Zakeer K.U. Karothukudy v. Asamannoor Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 20TH DAY OF FEBRUARY 2017/1ST PHALGUNA, 1938** **WP(C).No. 21245 of 2016 (E) ----------------------------** **PETITIONER(S): -------------** **ZAKEER K.U. KAROTHUKUDY, MARAMPILLY P.O., MANJAPETTY, ERNAKULAM DISTRICT.** **BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR** **RESPONDENT(S):** **--------------** **1. ASAMANNOOR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, ASAMANNOOR P.O., ERNAKULAM DISTRICT-683 549.** **2. THE SECRETARY ASAMANNOOR GRAMA PANCHAYAT, ASAMANNOOR P.O., ERNAKULAM DISTRICT-683 549.** **R1,R2 BY ADV. SRI.N.K.KARNIS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 21245 of 2016 (E)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------P1 COPY OF THE PROCEEDINGS GIVEN BY THE SENIOR TOWN PLANNER AS ORDER NO.A3/3079/10/K.DIS. DATED 11.11.2010. P2 COPY OF THE BUILDING PERMIT GIVEN BY THE 1ST RESPONDENT PANCHAYAT DATED 14.3.2011. P3 COPY OF THE SANCTION CERTIFICATE GIVEN BY THE 2ND RESPONDENT DATED 7.5.2011. P4 COPY OF THE NO OBJECTION CERTIFICATE GIVEN BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM, DATED 4.1.2016. P5 COPY OF THE APPROVAL GIVEN BY THE DISTRICT MEDICAL OFFICER(HEALTH), ERNAKULAM, DATED 3.2.2016. P6 COPY OF THE LICENSE ISSUED TO THE PETITIONER FOR SAW MILL OR OTHER WOOD BASED INDUSTRIAL UNIT DATED 19.2.2016 BY THE AUTHORIZED OFFICER AND DIVISIONAL FOREST OFFICER, MALAYATTOOR DIVISION. P7 COPY OF THE CONSENT GIVEN BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 5.5.2016. P8 COPY OF THE APPLICATION FOR LICENSE FILED BY THE PETITIONER DATED 13.5.2016. P9 COPY OF THE DECISION TAKEN BY THE ASAMANNOOR GRAMA PANCHAYAT COMMITTEE AT ITS MEETING HELD ON 7.12.2013. P10 COPY OF THE DECISION TAKEN BY THE ASAMANNOOR GRAMA PANCHAYAT COMMITTEE AT ITS MEETING HELD ON 31.5.2016 AS ITEM NO.3(6). P11 COPY OF THE COMMUNICATION NO.C2-3560/16 DATED 3.6.2016 GIVEN BY THE 2ND RESPONDENT TO THE PETITIONER. RESPONDENT(S)' EXHIBITS : NIL -----------------------** **//TRUE COPY//** **P.A.TO JUDGE** **sm** ## **A.K.JAYASANKARAN NAMBIAR, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **W.P.(C) No.21245 of 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of February, 2017 ## **JUDGMENT** The petitioner has approached this Court aggrieved by Ext.P10 decision and Ext.P11 communication, whereby the respondent Panchayath decided not to grant license to the petitioner for the conduct of a wood industry. The facts in the writ petition would indicate that, the industrial unit originally belonged to one Alka, who was running the unit till 2013. In 2013, just prior to the petitioner purchasing the unit, the license for running the unit was denied to the erstwhile proprietrix. After the petitioner purchased the unit, he obtained the necessary No Objection Certificate from the Fire Department (Ext.P4), the necessary clearance from the District Medical Officer (Ext.P5), the clearance from the Divisional Forest Officer (Ext.P6) and the consent from the Pollution Control Board (Ext.P7). Thereafter, by Ext.P8 application, the petitioner applied for the necessary D & O license for the purposes of commencing activities in the unit. The said application for license was rejected by the respondent Panchayath through Ext.P10 decision, which was later communicated to the petitioner by Ext.P11. It is evident from Ext.P10 and P11 that, the sole reason W.P.(c).No. 21245 of 2016 : 2 : cited by the Panchayath for not granting the license to the petitioner is the objections received by the Panchayath from persons in the locality, who are objecting to the conduct of the industrial unit by the petitioner. 2. I have heard Sri.K.P.Satheesan, the learned Senior Counsel for the petitioner and the learned standing counsel for the respondent Panchayath. 3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, in Ext.P10 decision and Ext.P11 communication, the sole reason cited by the Panchayath for denying the license to the petitioner is the alleged blanket decision taken by the Panchayath Committee not to grant licenses to wood based units, taking note of the objections received from persons in the locality. I find in this connection that a Division Bench of this Court had gone into the aspect of how a discretion vested in a Local authority is to be exercised, and in the judgment in **K.G.A. Hotels & Resorts Pvt. Ltd. v. State of Kerala 2015(2) KLT 683** , it was held as follows: “18. The concept of discretionary power and the mode of W.P.(c).No. 21245 of 2016 : 3 : its exercise by statutory functionaries was an issue considered by the Apex Court in _U.O.I. v. Kuldeep Singh_ (2004 (1) KLT SN 31 (C.No. 37) SC = (2004) 2 SCC 590), where in paragraphs 20, 21 and 22, it was held thus; “20. When anything is left to any person, Judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary). In its ordinary meaning, the word “discretion” signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary.) 21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of W.P.(c).No. 21245 of 2016 : 4 : judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (per Lord Halsbury, L.C., in _Sharp v. Wakefield_ [(1891 AC 173: (1886-90) All. ER Rep 651 (HL)]. (Also See _S.G.Jaisinghani v. Union of India_ (Air 1967 SC 1427). 22. The word “discretion” standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in it implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility .......... “ 19. Again in _Clariant International Ltd v. Securities & Exchange Board of India_ ((2004) 8 SCC 524), the Apex Court reiterated these principles thus; “27. In _Kruger v. Commonwealth of Australia_ ((1997) 146 Aus LR 126) it is stated: W.P.(c).No. 21245 of 2016 : 5 : “Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention .... “ 28. The discretionary jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object sought to be achieved and the reasons for granting such wide discretion (See _Narendra Singh v. Chhotey Singh_ ((1983) 4 SCC 131). 29. A discretionary jurisdiction, furthermore, must be exercised within the four corners of the statute. [See _Akshaibar Lal (Dr.) v. Vice-Chancellor, Banaras Hindu University_ (AIR 1961 SC 619) and also para 9-022 of de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th Edn., p.445]. 20. Therefore, when Municipality is conferred with the discretionary power to grant permission, it being a repository of statutory power, is obliged to consider each application independently and in accordance with law and to decide whether the permission sought for should be granted or declined. Such a statutory authority is not entitled to take a blanket policy decision that it would not exercise its discretion under any circumstances and thus W.P.(c).No. 21245 of 2016 : 6 : deny itself the discretion statutorily conferred on it. In this context, it is most apposite to refer to the Apex Court judgment in _U.P.S.R.T.C. v. Mohd. Ismail_ ((1991) 3 SCC 239) where, it was held that; “It may be stated that the statutory discretion cannot be fettered by self-created rules or policy. Although it is open to an authority to which discretion has been entrusted to lay down the norms or rules to regulate exercise of discretion it cannot, however, deny itself the discretion which the statute requires it to exercise in individual cases.” 21. The above principles of Administrative Law have been explained by H.W.R.Wade and C.F.Forsyth in their book on Administrative Law (Ninth Edition) at page 324 thus; “An authority can fail to give its mind to a case, and thus fail to exercise its discretion lawfully, by blindly following a policy laid down in advance. It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case: each one must be considered on its own merits and decided as the public interest requires at the time. The Grater London Council was criticised for disregard of this principle when it proceeded to make a large subsidy to the London bus and underground services as a matter of course because the ruling party had promised to do so in their election campaign. They regarded themselves as W.P.(c).No. 21245 of 2016 : 7 : irrevocably committed in advance, whereas their duty was to use their discretion. Nor may a local authority lawfully refuse all applications for housing for children of families considered to be 'intentionally homeless', since the power to provide housing implies a duty to consider the different circumstances of each child. Nor, for the same reason, may they automatically proceed to recondition sub-standard houses as soon as the owner has failed to comply with an improvement notice. Nor may they refuse to repay rates overpaid if their policy is based upon advice which interprets their statutory discretionary power too narrowly. Where the Secretary of State's policy was to disallow all merely local objections to the allocation of land for gipsies, the court held it unlawful for undue rigidity. Where he made a rule that he would refuse grants to all projects already started before the grant application he fettered his discretion unlawfully. The Court of Appeal has held that a local council's resolution might be quashed if councillors voted for it in obedience to the orders of their political party, but not if they conscientiously decided to prefer the party's policy to their own opinions.” 22. Therefore, self imposed policy decision taken by a statutory authority denying itself the discretion statutorily conferred on it, would be condemned by courts as a case of abdication of the statutory power. In so far as this case is concerned, Ext.P10, the decision communicated to the company and the affidavit filed by W.P.(c).No. 21245 of 2016 : 8 : the Municipality show that the Municipality has taken a rigid policy decision not to grant permission for any licence within the Municipal area. This is reiterated in the counter affidavit also. Though the policy decision allegedly taken is not produced before this Court, by confessing that it has taken such a decision not to grant permission for any licence within its area, the Municipality has denied to itself the statutory discretion and thus abdicated its statutory duties. Such a decision as reflected in Ext.P10, is totally illegal and cannot be sustained.” Taking cue from the said judgment, and finding that in the instant case also, it is not in dispute that the petitioner has obtained all the necessary clearances and permissions from the respective statutory authorities for the purposes of running the unit in question, I am of the view that, it would be incumbent upon the respondent Panchayath to independently consider the application of the petitioner on merits, keeping in mind the statutory provisions. I make it clear that, the Secretary of the respondent Panchayath shall consider the application preferred by the petitioner, untrammeled by any blanket decision taken by the Panchayath committee not to grant licenses to any particular type of industry, and merely based on the objections received from persons in the locality. If objections have in fact been W.P.(c).No. 21245 of 2016 : 9 : received from persons in the locality, then it is for the Panchayath to consider the said objections and then take a decision in the light of the clearances that have been granted to the petitioner, by the statutory authorities that are entrusted with the task of regulating the industry under various enactments. I, therefore, quash Exts.P10 and P11 and direct the respondent Panchayath to take a fresh decision in the matter, after keeping in mind, the principles laid down by the Division Bench of this Court as extracted above, as also the observations in this judgment, within a period of one month from the date of receipt of a copy of this judgment, after hearing the petitioner. The petitioner shall produce a copy of the writ petition along with a copy of this judgment, before the 2[nd] respondent, for further action. **A.K.JAYASANKARAN NAMBIAR JUDGE** sm/