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2010 DIGILAW 217 (KER)

Baby Mathew v. Nellikkuzhi Grama Panchayath

2010-03-11

ANTONY DOMINIC

body2010
Judgment : The petitioner submits that he owns 6.5 cents of land in survey No.285/18-1 of Irumalappady village, within the area of the 1st respondent Panchayat. 2. On an application made by the petitioner, he was granted Ext.P1 licence for starting a light/fabrication engineering unit using 20 HP electric motor. According to the petitioner, on the strength of the licence he established a small scale industrial unit, and that thereafter complaints were made by neighbouring residents. Accordingly, the Panchayat issued Ext.P2 notice calling upon the petitioner to show cause why licence shall not be cancelled. The petitioner submitted Ext.P3 reply and finally, the Panchayat cancelled the licence by order dated 27/07/2005. 3. Aggrieved by this order, the petitioner filed an appeal to the Committee of the Panchayat. The appeal was rejected by Ext.P6 order. Against these proceedings, the petitioner filed Revision Petition No.118/05 before the Tribunal for Local Self Government Institutions. By Ext.P7 order, the Tribunal disposed of the Revision Petition. Taking note of the fact that the Panchayat cancelled the licence mainly on the basis that nuisance and pollution were caused on account of the industrial unit, the Tribunal held that the conclusion regarding the nuisance and pollution was arrived at without obtaining any valid report and simply on the complaints and the reports submitted by the Steering Committee, which did not include any technical hand. 4. On the above basis, the Tribunal passed the following order :- "In the result, Decision No.1 dated 27-7-2005 and III dated 22-11-2005 of the Panchayat Committee of Nellikuzhy Grama Panchayat and orders dated 01/08/2005 and 28/11/2005 of the Secretary based on those decisions are set aside and the Panchayat Committee is directed to obtain report from the Pollution Control Board in relation to the pollution aspect of the Petitioner's unit and take fresh decision on the basis of Decision NO.III(I) dated 04/06/2005 after rendering opportunity of being heard to him and the complainants in the complaints based on which that decision was taken. Fresh decision as above shall be taken within 60 days from today. The Petitioner shall operate the unit only after obtaining consent to operate from the Pollution Control Board." 5. Accordingly, the Pollution Control Board inspected the premises of the petitioner and consent to operate the industrial unit was granted, a copy of which is Ext.P8. This consent is valid till 30/06/2015. The Petitioner shall operate the unit only after obtaining consent to operate from the Pollution Control Board." 5. Accordingly, the Pollution Control Board inspected the premises of the petitioner and consent to operate the industrial unit was granted, a copy of which is Ext.P8. This consent is valid till 30/06/2015. Again as directed by the Tribunal, the Panchayat considered the matter and by Ext.P10 resolution, the Panchayat concluded that the establishment of the petitioner's unit is against public interest and therefore it was decided not to grant licence to the petitioner. 6. According to the petitioner, against the aforesaid decision, he submitted an appeal before the Green Channel Clearance Committee. The Green Channel Clearance Committee, by Ext.P11 proceedings dated 22/10/2008 considered the matter and passed its resolution recommending to the Panchayat to grant licence. Once again the Panchayat considered Ext.P11 and passed Ext.P12 resolution requesting the Green Channel Clearance Committee to reconsider its decision. 7. It would appear that in the meanwhile, against Ext.P11 order of the Green Channel Clearance Committee, respondents 7 & 8 filed an appeal before the Chief Secretary. They, thereafter approached this Court and filed WP(C) No.352/2009. At the stage of admission, by Ext.P15 judgment that writ petition was disposed of directing the Chief Secretary to dispose of the appeal filed against Ext.P11. Accordingly, the matter was heard by the Deputy Secretary (Industries) on 25/02/2009 and Ext.P16 order was passed annulling Ext.P11 order passed by the Green Channel Clearance Committee. It is in these circumstances this writ petition has been filed by the petitioner challenging Ext.P16 order and for consequential reliefs. 8. The contention raised in the writ petition that even if it is assumed that Ext.P11 is an order passed under the provisions of the Single Window Clearance Act, an appeal lies only to the Board constituted under the said Act, and that therefore, the Secretary to the Government, who passed Ext.P16, has no jurisdiction in the matter. It is further contended that Ext.P7 revisional order passed by the Tribunal having become final and once the Pollution Control Board has granted Ext.P8 consent, the Panchayat should not have rejected licence to the petitioner. It is therefore contended that the Panchayat having illegally rejected licence, the Green Channel Clearance Committee was justified in passing Ext.P11. 9. It is further contended that Ext.P7 revisional order passed by the Tribunal having become final and once the Pollution Control Board has granted Ext.P8 consent, the Panchayat should not have rejected licence to the petitioner. It is therefore contended that the Panchayat having illegally rejected licence, the Green Channel Clearance Committee was justified in passing Ext.P11. 9. On behalf of respondents 7 & 8, the learned counsel contended that Ext.P10 order passed by the Panchayat has become final. According to respondents 7 & 8, the petitioner, having pursued his remedies against Ext.P6 order before the Tribunal should have pursued his grievances against Ext.P10 also before the Tribunal itself. It is contended that he having not done so, Ext.P10 order has become final. Yet another contention that he raised is that even if it is assumed that the Green Channel Clearance Committee had jurisdiction in the matter, only an appeal could have been entertained by the Committee, and that going by Ext.P11 proceedings of the Green Channel Clearance Committee what was dealt with by it was a representation made by the petitioner. It is also contended that even if the Pollution Control Board has granted consent, still it is perfectly within the powers of the Panchayat to decline licence to an applicant, if facts and circumstances of the case justify such a course of action. 10. The Panchayat has filed a statement, wherein, they are seeking to justify Exts.P10 & P12. 11. I have considered the submissions made by the parties. 12. At the outset itself, a misconception seen in the pleadings of both petitioner and respondents 7 & 8 has to be removed. The petitioner has described Ext.P11 as an order passed by the Green Channel Clearance Committee, which according to him is constituted under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999. It is on that basis the petitioner is contending that Ext.P16 order is without jurisdiction. However, a reading of Ext.P11 shows that these proceedings are of the Green Channel Clearance Committee. The Green Channel Clearance Committee has been constituted by the Government of Kerala by G.O.(M.S.) No.134/91/ID dated 18/11/1991, and the guidelines for exercise of powers have been framed by G.O.(M.S.) No.47/93/ID dated 23/04/1993. However, a reading of Ext.P11 shows that these proceedings are of the Green Channel Clearance Committee. The Green Channel Clearance Committee has been constituted by the Government of Kerala by G.O.(M.S.) No.134/91/ID dated 18/11/1991, and the guidelines for exercise of powers have been framed by G.O.(M.S.) No.47/93/ID dated 23/04/1993. The competence of the Green Channel Clearance Committee to entertain and consider appeals against decisions taken by a Panchayat was the subject matter of the judgment in Ahammed Kunju v. State of Kerala (2010(1) KLT 217). In that judgment, after referring to the judgment in Santhi Joseph v. Poyya Grama Panchayat (1999(1) KLT 695), which was confirmed in W.A.No.528/1999, this Court has held thus:- "14. The prescription of an appellate authority need not necessarily be of an authority which is to be constituted under that provision, the prescription may be by reference to an existing authority. It is this approach that was adopted by this Court in Santhi (supra), wherein, it was categorically held that the Green Channel Committee is the appellate authority for the purpose of R.12(4) of the D.&O.Rules. It was also specifically held by this Court in that case that S.234 of the K.P.R.Act, which empowers the Government to make rules to regulate the grant of licence, includes the power to make provision for an appellate forum relating to the grant of licence. I am in respectful agreement with that view. The said decision of the learned single Judge has been affirmed by the Division Bench in W.A.No.528/99, holding as follows:- "........ The Green Channel Committee cannot be said to be an authority without jurisdiction. R.12(4) makes it clear that an incumbent aggrieved by the decision of the Panchayat can file an appeal before the Green Channel Committee and further that the Grama Panchayat will be duty bound to implement the decision of the Green Channel Committee. In other words, R.12(4) provides that the decision of the Green Channel Committee shall be final. The wordings in vernacular of R.4 attributes the meaning that the decision of the Green Channel Committee shall be final. Green Channel Committee did have jurisdiction to entertain and decide an appeal filed by the petitioner......" 15. It also needs to be stated with emphasis that S.276 of the Act, which prescribes an appeal or revision, does not statutorily exclude other remedies. Green Channel Committee did have jurisdiction to entertain and decide an appeal filed by the petitioner......" 15. It also needs to be stated with emphasis that S.276 of the Act, which prescribes an appeal or revision, does not statutorily exclude other remedies. There is no statutory inhibition compelling one to get confined to the appeal or revision that is provided under S.276. Viewed in this angle, the provision for an appeal under R.12(4) of the D.& O. Rules is only an additional or alternate remedy. Obviously, a party who seeks a particular relief cannot, thereafter, take recourse to the alternate remedy against the same decision. The mere fact that R.12(4) provides an alternate remedy, does not, in any manner, impair its standing, either on the face of the K.P.R.Act or the Constitution. The challenge that the said rule is ultra vires therefore fails. 16. On the aforesaid, it needs to be noted that though the operator challenged the decision of the Panchayat in the earlier round before the Tribunal, he was well within his rights to move the Green Channel Clearance Committee against a later decision issued by the Panchayat after the order of remit by the Tribunal. There is nothing in the Act or the Rules which obliges one to get confined to a remedy in relation to a subject matter once for all." 13. Therefore, the pleadings that the Green Channel Clearance Committee is constituted under the Act noticed above, is factually incorrect. If once it is found that Ext.P11 proceedings is passed by the Green Channel Clearance Committee, question arises whether the Government have any appellate power for entertaining an appeal against Ext.P11. Neither the guidelines, as contained in G.O.(M.S.) No.47/93 dated 23/04/1992, nor any other executive order, provides for any such appellate power to the Government. If that be so, the appeal against Ext.P11 could not have been entertained by the Government and if so, Ext.P16 order annulling Ext.P11 order has to be accepted as one rendered without jurisdiction and for that reason, the order has to be quashed. 14. Learned counsel for the respondents point out that an appeal having been filed and this Court having directed its consideration by Ext.P15 judgment, the Government was justified in passing Ext.P16 order. 14. Learned counsel for the respondents point out that an appeal having been filed and this Court having directed its consideration by Ext.P15 judgment, the Government was justified in passing Ext.P16 order. By Ext.P15 judgment all that this Court has directed is to consider Ext.P4 produced therein and this Court did not decide the competence of the Government to have entertained Ext.P4 or the merits of the appeal. Therefore, the fact that this Court directed its consideration, does not mean that this Court was conferring an appellate power on the Government Order, which it did not otherwise have. 15. I should also take note of the contention raised by the learned counsel for respondents 7 & 8 relying on a Division Bench judgment of this Court in WP(C) No.33359/2008 rendered on 05/02/2009. In that judgment this Court has held that the District Green Channel Clearance Committee is constituted under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999. This observation has been made in the context of Section 11 of the Act, which provides the jurisdiction of the State Board. The 'State Board' as defined in Section 2(n) of the said Act is the Kerala State Single Window Clearance Board, and the 'District Board' as defined in Section 2(c) of the said Act is the District Single Window Clearance Board, which are constituted under Section 3(1) and 4(1) of the Act respectively. The District Green Channel Clearance Committee does not find any place in the said Act, and the observation made to the contrary in the judgment is factually incorrect. This is all the more so, in view of the judgment in Ahammed Kunju v. State of Kerala (2010(1) KLT 217), that is referred earlier. Therefore, Ext.P16 has to be accepted as one without jurisdiction. 16. As already noticed the learned counsel for respondents 7 & 8 contended that the petitioner having opted to pursue his remedies before the Tribunal for Local Self Government Institutions, he could not have pursued his grievances against Ext.P10 before the Green Channel Clearance Committee. Therefore, Ext.P16 has to be accepted as one without jurisdiction. 16. As already noticed the learned counsel for respondents 7 & 8 contended that the petitioner having opted to pursue his remedies before the Tribunal for Local Self Government Institutions, he could not have pursued his grievances against Ext.P10 before the Green Channel Clearance Committee. In my view, that contention is also answered by the judgment in Ahammed Kunju's case (supra), where in paragraph 16, it has been specifically held that the fact that on an earlier occasion, a person has pursued his remedies before the Tribunal does not mean that he cannot seek his remedies before the Green Channel Clearance Committee against a later decision issued by the Panchayat. 17. Yet another argument raised by the learned counsel for respondents 7 & 8 was that even if it is assumed that the Green Channel Clearance Committee has jurisdiction, it could have entertained only an appeal and not an application. First of all, such a contention is not raised in the pleadings and even otherwise, such contention has been raised based only on the terminology used in Ext.P11. I am not persuaded to accept this contention, and invalidate Ext.P11 on that basis. 18. Therefore, Ext.P16 has to be set aside and I do so. Necessarily, therefore, the Panchayat has to take a fresh decision in the matter consistent with the directions of the Tribunal for Local Self Government Institutions as contained in Ext.P7. This the Panchayat shall do as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment. The learned counsel for respondents 7 & 8 seeks clarification that the judgment should not stand in their way of pursuing their remedies against Ext.P11. It is clarified that it will be open to the respondents to seek their remedies, if it is otherwise permissible in law. This writ petition is disposed of as above.