Panchayat Obligated to Ensure Machinery Having Capacity of 5hp Is Not Used Without Obtaining Permission: Kerala High Court

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Facts of the Case

The petitioner resided in the limits of Udayanapuram Grama Panchayat. The sixth respondent was earlier running a furniture manufacturing unit in premises located 500 meters away from the residential property of the petitioner and after purchasing the property adjacent to the residential property of the petitioner, he had constructed a shed and shifted the furniture manufacturing unit to that shed, without obtaining the requisite licenses and permissions from authorities concerned. 

 

It was stated by the petitioner that the unit was situated about 10 meters away from the house of the petitioner. As it was producing intolerable sound during its operation, in 2014 she had complained before the Ombudsman for Local Self Government Institutions, Thiruvananthapuram. 

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The complaint was disposed of, permitting the petitioner to prefer a complaint before the Secretary of the Panchayat and directing the Secretary of the Panchayat to take appropriate decision, after having afforded the petitioner and the sixth respondent an opportunity of hearing. The petitioner had preferred the complaint before the Secretary of the Panchayat. The committee had considered the complaint and found that the sixth respondent was running the unit after obtaining all the requisite permissions and licenses. The Committee of the Panchayat disposed of the complaint directing the sixth respondent to limit the operation of the unit from 9 a.m. to 4 p.m. on 11.8.2016.

 

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The writ petition was filed almost two years thereafter, seeking a direction to the Panchayat and its Secretary to withdraw the license issued to the sixth respondent for running the unit on the ground mainly that the operation of the unit in its present location was wholly unauthorized.

 

On 09.02.2021, the court had passed the interim order, under which the Secretary of the Panchayat had filed a statement in the matter on 25.2.2021 stating that license was issued by the Panchayat to the sixth respondent right from 1999 to run the unit in the premises referred to by the petitioner in the writ petition that the said premises were one falling under Ward No.IV up to 2013 and the same now fell under Ward No.XIV; that in the license issued to the sixth respondent in the year 2012, the Ward Number of the building was shown by mistake as Ward No.II instead of Ward No.IV without showing the building number. It was also stated that the sixth respondent was using 5HP power in aggregate in his unit, and the records of the Panchayat did not indicate that the sixth respondent had obtained permission under Section 233 of the Kerala Panchayat Raj Act.

 

Petitioner’s Arguments

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The petitioner had asserted that the sixth respondent had established the industrial unit elsewhere in the Panchayat and then shifted the same to its present location. It was pointed out by the petitioner that the sixth respondent had not obtained any license or permission to run the unit in its present location and to support this, the petitioner had relied on the ownership certificate and the letter issued by the Divisional Forest Officer, Kottayam, Panchayat, issued under the Kerala Forest (Regulation of Sawmills and Other Wood-based Industrial Units) Rules, 2012 to show that the said licenses were issued not in respect of the present premises where the unit is run, but in respect of premises in Ward No. IV of the Panchayat. 

 

It was also pointed out by the petitioner that the sixth respondent was not entitled to operate the unit in the present location. It was further pointed out by the petitioner that on account of the sound pollution caused by the unit, life in the locality had become miserable. It was also stated by the petitioner that the sixth respondent was not entitled to run the unit in its present location and had not obtained the permission of the Panchayat under Section 233 of the Kerala Panchayat Raj Act. 

 

It was also argued by the petitioner that as the distance between the house of the petitioner and the unit of the sixth respondent was less than 50 meters, the sixth respondent ought not to have been granted consent to operate the unit. 

 

Respondent’s Arguments

The respondent had contested that the sixth respondent had established the industrial unit at the premises where the unit was presently functioning and there had been no change of location at all. It was also submitted that all the permissions and licenses obtained by the sixth respondent and produced in the proceedings had been obtained by the sixth respondent in respect of the very same premises and thus the petitioner was not entitled to any relief in the writ petition.

 

It is also stated by the State Pollution Control Board that the consent issued to the sixth respondent was renewed on 6.1.2017 for the period up to 31.12.2019. It was further stated by the State Pollution Control Board that the unit of the sixth respondent was inspected after the institution of the writ petition on 7.11.2018 and it was found that the pollution control measures provided by the sixth respondent were adequate.

 

It was also stated by the sixth respondent in the counter affidavit that he did not own any other land or building. The certificate was issued in respect of the very same building referred to by the petitioner in the writ petition and that the allegations of pollution and health hazard made by the petitioner were baseless.

 

Court’s Observations

The court couldn’t find any reason to disbelieve the stand of the Panchayat made in the counter affidavit ward number had been shown mistakenly as Ward No.II instead of Ward No.IV in the license issued to the sixth respondent during 2012 and the said ward number had been shown inadvertently in the licenses issued to the sixth respondent during 2015 and 2016 also.

 

The court was not impressed by the argument on a letter addressed by the Divisional Forest Officer, Kottayam to the Assistant District Industries Officer. The letter was only a No Objection Certificate of the Forest Department to enable the sixth respondent to obtain SSI registration for a furniture manufacturing unit. The said communication itself showed that the sixth respondent had not started the unit. If the sixth respondent had not started the unit at the time when the said communication was issued, there cannot be any inference at all based on the said document as submitted by the petitioner. In the circumstances, the court didn’t hesitate to hold that the premises in War No.IV and the premises in Ward No.XIV were the same. In other words, the petitioner was not entitled to any relief on that premise. The petitioner had no case that the industrial unit of the sixth respondent is not one established before 01.07.2011. 

 

The court also observed that the sixth respondent was not entitled to use machinery having a capacity of 5 HP in his industrial unit. The materials on record indicated that the sixth respondent was using machinery having a capacity of 5HP in his industrial unit. The Panchayat, in the circumstances, was obliged to ensure that the sixth respondent did not use machinery having a capacity of 5HP, without obtaining permission of the Panchayat under Section 233 of the Panchayat Raj Act.

 

Court’s Decision

The court had held that in terms of the order passed by the committee of the Panchayat, the sixth respondent was entitled to run the unit only between 9 am and 4 pm. The petitioner had pleaded that the sixth respondent was operating the unit throughout the day. As in the order that binds the sixth respondent, the Panchayat was obliged to ensure compliance of order also.

 

Thus, the writ petition was disposed of directing the second respondent to ensure, by appropriate means, that the sixth respondent complies with the order, and does not use machinery having a capacity of 5HP in his industrial unit, without obtaining permission of the Panchayat.

Sheena Shivaprasad v. Udayanapuram Grama Panchayat & Others 

CLICK HERE TO VIEW THE JUDGMENT

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