T. L. James v Varandarappilly Grama Panchayat, Varandarappilly Grama Panchayat Committee, Secretary, Varandarappilly Grama Panchayat, Kerala State Pollution Control Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **WP(C).No.13067 OF 2020(G)** ## **PETITIONER:** **==> picture [98 x 129] intentionally omitted <==** **T.L. JAMES, AGED 63 YEARS S/O. LONAKUTTY, THOTTIAN HOUSE, CHENGALOOR P O, PUDUKKAD - VIA, THRISSUR DISTRICT, PIN-680312, PROPRIETOR, M/S. NAVEEN INDUSTRIES BONE MEAL FACTORY, VARANDARAPPILLY, PUDUKKAD-VIA, THRISSUR DISTRICT.** |||**BY ADV. SRI.BABU JOSEPH KURUVATHAZHA**| |---|---|---| |**RESPONDENTS**<br>**:**||| |**1**||**VARANDARAPPILLY GRAMA PANCHAYAT,**| |||**VARANDARAPPILLY P O,**| |||**PUDUKKAD - VIA,**| |||**THRISSUR DISTRICT, PIN-683303,**| |||**REPRESENTED BY ITS SECRETARY.**| |**2**||**VARANDARAPPILLY GRAMA PANCHAYAT COMMITTEE**| |||**VARANDARAPPILLY P O,**| |||**PUDUKKAD - VIA,**| |||**THRISSUR DISTRICT, PIN - 683303,**| |||**REPRESENTED BY ITS PRESIDENT**| |**3**||**SECRETARY**| |||**VARANDARAPPILLY GRAMA PANCHAYAT,**| |||**VARANDARAPPILLY P O,**| |||**PUDUKKAD - VIA,**| |||**THRISSUR DISTRICT, PIN - 683303,**| |**4**||**KERALA STATE POLLUTION CONTROL BOARD,**| |||**DISTRICT OFFICE, THRISSUR,**| |||**MAJESTIC SQUARE BUILDING, 3RD FLOOR,**| |||**PARAVATTANI, OLLUKKARA P O,**| |||**THRISSUR, PIN-680655,**| |||**REPRESENTED BY ITS ENVIRONMENTAL ENGINEER.**| **WP(C).No.13067 OF 2020(G)** **2** **==> picture [98 x 60] intentionally omitted <==** **BY ADV.** **==> picture [95 x 34] intentionally omitted <==** **SRI.C.A.CHACKO., SRI.T.NAVEEN, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13067 OF 2020(G)** **3** ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = = W.P.(C) No.13067 of 2020 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July 2020** ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: _That the Petitioner is the proprietor of M/s. Naveen Industries, a bone meal factory, functioning under the jurisdiction of the respondents, with effect from June, 1987. After effecting the construction of 160 M2, on the strength Ext.P2 building permit, no other structure was constructed by the petitioner. However, 1 st respondent issued Ext.P5 demand, directing the petitioner to remit Rs.44,825/- on 7.2.2019, towards the regularization of the construction and petitioner remitted Rs.43,843/- on 11.2.2019, in pursuance to Ext.P5 demand, as evidenced by Ext.P6 receipt. However, the 1st respondent directed the petitioner to remit Rs.47,000/-, towards the regularization of the construction effected during 1987 and petitioner remitted the said amount on 19.11.2019, as evidenced by Ext.P7 receipt. The 1st respondent issued Ext.P1 D&O licence on 1.4.96 and it was renewed time to time and the last order of D&O licence was Ext.P9 dated 3.7.2019, which was valid up to 31.12.2019. It was by investing huge amount that petitioner_ **WP(C).No.13067 OF 2020(G)** **4** _established bio-filter in the industry, as suggested by the 4 th respondent. Since the establishment of bio-filter was in progress, some delay was occurred in renewing Ext.P10 consent to operate, which was valid up to 31.12.2019. Later, the 4th respondent issued Ext.P14 consent to operate valid up to 31.12.2024. Therefore along with Ext.P14, petitioner submitted Ext.P17 application before the 1st respondent, for renewing Ext.P9 D&O licence. However, in utter violation of the principles of natural justice, the 2nd respondent passed the resolution dated 11.5.2020, ordering that the D&O licence_ _to the industry would not be renewed, until the construction of the building was regularized. The said resolution is a creature of malafide attitude on the part of certain members of the 2nd respondent. In pursuance to the said resolution of the 2nd respondent, the 3rd respondent issued Ext.P19 proceeding, informing the petitioner that unless the construction of the building of the industry was regularized, the Ext.P9 licence would not be renewed, at the juncture when petitioner had not effected any construction to the building after 2010, and more than 3000 sq.ft. of the industry was subjected to total damage during the flood occurred in August, 2018._ It is in the light of the above averments and contentions, that the petitioner has filed the instant Writ Petition (Civil) with the following **WP(C).No.13067 OF 2020(G)** **5** ## prayers: - _“i) issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P19 proceeding of the 1st respondent;_ - _ii) issue a writ of mandamus or any other appropriate writ, order of direction, commanding the 1st respondent to renew Ext.P9 D&O licence, for a period of 5 years , forthwith;_ - _iii) issue a writ of mandamus or any other appropriate writ, order of direction, commanding the 1st respondent to consider and dispose of Ext.P17 application in the light of Ext.P14 consent to operate issued by the 4th respondent;_ - iv) _issue such other writ, order or direction which may deem fit in the facts and circumstances of the case.”_ 2. Heard Sri. Babu Joseph Kuruvathazha, learned counsel appearing for the petitioner, Sri. C.A. Chacko, learned counsel appearing for respondent Nos.1 to 3 (Varandarappilly Grama Panchayat) and Sri.T.Naveen, learned Standing Counsel for Kerala State Pollution Control Board appearing for respondent No.4. 3. The case of the petitioner is to the effect that he has been conducting his business relating to bone meal factory in the building owned by him and trade licence has been issued to the petitioner to conduct the said trade by the respondent Grama Panchayat as per the provisions of the Kerala Panchayat Raj Act and the Rules framed thereunder since the year 2006. Up to the issuance of the impugned Ext.P19 order since 01.04.1996 onwards and the licence has been renewed from time to time and the petitioner has also secured the necessary consent to operate the said unit from the 4[th] **WP(C).No.13067 OF 2020(G)** **6** respondent Kerala State Pollution Control Board and that the petitioner has fully complied with the terms and conditions of all such norms. Further that in respect of certain additional constructions said to have been carried out by the petitioner in the said building, the respondent Panchayat authorities have demanded the petitioner to make certain payments as can be seen from Exts.P5 to P7. Those amounts so demanded, has been fully remitted by the petitioner. Further that at no time prior to the issuance of the impugned Ext.P19 order have the respondent Panchayat authorities raised an issue that the said additional constructions would amount to unauthorized construction which would require regularization as per the applicable norms. Ext.P9 is the last of the trade licence issued to the petitioner by the respondent Panchayat which was valid up to 31.12.2019, mainly as Ext.P10 consent issued by the 4th respondent Kerala State Pollution Control Board was then valid only up to 31.12.2019. Later the respondent Panchayat issued Ext.P13 memo directing the petitioner to stop the functioning of his unit as he has not secured renewal of the trade/D&O licence. Thereafter, the 4[th] respondent has issued Ext.P14 consent to operate the unit which is valid for the period from 20.03.2020 up to 31.12.2024. Thereupon petitioner has filed Ext.P17 application dated 08.05.2020 before the 3[rd] respondent Secretary of **WP(C).No.13067 OF 2020(G)** **7** the Grama Panchayat seeking for renewal of Ext.P9 licence for the subsequent period. Now without any prior notice and without affording any reasonable opportunity to the petitioner, the 3[rd] respondent Secretary of the Grama Panchayat has issued Ext.P19 letter dated 12.05.2020 intimating that in view of the decision taken by the Panchayat Committee of the of the said Panchyat on 11.05.2020 referred to as item No.2 of Ext.P19, the request of the petitioner for renewal of the licence cannot be considered and the same could be considered only after the petitioner takes steps for regularization of the alleged unauthorized construction. Apart from the main contention that Ext.P19 and the impugned resolution referred to therein has been rendered without reasonable opportunity of being heard to the petitioner, it is also contented that the issue relating to the renewal of the trade/D&O licence to the petitioner and the issue relating to the regularization of the alleged unauthorized construction, etc., are two different and distinct issues. Further that the sole authority to decide the renewal of the trade from D&O licence is the 3[rd] respondent Secretary of the Grama Panchayat and if any party is aggrieved by the renewal of such licence, any such aggrieved party could file statutory appeal, which is to be considered by the Panchayat Committee who is the appellate authority for that purpose. Therefore, **WP(C).No.13067 OF 2020(G)** **8** it is highly wrong on the part of the 2[nd] respondent Panchayat Committee to have directed the 3[rd] respondent not to renew the above said licence as sought for in Ext.P17 application until the petitioner takes steps for the regularization of the alleged unauthorized construction. 4. After hearing both sides, it is beyond any dispute that the impugned decision said to have been taken on 11.05.2020 by the Panchayat Committee (referred to as item no.2 in Ext.P19) as well as the consequential decision reflected in Ext.P19 dated 12.05.2020 issued by the 3[rd] respondent Secretary of Grama Panchayat has been rendered in flagrant violation of natural justice in as much as the same has been rendered without affording any prior reasonable opportunity to the petitioner. As the same has been rendered in patent violation of the elementary principles of natural justice and fairness, the same is liable to be considered by the 3[rd] respondent Secretary of the Grama Panchayat. For effecting such a remit, it is ordered that the impugned decision rendered on 11.05.2020 by the Panchayat Committee (referred to as item No.2 in Ext.P19) as well as the consequential decision executed in Ext.P19 will stand quashed and set aside. Ext.P17 application submitted by the petitioner for grant of renewal of Ext.P9 licence will stand remitted to the 3[rd] respondent Secretary of the **WP(C).No.13067 OF 2020(G)** **9** Grama Panchayat for consideration and decision afresh. While doing so it has to be borne in mind in the respondent Nos.2 and 3 that the sole authority to decide on the issuance of grant or renewal of trade/ D &O licence in terms of Section 232 of the Kerala Panchayat Raj Act and the Rules framed thereunder is the Secretary of the Grama Panchayat concerned and not the Panchayat Committee. If any person is aggrieved by the grant or renewal of the licence or by the refusal to grant such licence, etc., then such aggrieved party can prefer statutory appeal before the Panchayat Committee in terms of Section 276 (1) of the Kerala Panchayat Raj Act. Therefore, the decision regarding the renewal of the trade licence is to be rendered by the 3[rd] respondent Secretary of the Grama Panchayat in exercise of his statutory discretion and unswayed by any other considerations as otherwise such exercise of discretion would be vitiated by dictation and abdication of statutory functions. It is also be borne in mind that the issue of renewal of trade licence as well as the issue of the regularisation of the alleged unauthorized construction are two different and separate issues which has to be separately and distinctly considered. The 3[rd] respondent Secretary of Grama Panchayat will take up the matters raised in Ext.P17 application and after affording reasonable opportunity of being heard to the petitioner and after **WP(C).No.13067 OF 2020(G)** **10** ascertaining as to whether the petitioner has already secured necessary permission/consent from the competent statutory authorities, and then should take a concerned decision on the matters raised in Ext.P17 application for renewal of the trade licence, in accordance with law, without much delay, preferably within a period of three weeks from the date of production of a certified copy of the judgment and strictly in accordance with the dictum laid down by the Full Bench of this Court in the case of **Tomy Thomas v. State of Kerala** [2019 (3) KLT 987 (FB)]. The petitioner’s counsel has submitted that for running bone meal factory, the norms required only securing of consent to operate the unit from the Kerala State Pollution Control Board as well as the licence issued by the Factories and Boilers Department and that the petitioner has secured Ext.P14 consent from the 4[th] respondent Pollution Control Board and Ext.P8 licence from Factories and Boilers Department, etc. It is for the petitioner to bring those aspects to the notice of the 3[rd] respondent while taking a decision. 5. As regards the issue relating to the alleged unauthorized construction, it is ordered that the 3[rd] respondent Secretary may ensure that the inspection of the subject building is conducted by the Assistant Engineer of the Local Self Government **WP(C).No.13067 OF 2020(G)** **11** Department of the area concerned with due prior notice to the petitioner as well as the 3[rd] respondent Secretary of the Grama Panchayat and may ascertain as to whether the building has been constructed in terms of the applicable norms and whether the additional constructions would amount to unauthorized construction, etc., and copy of the inspection report so prepared shall be given to both the petitioner and the 3[rd] respondent. Thereafter the 3[rd] respondent Secretary of the Grama Panchayat will afford opportunity of being heard to the petitioner and may ascertain as to whether there are any issues of unauthorized constructions in the said building and also the contention of the petitioner based on Ext.P5 to Ext.P7 and if necessary, may require the petitioner to submit necessary application for regularization of such alleged unauthorized construction and thereafter it is for the both sides to deal with such issues strictly in accordance with the applicable norms and guidelines. 6. Sri.T.Naveen, learned standing counsel for the Kerala State Pollution Control Board appearing for the 4[th] respondent submits that the grant of such trade/ D&O licence by the 3[rd] respondent will be subject to the condition that the petitioner will have to strictly comply with all the terms and conditions of Ext.P14 consent and any other varied conditions that may be issued from time **WP(C).No.13067 OF 2020(G)** **12** to time by the 4[th] respondent as per the applicable guidelines and norms. The petitioner will have to ensure that there is due compliance on those aspects as well required by the 4[th] respondent Kerala State Pollution Control Board. 7. Petitioner will produce certified copies of the judgment along with the copies of the memorandum of W.P.(C). with all the exhibits before the 3[rd] respondent Secretary of the Grama Panchayat as well the 4[th] respondent. With these observations and directions the writ petition is disposed of. Sd/- **ALEXANDER THOMAS JUDGE** **SCS** **WP(C).No.13067 OF 2020(G)** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE LICENCE NO.7/96-97**| |---|---| ||**DATED 1.4.1996 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P2**|**TRUE COPY OF THE BUILDING PERMIT**| ||**NO.1049 DATED 10.06.2009 ISSUED BY THE**| ||**1ST RESPONDENT.**| |**EXHIBIT P3**|**TRUE COPY OF THE**| ||**ENTREPRENEURS'MEMORANDUM FOR SETTING UP**| ||**OF MICRO, SMALL OR MEDIUM ENTERPRISE**| ||**ISSUED BY THE DISTRICT INDUSTRIES**| ||**CENTRE, THRISSUR.**| |**EXHIBIT P4**|**TRUE COPY OF THE CONSENT TO OPERATE**| ||**BEARING CONSENT**| ||**NO.PCB/DO/TSR/F/ICO/1933/2011 DATED**| ||**23.08.2011, VALID UP TO 31.12.2013,**| ||**ISSUED BY THE 4TH RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE DEMAND NOTICE DATED**| ||**7.2.2019 ISSUED BY THE 1ST RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF THE CASH RECEIPT DATED**| ||**11.02.2019 EVIDENCING THE REMITTANCE OF**| ||**RS.43,843/- BY THE PETITIONER.**| |**EXHIBIT P7**|**TRUE COPY OF THE CASH RECEIPT DATED**| ||**19.11.2019, EVIDENCING THE REMITTANCE**| ||**OF RS.47,000/- BY THE PETITIONER.**| |**EXHIBIT P8**|**TRUE COPY OF THE LICENCE DATED**| ||**15.11.2016 ISSUED BY THE FACTORIES AND**| ||**BOILERS DEPARTMENT TO THE INDUSTRY,**| ||**VALID UP TO 31.10.2020.**| **WP(C).No.13067 OF 2020(G)** **14** |**EXHIBIT P9**|**TRUE COPY OF THE D AND O LICENCE DATED**| |---|---| ||**3.07.2019 ISSUED BY THE 1ST RESPONDENT**| ||**VALID UP TO 31.12.2019.**| |**EXHIBIT P10**|**TRUE COPY OF THE CONSENT TO OPERATE**| ||**DATED 6.3.2017 VALID UP TO 31.12.2019**| ||**ISSUED BY THE 4TH RESPONDENT.**| |**EXHIBIT P11**|**TRUE COPY OF THE PROCEEDING NO.**| ||**PCB/TSR/IC/2936/11 DATED 26.12.2019 OF**| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P12**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**15.1.2020 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE 1ST RESPONDENT.**| |**EXHIBIT P13**|**TRUE COPY OF THE ORDER DATED 17.1.2020**| ||**ISSUED BY THE 1ST RESPONDENT.**| |**EXHIBIT P14**|**TRUE COPY OF THE INTEGRATED CONSENT TO**| ||**OPERATE RENEWAL ORDER DATED 20.03.2020**| ||**ISSUED BY THE 4TH RESPONDENT.**| |**EXHIBIT P15**|**TRUE COPY OF THE APPLICATION DATED**| ||**23.3.2020 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE HEALTH INSPECTOR UNDER THE**| ||**1ST RESPONDENT.**| |**EXHIBIT P16**|**TRUE COPY OF THE CHALAN DATED 23.3.2020**| ||**EVIDENCING THE REMITTANCE OF RS 170/-**| ||**BY THE PETITIONER.**| |**EXHIBIT P17**|**TRUE COPY OF THE APPLICATION DATED**| ||**8.5.2020 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE 1ST RESPONDENT.**| |**EXHIBIT P18**|**TRUE COPY OF THE AFFIDAVIT DATED**| ||**8.5.2020 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE 1ST RESPONDENT.**| **WP(C).No.13067 OF 2020(G)** **15** |**EXHIBIT P18(a)**|**TRUE COPY OF THE JUDGMENT DATED**| |---|---| ||**12.04.2018 IN WP(C) NO. 13035/2018 OF**| ||**THIS HON'BLE COURT.**| |**EXHIBIT P19**|**TRUE COPY OF THE PROCEEDINGS NO. A1-**| ||**3124/20 DATED 12.05.2020 OF THE 1ST**| ||**RESPONDENT.**| //TRUE COPY// PA TO JUDGE