Karoor Panchayat v. State — 1995 DIGILAW 377 (KER)

Judgment :- Issuance of licence is a quasi judicial act. Even if the applicant for the licence in question is all alone, the authority concerned with the grant of licence is required to consider the pros and cons of the situation. I n this context, a question of law of genera! importance requires consideration and consequent decision. The question is whether in the matter of grant or rejection of licence, the licensing authority itself could be said to be aggrieved in the process so that the question can be agitated before the higher authorities. 2. The question comes up for consideration under the provisions of the Kerala Panchayat Act, 1960. The procedure with regard to the functioning of the Panchayat after its establishment shows that the panchayat functions under the president ship of the President of the said Panchayat or in his absence by the Vice-president and in the absence of both by a member chosen by the meeting to preside over the occasion. The procedure further spells out that the proceedings of the meetings are required to be recorded in what are known as minutes of the meeting and decision in regard thereto is commonly known as the resolution of the Panchayat. The resolution of the Panchayat is to be put into practice in accordance therewith by the executive officer. Sometimes there are stages leading to the passing of the resolution of the Panchayat for which the committees are constituted in accordance with the procedure. Even in regard to situations of dispute, such a dispute is to be taken up for consideration by the Deputy Director of Panchayat who has to either decide it himself or has to collect material on the basis of enquiry in regard thereto. 3. In the matter of certain activities, considerations of public safety, convenience and health are relevant and in accordance with the provisions of Chapter V of the said Act activities which require consideration of the above factors statutorily require permission. Also, apart from the above factors, there are certain situations relating to the activities which are characterised as activities that cannot be commenced without a licence. In regard thereto, S.97 of the Act is a matter of concern in relation to the factual matrix of this petition. Also, apart from the above factors, there are certain situations relating to the activities which are characterised as activities that cannot be commenced without a licence. In regard thereto, S.97 of the Act is a matter of concern in relation to the factual matrix of this petition. The said provision enacts that without the permission of the Panchayat and except in accordance with the conditions specified in such permission, no person shall install any machinery or manufacturing plant driven by any power, not being machinery or manufacturing plant exempted by the rules. Such an application obviously is to be preferred before the Panchayat and is to be considered by the Panchayat functioning under the President ship by a resolution either of acceptance or of rejection. 4. This particular process, under Sec. 144 of the said Act is subject to the statutory appellate provision specified therein. 5. It is necessary to refer to the said provision of appeal and revision (sec. 144 of the act) in the context of the question involved, both as regards the maintenance of the revision application before the State Government and also in regard to the question of maintainability of petition under Art.226 of the Constitution in this situation. The said provision relates to the action of the executive authority under the provisions of the Act or the Rules framed thereunder and it is enacted in the context that any person aggrieved by an order or an action of the Panchayat may appeal to the Deputy Director of Panchayat (respondent No. 2) who may pass orders under the said power (see S.144(2) of the act). Apart therefrom the State Government has a discretionary revisional power, on consultation in a proper situation either of the Collector, the Director, Deputy Director or such other officer or authority, at any time, either suo motu or on application to call for and examine the record and pass appropriate orders [see S.144(3)]. The question in the context for consideration is as to whether there is any remedy by way of a legal right other in an the person who is in the nature of an applicant for the licence in question, to take resort to the proceedings of S.144 of the Act. The question in the context for consideration is as to whether there is any remedy by way of a legal right other in an the person who is in the nature of an applicant for the licence in question, to take resort to the proceedings of S.144 of the Act. On analysis of the statutory provision of S.144 of the Act it is more than clear that the remedy relates to the action taken by the panchayat through its executive officer, specifically restricted to any person aggrieved in the situation, in the sense that the licence is granted when there is no cause of action for an appeal or when the licence is rejected by resort to the provisions of S.144 of the Act. Even thereafter a person can be aggrieved even against the action of the appellate authority and in that context the State Government has powers of revision which is specified either as suo mote or on the application obviously of the person aggrieved as referred to above. The statutory provisions, especially the provisions of appeal and revision, are always to be considered creatures of statute and are required to be confined to the language of the provision under consideration. 6. Apart therefrom it would be elementary to observe that the licensing process being a quasi judicial function is a product of consideration of pros and cons of the situation by the concerned authority. Even though it may be taken up for consideration by way of an illustration, an executive authority acts in pursuance of the resolution passed by the panchayat as required by the procedure enacted under the law. An adverse resolution is also an action in regard to in the event of rejection, can be an occasion of a cause for the person aggrieved by such rejection. 7. It is not that the question has propped up for the first time. In such situations the court's powers acting under Art.226 of the Constitution of India is concerned with writ of certiorari and as a consequence a writ of mandamus to issue consequential directions. It is plain as day light that in the context the writ court necessarily has an occasion to issue a writ directing the authority - the Panchayat in question- in the matter. It is not comprehensive to consider the Panchayat as a party in the process of licensing. It is plain as day light that in the context the writ court necessarily has an occasion to issue a writ directing the authority - the Panchayat in question- in the matter. It is not comprehensive to consider the Panchayat as a party in the process of licensing. In such a situation, the Panchayat has to be understood and appreciated only in the context of its statutory existence, to function in accordance with the procedure of its functioning, broadly specified above. The Panchayat has only one role and that is in accordance with the statement and objects of reason to function in accordance with the statutory provisions. The statutory provisions are more than clear. The Panchayat has to function in accordance with the provisions, illustratively S.97 of the Act in this context, and has to decide as a quasi judicial authority. In the process the role in question could not be one that can be understood to be a role of adversary in the system where there is a question of 'res' in the sense of the normal litigation as is understood. As a consequence, the decision in the matter becomes a subject matter of challenge strictly in accordance with the statutory provisions of S.144 of the Act, being available to the person aggrieved as a result thereof. It is a plain in the process that the role of the Panchayat as an aggrieved party is not available under the provisions of the said section. The person has a right to appear by way of an appeal with regard to his grievance, in this case before the Deputy Director of panchayats. To allow the Panchayat to be understood as an aggrieved party, would be, as described, "an unwholesome state in areas of quasi judicial functions", in the matter of such authorities being allowed and permitted to assume a due! role. This would be an abandonment in the matter of fair adjudication and judicial discipline as the core of the principle. This courts has already considered the question in the matter of the Kerala Motor Transport Workers Welfare Fund Act when such an order of the appellate authority Was sought to be challenged in this court on a petition by the District Executive Officers. In the process of reasoning in Para. 9 of the said judgment, at page 392 thereof it is observed that in the even! In the process of reasoning in Para. 9 of the said judgment, at page 392 thereof it is observed that in the even! of a subordinate authority challenging the decision of a superior authority, that would be an unwholesome state in areas of quasi judicial functions. This was on placing reliance on the decision of the Supreme Court observing that when a subordinate authority in the statutory hierarchy thereof does not adhere to, or abide by the decision of a superior authority, its approach and consequent action of challenge cannot be justified on any count. The Supreme Court had an occasion to consider this in the context of an income-tax officer (petitioner therein) seeking to challenge the order of the Appellate Tribunal by its final order, compelling the Supreme Court to observe that a final order and its refusal to follow as a consequence of denial of justice as a result of being destructive of one of the basic principles in the administration of justice, bases as it is, on the hierarchy of courts, leading to the court an issue of a writ of mandamus ex debito justicia to compel carrying out all the directions of the appellate authority. 8. It is necessary also to add that in the decision of this court the observations of Lord Justice Diplock6 to the effect that the judicial system work only if one is allowed to recognise that there is always a last word in the process. In Broome's case the court of appeal was concerned with a situation of in congruency of two judgments on the question of damages and it is observed that even if there is a feeling that there is an error in overruling, it will have to be accepted that the judicial system only works if some authority is allowed to have the last word and only if that last word once spoken is loyally accepted. The above discussion more than clearly in a crystal manner shows that the present petitioner who was also the petitioner before the State Government invoking powers under Sec. 144 of the Act could not be the petitioner properly so-called in the sense of of the legal situation specified hereinabove. Although the inevitable and logical conclusion to follow would be that the approach of the present petitioner before the State Govt. acting under S.144 of the Kerala Panchayat Act. Although the inevitable and logical conclusion to follow would be that the approach of the present petitioner before the State Govt. acting under S.144 of the Kerala Panchayat Act. 1960 as well as initiation of the present proceedings under Art.226 of the Constitution of India would be a bar, rendering both the proceedings as not maintainable in law, since submissions have been made even on merits. I propose to deal with them hereafter to complete the situation. 1 1991(1) KIT 390 - Dist. Executive Officer v. State of Kerala. 2 AIR 1961 SC 182 - Bhopal Sugar Industries v. Income Tax Officer. 3 (1972) AC 1027- Cassel v. Broome. 9. In the process, certain limitations also would be floating on the surface. The statutory provisions of the licensing process would directly show that it is a process based on consideration of factual factors as to whether the licence should be shown under the provisions of S.97 of the Act or not. Such a question if factually taken into consideration by the appellate authority consisting of respondent No. 2 as well as by the State Govt. In its order. There is no dispute with regard to the legal position that the power of exercise under Art.226 of the Constitution of India is exceptional in nature and extraordinary in character of use circumscribing narrow limits to peep through the factual requirement of the situation in question. It is necessary to proceed with the situation in the light of the above guiding principle on merits. 10. In survey No. 381/4B-1 within the territorial jurisdiction of Karror Panchayat the present respondent No. 3, commonly referred to in the proceedings as Sri. Biju, applied for the establishment of a metal crusher of a capacity of 9 HP. The matter was considered by the Panchayat committee in the first instance and by resolution No.1 dt. February 26,1992 it was rejected. Neither the copy of the application nor of the resolution stated above is on the material on record. Respondent No. 3, the applicant preferred an appeal to the Deputy Director on April 15, 1993 and by the order dt. August 4,1993, the Deputy Director remanded the matter for reconsideration to the. Panchayat Committee. The history repeated by resolution No. 6 dt. September 18,1993. A copy of the said resolution is at Ext. P2. 11. Respondent No. 3, the applicant preferred an appeal to the Deputy Director on April 15, 1993 and by the order dt. August 4,1993, the Deputy Director remanded the matter for reconsideration to the. Panchayat Committee. The history repeated by resolution No. 6 dt. September 18,1993. A copy of the said resolution is at Ext. P2. 11. The matter was again taken up in appeal to the Deputy director by a petition of appeal dt. October 5, 1993. This time the Deputy Director (respondent No. 2) considered the situation in matters of great details by the order dt. Nov. 20, 1993, directing the Panchayat to issue the licence to the original petitioner for the establishment of the metal crusher. 12. It is necessary to refer to some of the aspects taken into consideration by the appellate authority (respondent No. 2) in the said order (Ext. P3). 13. The appellate authority has passed a detailed order running into as nearly as 8 pages. Although the original order is in Malayalam, an agreed translation thereof is placed on record as Ext. R3 (a) to facilitate me to refer to the aspects taken into consideration therein. 14. It is observed that the applicant is registered small scale industrial unit by name "Palai Metal Products". The application was accompanied by all the necessary certificates. It is also observed that in a situation of scarcity of water, necessary arrangement would be made to sprinkle water as per the conditions to be imposed by the Panchayat with an assurance to stop the working of the crusher in the event of the need of the situation as per the directions of the Panchayat. In fact it is specifically observed in the order that the Panchayat has the power to stop the working. It is also referred to that in the 2nd resolution dt. June 18,1993, the reliance was placed on the report of one member Sri. Raveendran Nair. It shows that none entrusted him to submit a report. It is also considered by the appellate authority that there is another crusher in the name and style "Thompson Metal Crusher" in Palai Municipal area with a production capacity of 50-60 tons whereas the crusher of the applicant has a capacity of only 9 tons in comparison. Raveendran Nair. It shows that none entrusted him to submit a report. It is also considered by the appellate authority that there is another crusher in the name and style "Thompson Metal Crusher" in Palai Municipal area with a production capacity of 50-60 tons whereas the crusher of the applicant has a capacity of only 9 tons in comparison. It is also observed that the original application was submitted through the Green Channel counter and as per the existing rules a decision is required to be taken within 30 days to be conveyed within seven days from the decision. it is also considered that thereafter on September 23,1993 when permission was applied as above, there were several houses within 100 metres radius of that crusher. 15. Another aspect which has been taken into consideration by the appellate authority is that the certificates annexed by the applicant are not found to have been considered by the Panchayat at all. In the order the procedure adopted by the committee of the Panchayat is also referred to and on the basis of these contentions it is observed that the observations of the committee as recorded in the resolution dt. June 22,1992 appear to be contrary to the record in the context of reference to the District Medical Officer relating to the air and sound pollution and formation of metal dust as being absent totally in the certificates of the District Medical Officer. In this context, the emphasis is focused to a contrary situation appearing in the certificate of the District Medical Officer that the site is suitable for the metal crusher unit if the four conditions stipulated by them are strictly observed. 16. In the process it is placed on record that the District Medical Officer has issued a no-objection certificate to the unit and in spite thereof a contrary statement appears in the report of the Panchayat committee that the District Medical Officer is of the opinion that different kinds of diseases would be generated. It is also observed that even with regard to the material on record through the Labour Secretary, it is not placed on record the reason as to why certificates are not issued leading to the conclusion on facts in the context that the reason recorded is contrary to the facts. 17. It is also observed that even with regard to the material on record through the Labour Secretary, it is not placed on record the reason as to why certificates are not issued leading to the conclusion on facts in the context that the reason recorded is contrary to the facts. 17. It is observed that the Panchayat committee and Pollution Control Board expressed different opinions regarding the pollution possibility; more importance has to be given to the assessment of the Pollution Control Board. It is observed even in a similar manner in the matter of considerations of public health that more importance will have to be given to the certificate of the District Medical Officer than the decision of the Panchayat Committee in the context. 18. In the context of the working of the committee it is observed that it can grant licence to another unit where there are houses within a radius of 100 meters, the committee not visualising pollution possibility. 19. There is yet another aspect taken into consideration by the appellate authority with reference to the conduct of the committee in the context. The report of a person was taken into consideration ignoring that the unit visited by him has a capacity of 50-60 tons as against the capacity of 9 tons of the present petitioner. 20. It is after consideration of these factors that the appellate authority observed that the reason stated by the Panchayat to reject the application are not correct. In the process of the above reasoning even the second resolution of the Panchayat resolution No. 6 dt. September -18,1993 is cancelled with a consequential direction to issue the licence to the applicant. 21. The appellate authority is the authority available under the statutory provision of S.144 of the Act as a legal right to the applicant and as a result of this order the Panchayat has all obligations and statutory duty to abide by the said order. The Panchayat could never be a rival party to the question of grant of licence. 22. Even then the Panchayat approached the State Government. The proceedings although could not be held as maintainable as decided herein before, the following order is passed imposing certain conditions "The statement of all the parties were gone through. The Panchayat could never be a rival party to the question of grant of licence. 22. Even then the Panchayat approached the State Government. The proceedings although could not be held as maintainable as decided herein before, the following order is passed imposing certain conditions "The statement of all the parties were gone through. Government examined various aspects of this case and are pleased to order that the respondent is entitled to have the licence for starting the metal crushing unit subject to the following conditions : I) As the owner of the unit shall make arrangements to contain the dust/noise or any other nuisances, as advised by the Pollution Control Board, the District Medical Officer or any other authorities 'before production is started for their need. They may take water from Lalan thodu following the procedure. ii) As there is a school and Anganwadi as stated by the Panchayat, the respondent will satisfy all conditions prescribed by the P.C.B., District Medical Officer and get a certificate to that effect before starting production." 23. It is necessary to state it is observed in the said order that the original applicant is an unemployment citizen of the panchayat, the unit has been registered as a small scale industrial unit of metal crusher having applied as far back as or May 19,1992. Apart therefrom certain other factors also float on the surface of the record. It appears that as far as the proposed site is concerned, there is no dwelling house within 115 meters of the proposed site. It is also placed on record that even the public institutions such as school, post office, bank etc. appear to be located much away from the site in question and would not affect the normal functioning of these public institutions. It is also necessary to be observed that the applicant is also prepared to construct a building to cover up the proposed machinery in order to avoid any kind of sound or dust from the proposed unit. This is apart from the certificates of the Pollution Control Board and the District Medical Officer already tendered on record along with the application. It is placed on record that the Executive Officer of the Panchayat is already informed by the District Medical Officer that the site is suitable from the public health point of view for the installation of a 10 HP motor metal crushing unit. It is placed on record that the Executive Officer of the Panchayat is already informed by the District Medical Officer that the site is suitable from the public health point of view for the installation of a 10 HP motor metal crushing unit. 24. Illustratable it is also placed on record that in the taluk itself there are 15 metal crushing units and there is no complaint in regard thereto in any manner as regards apprehension of sound or pollution. 25. Factually it is placed on record that one Mr. S. Unnikrishnan has been granted licence dt. September 23,1993 for installation of a 15 H.P. Electric motor in Ward No. 5. It is also placed on record that in Ward No. it a new licence is also granted to one Mr. Joseph in a situation that the respondent No. 3 is the applicant first in point of time in comparison. Correspondence is also placed on record whereby the General Manager, District Industries Centre has also been in communication with the Deputy Director (Respondent No. 2) to take necessary steps for the issuance of the licence to the respondent No. 3. 26. It is also placed on record that the Kerala Panchayat (Licencing of Dangerous and Offensive Trades Factories) Rules, 1963 en powers the Panchayat to issue necessary directions for proper functioning of the licensed activity. 27. In the light of this situation, within the limited jurisdiction under Art,. 226 of the Constitution of India, the question of exercise is more than difficult. Be that as it may, when the situation was plain, my own curiosity and anxiety led me to ponder as to why the Panchayat should have challenged the appellate decision in revision before the State Government and continue the same, not content with it by presenting the petition to this court. Normally the Panchayat, although claiming to be interest in public, has to function democratically in accordance with the rule of law laid down in the context of its activity. The orders which are passed by the appellate authority atleast have to be understood by the Panchayats on the principle of finality as above. It is also necessary that the State Government also is required to look at these orders in the same spirit, and should be really slow and shy in entertaining such matters and that too at the hands of the Panchayats themselves. It is also necessary that the State Government also is required to look at these orders in the same spirit, and should be really slow and shy in entertaining such matters and that too at the hands of the Panchayats themselves. I would have been satisfied morally if I had found something as to why the Panchayat took this much interest out of way. However, without expressing any opinion in the matter I must state that a probable reason is supplied in the counter that the present petition lacks bona fides. It is placed on record that it is the personal interest of the President of the Panchayat that those who are in charge of maintenance and sustenance of the democratic process have looked at the matter differently and unexpectedly in the set up of the legislative provisions. The present petition as well as the proceedings before the State Government not only lack the required legal power for its invoking, but appear to be lacking bona fides also. Otherwise it is not possible to appreciate extraordinary interest in the matter. It is not necessary to specify what is urged in regard thereto as having been appeared for the first time in the counter, it must be stated that the hunch and the doubt about the manner in which the President has proceeded in taking up the matter contrary to law speaks volumes about the situation. It is also necessary that the appellate authorities and the authorities acting under sec. 144(3) of the Act would be required to be conscientious and vigilant in regard to the nature and purpose of taking the proceedings to them even though they are obviously and plainly not available to them, they being available to the real person aggrieved in the matter of licensing processes. Taking into consideration the factual aspects, there is no reason to disturb the situation which has been finalised by the order of the State Government. For all these reasons the petition stands dismissed leaving the parties to suffer their costs.