Fr. Skariah v. Taluk Panchayat Officer — 1991 DIGILAW 261 (KER)

Judgment :- Bhat. Ag.CJ. This appeal is directed against the dismissal of O.P. No. 6131 of 1986. The O.P. was disposed of along with S.A. No. 649 of 1986 2. The parties are referred to by their ranking in the appeal. The third respondent is a factory engaging metal crusher for producing metals of different sizes by crushing granite. The factory was established in 1978. Poulose, the then Managing Partner, left the firm in 1979, and started a similar factory within a distance of five K Ms. There were mass petitions allegedly inspired by the retiring Managing Partner, before the Nedumbasserry Panchayat, as well as the District Medical Officer, Health, and Collector complaining of nuisance because of the activities in the factory causing sound pollution due to vibration as well as pollution by dust to the residents in the area. The District Medical Officer inspected the site and by Ext. P5 letter dated 21-12-1986 directed the Executive Officer of the Nedumbassery Panchayat to cancel the licence issued to the factory for running a crusher and to take steps to stop the functioning of the factory immediately. This direction was issued on the basis of the information of the District Medical Officer, Health, that there are four houses within a radius of 100 metres of the factory, a public well in the distance of 5.80 metres, that the water poured at the time of crushing was inadequate, and at the lime of functioning of the crusher vibrations are to the nearby buildings, and that it causes air pollution. The appellant requested the Executive Officer of the Panchayat to implement the direction in Ext. P5. The Executive Officer by Ext. P6 letter declined to do so. By Ext. P7 letter, the first respondent, Taluk Panchayat Officer, declined to direct the Executive Officer to enforce Ext. P5 direction. Thereupon the appellant filed O.P. No. 6131 of 1986 seeking a writ of certiorari quashing Exts. P6 and P7 and seeking a writ of mandamus directing respondents land 2 to cancel the licence granted to the third respondent, and to forbear from issuing any licence in future to the third respondent, and other reliefs. The Writ Petition was opposed by respondents 1 to 3. 3. P6 and P7 and seeking a writ of mandamus directing respondents land 2 to cancel the licence granted to the third respondent, and to forbear from issuing any licence in future to the third respondent, and other reliefs. The Writ Petition was opposed by respondents 1 to 3. 3. On 21-10-1980, one Chacko Varghese filed a suit for injunction restraining the owner of the factory from running it on the ground that there is a health hazard on account of sound and dust pollution. Relief was claimed against the Panchayat also seeking to compel it to enforce its statutory duty of cancelling the licence. The trial court decreed the suit. The appeal filed by the owner of the factory was allowed on 23-11-1981. Meanwhile the Panchayat directed the Executive Officer to renew the licence. Chacko Varghese filed O.P. No. 285 of 1982 in this Court seeking to quash the renewed licence. The Writ Petition was allowed, and the order of the Panchayat was quashed with a direction to reconsider the matter after hearing Chacko Varghese. The Panchayat subsequently directed renewal of the licence. 4. The trial court in the suit held that there was no sound pollution, but found that there was dust pollution, and granted a decree on condition that if the owner of the factory would introduce a device to abate the dust pollution, the licence of the factory could be renewed. Chacko Varghese being aggrieved by the decree filed appeal AS. No. 217 of 1982. The appellate court modified the decree to some extent directing the third respondent to provide water connection at the mouth of the crusher with a shower nozzle with provision to open the same and shower water at the mouth of the crusher easily by providing a tap, which can be operated standing on the ground. The appellate court also agreed that there was no risk of sound pollution. Against this judgment the plaintiff filed S. A. No. 649 of 1986 which has been dismissed by the learned Single Judge by the common judgment already referred to. 5. We are concerned in this case with the legality of Ext. P5 direction issued by the District Medical Officer of Health to the Executive Officer of the Panchayat directing the latter to cancel the licence. 5. We are concerned in this case with the legality of Ext. P5 direction issued by the District Medical Officer of Health to the Executive Officer of the Panchayat directing the latter to cancel the licence. Grant of licence to an industry like the present third respondent is governed by the Kerala Panchayats (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1963, hereinafter called the "Rules". Rule 5 deals with application for licence. Rule 6 lays down that the Executive authority shall dispose of the application either granting or refusing licence. Rule 10 deals with time limit for filing renewal and new application for licences. Rule 25 deals with cancellation of licence. It reads thus: "The licence issued is liable to be cancelled by the Executive Authority if he is satisfied, after giving an opportunity to the licensee of making any representation against such cancellation, that there has been a violation of any of the conditions of the licence or if the licensee is convicted by a Court of Law under the Untouchability (Offences) Act, 1955 (Central Act 22 of 1955) when the offence is committed in respect of any matter to which the licence relatest". It also lays down that in urgent cases he may take steps to cancel the licence without giving an opportunity to the owner of the factory to make a representation. Thus cancellation of licence falls within the jurisdiction of the Executive Authority. That jurisdiction has to be exercised by him, without reference to any direction of the District Medical Officer, Health. These Rules do not invest any power or jurisdiction of the District Medical Officer to interfere in the matter of granting licence. Our attention has been invited to Rule 12(4) of the Rules by learned counsel for the appellant. Rule 12 deals with application for construction, establishment or installation of factory, workshop or workplace to which steam or other power is to be employed. The person who seeks to construct establishment, etc., has to submit an application to the Executive Authority. Under sub-rule 4(a) of Rule 12, before grant of permission the Panchayat has to obtain the approval of the Inspector of Factories regarding the matters specified therein. The person who seeks to construct establishment, etc., has to submit an application to the Executive Authority. Under sub-rule 4(a) of Rule 12, before grant of permission the Panchayat has to obtain the approval of the Inspector of Factories regarding the matters specified therein. Under sub-rule 4(b) the Panchayat is required to consult, and have due regard to the opinion of the District Medical Officer of Health, or any other officer authorised in this behalf as regards the suitability of the site of the factory, workshop, workplace or premises for the purpose specified in the application. Rule 12(4) has nothing to do with the grant of licence. It deals only with the permission requisite for construction, establishment or installation of factory, etc. Even in the matter of grant of such permission all that the Panchayat is required to do is to consult and have due to the opinion of the District Medical Officer of Health as regards the suitability of the site of the factory, etc., for the purpose specified. The complaint of the appellant is regarding the alleged sound and dust pollution caused by the machinery installed in the site by the owner of the factory. Thus it is clear that the rules referred to do not invest any jurisdiction with or power on the District Medical Officer of Health to interfere with the statutory authority of the Panchayat or the Executive Authority. 6. Learned counsel for the appellant contends that by virtue of the provisions of the Travancore-Cochin Public Health Act, 1955, the District Medical Officer has jurisdiction to do what he has actually done. Relevant provisions are in Chapter VI dealing with abatement of nuisances. 'Nuisance' is defined under S.2(27) and further amplified in S.39. Under S.40 every local authority shall cause its local area to be inspected from time to time with a view to ascertain what nuisance exist therein calling for abatement under the powers conferred on such authority by the Act and enforce the provisions of the Act in order to abate such nuisances. under S.ll it is open to any person aggrieved by a nuisance in any local area to give information of the same to the Health Officer or any. other officer of the Public Health establishment of the local authority. under S.ll it is open to any person aggrieved by a nuisance in any local area to give information of the same to the Health Officer or any. other officer of the Public Health establishment of the local authority. S.42 states that if the Health Officer is satisfied, whether upon information, given under S.ll or otherwise, of the existence of a nuisance, he may, by notice, require the person by whose act default or sufferance the nuisance arises or continues or if that person cannot be found, the owner or occupier of the premises on which the nuisance arises or continues, to abate the nuisance and to execute such works and take such steps as may be necessary for the purpose. under S.43 it is open to the local authority to abate the nuisance or to prevent its recurrence, and recover the cost from the owner of the factory. S.46 confers power on the Executive Authority or any officer of the Public Health Department of the Government or of the local authority to enter and inspect any premises for the purpose of enforcing any of the provisions contained in Chapter VI. S.47 states that if the local authority or its Health Officer makes default in doing its or his duty under this Act in regard to the abatement or prevention of nuisances, the Government may authorise any of their officers to perform such duly and for that purpose to exercise any specified powers of the local authority or of its Health Officer or of both in the local area concerned and the expenses incurred by such officers shall be met from the funds of the local authority. 7. Assuming for the purpose of discussion that the District Medical Officer of Health has been authorised by the Government to exercise the power under S.47, though no such authorisation has been referred to us, that power is confined to perform the function which the Health Officer is required to perform under S.47 read with S.42. Even that function can be performed only on the requisite satisfaction, and by notice to the party concerned. Though S.42 does not expressly require an opportunity to be granted to the owner of the factor to make a representation, such a principle of natural justice should naturally be read into the scheme of S.42. Even that function can be performed only on the requisite satisfaction, and by notice to the party concerned. Though S.42 does not expressly require an opportunity to be granted to the owner of the factor to make a representation, such a principle of natural justice should naturally be read into the scheme of S.42. There is no case for anyone that the third respondent has been granted such an opportunity in this case. Further what the District Medical Officer has done is not to perform the function under S.47 read with S.42, but to direct the Executive Officer of the Panchayat to cancel the licence, and to take steps to stop the functioning of the factory immediately. Our attention is not invited to any provision conferring on the District Medical Officer of Health any power to have the functioning of a factory closed permanently. Granting or cancelling of licence is within the jurisdiction of the Executive Authority under the Rules. The District Medical Officer of Health has absolutely no jurisdiction in the matter of grant or cancellation of licence. His direction to the Executive Officer to cancel the licence involves usurpation of the power of the 'licensing authority or the appellate authority. He could not have given such a direction; nor could lie give a direction to the Executive Officer to ensure that the factory is closed. 8. We have adverted to the result of the litigation in the civil court. The litigation was fought upto the High Court in I he presence of the owner of the factory and the Panchayat. The decision in that litigation is no doubt not binding on the writ petitioner, but is binding on the Panchayat and its Executive Officer. The findings will have certainly due weight in proceedings before I he Executive Officer and the Panchayat. 9. The learned Single Judge has considered the allegation that the Writ Petition is actuated by mala fides, but we find it unnecessary to go into the aspect of the matter. Learned counsel for the appellant submitted that the functioning of the factory with a metal crusher in operation is creating nuisance in the neighbour hood, and the local residents are entitled to some relief in that behalf. Learned counsel for the appellant submitted that the functioning of the factory with a metal crusher in operation is creating nuisance in the neighbour hood, and the local residents are entitled to some relief in that behalf. If they have any grievance in the manner in which the metal crusher is operated, and if they have any grievance that the metal crusher is operated without fulfilling the conditions prescribed by the civil court in the litigation already referred to. it is certainly open to them to approach the statutory authority for appropriate reliefs. With this observation we dismiss the writ appeal.