Kerala High Court
Chettikulangara Grama Panchayath vs State Of Kerala on 19 June, 2014
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936
WP(C).No. 18956 of 2013 (T)
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PETITIONER :
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CHETTIKULANGARA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, CHETTIKULANGARA P.O.,
MAVELIKKARA, ALAPPUZHA-690106.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
SRI.K.J.SHARATH KUMAR
RESPONDENTS :
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1. STATE OF KERALA
REPRESENTED BY SECRETARY TO THE DEPARTMENT OF INDUSTRIES,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.
2. KERALA STATE SINGLE WINDOW CLEARANCE BOARD,
REPRESENTED BY ITS CHAIRMAN,
THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.
3. DISTRICT SINGLE WINDOW CLEARANCE BOARD,
ALAPPUZHA REPRESENTED BY ITS CHAIRMAN,
(DISTRICT COLLECTOR OF ALAPPUZHA)
COLLECTORATE, ALAPPUZHA-688001.
4. GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE,
ALAPPUZHA (IN HIS CAPACITY AS THE CONVENER,
DISTRICT SINGLE WINDOW CLEARANCE BOARD ALAPPUZHA)
OFFICE OF THE DISTRICT INDUSTRIES CENTRE
ALAPPUZHA-688001.
5. BIJI L., PUTHENKUTTIYIL,
OLAKETTIYAMBALAM, CHETTIKULANGARA P.O.,
MAVELIKKARA, ALAPPUZHA-690106.
R1 TO R4 BY GOVERNMENT PLEADER SRI.P.M.SANEER
R5 BY ADVS. SRI.R.KRISHNA RAJ
SMT.E.S.SONI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09/4/2014 ALONG WITH WPC. 21295/2013, WPC. 30743/2013,
THE COURT ON 19-06-2014, DELIVERED THE FOLLOWING:
BP
WP(C).NO. 18956 OF 2013 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 : TRUE COPY OF THE MINUTES OF THE DECISION DT.22-5-2013 OF THE
PANCHAYAT COMMITTEE.
P2 : TRUE COPY OF THE COMMUNICATION NUMBER C5-3202/13 DT.1-7-2013 MADE
BY THE SECRETARY TO R5.
P3: TRUE COPY OF THE COMMUNICATION NO.M1/SWCB/3441/2013 DT.3-6-2013
MADE BY R4 TO THE PETITIONER.
P4: TRUE COPY OF THE COMMUNICATION NO.C7/3913/13 DT.19-6-2013 MADE BY
THE PETITIONER TO R4.
P5: TRUE COPY OF THE COMMUNICATION NO.M1/SWCB/3441/2013 DT.12-7-2013
MADE BY THE R4 TO THE PETITIONER.
P6: TRUE COPY OF THE COMMUNICATION NO.M1/SWCB/9989/2010(2)
DT.18-7-2013 MADE BY R4 TO THE PETITIONER.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
BP
A.MUHAMED MUSTAQUE, J.
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W.P.(C) Nos.18956, 21295 & 30743 of 2013 "C.R."
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Dated this the 19 day of June, 2014
th
J U D G M E N T
These writ petitions are being disposed by a common judgment as the issue in all these writ petitions is common.
2. The petitioner in W.P.(C) No.30743/2013, namely, Smt.L.Biji, decided to set up an injection moulding unit for manufacturing paper plates. This writ petition is essentially filed to permit her to operate the industrial unit in the light of Ext.P23 certificate issued by the District Single Window Clearance Board (hereinafter referred to as the "District Board"), Alappuzha, without any interference by the local Panchayath.
3. W.P.(C) No.18956 of 2013 is filed by the local Panchayath challenging the order passed by the District Board.
4. W.P(C) No.21295 of 2013 is filed by a resident of the local Grama Panchayath challenging the decision of the District Board.
5. The brief facts are as follows:-
Smt.L.Biji, established the industrial unit after obtaining necessary permission from the District Medical Officer, Kerala State Pollution Control Board etc. Initially, she approached the local Grama Panchayath for issuance of licence in terms of Section 233 of the Kerala Panchayath Raj W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:2:- Act, 1994, which mandates permission from the Village Panchayath for the construction of factories and installation of machinery. This was rejected by the Panchayath as per the proceedings dated 01/07/2013. Smt.L.Biji approached this Court challenging the decision of the Panchayath, in W.P. (C) No.18583 of 2013. This Court dismissed the above writ petition noticing that Smt.L.Biji has a statutory remedy by way of an appeal under Section 276 of the Kerala Panchayat Raj Act and directed her to approach the statutory appellate authority. It was also observed that the Appellate Authority shall also take into consideration the permission granted by the District Board to Smt.L.Biji for setting up the unit. Smt.L.Biji did not approach the Appellate Authority as directed in the judgment in W.P.(C) No.18583 of 2013. Smt.L.Biji instead approached the District Board for obtaining licence invoking its power to grant such permission by exercising its original jurisdiction. The District Board took a decision to grant Licence, She was given a certificate of deemed licence by the District Board as the Panchayath failed to issue necessary licence consequent upon the decision of the District Board. The District Board is competent to issue a certificate of deemed licence under the relevant provisions. Smt.L.Biji, in the present writ petition, seeks to give effect to the certificate of deemed licence issued by the District Board.
W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:3:-
6. The Panchayath in W.P.(C).No.18956/2013 highlighted their grievance that the District Board did not give sufficient opportunity for them for ventilating their grievances. It is also highlighted by the Panchayath, having rejected the permission, the same was not challenged before the appellate authority, the District Board lacks any power to interfere with the decision of the Panchayath. The resident also raises a similar contention as raised by the Panchayath. It is submitted by the counsel, once application under Section 233 of the Kerala Panchayat Raj Act is rejected, Smt.L.Biji is estopped from preferring any application for licence before the District Board. It is also submitted by the learned counsel for the petitioner that when this Court dismissed the writ petition filed by Smt.L.Biji, relegating her to appellate remedy under Section 276 of the Kerala Panchayat Raj Act, it is incompetent for the District Board to take a decision at the instance of Smt.L.Biji, for granting permission. It is also submitted by the learned counsel with reference to Ext.P2 produced in W.P. (C) No.21295 of 2013 [by which the Panchayat rejected the request for licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996] that without challenging Ext.P2, the District Board cannot issue permission for installation of machineries.
W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:4:-
7. This matter was originally heard and reserved for judgment on 09/04/2014. After the matter was reserved for judgment, a Division Bench of this Court in Boby Uthup v. State of Kerala [2014 (2) KLT 542] held that the procedure that is to be followed by the District Board for considering an application under Section 8(2) of the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (hereinafter, referred to as "Single Window Clearance Act") is not in accordance with Section 233 of the Kerala Panchayat Raj Act. In view of the Division Bench judgment as above, the case was posted for rehearing. The learned counsel appearing for the parties addressed this Court with reference to the decision of this Court in Boby Uthup's case. The learned counsel appearing for the Panchayat and the learned counsel appearing for the resident argued that the power on the District Board under Section 8(2) of the Single Window Clearance Act is only for granting permission to establish a factory and not for the purpose of installation of machineries, which according to them is squarely within the jurisdiction of the local Panchayat to decide. The learned counsel for Smt.L.Biji submits that the power with the District Board is comprehensive power, which includes the power to install machineries. Learned counsel also relied on the decision of this Court in Parayil Granular Industries vs. Kumaranalloor Grama Panchayat [2009 (2) KLT 1012].
W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:5:-
8. The Single Window Clearance Act provides special provision for the purpose of speedy issue of various licences, clearances and certificates as required under various State enactments for setting up of industrial undertakings in the State. The power of State enactment can be traced out to entry 24 in List II of Schedule 7 of the Constitution of India. The power conferred to the Panchayat under Section 233 of the Panchayat Raj Act is also referable to Entry 6 in List II of Schedule 7 of the Constitution of India. This power is essential to regulate establishment of factories or installation of machineries to secure public health. The Division Bench of this Court Essar Telecom Infrastructure (P) Ltd v. State of Kerala [2011 (2) KLT 516] held that "the State Legislature is not denuded of the legislative power under Entry 6 to make laws to protect public health or otherwise, catering to public health and we have no doubt that the provisions of the Panchayat Raj Act is geared in substance to preserve and protect the public health". In Polaki Motors and others v. State of Orissa and others [1993 Supp (2) SCC 674], it was held that "enactment of a statue on a topic covered by an entry of a legislative list does not take away legislative competence to enact another statute on a different aspect covered by the same entry". Therefore, in our system of co-operative governance under the constitutional scheme, the dual aspect of single jurisdictional subject matter can be shared at several different levels of W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:6:- governance without leading to any conflict. The power and responsibility devolved upon the Panchayat in terms of Article 243G read with Eleventh Schedule of the Constitution of India is for establishing small scale industries for economic development. The power granted to the Panchayat under Section 233 of the Kerala Panchayath Raj Act, is to regulate establishment of factories and machineries from standpoint of health. The power conferred on the District Board is with a purview to promote small scale industries in the State. The power and authority of the Panchayat and the District Board though seemingly appears to be parallel, that is, for issuing licence, but the purpose of vesting of such power and authority are not symmetrical. Every legislative provsions must be interpreted in accordance with its own subject. The power conferred on the Panchayat for issuing licence has to be construed not under Article 243G but under Entry 6 in List II of Schedule 7 of the Constitution of India. The power conferred on the District Board or State Board does not intend to undermine functioning of the Local Self Government Institutions. Rather it is intended to co-ordinate authority given to its local authority along with other statutory authorities for streamlining issuance of licence and connected matters for the purpose of promotion of small scale industries. The watershed of the power and authority between the Panchayat and District Board schemed out under relevant legislations are not intended to W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:7:- create repugnancy in exercise of their respective power but to advance the cause of legislative competence conferred on the State under the Constitution, by reading provisions harmoniously. Article 40 directs the State to take steps to organize Village Panchayats and vest them with such powers and authority as may be necessary to enable them to function as units of self Government. A new Part IX has been added to the Constitution of India consisting of Articles 243 to 243-O. The amendment is intended to give effect to Article 40 of the Constitution of India. In Bondu Ramaswamy and others v Bangalore Development Authority and others [(2010) 7 SCC 129], the Hon'ble Supreme Court held that "the amendment to the Constitution sought to strengthen the panchayat system by giving a uniform constitutional base, so that the panchayats become vibrant unit of administration in rural area by establishing strong, effective and democratic local administration, so that there can be rapid implementation of rural development programme". Therefore, primacy of Panchayat's role as Local Self Government Institution, voicing grievances of local residents, cannot be ignored while ensuring its development. Thus, so long as legislative scheme for issuing licence under the Single Window Clearance Act remains deferential to the Local Self Government Institutions with object to sustain core competence of the Panchayat to express its view on the subject, the approach of the Court is to interpret provisions W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:8:- conferring power on these authorities under two different legislations, to obviate a situation resulting in inconsistency and to advance the cause of the subject for which power and authority is granted.
9. In the above back drop, the first question that arose in this case on the impact of the decision of the Panchayat on the District Board has to be decided, i.e., whether the applicant for a licence from the District Board is precluded from obtaining such licence from the Board as his application has already been rejected by the Panchayat? To consider this point, I am of the view two principles of law that have bearing in the matter should be considered, one is the principle of estoppel by election which is related to seeking remedy in subsequent forum and the other is, issue estoppel, which is related to agitating an issue which is previously decided. In Abdulrahiman v. Abdulla Haji [1991 (1) KLT 702], a Division Bench of this Court considered principle of estoppel by election in the context of tenant claiming protection of commercial tenancy in subsequent proceedings, when his earlier claim for assignment of landlord's right has been rejected under the Land Reforms Act and defined the principle in para 13 as follows:-
"13. The principle of estoppel by election can arise only in cases where two courses of action available are mutually exclusive and the opposite party on the faith of the W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:9:- representation by conduct or otherwise has acted to his detriment or has adopted a course of action which otherwise he would not have resorted to.
And further observed as follows (para14)
14. As regards waiver in relation to the doctrine of election it is stated at page No. 319-320 of Estoppel by Representation by Spencer Bower and Turner - Third Edition:
"The truth is, perhaps, that whereas a fairly successful attempt may be made to state with precision what is meant by "estoppel" and by "election", the term "waiver" when used in a similar connotation is not capable of exact definition in the light of the authorities. Possibly it may be regarded as usefully describing an end-result; but its application to the process by which that result is brought about is almost invariably attended with ambiguity as to the essential nature of that process".
When two remedies are open to a particular party and he opts for one of them, in a given circumstance it could be deemed that he has waived the other remedy. In such circumstance the end result of the operation of election is waiver of the other remedy."
10. In National Insurance Co. Ltd. v. Mastan & another [AIR 2006 SC 577], the Hon'ble Supreme Court held in para.24 as follows:
W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:10:- "The 'doctrine of election' is a branch of 'rule of estopple', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case."
11. Following Abdulrahiman's case (supra), this Court held in Ahammed Kunju v. State of Kerala [2010 (1) KLT 217] that "though the operator challenged the decision of the Panchayat in the earlier round before the Tribunal, he was well within his rights to move the Green Channel Clearance Committee against a later decision issued by the Panchayat after the order of remit by the Tribunal. There is nothing in the Act or the Rules which obliges one to get confined to a remedy in relation to a subject matter once for all". In Kurien vs. Renjitha [2000(1) KLT 388], it was held that "when a person having two alternative courses of action mutually exclusive chooses to adopt one of them and rejects the other expressly or impliedly, he is said to have elected to choose one of them and he is subsequently precluded from adopting the other course which he chose or intended to reject". Thus, to attract doctrine of estoppel it must be established that the power conferred is exclusive on the W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:11:- Authroities, so as to give applicant liberty to adopt either of the forum, but not both. Section 8 of the Single Window Clearance Act defines powers and functions of the District Board to deal with an application for licence. The above provision begins with a non obstante clause "notwithstanding", which would sufficiently indicate that power conferred on the District Board is overriding, anything contained in any other law for similar power for issuing licence. Thus, the doctrine of estoppel by election is not a bar for entertaining any application by the District Board, as the power conferred on the Panchayat under Section 233 of the Kerala Panchayat Raj Act is not exclusive
12. Doctrine of issue estoppel arises when issue is decided against a party, he would be stopped from raising the same in the latter proceedings. In Boby Uthup's case, the Division bench held that the procedure that is to be followed by the District Board is not one under prescribed under Section 233 of the Kerala Panchayat Raj Act and the procedure prescribed in the Single Window Clearance Act itself. As has been noted, conferring power on the District Board is contextually distinct. The right to carry on trade or business is fundamental right to all citizens, subject to reasonable restrictions in our Constitution. It is such restriction, which has found expression through various enactments. The public administration carried out by the Authorities, is based on the power W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:12:- conferred on it by the statute in the context of subject for which legislative sanction is given. Thus, the principles of issue estoppel will not apply wherein governmental decision has to be taken based on varying content of the context in which power has to be exercised by the Authorities and also resorting to different procedures. To hold that the District Board is bound by the decision of the Panchayat would amount to fettering the power of the Board conferred under the relevant statute.
13. Based on the discussion as above, if Smt.L.Biji had moved an application under the Kerala Panchayat Raj Act and, resulted in rejection, it does not lead to the conclusion that her right to move the application under the Single Window Clearance Act is exhausted. Smt.L.Biji, of course, could have moved an appeal under Section 276 of the Kerala Panchayat Raj Act challenging the decision of the Panchayat. But, the failure on her part to challenge the decision of the Panchayat does not in any way preclude her from approaching the District Board with her original application. Decision of Panchayat, in such a situation, can only be viewed as the view expressed by the Panchayat in a proceedings before the District Board, though the District Board is not bound by that decision. It is to be noted that under Section 4(3)(c) of the Single Window Clearance Act, the District Board also consists of the President or Chairperson of the local authorities. The District Board has the power to refuse or modify the clearance, licence W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:13:- or certificate applied for. Therefore, views of the Panchayat as well as their right of audience interms of Constitutional scheme in the proceedings, are relevant. However, the District Board is not bound by such decision of the Panchayat, as the Board is only bound by their own procedure and not by the procedure under Section 233 of the Kerala Panchayat Raj Act as laid down in Boby Uthup's case (supra). Therefore, I am of the view that the decision of the Panchayat, rejecting the application for licence to operate the small scale industrial unit is only relevant while considering the application under Section 8 of the Single Window Clearance Act by the District Board and, the Board is not bound by such decision.
14. The argument raised on behalf of the Panchayat as well as the resident that a distinction has to be drawn with respect to the power of District Board which, according to them, is only with respect to granting clearance, licence and certificate to establish a small scale industrial unit and does not include the power to grant permission for installation of machineries, is unsustainable. As rightly pointed out by the learned counsel Shri R.Krishna Raj, scheme for licence, clearance and permission under the Single Window Clearance Act is comprehensive and an applicant, who has obtained a clearance under the Single Window Clearance Act should not be left high and dry, to run pillar to post for reliefs on the basis of such clearance. This Court, in Parayil Granular W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:14:- Industries' case [2009 (2) KLT 1012], held that power is comprehensive, which includes all matters relating to establishment of factories. It is relevant to note Form 'A' prescribed under Rule 6 of the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Rules, 2000 (for short, the "Single Window Rules") for the application for establishing industrial unit, which includes the machineries that should be installed in small scale industries. Therefore, I do not find any reason to accept the argument of the learned counsel for the Panchayat and the resident.
15. The learned counsel for the Panchayat and the learned counsel for the resident also further submitted that nuisance is the aspect on which the Panchayat is vested with a right to proceed against the wrong doers. Therefore, based on apprehended nuisance, it is argued that the Panchayat's stand on refusing licence should be upheld by the District Board. As already discussed in aforenoted paragraphs, the Panchayat is entitled to express its view before the District Board. However, once permission is granted by the District Board, the Panchayat is bound by it. Going by the Scheme of the Single Window Clearance Act, I am of the view, power given to the District Board is only for granting permission/licence/clearance for pre-establishment of the unit and, W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:15:- certainly, the Panchayat is vested with the power to deal with any post- operational violations.
16. Coming back to the decision of the District Board, which is produced as item No.18 in Ext.P19, in W.P.(C).No.30743/2013, the District Board granted permission in view of the permission granted by the Pollution Control Board, the District Medical Department and the Fire Safety Department. The Panchayat, in W.P.(C).No.18956/2013 produced Ext.P4, raising certain objections to the report of the Pollution Control Board. Ext.P4 is dated 19/6/2013. The decision produced as Ext.P19 in W.P.(C).No.30743/2013 is dated 30/07/2013. Rule 10 framed under the Single Window Rules contemplate that a reasoned order shall be passed by the District Board on an application under Sections 7, 8 and 9 of the Single Window Clearance Act. Though the procedure that contemplated under Section 233 of the Kerala Panchayat Raj Act need not be followed by the District Board, going by the decision of this Court in Boby Uthup's case (supra), the right of the Panchayat to have audience and express its views in terms of the constitutional scheme is not divested, as has noted in foregoing paragraphs. It is obvious, the District Board had not adverted to Ext.P4 produced by the Panchayat in W.P.(C).No.18956/2013 while taking the decision, as no reference is made to the decision of the Panchayat referred to in Ext.P4.
W.P.(C) Nos.18956, 21295 & 30743 of 2013 -:16:-
17. In view of the above, matter requires reconsideration at the hands of the District Board for considering the application made by Smt.L.Biji for establishing the small scale industrial unit and installation of machineries. Accordingly, these writ petitions are disposed of with the following directions:-
i. The decision of the District Board in Ext.P19 produced in W.P. (C).No.30743/2013, is set aside so far it relates to grant of permission to Smt.L.Biji to establish Industrial Unit ii. District Board shall take a decision on the application of Smt.L.Biji, the writ petitioner in W.P.(C).No.30743/2013, after affording an opportunity to the Panchayat to state their views and also to the petitioner in W.P.(C).No.21295/2013. This shall be done within a period of six weeks from the date of production of a copy of this judgment.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms