The petitioner is challenging Ext.P17 letter issued by the Secretary of the 2nd respondent Panchayat, intimating about the decision refusing permission for establishment of Granite quarry, for which the petitioner had submitted application on 20.01.2014. Inter alia, the petitioner seeks declaration that he is entitled for a 'deemed permit' under Rule 12(3)(c) of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (hereinafter referred as the Rules). 2. Contention of the petitioner is that, for the establishment of the quarry in question, he had obtained all requisite clearances/No-Objection Certificates from various authorities. Hence the decision of the 2nd respondent Panchayat in refusing permission for the reason that the functioning of the quarry will affect life and property of persons residing in the locality and will affect ecological and environmental situation, is absolutely illegal and erroneous. It is noticed that, against the decision taken by the 2nd respondent Panchayat, the petitioner has got an effective remedy of appeal before the Tribunal for Local Self Government institutions. Hence this writ petition filed without exhausting such statutory remedy cannot be entertained.
3. Another contention raised is regarding “deemed licence”. Rule 12 prescribes the procedure for submission of application for establishment of any factory, workshop or workplace wherein it is proposed to use steam power, water power or any other mechanical power or electricity or for installation of any machinery or manufacturing plant on any land, operated by steam power, water power or other power. Sub Rule (3) deals with the procedure for consideration of the application. It provides that the Village Panchayat shall, as soon as may be after receipt of the application, within 45 days in the case of obtaining No Objection Certificate from other agencies and within 30 days in other cases, either grant or refuse permission. Rule 12(3)(c) provides that where the application is not disposed of within the specified time, the licence shall be deemed to be issued. Contention of the petitioner is that, the impugned decision was taken by the 2nd respondent Panchayat only on 14.03.2014, ie: after 45 days of submission of the application. Therefore the petitioner is entitled to establish the quarry on the basis of the “deemed permission”.
4. Question arises as to whether the Panchayat is entitled to consider and to take a decision on the application for establishment, after the expiry of the period stipulated under the above said Rule. Learned counsel appearing for the 2nd respondent Panchayat had pointed out that the impugned decision was taken within a period of 60 days from the date of submission of the application, which is the period stipulated under Section 233 of the Kerela Panchayat Raj Act, 1994. Section 233 deals with the permission for construction of factories and installation of machinery. It stipulates that no person shall construct or establish any factory, workshop or workplace or install any machinery or manufacturing plant in any premises where it is proposed to employ steam power, water power or other mechanical power, without permission of the Village Panchayat and except in accordance with the conditions stipulated in such permission. Sub Section 3 of Section 233 provides that the Secretary of the Grama Panchayat shall submit report to the Village Panchayat after conducting an enquiry, as soon as may be after receipt of the application. The report should mention as to whether the permission applied for is objectionable by reason of density of population in the neighbourhood and the possibility of nuisance and pollution. The Village Panchayat should take a decision, either granting or refusing the permission, considering the application and the reports of the Secretary and also the report of such other authorities as specified, as expeditiously as possible, at any rate within 60 days.
5. Learned counsel for the 2nd respondent pointed out that, by virtue of provisions contained in Section 233 (3) of the Act the Village Panchayat is bound to take a decision only within 60 days on receipt of the application. It is pointed out that the impugned decision was taken within 60 days from the date of receipt of application and hence the petitioner's contention that he is entitled for 'deemed permission', cannot be sustained.
6. Section 254 of the Kerala Panchayat Raj Act deals with the power of the Government to make Rules to carry out all or any purpose of the Act. Sub Section (2) specifies in particular about the subject with respect to which the Government derives power to make Rules. Section 254(2) (XV) specifies that the Government is empowered to frame Rules as to the form and contents of the licences, permission and notices granted or issued under this Act, the manner of their issue or the method of their service and the modification, suspension or cancellation thereof. Evidently the Kerala Pachayat Raj Act (Issue of Licence to Dangerous and Offensive Trades and Factories) Rule is framed by virtue of power derived under Section 254 of the Kerala Panchayat Raj. Going by Section 254(2) (XV) the power is vested only to prescribe the form and contents of the permission to be issued under the Act and the manner and method of their issue and service. Section 233 is the relevant provision in the Kerala Panchayat Raj Act which deals with the grant of permission for establishment of the workplace or factory. When the said provision enables the Panchayat to deal with the application within 60 days, prescription in any Rules framed under Section 254 stipulating any shorter period cannot prevail. Hence it is to be held that the time limit stipulated under Section 233(3) will prevail over Rule 12(3)(c) of the Licencing Rules. Since the impugned decision is taken within the time limit stipulated in Section 233(3), contention of the petitioner that he is entitled for 'deemed permission', cannot be sustained.
7. In view of the findings arrived as above, this court is not proposing to decide on the question as to whether the Panchayat can consider and take a decision on the application even after the expiry of the time limit. A decision on that question is not warranted on the facts and issues involved in this case.
8. Under the above mentioned circumstances, the writ petition deserves no merit. However, liberty of the petitioner is reserved to challenge the impugned decision by approaching the statutory appellate authority. The writ petition is dismissed reserving such liberty.
Sd/-
C.K. ABDUL REHIM, JUDGE /true copy/ P. A. to Judge Pn