Jose and Smitha v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938** **WP(C).No. 31123 of 2016 (M) ----------------------------** **PETITIONER(S): ------------1. JOSE AGED 48 YEARS, S/O. MATHAI, RESIDING AT NEDUVILA PUTHEN VEEDU, VENGOOR P.O., AYOOR. 2. SMITHA W/O.JOSE, AGED 42 YEARS, RESIDING AT NEDUVILA PUTHEN VEEDU, VENGOOR P.O., AYOOR. BY ADVS.SRI.M.K.CHANDRA MOHANDAS SRI.SHAKTHI PRAKASH SRI.PRATHEEK VISWANATHAN SMT.V.VIDJEALATCHOUMY SRI.K.DHRUV KUMAR SMT.R.BHAGYALAKSHMI RESPONDENT(S): -------------1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. CHIEF TOWN PLANNER LOCAL SELF GOVERNMENT INSTITUTIONS, 2ND FLOOR, SWARAJ BHAVAN, NANTHANKODE, THIRUVANANTHAPURAM-695011. 3. THE DISTRICT TOWN PLANNER DISTRICT TOWN PLANNING OFFICE, KOLLAM-691001. 4. SENIOR ENVIRONMENT ENGINEER REGIONAL OFFICE, KERALA STATE POLLUTION CONTROL BOARD, THIRUVANANTHAPUARM. 5. ELAMAD GRAMA PANCHAYAT REPRESENTED BY THE SECRETARY, ELAMAD P.O., VIA AYOOR, KOLLAM-691533.** **WP(C).No. 31123 of 2016 (M)** ## **ADDL. RESPONDENTS 6 TO 9 ARE IMPLEADED:** **6. GEEVARGHESE, AGED 74 YEARS, S/O. ILANTHAVILA PUTHEN VEEDU, ELAMADU P.O., KOLLAM-691533.** - **7.RETNAVALLI, AGE 70 YEARS, D/O.BHARGAVI, SREEBHAVAN, VENGOOR.P.O., ELAMADU, KOLLAM-691533** **8. PRASANTH, AGED 49 YEARS, S/O.GOPALAPILLAI, VRINDAVANAM, ELAMADU P.O, KOPLLAM-691533** **9. MAJOJ, AGED 41 YEARS, S/O.PULIVILA PUTHENVEEDU, ELAMADU.P.O., KOLLAM-691533.** **(ADDL. RESPONDENTS 6 TO 9 ARE IMPLEADED AS PER ORDER DATED 22.02.2017 IN I.A.NO.18714 OF 2016)** **R4 BY ADV. SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, R5 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R5 BY ADV. SRI.JELSON J.EDAMPADAM ADDL.6 -R 10 BY ADV. SRI.A.RAJASIMHAN ADDL.6 -R 10 BY ADV. SRI.K.NIRMALAN R2 BY ADV. GOVERNMENT PLEADER SRI.RENIL ANTO** **BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2017, ALONG WITH WPC. 3851/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 31123 of 2016 (M)** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 TRUE COPY OF THE CONSENT TO ESTABLISH DATED 27-10-2015 ISSUED FROM THE KERALA STATE POLLUTION CONTROL BOARD** **EXHIBIT P2 TRUE COPY OF THE RESOLUTION NO. XIII DATED 4-1-2016 OF THE RESPONDENT PANCHAYAT COMMITTEE.** **EXHIBIT P3 TRUE COPY OF THE NOC ISSUED BY THE FIRE AND RESCUE SERVICES DATED 20-01-2016.** **EXHIBIT P4 TRUE COPY OF THE LETTER NO.C/80/16 DATED 18-02-2016 OF THE DISTRICT TOWN PLANNER.** **EXHIBIT P5 TRUE COPY OF THE LETTER NO. 80/16 DATED 2-3-2016 OF THE ELAMAD VILLAGE OFFICER.** **EXHIBIT P6 TRUE COPY OF THE DMO'S LETTER DATED 7-3-2016.** **EXHIBIT P7 TRUE COPY OF THE REPORT OF THE ASSISTANT ENGINEER DATED 16-03-2016.** **EXHIBIT P8 TRUE COPY OF THE LETTER NO.C3-4232/2016 DATED 06-062016 OF THE CHIEF TOWN PLANNER.** **EXHIBIT P9 TRUE COPY OF THE LETTER NO. C4-5470/16 DATED 23-062016 OF THE CHIEF TOWN PLANNER.** **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R5(A): TRUE COPY OF THE COMPLAINT DATED 21.12.2015 RECEIVED BY THE PANCHAYAT** **EXT.R5(B):TRUE COPY OF THE COMPLAINT DATED 8.1.2016 RECEIVED BY THE PANCHAYAT** **EXT.R5(C):TRUE COPY OF THE COMPLAINT DATED 11.1.2016 RECEIVED BY THE PANCHAYAT.** **EXT.R5(D):TRUE COPY OF THE COMPLAINT DATED 16.1.2016 RECEIVED BY THE PANCHAYAT.** **EXT.R5(E):TRUE COPY OF THE COMPLAINT DATED 18.1.2016 RECEIVED BY THE PANCHAYAT.** **EXT.R5(F):TRUE COPY OF THE RESOLUTION NO.4, OF THE MEETING HELD ON 23.3.2016** **EXT.R5(G):TRUE COPY OF THE LETTER NO.C4-5470/16 DATED 29.3.2016 OF THE 5TH RESPONDENT ADDRESSED TO THE DISTRICT TOWN PLANNER, KOLLAM** **EXT.R5(H):TRUE COPY OF THE LETTER NO.C4-5470/16 DATED 13.4.2016 OF THE 5TH RESPONDENT ADDRESSED TO THE DISTRICT COLLECTOR, KOLLAM** ## **WP(C).No. 31123 of 2016 (M)** **EXT.R5(I):TRUE COPY OF THE LETTER NO.C4-5470/16 DATED 7.4.2016 OF THE 5TH RESPONDENT ADDRESSED TO THE DEPUTY DIRECTOR OF PANCHAYATS, KOLLAM** **EXT.R5(J):TRUE COPY OF THE LETTER NO.C4-5470/16 DATED 29.3.2016 OF THE 5TH RESPONDENT ADDRESSED TO THE PETITIONERS** **EXT.R5(K):TRUE COPY OF THE LETTER NO.C4-572538/RA3/2016 DATED 11.05.2016 OF THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT** **EXT.R5(L):TRUE COPY OF THE REPORT NO.CTP VIG/59/16 DATED 7.4.2016, OF THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, ENCLOSED ALONG WITH EXT.R5(K) LETTER** **EXT.R5(M):TRUE COPY OF THE REPORT NO.C4 5470/16 DATED 8.6.2016,SUBMITTED BY THE 5TH RESPONDENT TO THE SECRETARY TO THE GOVERNMENT,** **EXT.R4(A): TRUE COPY OF THE AUTHORIZATION LETTER DATED 15.11.2016 ISSUED BY THE 4TH RESPONDENT** **EXT.R4(B):TRUE COPY OF THE CONSENT TO ESTABLISH DATED 27.10.2015 ISSUED BY THE KSPCB** **//TRUE COPY//** **P.A TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 ............................................................. Dated this the 22[st] day of February, 2017** ## **J U D G M E N T** As both these writ petitions are filed by the same petitioner and involve a common issue, they are taken up for consideration together and disposed by this common judgment. 2. The petitioners in both these writ petitions seek to establish and operate a crusher unit in 8 acres of land within the territorial limits of the Elamad Grama Panchayat. For the purposes of setting up the unit, and as a prelude thereto, they are stated to have applied for the necessary building permit, as also the D & O license, before the respondent Panchayat. It is the case of the petitioner that they have already approached, and obtained from the Kerala State Pollution Control Board, the necessary consent to establish the crusher unit in the said locality. The petitioners also produce as Exts.P3, P5 and P6 and P7, the No Objection Certificate issued by the Fire Department, the certificate issued by the Village -2- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 Officer certifying that there is no forest in the vicinity of the proposed unit, the report of the District Medical Officer certified the health aspects in connection with the setting up of the unit and the report of the Assistant Engineer, which indicates that the road leading to the proposed unit has sufficient width. In W.P.(C). No.31123 of 2016, the case of the petitioners is essentially that while by Ext.P2 resolution, the respondent Panchayat had decided to forward the application of the petitioner to the Chief Town Planner for the latter's order, which is a requirement in terms of Rule 59 of the Kerala Panchayat Building Rules, for the purposes of grant of a building permit to the petitioners, and the said application was subsequently forwarded to the Chief Town Planner, while the matter was under consideration of the Chief Town Planner, the Panchayat passed a subsequent resolution dated 23.03.2016, whereby it took the view that, on account of the objections received from persons in the locality, there was no necessity to recommend the case of the petitioner for consideration of the Chief Town Planner for the purposes of issuance of a building permit. The communication issued by the respondent Panchayat to the Chief Town Planner resulted in Ext.P8 decision of the Chief Town Planner, who decided not to to -3- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 consider the application taking note of the revised stand of the respondent Panchayat. By Ext.P9 communication issued by the Chief Town Planner, it was pointed out that since the Panchayat Committee had decided not to permit the proposed construction, the defects pointed out in the petitioners application for building permit did not require further consideration. In W.P.(C).No.31123 of 2016, Exts.P8 and P9 communications issued by the 2[nd] respondent Chief Town Planner are impugned by the petitioners. In W.P.(C).No.3851 of 2017, the resolution of the respondent Panchayat dated 23.03.2016, which led to the passing of Exts.P8 and P9 orders that are impugned in W.P.(C).No.31123 of 2016 is produced as Exts.P8 and impugned therein. 3. Counter affidavits have been filed in W.P.(C).No.31123 of 2016 by the 4[th] respondent Kerala State Pollution Control Board as also by the 2[nd] respondent Chief Town Planner. In the counter affidavit of the 2[nd] respondent, Exts.P8 and P9 decisions are justified for the reasons stated therein. 4. I have heard the learned counsel appearing for the petitioners in both the writ petitions, the learned Standing counsel -4- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 for the respondent Panchayat, the learned Standing counsel for the respondent Kerala State Pollution Control Board, the learned Government Pleader for the official respondents and the learned counsel for the additional respondents 6 to 9 in W.P.(C).No.31123 of 2016. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from a perusal of Ext.P8 resolution that is impugned in W.P.(C).No.3851 of 2017, which incidentally is the resolution that led to the passing of Exts.P8 and P9 orders of the Chief Town Planner, which is impugned in W.P.(C).No.31123 of 2016, that the said resolution cancels the earlier resolution passed by the Panchayat that decided to forward an application preferred by the petitioner for building permit to the Chief Town Planner for his consideration. In the resolution dated 23.03.2016, the respondent Panchayat appears to have decided not to proceed with the application preferred by the petitioners for building permit, on the ground that, the proposed crusher unit of the petitioners would result in causing significant damage to rubber trees in the vicinity as also cause pollution and affect the lives of persons in the locality. The -5- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 said resolution, however, while it relies on the findings of the Sub Committee that is constituted by the Panchayat to go into the various aspects in connection with the setting up of a crusher unit by the petitioners, does not refer to the material, on the basis of which the respondent Panchayat decided to resile from its earlier stand as evidenced in Ext.P2 resolution that is produced in W.P. (C).No.31123 of 2016. While it is not in dispute that it is for the respondent Panchayat to take an informed decision as to the suitability and necessity for a crusher unit within the territorial limits of the said Panchayat, I am of the view that, the statutory duty cast upon the respondent Panchayat calls for the exercise of a discretion that takes into account relevant factors and eschews a consideration of irrelevant factors. The manner in which a discretion is to be exercised by the local authority has been detailed in a decision of the Division Bench of this Court in ## **K.G.A.Hotels & Resorts Pvt. Ltd. v. State of Kerala (2015 (2)** ## **KLT 683** ) in the following terms: “18. The concept of discretionary power and the mode of its exercise by statutory functionaries was an issue considered by the Apex Court in _U.O.I. v. Kuldeep Singh_ (2004 (1) KLT SN 31 (C.No. 37) SC = (2004) 2 SCC 590), where in paragraphs 20, 21 and -6- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 22, it was held thus; “20. When anything is left to any person, Judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary). In its ordinary meaning, the word “discretion” signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary.) 21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong -7- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (per Lord Halsbury, L.C., in _Sharp v. Wakefield_ [(1891 AC 173: (1886-90) All. ER Rep 651 (HL)]. (Also See _S.G.Jaisinghani v. Union of India_ (Air 1967 SC 1427). 22. The word “discretion” standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in it implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility .......... “ 19. Again in _Clariant International Ltd v. Securities & Exchange Board of India_ ((2004) 8 SCC 524), the Apex Court reiterated these principles thus; -8- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 “27. In _Kruger v. Commonwealth of Australia_ ((1997) 146 Aus LR 126) it is stated: “Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention .... “ 28. The discretionary jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object sought to be achieved and the reasons for granting such wide discretion (See _Narendra Singh v. Chhotey Singh_ ((1983) 4 SCC 131). 29. A discretionary jurisdiction, furthermore, must be exercised within the four corners of the statute. [See _Akshaibar Lal (Dr.) v. Vice-Chancellor, Banaras Hindu University_ (AIR 1961 SC 619) and also para 9-022 of de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th Edn., p.445]. 20. Therefore, when Municipality is conferred with the discretionary power to grant permission, it being a repository of statutory power, is obliged to consider each application independently and in accordance -9- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 with law and to decide whether the permission sought for should be granted or declined. Such a statutory authority is not entitled to take a blanket policy decision that it would not exercise its discretion under any circumstances and thus deny itself the discretion statutorily conferred on it. In this context, it is most apposite to refer to the Apex Court judgment in _U.P.S.R.T.C. v. Mohd. Ismail_ ((1991) 3 SCC 239) where, it was held that; “It may be stated that the statutory discretion cannot be fettered by self-created rules or policy. Although it is open to an authority to which discretion has been entrusted to lay down the norms or rules to regulate exercise of discretion it cannot, however, deny itself the discretion which the statute requires it to exercise in individual cases.” 21. The above principles of Administrative Law have been explained by H.W.R.Wade and C.F.Forsyth in their book on Administrative Law (Ninth Edition) at page 324 thus; “An authority can fail to give its mind to a case, and thus fail to exercise its discretion lawfully, by blindly following a policy laid down in advance. It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case: each one must be considered on its own -10- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 merits and decided as the public interest requires at the time. The Grater London Council was criticised for disregard of this principle when it proceeded to make a large subsidy to the London bus and underground services as a matter of course because the ruling party had promised to do so in their election campaign. They regarded themselves as irrevocably committed in advance, whereas their duty was to use their discretion. Nor may a local authority lawfully refuse all applications for housing for children of families considered to be 'intentionally homeless', since the power to provide housing implies a duty to consider the different circumstances of each child. Nor, for the same reason, may they automatically proceed to recondition sub-standard houses as soon as the owner has failed to comply with an improvement notice. Nor may they refuse to repay rates overpaid if their policy is based upon advice which interprets their statutory discretionary power too narrowly. Where the Secretary of State's policy was to disallow all merely local objections to the allocation of land for gipsies, the court held it unlawful for undue rigidity. Where he made a rule that he would refuse grants to all projects already started before the grant application he fettered his discretion unlawfully. The Court of Appeal has held that a local council's resolution might be quashed if councillors voted for it -11- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 in obedience to the orders of their political party, but not if they conscientiously decided to prefer the party's policy to their own opinions.” 22. Therefore, self imposed policy decision taken by a statutory authority denying itself the discretion statutorily conferred on it, would be condemned by courts as a case of abdication of the statutory power. In so far as this case is concerned, Ext.P10, the decision communicated to the company and the affidavit filed by the Municipality show that the Municipality has taken a rigid policy decision not to grant permission for any licence within the Municipal area. This is reiterated in the counter affidavit also. Though the policy decision allegedly taken is not produced before this Court, by confessing that it has taken such a decision not to grant permission for any licence within its area, the Municipality has denied to itself the statutory discretion and thus abdicated its statutory duties. Such a decision as reflected in Ext.P10, is totally illegal and cannot be sustained.” 6. Taking cue from the said judgment, I find that, inasmuch as there is no consideration in the resolution of the respondent Panchayat dated 23.03.2016, of the factors that are germane to a consideration of the necessity of granting a building permit to the -12- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 petitioners in the writ petition, the said decision of the respondent Panchayat cannot be legally sustained. Accordingly, I quash Ext.P8 resolution in W.P.(C).No.3851 of 2017 and consequently Exts.P8 and P9 orders of the Chief Town Planner in W.P.(C).No.31123 of 2016 and dispose these writ petitions with the following directions: i. The respondent Panchayat shall within a period of one month from the date of receipt of a copy of this judgment take a fresh decision in the matter of consideration of the application preferred by the petitioners for grant of building permit for the crusher unit that he proposes to set up within the territorial limits of the respondent Panchayat. While taking a decision as aforesaid, the respondent Panchayat shall take note of the statutory certificates and clearances that the petitioners have obtained from various statutory authorities that are entrusted with the task of regulating the functioning of the crusher unit. The petitioners shall also be heard before a decision is taken by the respondent Panchayat, for forwarding the application for building permit to the Chief Town Planner for further consideration. ii. In the event of the respondent Panchayat taking a -13- W.P.(C).No.31123 of 2016 & W.P.(C).No.3851 of 2017 decision to forward the application for building permit to the Chief Town Planner for consideration, I make it clear that, on orders being passed by the Chief Town Planner enabling the respondent Panchayat to issue a building permit to the petitioners, in the subsequent consideration of an application for D & O license submitted by the petitioners, the Panchayat shall consider the objections, if any, put forth by the additional respondents 6 to 9 in W.P.(C).No.31123 of 2016, and hear them before passing final orders on the said applications for D & O license preferred by the petitioners in these writ petitions. The Chief Town Planer, shall take a decision in the matter within three weeks from the date of receipt of the application from the respondent Panchayat, after hearing the petitioners. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/22.02.17