IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32657 of 2008(K)
1. RADHAKRISHNAN, S/O. LATE KRISHNAN NAIR, ... Petitioner
2. MOHAMMED RAFI, S/O. SAIDALAVI CHEENIKKAL Vs
1. PUDUPPARIYARAM GRAMA PANCHAYATH,
2. KERALA STATE POLLUTION CONTROL BOARD,
3. C.I OF POLICE, HEMAMBIKA NAGAR
4. MALAMPUZHA STEELS PRIVATE LTD.,
For Petitioner :SRI.K.K.DHEERENDRAKRISHNAN For Respondent :SMT.P.K.RADHIKA
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR The Hon'ble MR. Justice C.K.ABDUL REHIM
O R D E R
-------------------------------------------- WP(C).No. 32657 of 2008
--------------------------------------------- Dated this the 18th day of August, 2009.
Grievance of the petitioners is that the 4th respondent company is functioning without obtaining proper licence and consent from the first respondent Grama Panchayat and the second respondent State Pollution Control Board, in a manner causing nuisance and health hazards to the petitioners and their family members. The allegation is that inspite of repeated complaints the authorities of the Panchayat and the State Pollution Control Board are not taking any effective steps for preventing the 4th respondent from continuing with their illegal functioning.
2. Ext.R4(a) is the licence issued by the first respondent Panchayat for the year 2007-08, which was valid upto 31.3.2008. According to the 4th respondent renewal of licence was not granted inspite of applications made in this regard. Ext.R4(d) is the "consent to operate" issued by the second respondent, under the provisions of the Air Act and Water Act. WPC.32657/2008 2
The said consent was valid upto 30.6.2009. Learned Standing Counsel appearing for the second respondent on instructions submitted that inspite of application for renewal submitted by the 4th respondent no renewal is granted because of pendency of this writ petition. Learned counsel appearing for the 4th respondent submitted that the authorities of the second respondent Board had already conducted inspection on the basis of application for renewal submitted and they were satisfied about the precautionary measures taken for averting any apprehended nuisance.
3. Contention of the petitioner is that the 4th respondent is not entitled to continue functioning because the Panchayat had not renewed the licence. It is an admitted fact that the industry of the 4th respondent is situated in a declared industrial area promoted by the Governmental agency, SIDCO. On that basis the 4th respondent contended that the industry is outside the purview of the provisions of the Kerala Panchayat Raj Act 1994. Learned counsel had pointed out a Division Bench decision of this court in Pepsico India Holdings Limited vs. State of Kerala (2007(2) KLT 835), in which this court found that WPC.32657/2008 3
industrial areas declared by the State Government will fall outside the purview of the Kerala Panchayat Raj Act 1994, in view of section 1(2) of the said Act, and consequently the Panchayat cannot exercise any power with respect to issuance of licence to any industries situated within the premise of an industrial area declared by the State Government. Therefore it is clear that the 4th respondent Industry being situated in an industrial area is outside the purview of the Kerala panchayat Raj Act 1994 and notwithstanding non-renewal of the licence by the first respondent Panchayat they are entitled to function the industry.
4. Learned counsel for the petitioners points out that even in cases of industrial unit situated within any declared industrial area licence/registration under the provisions of the Industrial Single Window Clearance Board & Industrial Township Development Act 1999 (Ker.) need be obtained. Contention of the 4th respondent is that the unit was established prior to enactment of the said legislation and therefore they could not get registration/licence under the provisions of the said Act.
5. As stated above, it is evident that the consent to operate obtained by the 4th respondent stood expired as on 30.6.2009. WPC.32657/2008 4
According to second respondent the consent was not renewed because of pendency of this writ petition. The unit cannot be functioned without consent to operate obtained from the second respondent. Therefore it is obligatory on the part of the second respondent to take a decision as to whether the consent to operate granted to the 4th respondent is liable to be renewed or not. Since the application for renewal has already been submitted and the required formalities had already been complied with they are entitled to continue functioning of the unit under the deeming provisions contained in the relevant statute, is the contention of the 4th respondent.
6. Under the above circumstances it is only just and proper in the interest of justice to direct the second respondent to take a final decision with respect to renewal of "consent to operate", considering the factual situation prevailing at the premises of the 4th respondent and after hearing objection if any of the petitioners. The second respondent will also take note of the requirement for registration under the provisions of the Industrial Single Window Clearance Board & Industrial township Development Act 1999 with respect to functioning of the 4th WPC.32657/2008 5
7. Hence the writ petition is disposed of directing the 4th respondent to take a final decision with respect to renewal of Ext.R4(d) consent, within a period of two months from the date of receipt of a copy of this judgment, after affording an opportunity of hearing to the petitioners, taking into consideration of the observations made above. C.K.ABDUL REHIM, JUDGE