Kerala High Court
P.P.M. Moosakutty Haji vs State Of Kerala on 11 January, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33369 of 2009(M)
1. P.P.M. MOOSAKUTTY HAJI,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE LOCAL
... Respondent
2. THE THAMARASSERY GRAMA PANCHAYATH,
3. THE SECRETARY,
4. ADBUL MUNEER, S/O. MOOPPAKUTTY,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :SRI.M.R.DHANIL
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :11/01/2010
O R D E R
ANTONY DOMINIC, J.
W.P.(C.)------------------------- 2009
No.33369 (M) & 31034 (Y) of
---------------------------------
Dated, this the 11th day of January, 2010
J U D G M E N T
The issue being common, the pleadings in WP(C) No.33369/2009 is referred.
2. The petitioner established a metal crusher unit by name 'M/s. Irpona Rock Works'. According to him, he has been running the unit with licence since 1998. It is stated that by Ext.P1, the licence was renewed for the year 2007-08 and that by Ext.P2 he applied for its renewal for the year 2008-09. It is stated that on the objection raised by the 4th respondent, the Panchayat passed resolution dated 30/04/2008 refusing renewal of the licence.
3. That decision of the Panchayat was challenged before the Tribunal for Local Self Government Institutions in appeal No.247/2008. The appeal was disposed of by Ext.P4 order, relegating the petitioner to pursue the appellate remedy available before the Committee of the Panchayat. It is stated that accordingly an appeal was filed. But, however, by its resolution dated WP(C) Nos.33369 & 31034/2009 -2- 28/11/2008, the Panchayat Committee, confirmed the order rejecting the application made by the petitioner for renewal of the licence.
4. Resolution of 28/11/2008 was challenged by the petitioner by filing revision petition No.130/2008 before the Tribunal. That revision was allowed by Ext.P5 order and the Panchayat was directed to pass fresh orders in the matter. The operative portion of Ext.P5 order, being relevant, is extracted below for reference.
"In the result, the Revision Petition is allowed. The impugned decision No.221 dated 28/11/2008 of Thamarassery Grama Panchayat is set aside. The Secretary of the Panchayat is directed to pass fresh proper orders, as per law, on the application dated 14/01/2008 submitted on 31/03/2008 after verification whether there is valid permit under Section 233 of the Kerala Panchayat Raj Act for the unit and whether the conditions, if any, specified in the said permit and the conditions in the consent to operate issued by the Pollution Control Board are fulfilled or not and to communicate the orders to the Petitioner within one month from today."
5. The petitioner submits that in pursuance to Ext.P5 order, after complying with the procedural requirements, the Panchayat passed Ext.P6 resolution dated 30/07/2009 directing the Secretary WP(C) Nos.33369 & 31034/2009 -3- to issue licence to the petitioner, subject to compliance with the conditions of his obtaining consent from the Pollution Control Board and the No Objection Certificate issued by the District Medical Officer. Against Ext.P6 resolution, the 4th respondent filed appeal No.784/2009 before the Tribunal. That appeal was allowed by Ext.P7 order dated 22/10/2009, setting aside Ext.P6, mainly for the reason that before passing Ext.P6 resolution, the Panchayat did not comply with the directions contained in Ext.P5 order in R.P.No.130/2008. In pursuance to Ext.P7, the Panchayat issued a stop memo dated 03/11/2009. It was at that stage, WP(C) No.33369/2009 was filed seeking to quash Ext.P7 order passed by the Tribunal.
6. WP(C) No.31034/2009 is filed by the 4th respondent aforementioned, seeking implementation of Ext.P7 and a declaration that the petitioner in WP(C) No.33369/2009 has no right to operate the quarry without a valid registration and other licences.
7. The learned counsel for the petitioner in WP(C) No.33369/2009 contended that in Ext.P7 order allowing the appeal filed by the 4th respondent mentioned above, the Tribunal misdirected itself, in as much as the case was appreciated as though WP(C) Nos.33369 & 31034/2009 -4- he had applied for a fresh grant of permit, which in fact is incorrect. On the other hand, the learned counsel for the petitioner in WP(C) No.31034/2009 and the learned counsel for the Panchayat sought to sustain its respective positions.
8. I have considered the submissions made.
9. As already seen, the main ground urged in Appeal No.784/2009 filed by the 4th respondent, who has filed WP(C) No.31034/2009, is that the Panchayat did not comply with the directions contained in Ext.P5 order in R.P.No.130/2008. A reading of the order in the revision petition shows that before a decision to issue permit under Section 233 of the Kerala Panchayat Raj Act is taken by the Panchayat, the Panchayat was required to verify whether a valid permit under Section 233 of the Kerala Panchayat Raj Act has been issued to the unit and whether the conditions, if any, specified in the said permit and the conditions in the consent to operate issued by the Pollution Control Board are fulfilled by the petitioner in WP(C) No.33369/2009. Ext.P6, the consequent resolution passed by the Panchayat or the affidavit filed by the Panchayat did not show that before the resolution was passed, a verification as directed in Ext.P5 referred to above has in fact been WP(C) Nos.33369 & 31034/2009 -5- done. Although the order of the Tribunal at some portion indicates that the Tribunal appreciated the application made by the petitioner in WP(C) No.33369/2009 as one made for a fresh permit, which in fact is incorrect, the same is inconsequential, and therefore, I do not wish to deal with the same.
10. Be that as it may, since no material is available to conclude that the Panchayat has complied with the directions issued by the Tribunal in its order in R.P.No.130/2008, necessarily the conclusion of the Tribunal contained in Ext.P7 cannot be faulted. Therefore, the appropriate order that is to be passed in this case is to direct the Panchayat to reconsider the matter as directed by the Tribunal in Ext.P5 order in R.P.No.130/2008, and pass fresh orders in the matter. This shall be done by the Panchayat as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment.
Since WP(C) No.33369/2009 is disposed of as above, no further orders are called for in WP(C) No.31034/2009. WP(C) No.31034/2009 is accordingly closed.
(ANTONY DOMINIC, JUDGE) jg