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2010 DIGILAW 325 (KER)

Mahinkutty v. State of Kerala

2010-04-07

ANTONY DOMINIC

body2010
JUDGMENT : The issues raised in these Writ Petitions are connected and therefore the cases were heard together and are being disposed of by this common judgment. 2. For convenience, I shall first deal with W.P.(C).25473/2009. 3. Third respondent in this Writ Petition is the State Board constituted under the Kerala Industrial Single Windows Clearance Boards and Industrial Township Area Development Act, 1999 (Act 5 of 2000). 10th respondent submitted an application to the 3rd respondent under S.8 of the Act for obtaining necessary clearances or licences, for the purpose of establishing a Veneer manufacturing Unit. The application was considered and by Ext.P2 proceedings, the 3rd respondent recommended to the 8th respondent Panchayat to grant installation permit to the 10th respondent. Against Ext.P2 proceedings, petitioners filed Ext.P3 appeal before the 3rd respondent, the State Board constituted under S.3 of the Act. The appeal was considered and by Ext.P5 proceedings, taking into account the fact that the Pollution Control Board has granted consent and the District Medical Officer and other authorities have granted their non objections, the State Board confirmed Ext.P2. Pollution Control Board and the Panchayat were also directed to ensure continuous manufacturing and strict adherence to the regulations by the proposed Unit of the 10th respondent. It is challenging Ext.P5 order passed by the State Board, this Writ Petition has been filed. 4. The first contention raised by the learned counsel for the petitioner is that on receipt of the application under S.8 of the Act, the 3rd respondent ought to have forwarded the application to the respective authorities and obtained clearances before passing Ext.P2 order. It is stated that without adopting that method, 3rd respondent considered the matter on its own and passed Ext.P2 order which, according to the learned counsel for the petitioners, was illegal. However having considered the submission of the learned counsel for the petitioners, I am not persuaded to accept this contention. Act 5 of 2000 was legislated for providing special provision for speedy issuance of various licences, clearances and certificates required for setting up of Industrial Undertakings in the State. With that object in view, S.8 was legislated, conferring powers on the District Board. Act 5 of 2000 was legislated for providing special provision for speedy issuance of various licences, clearances and certificates required for setting up of Industrial Undertakings in the State. With that object in view, S.8 was legislated, conferring powers on the District Board. A reading of S.8 shows that this Section which starts with a non obstante clause, enables the District Board to receive applications in the prescribed form for clearances or licences or certificates required under various enactments along with the required fee under the respective Act. On receipt of the application as above, the District Board shall consider the applications complying with the procedure prescribed for that purpose and take a decision either to recommend or refuse licence, clearances etc. This Section does not contemplate that the District Board should forward the applications to the respective authorities in relation to which the applications are made. On the other hand, the District Board is to take a decision of its own. This conclusion is supported by the further fact that the constitution of the District Board as provided in S.4, shows that the District Board consists of members of authorities enumerated in S.4(3)(a) to (o) and it is on consideration by the District Board so constituted that the recommendation is made either to issue licence or to refuse licence. Therefore, in the absence of any provision in the Act requiring the District Board to forward the application to the respective authorities, I cannot find fault with the District Board in having considered the application by itself and take a decision of its own. 5. The other contention raised by the learned counsel for the petitioners is that the District Board and the State Board which passed Exts.P2 and P5 were not constituted in terms of the provisions contained in S.4(3) of the Act. It is stated that for this reason, Exts.P2 and P5 are illegal. 6. First of all there is no pleadings in support of this contention. Secondly, S.23 of the Act provides that no act done under the Act either by the State Board or by the District Board shall be invalidated merely on the ground of any defect or irregularity in the constitution of the State Board or the District Board. Therefore, this Section confirms the proceedings of the District Board and the State Board. Secondly, S.23 of the Act provides that no act done under the Act either by the State Board or by the District Board shall be invalidated merely on the ground of any defect or irregularity in the constitution of the State Board or the District Board. Therefore, this Section confirms the proceedings of the District Board and the State Board. That apart, on facts it is noticed that Ext.R10(a) is the consent granted by the Pollution Control Board to establish the Unit of the 10th respondent. Similarly Exts.10(b) is the consent issued by the Pollution Control Board to operate the Unit. Ext.R10(c) is the NOC issued by the District Medical Officer, Ext.R10(d), the licence issued by the Department of Factories and Boilers, Ext.R10(e), the recommendation of the Senior Town Planner and Ext.R10(f), the NOC issued by the Assistant Divisional Officer, Fire and Rescue Services. Therefore, the Unit which is proposed to be started by the 10th respondent had obtained all necessary clearances from the aforesaid authorities. Even if it is found that the aforesaid authorities were not properly represented in the State Board or District Board, since the Unit has been recommended by the respective authorities and the said authorities themselves have concurred to the establishment of the Unit, I do not think that even if there is such a technical irregularity, that should invalidate Exts.P2 and P5. 7. Therefore both the contentions raised by the learned counsel for the petitioners are unacceptable and are only to be rejected. I do so. 8. However, fact remains that by Exts.P2 and P5, Unit have been given permit for installation and the licences, as required under the Rules framed by the Panchayat Raj Act, are yet to be obtained by the 10th respondent. Having regard to the apprehension expressed by the petitioners regarding the location of the Industrial Unit and the possibility of the environmental pollution that is likely to be created, I feel it is only appropriate that the 8th respondent Panchayat or the concerned Board shall address the grievance raised by the petitioners also as and when the licence application is made by the 10th respondent is considered. Therefore, I direct that as and when the 10th respondent makes an application for licence under the Panchayat Raj Act, 8th respondent Panchayat or the concerned Board shall issue notice to the petitioners and hear them before any final order is passed on the said application. 9. Insofar as W.P.(C) No.26465/2009 is concerned, Exts.P3 and P7 are the proceedings of the District Board and the State Board directing issuance of installation permit to the 7th respondent. For the reasons stated in the judgment in W.P.(C) No.25473/2009, these proceedings are also only to be upheld and I do so. As in W.P.(C) No.25473/2009 it is directed that as and when the 7th respondent makes an application for licence, 6th respondent Panchayat or the concerned Board shall issue notice to the petitioner, hear them before any decision is taken on the licence application of the 7th respondent. Writ Petitions are disposed of as above.