Allowed

C.V. Paul & Anr. v. State of Kerala and Ors.

Kerala HC6 Oct 2016WP(C)/13801/2009

Case brief

AI extract

What is this about?

In a writ petition regarding the doubt between a District Board's clearance and a Panchayath's refusal under the Single Window Clearance Act, the Court held that mandatory provisions of the latter Act bind the Panchayath to issue a license upon valid clearance.

What did the court decide?

The order of the Tribunal setting aside the Panchayath's order was set aside and the writ petition allowed.

C.V. Paul & Anr. Vs State of Kerala and Ors. — Labour and Industrial Disputes | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

¶4

THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938

¶5

WP(C).No. 13801 of 2009 (U)

¶6

PETITIONER(S):

¶7

1. C.V.PAUL, AGED 82 YEARS, S/O.C.U.VARKEY, MANAGING DIRECTOR, POLYFORMALIN (P) LTD., CHEMMANAD, VARIKKOLI.P.O, PUTHENCURZ, ERNAKULAM - 682 308.

¶8

2. POLYFORMALIN (P) LTD., CHEMMANAD, VARIKKOLI.P.O, PUTHENCRUZ, ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR, C.V. PAUL.

¶9

BY ADV. SRI.M.RAMESH CHANDER

¶10

RESPONDENT(S):

¶11

1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF FOREST AND ENVIRONMENT, KERALA GOVERNMENT SECRETARIAT, TRIVANDRUM.

¶12

2. SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, KERALA GOVERNMENT SECRETARIAT, TRIVANDRUM.

¶13

3. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM.

¶14

4. THIRUVANIYOOR GRAMA PANCHAYATH, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY.

¶15

5. SECRETARY, THIRUVANIYOOR GRAMA PANCHAYATH, ERNAKULAM - 682 308.

¶16

--2--

¶17

--2--

¶18

WP(C).No. 13801 of 2009 (U)

¶19

6. THIRUVANIYOOR GRAMA PANCHAYATH COMMITTEE, REPRESENTED BY ITS PRESIDENT, THIRUVANIYOOR, GRAMA PANCHAYATH, ERNAKULAM DISTRICT.

¶20

7. C.C.SKARIA, S/O.C.P.CHANDY, CHERUKUZHIEL, MANAMALA.P.O, THIRUVANKULAM, ERNAKULAM - 682 305.

¶21

8. KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS CHAIRMAN, TRIVANDRUM.

¶22

R1 TO R3 BY GOVT. PLEADER SMT.VINETHA HARIRAJ R4 TO R6 BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE R7 BY ADV. SRI.KALEESWARAM RAJ R8 BY ADV. SRI.M.K.CHANDRA MOHANDAS, SC

¶23

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶24

mbr/

¶25

WP(C).No. 13801 of 2009 (U)

¶26

APPENDIX

¶27

PETITIONER(S)' EXHIBITS:

¶28

EXT.P1 :	PHOTOSTAT COPY OF THE CONSENT GIVEN BY THE POLLUTION CONTROL BOARD.
EXT.P2 :	PHOTOSTAT COPY OF THE CONSENT TO OPERATE GIVEN BY THE KERALA STATE POLLUTION CONTROL BOARD.
EXT.P3 :	PHOTOSTAT COPY OF THE CLEARANCE CERTIFICATE ISSUED BY THE CONVENOR OF THE DISTRICT BOARD DATED 24.11.2008.
EXT.P4 :	PHOTOSTAT COPY OF THE LICENSE ISSUED BY THE PANCHAYATH DATED 15.12.2008.
EXT.P5 :	PHOTOSTAT COPY OF THE LICENSE RENEWED UP TILL 20.6.2009.
EXT.P6 :	PHOTOSTAT COPY OF THE JUDGMENT DATED 9.1.2009.
EXT.P7 :	PHOTOSTAT COPY OF THE ORDER OF THE PANCHAYATH COMMITTEE DATED 23.1.2009.
EXT.P8 :	PHOTOSTAT COPY OF THE REPORT DATED 3.3.2009.
EXT.P9 :	PHOTOSTAT COPY OF THE ORDER OF THE TRIBUNAL DATED 22.4.2009.
EXT.P10:	PHOTOGRAPHS SHOWING THE GREEN BELT IN THE COMPANY PREMISES.
EXT.P11A:	TRUE COPY OF THE STACK MONITORING REPORT BY THE POLLUTION CONTROL BOARD DATED 2.3.2009.
EXT.P11B:	TRUE COPY OF THE STACK MONITORING REPORT ISSUED TO PETITIONER COMPANY DATED 15.4.2009.
EXT.P11C:	TRUE COPY OF THE STACK MONITORING REPORT ISSUED TO PETITIONER COMPANY DATED 21.5.2009.
EXT.P12:	TRUE COPY OF THE EXPLOSIVE LICENCE NO.P/HQ/KL/15/1284 (P206105) OF THE EXPLOSIVES CONTROLLER, NAGPUR DATED 22.7.2008.
EXT.P13:	TRUE COPY OF THE LICENCE RENEWED BY THE PANCHAYATH.
EXT.P14:	PHOTOSTAT COPY OF THE CONSENT ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.

¶29

--2--

¶30

--2--

¶31

WP(C).No. 13801 of 2009 (U)

¶32

RESPONDENT ----------	(S)' EXHIBITS: -------------
EXT.R7A:	COPY OF REVISION PETITION FILED BEFORE THE 3RD RESPONDENT.	BY THE 7TH RESPONDENT
EXT.R7B:	COPY OF JUDGMENT DATED 5.3.2009 WP(C)NO.7162/2009(S).	IN
EXT.R7C:	COPY OF THE AFFIDAVIT FILED BY THE PANCHAYAT.	THE PETITIONER BEFORE
EXT.R7D:	COPY OF THE STATEMENT FILED BY THE STATE BANK OF TRAVANCORE.	THE PETITIONER BEFORE //TRUE COPY//
mbr/		P.S. TO JUDGE

¶33

K. VINOD CHANDRAN, J.

¶34

===================== W.P.(C) No.13801 of 2009 - U

¶35

====================== Dated this the 06^th day of October, 2016

¶36

J U D G M E N T

¶37

The petitioners are concerned with the order of the

¶38

Tribunal, which directed a remand in a challenge made to

¶39

Ext.P7 order issued by the Panchayath.

¶40

The 1^st petitioner is the Managing Director of the

¶41

2^nd petitioner, who wanted to set up an industrial unit for manufacture of formalin. Ext.P1 is the consent to establish and Ext.P2 is the consent to operate issued by the Pollution Control Board. The petitioners applied under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (for brevity 'the Act') and obtained a clearance certificate from the District Board constituted under the said enactment. The same is produced as Ext.P3 dated 24.11.2008. On the basis of the said certificate issued, Ext.P4,

¶42

¶43

W.P.(C) No.13801 of 2009 - U

¶44

D&O licence was issued by the Panchayath.

¶45

The 7^th respondent and certain other persons of

¶46

the locality challenged the grant before this Court. The Division Bench considering the issue found that the District Board's order under the Act is appealable to the State Board under Sections 11 and under Section13 the State Board also has the power to revoke such license. Noticing that the petitioner had filed such an application, it was directed that the State Board would dispose of the said application. Subsequently, an appeal was filed before the Panchayath against the issuance of the D&O licence, which was disposed of by Ext.P7. Ext.P7 merely expressed the opinion that the Panchayath has nothing more to do. This order was challenged before the Tribunal, which directed a remand as per Ext.P9.

¶47

¶48

W.P.(C) No.13801 of 2009 - U

¶49

The learned Senior Counsel appearing for the

¶50

petitioners refer to the Single Window Clearance Act to urge that a certificate issued under the Act by the District Board is binding on the Panchayath or any other authority constituted under any enactment and conferred with powers to issue such license. Specific reliance is placed on Sections 8 and 10 of the Act and a Division Bench decision of this Court reported in Shanmughan v. Vandazhy Grama Panchayath [2016(1) KLT

¶51

601] . The Division Bench considering the provisions of the Act relied on a decision of another Division Bench of this Court in Boby Uthup v. State of Kerala [2014(2) KLT 542] . It was held that the non-obstante clauses in Sections 8 and 10 of the Act makes it mandatory on any authority concerned in the matter of issuance of license or clearance certificate to comply with the certification made by the District Board or the State Board.

¶52

¶53

W.P.(C) No.13801 of 2009 - U

¶54

A reading of the Act also indicates that the District Board is constituted inter alia with the District Collector, the General Manager of the District Industries Centre and the President of the Grama Panchayath or the Chairperson of the Municipality concerned. In such circumstance, Ext.P3 having been issued; the Panchayath could have done nothing else, but issue a licence. The licence itself was not challenged before the Tribunal, nor could it have been done, since the issuance of licence insofar as the certification made by the District Board is a fait accompli. An appeal filed to the Panchayath against the D&O licence was disposed of by Ext.P7, which was challenged before the Tribunal.

¶55

The learned Counsel for the 7^th respondent places reliance on a decision of the Hon'ble Supreme Court reported in Banatwala and Company v. Life Insurance Corporation of India and Others [(2011) 13 SCC 446] , to contend that the

¶56

¶57

W.P.(C) No.13801 of 2009 - U

¶58

availability of a remedy in a statute would not prohibit an aggrieved person from availing of another remedy in another statute. The specific reliance is on the finding in para 91:

¶59

The fact that the proceeding for one purpose is provided under one statute cannot lead to an automatic conclusion that the remedy for a different purpose provided under another competent statute becomes unavailable.

¶60

A reading of the decision of the Hon'ble Supreme

¶61

Court would indicate that the decision has no application in the present case. The issue considered therein was the sustainability of an application for fixation of standard rent under the Rent Control Act of the State when eviction and recovery of arrears of rent was covered under the Public Premises Act of the Union. With respect to the specific purpose for which the application was filed under the Rent Control Act it was found that there is no conflict or repugnance

¶62

with the Public Premises Act; since the latter act did not

¶63

¶64

W.P.(C) No.13801 of 2009 - U

¶65

deal with such fixation. It was in the context of the proceedings under the respective enactments being quite different in their prayers and scope for consideration that the above declaration was made.

¶66

In the present case, the subsequent enactment made, being the provisions of the Single Window Clearance

¶67

Act had a non-obstante clause and any provision with respect to issuance of licences, clearance of certificates had to concede to the provisions under that Act and there was a definite mandate for such authorities under the various other enactments to issue a licence, if a clearance certificate is issued by the District or State Board as constituted under the Act. The above provisions render repugnant the provisions conferring power on the officers under another enactment for issuance of a license. The decision of the Hon'ble Supreme Court would not be applicable in the present case. The order

¶68

¶69

W.P.(C) No.13801 of 2009 - U

¶70

of the Tribunal at Ext.P9 has to be set aside. The writ petition would stand allowed.

¶71

However, it is agreed by both parties that there was a subsequent cancellation of licence made by the Panchayath, which is challenged before this Court. The learned Counsel appearing for the 7^th respondent also submits that the 7^th respondent had approached the State Board with an appeal, which has not been disposed of. There are also said to be other proceedings pending.

¶72

The writ petition would hence stand allowed, setting aside the impugned order in the above writ petition but however leaving open all contentions of either parties as to the continuance of the license granted to the petitioners.

¶73

Sd/-

¶74

K. VINOD CHANDRAN, JUDGE

¶75

SB/06/10/2016

¶76

// true copy //

¶77

P.A to Judge

C.V. Paul & Anr. v. State of Kerala and Ors.

Case brief

What is this about?

What did the court decide?

C.V. Paul & Anr. v. State of Kerala and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K. Sarojini Vs Krishnakumar N.K.

L.Mohanan Vs the City Corporation of Tvm

M.v.Mathai Vs State of Kerala & Ors.

Jose.O.M. Vs Village Officer

T.a.Majeed Vs Corporation of Cochin

Mohammed Ali Vs Manjeshwar Grama Panchayat