(2016) 452 KLW 583
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.
W.A. Nos. 2476, 2528, 2543, 2626 & 2662 of 2015
Dated this, the 25th day of January, 2016
AGAINST THE JUDGMENT IN W.P.(C).NO.31911 OF 2014(L), DATED 06-10-2015
APPELLANT(S)/PETITIONERS
A.SHANMUGHAN AND ANOTHER
BY SRI.K.JAJU BABU (SENIOR ADVOCATE ) ADV. SMT.M.U.VIJAYALAKSHMI
RESPONDENT(S)/RESPONDENTS
1. VANDAZHY GRAMA PANCHAYAT, MUDAPALLOOR P.O., PALAKKAD-678 705, REPRESENTED BY ITS SECRETARY.
2. THE DISTRICT MEDICAL OFFICER, PALAKKAD-678 001.
3. KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, PALAKKAD-678 001, REPRESENTED BY ITS ENVIRONMENTAL ENGINEER.
4. THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM, PIN-695 033.
5. SINGLE WINDOW CLEARANCE BOARD, CIVIL STATION, PALAKKAD, REPRESENTED BY ITS CONVENOR, THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, PALAKKAD-678 001.
6. THE DISTRICT COLLECTOR, PALAKKAD, CIVIL STATION, PALAKKAD-678 001.
7. STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA) DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE, PALLIMUKKU, PETTA, THIRUVANANTHAPURAM, PIN-695 024, REPRESENTED BY ITS MEMBER SECRETARY.
8. SRI.T.S.ABDUL KHADER, THARUVAKODE HOUSE, MANKURUSSI, MANKARA, PALAKKAD.
9. SRI.SAHJI SALIM, PALATHINGAL HOUSE, PERUMBAVOOR P.O., ERNAKULAM DISTRICT, PIN 683 542.
R1 BY ADV. SRI.P.RAVINDRA NATH R2, R4 TO R7 BY SR.GOVERNMENT PLEADER MR.JOE KALLIATH R3 BY ADV. SRI. M.AJAY, S.C R8 & R9 BY SRI.C.C.THOMAS (SENIOR ADVOCATE) ADV. SRI.PRAVEEN K. JOY
J U D G M E N T
Shaffique, J.
Since these appeals arise out of a common judgment dated 6/10/2015 in separate writ petitions, they are heard and decided together.
2. WA No.2476/15 is filed by the petitioners in WP(C) No.31911/2014. The writ petition was filed seeking for a direction to the Vandazhy Grama Panchayat and the State Level Environment Impact Assessment Authority (for short 'SEIAA') to ensure that respondents 8 and 9 and their men do not conduct any quarrying operations, crusher unit or construction of M sand unit in the property without permission and licence from the Panchayat under
Sections 233 and 232 of the Kerala Panchayat Raj Act, 1994
(hereinafter referred to as 'the Act') and for other consequential directions.
3. The petitioners are residents of Ambazhakode and they claim to be agriculturists. They own different pieces of land. According to them, the 8th respondent, claiming to have ownership of about 1.5 acres of land adjacent to their properties, intends to start a stone crusher unit. The 8th respondent had executed an agreement in favour of another person to start quarrying operations in the property. It is stated that, on 16/8/2013, the 9th respondent applied to the District Industries Centre for setting up a M sand unit. The application of the 8th respondent was considered by the Panchayat and on a finding that the unit is to be set up near the property of the petitioners and certain others, observed that permission for mining soil/sand can be granted only after conducting an environment impact assessment. Ext.P2 is the communication dated 30/11/2013 sent by the Secretary of the Panchayat to the Chief Town Planner.
4. 8th respondent obtained consent from the Pollution Control Board for establishing M sand unit. It is stated that the 8th respondent thereafter moved the Single Window Clearance Board (hereinafter referred to as 'the Board'), seeking appropriate permission from the competent authorities. On 17/12/2013, the Board directed the District Medical Officer (DMO) to take necessary action on their application. According to the petitioners, without obtaining necessary consent from the competent authorities, the 8th respondent started stone quarrying operations. The Village Officer issued a stop memo restraining the 8th respondent from conducting quarrying operation. The DMO gave no objection certificate for setting up of the M sand unit subject to certain conditions.
5. In the meantime, coming to know about the proposal of the 8th respondent to set up the quarrying stone unit and M sand unit, petitioners filed complaints before the Panchayat as well as the District Collector.
6. The Chief Town Planner approved the lay out on 21/2/2014 (Ext.P7) subject to certain conditions. The 8th condition was that no objection certificate has to be obtained from the SEIAA and the 9th condition was that NOC has to be obtained from the neighbours. The Pollution Control Board conducted a site inspection and it was found that quarrying operations were being done without permission from any person. Accordingly, the Assistant Environmental Engineer issued a letter to the 8th respondent on 13/5/2014 informing him that without permission from the Board, quarrying operations are being done and he was asked to show cause why the consent to establish shall not be cancelled. According to the petitioners, subsequently, the Board observed that there was no necessity to obtain NOC from SEIAA and accordingly, the said condition was exempted as per decision dated 2/7/2014. According to the petitioners, the Board had directed grant of permission to the 8th respondent for setting up the M sand unit even before the Panchayat taking a decision in the matter. It is stated that, as per resolution dated 30/7/2014, the Panchayat Committee, after considering the grievances of the public, decided not to grant permission to establish the M sand unit proposed by the 8th respondent. Ext.P10 is the said decision dated 30/7/2014. It is stated that, even thereafter, on 5/8/2014, the Convenor of the Board called upon the Panchayat to review its decision and grant permission under Section 233 of the Act. Petitioners submit that the 8th respondent has now started construction of the M sand unit without any permission/NOC/ consent or licence from any competent authorities. They have submitted a representation to the District Collector and since no action has been taken in the matter, this writ petition is filed.
7. It is inter alia contended that the Board had no power to exempt environmental clearance in respect of the metal crusher unit or M sand unit and therefore the petitioners have sought for the aforesaid reliefs.
8. Counter affidavit has been filed by the 8th respondent inter alia contending that they have already obtained permission and licence from the Board as per certificate dated 13/11/2014 for setting up of M sand unit in Sy.Nos.81/3 & 4 by bringing rubbles from outside. It is also stated that they have deemed permit for installation of the structures, construction of building and D & O licence in terms of
Section 10 of the Kerala Industrial Single Window Clearance Board and Industrial Township Development Area Act, 1999
(hereinafter referred to as the '1999 Act'). It is stated that the local authority cannot refuse licence as the 8th respondent has deemed licence in terms of the statutory provisions under the 1999 Act. It is stated that the allegation that respondent is going to have quarrying operation, crusher unit etc., was false. They have only put up a metal sand unit by bringing small metal from outside which is processed to sand and the contrary allegations were absolutely baseless. According to them, they have obtained necessary permission from the Pollution Control Board for establishing the unit. Ext.R8(c) is the consent to establish issued by the Pollution Control Board. The Board had rightly waived the requirement of obtaining environmental clearance as there is no mandate that such a clearance should be obtained for installing a M sand unit.
9. WA No.2543/15 is filed by the petitioner in WP(C) No. 33850/14. The said writ petition has been filed seeking for a direction to the Board not to implement their decisions dated 13/11/2014 as evident from Exts.P8 and P9 and to quash the same. The petitioner has taken a contention similar to that raised in WP(C) No. 31911/2014 and also contends that the Board cannot usurp the powers of the Panchayat based on the provisions of the 1999 Act. It is contended that the Panchayat is the sole authority to permit installation of an industrial unit by exercising the power under Section 233 of the Act and such exercise of power cannot be taken away by the Board.
10. WA No.2528/15 is filed by the additional 10th respondent in WP(C) No. 24930/14, who is the petitioner/appellant in WP(C) No. 33850/14/WA No.2543/2015. WP(C) No. 24930/14 has been filed by the Proprietor of M/s.Silver Sand in whose favour the Board had given permission to install and operate M sand unit. The writ petition was filed challenging Ext.P14, an order passed by the Panchayat on 18/8/2014 refusing to grant permission to put up the industrial unit on the ground that there is objection from the people in the locality. Writ petitioner contended that when the Board had already taken a decision in the matter, Panchayat cannot refuse to grant permission. In this case, counter affidavit was filed by the Government supporting the stand taken by the Board and it is also stated that in view of Section 10 of the 1999 Act, the Grama Panchayat has been directed to issue necessary licence/permit to the unit and since the Grama Panchayat did not comply with the said direction within the stipulated time, Board had decided to issue the deemed licence in favour of the unit.
11. WA No.2626/15 is filed by the petitioners in WP(C) No. 16010/2015. They are also persons in the neighbouring locality where the unit is being installed and they also challenge the decision taken by the Board and directing grant of deemed licence. They have also raised similar contentions as raised in the other writ petitions challenging the action of the Board.
12. WA No.2662/2015 is filed by the Panchayat challenging judgment in WP(C) No. 12114/2015. The writ petition was filed by the Panchayat challenging the orders passed by the Board permitting the 6th respondent to construct the M sand unit. They also challenged the decision taken by the Pollution Control Board and seeks a direction to the Chairman of the Board to reconsider the issue and to enquire whether there is compliance of Rule 61 (4) of Kerala Panchayat Building Rules, 2011. It is inter alia contended that the 6th respondent is not entitled for consent to establish the unit or any permit in that regard. It is stated that there are several residential buildings within a distance of 100 metres from the proposed crusher unit and therefore, no permission should have been granted in the matter by the Pollution Control Board. That apart, the access road to the unit does not have a width of 7 metres and in that view of the matter also, the Board was not entitled to grant the permit.
13. The learned Single Judge considered all these cases together and found that when the Board had taken a decision in the matter, the Panchayat was bound to issue necessary permit for establishing the unit. That apart, the Panchayat was not entitled to take a contrary view. Accordingly, WP(C) No. 24930/14, which was filed by the Proprietor of the unit, was allowed setting aside Ext.P14 order of the Panchayat and the other writ petitions were dismissed. It was also made clear that the judgment will not stand in the way of the Panchayat from exercising its powers to deal with any post operational variations.
14. Heard the learned counsel appearing for the petitioners, learned counsel appearing for the respondents, the learned Government Pleader and the learned standing counsel for the Pollution Control Board.
15. The main contention urged on behalf of the appellants is regarding the power of the Board to interfere with the orders passed by the Panchayat rejecting the request for setting up of the industrial unit. It is stated that in terms of Ext.P10 (in WP(C) No. 31911/14), a resolution was taken by the Panchayat on 30/7/2014 rejecting the request to put up the industrial unit. But it is relevant to note from Ext.P9 agenda note dated 2/7/2014 that a decision was taken by the Board on 2/7/2014 based on an application dated 20/9/2013, making an observation that the applicant had obtained all permissions other than the permission from the Grama Panchayat. It was also observed that NOC from SEIAA was not required for the said unit. The Convenor of the Board by letter dated 5/8/2014 has addressed a letter to the Secretary of the Panchayat inter alia stating that the Board had received information that the decision of the Panchayat is not to grant permission for the unit. The matter was considered by the Board and it was observed that the said decision of the Panchayat cannot be accepted. Hence, a direction was issued to reconsider the decision and to grant building permit and machinery installation permit as suggested by the Board.
16. According to the contesting respondent, the Secretary of the Panchayat has by report dated 18/8/2014 recommended the grant of permit. Ext.R8(n) is the said report. This apparently is based on the decision of the Board. However, the Panchayat, in their meeting held on 18/8/2014, decided not to grant the permit. The question is whether the decision of the Panchayat on 18/8/2014 has overriding effect to the decision taken by the Board.
17. It will be useful to refer to the provisions of the 1999 Act to have a clear understanding of the powers of the Board. The Act has been promulgated to make special provision for speedy issue of various licences, clearances and certificates required for setting up of industrial undertakings in the State of Kerala and for the constitution of Industrial Township Area Development Authorities and matters connected with it. Preamble also indicates that for the speedy issue of various licences, clearances and certificates required for setting up of industrial undertakings in the State, it is necessary to establish Single Window Clearance Boards at the State, District and Industrial area level. Industrial undertakings are defined under Sec.2(j) as meaning, “a factory, workshop or workplace where steam power, water power, mechanical power or electrical power is used or any premises where any machinery or manufacturing plant driven by any power as aforesaid is installed, or any industrial undertaking where ten or more workers are employed with or without the aid of power”. Chapter II deals with the constitution of State Board, District Boards and Industrial Area Boards. Section 4 deals with District Boards which has the power to grant licences, clearances of certificates required under various State enactments for setting up of small scale industrial undertakings having investment of more than two lakhs rupees in each District of the State. The Government, in such an event, may constitute by notification a District Single Window Clearance Board for each District in the State and the members and the constitution is also mentioned in Section 4(3), which includes various level of officers including the President of the Grama Panchayat concerned in cases where licence is required from local bodies.
18. Section 8 delineates the powers and functions of the District Board. Section 8 reads as under;
“8. Powers and functions of District Board
(1) Notwithstanding anything contained in any law for the time being in force, every person intending to establish any small scale industrial undertaking having capital investment of more than two lakh rupees shall submit the application in the prescribed form to the Convener of the District Board for clearances or licences or certificates required under various State enactments along with the required fee under the respective enactment. The application shall contain such details as may be prescribed.
(2) The District Board shall, after complying the procedure prescribed in this behalf and within sixty days from the date of receipt of the application take a decision as,-
(a) to recommend to the authority concerned the issue of the licence or permission applied without any modifications or with such modifications as it thinks fit to make; or
(b) refuse clearance if it is of the opinion that the proposed construction, establishment or installation is objectionable.
(3) The decision taken by the District Board shall be communicated to the applicant and the authority concerned by the Convener of the District Board.
(4) Notwithstanding anything contained in any law for the time being in force, if the application for clearance, licence or certificate submitted before the Authority concerned for establishing a Small Scale industrial undertaking having capital investment of less than rupees two lakhs is rejected or recommended with modification the person aggrieved may file an appeal before the District Board against such order of refusal or recommendation within thirty days from the date of receipt of order from the authority concerned in the manner prescribed and such an appeal shall be disposed of within thirty days from the date of submission of the appeal.”
19. Section 10 is relevant, which indicates that notwithstanding anything contained in any other law for the time being in force, the authority concerned, on receipt of the recommendation of the District Board, has to issue the clearances, licences or certificates applied for in accordance with the recommendations of the District Board within a period of ten days and if no clearance, licence or certificate is issued within the said time limit, there is a deeming provision which enables deemed licence/permission to be granted in favour of the applicant. Section 10 reads as under;
“10. Issuing of clearances licences, certificates based on the recommendations
Notwithstanding anything contained in any other law for the time being in force the authority concerned shall, on receipt of the recommendation of the State Board, District board or Industrial Area Board, issue the clearances, licences or certificates applied for in accordance with the recommendations of the State Board, District Board or Industrial Area Board as the case may be within ten working days from the date of receipt of the recommendations, if no clearance, licence or certificate, as the case may be, is issued within the said time limit the clearance, licence or certificate, as the case may be, recommended for by the respective Board shall be deemed to have been issued after the expiry of the said period of ten working days.”
20. As against any order passed by the District Board, an appeal is provided under Section 11 of the 1999 Act. Section 13 gives power to the State Board to revoke the licence suo motu on being satisfied that the clearance or certificate of licence has been obtained by misrepresentation of facts etc,. Going by the scheme of the Act, it is rather evident that 1999 Act, being a Special Act, has to prevail over the general provisions as contained under the Kerala Panchayat Raj Act. That apart, 1999 Act is a later Act and the non obstante clause under Section 10 operates in favour of the applicant who had obtained deemed licence. This position had been considered by a Division Bench of this Court in
Boby Uthup v. State of Kerala (2014 (2) KLT 542),
wherein, after considering the scope and effect of the Act and the 1999 Act, Division Bench held as under in para 12;
"12. Sections 8 and 10 contain non obstante clauses. The District Board can issue direction to the Authority concerned for issuing licence, clearance or certificates. The Authority includes Grama Panchayat. The contention of the learned counsel for the appellants that in view of subsection (2) of S.8 of the Act, the District Board shall comply with the procedure prescribed under S.233 of the Kerala Panchayat Raj Act, is unsustainable. What is provided under S.8(2) is that the District Board shall comply with the procedure prescribed “in this behalf". S.2(k) of the Act defines the expression “prescribed” as prescribed by Rules made under the Act. Therefore, it is clear that the procedure to be followed by the District Board under S.8(2) is not the procedure as provided under S.233 of the Kerala Panchayat Raj Act, but the procedure prescribed by Rules under the Single Window Clearance Act. The non obstante clause occurring in Sections 8 and 10 would make it clear that notwithstanding S.233 of the Kerala Panchayat Raj Act, the District Board constituted under the Single Window Clearance Act, has jurisdiction to decide matters which can be decided by the Panchayat under S.233 of the Kerala Panchayat Raj Act. Sub-section (4) of S.8 would make the position clear that when the clearance, licence or certificate for establishing a small scale industrial undertaking is rejected by the Authority concerned, the person aggrieved can file an appeal before the District Board. The constitution of the District Board under S.4 is such that several authorities including the President of the Grama Panchayat, are members. Therefore, the contention put forward by the learned counsel for the appellants that the power of the Panchayat under S.233 is not taken away and that the Single Window Clearance Board has no authority to deal with the matter except in accordance with S.233 of the Panchayat Raj Act, is unsustainable.”
21. Similarly, in unreported judgment in WA No.2152/2009 (Kumaranalloor Grama Panchayat v. M/s.Parayil Granular Industries), Division Bench approved the judgment of the learned Single Judge by which it was found that the very purpose of the District Board is to resolve all matters relatable to the grant of licence for industrial purposes. That was a case in which though there was a direction by the District Board, Panchayat did not issue any licence on account of objection by several persons in the locality. In that context, it was observed that the Panchayat is bound by the recommendations of the District Board. Learned Single Judge held at para 4 as under;
“4. The very purpose of constitution of the District Board, which is a Single Window Clearance Board, is to resolve all matters relatable to the grant of licence for industrial purposes. The concept of single window clearance is brought in, to ensure that there is a comprehensive consideration of all relevant objections and also to see that a person who applies for a licence need not have to scout different executive or quasi-judicial jurisdictions under different legislations for the purpose of ultimately reaching at his goal, namely, the obtaining of due licence. Once the settled procedures governed by the Constitution and the laws provide for such a measure which lays down the administrative modality, that would, ultimately, result in the grant or refusal of recommendations, coupled with the obligations of the authorities to act in terms of those recommendations, it would be a situation of an unruly horse behaviour, if subsequent complaints are to be recognised merely because they are mass complaints. All lawful objections should be treated to have been heard and decided and concluded by the Single Window Clearance Board. It is all the more so because, an appellate jurisdiction lies with the State Board in terms of Section 11. No person who has obtained a clearance under the Act should be left high and dry, to run pillar to post for reliefs on the basis of such clearance.”
22. Therefore, the contention that Panchayat is not bound by the directions issued by the Board cannot be accepted.
23. Another contention urged is that though industrial areas are exempted by virtue of Section 6 of the 1999 Act and there is a specific exemption under the Panchayat Raj Act in respect of industrial areas, the Panchayat, being a creature of statute, has to exercise the powers and functions within the well defined confines of the statute, especially power under Section 233 of the Act, which cannot be taken over by the Board to make the power under Section 233 obsolete. Section 233 of the Act reads as under;
“233:Permission for the construction of factories and the installation of machinery
[(1)] No person shall, without the permission of the Village Panchayat and except in accordance with the conditions specified in such permission, (a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power; or (b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the [provisions of this Act or the rules made thereunder]. [(2) An application for permission under sub-section (1) shall be submitted to the Village Panchayat addressed to the Secretary in such form and with such details as prescribed.
(3) The Secretary shall, as soon as may be after the receipt of the application, enquire and report to the Village Panchayat as to whether the establishment of the factory, workshop or workplace or other installation of machinery or manufacturing plant for which permission is applied for is objectionable by reason of density of population in the neighbourhood and the possibility to cause nuisance or pollution and the Village Panchayat after having considered the application and the reports of the Secretary, and of such other authorities as specified in sub-section (4) may as expeditiously as possible, at any rate within sixty days- (a) grant the permission either absolutely or subject to such conditions as it thinks fit to impose; or (b) refuse the permission for the reasons to be recorded.
(4) Before granting or refusing permission under sub-section (3), the Village Panchayat, shall obtain and consider. (a) a report of the Inspector of Factories appointed under the Factories Act, 1948 (Central Act 63 of 1948) or of an officer of the Industries Department not below the rank of an Industries Extension Officer having jurisdiction over the area regarding the adequacy of ventilation, light etc. and sufficiency of the height and size of the rooms and doors and the suitability of exists to be used in case of fire in the plan of factories, workshop, workplace or premises if they came within the purview of the Factories Act, 1948 (Central Act 63 of 1948) and such other matters as may be prescribed:
(b) a report of the District Medical Officer regarding the possibility of nuisance or pollution if the connected load of the machinery proposed to be installed exceeds 25 HP or if the nature of the. machinery and installation are such that it may cause nuisance or pollution; and
(c) a report of the Divisional Fire Officer or any other officer authorised by him regarding the adequacy of fire prevention and fire fighting measures planned if the proposed industry involves the use of high tension power or inflammable or explosive materials:
Provided that, no report under clause (b) 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 State Pollution Control Board to the effect that such industry would not cause pollution.
(5) The grant of permission under this section, (a) Shall be subject to the conditions to be observed in respect of the replacement of machinery the levy of fees and to such restrictions and conditions as may be prescribed; (b) Shall not be deemed as exempted from observing the provisions contained in section 235 (F) and 235 (H) or 235 (P) and 235 (Q)].”
It is apparent from the aforesaid provisions that what is required to be considered by the Panchayat is the suitability of putting up the industrial unit in the said area and to ensure that all necessary statutory compliances are available. All the authorities as specified under Section 233 are before the Board, as evident from Section 4, which includes the Panchayat authorities as well. If the Panchayat has any grievance with reference to setting up of the unit in the Panchayat area, the same has to be presented before the Board and thereafter it is for the Board to take into consideration all relevant aspects and take a decision. Once a decision is taken, it is binding on all the authorities. The very purpose of the 1999 Act is to enable applicants to get licences/permissions as early as possible.
24. Even otherwise, the Panchayat has taken a decision not to grant licence only on account of objection by certain members of the public. Such objections by such members of the public shall not deter the Panchayat from taking a decision in accordance with Section 233 of the Act. The nature of enquiry that is being conducted by the District Board is to enable all concerned to ensure that in the absence of any illegality, the licences/permissions are granted within a time frame. Panchayat has not ventilated any legal grievance to refuse the said licence. In the writ petition, they have taken a contention that there is non compliance of Rule 61(4) of the Kerala Panchayat Building Rules, 2011. No such materials are produced before the Board at the relevant time. Any person is entitled to put up an industrial unit in the property belonging to him or held by him and it can be objected only on sufficient and reasonable grounds. Right to carry on business cannot be objected merely for the reason that certain group of people had objected to the same. It will amount to violation of the fundamental right of any citizen to carry on the business activities. Reasonable restrictions have already been imposed by various statutes for setting up of such industrial units and once such compliance has been made, there is no reason for the Panchayat to object to the same. Therefore, Section 233 of the Act enables the Panchayat to give recommendation in accordance with the said provision and if the opinion of the Panchayat has been set aside or found to be not relevant, it is always open for the Board to direct the Panchayat to grant the permit in terms with Section 233. If such permit is not granted, Section 10 operates and the applicant will get a deemed right to proceed with the construction. That apart, none of the objectors have preferred appeal against the decision of the Board. In the light of the aforesaid factual finding of ours, we do not think that any grounds have been made to interfere with the judgment of the learned Single Judge and accordingly, these writ appeals are dismissed.
Sd/- ASHOK BHUSHAN, CHIEF JUSTICE
Sd/- A.M. SHAFFIQUE, JUDGE
Rp //True Copy// PS to Judge