High Court of KeralaSingle Judge2021-02-23Writ petition disposed of; directions issued fo...

Biju M. v. District Collector, Parassala Grama Panchayath, Kerala State Pollution Control Board, Health Inspector, Circle Inspector of Police Parassala, Santosh Proprietor Kailas Flour Mill, District Industries Centre, Union of India

Case / Petition Number:WP(C).No.28453 OF 2020(F)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.B.SURESH KUMAR
Judgment Date: 2021-02-23
Court Decision / Holding: The writ petition is disposed of by directing that the sixth respondent shall operate the industry covered by Ext. P10 (Acknowledgement Certificate) strictly in accordance with the terms and conditions of the certificate. The petitioner is permitted to file a complaint under Section 233A of the Panchayat Raj Act, if the conduct of the sixth respondent’s industry is nuisance. The complaint, if any, shall be disposed of within two weeks from the date of receipt, after obtaining an expert opinion under sub-section (2) of Section 233A. The court notes that the Acknowledgement Certificate under the MSME Act does not exempt the industry from the Panchayat Raj Act’s nuisance abatement duties and relies on Lizy Aby v. State of Kerala to uphold action under Section 233A where nuisance is demonstrated.
Final Disposition: Writ petition disposed of; directions issued for compliance and nuisance abatement under Section 233A; disposal timeline for complaints.

Parties to the Case

Appellants / Petitioners

Biju M.

Respondents

District Collector, Collectorate, Kudappanakunnu, Thiruvananthapuram District
Parassala Grama Panchayath represented by its Secretary, Parassala P.O., Thiruvananthapuram District
Kerala State Pollution Control Board represented by the Environment Engineer, District Office
Health Inspector, Primary Health Centre, Parassavakkal
Circle Inspector of Police, Parassala Police Station
Santhosh Proprietor, Kailas Flour Mill
District Industries Centre, Thiruvananthapuram
Union of India represented by Secretary to Government, Ministry of Micro and Small Enterprises
Asst. Executive Engineer, Kerala State Electricity Board (KSEB)
(Other respondents noted in judgment)
(Additional Government Pleader)

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. Sudheer
• Sri R. Harikrishnan (H-308)

Counsels for Respondents

• Sri R.T. Pradeep
• Smt. M. Bindudas
• Sri K.C. Harish
• Shri Biju Balakrishnan
• Smt. V.S. Rakhee
• Smt. K.J. Gisha
• Shri Ajmal P.
• Sri K.J. Manuraj - GP
• Sri T. Naveen - SC

Case Synopsis & Summary

The writ petition by Biju M. challenges the operation of the sixth respondent’s flour mill adjacent to the petitioner’s residence, alleging nuisance and absence of a Panchayat licence. The sixth respondent counters that he runs only a dosa/idli batter industry on the premises and operates under an Acknowledgement Certificate issued under the Kerala Micro, Small and Medium Enterprises Facilitation Act, 2019, arguing that such certification exempts him from Panchayat licence requirements and that the activity does not cause nuisance. The petitioner submits that obtaining an MSME acknowledgment does not exempt compliance with the Kerala Panchayat Raj Act, 1994 or the duty to avert nuisance; he had previously lodged complaints with various authorities, which allegedly failed to take preventive steps. During arguments, the petitioner noted that the pulverizer had been removed, but grinding of batter still occurs early in the morning, causing nuisance. The sixth respondent contends the activity adheres to the terms of Ext. P10 (Acknowledgement Certificate) and that nuisance is not established. The Court relies on Lizy Aby v. State of Kerala (2021 (1) KLT 374) to hold that, even where operations are under an MSME framework, Section 233A of the Panchayat Raj Act obligates action to abate nuisance if warranted. The petition is disposed by directing the sixth respondent to operate strictly under Ext. P10, and authorizes the petitioner to file a Section 233A complaint which must be disposed of within two weeks after expert opinion. Interim order of 22 December 2020 is noted.

Provisions of Law Cited

Kerala Panchayat Raj Act, 1994 – Section 233A

Legal Doctrines & Maxims

Nuisance and abatement principles under Panchayat Raj Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the sixth respondent operates a flour mill next to the petitioner’s residence without a Panchayat licence, causing nuisance to him and his family. Although the sixth respondent asserts operation of a dosa/idli batter industry under an Acknowledgement Certificate under the Kerela MSME Facilitation Act, 2019, the petitioner contends that such certification does not exempt compliance with the Kerala Panchayat Raj Act, 1994. The petitioner argues that the authorities have failed to abate the nuisance despite complaints. He relies on the interim order dated 22 December 2020 and on Lizy Aby v. State of Kerala to assert that the Panchayat must act under Section 233A to abate nuisance, even when activity is run under MSME provisions. He seeks directions to prevent the mill’s operation or, if necessary, action under Section 233A with expert opinion, to be disposed within two weeks of complaint.

Contentions of Respondents

The sixth respondent maintains that no pulverizer is used and that the industry operates strictly under the Ext. P10 Acknowledgement Certificate under the MSME Act, arguing that a Panchayat licence is not required and that the activity does not cause nuisance. He claims compliance with the terms of the certificate. The respondents rely on the government authorities’ stance and exhibits (including Ext. P10) to show compliance and validity of the MSME framework. They contend that nuisance must be established through proper procedure, and if so, the Panchayat must act under Section 233A after obtaining expert opinion. The State and Panchayat pleaders emphasize adherence to procedural safeguards and the balancing of MSME facilitation with local governance duties.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Lizy Aby v. State of Kerala	2021 (1) KLT 374	Positive	The Court relies on Lizy Aby to affirm that nuisance abatement under Section 233A is required even where an industry operates under MSME facilitation certificates.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Biju M. v. District Collector, Parassala Grama Panchayath, Kerala State Pollution Control Board, Health Inspector, Circle Inspector of Police Parassala, Santosh Proprietor Kailas Flour Mill, District Industries Centre, Union of India and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** ## **WP(C).No.28453 OF 2020(F)** ## **PETITIONER:** ## **BIJU M. AGED 45 YEARS S/O.MURUKAN, LEKSHMI KRISHNA NILAYAM, KOTTAMOM, PARASUVAIKAL, PARASSALA, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.G.SUDHEER SRI.R.HARIKRISHNAN (H-308)** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR COLLECTORATE, KUDAPPANAKUNNU, THIRUVANANTHAPURAM DISTRICT, PIN - 695 043.** - **2 PARASSALA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, PANCHAYAT OFFICE, PARASSALA P.O., THIRUVANANTHAPURAM DISTRICT, PIN - 695 502.** - **3 KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY THE ENVIRONMENT ENGINEER, DISTRICT OFFICE, PLAMOODU JUNCTION, PATTOM PALACE P.O., THIRUVANANTHAPURAM, PIN - 695 001.** - **4 THE HEALTH INSPECTOR PRIMARY HEALTH CENTRE, PARASSUVAIKKAL P.O., PARASSALA, NEYYATTINKARA - 695 508.** - **5 CIRCLE INSPECTOR OF POLICE PARASSALA POLICE STATION, PARASSALA, THIRUVANANTHAPURAM DISTRICT, PIN - 695 502.** **6 SANTHOSH PROPRIETOR, KAILAS FLOUR MILL, KOTTAMOM, SANTHOSH BHAVAN, PARASSUVAIKKAL P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM - 695 508.** **WP(C).No.28453 OF 2020(F)** **2** **7 THE DISTRICT INDUSTRIES CENTER, THIRUVANANTHAPURAM WATER WORKS COMPOUND, VELLAYAMBALAM, THIRUVANANTHAPRUA, PIN - 695033, REPRESENTED BY ITS GENERAL MANAGER.** **8 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF MICRO AND MEDIUM ENTERPRISES, CENTRAL GOVERNMENT, NEW DELHI-110001. 9 ASST.EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., PARASSALA PIN - 695123.** **R2 BY ADV. SRI.R.T.PRADEEP R2 BY ADV. SMT.M.BINDUDAS R2 BY ADV. SRI.K.C.HARISH R6 BY ADV. SHRI.BIJU BALAKRISHNAN R6 BY ADV. SMT.V.S.RAKHEE R6 BY ADV. SMT.K.J.GISHA R6 BY ADV. SHRI.AJMAL P.** **SRI.K.J.MANURAJ - GP SRI.T. NAVEEN- SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.28453 OF 2020(F)** **3** ## **W.P.(C) No.28453 of 2020** ## **-----------------------------------------------** ## **J U D G M E N T** The writ petition is instituted alleging that the sixth respondent is running a flour mill in the building adjacent to the residential building of the petitioner without obtaining required licence from the Grama Panchayat. It is alleged in the writ petition that the functioning of the flour mill is causing nuisance to the petitioner and to the members of his family. It is stated by the petitioner that though he has lodged complaints against the functioning of the flour mill before various authorities including the Panchayat, no steps, whatsoever, have been taken by the authorities concerned to abate the nuisance. The petitioner therefore seeks directions to respondents 1 to 5 to prevent the sixth respondent from running the flour mill. 2. On 22[nd] December, 2020, this Court passed the following interim order: “Admit. **WP(C).No.28453 OF 2020(F)** **4** Government Pleader takes notice for respondents 1, 4 and 5. Standing Counsel takes notice for the third respondent. Issue notice by speed post to respondents 2 and 6. If the sixth respondent is running the flour mill referred to in the writ petition without obtaining licence from the Panchayat, the second respondent shall forthwith take action to prohibit the conduct of the flour mill.” 3. A counter affidavit has been filed by the sixth respondent. It is stated in the counter affidavit that the sixth respondent is not running any flour mill in the building referred to in the writ petition and he is only running therein an industry making Dosa, and Idli batter. The sixth respondent does not claim in the counter affidavit that he has obtained licence for the industry from the Panchayat. He, however states that he is running the said industry on the strength of the Acknowledgment Certificate obtained by him in terms of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (the Act). 4. Heard the learned counsel for the petitioner, the learned counsel for the sixth respondent as also the learned Standing Counsel for the second respondent Panchayat. **WP(C).No.28453 OF 2020(F)** **5** 5. At the time of arguments, the learned counsel for the petitioner submitted that the sixth respondent is no more using the pulverizer installed in the premises. Nevertheless, it was pointed out by the learned counsel that the grinding activity undertaken by the sixth respondent in the premises for making batter is causing nuisance to him, for the sixth respondent commences his operation early in the morning. 6. Per contra, the learned counsel for the sixth respondent submitted that the sixth respondent is not using any pulverizer for the industry and he is engaged only in the making of batter, that too, strictly in accordance with the terms and conditions, subject to which Acknowledgment Certificate under the Act has been issued to him. According to the learned counsel, insofar as the industry is run on the strength of the Acknowledgment Certificate under the Act, it is not necessary for the sixth respondent to obtain licence from the Panchayat. It was asserted by the learned counsel that the industry is not causing any nuisance to the petitioner. 7. The petitioner does not dispute the fact that **WP(C).No.28453 OF 2020(F)** **6** the sixth respondent has obtained an Acknowledgment Certificate under the Act. If the sixth respondent has obtained an Acknowledgment Certificate under the Act, as rightly contended by the learned counsel for the sixth respondent, in terms of the provisions of the Act, the sixth respondent is not required to obtain licence from the Panchayat. But, merely for the reason that the sixth respondent is not expected to obtain licence from the Panchayat for the industry run by him, it cannot be said that the provisions of the Kerala Panchayat Raj Act, 1994 do not apply to the said industry. In the light of the decision of this Court in **Lizy Aby v. State of Kerala** , 2021 (1) KLT 374, even if an industry is run on the basis of the Acknowledgment Certificate under the Act, the Panchayat is duty bound to take action against the same under Section 233A of the Panchayat Raj Act, if the industry is causing nuisance. In the circumstances, this writ petition is disposed of directing that the sixth respondent shall run the industry covered by Ext.P10 Acknowledgment Certificate strictly in accordance with the terms and conditions of the said **WP(C).No.28453 OF 2020(F)** **7** Certificate. The petitioner is permitted to prefer complaint before the Secretary of the Panchayat invoking Section 233A of the Panchayat Raj Act, if the conduct of the industry of the sixth respondent is causing nuisance. It is directed that if any complaint is preferred by the petitioner as permitted, appropriate action shall be taken by the Secretary on the said complaint in accordance with the provisions contained in Section 233A of the Panchayat Raj Act, after obtaining an expert opinion as provided for under sub-section(2) of Section 233A. The complaint, if any, preferred by the petitioner shall be disposed of within two weeks from the date of receipt of the same. **Sd/P.B.SURESH KUMAR, JUDGE.** PV **8** ## **WP(C).No.28453 OF 2020(F)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** - **TRUE COPY OF THE OUTPATIENT RECORD IN RESPECT OF PETITIONER'S WIFE BABITHA ISSUED BY THE MEDICAL OFFICER, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM.** - **EXHIBIT P1(A)** - **TRUE COPY OF THE OUTPATIENT RECORDS OF THE DAUGHTER AMMU SREELEKSHMI.** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 12/10/2020 OF THE PETITIONER AND ITS REPLY UNDER RTI ACT.** - **EXHIBIT P3 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30/10/2020.** - **EXHIBIT P4 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 30/10/2020.** - **EXHIBIT P5 TRUE COP OF THE PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 30/10/2020.** - **EXHIBIT P6 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 30/10/2020.** - **EXHIBIT P7 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 30/10/2020.** - **EXHIBIT P8 PHOTOGRAPH SHOWING THE DISTANCE OF THE KAILAS FOODS FROM THE COMPOUND WALL OF PETITIONER** - **EXHIBIT P9 TRUE COPY OF THE ONLINE INDUSTRY REGISTRATION RECEIPT ISSUED TO 6TH RESPONDENT FROM THE INDUSTRIES DEPARTMENT** **WP(C).No.28453 OF 2020(F)** **9** **EXHIBIT P10 TRUE COPY OF THE ACKNOWLEDGEMENT CERTIFICATE ISSUED BY THE DEPARTMENT OF INDUSTRIES TO THE 6TH RESPONDENT** **EXHIBIT P11 TRUE COPY OF THE UDYAM REGISTRATION CERTIFICATE FROM MINISTRY OF MICRO** - **EXHIBIT P12 TRUE COPY OF THE PHOTOGRAPH SHOWING REMOVAL OF PULVARIZIER BY 6TH RESPONDENT AND HIS MEN** ## **RESPONDENTS' EXHIBITS:** - **EXHIBIT R6(A) TRUE COPY OF THE LICENCE NO.F14344/2020-21-248, DT.12-11-2020, ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT R6(B) TRUE COPY OF THE G.O (ORD) NO.160/2020/LSGD, DT.21-01-2020** - **EXHIBIT R6(C) TRUE COPY OF THE ONLINE APPLICATION DT.05-01-2021** **EXHIBIT R6(D) TRUE COPY OF THE PAYMENT RECEIPT DT.05-01-2021** - **EXHIBIT R6(E) TRUE COPY OF THE ACKNOWLEDGEMENT CERTIFICATE DT.12-01-2021 ISSUED IN FAVOUR OF 'KAILAS FOODS' BY THE DEPARTMENT OF INDUSTRIES AND COMMERCE, GOVERNMENT OF KERALA** - **EXHIBIT R6(F) TRUE COPY OF THE UDYAM REGISTRATION CERTIFICATE OF 'KAILAS FLOUR MILL'** - **EXHIBIT R6(G) TRUE COPY OF THE UDYAM REGISTRATION CERTIFICATE OF 'KAILAS FOOD''** - **EXHIBIT R6(H) TRUE COPY OF HTE NOTICE DT.11-01-2021 OF THE 2ND RESPONDENT** - **EXHIBIT R6(I) TRUE COPY OF THE G.O(MS) NO.116/2017/ID, DT.13-11-2017 OF THE GOVERNMENT OF KERALA** **10** ## **WP(C).No.28453 OF 2020(F)** - **EXHIBIT R6(J) TRUE COPY OF THE KERALA MICRO SMALL MEDIUM ENTERPRISES FACILITATION ACT, 2019** - **EXHIBIT R6(K) TRUE COPY OF THE KERALA MICRO SMALL MEDIUM ENTERPRISES FACILITATION RULES, 2020** - **EXHIBIT R6(L) TRUE COPY OF THE CERTIFICATE DT.13-012021 ISSUED BY THE DISTRICT INDUSTRIES CENTRE, THIRUVANANTHAPURAM TO THE PETITIONER** **EXHIBIT R6(M) TRUE COPY OF THE CORRECTED CERTIFICATE DT.15-01-2021 ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, THIRUVANANTHAPURAM**