Kerala High Court
Woodon Mdf Panels Private Limited vs Velliyamattom Grama Panchayath on 4 March, 2022
Author: T.R. Ravi
Bench: T.R.Ravi
W.P.(C)Nos.18105 of 2020
& 9546 of 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 4TH DAY OF MARCH, 2022 / 13TH PHALGUNA, 1943
WP(C) NO. 18105 OF 2020
PETITIONER:
WOODON MDF PANELS PRIVATE LIMITED
PPM HAJI TOWER, AM ROAD, NELLIKUZHY P. O.,
KOTHAMANGALAM, KERALA - 686 691., REPRESENTED BY
ITS MANAGING DIRECTOR, SHRI PAREETH K. V.
BY ADVS.
SRI JOJI GEORGE JACOB
SRI BABY KURIAKOSE
SRI S.SREEKUMAR (SR.)
SRI P.MARTIN JOSE
RESPONDENTS:
1 VELLIYAMATTOM GRAMA PANCHAYATH
PANNIMATTOM P. O., THODUPUZHA,
IDUKKI - 685 588.
2 SECRETARY
VELLIYAMATTOM GRAMA PANCHAYATH, PANNIMATTOM P. O.,
THODUPUZHA, IDUKKI - 685 588.
3 VADAKKANAR NEERTHADA SAMRAKSHANA SAMITHI
PANNIMATTOM P.O,THODUPUZHA REPRESENTED BY ITS VICE
PRESIDENT JACOB SEBASTIAN,
S/O.DEVASSIA, AGED 53 YEARS,
KATTUPARA KUZHIYIL HOUSE, KOOVAKANDOM P.O,
POOMALA THODUPUZHA, IDUKKI-685588.
4 KERALA STATE POLLUTION CONTROL BOARD,
ESSAREN BUILDING,ANAKKODU JUNCTION,
THODUPUZHA,IDUKKI-685584
REP.BY CHIEF ENVIRONMENTAL ENGINEER
R1 & R2 BY SMT.DAISY A.PHILIPOSE
SRI.JAI GEORGE
R3 BY SRI T.V.GEORGE
R4 BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.12.2021, ALONG WITH WP(C).9546/2021, THE COURT ON
04.03.2022 DELIVERED THE FOLLOWING:
W.P.(C)Nos.18105 of 2020
& 9546 of 2021 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 4TH DAY OF MARCH, 2022 / 13TH PHALGUNA, 1943
WP(C) NO. 9546 OF 2021
PETITIONERS:
1 SOBY THOMAS
AGED 44 YEARS
S/O. THOMAS KURIAN,
CHIRAPURATH HOUSE,
ELAMDESOM P.O.
IDUKKI DISTRICT, 685 588.
2 K.M. VARGHESE,S/O. MATHAI MARKOSE,
KAKKATHURUTHEL HOUSE, PANNIMATTOM P.O.,
IDUKKI DISTRICT, 685 588.
3 SANEESH JACOB,S/O. JACOB LUKOSE,
KARINTHOLIL HOUSE, ELAMDESOM P.O.
IDUKKI DISTRICT, 685 588.
4 JAMES ABRAHAM,S/O. ABRAHAM CHACKO,
PAMPARA HOUSE, KALAYANTHANI P.O.
VETTIMATTOM,IDUKKI DISTRICT.
5 ANIL KUMAR A.N.,
S/O. NAYARANANA NAIR, ARACKAL HOUSE,
VELLIYAMATTOM P.O. AMBALAPPADY,
IDUKKI DISTRICT, 685 588.
6 ANISH.P.SEBASTIAN,
AGED 44 YEARS,S/O. DEVASIA JOSEPH,
PERUMBRAYIL HOUSE,PANNIMATTOM P.O.
IDUKKI DISTRICT, 685 588.
7 JOSE THOMAS OSB,S/O.V.V. THOMAS,
FR. SUPERIOR ST.
EPHREM BENEDICAT MONASTRY, ELAMDESOM P.O.
IDUKKI DISTRICT, 685 588.
BY ADV SRI D.ANILKUMAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
W.P.(C)Nos.18105 of 2020
& 9546 of 2021 3
2 DISTRICT COLLECTOR,
IDUKKI, CIVIL STATION,
IDUKKI DISTRICT, 685 601.
3 VELLIYAMATAM GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, VELLIYAMATTAM P.O.
IDUKKI DISTRICT, 685 588.
4 KERALA STATE POLLLUTION CONTROL BOARD,
REPRESENTED BY ITS CHAIRMAN, PATTOM P.O.
THIRUVANANTHAPURAM 695 001.
5 THE DISTRICT ELECTRICAL INSPECTOR,
KERALA STATE ELECTRICITY BOARD,
PALATTUKUNNEL BUILDING, MOOLAMATTOM P.O.
IDUKKI DISTRICT, 685 589.
6 WOODON MDF PANEL PRIVATE LIMITED,
111/243B, PPM HAJI TOWER, AM ROAD,
NELLIKKUZHI PANCHAYATH, ERMALLOOR,
ERNAKULAM, 686 692 REPRESENTED BY ITS MANAGING
DIRECTOR.
7 WOODON STAR PARTICLE BOARD PRIVATE LIMITED,
REPRESENTED BY MANGING DIRECTOR, 111/243B,
PPM HAJI TOWER AM ROAD, NELLIKKUZHI PACHAYATH,
ERMALLOOR, ERNAKULAM 686 692.
8 ADDL.R8. THE CENTRAL POLLUTION CONTROL BOARD,
ADDITIONAL R8 IS SUO MOTU IMPLEADED AS PER THE
ORDER DATED 21.12.2021 IN WP(C) 9546/2021
BY ADVS.SHRI.N.MANOJ KUMAR, STATE ATTORNEY
SRI.P.G.PRAMOD,
SRI VIPIN NARAYAN, GOVERNMENT PLEADER
SMT.DAISY A.PHILIPOSE
SRI P.PRIJITH
S.SREEKUMAR (SR.)
SRI P.MARTIN JOSE
SRI THOMAS P.KURUVILLA
SRI AJAY BEN JOSE
SRI MANJUNATH MENON
SRI SACHIN JACOB AMBAT
SRI R.GITHESH
SMT.HANI P.NAIR
SRI HARIKRISHNAN S.
MS.ANNA LINDA V.J
SRI JAI GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 22.12.2021, ALONG WITH WP(C).18105/2020, THE
COURT ON 4.3.2022 DELIVERED THE FOLLOWING:
W.P.(C)Nos.18105 of 2020
& 9546 of 2021 4
T.R. RAVI, J.
--------------------------------------------
W.P.(C)Nos.18105 of 2020 & 9546 of 2021
--------------------------------------------
Dated this the 4th day of March, 2022
JUDGMENT
These two writ petitions are intrinsically connected and hence they are being heard and disposed of together. The facts of the two writ petitions are as follows:
W.P.(C)Nos.18105 of 2020
2. The petitioner is a Company which proposes to establish a particle board manufacturing unit in the 1 st respondent Panchayat. On 17.8.2019, they preferred an application under Section 233 of the Kerala Panchayat Raj Act, 1994 seeking permission for construction of factory and installation of machineries, through the Sanketham e-portal. Hard copy of the application was submitted on 24.8.2019. When no action was taken on the applications, the petitioner submitted a letter on 17.10.2019 before the 2nd respondent claiming that they are entitled to deemed permit under Section 233 (6) of the Kerala Panchayat Raj Act. It appears that the 1 st respondent had considered the application on 30.9.2019 and on that basis, the Secretary and 6 members of the Panchayat Committee had visited W.P.(C)Nos.18105 of 2020 & 9546 of 2021 5 the site for the proposed industry on 11.10.2019 and prepared a report. Thereafter, it appears that meetings were held on 17.10.2019 and 22.10.2019. Finally, the petitioner's application was rejected as per the decision taken on 22.10.2019, the minutes of which has been produced as Ext.P4. The reasons stated for rejection are as follows:
"(i) No infrastructure for the operation of 4202.413 HP motor has been arranged.
(ii) Absence of the report of the Chief Town Planner.
(iii) Absence of the report of the Pollution Control Board.
(iv) Absence of the report of the District Medical Officer.
(v) Absence of the report of the Fire and Rescue Services.
(vi) Formaldehyde contained in Amino Resin as mentioned in the application will cause cancer.
(vii) Glue making process will cause various ailment and will lead to environment pollution.
(viii) As the Company is proposed to commence its function on the banks of the Vadakkanar river, there is chance of the river getting polluted.
(ix) Assistant Executive Engineer of the MVIP has raised concern that if the river gets polluted that may subsequently cause contamination to the water body in Malankara reservoir.
(x) Identical concern as raised by the Assistant Executive Engineer MVIP were raised by the public and various political parties.
3. In the same meeting referred above, the 1 st respondent has also considered the claim of the petitioner that they are W.P.(C)Nos.18105 of 2020 & 9546 of 2021 6 entitled to deemed permit. The said claim was also rejected as per Ext.P5 stating that there were 15 public holidays since the submission of the application for installation permit on 6.9.2019 and that on 30.9.2019 and 17.10.2019, the Committee had considered the application and initiated proceedings on the same. For the above reasons, it was concluded that the benefit of Section 233(6) of the Kerala Panchayat Raj Act will not be available to the petitioner. The petitioner was informed of the decisions of the Panchayat as per Ext.P6 dated 25.10.2019.
4. The petitioner filed the above writ petition seeking to call for the records leading to Ext.P4 minutes of the 1 st respondent rejecting Ext.P1 application submitted by the petitioner and to quash the same. There is a further prayer to quash Ext.P5 minutes declining deemed permit to the petitioner and the petitioner also prays for a declaration that the petitioner is eligible for deemed permit under Section 233(6) of the Kerala Panchayat Raj Act, 1994.
5. On 21.12.2020, this Court after recording the submission that the defects pointed out in the application submitted by the petitioner has been cured, directed the Panchayat to consider the application and pass orders within three weeks. Thereafter, on 13.1.2021, the Panchayat considered the W.P.(C)Nos.18105 of 2020 & 9546 of 2021 7 application. The proceedings of the meeting would show that the Secretary had opined that in the light of the fact that the petitioner has obtained all necessary licenses, the Company can be granted installation permit. It would appear from the proceedings that the Panchayat noticed that within 2 KMs of the proposed factory, there are 3 schools, 2 Anganwadis, 1 community Health Centre, several residential houses and some Government offices. It was further noticed that the proposed factory is very near the main drinking water source of the Panchayat, i.e., Vadakkanar. An apprehension was expressed in the meeting that the factory may pollute the drinking water source. Finally, it was decided that the Panchayat should obtain a detailed project report from the petitioner and to constitute an Expert Committee consisting of the President, the Vice President, an A Grade Chemist with Government approval, the District Medical Officer and an Officer at the State Level of the Pollution Control Board to study the project and thereafter decide on the grant of the installation permit. The decision of the Panchayat has been produced as Ext.P7. The petitioner thereafter received a communication dated 1.2.2021 which has been produced as Ext.P8 forwarding the minutes of the meeting of the Panchayat Committee held on 28.1.2021. Ext.P8 would show that the Panchayat had sought a report from the Tahsildar, Thodupuzha W.P.(C)Nos.18105 of 2020 & 9546 of 2021 8 on the legality of issuing installation permit, since the title deed of the petitioner shows the land as Pandaravakapattom thottam'. A doubt seems to have been expressed that the property is classified as a plantation and the Kerala Land Reforms Act which provides exemption for plantations, does not permit the exempted land to be utilised for any other purposes. Another reason stated in Exts.P7 and P8 is that the operation of the factory can cause pollution. It is admitted that the petitioner has obtained consent to establish from the 4th respondent, necessary permission from the Director, Factories and Boilers, clearance for fire safety from the Regional Fire Officer, Fire and Rescue Services, Ernakulam and necessary sanction from the Town Planner, Idukki. According to the petitioner, the factory will not have any effluents neither liquid nor gas, to pollute the atmosphere. It is also submitted that the Pollution Control Board has classified the Unit in the 'Orange Category'. The petitioner hence prays to quash Exts.P7 and P8 decisions of the Panchayat also which were issued pending the writ petition.
W.P.(C)No.9546 of 2021
6. W.P.(C)No.9546 of 2021 has been filed by persons who are residents of the Panchayat who claim that the establishment of the factory is likely to cause serious issues of pollution in the area. W.P.(C)Nos.18105 of 2020 & 9546 of 2021 9 The main grievance appears to be that the raw materials that will be used on a daily basis in the factory, which comprise of raw rubber wood trunks, limp, saw dust, UF resin, phenolic formaldehyde resin, melamine formaldehyde resin, hardener, emulsions, hexamethylenetramine ammonia solution, etc. and the nature of the process which involves the breaking down of the hard wood or soft wood residuals into wood fibres and combining them with resin binder and forming it into panels by applying high temperature and pressure will lead to emission of toxic gases into the surroundings. Objection is taken particularly to the use of formaldehyde which are excellent binding agents, and it is submitted that continuous long term exposure to formaldehyde can cause headache, burning sensation in the throat, difficulty in breathing and trigger or aggravate asthma symptoms. It is also submitted that it is a probable human carcinogen. It is submitted that the formaldehyde and melamine resin are equally bad if the levels of emissions are not within the limits. The petitioners submit that the area is a densely populated area with the river flowing on the eastern boundary of the proposed industrial unit and there are chances of the water in the river becoming contaminated. It is pointed out that the Assistant Executive Engineer, Muvattupuzha Valley Irrigation Project, had written to W.P.(C)Nos.18105 of 2020 & 9546 of 2021 10 the Secretary of the Grama Panchayat, stating that permission to operate the industrial unit should be given only after conducting studies on the issue. Yet another aspect pointed out is that as per the consent to establish granted by the State Pollution Control Board, a smokestack having height of 30 Metres must be provided to emit the smoke. It is submitted that the petitioners are residing uphill and the polluted air, smoke, dust particles, etc. directly come to the level heights of the houses of the petitioners and therefore they are directly going to be adversely affected by the operation of the industry. The petitioners also pointed out that that area was originally a plantation which got fragmented by partition among the legal heirs and that the lands have been levelled and the trees were removed for the purpose of developing the plot. The petitioners submit that Section 233 of the Kerala Panchayat Raj Act has been amended by the Kerala Investment, Promotion and Facilitation Act, 2018, whereby the power to refuse licence has been taken away. It is contended that the said amendment is illegal and unconstitutional, and it violates Articles 14 and 21 of the Constitution of India. Section 22 of the Air (Prevention and Control of Pollution) Act is referred to, to submit that no person operating any industrial plant, in any air pollution control area shall discharge or cause or permit to be discharged the emission of any W.P.(C)Nos.18105 of 2020 & 9546 of 2021 11 air pollutant in excess of the standards laid down by the State Board under Section 17(1)(g). It is pointed out that by SRO No.1831/1993 dated 26.11.1993, the entire State of Kerala has been declared as an air pollution control area and therefore there is a requirement that the Pollution Control Board declares the standards of emission of formaldehyde and dust particles, so that the issue can be tested with respect to the factory in question. The contention is that in the absence of such standards being prescribed, no consent can be granted to operate an industry.
7. After noticing the contentions of either parties, on 23.11.2021, this Court directed the 4 th respondent Pollution Control Board to depute an Officer who is familiar with the working of such industry and submit a report regarding the aspects and apprehensions pointed out by the Panchayat as well as the petitioners in W.P.(C)No.9546 of 2021. Thereafter on 21.12.2021, after noticing the submission of the Standing Counsel for the Kerala State Pollution Control Board that at present there are no standards prescribed regarding the emission of formaldehyde resin, this Court directed the Central Pollution Control Board to be impleaded as an additional respondent. On 19.7.2021, the Pollution Control Board has submitted a report. It is stated in the report that the distance criteria which is to be followed in the case W.P.(C)Nos.18105 of 2020 & 9546 of 2021 12 of plywoods/particle board manufacturing units is 50 Metres from the nearest residence and a minimum set back of 25 Metres from all sides. It is pointed out that as per the consent application and the document produced, the raw materials proposed to be used as well as the process has been clearly stated. It is stated that the only possible chance of pollution is air pollution and for that purpose, a 30 Metre height chimney with water scrubber for thermic fluid heater and hot air generator has been proposed. Any water pollution is sought to be abated by installation of a sewage treatment plant and even in case of the said plant, the main effluent generation will be domestic effluent from canteen and employees. It is stated that an inspection was conducted on 23.11.2019 by the Board officials, when the construction work has not commenced. It is stated that the nearest residence is more than 50 Metres away from the proposed building and 25 Metres set back is available on all directions. It is stated that since the Board is satisfied with the distance criteria, the consent to establish was granted. Thereafter based on the directions issued by this Court on 23.11.2021, a report has been submitted by the Environmental Engineer, Kerala State Pollution Control Board, District Office, Idukki. Along with the report, Annexure R4(a) circular has been produced to show the requirement as far as distance is concerned. W.P.(C)Nos.18105 of 2020 & 9546 of 2021 13 The consent to establish has been produced as Annexure R4(b). It is stated that the Environmental Engineer, District Office-II inspected the site on 1.12.2021. The conclusions of the inspection have been stated in the report. It is stated that the major pollutants from a particle manufacturing company are particulate matter generated during chipping, shaving, screening, refining of particles and from the cutting, trimming and polishing of the finished products and particulate matter in flue gas from thermic fluid heater and hot air generator is also a source of pollution. It is stated that bag houses and cyclones of centralised dust collection system in screening and refining area and dust collectors with fabric filters provided in trimming and sanding area are adequate for controlling air pollution problems in these areas. It is further stated that mechanical dust collectors, cyclones, waterbed or water scrubber proposed in flue gas emission are also adequate to contain the particulate matter pollution. The report specifically says that the apprehension that resins used for the manufacturing process, if they escape, will cause health problems is not correct. It is stated that since the preparation of resins, chemicals and additives is done in closed system and blending of resins, particles and other ingredients are done in a closed system with controlled automatic injection, the chances of escaping of resin and other W.P.(C)Nos.18105 of 2020 & 9546 of 2021 14 additives into atmosphere is also very low. It is stated that since pre-pressing is done before hydraulic pressing, chances of emissions from hot press is also very low. It is further stated that the chimney of 30 Metre height above the ground level proposed for thermic fluid heater and hot air generator are adequate for the emissions and complies with the specifications of the Central Pollution Control Board for boilers. It is stated that the manufacturing process does not generate trade effluent and hence chances of water bodies being polluted with wastewater from the industry is also very low. It is further stated that if all raw materials and other solid wastes generated in the industry including boiler ash are kept in enclosed building with proper roofing and concreted or tiled flooring, there are no chances of discharge of any waste to the nearby land or water body. It is observed that domestic wastewater generation will be around 4600 litres per day and a proposal for a sewage treatment plant of 5 KLD submitted by the proponent including preliminary, primary, secondary and tertiary treatment units, will be adequate for achieving the treated water standards for the domestic effluent.
8. The Senior counsel appearing for the petitioner in W.P. (C)No.18105 of 2020 submitted the industry is only at the installation stage and has not started functioning and hence it W.P.(C)Nos.18105 of 2020 & 9546 of 2021 15 cannot be ascertained whether the industry is likely to cause any pollution at all, as apprehended by the respondents. That being the case, it is submitted that it is not necessary to go into those issues at this stage and all that need be gone into is whether the Panchayat was liable to grant the licence which had been applied for. Based on the report of the Pollution Control Board, the Senior Counsel submits that the industry will not lead to any pollution, if it functions in the manner which is detailed in the report and in accordance with the process that has been explained in the application as well. It is further submitted that there are sufficient provisions in the Panchayat Raj Act to take care of situations where, during the functioning of the industry, it creates pollution or other nuisances. Section 233A of the Act is referred to. Regarding the contention that the industry cannot be set up in a land which was a plantation exempted under the Kerala Land Reforms Act, it is submitted that the question is no longer res integra. This Court has held that merely because an exempted land was used for other purposes, the action cannot be termed illegal, and the only consequence will be that that the exemption granted will be lost and the extent of land used for other purposes will also have to be added to the total extent of land of the declarant under the Kerala Land Reforms Act and the area to be surrendered as excess land W.P.(C)Nos.18105 of 2020 & 9546 of 2021 16 will have to be reworked.
9. Shri D. Anilkumar appearing for the petitioners in W.P(C)No.9546 of 2021 submits that there is no denial that the property was initially a plantation. It is submitted that under Chapter III of the Kerala Land Reforms Act, every person who holds land in excess of the ceiling area is to submit a declaration, based on which the excess land that is to be surrendered to the Government will have to be worked out. It is submitted that in the case of plantations, there can be situations where a declaration is not submitted by the owner, since the entire land held under plantation is in the exempted category and there will not be any excess lands at all. The counsel contends that in such cases there may not even be any ceiling proceedings and the absence of ceiling proceedings cannot be the basis of deciding whether the land is exempted land under the Kerala Land Reforms Act. It is further submitted that there is nothing to show that a land which was earlier plantation is not the area where the proposed building of the factory is to be constructed. The counsel referred to the Environment Impact Assessment Notification, 2006 issued by the Ministry of Environment, Forest and Climate Change, regarding environmental clearance and submits that buildings which are exceeding 20000M2 need environmental clearance. It is pointed W.P.(C)Nos.18105 of 2020 & 9546 of 2021 17 out that the notification was later amended in the year 2016 whereby the built-up area was redefined, but the amendment has been stayed by the Court in W.P.(C)No.3097 of 2016. The counsel for the Panchayat endorses the contentions raised by the Sri Anilkumar and submitted that the apprehension of the Panchayat regarding the likelihood of the pollution that may be caused by the starting of the industry is fully justified. It is submitted that all such apprehensions should be answered even before the industry is set up, so that things will not be led to a situation where remedial measures will have to be taken. In answer to the above contention the Senior Counsel appearing for the petitioner in W.P. (C)No.18105 of 2020 submits that there has been a subsequent amendment in the year 2018 whereby the figure 20000 has been amended as 50000. The counsel further submitted that even otherwise the proposed building is less than 20000M 2 in area. It is further pointed out that the restriction regarding the area contained in the 2006 notification as amended is concerning Building or Construction projects or Area Development projects and Townships as well as for industrial sheds, educational institutions, hospitals and hostels for educational institutions and does not take in an industry of the kind sought to be set up by the petitioner in W.P.(C)No.18105 of 2020.
W.P.(C)Nos.18105 of 2020& 9546 of 2021 18
10. Having heard the counsel on either side, I believe this Court will not be justified in going into the aspect whether there is a likelihood of a factory which is yet to be established, causing pollution. Starting an industry in accordance with the rules that govern the same is a lawful activity and there cannot be an injunction against a lawful activity. The report of the Pollution Control Board does not indicate any reason warranting the stoppage of even the installation of the factory. This Court finds no reason to suspect the report of the Pollution Control Board.
11. As regards the contention that the factory should not be permitted in a land which was earlier a plantation, the issue is no longer res integra. The only consequence of the land exempted under the provisions of the Kerala Land Reforms Act being put to a different use is that the exemption will no longer be available, and the land thus used will have to be added to the total extent of the declarant for the purpose of reworking the excess land. (See Mathew K.Jacob and another v. District Environment Impact Assessment Authority, Kottayam (FB) [2018 (4) KLT 913], Nazar K.H. v. Mathew K.Jacob & Ors. [2019 (4) KLT 82 (SC)] and Kinallur Rock Sand v. State of Kerala & Ors. [2021 KHC 3252].
12. The next contention is regarding the constitutionality of W.P.(C)Nos.18105 of 2020 & 9546 of 2021 19 the amendment to Section 233 of the Kerala Panchayat Raj Act, which is raised in W.P.(C) 9546 of 2021. The contention is that the right to refuse licence which was available with the Local Self Government Institutions is taken away by the amendment. I do not think the said issue needs to be gone into in these proceedings. The challenge is not at the instance of any Local Self Government Institution which has allegedly lost such a power. The challenge is raised by persons who are apprehending pollution if an industry is started and is more in the nature of a collateral challenge to support the refusal of permission by the Local Self Government. It can be seen from Section 233A that the entire power of the Panchayat is not taken away. Even after the grant of licence, it is well within the powers of the Panchayat to consider whether the industry is causing any nuisance and take necessary action to ensure that such nuisance is abated. Any issue regarding pollution or the like can hence be addressed by the Panchayat, even after the grant of permit. It is only if this Court is to hold that the amendment is ex facie unconstitutional, this Court will be justified in issuing a direction to stop the establishment of the factory. The Hon'ble Supreme Court has held that in matters involving challenge to the constitution of the legislation enacted by the legislature and the rules framed thereunder, the courts should W.P.(C)Nos.18105 of 2020 & 9546 of 2021 20 be extremely loath to pass an interim order. The Court observed that at the time of final adjudication, the Court can strike down the statute if it is found to be ultra vires. It was further held that the operation of the statutory provisions cannot be stultified by granting an interim order except when the court is fully convinced that the particular enactment or the rules are ex facie unconstitutional and the factors like balance of convenience, irreparable injury and public interest are in favour of passing an interim order. (See Shri Ram Krishna Dalmia v Shri Justice S.R.Tendolkar & Ors. [AIR 1958 SC 538] and Health for Millions v. Union of India & Ors. [(2014) 14 SCC 496].
13. It is difficult to hold that Section 233 as amended is ex facie unconstitutional. A reading of the entire provision will show that sufficient safeguards have been made to ensure that the industry that is sought to be established complies with the requirement of the environmental laws coming within the purview of Pollution Control Board, the issue coming under the Factories Act, the issues relating to Fire and Rescue and issues relating to Health. It is only after being convinced about these factors, that the Panchayat is obliged to grant permission. The mere fact that the power of refusal is taken away does not mean that the Panchayat can exercise the power to grant in an unregulated W.P.(C)Nos.18105 of 2020 & 9546 of 2021 21 manner. It has also to be remembered that the amendment itself was brought in with the purpose of easing business which also cannot be termed as a purpose against public interest. So also on the facts of the case it cannot be held that factors like the balance of convenience, irreparable injury and prima facie case is in favour holding that the industry should not be established. The above observations are made only for the limited purpose of rendering a finding on whether the statutory provision is ex facie unconstitutional. Since the industry in question is only at the stage of installation, I find that this is not a fit case to consider the issue regarding the constitutionality of Section 233. The said contention is hence left open and the observations made above will not prejudice the contention in any manner.
14. In the result, W.P.(C)18105 of 2020 is allowed. Exts.P4, P7 and P8 decisions of the 1 st respondent are set aside. The respondents 1 and 2 are directed to consider the application evidenced by Ext.P1, submitted by the petitioner, and grant them the permit, if they are otherwise entitled for the same, strictly in accordance with Section 233 of the Kerala Panchayat Raj Act. The reasons stated in Exts.P4, P7 and P8 regarding the possibility of pollution and the earlier nature of the land shall not be reasons to reject the application. Necessary orders shall be issued within one W.P.(C)Nos.18105 of 2020 & 9546 of 2021 22 month from the date of receipt of a certified copy of this judgment. W.P.(C)No. 9546 of 2021 is closed without expressing any opinion on the question as to the constitutionality of Section 233 of the Kerala Panchayat Raj Act as amended and with liberty to the petitioners to challenge the said provision in appropriate proceedings, and with further liberty to approach the Court in case of any violation of the conditions of the permit, if granted, or the conditions prescribed by other statutory authorities for establishment of the factory by the petitioner in W.P.(C)No.18105 of 2020, at a later stage.
Sd/-
T.R. RAVI JUDGE dsn W.P.(C)Nos.18105 of 2020 & 9546 of 2021 23 APPENDIX OF WP(C) 18105/2020 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE ACKNOWLEDGEMENT GENERATED BY THE SANKETHAM E-PORTAL BEARING E-FILE NO.06505960119001101459 DATED 17.08.2019. EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT NO.6588824 DATED 24.08.2019 ALONG WITH THE CASH RECEIPT AND COVERING LETTER OF THE PETITIONER.
EXHIBIT P3 A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT NO.6589258 DATED 17.10.2019.
EXHIBIT P4 A TRUE COPY OF THE MINUTES OF THE COMMITTEE OF THE 1ST RESPONDENT PANCHAYAT DATED 22.10.2019.
EXHIBIT P5 A TRUE COPY OF THE MINUTES OF THE URGENT COMMITTEE MEETING OF THE 1ST RESPONDENT PANCHAYAT DECIDING THE MATTER ON EXHIBIT P3 AS ITEM NO.1/2 DATED 22.10.2019.
EXHIBIT P6 A TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT BEARING NO.B1-4950/19 DATED 25.10.2019.
EXHIBIT P7 TRUE PHOTOCOPY OF THE COMMUNICATION DATED 28/1/2021 BEARING NO.A3-4633/20 ISSUED BY THE 2ND RESPONDENT ALONG WITH THE MINUTES OF MEETING CONVENED ON 13/1/2021 EXHIBIT P8 TRUE PHOTOCOPY OF THE COMMUNICATION DATED 1/2/2021 BEARING NO A30-4633/20 ALONG WITH THE MINUTES OF THE MEETING HELD ON 28/1/2021 EXHIBIT P9 TRUE PHOTOCOPY OF THE CONSENT TO ESTABLISH ISSUED BY THE ADDITIONAL 4TH RESPONDENT DATED 19/3/2020 WHICH IS VALID UP TO 18/3/2025 EXHIBIT P10 TRUE PHOTOCOPY OF THE PERMIT NO.48/2020 DATED 29/2/2020 ISSUED BY THE DIRECTOR OF FACTORIES AND BOILERS, THIRUVANANTHAPURAM EXHIBIT P11 TRUE PHOTOCOPY OF THE FIRE SAFETY CLEARANCE DATED 25/2/2020 BEARING NUMBER D1/7214/2019 ISSUED BY THE REGIONAL FIRE OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM EXHIBIT P12 TRUE PHOTOCOPY OF THE ORDER DATED 7/12/2019 BEARING NUMBER TCPIDK/772/2019-D ISSUED BY THE TOWN PLANNER, IDUKKI W.P.(C)Nos.18105 of 2020 & 9546 of 2021 24 RESPONDENT EXHIBITS EXT.R2(A) TRUE COPY OF HARD COPY OF THE APPLICATION DT.17.8.2019 FOR CONSTRUCTION, ESTABLISHMENT OR INSTALLATION OF FACTORY, WORKPLACE IN WHICH STEAM OR OTHER POWER IS TO BE EMPLOYED SUBMITTED BY THE PETITIONER EXT.R2(B) TRUE COPY OF REPORT DT.4.9.2019 SUBMITTED BY THE ASSISTANT ENGINEER ATTACHED TO THE 1ST RESPONDENT PANCHAYAT EXT.R2(C) TRUE COPY OF COMMUNICATION DT.16.10.2010 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXT.R2(D) TRUE COPY OF HARD COPY OF THE APPLICATION FOR CONSTRUCTION, ESTABLISHMENT OR INSTALLATION OF FACTORY, WORKPLACE IN WHICH STEAM OR OTHER POWER DT.4.6.2020 SUBMITTED BY THE PETITIONER EXT.R2(E) TRUE COPY OF EMAIL COMMUNICATION DT.11.12.2020 SENT BY 1ST RESPONDENT TO GMAIL EXT.R2(F) TRUE COPY OF REPLY MAIL DT.11.12.2020 ISSUED BY GMAIL TO THE 1ST RESPONDENT EXT.R2(G) TRUE COPY OF FILE NOTE DT.29.8.2019 EXT.R2(H) TRUE COPY OF COVERING LETTER DT.NIL SUBMITTED BY THE PETITIONER ALONG WITH APPLICATION RESUBMITTED ON 6.9.2019 EXT.R2(I) TRUE COPY OF COVERING LETTER DT.17.8.2019 SUBMITTED BY THE PETITIONER ALONG WITH APPLICATION DT.17.8.2019 EXT.R2(J) TRUE COPY OF RECEIPT DT.9.10.2019 ISSUED BY SRI MS VISWAM, REPRESENTATIVE OF THE PETITIONER/COMPANY EXT.R2(K) TRUE COPY OF FORWARDING LETTER OF THE THEN SECRETARY DT.9.10.2019 TO THE TOWN PLANNER EXT.R2(L) TRUE COPY OF FORWARDING LETTER OF THE THEN SECRETARY DT.9.10.2019 TO THE FIRE AND RESCUE DEPARTMENT.
EXT.R2(M) TRUE COPY OF ORDER DT.7.12.2019 ISSUED BY THE OFFICE OF THE TOWN PLANNER.
EXHIBIT R2(N) TRUE COPY OF LETTER NO.KI-1868/2021 DT.27.2.2021 ISSUED BY THE TAHSILDAR, THODUPUZHA TO THE 2ND RESPONDENT.
EXHIBIT R2(O) TRUE COPY OF RELEVANT EXTRACT OF THE W.P.(C)Nos.18105 of 2020 & 9546 of 2021 25 PLANTATION REGISTER IN RESPECT OF THE LANDS COMPRISED IN SY.No.1159/1 ISSUED BY THE VILLAGE OFFICER, VELLIYAMATTOM.
EXHIBIT R2(P) TRUE COPY OF LETTER No.4633/20 DT.12.5.21 SUBMITTED BEFORE THE DISTRICT COLLECTOR, IDUKKI BY THE 2ND RESPONDENT.
EXHIBIT R2(Q) TRUE COPY OF LETTER DT.8.7.2019 ISSUED BY THE GEOLOGIST, IDUKKI TO THE TAHSILDAR, THODUPUZHA.
EXHIBIT R2(R) TRUE COPY OF LETTER No.13-1/AE/LSGD/VLTM/21- 22 TO THE 2ND RESPONDENT.
EXHIBIT R2(S) TRUE COPY OF LETTER No.A3/4633/20 DT.21.4.21 ISSUED BY THE 2ND RESPONDENT TO THE GEOLOGIST, IDUKKI ANNEXURE R4(A): TRUE COPY OF CIRCULAR No.PCB/T4/115/97 DT.20.7.11 ISSUED BY THE BOARD ANNEXURE R4(B): TRUE COPY OF THE CONSENT TO ESTABLISH No.PCB/RO-EKM/IDK/O191DU976891/2020 DT.19.3.2020 ISSUED BY THE BOARD ANNEXURE R4(C) TRUE COPY OF REPORT DT.5.12.2021 OF THE ENVIRONMENTAL ENGINEER, DISTRICT OFFICE-2, ERNAKULAM.
EXT.R3(A) TRUE COPY OF APPLICATION FOR REGISTRATION DT.20.1.2020 SUBMITTED BY THE 3RD RESPONDENT TO THE DISTRICT REGISTRAR ALONG WITH ITS BYELAW EXT.R3(B) TRUE COPY OF REGISTRATION CERTIFICATE DT.19.2.2020 ISSUED BY THE REGISTRAR EXT.R3(C) TRUE COPY OF PHOTOGRAPH SHOWING THE TAIL END FITTED TO DISCHARGE WASTE FROM THE COMPANY W.P.(C)Nos.18105 of 2020 & 9546 of 2021 26 APPENDIX OF WP(C) 9546/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF LETTER DATED 14.10.2019 WRITTEN BY ASSISTANT EXECUTIVE ENGINEER (MVIP) TO THE SECRETARY GRAMA PANCHAYAT.
EXHIBIT P2 TRUE COPY OF CONSENT ISSUED BY THE POLLUTION CONTROL BOARD DATED 19.3.2020.
EXHIBIT P3 TRUE COPY OF ASSET REGISTER IN RESPECT OF ELAMDESOM - MULLAKKARY PANCHAYATH ROAD.
EXHIBIT P4 TRUE COPY OF ORDER DATED 20/2/2020 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF LETTER DATED 8/7/2019 ISSUED BY THE GEOLOGIST, IDUKKI TO THE TAHSILDAR, THODUPUZHA.
RESPONDENT EXHIBITS Exhibit R6(a) TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT NO.6589258 DATED 17-10-2019.
Exhibit R6(b) TRUE COPY OF THE MINUTES OF THE COMMITTEE OF THE 3RD RESPONDENT PANCHAYAT DATED 22-10- 2019.
Exhibit R6(c) TRUE COPY OF THE MINUTES OF MEETING OF THE 3RD RESPONDENT PANCHAYAT.
Exhibit R6(d) TRUE COPY OF THE LETTER NO.B14950/19 DATED 25-10-2019.
Exhibit R6(e) TRUE COPY OF MINUTES OF MEETING OF THE PANCHAYAT DATED 13-01-2021.
Exhibit R6(f) TRUE COPY OF THE MINUTES OF THE PANCHAYAT COMMITTEE DATED 28-01-2021.
Exhibit R6(g) TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED BY THE 4TH RESPONDENT DATED Exhibit R6(h) TRUE COPY OF PERMIT NO.48/2020 DATED 29-02- 2020 ISSUED BY DIRECTOR, FACTORIES AND BOILERS TRIVANDRUM.
Exhibit R6(i) TRUE COPY OF THE FIRE SAFETY CLEARANCE DATED 25.02.2020 BEARING NUMBER D1/7214/2019 ISSUED BY THE REGIONAL FIRE OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM Exhibit R6(j) TRUE COPY LETTER DATED 09.10.2019 FORWARDED THE APPLICATION SUBMITTED BY THE 6TH W.P.(C)Nos.18105 of 2020 & 9546 of 2021 27 RESPONDENT TO THE DISTRICT TOWN PLANNER, IDUKKI Exhibit R6(k) TRUE COPY OF THE ORDER DATED 07.12.2019 BEARING NUMBER TCPIDK/772/2019-D ISSUED BY THE TOWN PLANNER, IDUKKI Exhibit R6(l) TRUE COPY OF LETTER DATED 12.02.2021 BY THE 3RD RESPONDENT PANCHAYAT Exhibit R6(m) TRUE COPY OF RENEWAL OF PERMIT FOR A PERIOD OF ONE YEAR WITH EFFECT FROM 01.03.2021 VIDE ORDER NO. T DATED 15.04.2021 Exhibit R6(n) TRUE COPY OF ASSET REGISTER OF THE 3RD RESPONDENT PANCHAYATH Exhibit R6(o) TRUE COPY OF THE PERMIT NO. A3- BA(22855)/2019 DATED 30.11.2018 ISSUED BY THE PANCHAYATH Exhibit R6(p) TRUE COPY OF THE MOVEMENT PERMIT DATED 06.12.2017 Exhibit R3(a) TRUE COPY OF COMPLAINT DT.13.5.2019 SUBMITTED BY THE RESIDENTS OF KUNNEL SCHEDULED CASTE COLONY IN WARD NO.12 OF VELLIYAMATTOM PANCHAYAT BEFORE THE 3RD RESPONDENT Exhibit R3(b) TRUE COPY OF COMPLAINT DT.28.5.2019 SUBMITTED BY THE PANCHAYAT COMMITTEE OF UNITED DEMOCRATIC FRONT, BEFORE THE 3RD RESPONDENT Exhibit R3(c) TRUE COPY OF LETTER DT.7.6.2019 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 3RD RESPONDENT.
Exhibit R3(d) TRUE COPY OF RESOLUTION No.11/1 TAKEN BY THE PANCHAYAT COMMITTEE IN ITS MEETING HELD ON 25.6.2019 Exhibit R3(e) TRUE COPY OF LETTER DT.4.9.2019 ISSUED BY THE ASSISTANT ENGINEER TO THE 3RD RSPONDENT. Exhibit R3(f) TRUE COPY OF COVERING LETTER SUBMITTED BY THE 6TH RESPONDENT ON 6.9.2019 BEFORE THE 3RD RESPONDENT.
Exhibit R3(g) TRUE COPY OF RESOLUTION NO.10/2 TAKEN BY THE PANCHAYAT COMMITTEE IN ITS MEETING HELD ON 6.9.2019 Exhibit R3(h) TRUE COPY OF LETTER No.A4-7897/2019 DT.27.9.2019 ISSUED BY THE DEPUTY DIRECTOR W.P.(C)Nos.18105 of 2020 & 9546 of 2021 28 OF PANCHAYAT, IDUKKI TO THE 3RD RESPONDENT. Exhibit R3(i) TRUE COPY OF REPRESENTATION DT.27.9.2019 SUBMITTED BY THE PANCHAYAT COMMITTEE OF INDIAN UNION MUSLIM LEAGUE BEFORE THE 3RD RSPONDENT.
Exhibit R3(j) TRUE COPY OF RESOLUTION No.44/1 TAKEN BY THE PANCHAYAT COMMITTEE, IN ITS MEETING HELD ON 30.9.2019 Exhibit R3(k) TRUE COPY OF LETTER NO.996/2019 DT.14.10.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER (MVIP) TO THE 3RD RESPONDENT.
Exhibit R3(l) TRUE COPY OF MINUTES OF THE ALL PARTY MEETING HELD ON 14.10.2019 AT THE PANCHAYAT. Exhibit R3(m) TRUE COPY OF LETTER DT.16.10.2019 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 3RD RESPONDENT.
Exhibit R3(n) A TRUE COPY OF THE LETTER NO.D1-7214/2019 DATED 23.11.2019 ISSUED BY THE REGIONAL FIRE OFFICER, ERNAKULAM TO THE 6TH RESPONDENT Exhibit R3(o) A TRUE COPY OF THE REPORT DATED 29.02.2020 ISSUED BY THE ASSISTANT ENGINEER Exhibit R3(p) A TRUE COPY OF THE REPORT DATED 20.06.2020 ISSUED BY THE ASSISTANT ENGINEER Exhibit R3(q) A TRUE COPY OF THE LETTER NO.KI-1868/2021 DATED 27.2.2021 ISSUED BY THE TAHSILDAR, THODUPUZHA TO THE 2ND RESPONDENT Exhibit R3(r) A TRUE COPY OF THE RELEVANT EXTRACT OF THE PLANTATION REGISTER IN RESPECT OF THE LANDS COMPRISED IN SY.NO.1159/1 ISSUED BY THE VILLAGE OFFICER, VELLIYAMATAM Exhibit R3(s) A TRUE COPY OF LETTER NO.4633/20 DATED 12.5.2021 SUBMITTED BEFORE THE DISTRICT COLLECTOR, IDUKKI BY THE 2ND RESPONDENT Exhibit R3(t) A TRUE COPY OF THE COMPLAINT DATED 17.10.2019 SUBMITTED BY ANIL RAGHAVAN AND 2 OTHERS BEFORE THE DISTRICT COLLECTOR WHICH WAS FORWARDED TO THE 3RD RESPONDENT Exhibit R3(u) A TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 22.10.2019 BY THE PANCHAYATH COMMITTEE Exhibit R3(v) A TRUE COPY OF THE LETTER NO.B1-4950/19 W.P.(C)Nos.18105 of 2020 & 9546 of 2021 29 DATED 25.10.2019 ISSUED TO THE 6TH RESPONDENT BY THE 3RD RESPONDENT Exhibit R3(w) A TRUE COPY OF THE LETTER NO.B4-5199/19 DATED 29.10.2019 SUBMITTED BEFORE THE DEPUTY DIRECTOR OF THE PANCHAYATH, IDUKKI BY THE 3RD RESPONDENT Exhibit R3(x) A TRUE COPY OF THE RESOLUTION NO.22/1 TAKEN IN THE MEETING HELD ON 22.07.2020 BY THE PANCHAYATH COMMITTEE Exhibit R3(y) A TRUE COPY OF THE LETTER NO.A3-4633/20 ISSUED BY THE SECRETARY TO THE 6TH RESPONDENT Exhibit R3(z) A TRUE COPY OF THE LETTER NO.13- 1/AE/LSGD/VLTM/21-22 DATED 16.4.2021 ISSUED BY THE ASSISTANT ENGINEER, TO THE 3RD RESPONDENT Exhibit R3(z1) A TRUE COPY OF THE LETTER NO.A3/4633/20 DATED 21.4.2021 ISSUED BY THE 3RD RESPONDENT TO THE GEOLOGIST, KOCHI Exhibit R3(z2) A TRUE COPY OF THE LETTER NO.A3/4633/20 DATED 22.4.2021 ISSUED BY THE 3RD RESPONDENT TO THE 6TH RESPONDENT