IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 33072 of 2006(K) -------------------------- PETITIONER: ------------ LOVELY MANI, AGED 45 YEARS, W/O.JOHNY ALIAS C.C.MANI, CHATHANCHIRAYIL, VEMPALLY P.O., KOTTAYAM DISTRICT. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN SRI.TITUS THOMAS RESPONDENTS: ------------- 1. KANAKKARI GRAMA PANCHAYATH, REP. BY ITS SECRETARY, KANAKARI, VEMPALLY P.O., KOTTAYAM DISTRICT. 2. THE SECRETARY, KANAKKARI GRAMA PANCHAYATH, KANAKARI, VEMPALLY P.O., KOTTAYAM DISTRICT. 3. STATE OF KERALA, REP. BY ITS SECRETARY TO LOCAL ADMINISTRATION & SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. PROF.P.K.RAVEENDRAN, PRIVATE SECRETARY TO MINISTER FOR THE LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. T.M.MATHEW, THOTTAPRANCAL HOUSE, VEMPALLY, KURAVILANGAD. BY ADV. SRI.MILLU DANDAPANI FOR R5 SRI.ELVIN PETER P.J. FOR R4 SRI.SEBASTIAN THOMAS FOR R.1,2 BY GOVT. PLEADER SRI. K.V. MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON 27/08/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.33072/2006 ----------------------------------------------------------- Dated this the 27th day of August, 2008 JUDGMENT The controversy in this writ petition is regarding the denial of licence in respect of two rubber smoke houses maintained by the 5th respondent. 2. The 5th respondent is a dealer of rubber and it would appear from Ext.R5(a) that Rubber Board has granted licence to him. It is stated by the petitioner, referring to Ext.P1 sketch, that the 5th respondent was maintaining a rubber dealer's shop and two smoke houses. According to the petitioner, distance to these smoke houses from his house is only 9.70 meters and 22.9 meters respectively. It is stated that there are several complaints and the District Medical Officer, Panchayat and the Pollution Control Board had inspected the smoke houses and WP(c).No.33072/2006 2 Exts.P2(a) is one of the reports submitted after the enquiry. 3. Petitioner submits that thereafter Panchayat had issued a stop memo and that the said stop memo was challenged before this court in WP(c).No.32010/2004 filed by the 5th respondent. According to the petitioner, pursuant to the order of this court, a joint enquiry was conducted and it is in that enquiry Ext.P3 report was submitted. Finally the writ petition has been disposed of by this court by Ext.R5(3) judgment directing the Panchayat to pass final orders on the application for licence that was submitted by the 5th respondent. The Panchayat accordingly considered the licence application and rejected the same. That order of rejection was again challenged before this court in WP(c). No.6863/2005 and during the pendency of the Writ Petition consent was obtained by the 5th respondent from the Pollution Control Board and it would appear that the same was renewed from time to time. WP(c).No.33072/2006 3 4. Writ petition No.6863/2005 was finally disposed of by Ext.P4 judgment directing the Pachayat to reconsider the matter, taking into account the subsequent developments. The Panchayat thereupon considered the matter and by Ext.P5 dated 20.10.2006, licence in respect of the shop of the petitioner was granted and licence in respect of the two smoke houses referred above was declined. Subsequently, on 16.11.2006, the Panchayat passed Ext.P7 resolution authorising the secretary to issue a stop memo to the 5th respondent to stop functioning of the smoke houses. It would appear that, at this stage the Panchayat received Ext.P8 order dated 2.12.2006 issued by the 4th respondent, directing the Panchayat to stop all further proceedings against smoke houses of the 5th respondent and thereupon this writ petition was filed seeking to quash Ext.P8 and to implement Ext.P7 resolution referred to above. 5. Subsequently, when the petitioner produced WP(c).No.33072/2006 4 Ext.P9 order issued by the Government of Kerala on 19.12.2006, directing the Panchayat to issue licence to all smoke houses which have obtained consent from the Pollution control Board and close down all other smoke houses. According to the petitioner the said direction is also illegal as according to him, it was entirely for the Panchayat to consider application for licence irrespective of whether the smoke houses have obtained consent from the Pollution Control Board or not. Therefore, seeking to quash Ext.P9, petitioner got the writ petition amended and a prayer to that effect also has been incorporated as prayers `AB'. 6. In so far as the dispute between the parties are concerned, all that this court need to consider is the legality of Exts.P8 and P9. 7. Learned Sr.counsel for the 5th respondent would submit that aggrieved by the concerted action taken by the Panchayat at the instance of the petitioner and others against the smoke houses maintained by him alone, he WP(c).No.33072/2006 5 moved the Government and filed Ext.R4(a) representation dated 10.10.2006 and that it was on the representation so filed by him, that the Government passed Ext.P8 order. He examined for the position that the Government is perfectly justified in passing such order exercising its power under Section 191 of the Panchayat Raj Act. He would argue to sustain Ext.P9 also as according to him, it is well within the powers of the Government to direct the Panchayat to pass orders granting licence in respect of the smoke houses which have obtained consent from the Pollution Control Board. 8. As far as Ext.P8 order issued by the 4th respondent is concerned, admittedly the representation on which the said order was passed was filed by the 4th respondent on 10.10.2006. This is evident from Ext.R4(a)itself. Ext.P5, the resolution of the Panchayat declining licence to the smoke houses was passed by the Panchayat only on 20.10.2006 and Ext.P3, the resolution to issue stop memo to the 5th WP(c).No.33072/2006 6 respondent was also passed only on 16.11.2006. Further there is nothing to indicate that on 10.10.2006 when he made the representation, he could even anticipate that a resolution will be passed subsequently. If that be so, the contention of the 5th respondent that he filed a representation aggrieved by Ext.P5 or Ext.P7 cannot be accepted as the representation filed by him was much ahead of these two resolutions. 9. The question is whether, the Government could have passed Ext.P8 order exercising its power under Section 191 of the Panchayat Raj Act. True Section 191 of the Act authorised the Government to either suo motu or on a reference by the president, Secretary, Member or on a petition received from a citizen cancel or vary a resolution passed or a decision taken by the Panchayat, if in their opinion, any one of the grounds enumerated in Section 191(a) to (d) are made out. Since Ext.P8 was based on the order passed by the Minister for Local Self WP(c).No.33072/2006 7 Government Institutions, on Ext.R4(a) representation filed by the 5th respondent, Ext.P8 order cannot be accepted as one passed by the Government exercising its suo motu power. If that be so, in the absence of a representation, filed by the 5th respondent, aggrieved by either Ext.P5 or P7, the Government could not have exercised its power under section 191, in so far as the decision of the Panchayat covered by Exts.P5 and P7 resolution. 10. That apart Section 191(3) provides that, if any remedy is available to the petitioner under Section 276 of the Act, the Government shall not consider any petition for cancellation or amending any resolution or decision of the Panchayat. If I am to take Ext.R4(a) representation as one complaining against Ext.P5, Ext.P5 is a resolution of the Panchayat declining licence to the 5th respondent's smoke house. Such a decision of the Panchayat is squarely amenable under Section 276 of the Panchayat Raj Act. If that be so, in view of the provisions contained in section WP(c).No.33072/2006 8 276 of the Act providing for an appellate remedy, Section 191(1) and (2) stands excluded in view of Section 191(3) of the Act. Therefore on both counts Ext.P8 order passed by the 4th respondent cannot be sustained. 11. Now what remains is the validity of Ext.P9. Ext.P9 is an order passed by the 3rd respondent directing the first respondent Panchayat to grant licence to all smoke houses, which have obtained consent from the Pollution Control Board and to take steps for the closure of the remaining smoke houses. The petitioner is challenging Ext.P9 to the extent it directs that licence be granted to all smoke houses which have obtained consent from the Pollution Control Board. According to the petitioner, even if a smoke house has obtained consent from the Pollution Control Board, still it is for the Panchayat to consider the application for licence on merits, taking into account all aspects of the matter including the consent that has been obtained by the applicant and take an independent decision. It is stated that WP(c).No.33072/2006 9 no authority including the Government can issue direction in the nature of Ext.P9 requiring the Panchayat to grant licence. 12. This contention of the learned counsel for the petitioner is seen supported by the judgment rendered by this court in Manjapra Grama Panchayat V. State of Kerala (1996(2) KLT 719). In that judgment dealing with the grant of licence under the Dangerous and Offensive Trade and Factories Rules, this court has held that the Panchayat need not give licence automatically but as soon as the applicant has obtained NOC from the District Medical Officer. It has been specifically held that it is for the Panchayat to independently consider as to whether licence should be granted or not. In the judgment of the Apex Court in Action Council V. Benny Abraham(2002(2)KLT 228) the Apex court has also taken a view similar to the one adopted by this court in the judgment referred to earlier. 13. Going by the law as laid down by the aforesaid WP(c).No.33072/2006 10 judgment I am satisfied that the Government have acted in excess of its jurisdiction in directing that the respondent Panchayat should grant licence to all smoke houses which have obtained consent from the Pollution Control Board and I hold that it is for the Panchayat to independently consider each of the applications received and pass appropriate orders either granting licence or declining it. 14. Although I have accepted the case of the petitioner, the fact remains that it is the complaint of the 5th respondent that several other smoke houses within the jurisdiction of the respondent Panchayat have not obtained either consent from the Pollution Control Board or licence from the Panchayat. The learned counsel appearing for the first respondent Panchayat also confirms this position. This is certainly a very unsatisfactory situation. This means that the Panchayat has accepting the functions of the smoke houses, which are not having licence granted by the Panchayat or consent obtained from the Pollution Control WP(c).No.33072/2006 11 Board. It is needless to say that the continued existence and operation of the smoke houses being illegal it is for the Panchayat to take necessary action as against such smoke houses in accordance with law. 15. In the circumstances Ext.P8 and P9, to the extent it directs licence should be granted to all smoke houses which have obtained consent from the Pollution Control Board are quashed. It is clarified that this judgment will not taken as one foreclosing remedies of the 5th respondent against Ext.P5 or P7. 16. At this stage counsel for the 5th respondent submits that he be given breathing time to file appeal against Ext.P7. Though it is true that Ext.P7 is a resolution passed on 16.11.2006, having regard to the fact that the writ petition was pending in this court and as the 5th respondent has an order in his favour, I am of the view that the petitioner should be given a reasonable time to pursue his statutory remedy. WP(c).No.33072/2006 12 Accordingly I direct that it will be open to him to pursue the statutory remedy by approaching the appropriate authority within two weeks from today, in which case the same will be entertained on merits and disposed of in accordance with law. Writ Petition is disposed of as above. ANTONY DOMINIC JUDGE vi. WP(c).No.33072/2006 13