Soorya Retreats and Holidays India Private Limited v Elamadu Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938** ## **WP(C).No. 18421 of 2016 (C) --------------------------------------------** ## **PETITIONER(S) : --------------------------** **1. SOORYA RETREATS AND HOLIDAYS INDIA PRIVATE LIMITED, SOORYA COMPLEX, ELAMADU, KOLLAM DISTRICT, KERALA-691 539, REPRESENTED BY ITS MANAGING DIRECTOR, MR. SATHEESH K.R.** **2. SATHEESH K.R.,** - **MD, SOORYA RETREATS AND HOLIDAYS INDIA PRIVATE LIMITED, RESIDING AT KRISHNA BHAVAN, ARKKANNOOR P.O., AYOOR, KOLLAM DISTRICT-691 533.** ## **BY ADVS. SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS** ## **RESPONDENT(S) :** - **----------------------------** **1. ELAMADU GRAMA PANCHAYATH, ELAMADU P.O., AYOOR-691 539, REPRESENTED BY ITS SECRETARY.** **2. THE SECRETARY, ELMADU GRAMA PANCHAYAT, ELAMADU P.O., AYOOR-691 539.** ## **BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 18421 of 2016 (C)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1 TRUE COPY OF THE CONSENT NO. PCB/KO/CTE/64/07 DATED 29-04-2007.** - **P2 TRUE COPY OF THE CONSENT TO OPERATE BEARING NO. PCB/KO/CTO/F/04/08 DATED 24-01-2009.** - **P3 TRUE COPY OF THE LICENSE BEARING NO. 26/07 DATED 02-06-2007 ISSUED UNDER SECTION 233 OF THE KERALA PANCHAYAT RAJ ACT.** - **P4 TRUE COPY OF THE LICENSE ISSUED FOR THE YEAR 2008 DATED 15-10-2008.** - **P5 TRUE COPY OF THE LICENSE ISSUED FOR THE YEAR 2009.** - **P6 TRUE COPY OF THE CONSENT BEARING** - **NO. PCB/KO/CTO/G/445/2008 DATED 18-01-2016.** - **P7 TRUE COPY OF THE NO OBJECTION CERTIFICATES ISSUED BY THE DISTRICT MEDICAL OFFICER DATED 01-12-2016.** - **P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 21-03-2016.** - **P9 TRUE COPY OF THE LETTER NO. C-2528/16 DATED 03-05-2016.** - **P10 TRUE COPY OF THE DECISION OF THE COMMITTEE OF THE PANCHAYAT AS ITEM NO. III DATED 24-06-2016.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **C.R.** ## **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.18421 of 2016-C ---------------------------------Dated this the 30[th] day of June, 2016** ## **JUDGMENT** The petitioners are aggrieved with Ext.P10 order passed by the Panchayat Council, purportedly under Section 233 of the Kerala Panchayat Raj Act, 1994 [for brevity, the Act of 1994]. The petitioners' contention is that, Section 233 is not applicable and a renewal has to be considered by the Secretary under Section 232 of the Act of 1994; with the Council conferred with appellate powers. 2. The petitioners were conducting a power laundry unit in the property from 2007 onwards. Originally, the petitioners had applied under _W.P.(C) No.18421 of 2016-C_ **2** Section 233, granted permission to establish by the Council and issued with a licence as is seen at Ext.P3. In the subsequent years also the petitioners obtained renewal of license from the Secretary under Section 232, which is evidenced at Exts.P4 & P5. The unit was taken over by the financier, when default occurred in the loan availed by the petitioners for setting up the unit. As of now, the petitioners have been permitted restoration, in so far as the petitioners having satisfied the loan account. 3. The petitioners obtained a fresh Consent to Operate as is indicated at Ext.P6 from the Kerala State Pollution Control Board, which is valid till October, 2017. The petitioner then applied for renewal of the licence since the petitioner already had a permission under Section 233 of the Act from the Council. It is _W.P.(C) No.18421 of 2016-C_ **3** seen from Ext.P10 that the Secretary, who has to grant the renewal, has recommended such renewal also. For some reason, the matter was placed before the Council and the Council rejected it by Ext.P10. 3. The petitioners' contention is that the establishment of the unit having been in 2007, there is no requirement for a fresh order under Section 233 of the Act of 1994 from the Council of the Panchayat and a renewal would suffice. The learned counsel appearing for the Panchayat would submit that admittedly, there is a discontinuation of the unit and when the present application was made, it has to be deemed to be one under Section 233. 4. It is not the case of the Panchayat that the unit was dismantled and taken away or a new one is established. The reason for the _W.P.(C) No.18421 of 2016-C_ **4** closure of the unit for a period is sufficiently explained by the petitioner. The unit existed there, but no operations were conducted. Now, when the renewal is sought for with Consent to Operate obtained from the Kerala State Pollution Control Board, there is no reason why the matter should be placed before the Council. 5. The learned counsel for the petitioners also relies on a decision rendered by a Division Bench of this Court in **Kadaplamattom Grama Panchayat, Kottayam and another v. Johny Roy [2013 (3) KHC 857]** , wherein this Court had considered the issue and held so in paragraph 18: _“18. However, if the application is filed for establishing a unit which does not come under Section 233 of the Act and if it comes only under Section 232 of the Act, or under Rule 12(3) of the D&O Rules, the license is relatedto be issued_ _W.P.(C) No.18421 of 2016-C_ **5** _only by the Secretary.”_ 6. The above cited decision was in the context of a policy decision taken by the Panchayat not to allow any quarries within its jurisdiction. The declaration aforementioned also was in a slightly different context. However, the Division Bench examined Section's 232 and 233 of the Act of 1994 to find that the grant of license has to be decided by the Panchayat and the issuance of license is to be done by the Secretary. The grant to be decided by the Panchayat under section 233 is only for the construction of factories and the installation of machinery and when renewal is sought for, a licensee need not approach the Panchayat Council every time. The renewal is to be granted under section 232 and the restriction is only in carrying on activities, _W.P.(C) No.18421 of 2016-C_ **6** likely to be offensive or dangerous to human life or health or property; without a license. 7. Further it is to be noticed that even under Section 233 the Council cannot by itself come to a decision of contamination being possible or pollution occasioned. By subsection (3) of Section 233; a report is mandated from the Secretary as to whether the establishment or installation would be objectionable _interalia_ for reason of causing nuisance or pollution. In the present case the Secretary has recommended the renewal of license sought for by the petitioner. As to the possibility of nuisance or pollution; subsection (4) also requires the consideration of a report of the District Medical Officer,obtained under sub-clause (c). The proviso to the sub-clause also dispenses the _W.P.(C) No.18421 of 2016-C_ **7** requirement of such report, when there is a recommendation by an authorised officer of the Industries Department or by the Kerala State Pollution Control Board. In the present case there is a Consent of Operation from the Kerala State Pollution Control Board, which dispels the apprehension of the Council that there is possibility of contamination. 8. Yet again, it has to be noticed that Ext.P10 has been issued by the Council, rejecting the application for renewal of licence, on the ground that there is possibility of contamination of drinking water; without any supporting material. As already seen, it is not for the Council to decide on such contamination,especially when the Pollution Control Board is statutorily constituted to look into such issues. If the _W.P.(C) No.18421 of 2016-C_ **8** Council or any of the local public has an objection on the operation of the unit itself, they could definitely approach the Pollution Control Board, who would be duty bound to verify as to the allegation of contamination. As of now, there is no reason why the Secretary of the Panchayat should not consider the matter and why the application for renewal should be rejected. Ext.P10 would stand set aside. The Secretary shall grant renewal of the licence subject to the directions herein above. The writ petition is allowed with the reservations above noted. No costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/30/06/16