNAN NAMBIAR BY GOVERNMENT PLEADER, BY SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2016, ALONG WITH WPC. 5276/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 935 OF 2016 (N)** ## **--------------------------** ## **APPENDIX =========** ## **PETITIONER'S EXHIBITS:** ## **-----------------------** - **EXT.P1- A TRUE COPY OF THE COMMUNICATION DATED 18.3.2015 ISSUED BY THE HINDUSTAN PETROLEUM CORPORATION LTD TO THE PETITIONER** - **EXT.P2- A TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE FIRST RESPONDENT PANCHAYATH DATED 22.8.2015** - **EXT.P3- A TRUE COPY OF THE PROCEEDINGS OF THE CHIEF TOWN PLANNER DATED 17.7.2015** **EXT. P4- A TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE OFFICE OF THE DIVISIONAL OFFICER FIRE AND RESCUE SERVICES DATED 26.10.2015** - **EXT.P5- A TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER BY THE CONTROLLER OF EXPLOSIVES DATED 14.12.2015** - **EXT.P6- A TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 10.11.2015** - **EXT.P7- A TRUE COPY OF THE CASH RECEIPT ISSUED BY THE FIRST RESPONDENT DATED 11.11.2015** - **EXT. P8- A TRUE COPY OF THE APPLICATION FOR LICENCE SUBMITTED BY THE PETITIONER DATED 15.12.2015** - **EXT. P9- A TRUE COPY OF THE RECEIPT ISSUED BY THE FIRST RESPONDENT PANCHAYATH** - **EXT.P10- A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.39605/2015 DATED 23.12.2015** - **EXT. P11- A TRUE COPY OF THE COMMUNICATION ISSUED BY AVINISSERY GRAMA PANCHAYATH DATED 4.1.2016** - **EXT.P12 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2[ND] RESPONDENT DATED 5.1.16** - **EXT.P13 A TRUE COPY OF THE INTERIM ORDER IN W.P.(C) NO.17795 OF 2014 DT. 11.7.14** - **EXT.P14 A TRUE COPY OF TE CONSENT TO OPERATE ISSUED BY KERALA STATE POLLUTION CONTROL BOARD DT. 23.1.16.** - **EXT.P15 A TRUE COPY OF THE RECEIPT ISSUED BY THE 1[ST] RESPONDENT PANCHAYAT DT.23.1.16.** - **EXT.P16 A TRUE COPY OF THE TRADE LICENCE ISSUED BY THE THRISSUR MUNICIPAL CORPORATION DT. 6.1.16.** - **EXT.P17 A TRUE COPY OF THE INFORMATION ISSUED BY THE 1[ST] RESPONDENT PANCHAYAT UNDER THE RIGHT TO INFORMATION ACT DT. 9.3.16.** - **EXT.P18 A TRUE COPY OF THE PHOTOGRAPHS OF THE BUILDING CONSTRUCTED BY THE PETITIONER.** **WP(C).NO. 935 OF 2016 (N)** **--------------------------** ## **RESPONDENT(S)' EXHIBITS :** **-----------------------** |**EXT.R1(A)**|**TRUE COPY OF THE MINUTES OF AVINISSERY GRAMA PANCHAYAT**| |---|---| ||**COMMITTEE DT. 12.1.10.**| |**EXT.R1(B)**|**TRUE COPY OF THE ORDER OF THIS RESPONDENT DT. 1.2.16.**| **//TRUE COPY// P.A. TO JUDGE** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) Nos.935 and 5276 of 2016** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 1st day of April, 2016 ## **J U D G M E N T** Since the parties, pleadings and the matters in issue involved in both the writ petitions are one and the same, these writ petitions are heard together and disposed of accordingly. 2. W.P(C) No. 935/2016 is filed mainly seeking a direction to the respondent Panchayat to grant D&O Licence to the petitioner within a specified time. During the pendency of the above Writ Petition, the Panchayat considered the application, seeking D&O licence, rejected the same and Ext.P14 order, rejecting the application is challenged in W.P.(C) No.5276 of 2016. Though, both Writ Petitions are filed on various grounds, apparently, it is seen ## **W.P. (C) Nos.935 and 5276 of 2016** ## **-: 2 :-** that Ext.P14 order is passed by the Panchayat Committee, which is not vested with authority or power to pass such an order, under Section 232 of the Kerala Panchayat Raj Act, 1994 ( _hereinafter referred to as 'the Act')._ Needless to say, an order passed without Authority or power is null and void. Therefore, apart from various grounds raised in these Writ Petitions, challenging Ext.P14 order, _prima facie_ this Court finds that Ext.P14 order, which is under challenge, is null and void under the Act. 3. The above view is supported by the decision laid down by this Court _**Kadaplamattom Grama Panchayat v. Johny Roy**_ [2013(3) KLT 1053]. In the above decision, this Court has considered the question, whether the Panchayat Committee is ## **W.P. (C) Nos.935 and 5276 of 2016** ## **-: 3 :-** competent to consider the application, seeking D&O licence under Sections 232 and 233 of the Act and answered negatively as given below: _“But it is relevant to note that consideration of the application for establishing a factory or a workplace where power is used in any form is purely within the authority of the Village Panchayat. It is only on the basis of a decision taken by the Village Panchayat that the Secretary could issue a licence in terms of S.233 of the Act. Further in instances covered by S.233 of the Act, only after permission is obtained under S.233 does the question of granting licence under S.232 arises. But in a case where the applicant does not employ power of any form, apparently a situation as contemplated under S.233 may not arise. There could be a situation where even without an application is being filed under S.233 an application is required to be submitted under S.232 read with D&O rules. In such situations, the Secretary will be the only authority to decide whether the licence could be granted or not. But sch conferment of power does not mean to indicate that the Village Panchayat has no power in the matter relating to the grant or refusal of permission under S.233 of the Act.”_ ## **W.P. (C) Nos.935 and 5276 of 2016** ## **-: 4 :-** 4. In view of the proposition laid down by this Court in the above decision, this Court finds that Ext.P14 order passed by the Panchayat is legally unsustainable and liable to be set aside at the threshold. 5. Therefore, Ext.P14 order passed by the Panchayat in W.P.(C) No.5276 of 2016 will stand set aside and this Court does not intend to make any observation on the merits of the issue involved in this Writ Petition. All the parties are at liberty to raise all the contentions before the 2[nd] respondent, who is the competent authority, to consider such rival contentions and take a decision. 6. But, considering the exigency of D&O licence, the 2[nd] respondent shall consider all the contentions to be raised by all the parties and pass ## **W.P. (C) Nos.935 and 5276 of 2016** ## **-: 5 :-** orders, within a period of two months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to all the parties. All the parties in these Writ Petitions are directed to appear before the 2[nd] respondent on 2[nd] May, 2016. These Writ Petitions are disposed of accordingly. Sd/- **K. HARILAL,** **JUDGE** DST //True copy// P.A. To Judge