IMPORTANT POINTS
Under the amended provisions of sub-section (3) of S.233 of the Act, the Secretary or the officer authorised by him should conduct an enquiry and submit report to the Village Panchayat as to whether the establishment of the factory, workshop, workplace or other installation of machinery or manufacturing plant, for which the permission is applied for, is objectionable by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution. The Village Panchayat on consideration of the application and the report of the Secretary and of such other authorities as specified in sub-section (4) may as expeditiously as possible, at any rate within thirty days grant the permission either absolutely or subject to such conditions as it thinks fit to impose.

ORDER :

C.K. Abdul Rehim, J.

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. & Ors. (2016 (3) KHC 118) had distinguished the decision of the Hon’ble Supreme Court in Action Council v. Benny Abraham (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 & Ors. (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 & Ors. (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. Vijayakumar & Ors. (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.

4. Before entering into discussions on the issue referred, it will be beneficial to have a scanning of the relevant provisions of the Act and the Rules. Ss.232 and 233 of the Act, as they stood prior to the amendment introduced in the year 2017, is as follows:

“232. Purpose for which places may not be used without a licence.--(1) The Village Panchayat may notify that no place in the Panchayat area shall be used for any of the purposes specified i