P. Ramadas v. Kerala State Single Window Clearance Board (KSIDC) Ltd and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 W.P.(C) NO.2104 OF 2023** ## **PETITIONER:** **P. RAMADAS, AGED 59 YEARS, S/O AYYAPPAN, POOVANCHERI HOUSE, VELLUVANGADU SOUTH P.O., VALLIYATHRAPPADI, MALAPPURAM DIST, PIN-676 521.** **BY ADVS.EBIN MATHEW P.J.MATHEW AKHILA SHOJI** ## **RESPONDENTS:** - **1 THE KERALA STATE SINGLE WINDOW CLEARANCE BOARD (KSIDC) LTD, KESTON ROAD, OPPOSITE RAJ BHAVAN, KANAKA NAGAR, KOWDIAR, THIRUVANATHAPURAM, PIN-695 033 REPRESENTED BY ITS MANAGING DIRECTOR.** - **2 DISTRICT COLLECTOR, MALAPPURAM, COLLECTORATE, MALAPPURAM, PIN-676 505.** - **3 DISTRICT SINGLE WINDOW CLEARANCE BOARD DISTRICT INDUSTRIES BOARD, CIVIL STATION, MALAPPURAM, PIN-676 505 REPRESENTED BY ITS CONVENER.** - **4 GENERAL MANAGER DISTRICT INDUSTRIES CENTRE, CIVIL STATION, MALAPPURAM, PIN-676 505.** - **5 PANDIKKAD GRAMA PANCHAYAT PANDIKKAD P.O., MALAPPURAM DISTRICT, PIN-676 521 REPRESENTED BY ITS SECRETARY** -2- ## **W.P.(C) NO.2104 OF 2023** **6 SECRETARY, PANDIKKAD GRAMA PANCHAYAT, PANDIKKAD P.O., MALAPPURAM DIST, PIN-676 521.** **7 FAROOQ V.K. S/O MUHAMMED, PROPRIETOR, V.K. FISHERIES, VALLIYATHRAPPADI, MANJERI ROAD, PANDIKKAD, MALAPPURAM DIST, PIN-676 521.** **ADV. DEVISREE R., GOVERNMENT PLEADER** **ADV. P.U SHAILAJAN ADV. K.M. SATHYANATHA MENON ADV. O.V. MANIPRASAD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- ## **W.P.(C) NO.2104 OF 2023** ## **JUDGMENT** Dated this the 17[th] day of August, 2023 The petitioner, who is a resident of Pandikkad Grama Panchayat and who is residing within 100 meters of the proposed wholesale fish market to be established by the 7th respondent, has approached this Court seeking to quash Ext.P17 decision. The petitioner has also sought for certain incidental and consequential reliefs. 2. The petitioner states that the 7th respondent started a fish market without obtaining any licence. By Ext.P1, the Panchayat Authorities issued a stop memo to the 7th respondent. When the 7th respondent submitted an application for licence, the Panchayat Committee as per Ext.P2 resolution decided not to grant licence to the 7th respondent, taking into consideration the pollution which will be detrimental to the general public. 3. The 7th respondent thereafter filed W.P.(C) No.21151 of 2020. This Court by Ext.P3 judgment quashed -4- ## **W.P.(C) NO.2104 OF 2023** the resolution passed by the Panchayat Committee refusing licence to the 7th respondent. The matter was directed to be reconsidered. 4. Subsequently, the Secretary of the Panchayat took a decision not to grant licence to the 7th respondent. The 7th respondent filed an appeal against the decision of the Secretary, to the Panchayat Committee. The appeal preferred by the 7th respondent was dismissed by the Panchayat Committee as per Ext.P4 order. 5. While things remained so, the 7th respondent approached the Kerala Micro Small Medium Enterprises Facilitation Board and obtained Ext.R7(a) Acknowledgment Certificate. Thereafter, the 7th respondent approached this Court filing W.P.(C) No.25923 of 2021 seeking to direct the Board to communicate the issuance of Acknowledgment Certificate to the concerned authorities. After the judgment in W.P.(C) No.25923 of 2021, the Board reconsidered the grant of Acknowledgment Certificate to the 7th respondent. The Board came to a conclusion that the licence has been issued -5- ## **W.P.(C) NO.2104 OF 2023** under the Act, without satisfying the basic requirements. The 7th respondent was not entitled for such Acknowledgment Certificate. On that premises, the Single Window Clearance Board cancelled the Acknowledgment Certificate issued by the Board. 6. The 7th respondent thereafter again applied for licence to the Panchayat Committee. The Panchayat Committee as per Ext.P7 decided not to issue licence to the 7th respondent as the 7th respondent was starting the industry in a thickly populated residential area. After the rejection of the licence application of the 7th respondent, the 7th respondent again approached the Single Window Clearance Board. 7. The Single Window Clearance Board considered the application of the 7[th] respondent and convened a meeting for that purpose. The representative of the Panchayat did not attend the meeting, contends the petitioner. As the Panchayat representative did not appear in the meeting and as the true facts were not brought to the notice of the Board, the Board -6- ## **W.P.(C) NO.2104 OF 2023** gave a Deemed Licence to the 7[th] respondent. Though the petitioner submitted a representation against grant, the petitioner's representation was dismissed as per Ext.P11. 8. Thereafter, the petitioner submitted Ext.P12 statutory appeal before the State Window Clearance Board. The petitioner also approached this Court filing W.P.(C) No.22891 of 2022. That writ petition was disposed of directing the Board to consider the statutory appeal filed by the petitioner, after affording an opportunity of hearing to the parties. Thereafter, the Board rejected the petitioner's appeal as per Ext.P17 order. 9. The petitioner states that Ext.P17 order is highly illegal, arbitrary and unsustainable. Ext.P17 order was passed without taking into consideration the ground realities. The Kerala State Single Window Clearance Board ought to have taken note of the fact that the 7th respondent had already approached the Panchayat Committee for getting the licence to conduct the fish market. It is after the Panchayat considering the licence application and rejecting the licence to -7- ## **W.P.(C) NO.2104 OF 2023** the 7th respondent that the petitioner has approached the Single Window Clearance Board. Once a competent statutory authority rejects an application for licence, thereafter, the Single Window Clearance Board cannot give any licence to the parties, contended the Counsel for the petitioner. None of the local residents who are the real affected parties were heard by the Board while issuing the licence. The functioning of the 7th respondent's unit at the designated place would not only pollute the residential area but would deplete drinking water sources of the local residents. 10. The Counsel for the petitioner further pointed out that, though the 7th respondent has applied for sanitary licence from the District Medical Officer, the District Medical Officer had rightly rejected the application. The 7th respondent has not challenged the rejection of licence by the District Medical Officer. The 7th respondent cannot be permitted to run the unit without a sanitary licence. 11. The petitioner further pointed out that the 7th respondent has obtained MSME registration for an industrial -8- **W.P.(C) NO.2104 OF 2023** unit, for manufacturing bakery products. With such an MSME registration, the 7th respondent cannot run a large scale fish market. For establishing the industrial unit, the 7th respondent has removed considerable quantity of ordinary earth from site. 12. The petitioner further submitted that the fish market established by the 7th respondent is functioning profitably. The fish water emanating from the 7th respondent's industrial unit would pollute the entire drinking water sources in and around the area. The Single Window Clearance Board ought to have taken note of the said fact. At any rate, the issuance of Deemed Licence by the Board in a hearing in which the representative of the Panchayat was not heard, cannot stand the scrutiny of law. Ext.P17 is therefore liable to be set aside. 13. The Counsel for the 7th respondent entered appearance and resisted the writ petition. The 7th respondent denied all the allegations made by the petitioner. The Counsel for the 7th respondent submitted that the 7th respondent had applied for licence for starting a fish market. The Panchayat issued a licence for manufacturing fish products. The 7th -9- ## **W.P.(C) NO.2104 OF 2023** respondent in fact wanted only to run a wholesale fish vending unit. The fish boxes coming from various places to the 7th respondent's unit will be transshipped to different smaller vehicle and despatched to various destinations. There is no processing or manufacturing. As there is no manufacturing process, the industrial unit will not cause any pollution in the area. Taking into consideration the requirement of maintaining hygiene in the area, the 7th respondent has already installed a water treatment plant as also a bio-gas plant. The 7th respondent was given Consent by the Pollution Control Board. The 7th respondent is satisfying all the pollution control measures as prescribed by the Kerala State Pollution Control Board. 14. As regards rejection of the application for licence by the Panchayat authorities, the counsel for the 7th respondent pointed out that Section 8 of the Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 contains a non-obstante clause and the Board can issue a deemed licence even if the Panchayat -10- ## **W.P.(C) NO.2104 OF 2023** or any authority rejects application for licences. Section 11(a) of the Act also gives overriding powers to the Board. This Court had considered the afore aspects in the judgment in **Chettikulangara Grama Panchayat v. State of Kerala and others** [2014 (3) KLT 105]. This Court held that the decision of the Panchayat, rejecting application for licence to operate a small scale industrial unit is only relevant while considering the application under Section 8 of the Single Window Clearance Act by the District Medical Board and the Board is not bound by such decision. In view of the above, the writ petition is liable to be dismissed, urged the Counsel for the 7th respondent. 15. Standing Counsel entered appearance on behalf of the Panchayat. The Standing Counsel for the 5th respondentPanchayat denied all the allegations made by the petitioner in the writ petition. The Standing Counsel submitted that the Panchayat representative could not attend the meeting convened by the Board which decided to issue licence to the petitioner. The Panchayat had sent a communication to the -11- ## **W.P.(C) NO.2104 OF 2023** Board, explaining the circumstances under which the Panchayat representative could not attend the meeting. 16. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 4, the learned Standing Counsel for the respondents 5 and 6 and the learned counsel appearing for the 7th respondent. 17. The petitioner has challenged Ext.P17 decision granting licence to the 7th respondent to run a fish market in Pandikkad Grama Panchayat. The argument of the petitioner is that once the Panchayat has considered the desirability of giving a licence for fish market in the area in question by the 7th respondent and the Panchayat had declined the licence. Once the Panchayat declines a licence for starting fish market, the Single Window Clearance Board could not have issued a licence, totally ignoring the decision taken by the Panchayat. 18. The scheme of the Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 would indicate that the said Act is enacted for -12- ## **W.P.(C) NO.2104 OF 2023** establishing industrial units in the State of Kerala, the Act gives overriding powers to the Board. Section 8 of the Act starts with a non-obstante clause. This Court has considered the power of the Board and has held that the power conferred on the District Board is overriding anything contained in any other law for similar power for issuing licence. Therefore, the fact that the Panchayat authorities have declined to issue a licence to the industrial unit would not restrain the Board while considering an application for licence under the Act and to issue licence to the applicant. 19. The petitioner would allege that nearby residents were not heard by the Board while issuing the licence. The licencing powers prescribed by the Act, 1999 are clear. When a citizen applies for a licence, the licencing authority has to make enquiries with various authorities. The Act does not contemplate consultation with local residents. The fact that the local residents were not heard while taking a decision to issue licence to the industrial unit, cannot invalidate the decision of the Board. -13- ## **W.P.(C) NO.2104 OF 2023** 20. I find that the petitioner has raised grievances regarding air pollution, water pollution and illegal removal of ordinary earth. These are all issues which falls within the powers of different statutory authorities. If the petitioner has any grievance relating to air and water pollution, the petitioner can still approach the competent authority including the Pollution Control Board. The petitioner cannot however be heard to contend that the 7th respondent cannot run the industrial unit when a competent authority has issued licence to the 7th respondent. In view of the afore facts, I find no merit in the writ petition and therefore, it is dismissed. Sd/- **N. NAGARESH JUDGE** bpr -14- ## **W.P.(C) NO.2104 OF 2023** ## **APPENDIX OF WP(C) 2104/2023** **PETITIONER'S EXHIBITS** - **EXHIBIT P1** - **A TRUE COPY OF THE STOP MEMO ISSUED BY THE 5TH RESPONDENT DATED 09/09/2020.** **EXHIBIT2 A TRUE COPY OF DECISION NO.4(1)OF 5TH RESPONDENT GRAMA PANCHAYATH DATED 13/10/2020.** - **EXHIBIT P3 A TRUE COPY OF JUDGMENT DATED 18/02/2021 IN WP(C) NO. 21151 OF 2020.** - **EXHIBIT P4 A TRUE COPY OF THE MINUTES OF URGENT BOARD MEETING OF THE 5TH RESPONDENT ON 16/06/2021.** - **EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 04/02/2022 BEARING NO. DICMPM/562/2020MM ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 25923/2021 DATED 15/02/2022.** - **EXHIBIT P7 A TRUE COPY OF DECISION NO.04/01 DATED 25/03/2022 OF PANDIKAD GRAMA PANCHAYAT.** - **EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 6TH RESPONDENT TO THE DEPUTY DIRECTOR OF PANCHAYATH DATED 05/04/2022.** - **EXHIBIT P9 TRUE COPY OF RELEVANT PAGES OF THE MINUTES OF THE 3RD RESPONDENT DATED 17/06/2022.** - **EXHIBIT P10 A TRUE COPY OF THE CERTIFICATE BEARING NO.DICMPM/562/2020-MM DATED 01/07/2022.** - **EXHIBIT P11 A TRUE COPY OF THE LETTER DATED 17/08/2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** -15- ## **W.P.(C) NO.2104 OF 2023** - **EXHIBIT P12** - **A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P13 A TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P14 A TRUE COPY OF THE LETTER ISSUED BY THE PRESIDENT OF THE 5TH RESPONDENT DATED 02/07/2022.** - **EXHIBIT P15 A TRUE COPY OF THE INTERIM ORDER DATED 14/07/2022 OF THIS HON'BLE COURT IN WP(C) NO 22891/2022.** - **EXHIBIT P16 A TRUE COPY OF THE JUDGMENT DATED 25/10/2022 IN WP(C) NO. 22891/2022 OF THIS HON'BLE COURT.** - **EXHIBIT P17 A TRUE COPY OF THE EXTRACT OF THE MINUTES OF 33RD MEETING OF THE 1ST RESPONDENT HELD ON 22/12/2022.** - **EXHIBIT P-18 PHOTOGRAPHS (3 NO.S) TAKEN ON 08/12/2019 OF THE PROPOSED SITE FOR THE CONSTRUCTION OF FISH MARKET.** - **EXHIBIT P-18(A) A TRUE COPY OF THE LETTER DATED 25/09/2019 ISSUED BY THE 6TH RESPONDENT TO HUMSA, AMINA AND RUKIYA.** - **EXHIBIT P-19 A TRUE COPY OF THE MEMORANDUM OF WRIT PETITION NO 21151/2020 OF THIS HON'BLE COURT WITHOUT EXHIBITS.** - **EXHIBIT P-20 PHOTOGRAPHS (2 NOS) DATED 09/09/2020 SHOWING THE PROPOSED FISH MARKET.** - **EXHIBIT P-21 TRUE COPY OF MEMORANDUM OF WRIT PETITION (WITHOUT EXHIBITS) OF WP(C) NO 25923/2021.** -16- ## **W.P.(C) NO.2104 OF 2023** ## **RESPONDENTS' EXHIBITS** - **EXHIBIT R7(A)** - **A TRUE COPY OF THE ACKNOWLEDGMENT CERTIFICATE NO.KLMSME-2370/2020 DATED 21/07/2020 ISSUED TO THE 7TH RESPONDENT BY THE 3RD RESPONDENT.** - **EXHIBIT R7(B) A TRUE COPY OF THE UDYAM REGISTRATION CERTIFICATE.** - **EXHIBIT R7(C)** - **A TRUE COPY OF THE CONSENT TO OPERATE/ AUTHORIZATION/ REGISTRATION WITH NO. PCD/CO/9211/19 DATED 04.10.2019.** - **EXHIBIT R7(D)** - **A TRUE COPY OF THE CONSENT VARIATION ORDER DATED 29.10.2019 ISSUED BY THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT R7(E) A TRUE COPY OF THE FSSAI LICENSE NO. 11320010000400 DATED 25.06.2021 AND VALIDATION AND RENEWAL ANNEXURE.** - **EXHIBIT R7(F)** - **A TRUE COPY OF THE PETITION FILED UNDER SECTION 4 OF THE ACT AND RULES 5 AND 6 OF THE RULES.** - **EXHIBIT R7(G)** - **A TRUE COPY OF THE INTERIM ORDER DATED 13.12.2021 IN W.P.C NO.25923/2021.** - **EXHIBIT R7(H)** - **A TRUE COPY OF THE PAYMENT RECEIPT DATED 08.03.2022.** - **EXHIBIT R7(I) A TRUE PHOTOGRAPH SHOWING THE AERIAL VIEW OF THE YARD.**