Baby Samuel v. Pallippad Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941** ## **WP(C).No.34330 OF 2017(M)** ## **PETITIONER/S:** **BABY SAMUEL, AGED 56 YEARS BABY SAMUEL,KAREETHARA PUTHENVEETTIL,KARIPUZHA.P.O,PALLIPPAD VILLAGE,MAVELIKKARA,ALAPPUZHA-688001.** **BY ADVS. SRI.V.V.ASOKAN (SR.) SMT.AMY DENNY SRI.R.JAIKRISHNA** ## **RESPONDENT/S:** |**1**|**PALLIPPAD GRAMA PANCHAYATH,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**PALLIPPAD,KARTHIKAPPALLY,ALAPPUZHA-688516.**| |**2**|**THE SECRETARY**| ||**PALLIPPAD GRAMA PANCHAYATH,**| ||**PALLIPPAD,KARTHIKAPPALLY,ALAPPUZHA-690516.**| |**3**|**KUNJANKUTTY, AGED 65 YEARS,S/O ANINJAN,**| ||**PALAMOOTTIL PADEETTATHIL,THEKKEKARA KIZHAKKKU**| ||**MURI,PALLIPPAD,KARTHIKAPPALLY,ALAPPUZHA-690516.**| ||**R1 BY ADV. SRI.M.R.ARUNKUMAR**| ||**R1, R3 BY ADV. SRI.S.SHANAVAS KHAN**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 34330/17 2 ## **JUDGMENT** The petitioner has approached this Court aggrieved by the fact that his application for Trade Licence has been rejected by the 2[nd] respondent-Secretary of the Pallippad Grama Panchayath, through Ext.P7 order, merely saying that there are certain objections against the Hatchery that he proposes to start; and therefore, prays that the same be set aside and the Panchayath be directed to consider his application afresh. 2. The learned Standing Counsel for the Grama Panchayath submits that, as is evident from Ext.P7, the reason why the Panchayath has rejected the petitioner's application is not solely because there is public unrest and agitation against his proposal to start the Hatchery but also because the activity now proposed, which requires more motors of more than 7.5 horse power, will require to be WPC 34330/17 3 cleared by the Panchayath Committee and not by the Secretary. He, therefore, prays that Ext.P7 be left uninterdicted and the Panchayath be permitted to act in terms of the observations in Ext.P7. 3. The learned counsel for the 3[rd] respondent submits that even though only one person has been arrayed in the party array by the petitioner, the unrest against his proposed Hatchery has been launched by all the residents of the locality. He adds that the said residents legitimately apprehend that if the petitioner is allowed to start a Hatchery, even without a clearance from the Pollution Control Board, then their lives would become difficult and that the whole area will be subjected to unbearable pollution. He asserts that the petitioner does not have a Consent to Operate from the Pollution Control Board as of now, since the earlier Consent has now been expired; WPC 34330/17 4 and thus prays that if the petitioner moves the Pollution Control Board for renewal of the Consent to Operate, then the objectors also be heard. He says that the Panchayath can consider the application of the petitioner for Trade Licence only after he is able to obtain a valid Consent to Operate from the Pollution Control Board and that in the absence of the same, this Writ Petition is not maintainable. 4. In reply to this, learned counsel for the petitioner, Sri.JaiKrishna R., concedes that the Consent to Operate earlier obtained by his client from the Pollution Control Board has now expired, but that an application for its renewal is presently pending before the said Board. He prays that once the petitioner is able to obtain such Consent from the Pollution Control Board and once he produces the same before the Secretary, the said Authority be directed to consider his application for Trade WPC 34330/17 5 Licence, adverting to the full Bench judgment of this Court in **Tony Thomas v. State of Kerala [2019(3)KLT 987],** which emphatically declares the position in law that the Panchayath cannot refuse such Trade Licence but can only regulate it for valid reasons to be stated. 5. When I consider the afore submissions, it is without doubt that the petitioner cannot now seek a Trade Licence to be issued by the Panchayath unless he is able to obtain the necessary Consent to Operate from the Pollution Control Board. Since the Pollution Control Board has not been made a party in this Writ Petition, obviously I cannot issue any orders against them and can only leave liberty to the petitioner to approach the said Board and obtain necessary orders; until which time, the Secretary of the Panchayath will not be in a position to consider his application for Trade Licence. WPC 34330/17 6 6. Therefore, if the petitioner is able to obtain the necessary Consent to Operate from the Pollution Control Board, he will be at liberty to produce the same before the 2[nd] respondent-Secretary of the Grama Panchayath, which Authority will, thereupon, hear the petitioner as well as the objectors-including the 3[rd] respondent herein-and then take a final decision on his application for Trade Licence, adverting specifically to the judgment of this Court in **Tony Thomas** (supra) and issue an appropriate order thereon as expeditiously as is possible, but not later than one month after the Consent to Operate from the Pollution Control Board is presented before it. 7. I make it clear that I have not considered any of the rival contentions of the parties on its merits and that I leave all of them open to to be pursued by them appropriately, if it becomes so necessary in WPC 34330/17 7 future; and I also leave liberty to the 3[rd] respondent to approach the Pollution Control Board with his objections, if any, as and when the petitioner's application for Consent to Operate is considered by them. This writ petition is thus ordered. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 34330/17 8 ## APPENDIX ## PETITIONER'S/S EXHIBITS: - EXHIBIT P1 TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER, PALLIPAD DATED 11.12.2013 - EXHIBIT P1(A) TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER,PALLAIPPAD VILLAGE,DATED 10.8.2017. - EXHIBIT P2 TRUE COPY OF THE CONSENT TO OPERATE GIVEN BY THE POLLUTION CONTROL BOARD,ALAPPUZHA DATED 24.2.2014 - EXHIBIT P2(A) TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE DISTRICT MEDICAL OFFICER HEALTH,ALAPPUZHA DATED 26.5.2015 - EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE CHIEF TOWN PLANNER,THIRUVANANTHAPURAM DATED 03.06.2013 - EXHIBIT P4 TRUE COPY OF THE CONFIRMATION LETTER ISSUED BY THE ASSISTANT DISTRICT INDUSTRIES OFFICER,KARTHIKAPALLY TO THE ASSISTANT ENGINEER,KSEB,PALLIPPAD DATED 14.8.2017 - EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY THE KERALA STATE COMMISSION FOR SCHEDULE CASTE AND SCHEDULE TRIBES,THIRUVANANTHAPURAM DATED 03.03.2015 EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C)NO.15536/2015 DATED 07.06.2017 EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 23.9.2017. WPC 34330/17 9 ## RESPONDENT'S/S EXHIBITS: EXHIBIT R3 (A) TRUE COPY OF THE COMMUNICATION DATED 08.03.2013 OF THE SECOND RESPONDENT. EXHIBIT R3(B) TRUE COPY OF THE MASS COMPLAINT DATED 22.03.2013 SUBMITTED BEFORE THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, ALAPPUZHA. EXHIBIT R3(C) TRUE COPY OF THE RECEIPT EVIDENCING THE RECEIPT OF EXT.R3(B). EXHIBIT R3(D) TRUE COPY OF THE REPORT DATED 30.05.2014 OF THE DISTRICT MEDICAL OFFICER (HEALTH), ALAPPUZHA.