Shaly K.U. v. Ongallur Grama Panchayath and Secretary, Ongallur Grama Panchayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 24TH DAY OF MAY 2016/3RD JYAISHTA, 1938 WP(C).No. 18535 of 2015 (N) ---------------------------- PETITIONER(S): -------------------- SHALY K.U., AGED 28 YEARS W/O.BINESH.S., PARAKKAL HOUSE, VANDAZHI, PALAKKAD DISTRICT - 678 706. BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.U.VINOD KUMAR SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR RESPONDENT(S): ------------------------ 1. ONGALLUR GRAMA PANCHAYATH, P.O.KALLADIPATTA, PALAKKAD DISTRICT, PIN - 679 313, REPRESENTED BY ITS SECRETARY. 2. SECRETARY, ONGALLUR GRAMA PANCHAYATH, P.O.KALLADIPATTA, PALAKKAD DISTRICT PIN - 679 313. R1-R2 BY ADV. SRI.A.HAROON RASHEED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-05-2016 ALONG WITH W.P.(C) NO.20593/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18535 of 2015 (N) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ----------------------------------- - EXT.P-1: A TRUE COPY OF THE LETTER OF INTENT DATED 29.9.2014 ISSUED BY THE INDIAN OIL CORPORATION LTD TO THE PETITIONER - EXT.P-2: A TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 9.4.2015 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF THE LPG GODOWN OWNED BY THE PETITIONER - EXT.P-3: A TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 9.4.2015 ISSUED BY THE PANCHAYATH TO THE PETITIONER - EXT.P-4: A TRUE COPY OF THE EXPLOSIVE LICENSE ISSUED TO THE PETITIONER BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM UNDER THE EXPLOSIVES ACT. - EXT.P-5: A TRUE COPY OF THE ORDER OF CONSENT TO OPERATE DATED 25.4.2015 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. - EXT.P-6: A TRUE COPY OF THE FIRE NOC ISSUED BY THE DIVISIONAL OFFICER, PALAKKAD DIVISION OF FIRE AND RESCUE SERVICES. - EXT.P-7: A TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE COMMERCIAL TAX OFFICER, OTTAPALAM TO THE PETITIONER - EXT.P-8: A TRUE COPY OF THE LETTER DATED 16.6.2015 ISSUED BY THE 2ND RESPONDENT REJECTING THE APPLICATION FOR LICENSE OF THE PETITIONER - EXT.P-9: A TRUE COPY OF THE RESOLUTION NO.5 DATED 14.5.2015 OF THE IST RESPONDENT PANCHAYATH. RESPONDENT(S)' EXHIBITS : ------------------------------------- NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN & A.HARIPRASAD, JJ.** -------------------------------------- **==> picture [180 x 32] intentionally omitted <==** **==> picture [267 x 53] intentionally omitted <==** ## _**JUDGMENT**_ ## _**K.T.Sankaran, J.**_ These Writ Petitions are being disposed of by a common judgment since common questions of law and fact arise for consideration in these Writ Petitions. 2. The Writ Petitioner in both the Writ Petitions is Shaly.K.U. She applied to the Indian Oil Corporation Ltd. for awarding L.P.G. distributorship, in response to a notification. The petitioner was selected for appointment as a distributor at Shornur. Exhibit P1 letter of indent dated 29.9.2014 was issued in that regard by the Indian Oil Corporation. 3. The petitioner is the owner of an extent of 55 cents in R.S.No.311/3 in Ongallur-2 Village. She applied for a building W.P.(C) Nos.18535 & 20593/2015 2 permit for constructing L.P.G. godown in the said extent of 55 cents. Ongallur Grama Panchayat issued the building permit. The petitioner completed the construction of the godown and a building number (8/350-B) was assigned by the Panchayat. The petitioner paid building tax for the same. No objection Certificate dated 9.4.2015 was also issued by the Secretary of the Panchayat for storage of L.P.G. cylinder for retail distribution in Building No.8/350B belonging to the petitioner. It is stated that the statutory authorities had inspected the godown and the site and issued final approval for commissioning the godown. The Explosive license, consent letter issued by the Kerala State Pollution Control Board and fire NOC issued by the Divisional Officer, Palakkad Division, Fire and Rescue Services are produced by the petitioner as Exhibits P4 to P6 in W.P.(C) No.18535 of 2015. It is also stated in the Writ Petition that the minimum distance to be maintained between the godown and the nearest human habitation in terms of Gas Cylinder W.P.(C) Nos.18535 & 20593/2015 3 Rules, 2012 is only 9 metres. However, the godown is situated far away from residential houses and the nearest residential house is about 500 mtrs. away from the godown. 4. The petitioner applied for license under Rule 6 of the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996 to the Secretary of the Panchayat. The application for license was rejected as per the order dated 16.6.2015 issued by the Secretary of the Panchayat (Exhibit P8 in W.P.(C) No.18535 of 2015). The reason for rejection is that the applications filed for similar licenses were rejected in two other instances on the ground that functioning of gas godowns is against the safety and security of the people of the locality. The decision of the Panchayat dated 14.5.2015 by which the Panchayat decided to reject all similar applications is produced by the petitioner as Exhibit P9 in W.P.(C) No.18535 of 2015. The prayer in W.P.(C) No.18535 of 2015 is to quash Exhibits P8 and W.P.(C) Nos.18535 & 20593/2015 4 P9 to the extent it affects the rights of the petitioner to maintain and run the L.P.G. godown constructed by her. There is also a prayer for issuing appropriate writ or direction commanding the respondents to issue license to the petitioner for operating/running L.P.G. godown. 5. Heard the learned counsel for the petitioner, the Grama Panchayat and the private parties. We have also perused the counter affidavit filed by the Secretary of the Grama Panchayat. 6. In W.P.(C) No.18535 of 2015, a learned Single Judge of this Court passed an interim order which reads as follows : “Issue notice to respondents 1 and 2 by speed post. Respondents are directed not to interfere with the business of the petitioner in operating the L.P.G godown in the building constructed by her on the strength of a valid building permit. The order shall be in force for a period of two weeks.” The interim order was later extended until further orders. It is W.P.(C) Nos.18535 & 20593/2015 5 submitted by the parties that gas cylinders are stored in the godown of the petitioner and they are being removed for supply to the customers. 7. While W.P.(C) No.18535 of 2015 is pending, the petitioner filed W.P.(C) No.20593 of 2015 for police protection for the smooth running of the L.P.G. godown and for loading and unloading of LPG cylinders, regulators etc. by removing the obstruction caused by respondents 5 and 6. Respondents 5 and 6 in W.P.(C) No.20593 of 2015 are the action committee against L.P.G. godown in Ongallur Panchayat represented by its Chairman and K.Suresh, the Secretary of the said action committee. In W.P. (C) No.20593 of 2015, the petitioner stated that the Indian Oil Corporation used to allot sufficient number of gas cylinders and pressure regulators for storage in the petitioner's godown. It is also alleged that respondents 5 and 6 obstructed the work in the godown when some cylinders were brought to the godown on W.P.(C) Nos.18535 & 20593/2015 6 2.7.2015. It is stated that the goods could not be unloaded due to the obstruction caused by respondents 5 and 6. 8. The only reason for rejection of the applications for license as revealed from the order dated 16.6.2015 issued by the Secretary of the Panchayat is that the Panchayat had taken a decision to reject similar applications and had rejected the two said applications on account of the objections raised by the local people. Whether the Secretary of the Panchayat could reject an application for issue of license on such a ground was considered by a Division Bench of this Court in **Kadaplamattom Grama Panchayat v. Johny Roy (2013(3) KLT 1053)** and it was held thus : “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 W.P.(C) Nos.18535 & 20593/2015 7 empower the Panchayat to take a decision as stated in Exhibit 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 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 Exhibit 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.” 9. In the case in 2013(3) KLT 1053, the Panchayat had passed a resolution and considered the complaints of the people of the locality in respect of the grant of license for new quarries and it was resolved not to grant license to new quarries as it would affect the health of the people in the locality, agricultural operations and W.P.(C) Nos.18535 & 20593/2015 8 the water source in the neighbourhood. The Division Bench held that such a resolution could not be passed by the Panchayat. 10. Though under Rule 6 of the Kerala Panchayat Raj Rules, the power to issue license is granted to the President, the Division Bench in Kadaplamattom Grama Panchayat v. Johny Roy (2013 (3) KLT 1053) held that the Secretary has got the power to grant the license. The Division Bench held thus : “13.The question to be considered is regarding the authority of the Village Panchayat in issuing or refusing a license under the D & O Rules in view of the specific conferment of power on the Secretary as per Section 232 of the Act. The word “Secretary” has been incorporated with effect from 24.3.1999 to Section 232 of the Act, by way of substitution for the words “Village Panchayat”. The D&O Rules came into force as per S.R.O.No.76 of 1996. Rule 1(2) indicates that the rules shall come into force at once. But it is notified in the Kerala Gazette only on 23.4.2003. Apparently at the time of framing of the rules the Village Panchayat alone had the power under Section 232 of the Act and the W.P.(C) Nos.18535 & 20593/2015 9 President was given the power to issue the license. Whereas when the amendment was made to Section 232 of the Act, with effect from 24.3.1999, the same is not incorporated in the D&O Rules. This has given rise to certain controversies in respect of the authority to issue the license. It is a settled principle of law that rules cannot be framed contrary to the provisions of the statute and therefore, when Section 232 of the Act gives power on the Secretary of the Panchayat to issue license to such establishments coming under the Schedule, the D&O rules have to be read as if the power is vested with the Secretary. 19. In the light of the specific conferment of power on the Secretary to issue license in regard to establishments coming purely under Section 232 of the Act read with D&O rules, even if it is stated in the rules that the President is empowered to issue such a license, the rules have to be read as if the power is vested under R.6, 7, 8 and 11 on the Secretary of the Village Panchayat.” 11. In the light of the decisions of the Division Bench mentioned above, the order dated 16.6.2015 issued by the W.P.(C) Nos.18535 & 20593/2015 10 Secretary of the Ongallur Grama Panchayat (Exhibit P8 in W.P.(C) No.18535 of 2015) is unsustainable and it is accordingly quashed. The Secretary of the Panchayat shall take a fresh decision on the application submitted by the petitioner, as expeditiously as possible and at any rate, within a period of one month from today. 12. In the light of the interim order dated 19.6.2015 in W.P. (C) No.18535 of 2015, the petitioner would be entitled to run the godown till a final decision is taken by the Secretary of the Panchayat in the application for issue of the license. 13. In W.P.(C) No.20593 of 2015 filed for police protection, the learned counsel appearing for respondents 5 and 6 submitted that they have not caused any obstruction to the smooth functioning of the godown of the petitioner and the averments to that effect are not fully correct. The learned counsel, on behalf of respondents 5 and 6, submitted that they would not cause any obstruction to the functioning of the godown. This submission is W.P.(C) Nos.18535 & 20593/2015 11 recorded. In view of the submission made by the learned counsel for the party respondents, no specific direction for police protection is required in W.P.(C) No.20593 of 2015. If any obstruction is caused by respondents 5 and 6, the petitioner would be entitled to approach the Sub Inspector of Police, Shornur who shall afford necessary protection for the smooth functioning of the godown. Accordingly, the Writ Petitions are allowed to the extent indicated above. **K.T.SANKARAN JUDGE** **A.HARIPRASAD** **JUDGE** csl