Kuriakose I. Mathai v. Poothrika Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939** **WP(C).No. 27115 of 2016 (L) ----------------------------** **PETITIONER(S): -------------** **KURIAKOSE I- MATHAI, AGED 54 YEARS, S/O. MATHAI, ITHOONICKAL HOUSE, KINGINIMATTAM (P.O.) KOLENCHERY, ERNAKULAM DISTRICT - 682 311.** ## **BY ADV. SRI.JOBI JOSE KONDODY** **RESPONDENT(S): --------------** **1. POOTHRIKA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, POOTHRIKA (P.O.), ERNAKULAM DISTRICT - 682 308. 2. THE SECRETARY, POOTHRIKA GRAMA PANCHAYAT POOTHRIKA (P.O.), ERNAKULAM DISTRICT - 682 308. 3. THE ENVIRONMENTAL ENGINEER, THE KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE (ERNAKULAM-2), PERUMABAVOOR, ERNAKULAM DISTRICT - 683 542.** **R1-R2 BY ADV. SRI.SAJEEV KUMAR K.GOPAL R3 BY SRI. M.AJAY, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-04-2017 ALONG WITH WPC. 32412/2016 AND WPC.10749/2017 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 27115 of 2016 (L)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES,CENTRAL CIRCLE, ALUVA AWARDING THE WORK OF PROVIDING 20 MM CHIPPING CARPET AND IMPROVEMENTS TO DRAINAGE FACILITIES IN UDAYATHUMVATHIL ROAD DATED 27-05-2016** - **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA AWARDING THE WORK OF IMPROVEMENTS TO ANDIPPILLIKKAVUVADAKKUMPURAM ROAD FIRST PHASE DATED 28-05-2016** - **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA AWARDING THE WORK OF IMPROVEMENTS TO THUTHIYOOR SEAPORT-AIRPORT ROAD DATED 27-05-2016** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA AWARDING THE WORK OF IMPROVEMENTS TO EASDT MARADI KAYNAD PERUVAMOOZHY ROAD DATED 24-05-2016** - **EXHIBIT P5 TRUE COPY OF THE REPORT DATED 02-02-2016 FILED BY THE DISTRICT MEDICAL OFFICER, ERNAKULAM BEFORE THE SECOND RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER FOR ESTABLISHING THE PETITIONER'S DRUM MIX PLANT** - **EXHIBIT P7 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 02-03-2016 ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, EERNAKULAM TO THE SECOND RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 02-04-2016 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER ACKNOWLEDGING THE INSTALLATION FEE** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO A3-695/16 DATED 01-04-2016 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER UNDER SECTION 233 OF THE KERALA PANCHAYAT RAJ ACT, 1994** **EXHIBIT P10 TRUE COPY OF THE CONSENT TO OPERATE DATED 27-05-2016 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER VALID UPTO 30-06-2018** **msv/** **-2-** **-2-** ## **WP(C).No. 27115 of 2016 (L)** ## **----------------------------** **EXHIBIT P11 TRUE COPY OF THE CERTIFICATE DATED 30-05-2016 ISSUED BY THE DISTRICT MEDICAL OFFICER OF HEALTH, ERNAKULAM TO THE PETITIONER** **EXHIBIT P12 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 13-06-2016 ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM TO THE SECOND RESPONDENT** **EXHIBIT P13 TRUE COPY OF THE APPLICATION FOR D & O LICENSE SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 15-06-2016** **EXHIBIT P14 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE OFFICER OF THE FIRST RESPONDENT ACKNOWLEDGING THE RECEIPT OF EXHIBIT P13 DATED 15-06-2016** **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXT.R1(a): TRUE COPY OF THE DECISION OF THE PANCHAYAT COMMITTEE VIDE RESOLUTION NO.23 AT ITS MEETING HELD ON 12.8.2016.** **EXT.R1(b): TRUE COPY OF THE COMMUNICATION FROM THE PANCHAYAT TO THE PETITIONER.** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P(C).No.27115 of 2016, W.P.(C).No.32412 of 2016 & W.P.(C).No.10749 of 2017 ............................................................. Dated this the 3[rd] day of April, 2017** ## **J U D G M E N T** As all these writ petitions involve a common issue, they are taken up together for consideration and disposed by this common judgment. 2. W.P(C).No.27115 of 2016 was preferred by Sri. Kuriakose I Mathai, who is also the petitioner in W.P.(C).No.10749 of 2017, seeking a direction to the 2[nd] respondent to consider an application for the issuance of a D & O license to the petitioner's Drum Mix Plant established in Kunnathunadu Taluk in Ernakulam district, based on Ext.P9 permit issued by the 1[st] respondent Panchayat in terms of Section 233 of the Kerala Panchayat Raj Act. There is also a prayer for a declaration that the petitioner is entitled to operate the Drum Mix Plant erected by him on the basis of a deemed license in terms of Section 236 (3) of the Kerala Panchayat Raj Act -2- **W.P(C).No.27115 of 2016, W.P.(C).No.32412 of 2016 & W.P.(C).No.10749 of 2017** and based on the decision of this Court in **Sudhakaran v. Pallichal Grama Panchayat [2016 (2) KLT 175]** . 3. W.P.(C).No.32412 of 2016 is filed by a resident of the 1[st] respondent Panchayat, who is aggrieved by the permit (that is produced as Ext.P9 in W.P(C).No.27115 of 2016), issued to the petitioner therein in terms of Section 233 of the Kerala Panchayat Raj Act. The aforesaid two writ petitions pertain to the entitlement of the petitioner in W.P(C).No.27115 of 2016 to the benefit of a deemed license in terms of Section 236 (3) of the Kerala Panchayat Raj Act, 1994. The facts in the said writ petition would indicate that while the petitioner had preferred an application for the D & O license as early as on 15.06.2016, the respondent Panchayat did not pass any orders thereon, either accepting or rejecting the application for D & O license, but by a decision of the Committee dated 12.08.2016 (produced as Ext.R1 (a) along with the counter affidavit of the respondent Panchayat), decided not to grant the D & O license to the petitioner. The case of the petitioner in W.P(C). No.27115 of 2016 is essentially that, since the said decision of the -3- ## **W.P(C).No.27115 of 2016, W.P.(C).No.32412 of 2016 & W.P.(C).No.10749 of 2017** Panchayat was taken only on 12.08.2016, and the period of 30 days from the date of submission of the completed application had expired before that, the petitioner is entitled to the benefit of deemed license in terms of Section 236 (3) of the Kerala Panchayat Raj Act read with the decision of this Court in **Sudhakaran v. Pallichal Grama Panchayat [2016 (2) KLT 175].** 4. During the pendency of the aforesaid two writ petitions, the issue of renewal of the license for the period 2017-2018 came up for consideration. While the petitioner preferred an application for the necessary D & O licence for the said period, the respondent Panchayat, by an order dated 20.03.2017, intimated the petitioner that his application for license could not be considered on account of the pendency of W.P(C).No.27115 of 2016. The said decision of the respondent Panchayat is produced as Ext.P14 and impugned in W.P(C).No.10749 of 2017. The prayer sought for in the said writ petition is essentially for a direction to the respondent Panchayat to consider Ext.P13 application submitted by the petitioner for D & -4- ## **W.P(C).No.27115 of 2016, W.P.(C).No.32412 of 2016 & W.P.(C).No.10749 of 2017** O license on merits and de hors the pendency of the earlier writ petition. 5. I have heard Sri.Jobi Jose Kondody, the learned counsel appearing for the petitioner in W.P(C).No.27115 of 2016 and W.P. (C).No.10749 of 2017, Sri.Harish Vasudevan, the learned counsel for the petitioner in W.P.(C).No.32412 of 2016, Sri.Sajeev Kumar K.Gopal. The learned Standing counsel for the respondent Panchayat in all these writ petitions, as also the learned Standing counsel for the Pollution Control Board which is arrayed as respondents in all these writ petitions. 6. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, for the period 2016-2017, it is not in dispute that the petitioner had applied for and obtained the necessary consent to establish in terms of Section 233 of the Panchayat Raj Act. It was based on the said consent to establish that the petitioner, thereafter, applied for the D & O licence for the period 2016-2017. Although the -5- ## **W.P(C).No.27115 of 2016, W.P.(C).No.32412 of 2016 & W.P.(C).No.10749 of 2017** application of the petitioner for the D & O license was preferred on 15.06.2016, no communication from the respondent Panchayat, rejecting or denying the license sought for by the petitioner was effected within the period of 30 days from the date of receipt of the application from the petitioner. The petitioner, therefore , obtained the benefit of Section 236 (3) of the Kerala Panchayat Raj Act of a deemed license and consequently the benefit of the decision of this Court in **Sudhakaran v. Pallichal Grama Panchayat [2016 (2) KLT 175].** I am of the view that, since the petitioner has obtained the benefit of the deeming provision for the D & O license in the said year, the respondent Panchayat is obliged to furnish the petitioner with the deemed license for the said year in physical format, and this the respondent Panchayat shall do within a period of two weeks from the date of receipt a copy of this judgment. As regards the application of the petitioner for D & O license for the year 2017-2018, I find that, Ext.P12 and P14 decisions of the respondent Panchayat, that are impugned in W.P.(C). -6- ## **W.P(C).No.27115 of 2016, W.P.(C).No.32412 of 2016 & W.P.(C).No.10749 of 2017** No.10749 of 2017, effectively decided not to grant the D & O license to the petitioner for the said year, on the ground that, the Panchayat Council had, on the basis of public protest and other reasons, taken a decision on 12.08.2016 to not to grant a D & O license to the petitioner. On the basis of the said decisions of the Panchayat dated 12.08.2016, and on the ground that, W.P.(C). No.27115 of 2016 was pending consideration before this Court, the respondent Panchayat refused to consider the application for D & O license submitted by the petitioner for the year 2017-2018. Inasmuch as I have already disposed W.P.(C).No.27115 of 2016 by directing the respondent Panchayat to grant the petitioner the deemed license for the year 2016-2017, I am of the view that, the respondent Panchayat should now consider the D & O license submitted by the petitioner for the year 2017-2018, independently, and on merits , after hearing the petitioner as also the petitioner in W.P.(C).No.32412 of 2016, who questions the validity of the permission to establish that was issued by the Panchayat to the petitioner in W.P.(C).No.27115 of 2016. The Secretary of the respondent Panchayat shall consider the -7- ## **W.P(C).No.27115 of 2016, W.P.(C).No.32412 of 2016 & W.P.(C).No.10749 of 2017** application submitted by the petitioner in W.P.(C).No.10749 of 2017, for D & O license for the year 2017-2018 on merits, and after hearing the petitioner in W.P.(C).No.32412 of 2016, within a period of three weeks from the date of receipt of a copy of this judgment. It is made clear that till such time as the respondent Panchayat passes orders as directed, in the application submitted by the petitioner for D & O license for the year 2017-2018, and communicates the order to the petitioner in W.P.(C).No.10749 of 2017, the petitioner shall be permitted to continue his operations based on the deemed consent that he has already obtained for the year 2016-2017. To enable the respondent Panchayat to take a fresh decision on the application for 2017-18, I quash Ext.P11, P12 and P14 decisions of the Panchayat in W.P.(C).No.10749 of 2017. In view of the directions already given in the judgment in W.P.(C). No.27115 of 2016 and W.P.(C).No.10749 of 2017, I dispose W.P. (C).No.32412 of 2016, leaving it open to the petitioner therein to impugn Ext.P2 order dated 01.04.2016 of the Panchayat, that grants the permission under Section 233 of the Kerala Panchayat Raj Act to the petitioner in W.P.(C).No.27115 of 2016, before the -8- ## **W.P(C).No.27115 of 2016, W.P.(C).No.32412 of 2016 & W.P.(C).No.10749 of 2017** appellate authority under the Kerala Panchayat Raj Act. It is made clear that, if the petitioner prefers an appeal within three weeks from the date of receipt of a copy of this judgment, the appellate authority shall consider the appeal as one filed within the time granted under the Kerala Panchayat Raj Act, taking note of the pendency of W.P.(C).No.32412 of 2016 before this Court from 06.10.2016 onwards. It is made clear that, the petitioner in W.P. (C).No.32412 of 2016 shall give notice to the petitioner in W.P.(C). No.27115 of 2016 of the appeal that he prefers pursuant to the permission granted in this judgment. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/03.04.17