IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 79 of 2010(H) ----------------------- PETITIONER: --------------- POOMANGALAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, ARIPPALAM P.O., THRISSUR - 680688. BY ADVS. T.C.SURESH MENON. SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): -------------------- 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSITUTIONS, THIRUVANANTHAPURAM. 2. LALITHAMBIKA PRASAD, D/O.GIRIJAMONY AMMA, RESIDING AT 'DWARAKA' PATTAMALY ROAD, IRINJALAKUDA, THRISSUR DISTRICT. R1 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA R2 BY ADVS. SRI.P.RAMACHANDRAN SRI.K.RAMACHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7.12.2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 79 of 2010(H) ------------------------------- APPENDIX ------------- PETITIONER'S EXHIBITS ----------------------------- EXT.P1. COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 14.8.2009. EXT.P2. COPY OF THE LETTER DATED 25.8.2009. EXT.P3. COPY OF THE MASS PETITION RECEIVED BY THE PETITIONER DATED 30.9.2009. EXT.P4. COPY OF THE RESOLUTION NO.68/9-10 PASSED BY THE COMMITTEE DATED 29.9.2009. EXT.P5. COPY OF THE LETTER ADDRESSED BY THE PETITIONER DATED 3.10.2009. EXT.P6. COPY OF THE RESOLUTION OF THE GRAMA SABHA DATED 18.11.2009. EXT.P7. COPY OF THE ORDER IN APPEAL NO.899/2009 DATED 25.11.2009. EXT.P8. COPY OF THE REPORT OF TE VILLAGE OFFICER DATED 25.11.2009. EXT.P9. COPY OF THE INFORMATION OBTAINED UNDER THE RIGHT TO INFORMATION ACT DTED 31.12.2009 EXT.P10. COPY OF THE REPORT SUBMITTED BY THE HYDRO-GEOLOGIST DATED NIL. RESPONDENT'S EXHIBITS ----------------------------- EXT.R2 (A). COPY OF THE LETTER DATED 6.6.2009 BY THE PETITIONER TO THE MEDICAL OFFICER, POOMANGALAM. EXT.R2(B). COPY OF THE LETTER DATED 8.6.2009 TO THE HUSBAND OF THIS RESPONDENT. EXT.R2(C). COPY OF THE CERTIFICATE DATED 21.4.2009 ISSUED BY THE DISTRICT OFFICER WATER DEPARTMENT, THRISSUR. EXT.P2 (D). COPY OF THE RESOLUTION DATED 8.12.2009 BY THE PETITIONER PANCHAYATH. / TRUE COPY / P.A. TO JUDGE VK C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No.79 OF 2010 ------------------------------------------------- DATED THIS THE 7th DAY OF DECEMBER, 2011 J U D G M E N T Challenge in this writ petition is against Ext.P7 order of the 1st respondent Tribunal, the Grama Panchayat, who is the petitioner in this writ petition, inter alia seeks a declaration to the effect that Ext.P5 order issued by its Secretary, giving effect Ex.P4 resolution, is valid. 2. The 2nd respondent applied for a building permit for construction of a factory building in a property owned her, situated within the limits of the petitioner Grama Panchayat. Exhbit P1 is the application. It is evident from Ext.P2 that the Secretary of the Panchayat had forwarded the application for a report of the Assistant Engineer. Meanwhile the Panchayat committee resolved to refuse permission for the proposed 'Mineral Water Plant' of the 2nd respondent. Based on that resolution the Secretary had issued Ext.P5 to the 2nd respondent intimating that the building permit applied for cannot be granted. The 2nd respondent challenged Ext.P5 decision before the W.P.(c) No.79/2010 -2- 1st respondent Tribunal. In Ext.P7 order the Tribunal found that the application submitted under Section 235-F of the Kerala Panchayat Raj Act, 1994 (for short 'the Act') ought to have been dealt with by the Secretary of the Grama Panchayat as provided under Section 235-J. Referring to Ext.P5 the Tribunal found that the Secretary has not considered the application on its merit, but only refused it on the premise that the Panchayat committee had taken a decision not to grant permission for the proposed industry. Referring to Section 185-B of the Act, the Tribunal found that if a power is vested on the Secretary, it has to be exercised independently and solely and the Panchayat shall not interfere or influence in the exercise of such powers. Further, the Tribunal found that under Rule 18 of the Tribunal Rules, if it is satisfied that an action taken by the village panchayat or its Secretary is not accordance with the procedure contemplated, it can direct the Panchayat/Secretary to issue notice or order and to take action afresh complying with the procedure. Tribunal also found that, only in case a reference is made under Section W.P.(c) No.79/2010 -3- 235-K of the Act, the Panchayat will get jurisdiction with respect to any matter which comes within the specific powers of the Secretary. In this case there was no such reference. Hence the Tribunal found that reason assigned for rejecting the application for building permit is not based on a proper exercise of the power vested under Section 235-J, and therefore it is not valid. Hence the Tribunal had allowed the appeal and Ext.P5 is quashed. The Secretary was directed to pass fresh orders as per law untrammeled by any decision taken by the Panchayat. 3. While considering the contentions, I do not find any material illegality, irregularity and impropriety in the impugned decision of the 1st respondent Tribunal. Admittedly, the Secretary had issued Ext.P5 only on the basis of Ext.P4 resolution. Exhibit P4 resolution can only be construed as a decision taken by virtue of powers vested on the Grama Panchayat under Section 233 of the Act, read with the provisions of Kerala Panchayat Raj (Issuance of Licence to Dangerous and Offensive Trades and Factories) Rules. Of course, such refusal of installation permission may W.P.(c) No.79/2010 -4- be an aspect which can be taken note of by the Secretary while dealing with the application for building permit. However, since there is no infirmity in the findings of the 1st respondent Tribunal I am of the view that Ext.P7 decision need be upheld. Consequently Ext.P5 proceedings cannot be sustained. However, I make it clear that Ext.P7 decision will not in any manner nullify the resolution adopted by the Panchayat in Ext.P4. In the result writ petition is dismissed subject to the observations contained herein above. Considering the time limit prescribed in Ext.P7, I direct the secretary to take a fresh decision in the matter at the earliest possible, after affording an opportunity of hearing to the 2nd respondent, subject to the observations contained herein within a period of one month from the date of receipt of a copy of this judgment. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge