M/S. Secure Sands and Gravels v. Pulikkal Grama Panchayath and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 3RD DAY OF DECEMBER 2014/12TH AGRAHAYANA, 1936 WP(C).No. 32209 of 2014 (A) ---------------------------- PETITIONER: -------------- M/S. SECURE SANDS AND GRAVELS, AGED 42 YEARS OLAVATTOOR P.O., KONDOTTY VIA., MALAPPURAM DISTRICT REPRESENTED BY ITS PARTNER, MR.MOHAMMED FAROOK.N.A. BY ADVS.SRI.DEVAN RAMACHANDRAN SRI.K.ANAND SRI.K.M.ANEESH SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM RESPONDENTS: ----------------- 1. THE PULIKKAL GRAMA PANCHAYATH PULIKKAL.P.O., MALAPPURAM DISTRICT, PIN-673637 REPRESENTED BY ITS SECRETARY. 2. THE PRESIDENT, PULIKKAL GRAMA PANCHAYATH, PULIKKAL.P.O. MALAPPURAM DISTRICT, PIN-673637. 3. THE KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, MALAPPURAM. R BY SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BO THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32209 of 2014 (A) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS -----------------------P1: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, MALAPPURAM. P2: COPY OF THE NO OBJECTION CERTIFICATE DATED 2.6.2014 ISSUED BY THE DISTRTICT MEDICAL OFFICER, MALAPPURAM. P2(A): COPY OF THE MODIFICATION OF EXHIBIT P2 DATED 6.6.2014 ISSUED BY THE DISTRICT MEDICAL OFFICER, MALAPPURAM. P3: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE INSPECTOR OF FACTORIES AND BOILERS, MALAPPURAM. P4: COPY OF THE CONSENT TO ESTABLISH ISSUED BY THE 3RD RESPONDENT POLLUTION CONTROL BOARD. P5: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 1ST RESPONDENT PANCHAYATH. P5(A): COPY OF THE REPORT OF THE SECRETARY OF THE 1ST RESPONDENT PANCHAYATH. P6: COPY OF THE APPLICATION FILED BY THE PETITIONER SEEKING PERMISSION TO INSTALL MACHINERIES. P7: COPY OF THE REPORT OF THE SECRETARY OF THE 1ST RESPONDENT PANCHAYATH DATED 26.9.2014. P8: COPY OF THE DECISION OF THE 1ST RESPONDENT PANCHAYATH DATED 27.9.2014. P9: COPY OF THE LEGAL OPINION GIVEN TO THE 1ST RESPONDENT. P10: COPY OF THE DECISION OF THE 1ST RESPONDENT PANCHAYATH COMMITTEE ALONG WITH ITS COVERING LETTER ISSUED TO THE PETITIONER. RESPONDENT(S)' EXHIBITS NIL ------------------------ JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN,J. ------------------------------W.P(C) NO.32209 OF 2014 ---------------------------------Dated this the 3[rd] December, 2014. ## JUDGMENT The petitioner had applied for the issue of a licence to conduct a crusher unit by submitting Ext.P6 application to the first respondent. Ext.P7 is the report of the Secretary on the application. Ext.P5(a) is the enquiry report of the Secretary recommending the application. However, by Ext.P10 resolution dated 13.11.2014 the first respondent has rejected the application. The application has been rejected stating that, there were objections from the public both for and against the establishment of the unit. Therefore, the matter was considered and the Panchayat has decided to reject the application of the petitioner. Ext.P10 is accompanied by a communication of the Secretary intimating the petitioner of the resolution. WPC 32209/2014 2 2. According to Adv. Devan Ramachandran who appears for the petitioner Ext.P10 is absolutely unsustainable and liable to be set aside. Reliance is placed on the decision of a Division Bench of this Court reported in Kadaplamattom Grama Panchayat v. Johny Roy [2013 (3) KLT 1053]. That was a case in which, the Panchayat had adopted a resolution not to grant licences to any quarries within the Panchayat area. Paragraphs 16 and 17 of the said decision, reads as follows:- “16. Having gone through the various provisions, especially Sections 232, 233 and the D& O Rules, we are of the view that when a composite application is submitted by a person under Sections 232 and 233, a decision to grant a license or permission under S.233 is to be taken by the Village Panchayat and the decision to issue license under S.232 is to be taken by the Secretary. If the Panchayat decides not to grant permission under S.233, the Secretary cannot separately consider the application under S.232 read with D & O Rules. Whereas if an application is submitted by a WPC 32209/2014 3 person only under S.232 of the Act read with D&O Rules, and a permission under S.233 is not required, the Secretary is competent to consider the application and pass appropriate orders. That apart in matters coming under R.12(3)(d) of the D&O Rules also power is conferred on the Secretary. 17. The Village Panchayat can of course pass resolutions as permitted by the provisions of the Act and the Rules framed thereunder. Reference is made to S.166(1) of the Act, read with Third Schedule. It relates to the functions of the Panchayat. The mandatory and other functions enumerated in the Third Schedule, does not empower the Panchayat to take a decision as stated in Ext.P8, In a case where an application is filed by a person seeking to establish a factory, workplace or other establishments, the said application cannot be summarily rejected by stating that the Panchayat has taken a policy decision not to permit any such establishments in the Panchayat area. Such an authority is not seen vested with the Panchayat, under the WPC 32209/2014 4 provisions of Sections 166(1), 232, 233 or the D&O Rules. No other provision of law is brought to our notice to justify such a decision. That apart a decision like Ext.P8 will affect the constitutional right of an individual to carry on business or trade and put his property to the best advantage. The Panchayat will have to consider each application on its own merits and decide whether permission could be granted or not.” 3. It is clear from the above that, the Panchayat has no authority to summarily reject an application for licence to establish a factory or other establishment submitted by the petitioner on the ground that the Panchayat has taken a policy decision not to grant licences to any such establishments. It has also been held that no such authority is vested in the Panchayat by the provisions of the Act. It is worth noticing that, in the present case there was no such resolution adopted by the Panchayat and that the petitioner's application has been considered separately and individually. The only similarity is WPC 32209/2014 5 that the petitioner's application has been rejected for the reason that there are objections from the public. 4. The petitioner has also placed reliance on a decision reported in Action Council v. Benny Abraham [2001(2)KLT 690]. In the said decision, this Court had set aside a resolution adopted by the Panchayat rejecting an application for licence submitted by the entrepreneur. That was a case in which, in spite of the project having been cleared by the Pollution Control Board as well as other authorities as safe the Panchayat had decided not to grant the licence. It has been laid down in the said decision that the Panchayat would have to act in the matter of considering such applications taking note of the facts and circumstances of each case. 5. In the present case, the petitioner's application has been considered but, according to the petitioner, not properly or in the manner it was required to be considered by law. I notice that the petitioner has a statutory remedy against Ext.P10 provided by Section 276 of the Kerala Panchayat Raj WPC 32209/2014 6 Act, 1994 (the 'Act' for short). The remedy is by way of an appeal to the Tribunal for Local Self Government Institutions, Thiruvananthapuram. The petitioner has admittedly not exhausted the said effective alternative remedy. Absolutely no reason has been put forth before me to justify the action of the petitioner in not having exhausted the alternative remedy. Inasmuch as the petitioner has not exhausted the statutory remedy that is available for challenging Ext.P10, this writ petition is not maintainable. In view of the above this writ petition is dismissed but without prejudice to the rights of the petitioner to invoke the statutory remedy provided by Section 276 of the Act. Sd/K. SURENDRA MOHAN Judge jj /True copy/ WPC 32209/2014 7