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Judgment
A.M. Shaffique, J.—1. These appeals have been filed against a common judgment dated 19.11.2015 in W.P.(C). Nos. 17182, 18819 & 22753 of 2015.
The above writ petitions relates to the functioning of a flour mill being conducted by the first petitioner in W.P.(C). No. 18819 of 2015. These writ appeals are filed by a neighbour of the petitioners in W.P.(C). No. 18819 of 2015 who complains about the illegality and irregularity in permitting the conduct of the flour mill.
Brief facts which has given rise to these appeals are as under:
"W.P.(C). No. 17182 of 2015 was filed by the appellant seeking for a direction to the Panchayat, namely the Kumbalam Grama Panchayat to take necessary action to stop the illegal functioning of the flour mill conducted by the third respondent, Smt. T.V. Usha. It is inter alia contended that the flour mill is being operated despite the expiry of the licence granted by the Panchayat in terms of Section 232 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as ''the Act'' for short). It is stated that the building was constructed by the second respondent Smt. Jameela violating the provisions of the Building Rules and even the provisions of Coastal Zone Regulations. Though the Panchayat has given a temporary building number for the temporary occupation of the second respondent subject to final orders, the third respondent took on rent the said building and is conducting a flour mill. Though the Panchayat initially granted a licence in favour of the third respondent, the same was subsequently suspended. The matter was taken up by the third respondent before the Tribunal and the Tribunal had set aside the order. In the meantime, the licence had expired and application was filed for renewal of licence. But the licence was not renewed by the Panchayat, however the third respondent continued to operate the flour mill and in such circumstance, though the petitioner requested the Panchayat to take necessary steps to stop the functioning of the flour mill, no action was taken and accordingly, the petitioner filed the writ petition."
In W.P.(C). No. 22753 of 2015 against which W.A. No. 287 of 2016 has been filed, the petitioner in W.P.(C). No. 17182 of 2015 is the 4th respondent. The said writ petition has been filed by Smt. T.V. Usha and Smt. Jameela seeking to quash Ext. P14 dated 23.7.2015, an order issued by the Assistant Engineer, Kerala State Electricity Board, by which the power connection to the flour mill has been disconnected. Petitioners contended that the aforesaid action of the K.S.E.B was absolutely baseless. It is inter alia contended that the 1st petitioner was running the flour mill in Building No. 1/138-A of the Panchayat. The building was owned by the second petitioner. It is stated that the flour mill was conducted since 2000 in a nearby building and it was shifted to the present building in the year 2004. The licence was renewed periodically till 2013-2014. However, on account of dispute with the petitioner in W.P.(C). No. 17182 of 2015 the Panchayat had directed closure of the flour mill and an appeal was filed before the Tribunal for Local Self Government Institutions, by which, the order issued by the Panchayat has been set aside. It is stated that while an application for renewal of licence is pending consideration before the Panchayat, at the instance of the petitioner in W.P.(C). No. 17182 of 2015, the Board has issued the said order. The petitioner contended that the aforesaid action of the Board was arbitrary and illegal.
W.P.(C). No. 18819 of 2015 has been filed by the petitioners in W.P.(C). No. 22753 of 2015 in which the appellant herein is the fourth respondent. The writ petition has been filed seeking to quash Ext. P13 order issued by the Panchayat by which direction was issued to shut down the flour mill on the ground that it was functioning without proper licence. This order came to be passed by virtue of the direction issued by this Court in W.P.(C). No. 17182 of 2015. During the pendency of the writ petition, the petitioners amended writ petition challenging Ext. P20. Ext. P20 is another order issued by the Panchayat on 29.6.2015 by which decision was taken after hearing the parties as per the directions issued by this Court in W.P.(C). No. 14664 of 2015 and W.P.(C). No. 18819 of 2015, whereby it was observed that the licence cannot be issued in terms of Section 235AA(5) the Act.
The learned Single Judge after evaluating the respective contentions by either parties formed an opinion that, since the petitioners in W.P.(C). No. 22753 of 2015 and W.P.(C). No. 18819 of 2015 were conducting the flour mill with valid licence since 2000 and in the present building since 2004, there was no reason to take a contention that they were unauthorisedly carrying on the functioning of the flour mill. The learned Single Judge further considered the validity of Ext. P20 in terms of Section 235AA of the Act, and held that since the parties were operating the flour mill even prior to said provision coming into force, the said provision cannot be invoked and therefore the following direction has been issued:
"16. xxxx
In the result:
� W.P.(C). No. 17182 of 2015 is dismissed.
� W.P(C) No. 18819 of 2015 is allowed. Ext. P20 in that writ petition is quashed. The second respondent is directed to forthwith consider Ext. P12 application for renewal of licence in the light of Ext. P8 order issued by the Tribunal and to grant licence within two weeks from the date of receipt of a copy of this judgment.
� In the light of the direction in W.P(C) No. 18819 of 2015, W.P (C) No. 22753 of 2015 is allowed. Ext. P14 issued by the second respondent electricity board is quashed."
The learned counsel for appellant submits that the judgment of the learned Single Judge requires to be set aside on account of various reasons. It is contended that Section 235AA of the Act clearly applied to the factual situation in the case. Though it could be stated that the said provision has no retrospective application, when an application is submitted for a fresh licence the said provision applies and therefore the learned Single Judge was not justified in forming an opinion that the said provision has no application. That apart, it is contended that Ext. P20 is an appealable order and therefore the learned Single Judge should not have considered the validity of Ext. P20 in the writ petition. Learned counsel also relied on the judgment of this Court in Thressiamma v. Union of India (1999 (2) KLT 683) to contend that when there is an efficacious alternative remedy it is not open for the petitioners to challenge the said order in a writ petition under Article 226 of the Constitution of India. It is argued that the flour mill is being conducted in an unauthorised building and when the building is unauthorised, there is no reason why the Panchayat should be directed to grant licence. It is also argued that, even assuming that the impugned orders are set aside, there is no reason for the learned Single Judge to direct grant of licence, which is clearly within the discretion of the Panchayat in terms of Section 232 of the Act.
Having regard to the aforesaid submission and having perused the records we do not find any error in the judgment of the learned Single Judge. Learned Single Judge had clearly come to a conclusion that the flour mill was being operated by the Smt. T.V. Usha since 2000 in another building and was shifted to the present building in 2004. The Panchayat had without any restriction granted licence in terms of Section 232 of the Act which was continued upto 2013. It was only at the instance of the appellant that subsequent enquiry was conducted by the Panchayat and the restrictive orders have been issued, which resulted in the orders impugned in the writ petitions.
Having regard to the fact that the unit was being operated for quite a long time, and the Panchayat does not have a case that it has caused any nuisance to neighbours, there is no reason for the Panchayat to have invoked Section 235AA of the Act, for rejecting licence. In fact the learned Single Judge had clearly observed and as evident from Ext. P12 that the application filed was for renewal of licence and cannot be treated as application for fresh licence, though it may be correct that the Panchayat had not renewed the licence since 2013. But the fact remains that the matter was pending consideration before various authorities including this Court in appropriate proceedings. Further the learned Single Judge had also clearly indicated that Section 235AA of the Act had come into operation only in the year 2009, which provision could not have been invoked for the purpose of renewal of a licence for which appropriate application has been given by petitioners in W.P.(C). No. 22753 of 2015. Further Ext. P20 is an order passed by the Panchayat as per the directions issued by this Court during the pendency of the case. Under such circumstance, it was well within jurisdiction of this Court to have entertained the challenge to Ext. P20 as it was passed during the pendency of the case, despite existence of an alternate remedy.
In the said circumstance we do not find any ground to interfere with the judgment of the learned Single Judge and the learned Single Judge is justified in issuing the directions as stated above. In the result we don''t find any ground to interfere with the judgment. The writ appeals are dismissed.