Mamammad Kunhi Haji v. Pulpatta Grama Panchayath and The Secretary, Pulpatta Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945** ## **WP(C) NO. 1596 OF 2024** ## **PETITIONER/S:** **MAMMAD KUNHI HAJI, AGED 85 YEARS S/O.MUHAMMED HAJI N.P, NELLIKKAPARAMBA HOUSE, KODIYATHUR, KAKKAD, KOZHIKODE DISTRICT, PIN - 673602 BY ADVS. P.K.MOHAMED JAMEEL RAFFEEKH.K** ## **RESPONDENT/S:** |**1**|**PULPATTA GRAMA PANCHAYATH,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, PULPATTA P.O,**| ||**MALAPPURAM DIST, PIN - 676123**| |**2**|**THE SECRETARY,**| ||**PULPATTA GRAMA PANCHAYATH, PULPATTA P.O,**| ||**MALAPPURAM DIST, PIN - 676123**| ||**BY ADVS.**| ||**VINOD SINGH CHERIYAN**| ||**T.M.KHALID(K/000047/2013)**| ||**K.P.SUSMITHA(K/956/2001)**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.1596 of 2024 -2- ## **JUDGMENT** Dated this the 07[th] day of March, 2024 On the strength of Exts.P1 to P5 permits/clearance/licence issued by the statutory authorities for operating a quarry in his property, the petitioner approached the first respondent Panchayat for obtaining licence under the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996. In view of the complaints received from residents of the locality against grant of licence for conducting the quarry as well as the possibility of sound and air pollution, the Panchayat Committee rejected the application for licence as per Ext.P8. Aggrieved, this writ petition is filed. 2. Heard learned Counsel for the petitioner and the Panchayat. ## W.P.(C) No.1596 of 2024 -3- 3. Learned Counsel for the Petitioner submitted that the Panchayat cannot deny the licence, since the petitioner has obtained licence/permit/clearance from all statutory authorities. It is pointed out that the Panchayat is no longer vested with the power to refuse permission on the ground of density of population and possibility of nuisance, that power under Section 233 having been taken away by the Amendment Act, 14 of 2018. Drawing attention to the Full Bench decision in _**Tomy Thomas v State of Kerala and Others [2019 (4) KHC 553]**_ , it is submitted that under identical circumstances, this Court has quashed the order rejecting the licence. 4. Learned Counsel for the Panchayat submits that Ext.P8 is issued keeping in mind the well being of the people, which is the paramount consideration as far as the Panchayat is W.P.(C) No.1596 of 2024 -4- concerned. 5. No doubt, the welfare and well being of the people should be the Panchayat's paramount consideration. At the same time, the legal position is that, action of the Panchcyat should be in accordance with the statutory provisions. Here, by amending Section 233, the Panchayat has been divested of its power to refuse a licence for reason of density of population and possibility of nuisance. The Full Bench in _**Tomy**_ _**Thomas** (supra)_ , after comparing the pre-amended and amended Section 233, has held as under; _“21. Consequent to the above noted amendments to S.233 of the Act, the Licensing Rules were also amended. From the chart given as above it is evident that Rule 12 had undergone drastic changes. Under the unamended provision of sub-rule (3) of Rule 12 the Village Panchayats were obliged to consider the application for permission within 45 days in case of obtaining no objection certificates from other establishments and within 30 days in other_ W.P.(C) No.1596 of 2024 -5- _cases either to grant permission applied for, absolutely or subject to conditions or to refuse permission if it is of the opinion that such construction or establishment is objectionable by reason of high density of population in the neighbourhood or that it is likely to cause nuisance. The power vested on the Village Panchayat to refuse the permission as mentioned above contained under sub-clause (b) of sub-rule (3) of Rule 12, was amended drastically. Under the amended sub-clause (b) it is provided that, if the Village Panchayat is of the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance, the Secretary shall as soon as may be after receipt of the application obtain an expert opinion of the department concerned with regard to determination of nuisance or its abatement, at the cost of the owner or person in-charge of the factory, workshop, workplace or machinery concerned and such report shall be furnished to the Village Panchayat as soon as possible not later than 30 days of reporting such nuisance. Further it is provided that, on furnishing of such report of the concerned department, the Village_ W.P.(C) No.1596 of 2024 -6- _Panchayat shall issue permission subject to such conditions as may be required for abatement of the nuisance if any, as recommended in the expert opinion of the concerned department. From the amendment incorporated under Rule 12(3) it is clear and evident that the power vested on the Village Panchayat to refuse the permission based on the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood or that itself likely to cause nuisance, has been taken away by the legislature. Through the amendment it is clarified that if the Village Panchayat is of the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance, then the Secretary shall obtain an expert opinion of the department concerned and shall place such report for consideration of the Village Panchayat. There also the Village Panchayat is only authorised to issue permission subject to such conditions as may be required for abatement of the nuisance, as recommended in the expert opinion of the concerned department. Therefore it is clear and_ W.P.(C) No.1596 of 2024 -7- _evident that the power vested on the Village Panchayat to refuse the permission has been taken away by virtue of the amendments.”_ The law having thus been clearly laid down, the first respondent Panchayat could not have rejected the petitioner’s application for licence based on complaints received from the local residents. In the result, the writ petition is allowed. Ext.P8 is quashed and the Panchayat is directed to issue the licence applied for, if the petitioner is in possession of requisite permit/clearance/licence from the other statutory authorities. **==> picture [34 x 11] intentionally omitted <==** ## **V.G.ARUN JUDGE** Scl/ W.P.(C) No.1596 of 2024 -8- ## **PETITIONER EXHIBITS** **Exhibit P1** **A TRUE COPY OF THE LETTER OF INTENT DATED 16.02.2018 ISSUED BY DIRECTOR OF MINING & GEOLOGY** **Exhibit P2 A TRUE COPY OF THE RELEVANT PAGES OF ENVIRONMENTAL CLEARANCE DATED 23.08.2022 ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, KERALA Exhibit -P3 A TRUE COPY OF THE CONSENT TO OPERATE DATED 16.10.2023 ISSUED BY KERALA STATE POLLUTION CONTROL BOARD** **Exhibit P4 A TRUE COPY OF THE EXPLOSIVE LICENSE DATED 22.08.2023 ISSUED BY DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM Exhibit P5 A TRUE COPY OF THE NON OBJECTION CERTIFICATE DATED 03.08.2023 ISSUED BY ADDITIONAL DISTRICT MAGISTRATE, MALAPPURAM Exhibit P6 A TRUE COPY OF THE APPLICATION FOR LICENSE DATED 18.10.2023 SUBMITTED BY PETITIONER Exhibit P7 A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY PULPATTA GRAMA PANCHAYATH** **Exhibit P8 . A TRUE COPY OF THE DECISION OF THE PULPATTA GRAMA PANCHAYATH COMMITTEE DATED 18.12.2023** - **Exhibit P9 ,. A TRUE COPY OF THE JUDGMENT IN SINOJ THOMAS VS BALAL GRAMA PANCHAYATH 2023 (4) KHC 484** **RESPONDENT EXHIBITS Exhibit R2(a) Copy of the mass petition dated 31.10.2023 received by the Pulpatta Grama Panchayath from the residents of the Panchayath**