IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 OP.No. 28235 of 2002(J) --------------------------------- PETITIONER: ----------------- DR.A.G.SANJEEVAN, MANAGING DIRECTOR, ARABIAN REMEDIES (PRIVATE) LIMITED, POOVANTHURTHU P.O., KOTTAYAM BY ADV. SRI.R.SUDHEER RESPONDENTS: ---------------------- 1. THE SECRETARY, PANACHIKKADU GRAMA PANCHAYATH, KUZHIMATTOM P.O., KOTTAYAM 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL ADMINISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI.K.GOPALAKRISHNA KURUP GOVERNMENT PLEADER SMT. SMITHA BABU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/03/2008 ALONG WITH OP NO. 35754 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 48135/2002 IN OP NO. 28235/2002 DISMISSED 28/03/2008. SD/- T.R.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE GOVT. ORDER GO RT NO. 591/94/ID DT.5/7/94. EXT.P2. COPY OF THE MEMO DT. 28/09/2002 BY THE R1. EXT.P3. COPY OF THE NOTICE DT. 27/09/2002 ISSUED BY THE R1. RESPONDENT'S EXHIBITS EXT.R1A. COPY OF THE COMPLAINT. EXT.R1B. COPY OF THE REQUEST SUBMITTED TO THE SI OF POLICE. True copy tga T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NOs.28235 & 35754 of 2002 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of March, 2008. JUDGMENT Aggrieved by the action taken by the Panchayat to initiate prosecution for not availing licence for running the industrial unit, the petitioners have approached this court. In O.P.No.28235/2002 the petitioner is the Managing Director of a small scale industrial unit. In O.P.No.35754/2002, the first petitioner is the partner of a small scale industrial unit and the second petitioner is the registered association of entrepreneurs who have set up industrial units in the development plot at Poovanthuruthu in Kottayam District. 2. Ext.P1 in O.P.No.28235/2002 is the order passed by the Government exempting the industrial units located in the industrial estates/development/area/development plot/mini industrial estates from obtaining clearances from local bodies. Serial No.1 under Kottayam District Development Plot is Poovanthuruthu. Pursuant to the order of exemption the petitioner had been running the unit also without any licence from the Panchayat. While so, by Ext.P2, after an inspection by the Health Inspector, a notice was issued stating that there is no Panchayat licence for OP 28235 & 35754/02 -2- the functioning of the factory. Thereafter, Ext.P3 notice was issued to show cause as to why action including prosecution should not be taken under the relevant provisions of the Panchayat Raj Act. 3. Learned counsel for the petitioner relied upon the decision of a Division Bench of this court reported in Pepsico India Holdings Pvt. Ltd. v. State of Kerala (2007 (2) KLT 835) to contend for the position that the Panchayat has no jurisdiction either in regard to issuance of licence and cancellation of the same in areas notified as industrial areas. The said question was elaborately considered by the Division Bench in the said decision and it was held that in such cases the Panchayat cannot exercise any power to cancel the licence issued to the factory therein. It was held by the Division Bench as follows: “The Integrated Industrial Township, Palakkad has been declared as an industrial area in exercise of the powers conferred by S.5, which falls outside the purview of the Kerala Panchayat Raj Act, 1994. Consequently, Panchayat cannot exercise any power to cancel the licence issued to the petitioner's factory, a power which is exclusively vested on the Board functioning under the Development Act. Panchayat, in our view, has no jurisdiction in the matter of issue or renewal of licence to the petitioner's factory since the legislature in its wisdom has excluded the area in question from the purview of the Panchayat Raj Act in view of sub-s.(2) of S.1 of the Kerala Panchayat Raj Act.” The said dictum will apply on all fours to the facts of this case also. Herein OP 28235 & 35754/02 -3- it is evident from Ext.P1 itself that Government has granted exemption from obtaining clearance from local bodies as regards the industrial estate herein is concerned. Therefore, the action of the Panchayat in directing the petitioner to get licence or to face prosecution is clearly without jurisdiction. Therefore, Exts.P2 and P3 in O.P.No.28235/2002 are hereby quashed. 5. As regards O.P.No.35754/2002, the main relief sought for is for a declaration that the second petitioner association are entitled to function without obtaining any licence issued by the first respondent panchayat. In the case of such units which are covered by the exemption granted under Ext.P1, it is declared that the Panchayat has no power either regarding issuance of licence or cancellation of any licence already availed by the respective units. The original petitions are allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 28235 & 35754/02 -4- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. Nos.28235 & 35754/2002 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 28th March, 2008.