KADAPLAMATTOM Vs. JOHNY ROY

JUDGEMENT

(1.) The appellant in W.A. No. 250/2012 is the Kadaplamattom Grama Panchayat. It challenges the judgment of the learned single Judge in W.P. (C) No. 16033 of 2011, directing the Secretary of the Panchayat to reconsider an application filed by the respondent herein for license under the provisions of Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules 1996, (hereinafter referred as the D&O Rules) and to pass orders on the application for license to operate a quarry, without reference to the resolution passed by the Panchayat. The respondent herein had filed the Writ Petition challenging Exhibits P7 and P8. Exhibit P7 is an intimation issued by the Secretary of the Panchayat on 3.6.2011 intimating the respondent that the application of the petitioner for the license to conduct quarrying operation in survey number 294/4 in Ward No. IX was rejected on account of decision taken by the Grama Panchayat in their meeting held on 30.4.2011. Exhibit P8 is the minutes of the meeting referred by the Secretary in Exhibit P7 intimation. As per Exhibit P8 resolution it is seen that the Panchayat Committee has considered the complaints of the people in the locality in respect of the grant of license for new quarries and it was resolved not to grant license to new quarries as it would affect the health of the people in the locality, it will affect the agricultural operations in the locality and it would also affect the water source in the neighbourhood.

(2.) On the basis of the rival contentions the learned single Judge found that on a perusal of Exhibits P1 to P6 would show that the respondent has complied with all the statutory requirements for the issue of license by the Panchayat. It is also found that when the Secretary of the Panchayat is the statutory authority to issue licenses, Exhibits P7 and P8 would show that the Secretary has not applied his mind in the matter relating to the grant of license. According to the learned single Judge the Secretary has only acted upon the decision of the Panchayat Committee which is bad in law. The learned single Judge also found that as per the provisions of the D&O Rules the Secretary alone is competent to consider the application for grant of license. The learned single Judge also relied upon the judgment in Dharmadom Paristhithi Samrakshana Samithi v. Dharmadom Grama Panchayat, 2010 2 KerLT 194 for the proposition that when certain powers are conferred on the Secretary of the Panchayat, no interference can be made in regard to such statutory functions either by the President or Chairman or Member of the Panchayat or the Committee as the case may be, especially in the light of S. 185B of the Kerala Panchayat Raj Act (hereinafter referred as the Act). Reference is also made to the judgment in Santhi Joseph v. Poyya Grama Panchayat,1999 1 KerLT 695 for the proposition that the application for license has to be decided on its merits and not on mere protest from the residents of the locality. The learned single Judge also took note of the affidavit filed by the Secretary of the Panchayat, which states that licenses were issued from 2008 to 2012. A license was issued to one Kurian Immanuel in the year 2011-2012 and on 1.3.2011 quarrying license was issued to another person. The learned counsel for the appellant submits that they filed a Review Petition as R.P. No. 10 of 2011 requesting the court to modify the judgment to the extent of permitting them to take action under S. 233 of the Act and the rules framed thereunder. But the said Review Petition was dismissed on the ground that the same contentions were urged before the court during the hearing of the Writ Petition and since the same was considered there was no necessity to consider the Review Petition.

(3.) The learned counsel for the appellant inter alia contended that the Secretary is only the Executive Officer of the Panchayat and whether the license is to be granted or refused under S. 233 of the Act is purely within the discretion of the Village Panchayat. Reference is made to S. 232 and 233 of the Act. Further reference is made to the D & O Rules: It is inter alia contended by the appellant that the learned single Judge could not have relied upon the judgments cited which was not applicable to the facts of the case.