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The Judgment of the Court was delivered by

K.S Radhakrishnan, J.:— This Petition is filed by the Manjapra Grama Panchayat challenging outers dt 15.6.1995 passed by the Deputy Director of Panchayats, Ernakulam, and of the Government confirming the same vide order dt. 26.3.1996, directing the Panchayat to issue licence to the fifth respondent to start a metal crusher unit.

2. Fifth respondent is the owner of57. 275 cents of wet land in Sy. No. 359/1/1 of Manjapra Village. She had earlier applied for permission for installing a hollow block manufacturing unit vide application dt. 11.3.1993 Panchayat Committee as per resolution No. 7 dt. 16.3.1993 resolved to grant permission for installation of hollow block making unit by using 10 HP electric motor. Fifth respondent later attempted to instal a metal crusher unit along with hollow block unit in the same property. A mass petition dt 12.6.1993 signed by the people of the locality who are agriculturists was submitted to the Panchayat Their apprehension was that if permission is granted for starting a metal crusher unit, the same would adversely affect their paddy cultivation. It would create atmospheric and water pollution in that area. Justifying the apprehension of the public, an application dt. 22.4.1994 was submitted by the fifth respondent before the Panchayat on 16.5.1994 Application submitted by the fifth respondent was considered by the Panchayat Committee and the committee vide its resolution No. 9 dt. 18.6.1994 directed the Executive Officer to seek certain clarifications from the fifth respondent Explanation given by the fifth respondent was found to be not satisfactory. Panchayat then vide its resolution No. 27 dt. 2.8.1994 decided to reject the application of the fifth respondent It was felt, if permission is granted it will affect nearby bathing ghat water tank, pump house, paddy cultivation, and also will cause atmospheric and water pollution.

3. In the meanwhile, a neighbouring landowner preferred a complaint before the Revenue Divisional Officer, Fort Kochi against the unauthorised filling up of paddy field by the fifth respondent. The Complaint was forwarded to the Tahsildar, Aluva who after local inspection submitted are port to the Revenue Divisional Officer on27.6.1994 He has reported that installation of a crusher unit will affect the paddy cultivation. Revenue Divisional Officer also noticed the existence of a public pond and pump house, etc. He opined that if the paddy fields are filled up there will be possibility of water blocking and destruction of agriculture.

4. Fifth respondent in the meantime filed an application dated 28.3.1994 before the Pollution Control Board for a no objection certificate to set up a metal crusher unit for production of 2950 tonnes of metal and 50 tonnes of dust per month in Sy. No. 359/1 of Manjapra Village. Pollution Control Board however, issued Ext. P7 certificate dt. 20.10.1994 subject to certain conditions. On a request made by the fifth respondent before the District Medical Officer of Health, an inspection was conducted by the Deputy District Medical Officer of Health (B) and Technical Assistant Gr. I. On the basis of the said report, District Medical Officer of Health vide his letter dt. 20.2.1995 opined that there is no objection to issue of licence for setting up metal crusher unit from public health point of view, subject to certain terms and conditions.

5. After getting Exts. P7 and P8 certificates fifth respondent preferred an appeal before the second respondent Vice President of the Muralipadam Paddy Producers Committee objected to grant of permission for starting a metal crusher unit. Second respondent, however, allowed the appeal and directed the Panchayat to issue licence to the fifth respondent.

6. Aggrieved by the order of the second respondent, President of the Grama Panchayat filed a revision before the Government. Vice President of the Muralipadam Paddy Producers Committee also preferred a petition before the Government The Government, however, rejected the revision petition preferred by the Panchayat as well as the petition preferred by the Mualipadam Paddy Producers Committee vide Ext. P16 order dt 26.3.1996 Government ordered Panchayat being a statutory authority cannot be treated as an aggrieved party and therefore, the revision petition submitted by the Panchayat was not entertained.

7. Counsel for the petitioner contended Government has committed a grave error in not considering the Revision Petition submitted by the President of the Manjapra Panchayat Counsel submitted that the decision relied on by the Government in holding that Panchayat is not an aggrieved party was reversed by a Division Bench of this Court in Kaunagappally Grama Panchayat v. State of Kerala, 1996 (1) KLT 419. Division Bench rendered its judgment on 6.2.1996 However, the same was not taken note of by the Government while passing Ext P16 order on 26.3.1996 Counsel attacked the certificates issued by the Pollution Control Board and the District Medical Officer of Health. It was pointed out no proper enquiry was conducted with notice to Panchayat Counsel also submitted that Panchayat has got a legal duty under the Kerala Panchayat Raj Act, 1994, hereinafter referred to as the ‘Act’, to maintain well, bathing ghat, etc. Panchayat has also got legal obligation to consider the grievance of general public against water and air pollution. It was pointed out that if metal crusher unit is set up, it will cause inconvenience to the people of the locality who are mostly agriculturists.

8. Counsel appearing for the fifth respondent submitted granite metal is essential for construction activities and consequently for the progress of the country. It is also his case that there are sufficient powers under the Act and under the District Council Public Health Act to close down the unit, if it is causing nuisance to the people of the locality. With regard to depletion of the paddy field, it is the case of fifth respondent that it is the look out of the revenue authorities and not that of the Panchayat. It was pointed out Revenue Divisional Officer has already given sanction for converting the paddy field. Counsel contended that in view of S. 236(3) of the Act, permission sought for by the fifth respondent is deemed to have been granted on the expiry of one month from the date of receipt of her application. It is stated as per R. 12 of the Kerala Licensing (Dangerous and Offensive Trades and Factories) Rules, 1963 Panchayat is the original authority and if original authority's order is reversed by the appellate authority, original authority ceases to be a person aggrieved.

9. I heard counsel for the petitioner as well as learned counsel appearing for the fifth respondent at length.

10. Parliament enacted Constitution (Seventy-third) Amendment Act, 1992, to give effect to one of the directive principles of State policy, namely, Art. 40 of the Constitution which directs the State to organise Village Panchayats as units of self-government. After Constitution (Seventy-third) Amendment, States were required by the Central Government to take steps to make law or amend existing law suitably. State Government thought instead of making amendments to the existing Kerala Panchayats Act, it would be better to enact a new Panchayats Act incorporating the provisions in accordance with the Constitution (Seventy-third) Amendment Act, 1992. Accordingly State Legislature enacted the Act to replace the present enactment relating to Panchayats and District Councils by a comprehensive enactment, for securing a greater measure of participation of the people in planned development and in local governmental affairs, by constituting village, block and district Panchayats. It was also intended to endow such Panchayats with such powers and authority to enable them to function as institutions of self-government.

11. The new Act was enacted with the object of entrusting such Panchayats the preparation of plans and implementation of schemes for economic development and social justice including implementation of schemes in relation to matters listed in the Eleventh Schedule to the Constitution. The Act came into force on 23.4.1994 As per S. 166 of the Act, it shall be the duty of the Village Panchayat to meet the requirements of the Village Panchayat area in respect of matters enumerated in the Third Schedule. Maintenance of public tanks, digging of tube wells for drinking water, and wells for irrigation and water supply and maintenance, reclaiming of unhealthy localities and upkeep of environmental hygiene and creating awareness for the same, licensing of dangerous and offensive trades, control of unauthorised building constructions and land utilisation, providing washing ghats in rivers and tanks and providing separate ghats for bathing cattle, maintenance of water ways and public canals are some of the mandatory functions to be discharged by the village Panchayat. They are also bound to attend to the functions like, improvement of agriculture and establishment of model agricultural farms, improvement of the cultivation and distribution of vegetables fodder and medicinal plants, crop development programmes for optimum utilisation of land and increasing the production, management and proper use of water for irrigation, construction of field channels and field bothies with the co-operation of the fanners, licensing of small-scale industries and workshops, establishment and management of small-scale industrial estates, preservation and improvement of public health, etc. In other words, the Act has given considerable powers to the Panchayat to enable them to function as institutions of self-government.

12. In the instant case, application was preferred by the fifth respondent for the purpose of setting up a metal crusher unit and the same was objected to by general public. Permission was sought for setting up the metal crusher unit at Karingalikadu Padam. It is evident from the application submitted by the fifth respondent in the year 1993, the property was surrounded on the east by water channel and paddy field, south by paddy field, west by paddy field and north by Angamali Manjapra Road. In the application it was pointed out by the fifth respondent that there was no dwelling house within 200 metres. However, in Ext. P4 application submitted by the fifth respondent for the purpose of setting up the metal crusher unit, she has clealry given mis-description of the boundaries of the property, which is evident from the application itself. Ext. P4 application submitted by the fifth respondent was considered by the Panchayat taking into consideration various objections filed by the people of the locality, who are mostly agriculturists. Panchayat Committee found that the objections raised by the people of the locality are genuine. Committee passed a resolution No. 17 dt 2.8.1994 rejecting the request of the fifth respondent. The existence of the bathing ghat, lift irrigation pump house, pond, etc., and the possibility of atmospheric and water pollution, etc., were some of the reasons for rejecting the application. Panchayat also felt if the licence is granted it will affect the nearby paddy fields. Under the above mentioned circumstances, Panchayat felt that application could not be allowed.

13. Tahsildar, Aluva, has also reported on 27.6.1994 to the Sub-Collector, Fort Kochi, when he was directed to conduct an enquiry, that the said area is essentially a paddy field, and if metal crusher unit is installed, it will affect cultivation. Existence of pump house, public bathing ghat, etc., was also highlighted by the Tahsildar. It was also stated filling up of paddy fields would lead to blocking of water for irrigation. Large number of complaints have been received by the Pollution Control Board itself raising complaints against installation of metal crusher units in various places of Manjapra Panchayat. This was highlighted by the Pollution Control Board itself in Ext. P9 communication.

14. Pollution Control Board has issued Ext. P7 no objection certificate to the fifth respondent. Certificate issued by the Pollution Control Board cannot usurp the statutory duties and obligations of the Panchayat under the Act. It is seen that District Medical Officer of Health has also granted approval from the public health point of view for running a metal crusher unit on the application submitted by the fifth respondent, subject to certain conditions. If a no objection certificate is obtained from the Pollution Control Board and/or from the District Medical Officer of Health, does not mean that Panchayat should automatically give licence to an applicant. Even under the Kerala Panchayat Licensing of Dangerous and Offensive Trades and Factories Rules, 1963, while entertaining an application for establishment of factory, workplace, etc., the Panchayat need only consult and shall have due regard to the opinion of the District Medical Officer of Health or any authority authorised by him as per R. 12 of the said Rules. That does not mean that Panchayat should give licence automatically, as soon as a no objection certificate is obtained from the District Medical Officer of Health. Panchayat itself has got various duties and obligations under the Act.

15. The question whether if a metal crusher unit is set up it would affect maintenance of public tanks, whether it would affect washing ghats, tanks and also whether it would affect paddy fields nearby, etc. are all matters to be decided by the Panchayat. In other words, over and above the powers vested in the Pollution Control Board under Pollution Control laws, as well as the powers vested in the District Medical Officer of Health under the T.C Public Health Act, Panchayat itself has got statutory duties and obligations under the Act. The mere fact that District Medical Officer of Health and Pollution Control Board have issued no objection certificates does not mean that Panchayat should give licence to an applicant. In other words, Panchayat itself could independently consider as to whether by setting up a metal crusher unit within its area, it would affect the people of the locality. In other words, Panchayat has got such powers and duties to enable them to function as institutions of self-government.

16. It is unfortunate the Pollution Control Board has issued no objection certificate like Ext P7. It is evident there has been total lack of application of mind by the Pollution Control Board when they issued Ext. P7 no objection certificate. I directed counsel appearing for Pollution Control Board to make available the files. I have perused the files. It is evident from the note file that the Officer who inspected the area has pointed out that the area is surrounded by paddy fields, and there is no residential building within 100 metres. It is, therefore, clear from the files the area where the metal crusher unit is sought to be set up is surrounded by paddy fields. If it is surrounded by paddy fields, there cannot be any question of people residing in the nearby areas. In other words, if a metal crusher unit is set up, it will affect the paddy cultivation. It was pointed out before conducting inspection, Board did not give notice to the Panchayat or to the people of the locality or to the neighbouring land owner.

17. District Medical Officer of Health has also issued a communication to the District Industries Centre on the application submitted by the fifth respondent from the public health point of view. What are the factors which weighed with the District Medical Officer of Health for sending the said letter is not evident from Ext. P8. It is also not seen as to whether the District Medical Officer has consulted the Panchayat or the people of the locality or the persons who own paddy fields in and near the place where the metal crusher unit is sought to be set up. As per S. 166(1) of the Act, it shall be the duty of village Panchayat to meet the requirements of the village panchayat area in respect of the matters enumerated in the Third Schedule. Third Schedule also deals with public health, sanitation, prevention and improvement of public health, etc. Panchayat has also got statutory duty and obligation to see that people of the locality are not affected by setting up of a metal crusher unit Therefore, the mere fact that District Medical Officer has issued a certificate stating that he has no objection does not mean that Panchayat is bound to give licence. In the instant case, I have no doubt in my mind that there has been no application of mind either by the Pollution Control Board or District Medical Officer of Health in granting no objection certificate to the fifth respondent.

18. It is on the basis of the certificates issued by the Pollution Control Board and District Medical Officer of Health that the Deputy Director of Panchayats issued Ext. P12 order directing the Panchayat to issue licence to the fifth respondent for setting up a metal crashcr unit. However, it is s°een the very same Officer has rejected two similar applications for setting up metal crusher units in Manjapra Panchayat vide Exts. P13 and P13(a) on the ground that there is no reason to interfere with the orders of the Panchayat, rejecting similar applications.

19. It is seen from Ext. P13 and P13(a) that 11 new applications have been rejected by the Panchayat committee. It is at this juncture that two applicants namely, A.G Pappachan and Abdul Khader submitted applications before the Panchayat. Panchayat rejected those two applications, against which they went in appeal. The same Deputy Director rejected the appeals holding that there is no reason to interfere with the orders passed by the Panchayat. It is difficult to believe how the same Officer took a different stand in the case of the fifth respondent. Complaint raised by general public against setting up of metal crusher unit in the Manjapra Panchayat was one of the main reasons that weighed with the Deputy Director in not allowing the appeals filed by the above mentioned two persons. In other words, the fact that if a metal crusher unit is set up, it will affect the paddy fields, was found favour by the Deputy Director in the case of other two persons, but not in the case of the fifth respondent.

20. It is the case of the fifth respondent that since the land was already converted for setting up a hollow brick unit, she has got a legal right to set up the metal crusher unit in that place. It is also stated that depletion of paddy fields is not the concern of the Panchayat According to counsel, it is the concern of the Revenue Divisional Officer under the Kerala Land Utilisation Order. Revenue Divisional Officer has already given sanction for converting the paddy fields. The revision petition filed by the Panchayat was rejected by the Board of Revenue. However, challenging the decision of the Board of Revenue, O.P No. 5699 of 1996 is filed and the same is pending in this Court.

21. The contention of counsel of the fifth respondent that Panchayat has no role to play in the matter of conversion of paddy fields cannot be sustained. It is evident from S. 166(1) of the Act, it is the mandatory duty of every village Panchayat to control unauthorised building construction and land utilisation. Therefore, the Revenue Divisional Officer has a duty to consult the Panchayat. Therefore, the mere fact that Revenue Divisional Officer has given permission does not mean that Panchayat has no legal right to object to the conversion of paddy field.

22. On a perusal of Ext. P12 and P16, 1 am of the view that none of the authorities has properly considered various aspects raised by the Panchayat. I find no reason to think that Panchayat has acted arbitrarily or in violation of provisions of the Act. Ext. P4 was received by the office of the Panchayat on 16.5.1994 along with forwarding letter corrected as 22.4.1994 Again for Ext. R. 5(b) notice dt. 19.7.1994, fifth respondent gave a reply dt. 19.7.1994 Even otherwise S. 236(3) can only be a directory provision. There is sufficient material in this case to show that Panchayat has acted in accordance with law and in the best interests of persons in the locality, who are mostly agriculturists. There is no case for the fifth respondent that Panchayat has acted arbitrarily or mala fide. Government while issuing Ext. P16 also proceeded on the basis that Panchayat is not an aggrieved party. It is too late in the day to say that Panchayat is not an aggrieved party, especially in the light of the Act, which gives considerable powers to the local authorities to function as institutions of self-government. This court in Karunagappally Granin Panchayat v. State of Kerala, 1996 (1) KLT 419 has held that legal concept envisaged in S. 5 of the Act makes the position clear that Panchayat is a body corporate. It can sue or be sued. In that position Panchayat cannot be denuded of the right to move under Art. 226 of the Constitution when any of its legal right is infringed by the authorities including the Government. Therefore, if an order of the Deputy Director of Panchayats is adverse to the Panchayat, it is always open to it to attack the same before the Government or even before this Court. Therefore, the finding of the Government that Panchayat is not an aggrieved party cannot be sustained. Another contention raised by counsel for the 5th respondent is that since the resolution was passed by the Panchayat Committee, President cannot file a revision before the Government. This contention cannot also be sustained, since the revision is filed by the President, A.K Joseph. In the Petition, he has highlighted not only the grievance of the Panchayat but also the grievance of the general public. Under S. 276(3) of the Act, Government may in their discretion at any time either suo motu or on application call for and examine the record of any order passed or proceedings recorded under the provisions of the Act by the superior officer authorised by the Government unde sub-s. (1) of S. 275 or any other authority or officer for the purpose of satisfying themselves as to the legality of such order, or as to regularity of such proceedings and pass such order in references thereto, as they think fit. Therefore, the contention rarised by counsel for the fifth respondent cannot be sustained.

23. On the above mentioned reasons, Exts. P12 and P16 orders cannot be sustained. I quash the same. Original Petition is allowed.