TOMY THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) When one among the above Writ-Petitions, W.P.(C) No. 15505/2016, came up for consideration before a learned Judge of this court, an important legal question arose as to whether the Grama Panchayats (Village Panchayats) are obliged to grant permission for construction or for establishment of any factory, workshop, work place or machinery, under S. 233 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred as 'the Act' for short) read with Rule 12 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (hereinafter referred as the Licensing Rules' for short), in cases where all the authorities had issued permissions/consents/no-objections certifying that such factory, workshop or work place will not cause any environmental problems, if it is permitted to function as per the conditions and restrictions imposed by the said authorities and when such units had also obtained environmental clearance from the State Environmental Impact Assessment Authority (SEIAA). In other words, the issue confronted was, whether the panchayats have got primacy in their powers to take an independent decision to reject such applications seeking permission/licence in cases where permissions/consents/no-objections were issued by all the authorities concerned.

(2.) The learned Single Judge noticed that a Division Bench of this court in Ramapuram Grama Panchayat v. St. Basil Industries India (P.) Ltd. and Ors. (2016 (2) KLT 219 : 2016 (3) KHC 118) had distinguished the decision of the Hon'ble Supreme Court in Action Council v. Benny Abraham (2002 (2) KLT 228 (SC) : 2002 KHC 416) as well as the decision of a Division Bench of this court in M/s. Gem Granites v. Deputy Superintendent of Police and Ors. (2008 (1) KLT 937 : 2008 (1) KHC 909) in order to hold that the panchayat has no authority to decline the licence. But it was noticed that in Gem Granites (supra) as well as in another Division Bench ruling in Bosco Antony v. State of Kerala and Ors. (2007 (4) KLT 526 : 2007 (4) KHC 116) this court had in fact upheld the primacy of the power enjoyed by the panchayats. It was noticed that a similar view was taken in the decision in Nagaroor Grama Panchayat v. Vijaya kumar and Ors. (2016 (3) KLT 82 : 2016 (3) KHC 602) also. Therefore the learned Single Judge observed that, there exists a difference in the opinion with respect to the legal position settled in the rulings in Ramapuram Grama Panchayat (supra) on one side and the rulings in Action Council (supra), Gem Granites (supra), Bosco Antony (supra) and Nagaroor Grama Panchayat (supra) on the other side. Based on the conflict noticed, the matter was referred for decision of a Division Bench. Accordingly, W.P.(C) No. 15505/2016 was referred for consideration to a Division Bench through an order passed on 20th September 2016.

(3.) When W.P.(C) No. 15505/2016 came up for consideration before a Division Bench, W.P.(C) No. 31684/2016 was also tagged on to that case. A common order of reference was passed by the Division Bench observing that, there exists conflict of opinion in the Division Bench rulings between Ramapuram Grama Panchayat (supra) and the rulings in Nagaroor Grama Panchayat (supra), Gem Granites (supra) and Bosco Antony (supra). Therefore it was found that the question of law requires settlement by a Full Bench. Hence the above cases were referred to the Full Bench through an order of reference passed on 3rd July 2018. Accordingly the above cases are posted for consideration before this court.