GANGADHARAN NAIR v. THURAVOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY
2017-01-10
A.K.JAYASANKARAN NAMBIAR
body2017
DigiLaw.ai
JUDGMENT : As both these writ petitions involve a common issue, they are taken up together for consideration, and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C) No.26102 of 2016. The petitioner in WP(C) No.26102 of 2016 is stated to be conducting a Tyre Retreading Unit since 1990, in premises which come under the territorial jurisdiction of the 1st respondent Panchayat. Although initially, the petitioner is said to have had a D & O license issued from the 1st respondent Panchayat, in the year 2011 the said license expired and an application for renewal of the said license was not formally preferred by the petitioner. The Panchayat by Ext.P2 notice dated 06.05.2015, pursuant to complaints received from persons in the locality, intimated the petitioner of certain activities that were allegedly carried on in his premises, which were causing nuisance to the persons in the locality, and directed the petitioner to take remedial steps to abate the said nuisance. Even prior to the issuance of Ext.P2 notice, by Ext.P3 notice, the Health Inspector of the respondent Panchayat had, pursuant to an inspection done in the premises of the petitioner, pointed out certain irregularities and directed the petitioner to take remedial steps including renewal of the license in respect of the premises, and also to remedy the smoke pollution that was noticed in the premises of the petitioner. In the meanwhile, pursuant to an accident that occurred in the premises of the petitioner, wherein an employee of a contractor, who was working in the Unit of the petitioner, died, a stop memo was issued by the Factories and Boilers Inspectorate to the petitioner, directing him to stop the activity in his Unit, till such time as remedial steps were taken for the purposes of ensuring safety in the premises. Ext.P4 dated 11.06.2015 is the stop memo issued to the petitioner by the Factories and Boilers Inspectorate. It would appear that the petitioner remedied the defects that were directed to be remedied and, thereafter, on being satisfied that the petitioner had taken the necessary steps, the stop memo issued by the Factories and Boilers Inspectorate was lifted by Ext.P6 communication dated 07.07.2015.
It would appear that the petitioner remedied the defects that were directed to be remedied and, thereafter, on being satisfied that the petitioner had taken the necessary steps, the stop memo issued by the Factories and Boilers Inspectorate was lifted by Ext.P6 communication dated 07.07.2015. In the meanwhile, however, the respondent Panchayat came to pass Ext.P5 order dated 26.06.2016 directing the petitioner to stop the activities in his premises, inter alia, for the reasons that (i) he had not taken a D & O license for the said Unit in the initial year of operation, (ii) that he had not obtained necessary NOC from the Factories and Boilers Inspectorate and further (iii) that based on the complaints received from the persons from the locality, it was noticed that he had not maintained the necessary distance from the nearest residential premises and (iv) that an NOC from the Health Department had also not been obtained. The petitioner states that he obtained the consent from the Pollution Control Board, which is valid upto 31.07.2018 and a copy of the said consent is produced as Ext.P7 dated 07.08.2015. Thereafter, when the petitioner applied for a D & O license before the respondent Panchayat, by Ext.P9 order dated 21.10.2015, the application was rejected mainly for the reason that the petitioner had not attached the necessary documents to support the application. The petitioner, therefore, approached this Court challenging Ext.P9 order through WP(C) No.30605 of 2015, in which an interim order came to be passed, directing the respondent Panchayat to consider the application preferred by the petitioner afresh, in the light of the documents produced in the writ petition. The Panchayat thereafter, considered the matter again and passed Ext.P10 order dated 16.11.2015, rejecting the application of the petitioner for the reason that there was objection from various quarters with regard to the conduct of the Unit by the petitioner and, therefore, it was not possible for the respondent Panchayat to grant the petitioner the license applied for. Thereafter, the petitioner by another application dated 20.11.2015, sought for the grant of a D & O license to cover the period from 01.04.2011 to 31.03.2015. Along with the said application, the petitioner also paid the necessary fee for D & O license for four years and also the late fee in respect of the years prior to 2015.
Thereafter, the petitioner by another application dated 20.11.2015, sought for the grant of a D & O license to cover the period from 01.04.2011 to 31.03.2015. Along with the said application, the petitioner also paid the necessary fee for D & O license for four years and also the late fee in respect of the years prior to 2015. The said application came up for consideration before the Panchayat and by Ext.P12 resolution dated 23.12.2015, the Panchayat, taking note of the public interest involved and the objections received by them from persons in the locality, took a stand that the license sought for by the petitioner could not be granted. The petitioner, therefore, amended WP(C) No.30605 of 2016, to incorporate a challenge against Ext.P12 resolution of the Panchayat. By Ext.P13 judgment, that came to be passed, disposing WP(C) No.30605 of 2015, this Court, following the decision in Anilkumar M.K. and Others v. Aiswarya Rice Mill and Others [2015 (5) KHC 891] found that it was not open to the Panchayat to reject an application for D & O license solely on the ground that certain persons in the locality had objected the functioning of the industrial Unit. It was made clear that inasmuch as the order of the Panchayat, did not contain any other reason, other than a reference to the objections raised by the people in the locality, the said order rejecting the application of the petitioner could not be legally sustained. This Court, therefore, set aside Ext.P12 resolution of the Panchayat and directed the Panchayat to reconsider the matter. Ext.P14 is the resolution of the Panchayat dated 11.03.2016, that was taken pursuant to the directions in Ext.P13 judgment. On a perusal of Ext.P14 resolution, it is seen that the respondent Panchayat once again decided not to grant license to the petitioner based solely on the alleged inconvenience caused to the neighbours as discernible from the complaints preferred by the persons in the locality. In WP(C) No.26102 of 2016, the petitioner impugns Ext.P14 resolution of the Panchayat, inter alia, on the ground that it does not comply with the specific directions in Ext.P13 judgment of this Court. 2. The additional 4th and 5th respondents in the writ petition, together with Smt.Lakshmi Sanal, are the petitioners in WP(C) No.33334 of 2016.
In WP(C) No.26102 of 2016, the petitioner impugns Ext.P14 resolution of the Panchayat, inter alia, on the ground that it does not comply with the specific directions in Ext.P13 judgment of this Court. 2. The additional 4th and 5th respondents in the writ petition, together with Smt.Lakshmi Sanal, are the petitioners in WP(C) No.33334 of 2016. They are persons who are residents of the 1st respondent Panchayat and are aggrieved by the alleged pollution caused by the petitioner in WP(C) No.26102 of 2016, consequent to the running of his Unit. In their writ petition, the prayer of the petitioners is essentially for a direction to the respondent Panchayat not to renew the license in favour of the petitioner in WP(C) No.26102 of 2016, without ensuring a compliance with all the statutory requirements. 3. Counter affidavits have been filed in both the writ petitions and reply affidavits have also been filed. 4. I have heard Sri.Abdul Latif, the learned counsel appearing for the petitioner in WP(C) No.26102 of 2016, as also Sri.P.K. Ibrahim, the learned counsel appearing for the petitioner in WP(C) No.33334 of 2016. I have also heard the learned Standing Counsel appearing for the respondent Panchayat and additional respondents in WP(C) No.26102 of 2016, who are also the petitioners in the other writ petition and also the learned Standing Counsel appearing for the Pollution Control Board in both these writ petitions. 5. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the challenge to Ext.P14 resolution of the Panchayath, that is impugned in WP(C) No.26102 of 2016, must necessarily succeed. This Court had, by Ext.P13 judgment, and taking note of the fact that the respondent Panchayat had, through an earlier resolution, rejected the application preferred by the petitioner therein for a D & O license solely on the ground that there had been objections from persons in the locality to the grant of a license to the petitioner, clearly indicated that the respondent Panchayat could not reject an application for license solely for the said reason.
The respondent Panchayat was therefore, expected to consider the issue of grant of D & O license to the petitioner by examining the permits and licenses that he had obtained, against the backdrop of the statutory scheme of the Kerala Panchayat Raj Act and the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996. If the Panchayat had also received any complaint from persons in the locality, then it was for the Panchayat to ascertain, from the statutory authority concerned, as to whether there was any merit in the complaint filed by the persons in the locality and the Panchayat ought to have acted strictly on the basis of the opinion of the said statutory authorities, who were more competent to speak on technical matters, including the effects of any pollution at the instance of the unit in question. Inasmuch as in Ext.P14 resolution, I do not find such an exercise having been done by the Panchayath, while taking a decision to reject the application preferred by the petitioner, I am of the view that Ext.P14 resolution cannot be legally sustained. I accordingly, quash Ext.P14 resolution and direct the respondent Panchayat to reconsider the matter afresh, after considering the application preferred by the petitioner, together with documents produced by him in support of the application, and after verifying whether the documents so produced conform to the statutory requirements for the purposes of grant of D & O license. The respondent Panchayat shall pass a fresh order on the application submitted by the petitioner, within a period of six weeks from the date of receipt of a copy of this judgment. While passing orders as directed, the respondent Panchayat shall also take note of any objections filed by the petitioners in WP(C) No.33334 of 2016, before passing final orders on the application preferred by the petitioner in WP(C) No.26102 of 2016. To enable the Panchayat to do so, I direct the petitioners in WP(C) No.33334 of 2016 to file their objections, if any, within one week from the date of receipt of a copy of this judgment, with a copy to the petitioner in WP(C) No.26102 of 2016.
To enable the Panchayat to do so, I direct the petitioners in WP(C) No.33334 of 2016 to file their objections, if any, within one week from the date of receipt of a copy of this judgment, with a copy to the petitioner in WP(C) No.26102 of 2016. The respondent Panchayat shall, while dealing with the objections preferred by the petitioners in WP(C) No.33334 of 2016, obtain the comments of the statutory authority concerned, with regard to the contents of the complaint filed by the said petitioners and the decision taken by the respondent Panchayat shall be based solely on the opinion received from the statutory authority concerned. The petitioner in WP(C) No.26102 of 2016 shall, on his part, ensure that the activities in respect of which D & O license is sought, are not carried on in the premises, till such time as an order is passed by the respondent Panchayat on the application submitted by him. 6. I make it clear that, if the petitioners in WP(C) No.33334 of 2016 have any objection with regard to the running of the Unit by the petitioner in WP(C) No.26102 of 2016, consequent to the grant of any license to him, it shall be open to them to approach the Panchayat with a necessary complaint and the respondent Panchayat shall, on receipt of any such complaints, deal with the same in the manner indicated in this judgment. The writ petitions are disposed as above.