GEOGY GEORGE Vs. VADAKKENCHERRY GRAMA PANCHAYAT

JUDGEMENT

(1.) As both these writ petitions involve a common issue, they are taken up together for consideration and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C).No.5460/2018.

(2.) The petitioner in W.P.(C).No.5460/2018 is a registered PWD contractor allotted with various road works by the Public Works Department. It is the case of the petitioner that the works allotted to him can be discharged only through the use of a hot mix plant, and under such circumstances, he had filed an application for consent to establish a hot mix plant in property within the limits of the 1st respondent Panchayat. The application for consent to establish was filed before the 3rd respondent Kerala State Pollution Control Board, and the said consent was granted to him as evident from Ext.P The said consent to establish was subsequently renewed from time to time. Thereafter, the petitioner preferred an application for the necessary Dangerous and Offensive Trade licence (D & O licence) for the purposes of carrying on his activity. The licence application was initially rejected by the Secretary of the Panchayat, and this led the petitioner to approach this Court through W.P.(C).No.5507/2017, which was disposed by Ext.P8 judgment, directing the Panchayat to consider the application afresh, since the only reason cited for rejecting the application for D & O licence was that objections had been received from persons in the locality. It would appear that, pursuant to the directions in Ext.P8 judgment, the Panchayat once again went into the aspect of issuance of D & O licence to the petitioner, and this time around, by Ext.P9 order passed by the Secretary of the Panchayat, the application for D & O licence submitted by the petitioner was rejected. Similarly, by a separate order (Ext.P10), the Panchayat rejected the application of the petitioner for a permit under Section 233 of the Kerala Panchayat Raj Act. Challenging Exts.P9 and P10, the petitioner once again approached this Court through W.P.(C).No.9245/2017. This Court, finding that the Panchayat had continued to maintain its stand with regard to the objections raised by persons in the locality, as a reason for rejecting the application submitted by the petitioner, quashed Exts.P9 and P10 orders, and directed the respondent Panchayat to once again consider the application submitted by the petitioner, on merits, after taking note of the statutory provisions that regulate the activities of the petitioner. Ext.P11 is the judgment passed by this Court in W.P.(C).No.9245/2017. The petitioner apparently approached the respondent Panchayat, pursuant to Ext.P11 judgment, and he was informed that he would have to file a fresh application for the necessary permission under Section 233 of the Kerala Panchayat Raj Act. This was complied with by the petitioner, who submitted Ext.P12 application on 16.1.2018. Thereafter, the Panchayat also required the petitioner to obtain a layout approval from the Chief Town Planner, Thiruvananthapuram, for erection of a hot mix plant in the property. The said approval was also obtained by the petitioner, and is produced as Ext.P14 in the writ petition. Notwithstanding the compliance by the petitioner with the said requirements of the Panchayat, the Panchayat subsequently went on to pass Ext.P15 Resolution, whereby, it decided not to grant the permission sought for by the petitioner under Section 233, citing once again the same reason, namely, that there were objections from persons in the locality. As regards the application for D & O licence, the Panchayat relegated the matter to the Secretary, who is the appropriate authority under the Statute for considering applications for D & O licence, and the Secretary was directed to take an appropriate decision in the matter. It is stated that the Secretary thereafter passed Ext.P17 order granting a D & O licence to the petitioner. The said licence has since been renewed till 31.3.2019. In the writ petition, it is the case of the petitioner that, technically, the D & O licence issued to him by the Secretary of the Panchayat is flawed, since, it is trite that a D & O licence cannot be issued to a person who has not been granted a permission in terms of Section 233 of the Kerala Panchayat Raj Act. It is therefore that the petitioner impugns Ext.P15 decision of the Panchayat in his writ petition, on the ground that the Panchayat had, while taking Ext.P15 decision, effectively abdicated its responsibility of taking a decision in accordance with the provisions of Section 233 read with the directions in the judgment of this court, on an application submitted for establishment permit.

(3.) W.P.(C).No.5662/2018 is one that is filed by a member of the Vadakkencherry Grama Panchayat representing Ward No.19. In the said writ petition, the challenge is against the order of the Secretary of the Panchayat issuing a D & O licence in favour of the petitioner in W.P.(C).No.5460/2018. The main ground urged in the said writ petition is that the Secretary could not have issued a D & O licence without first ensuring that a permission under Section 233 of the Kerala Panchayat Raj Act had been obtained by the petitioner in W.P. (C).No.5460/2018. It is stated that, inasmuch as the necessary permission under Section 233 had not been obtained by him, the D & O licence granted in his favour had necessarily to be quashed.