W.A. No. 1422 of 2018 in WPC 5662/2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE SHIRCY V. MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940 ## **W.A.No. 1422 of 2018 IN WPC. 5662/2018** AGAINST THE JUDGMENT IN WP(C) 5662/2018 of HIGH COURT OF KERALA DATED 07-06-2018 ## **APPELLANT(S)/PETITIONER** JOSE A., S/O.ANANTHAN, AGED 44 YEARS, CHUVATTUPADAM, PANNIYANKARA P.O., VADAKKENCHERRY, PALAKKAD. BY ADVS.SRI.P.R.VENKETESH SRI.G.KEERTHIVAS ## **RESPONDENT(S)/RESPONDENTS:** 1. VADAKKENCHERY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VADAKKENCHERY, PALAKKAD - 678 683. 2. THE DISTRICT TOWN PLANNER, PALAKKAD - 678 001. 3. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, NEAR DISTRICT PANCHAYAT OFFICE, PALAKKAD - 678 001. 4. GEORGY GEORGE K., S/O.K.J.GEORGE, KOTTKAPILLY HOUSE, KALAPATHY P.O., PALAKKAD DISTRICT - 678 003. R3 BY ADV. SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, BY SR. GOVERNMENT PLEADER SRI. A.J. VARGHESE BY SRI.JOBI JOSE KONDODY BY SRI.N.KRISHNA PRASAD THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-07-2018 ALONG WITH W.A.1527 OF 2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K. SURENDRA MOHAN & SHIRCY V, JJ. - - - - - - - - - - - - - - - - - W.A. Nos. 1422 & 1527 of 2018 - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of July, 2018 ## JUDGMENT ## Surendra Mohan, J. Both these appeals are filed by the same person and is directed against a common judgment finally disposing of W.P.(C) Nos. 5460 of 2018 and 5662 of 2018. The appellant was the fourth respondent in W.P.(C) No. 5460 of 2018 and the petitioner in W.P.(C) No. 5662 of 2018. The issue relates to the grant of licence for starting a Bitumen Hot Mixing Plant. W.A. No. 1527 of 2018 is treated as the leading case and the parties as well as the documents produced are referred to in the manner in which they are referred to in the said writ appeal. 2. The writ petition was filed by the first respondent, a PWD Contractor who was in the process of executing various road works for the Public Works Department. According to him, for the purpose of the W.A.1422 & 1527/2018 2 smooth and efficient conduct of his work, it was necessary for him to establish a hot mix plant. For the purpose, he sought the required permission from the first respondent Panchayat. A consent to establish the plant was sought from the Pollution Control Board. Such consent has been obtained as evidenced by Ext.P2. The same has also been renewed subsequently. Thereafter, he had sought for the issue of a licence to establish under Section 232 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Panchayat Raj Act' for short). He had also sought for the issue of a licence under the provisions of the Kerala Panchayat Raj (Issue of licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (hereinafter referred to as 'the D & O Rules'). The application submitted by the contractor was initially rejected, thereupon he approached this Court by filing W.P.(C) No. 5507 of 2017. The said writ petition was allowed, the order of the Panchayat was set aside and the application for licence submitted by the W.A.1422 & 1527/2018 3 Contractor was directed to be considered afresh. It is necessary to point out here that initially, rejection of the licence sought for by the contractor was for the reason that objections had been received from persons in the locality. Since the said reason was not acceptable, this Court had directed the matter to be considered afresh. Accordingly, the matter was considered but was again rejected by the Panchayat. The said orders were under challenge in W.P.(C) No. 9245 of 2017. Finding that the Panchayat had again rejected the applications on the same reasons that were found to be unsustainable by this Court, this Court quashed the impugned orders and directed the Panchayat to consider the application for licence once again. Ext.P11 is the copy of the said judgment. 3. Thereafter, the petitioner/contractor was directed by the Panchayat to file a fresh application. Accordingly, a fresh application under Section 233 of the Panchayat Raj Act was submitted on 16.1.2018. On the said W.A.1422 & 1527/2018 4 application, the Panchayat had sought for an approval from the Chief Town Planner, Thiruvananthapuram to be produced. The same was also produced as evidenced by Ext.P14. In spite of the above, by the issue of Ext.P15 the Panchayat again rejected the application of the Contractor stating that there were objections from persons in the locality. It was the said order that was under challenge in W.P.(C) No. 5460 of 2018. 4. In the meantime, the Secretary of the Panchayat before whom the application for D & O licence was pending, considered the same and a licence was issued. W.P.(C) No. 5662 of 2018 was filed challenging the said action of the Secretary by the appellant herein. In the writ petition filed by the Contractor, the appellant was the fourth respondent. 5. The writ petitions were considered by the learned Single Judge together. The learned Single Judge considered the respective contentions of the parties, found W.A.1422 & 1527/2018 5 that despite repeated directions being issued by this Court to consider the application submitted by the Contractor under Section 232 of the Kerala Panchayat Raj Act, the Panchayat had not considered the matter properly, or in accordance with law. It was found that Ext.P15 order did not disclose any tenable grounds for rejecting the application of the Contractor. Therefore, holding that another direction to the Panchayat to pass fresh orders would be an exercise in futility, a declaration that the Contractor had satisfied all the conditions under Section 233 of the Panchayat Raj Act has been issued. With respect to the contention of the appellant herein that the grant of D & O licence to the Contractor was liable to be set aside by this Court, it has been held that the appellant would be entitled to raise all his objections with regard to the activities of the Contractor before the Panchayat authorities and that the Panchayat would have to consider the said objections. It is aggrieved by the said judgment that these W.A.1422 & 1527/2018 6 appeals are filed. 6. According to the counsel for the appellant, a D & O licence cannot be granted without a permit under Section 232 of the Panchayat Raj Act being granted. In this case, since the grant of a licence under Section 233 of the Act has not preceded the issue of D & O licence, the same was liable to be set aside. In support of his contention, the counsel places reliance on the decision of a Division Bench of this Court in Kadaplamattom Grama Panchayat v. Johny Roy (2013 (3) K.L.T. 1053). In support of his contention that a licence under Section 233 of the Act is necessary, the counsel places reliance on the decision in Jilmon John v. Manakad Grama Panchayat (2017(1) K.L.T. 794). Inasmuch as no licence under Section 233 had been obtained by the Contractor before he was issued with the D & O licence, it is contended that the issue of the said licence was wrong. It is further contended that, the learned Single Judge has in this case arrogated to himself the power of the Panchayat W.A.1422 & 1527/2018 7 and has in effect issued permission under Section 232 to the contractor. 7. We have heard Adv.N. Krishna Prasad, who appears for the Panchayat, Adv. Joby Jose Kondody, who appears for the Contractor, and Adv. T. Naveen, who appears for the Pollution Control Board. 8. We have given our anxious consideration to the contentions advanced before us. We find that the Contractor has already been given sanction to establish a plant by the Pollution Control Board. Thereafter, he had sought for the issue of a licence under Section 233 of the Panchayat Raj Act from the Panchayat. He had also filed an application for D & O licence for the purpose of establishing the proposed hot mix plant. However, the Panchayat rejected the application submitted under Section 233 of the Act. The rejection was only for the reason that there were objections from some members of the public. Since the said reason was not germane for rejecting the W.A.1422 & 1527/2018 8 application submitted by the Contractor, this Court set aside the same and directed the Panchayat to consider the matter afresh. However, we find that, the Panchayat had rejected the application again stating the very same ground. Though the rejection was set aside for the second time and a fresh consideration ordered, on the third occasion also the Panchayat rejected the application of the contractor on the very same ground. The learned Single Judge has therefore entered a presumption that there were no sustainable grounds available to reject the application submitted by the Contractor. Had there been any other tenable ground on which the application could have been rejected, the Panchayat would have put forward the said reason. Since no sustainable reason was forthcoming despite the grant of repeated opportunities, the learned Single Judge has granted a declaration that the Contractor has satisfied all the parameters necessary for the grant of a licence under Section 233 of the Panchayat Raj Act and that, W.A.1422 & 1527/2018 9 it should be treated as though he has been issued with a licence enabling him to carry on his activity of conducting a hot mixing plant. We find no infirmity in the said direction warranting an interference therewith in writ appeal. Though the counsel for the appellant has contended that there were other serious shortcomings to which the Panchayat had not adverted, while rejecting the application submitted by the contractor, we are not satisfied that we should go into a consideration of the said aspects, at this stage. Had the reasons now put forward been available, the Panchayat would certainly have referred to the same. The fact that, the Panchayat could not come up with any serious objection to the grant of a licence to the Contractor in spite of repeated directions issued by this Court shows that there were no serious objections, as contended. 9. With respect to the contention that the Secretary could not have granted a D & O licence in a situation where a licence under Section 233 had been W.A.1422 & 1527/2018 10 rejected at the hands of the Panchayat, we find that the entire issue was under the consideration of the learned Single Judge, simultaneously. The learned Single Judge has found that, a licence under Section 233 of the Panchayat Raj Act ought to have been issued to the Contractor. We have already found that there is nothing wrong in the said direction. Therefore, we are also not satisfied that any interference with the D & O licence granted by the Secretary is called for in these proceedings. The learned Single Judge has, while dismissing the writ petition filed by the appellant, taken care to provide an opportunity to the said persons to raise all objections before the Panchayat. Such objections, if submitted, have also been directed to be considered with notice to all interested parties. The said direction takes care of the objection raised by the appellant herein. We remind ourselves of the fact that the hot mixing plant has not started functioning. It is only in the preliminary stage of being established. Therefore, it is too early to decide W.A.1422 & 1527/2018 11 whether the objections raised by the persons like the appellant are justified or not. For the above reason, it is only appropriate that the objections are considered by the Panchayat as and when raised. If objections are submitted, needless to observe that, the Panchayat shall consider and pass orders thereon expeditiously after hearing all parties. With the above observations, these writ appeals are dismissed. Sd/K. SURENDRA MOHAN JUDGE Sd/SHIRCY V JUDGE sb //true copy// Sd/P.S. To Judge