High Court of KeralaSingle Judge2016-10-06Writ petition allowed; Ext.P9 (Tribunal remand)...

C. V. Paul and Polyformalin (P) Ltd. v. State of Kerala and others

Case / Petition Number:WP(C).No. 13801 of 2009 (U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-10-06
Court Decision / Holding: The writ petition is allowed. The Tribunal’s remand order (Ext.P9) is set aside. The District Board’s clearance and the State Board’s powers under the Single Window Clearance Act are recognized as binding on licensing authorities, rendering the Panchayath’s Ext.P7 disposition and subsequent remand unnecessary. The court notes that there was a later Panchayath cancellation of the licence and that there are pendings proceedings; however, it leaves open all contentions of either party regarding the continuance of the licence granted to the petitioners.
Final Disposition: Writ petition allowed; Ext.P9 (Tribunal remand) set aside; the licence continuation remains subject to contentions and ongoing proceedings, with the certificate of the District Board binding on licensing authorities under the Single Window Clearance Act.

Parties to the Case

Appellants / Petitioners

C.V. Paul, Aged 82 years, S/o C. U. Varkey, Managing Director, Polyformalin (P) Ltd., Chemmannad, Varrikkolip.O., Puthencuruz, Ernakulam
Polyformalin (P) Ltd., Chemmannad, Varikkoli P.O., Puthencruz, Ernakulam, represented by its Managing Director, C. V. Paul

Respondents

State of Kerala, represented by Secretary, Department of Forest and Environment, Kerala Government Secretariat, Thiruvananthapuram
Secretary to Government, Department of Local Self Government, Kerala Government Secretariat, Thiruvananthapuram
The Tribunal for Local Self Government Institutions, Thiruvananthapuram
Thiruvaniyoor Grama Panchayath, Ernakulam District, represented by its Secretary
Secretary, Thiruvaniyoor Grama Panchayath, Ernakulam - 682 308
Thiruvaniyoor Grama Panchayath Committee, represented by its President, Thiruvaniyoor Grama Panchayath, Ernakulam District
C. C. Skaria, S/o C. P. Chandy, Cherukuzhiel, Manamala P.O., Thiruvankulam, Ernakulam - 682 305
Kerala State Pollution Control Board, represented by its Chairman, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Smt. M. Ramesh Chander

Counsels for Respondents

• Govt. Pleader for R1-R3 (Smt. Vinetha Hariraj)
• Sri. Philip T. Varghese (R4-R6)
• Sri. Thomas T. Varghese (R4-R6)
• Sri. Kaleeswaram Raj (R7)
• Sri. M.K. Chandra Mohandas, SC (R8)

Case Synopsis & Summary

This writ petition challenges the Tribunal for Local Self Government Institutions’ remand of Ext.P9, an order related to a Panchayath licence (D&O licence) issued to the petitioners for establishing a formalin manufacturing unit. The petitioners, led by C. V. Paul (Managing Director of Polyformalin (P) Ltd.), had obtained Ext.P1 (consent to establish) and Ext.P2 (consent to operate) under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999. Based on Ext.P3 (District Board clearance), Ext.P4 licence was issued by the Panchayath. Respondents and others challenged the process; the Division Bench noted that the District Board’s order under the Act is appealable to the State Board under Sections 11 and, under Section 13, the State Board may revoke the licence. Ext.P7 disposed of an appeal against the D&O licence, which the Tribunal later remanded via Ext.P9. The petitioners contended that Sections 8 and 10 of the Act, with their non-obstante clauses, bind all authorities to comply with the District/State Board certification, a proposition supported by Vandazhy and Boby Uthup. The respondents relied on a Supreme Court decision (Banatwala) to argue cross-statutory remedies exist, but the Court held Banatwala distinguishable. The Court ultimately set aside the Tribunal’s remand and allowed the writ petition, while noting continued contentions about licence continuance, including a subsequent cancellation by the Panchayath and ongoing proceedings.

Provisions of Law Cited

Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999Section 8Section 10Section 11Section 13

Legal Doctrines & Maxims

Non-obstante clause
Fait accompli

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999, a clearance certificate issued by the District Board (Ext.P3) is binding on every authority empowered to issue licenses, clearances or operate certificates. They rely on Sections 8 and 10 of the Act and on Division Bench precedents (Shanmughan Vandazhy Grama Panchayath, 2016(1) KLT 601, and Boby Uthup v. State of Kerala, 2014(2) KLT 542) to contend that non-obstante clauses mandate compliance with the District/State Board certification, rendering the Panchayath’s contrary action ineffective. They argue Ext.P7’s disposal by the Panchayath and the Tribunal’s remand (Ext.P9) were in error, and that the District Board’s certification completed the licensing framework. The petitioners also observe a subsequent Panchayath licence cancellation and ongoing proceedings; they seek quashing of Ext.P9 and a declaration that the licence stands legally viable, subject to the ongoing statutory remedies.

Contentions of Respondents

The respondents argue that cross-statutory remedies exist in separate statutes and that the remedy contemplated in one statute cannot bar recourse under another, as illustrated by Banatwala and Company Life Insurance Corporation of India and Others (2011) 13 SCC 446. They contend that the petition should be resolved in light of due process and the possibility of revocation or modification by the State Board under the relevant provisions. They emphasize that the Tribunal’s remand was legally justifiable to adjudicate the interplay of licences, permits, and certifications under different statutes, and that the non-obstante clause cannot be read to obliterate the scope for administrative review in a multi-enactment framework. They also suggest that the earlier Division Bench rulings do not categorically preclude independent action by Panchayaths in licensing matters.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shanmughan Vandazhy Grama Panchayath	2016(1) KLT 601	Positive	Division Bench decision relied upon to support mandatory compliance of certification under the Act’s non-obstante clauses; treated as binding precedent for the petitioners’ position.
Boby Uthup v. State of Kerala	2014(2) KLT 542	Positive	Division Bench reasoning that non-obstante clauses in Sections 8 and 10 require compliance with district/state board certifications; adopted similarly.
Banatwala and Company Life Insurance Corporation of India and Others	2011(13) SCC 446	Mentioned Only	Cited by respondents to invoke cross-statutory remedies; court finds it not applicable to the present facts, thus not adopting its reasoning.

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 C. V. Paul and Polyformalin (P) Ltd. v. State of Kerala and others 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 K.VINOD CHANDRAN** **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** **WP(C).No. 13801 of 2009 (U) ----------------------------** - **PETITIONER(S): ------------1. C.V.PAUL, AGED 82 YEARS, S/O.C.U.VARKEY, MANAGING DIRECTOR, POLYFORMALIN (P) LTD., CHEMMANAD, VARIKKOLI.P.O, PUTHENCURZ, ERNAKULAM - 682 308.** - **2. POLYFORMALIN (P) LTD., CHEMMANAD, VARIKKOLI.P.O, PUTHENCRUZ, ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR, C.V. PAUL.** **BY ADV. SRI.M.RAMESH CHANDER** **RESPONDENT(S):** - **-------------1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF FOREST AND ENVIRONMENT, KERALA GOVERNMENT SECRETARIAT, TRIVANDRUM.** - **2. SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, KERALA GOVERNMENT SECRETARIAT, TRIVANDRUM.** - **3. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM.** - **4. THIRUVANIYOOR GRAMA PANCHAYATH, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY.** - **5. SECRETARY, THIRUVANIYOOR GRAMA PANCHAYATH, ERNAKULAM - 682 308.** **--2--** **--2--** ## **WP(C).No. 13801 of 2009 (U) ---------------------------** **6. THIRUVANIYOOR GRAMA PANCHAYATH COMMITTEE, REPRESENTED BY ITS PRESIDENT, THIRUVANIYOOR, GRAMA PANCHAYATH, ERNAKULAM DISTRICT.** **7. C.C.SKARIA, S/O.C.P.CHANDY, CHERUKUZHIEL, MANAMALA.P.O, THIRUVANKULAM, ERNAKULAM - 682 305.** **8. KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS CHAIRMAN, TRIVANDRUM.** **R1 TO R3 BY GOVT. PLEADER SMT.VINETHA HARIRAJ R4 TO R6 BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE R7 BY ADV. SRI.KALEESWARAM RAJ R8 BY ADV. SRI.M.K.CHANDRA MOHANDAS, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 13801 of 2009 (U) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS: -----------------------** **EXT.P1 : PHOTOSTAT COPY OF THE CONSENT GIVEN BY THE POLLUTION CONTROL BOARD.** - **EXT.P2 : PHOTOSTAT COPY OF THE CONSENT TO OPERATE GIVEN BY THE KERALA STATE POLLUTION CONTROL BOARD.** - **EXT.P3 : PHOTOSTAT COPY OF THE CLEARANCE CERTIFICATE ISSUED BY THE CONVENOR OF THE DISTRICT BOARD DATED 24.11.2008.** - **EXT.P4 : PHOTOSTAT COPY OF THE LICENSE ISSUED BY THE PANCHAYATH DATED 15.12.2008.** - **EXT.P5 : PHOTOSTAT COPY OF THE LICENSE RENEWED UP TILL 20.6.2009.** - **EXT.P6 : PHOTOSTAT COPY OF THE JUDGMENT DATED 9.1.2009. EXT.P7 : PHOTOSTAT COPY OF THE ORDER OF THE PANCHAYATH COMMITTEE DATED 23.1.2009.** - **EXT.P8 : PHOTOSTAT COPY OF THE REPORT DATED 3.3.2009. EXT.P9 : PHOTOSTAT COPY OF THE ORDER OF THE TRIBUNAL DATED 22.4.2009.** - **EXT.P10: PHOTOGRAPHS SHOWING THE GREEN BELT IN THE COMPANY PREMISES.** - **EXT.P11A: TRUE COPY OF THE STACK MONITORING REPORT BY THE POLLUTION CONTROL BOARD DATED 2.3.2009.** - **EXT.P11B: TRUE COPY OF THE STACK MONITORING REPORT ISSUED TO PETITIONER COMPANY DATED 15.4.2009.** - **EXT.P11C: TRUE COPY OF THE STACK MONITORING REPORT ISSUED TO PETITIONER COMPANY DATED 21.5.2009.** - **EXT.P12: TRUE COPY OF THE EXPLOSIVE LICENCE NO.P/HQ/KL/15/1284 (P206105) OF THE EXPLOSIVES CONTROLLER, NAGPUR DATED 22.7.2008.** - **EXT.P13: TRUE COPY OF THE LICENCE RENEWED BY THE PANCHAYATH.** - **EXT.P14: PHOTOSTAT COPY OF THE CONSENT ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **--2--** **--2--** **WP(C).No. 13801 of 2009 (U) ---------------------------** ## **RESPONDENT(S)' EXHIBITS:** **----------------------EXT.R7A: COPY OF REVISION PETITION FILED BY THE 7TH RESPONDENT BEFORE THE 3RD RESPONDENT. EXT.R7B: COPY OF JUDGMENT DATED 5.3.2009 IN WP(C)NO.7162/2009(S). EXT.R7C: COPY OF THE AFFIDAVIT FILED BY THE PETITIONER BEFORE THE PANCHAYAT. EXT.R7D: COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE STATE BANK OF TRAVANCORE. //TRUE COPY// P.S. TO JUDGE** **mbr/** ## **K. VINOD CHANDRAN, J. ===================== W.P.(C) No.13801 of 2009 - U ====================== Dated this the 06[th] day of October, 2016** ## **J U D G M E N T** The petitioners are concerned with the order of the Tribunal, which directed a remand in a challenge made to Ext.P7 order issued by the Panchayath. 2. The 1[st] petitioner is the Managing Director of the 2[nd] petitioner, who wanted to set up an industrial unit for manufacture of formalin. Ext.P1 is the consent to establish and Ext.P2 is the consent to operate issued by the Pollution Control Board. The petitioners applied under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (for brevity 'the Act') and obtained a clearance certificate from the District Board constituted under the said enactment. The same is produced as Ext.P3 dated 24.11.2008. On the basis of the said certificate issued, Ext.P4, **2** W.P.(C) No.13801 of 2009 - U D&O licence was issued by the Panchayath. 3. The 7[th] respondent and certain other persons of the locality challenged the grant before this Court. The Division Bench considering the issue found that the District Board's order under the Act is appealable to the State Board under Sections 11 and under Section13 the State Board also has the power to revoke such license. Noticing that the petitioner had filed such an application, it was directed that the State Board would dispose of the said application. Subsequently, an appeal was filed before the Panchayath against the issuance of the D&O licence, which was disposed of by Ext.P7. Ext.P7 merely expressed the opinion that the Panchayath has nothing more to do. This order was challenged before the Tribunal, which directed a remand as per Ext.P9. **3** W.P.(C) No.13801 of 2009 - U 4. The learned Senior Counsel appearing for the petitioners refer to the Single Window Clearance Act to urge that a certificate issued under the Act by the District Board is binding on the Panchayath or any other authority constituted under any enactment and conferred with powers to issue such license. Specific reliance is placed on Sections 8 and 10 of the Act and a Division Bench decision of this Court reported in v. **Shanmughan Vandazhy Grama Panchayath [2016(1) KLT 601]** . The Division Bench considering the provisions of the Act relied on a decision of another Division Bench of this Court in **Boby Uthup** v. **State of Kerala [2014(2) KLT 542]** . It was held that the non-obstante clauses in Sections 8 and 10 of the Act makes it mandatory on any authority concerned in the matter of issuance of license or clearance certificate to comply with the certification made by the District Board or the State Board. **4** W.P.(C) No.13801 of 2009 - U 5. A reading of the Act also indicates that the District Board is constituted inter alia with the District Collector, the General Manager of the District Industries Centre and the President of the Grama Panchayath or the Chairperson of the Municipality concerned. In such circumstance, Ext.P3 having been issued; the Panchayath could have done nothing else, but issue a licence. The licence itself was not challenged before the Tribunal, nor could it have been done, since the issuance of licence insofar as the certification made by the District Board is a fait accompli. An appeal filed to the Panchayath against the D&O licence was disposed of by Ext.P7, which was challenged before the Tribunal. 6. The learned Counsel for the 7[th] respondent places reliance on a decision of the Hon'ble Supreme Court reported in v. **Banatwala and Company Life Insurance Corporation of India and Others [(2011) 13 SCC 446]** , to contend that the **5** W.P.(C) No.13801 of 2009 - U availability of a remedy in a statute would not prohibit an aggrieved person from availing of another remedy in another statute. The specific reliance is on the finding in para 91: _The fact that the proceeding for one purpose is provided under one statute cannot lead to an automatic conclusion that the remedy for a different purpose provided under another competent statute becomes unavailable._ 7. A reading of the decision of the Hon'ble Supreme Court would indicate that the decision has no application in the present case. The issue considered therein was the sustainability of an application for fixation of standard rent under the Rent Control Act of the State when eviction and recovery of arrears of rent was covered under the Public Premises Act of the Union. With respect to the specific purpose for which the application was filed under the Rent Control Act it was found that there is no conflict or repugnance with the Public Premises Act; since the latter act did not **6** W.P.(C) No.13801 of 2009 - U deal with such fixation. It was in the context of the proceedings under the respective enactments being quite different in their prayers and scope for consideration that the above declaration was made. 8. In the present case, the subsequent enactment made, being the provisions of the Single Window Clearance Act had a non-obstante clause and any provision with respect to issuance of licences, clearance of certificates had to concede to the provisions under that Act and there was a definite mandate for such authorities under the various other enactments to issue a licence, if a clearance certificate is issued by the District or State Board as constituted under the Act. The above provisions render repugnant the provisions conferring power on the officers under another enactment for issuance of a license. The decision of the Hon'ble Supreme Court would not be applicable in the present case. The order **7** W.P.(C) No.13801 of 2009 - U of the Tribunal at Ext.P9 has to be set aside. The writ petition would stand allowed. 9. However, it is agreed by both parties that there was a subsequent cancellation of licence made by the Panchayath, which is challenged before this Court. The learned Counsel appearing for the 7[th] respondent also submits that the 7[th] respondent had approached the State Board with an appeal, which has not been disposed of. There are also said to be other proceedings pending. The writ petition would hence stand allowed, setting aside the impugned order in the above writ petition but however leaving open all contentions of either parties as to the continuance of the license granted to the petitioners. ## Sd/- ## **K. VINOD CHANDRAN, JUDGE** > // true copy // SB/06/10/2016 P.A to Judge