Beena Sunny vs Director Of Panchayath
2022 Latest Caselaw 1064 Ker

Citation : 2022 Latest Caselaw 1064 Ker
Judgement Date : 27 January, 2022

Kerala High Court

Beena Sunny vs Director Of Panchayath on 27 January, 2022

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                      THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

               THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943

                                 WP(C) NO. 8850 OF 2016


PETITIONERS:

               BEENA SUNNY, W/O.SUNNY JOSEPH, CHETHIMATTATHIL HOUSE, 200 ACRE KARA,
               MANNAMKANDOM P.O, MANNAMKANDAM VILLAGE, DEVIKULAM, IDUKKI
               DISTRICT.

               BY ADV SRI.SUMAN CHAKRAVARTHY



RESPONDENTS:

      1        DIRECTOR OF PANCHAYATH
               THIRUVANANTHAPURAM - 695 001.

      2        ADIMALY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ADIMALY,
               ADIMALY P.O. IDUKKI DISTRICT - 685 501.

      3        THE SECRETARY, ADIMALY GRAMA PANCHAYAT, ADIMALY, ADIMALY P.O. IDUKKI
               DISTRICT - 685 501.

               BY ADV SRI.LATHEESH SEBASTIAN

               SRI.RIYAL DEVASSY,GOVERNMENT PLEADER




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 8850 OF 2016
                                          :: 2 ::



                                      JUDGMENT

Dated this the 27th day of January 2022

This writ petition is filed by the petitioner seeking the following

reliefs:

"(i) A writ of certiorari or any other writ, order or direction calling for the records leading to Ext.P6 & P7 and to aside the same.

(ii) a writ of mandamus or any other writ, order or direction calling upon the 3rd respondent to forthwith issue license to the petitioner, taking into account the relevant documents produced by the petitioner."

2. The grievance of the petitioner is that the repeated attempt of

the petitioner to get his D&O license for running of a small hollow bricks

manufacturing unit renewed is being interfered by the third respondent

- Secretary of the Adimaly Grama Panchayat. It is also pointed out that

the unit was functioning from 2004 with valid license, renewed annually.

That apart, it is submitted that the order passed by the Tribunal for Local

Self Government Institutions was not complied by the third respondent

in its letter and spirit and in that background, petitioner has approached

this court and secured Ext.P5 judgment dated 20 th January, 2016 in W.P.

(C)No.32757/2015. It is the case of the petitioner that to get over Ext.P5

judgment, the Secretary of the Grama Panchayat called for the report WP(C) NO. 8850 OF 2016 :: 3 ::

from the Health Inspector, who issued Ext.P3 Sanitation Certificate,

which according to the petitioner, is done upon a letter issued by the

President of the Grama Panchayat. Therefore, it is submitted that

consequentially Ext.P6 notice was issued by the Secretary of the Grama

Panchayat dated 26.2.2016 directing the petitioner to produce a No

Objection Certificate from the District Medical Officer. It is also

submitted that the Health Inspector has also issued Ext.P7

communication informing the President of the Adimaly Grama

Panchayat that appropriate action would be taken in respect of the

pollution caused to the well of the nearby residents in the colony on

receiving the report from the appropriate authority. Therefore, the

basic challenge made in the writ petition is in regard to Ext.P6 notice

issued by the Panchayat and Ext.P7 letter issued by the Health Inspector.

3. The Panchayat and the Secretary has filed a detailed counter

affidavit refuting the allegations made by the writ petitioner.

4. Anyhow, it is clear from the documents produced by the

petitioner that the petitioner has secured license from the Grama

Panchayat and consent from the Pollution Control Board in order to

operate the unit.

WP(C) NO. 8850 OF 2016 :: 4 ::

5. A Learned Single Judge of this court, after assimilating the

factual and legal situation, has passed an interim order on 4 th April, 2016,

which reads thus:

"Though the learned Standing Counsel for the Panchayat has taken notice on behalf of respondents 2 and 3 on 9.3.2016, so far no counter affidavit is seen filed.

2. Today when the case was taken up for further consideration, the learned Standing Counsel sought time to file counter affidavit.

3. As per Clause (b) of sub-section (4) of Section 233 of the Kerala Panchayat Raj Act, a report of the District Medical Officer regarding the possibility of nuisance or pollution, if the connected load of machinery proposed to be installed exceeds 25HP or if the nature of the machinery and installation are such that it may cause nuisance or pollution, is necessary before granting permission under Section 233 (3) of the Act. However, going by the proviso to sub-section (4) of Section 233, no such report shall be called for in respect of any industry, if the applicant produces a declaration recommended by an Officer of the Industries Department authorised in this behalf or by the Kerala Pollution Control Board to the effect that such Industry would not cause pollution.

4. In the case on hand, it is on the strength of Ext.P4 consent to operate issued by the Kerala State Pollution Control Board, which is valid upto 28.12.2018, the petitioner made application before the 3rd respondent for a Cement Solid Block Manufacturing Unit. Therefore, the petitioner has made out a prima facie case to have an interim order directing the 3rd respondent to consider his application for licence, without insisting a report of the Medical Officer in terms of Clause (b) of sub-section (4) of Section 233 of the Act, since he has already obtained Ext.P4 consent from the Kerala State Pollution Control Board.

In the above circumstances, the 3rd respondent is directed to consider the application for licence submitted WP(C) NO. 8850 OF 2016 :: 5 ::

by the petitioner and process the same, if it satisfies all other statutory requirements. A decision on the said application shall be taken and communicated to the petitioner within a period of three weeks from the date of receipt of a copy of this order, which shall be subject to further orders to be passed in this writ petition."

6. Today when the matter was taken up, learned counsel appearing

for the Grama Panchayat Sri.Latheesh Sebastian submitted that as per

the instructions imparted to him, the writ petition has become

infructuous.

7. In that view of the matter, after perusing the pleadings and the

documents on record and hearing learned counsel appearing for the

Grama Panchayat, this writ petition is disposed of making the interim

order absolute. However, I make it clear that if the licensing conditions

and the conditions contained in the consent issued by the Pollution

Control Board is in any manner violated and pollution is caused in any

manner, the respective statutory authorities would be at liberty to take

appropriate action in accordance with law.