Important points:
A reading of the provisions in Section 233A would indicate that an activity undertaken by a person in a factory, workshop or workplace could be prohibited by the Secretary of the Panchayat under sub-section (3) of Section 233A in two situations namely, where there has been willful default in carrying out a direction given under sub-section (1) or where in the existing circumstances, the abatement of nuisance is found impracticable

JUDGMENT :

P.B. SURESH KUMAR, J.

1. Petitioner obtained Acknowledgment Certificate in terms of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (the Act) for establishing an industrial enterprise for manufacture of polypropylene lumps. Ext.P7 is the Acknowledgment Certificate obtained by the petitioner on 15.7.2020. Ext.P7 is valid till 14.07.2023. It is stated by the petitioner that she has established the industry on the strength of Ext.P7 Acknowledgment Certificate and while the industry was in operation, the Secretary of the fourth respondent Panchayat issued Ext.P8 stop memo alleging that the operation of the industry by the petitioner is illegal since she has not obtained licence in terms of the provisions of the Kerala Panchayat Raj Act, 1994 (the Panchatyat Raj Act). Ext.P8 stop memo was challenged by the petitioner before this court in W.P. (C) No. 18205 of 2020 and on 16.09.2020, when the said writ petition came up for admission, the learned counsel for the Panchayat submitted that the Panchayat is proposing to withdraw Ext.P8 stop memo and that a communication to that effect would be issued to the petitioner forthwith. In the light of the submission made by the learned counsel for the Panchayat, the said writ petition was closed, permitting the petitioner to carry on her activity. Immediately thereupon, the Secretary of the Panchayat issued Ext.P10 stop memo to the petitioner alleging that complaints have been received concerning the pollution caused by the industry of the petitioner and therefore, she has to stop the activity undertaken by her. It is stated in Ext.P10 stop memo that the same is issued in terms of Section 233A of the Panchayat Raj Act. Ext.P10 stop memo is under challenge in the writ petition.

2. Heard the learned counsel for the petitioner as also the learned counsel for the Panchayat.

3. The learned counsel for the petitioner contended that in the light of the provisions contained in the Act, the Panchayat is precluded from invoking the power under Section 233A of the Panchayat Raj Act over an enterprise covered by an Acknowledgment Certificate issued under the Act. It was also contended by the learned counsel that even if it is found that the Secretary of the Panchayat could invoke the power under Section 233A of the Panchayat Raj Act over such an enterprise, Ext.P10 stop memo is illegal in so far as the same was issued otherwise than in accordance with Section 233A of the Panchayat Raj Act.

4. Per contra, the learned counsel for the Panchayat contended that the provisions of the Act do not take away the power of the Secretary of the Panchayat under Section 233A of the Panchayat Raj Act. It was also contended by the learned counsel that the Panchayat is empowered to issue stop memos in the nature of Ext.P10 under the said provision.

5. In order to resolve the issues in dispute between the parties, it is necessary to refer to the relevant provisions of the Act. Sections 2(c), 2(d), 5, 6, 7, 10 and 11 are the provisions in the Act which are relevant. The said provisions are extracted hereunder:

2. Definitions - In this Act, unless the context otherwise requires:

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(c) “approval” means licenses, permissions, approvals, clearances, registration, consents, no objection certificate and the like, required under any State law in connection with the establishment or operation of micro small and medium enterprise in the State.

(d) “Competent Authority” means any department or agency of the Government, statutory body, Corporation owned by State, Local Self Government Institutions, Urban Development Authorities, or any other Authority or Agency constituted or established by or under any State law or under the administrative control of the Government, which is entrusted with the powers or responsibilities to grant or issue approval for establishment or operation of enterprises in the State.

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5. Filing of Self Certification - (1) Any person who intends to start an enterprise other