High Court of Kerala
THE HONOURABLE MR. JUSTICE ANTONY DOMINIC
Baby Mathew
Versus
Nellikkuzhi Grama Panchayath & Others
WP(C).No. 9577 of 2009 (N)
Decided on : 11-03-2010
Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 - Rule 12(4) - Kerala Panchayat Raj Act, 1994 - Section 276 - Whether S.276 of Panchayat Raj Act excludes other remedies - Whether provision for appeal under R.12(4) of D & O Rules is only an additional alternative remedy besides remedy under S.276 - When operator challenged decision of Panchyat in earlier round before Tribunal, whether he can move Green Channel Clearance Committee against later decision by Panchayat after order of remit by Tribunal - Whether guidelines or executive orders issued under Panchayat Raj Act or D. & O. Rules provides for appellate powers to Government against orders of Green Channel Clearance Committee - Whether District Green Channel Clearance Committee is constituted under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 - Held, Panchayat has to take a fresh decision in the matter consistent with the directions of the Tribunal for Local Self Government Institutions as contained in Ext.P7 - This the Panchayat shall do as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment - Writ Petition Disposed of
The petitioner submits that he owns 6.5 cents of land in survey No.285/18-1 of Irumalappady village, within the area of the 1st respondent Panchayat.
2. On an application made by the petitioner, he was granted Ext.P1 licence for starting a light/fabrication engineering unit using 20 HP electric motor. According to the petitioner, on the strength of the licence he established a small scale industrial unit, and that thereafter complaints were made by neighbouring residents. Accordingly, the Panchayat issued Ext.P2 notice calling upon the petitioner to show cause why licence shall not be cancelled. The petitioner submitted Ext.P3 reply and finally, the Panchayat cancelled the licence by order dated 27/07/2005.
3. Aggrieved by this order, the petitioner filed an appeal to the Committee of the Panchayat. The appeal was rejected by Ext.P6 order. Against these proceedings, the petitioner filed Revision Petition No.118/05 before the Tribunal for Local Self Government Institutions. By Ext.P7 order, the Tribunal disposed of the Revision Petition. Taking note of the fact that the Panchayat cancelled the licence mainly on the basis that nuisance and pollution were caused on account of the industrial unit, the Tribunal held that the conclusion regarding the nuisance and pollution was arrived at without obtaining any valid report and simply on the complaints and the reports submitted by the Steering Committee, which did not include any technical hand.
4. On the above basis, the Tribunal passed the following order :-
"In the result, Decision No.1 dated 27-7-2005 and III dated 22-11-2005 of the Panchayat Committee of Nellikuzhy Grama Panchayat and orders dated 01/08/2005 and 28/11/2005 of the Secretary based on those decisions are set aside and the Panchayat Committee is directed to obtain report from the Pollution Control Board in relation to the pollution aspect of the Petitioner's unit and take fresh decision on the basis of Decision NO.III(I) dated 04/06/2005 after rendering opportunity of being heard to him and the complainants in the complaints based on which that decision was taken. Fresh decision as above shall be taken within 60 days from today. The Petitioner shall operate the unit only after obtaining consent to operate from the Pollution Control Board."
5. Accordingly, the Pollution Control Board inspected the premises of the petitioner and consent to operate the industrial unit was granted, a copy of which is Ext.P8. This consent is valid till 30/06/2015. Again as directed by the Tribunal, the Panchayat considered the matter and by Ext.P10 resolution, the Panchayat concluded that the establishment of the petitioner's unit is against public interest and therefore it was decided not to grant licence to the petitioner.
6. According to the petitioner, against the aforesaid decision, he submitted an appeal before the Green Channel Clearance Committee. The Green Channel Clearance Committee, by Ext.P11 proceedings dated 22/10/2008 considered the matter and passed its resolution recommending to the Panchayat to grant licence. Once again the Panchayat considered Ext.P11 and passed Ext.P12 resolution requesting the Green Channel Clearance Committee to reconsider its decision.
7. It would appear that in the meanwhile, against Ext.P11 order of the Green Channel Clearance Committee, respondents 7 & 8 filed an appeal before the Chief Secretary. They, thereafter approached this Court and filed WP(C) No.352/2009. At the stage of admission, by Ext.P15 judgment that writ petition was disposed of directing the Chief Secretary to dispose of the appeal filed against Ext.P11. Accordingly, the matter was heard by the Deputy Secretary (Industries) on 25/02/2009 and Ext.P16 order was passed annulling Ext.P11 order passed by the Green Channel Clearance Committee. It is in these circumstances this writ petition has been filed by the petitioner challenging Ext.P16 order and for consequential reliefs.
8. The contention raised in the writ petition t
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