Kerala High Court
Salu Sugathan Someni vs The District Police Chief
Author: Dama Seshadri Naidu
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939
WP(C).No. 35403 of 2016 (A)
PETITIONER(S):
1. SALU SUGATHAN SOMENI
S/O.SUGATHAN KUMARAN,
AGED 36 YEARS, DIRECTOR, MOONLIGHT PREMIUM
SANDS PRIVATE LIMITED,
PUTHENPURAYIL AVENUE,
3RD FLOOR, OPPOSITE NSCB,
PARIPPALLY P.O., KOLLAM 691 574.
(RESIDING AT KORANDIPPALLIYIL, EZHIPPURAM,
PARIPPALLY P.O., KOLLAM - 691 574)
2. SAJU SUGATHAN SOMENI
S/O.SUGATHAN KUMARAN,
AGED 34 YEARS, DIRECTOR, MOONLIGHT PREMIUM
SANDS PRIVATE LIMITED,
PUTHENPURAYIL AVENUE,
3RD FLOOR, OPPOSITE NSCB,
PARIPPALLY P.O., KOLLAM 691 574.
(RESIDING AT KORANDIPPALLIYIL, EZHIPPURAM,
PARIPPALLY P.O., KOLLAM - 691 574)
BY ADVS.SRI.T.KRISHNANUNNI (SR.)
SRI.T.C.SURESH MENON
SRI.P.S.APPU
SRI.A.R.NIMOD
SRI.V.A.AJIVAS,COMMISSIONER
RESPONDENT(S):
1. THE DISTRICT POLICE CHIEF,
KOLLAM 691 001.
2. THE SUB INSPECTOR OF POLICE,
PALLICKAL POLICE STATION, THIRUVANANTHAPURAM - 695 604.
(ADDRESS OF THE SECOND RESPONDENT IS CORRECTED AS PER ORDER
DATED 09.01.2017 IN I.A. NO. 124/2017)
3. ABDUL HAKKIM,
S/O.ABDUL KHARIM, RESIDING AT
WP(C).No. 35403 of 2016 (A) : 2 :
THADATHIL (NEAR ISLAMIC CENTRE),
KIZHAKKANELA P.O., KOLLAM 691 574.
4. NAZARUDEEN,
RESIDING AT AYYAPPAN KONATHU VEEDU,
PUNNODU, VETTIYARA P.O., NAVAIKULAM,
THIRUVANANTHAPURAM - 695 603.
5. FIROSE KHAN
S/O.NAZAR, RESIDING AT ANZAR KHAN
MANZIL, KIZHAKKANELA P.O., PARIPPALLY,
KOLLAM - 691 574.
6. HAMSA KUNJU
S/O.NOOHU KUNJU,
RESIDING AT SHANS, MUKKADA,
KIZHAKKANELA P.O., PARIPPALLY,
KOLLAM - 691 574.
7. SHAFEEK,
S/O.MUHAMMED IBRAHIM, RESIDING AT
PACHAYIL VEEDU, PALLICKAL P.O.,
THIRUVANANTHAPURAM 695 604.
8. MANOJ.S
S/O.SHAHABUDEEN, RESIDING AT
MANOJ MANZIL, KIZHAKKANELA P.O.,
PARIPPALLY, KOLLAM 691 574.
9. NAJEEM
S/O.MUSHTHAFA,
RESIDING AT NAJEEM MANZIL,
EDAPPANA, VETTIYARA P.O.,
NAVAIKULAM, THIRUVANANTHAPURAM - 695 603.
ADDL.R10 & R11 IMPLEADED:
10. NAVAIKULAM GRAMA PANCHAYAT,
NAVAIKULAM P.O., THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY.
(IMPLEADED AS PER ORDER DATED 17.11.2016 IN I.A. NO. 18975/2016)
11. THE DISTRICT POLICE CHIEF,
THIRUVANANTHAPURAM - 695 001.
(IMPLEADED AS PER ORDER DATED 09.01.2017 IN I.A. NO. 151/2017)
ADDL.R10 BY ADV. SRI.BIJU BALAKRISHNAN
R7,R8,R9 BY ADV. SRI.C.R.SIVAKUMAR
R3-R6 BY ADV. SRI.M.SREEKUMAR
R BY SRI P.P. THAJUDEEN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 35403 of 2016 (A) : 3 :
APPENDIX:
PETITIONER(S)' EXHIBITS:
EXT.P1 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE NAVAYIKULAM
VILLAGE OFFICE DATED 27/5/2016.
EXT.P2 TRUE COPY OF THE BUILDIG PERMIT ISSUED BY THE NAVAYIKULAM
GRAMA PANCHAYATH DATED 17/8/2016
EXT.P3 TRUE COPY OF THE DEVELOPMENT PERMIT ISSUED BY THE
NAVAYIKULAM GRAMA PANCHAYAT DATED 6/9/2016
EXT.P4 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE
ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES,
THIRUVANANTHAPURAM DATED 8/7/2016
EXT.P5 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE
DISTRICT MEDICAL OFFICER (HEALTH), THIRUVANANTHAPURAM DATED
11/7/2016.
EXT.P6 TRUE COPY OF THE PERMIT ISSUED BY THE JOINT DIRECTOR,
FACTORIES & BOILERS, KOLLAM DATED 28/7/2016.
EXT.P7 TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED BY THE KERALA
STATE POLLUTION CONTROL BOARD DATED 10/6/2016.
EXT.P8 TRUE COPY OF THE COMMUNICATION BETWEEN THE VILLAGE OFFICER
AND THE PANCHAYATH DATED 22/9/2016.
EXT.P9 TRUE COPY OF THE ORDER IN I.A NO.1692/2016 IN APPEAL
NO.967/2016 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM DATED 18/10/2016
EXT.P10 TRUE COPY OF FEW PHOTOGRAPHS DEPICTING THE FACTUAL
SITUATION DATED NIL
EXT.P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONERS BEFORE THE 2ND RESPONDENT DATED 25/10/2016
EXT.P12 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE
PALLICKAL POLICE STATION DATED 26/10/2016
EXT.P13: TRUE COPY OF THE EXTRACT OF THE MEETING OF THE BOARD OF
DIRECTORS OF MOONLIGHT PREMIUM SANDS PRIVATE LIMITED WHICH TOOK PLACE
ON 20.04.2016.
EXT.P14: TRUE COPY OF THE COMMUNICATION BY THE AGRICULTURAL OFFICER TO
THE SECRETARY, DATED 19.09.2016.
EXT.P15: TRUE COPY OF THE COMMUNICATION DATED 30.09.2016.
EXT.P16: TRUE COPY OF THE RELEVANT EXTRACT OF THE PANCHAYATH COUNCIL
WP(C).No. 35403 of 2016 (A) : 4 :
MEETING HELD ON 11.08.2016.
RESPONDENT(S)' EXHIBITS:
EXT.R9(a): TRUE COPY OF THE DECISION NO.1 OF COUNCILL OF NAVAIKKULAM
GRAMA PANCHAYATH DATED 25.10.2016.
EXT.R9(b): TRUE COPY OF THE COMMUNICATION ISSUED BY THE PRESIDENT OF
THE NAVAIKKULAM GRAMA PANCHAYATH DATED 08.11.2016.
EXT.R9(c): TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN DESHABHIMANI
DATED 16.10.2016.
EXT.R9(d): TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN MADHYAMAM
DATED 16.10.2016.
EXT.R10(a): PHOTOSTAT COPY OF THE ORDER NO.D3-6651-16-B DIS. DATED
06.08.2016 ISSUED BY THE CHIEF TOWN PLANNER.
EXT.R10(b): PHOTOCOPY OF THE MASS PETITION DATED 02.09.2016 SUBMITTED
BEFORE THIS PANCHAYATH.
EXT.R110(c): PHOTOCOPY OF THE LETTER OF MR. HASHIM.
EXT.R10(d): PHOTOCOPY OF THE COMPLAINT DATED 23.09.2016 OF THE WELFARE
PARTY OF INDIA, VARKALA AREA COMMITTEE.
EXT.R10(e): PHOTOSTAT COPY OF LETTER DATED 04.10.2016 OF THE SECRETARY
OF THE PANCHAYATH.
EXT.R10(f): PHOTOSTAT COPY OF THE HEARING MAHAZAR DATED 06.10.2016.
EXT.R10(g): PHOTOSTAT COPY OF ADJOURNMENT OF THE HEARING DATED
06.10.2016 OF MR. CHANDRA BABU, MANAGING DIRECTOR OF MOON LIGHT
PREMIUM SANDS PRIVATE LIMITED.
EXT.R10(h): PHOTOSTAT COPY OF LETTER DATED 07.10.2016 ISSUED BY THE
SECRETARY OF PANCHAYATH TO MR. CHANDRA BABU, MANAGING DIRECTOR OF
MOON LIGHT PREMIUM SANDS PRIVATE LIMITED.
EXT.R10(i): PHOTOSTAT COPY OF COMPANY REPRESENTATION DATED 14.10.2016.
EXT.R10(j) PHOTOSTAT COPY OF HEARING NOTE IN MALAYALAM SUBMITTED
BEFORE THE PANCHAYATH.
EXT.R10(k): PHOTOSTAT COPY OF THE MASS PETITION DATED 07.10.2016
RECEIVED BY THIS PANCHAYATH FROM THE CPIM NAVAIKULAM LOCAL COMMITTEE
SECRETARY.
EXT.R10(l): PHOTOSTAT COPY OF THE MASS PETITION DATED 02.11.2016 JOINTLY
BY ALL POLITICAL PARTIES SUBMITTED BEFORE THIS PANCHAYATH.
EXT.R10(m): PHOTOSTAT COPY OF RESOLUTION DATED 15.10.2016 OF THE
PANCHAYATH COMMITTEE.
WP(C).No. 35403 of 2016 (A) : 5 :
EXT.R10(n): PHOTOSTAT COPY OF THE LETTER DATED 21.10.2016 OF THE
PANCHAYATH TO THE SENIOR ENVIRONMENTAL ENGINEER.
EXT.R10(o): PHOTOSTAT COPY OF THE LETTER DATED 21.10.2016 TO THE DISTRICT
MEDICAL OFFICER.
EXT.R10(p): PHOTOSTAT COPY OF LETTER DATED 21.10.2016 TO THE CHIEF TOWN
PLANNER.
EXT.R10(q): PHOTOSTAT COPY OF RESOLUTION DATED 25.10.2016 OF THE
PANCHAYATH.
EXT.R10(r): PHOTOSTAT COPY OF THE RESOLUTION DATED 05.11.2016 OF THE
GRAMASABHA OF WARD NO.2.
EXT.R10(s): PHOTOSTAT COPY OF STOP MEMO DATED 03.10.2016 OF THE
SECRETARY OF THE COMPANY.
EXT.R10(t): PHOTOSTAT COPY OF THE LETTER DATED 08.11.2016 OF THE
PRESIDENT OF THE PANCHAYATH TO MR. CHANDRA BABU,MANAGING DIRECTOR OF
THE COMPANY.
ADVOCATE COMMISSIONER'S EXHIBITS:
ANNEXURE 1 PHOTO 1: THE PHOTOGRAPHS SHOWING THE TEMPORARILY SHED
CONSTRUCTED WITH THE HELP OF 'TARPAULIN' AND INSIDE THE SHED ALMOST 30-
45 LOCAL PEOPLE WERE SEEN GATHERED.
ANNEXURE 1 PHOTO 2: THE PHOTOGRAPHS SHOWING THE EXISTENCE OF THE
BUILDING AND THE WELL.
ANNEXURE 1 PHOTO 3: TRUE PHOTOGRAPH OF THE BUILDING PLOT.
ANNEXURE 1 PHOTO 4 AND PHOTO 5: THE PHOTOGRAPHS SHOWING THE
DEPOSITION OF SOIL AND WATER.
ANNEXURE 1 PHOTO 6: PHOTOGRAPHS SHOWING THE EXISTENCE OF POND.
ANNEXURE 1 PHOTO 7: THE PHOTOGRAPHS SHOWING THE DEPOSITION OF SOIL IN
THE WESTERN SIDE OF THE PROPERTY.
ANNEXURE 1 PHOTO 8: THE PHOTOGRAPHS SHOWING THE EXISTENCE OF STREAMS
IN THE WESTERN DIRECTION OF THE PROPOSED LAND.
ANNEXURE 1 PHOTO 9 AND PHOTO 10: THE PHOTOGRAPHS SHOWING THE
EXISTENCE OF POND.
ANNEXURE 2: TRUE COPY OF THE CERTIFICATE AND COPY OF THE ASSET REGISTER
ISSUED BY THE ASSISTANT ENGINEER, NAVAIKULAM GRAMA PANCHAYATH.
ANNEXURE 3: TRUE COPIES OF THE WORK MEMO SUBMITTED BY THE PETITIONER.
ANNEXURE 4: TRUE COPIES OF THE WORK MEMO SUBMITTED BY RESPONDENTS.
WP(C).No. 35403 of 2016 (A) : 6 :
ANNEXURE 4(a) PHOTO 11 AND PHOTO 12: PHOTOGRAPHS SHOWING THE TREES
IN THE PROPOSED LAND.
ANNEXURE 5: TRUE COPY OF THE NEWS PAPER CUTTINGS SUBMITTED BY THE
PETITIONER'S SIDE.
ANNEXURE 5(a): TRUE COPY OF PETITION BEFORE THE POLICE STATION AND ITS
RECEIPT SUBMITTED BY THE PETITIONER SIDE.
ANNEXURE 5(b): PHOTOGRPAHS OF PROPOSED SITE SUBMITTED BY THE
PETITIONER SIDE.
ANNEXURE 6: A ROUGHT SKETCH (NOT DRAWN TO SCALE) SHOWING THE
LOCATION, NATURE AND LIE OF THE PROPOSED LAND AND EXISTENCE OF PONDS,
WATER COURSE AND STREAMS.
True Copy/
P.A to Judge.
rv
ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.
-------------------------------------------
W.P.(C) No. 35403 of 2016 ( )
------------------------------------------
Dated this the 4th day of July 2017.
JUDGMENT
Dama Seshadri Naidu, J.
Introduction:
A person gets the permissions from the civic authorities to establish an industry. While he is proceeding with his work, the public protest. The civil body turns hostile, and litigation ensues. Despite the pending judicial proceedings, the permits and licences still survive. Yet the public protests seem to continue unabated. Should the pending litigation and the public protests act as an automatic deterrent, preventing the permit holder from proceeding further?
The Controversy:
2. The petitioners, the two Someni brothers, obtained a building permit and a development permit to establish an industrial unit--Moonlight Premium Sands (M-Sand manufacturing)--at Navayikulam village. They obtained all the statutory permits and licences: Ext.2 building permit; Ext. P3 W.P.(C) No. 35403/2016 -2- development permit to construct internal roads; Ext.P4 no objection certificate (NOC) from the Fire and Rescue Services;
Ext.P5 NOC from the District Medical Officer (Health); Ext.P6 permit from the Factories and Boilers Dept., Kollam; and Ext.P7 `consent to establish' issued by the State Pollution Control Board.
3. While the Somenis, as the Directors of Moonlight Premium Sands Pvt., Ltd., were building their unit, the respondents 3 to 9 with their men trespassed upon the construction site, disrupted the construction, and declared that they would not allow the Somenis to establish any industry there. On the site, they also erected various flags showing affiliation to different political parties. The respondents also said to have threatened the Somenis with violence even at the slightest resistance from them. In this process, the respondents have said to have destroyed the temporary office built on site by the Somenis.
4. Alarmed at the turn of events, the Somenis approached the 2nd respondent-Sub Inspector of Police but received no protection. This is despite the brothers' submitting the Ext.P11 complaint to W.P.(C) No. 35403/2016 -3- the police. So the Somenis have approached this Court seeking a mandamus to the S I of Police to take effective steps to restore law and order and to provide "adequate police protection" to them from the respondents 3 to 9 and their men.
Submissions:
The Petitioners':
5. In the above factual background, Sri. T. Krishnanunni, the learned Senior Counsel for the petitioners, has submitted that the Somenis have all the requisite permissions from the statutory authorities, including the 10th respondent-Grama Panchayath. Illustratively, he stresses on the Ext.P16--the Grama Panchayat Resolution that permits the Somenis to establish their M Sand unit. After taking us through all the permits and licences available on file, the learned Senior Counsel has strenuously contended that the respondents 3 to 9 have no manner of right to take the law into their hands and resort to violent, destructive, and disruptive criminal activities. He has also drawn our attention to Section 4 of the Kerala Police Act, 2011, to stress that the police are duty bound W.P.(C) No. 35403/2016 -4- to protect the life, liberty, and property of all persons.
6. As to the further developments after the Somenis obtained the building permission from the Grama Panchayath, the learned Senior Counsel submits that even Ext.R10(s) stop-memo issued by the Grama Panchayath has already been stayed by the Tribunal for Local Self Government Institutions ("The Tribunal"). According to him, absent any statutory interdiction, the Somenis are free to proceed with their establishing the industrial unit, and the police are bound to protect their legitimate activities in the face of criminal acts--vandalism-- committed by the respondents 3 to 9. The Grama Panchayat's:
7. Sri Biju Balakrishnan, the learned counsel for the Grama Panchayath, has submitted, first, that the Somenis have not obtained a licence under Section 232 of the Kerala Panchayath Raj Act, 1994. Second, there have been mass complaints--Ext.R10(k) and Ext.R10(l)--from the public and the representatives of different political parties against the Somenis' establishing their industrial unit. He has also submitted that in terms of clause 7 of Ext.R10(a), the permit issued by the Chief Town Planner, the Panchayath W.P.(C) No. 35403/2016 -5- Secretary is duty bound to ensure that the industrial unit functions without disturbing the peace of the nearby residents.
8. Sri Balakrishnan has also drawn our attention to Ext.R10
(m), a resolution passed by the Panchayath Committee proposing to request the statutory authorities concerned to re-consider the NOCs granted by them. He has taken us through Exts.R10(n), (o),
(p) and (q) letters the Panchayath said to have been addressed to those statutory authorities. He has also submitted that through Ext.R10(r), the Grama Sabha of Ward No.2, in which the Somenis are establishing their industrial unit, requested the Panchayath to withdraw the permit it had granted earlier.
9. Though Sri Balakrishnan has conceded that the Tribunal has already stayed the Panchayath's stop-memo, he has submitted that certain other persons have already initiated independent legal proceedings before the same Tribunal against the Somenis' establishing the industrial unit.
10. In short, Sri Balakrishnan contends that the entire issue about the Somenis' industrial unit is sub judice before a competent Tribunal, and that at this juncture this Court's granting any W.P.(C) No. 35403/2016 -6- protection to the Somenis leads to further legal complications. The Respondents 3 to 9's:
11. Sri M. Sreekumar, the learned counsel for respondents 3 to 6, has contended that the Somenis' establishing the industrial unit in what is said to be a thickly populated area affects the public interest. He has further submitted that, earlier, this Court, through its order dated 03.04.2017, appointed an Advocate-Commissioner, who submitted his Annexure-I report along with photographs.
12. Drawing our attention to the Annexure I report, Sri Sreekumar has contended that even the disinterested Commissioner has concluded in his report that if the Somenis establish the industry, it may lead to seepage of waste water.
13. Sri Sreekumar showed us the photographs attached to the Annexure-1 report to hammer home his contention that the industry will eventually block various waterbodies in the area. In the end, he has also contended that the area in question already faces water scarcity, and the proposed industrial unit, in fact, needs a lot of water--about 1 lakh litres--for its daily consumption. Adopting the Grama Panchayat's submissions, he has also W.P.(C) No. 35403/2016 -7- contended that the Somenis have not obtained the permit under Section 233 of the Panchayath Raj Act.
Sri C.R. Sivakumar, the learned counsel for the respondents 7 to 9 adopted the above submissions.
Reply:
14. In reply, Sri. T. Krishnanunni, the learned Senior Counsel, has submitted that the Panchayath's stop-memo has already been stayed by the Tribunal. On the proceedings said to have been initiated by a third party before the Tribunal, he has submitted that the Tribunal, so far, has issued no interim direction restraining the Somenis' construction activities, nor has it found fault with the numerous permits and licences they obtained.
15. In short, the learned Senior Counsel has submitted that if the statutory permits and licences subsist, the Somenis are entitled to carry on their legitimate activities, and the police are bound to protect their interest if respondents 3 to 9 act illegally. He has put forward the proposition that this Court in a petition for police protection will not go into the disputed questions of fact--especially about the validity or the legality of the licences obtained by the W.P.(C) No. 35403/2016 -8- Somenis. To support that contention, he has relied on Karoor Panchayat v. State1 and A.A. Sakeer v. Shinu2.
16. Heard Sri T. Krishnanunni, the learned Senior Counsel for the petitioners, Sri P.P. Thajudeen, the learned Senior Government Pleader, Sri Biju Balakrishnan, the learned counsel appearing for the Grama Panchayath, Sri M. Sreekumar, the learned counsel appearing for respondents 3 to 6 and Sri C.S. Sivakumar, the learned counsel appearing for respondents 7 to 9, besides perusing the record.
ISSUES:
17. The petitioners, after obtaining the permits and the licences, begin to establish an industry. Many people around complain to the Grama Panchayat, which then issues a stop-memo to the petitioners. But the petitioners get the stop-memo suspended by the Tribunal. A third party, too, challenges the permits and the licences, but obtains no stay. The residents of the area, nevertheless, obstruct the petitioners' activities. The petitioners want police protection.
1 1995 2 KLJ 742 2 an unreported judgment in W.P.(C) No. 27703/2012 W.P.(C) No. 35403/2016 -9- Now, the issues are these:
I. In a petition for police protection, can this Court examine the validity of the licences and the permits the petitioners obtained?
II. Can the petitioners' claim police protection despite public protests and pending legal proceedings?
Discussion:
Issue No.I
18. The Somenis, the directors of Moonlight Premium Sands Pvt. Ltd., obtained the statutory permits and licences to establish an M-Sand unit. The Panchayat permitted them. When they proceeded with the work, public protested, and petitioned the Panchayat.
Other technicalities apart, the Panchayat was alarmed by the protests: its committees met and they resolved to withdraw the permits the Panchayath had granted. The Panchayat has even requested the other statutory authorities to revoke the NOCs they have granted--all this without notice to the Somenis. True, the Panchayat put the Somenis on notice, eventually. But it was to prevent them from proceeding with the construction--a stop-memo was served.
W.P.(C) No. 35403/2016 -10-
19. Not in dispute is the fact that the Somenis approached the Tribunal and had the stop-memo stayed. The proceedings are pending. On the other hand, a third-party seems to have questioned the permits and the licences the Somenis got--including those given by the Panchayat. But the Tribunal so far has not interdicted, even as an interim measure, any of those permits or licences.
20. Panchayat took two contentions: (a) that the Somenis have not obtained the Panchayat's permission under Section 232 of the Act; (b) that public have been protesting.
21. True, the Somenis had to get two types of permissions-- one from the Panchayat to develop the factory site and the other from the Secretary to build. Though the Panchayath in its counter affidavit contended that the permission must be obtained under Section 2323 of the Act, as we see, it ought to be Section 233. In fact, both the learned counsel for the respondents have argued about the mandatory nature of Section 233, and the learned Senior Counsel for the Somenis, too, tried to repel those contentions. 3 Purpose for which places may not be used without a license. The village Panchayat may notify that no place in the Panchayat area shall be used for any of the purposes specified in the Rules made in this behalf being purposes, which in the opinion of the Government , are likely to be offensive or dangerous to human life or health or property, without a licence issued by the (Secretary) and except in accordance with the conditions specified in such licence.
W.P.(C) No. 35403/2016 -11-
22. Section 233 of the Act deals with the "permission for the construction of factories and the installation of machinery." Without the permission of the village panchayat and except under the conditions specified in that permission, no person can (a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power, or electrical power; or (b) install in any premises any machinery or manufacturing plant. The provision provides for an elaborate mechanism and invests the Panchayat--not the Secretary--with the decision-making. In fact, Rule 12 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 ("the D & O Rules) elaborate on the procedural nitty-gritty of Section 233 of the Act.
23. Section 235-F, on the other hand, deals with construction and reconstruction of buildings--building permit to be granted by the Panchayat Secretary. Rule 61 of the Kerala Panchayat Building Rules, 2011, deals with "hazardous occupancy." Under this Rule, too, the Secretary needs to, as does the Panchayat under Rule 12 of the D& O Rules, consult various statutory authorities. W.P.(C) No. 35403/2016 -12-
24. To sum up, we may observe that Section 233 of the Act read with Rule 12 of the D & O Rules compels an applicant to get a permit to construct a factory. And Section 235F of the Act read with Rule 61 of the Building Rules deals with the construction or building. The former is purpose-specific, and the latter structure- specific.
25. The Grama Panchayat and the contesting respondents contend that the Somenis do not have the permission under Section 233 of the Act; what they have is a building permit under Section 235F. On the contrary, the Somenis' contend that Ext.P16 is the permission granted by the Panchayat under Section 233, though, as put by the learned Senior Counsel, not happily worded. The arguments and the counter-arguments are galore on this aspect. But we restrain from ruling on this question for the Tribunal has already been seized of the issue. If we adjudicated on it, it would amount to forestalling the decision from a competent judicial forum.
26. In the alternative, let us visualize a situation in which the issue has not been seized of by any other judicial forum but is W.P.(C) No. 35403/2016 -13- raised as a defense against police protection. This Court, even under its summary, extraordinary jurisdiction, can visit the issue. First, the public-law remedy under Article 226 is not only discretionary but also equitable. The Court can serve the ends of justice only if it ensures that no person guilty of breaching a statutory mandate gets the benefit, despite the breach. The Constitutional Court will not open and shut a case only on the issues raised by the suitor. Indeed, the very concept of dominus litis is alien to the public law remedy.
27. So, we answer the issue No.I--Can this Court examine the validity of the licences and the permits the petitioners obtained?--in the affirmative. But on facts, this Court refrains from examining the issue, guided by the principle of equitable abstention4. Issue No.II:
Can the petitioners' claim police protection despite public protests and pending legal proceedings?
28. The protest is free speech in motion. It is like a stream by the road, but not on the road. The road is the rule of law, and the stream the societal reservation embanking that road. The stream 4 Equitable abstention: A federal court's refraining from interfering with a state administrative agency's decision on a local matter when the aggrieved party has adequate relief in the state courts(Black's Law Dictionary) W.P.(C) No. 35403/2016 -14- serves its purpose--draining out the road of the excessive legislative zeal--so long as it does not erode the very road. Indian Constitution provides a place of primacy and pride to a citizen's right to express himself freely (Art.19 (1) (a)) and to assemble peaceably (Art.19 (1)
(b)), both of which combine in public protest. But nothing comes without a price tag, not even our fundamental freedoms. That price tag is prominent in Article 19 (2) to (6) of the Constitution.
29. True, free speech and peaceful protest on matters of public concern are core constitutional virtues unless they descend into vituperation and violence. We may add that "speech concerning public affairs is more than self-expression; it is the essence of self- government".5 The Constitutional Courts have repeatedly stressed the primacy of the fundamental freedoms. They have underlined the need for "free and robust debate of public issues," too.
30. This writ petition involving a Grama Panchayat presents us with a feeling of dij` vu: that this Court has repeatedly faced the same legal issues and repeatedly ruled on them: the rule of law is paramount and public protests--their efficacy as a democratic 5 Garrison v. Lousiana, 379 U.S 64, 74-75 (1964) W.P.(C) No. 35403/2016 -15- measure apart--do not deter the officials from being loyal to the legislative mandate. In Southern Granite Industries v. Pallichal Grama Panchayat6, one of us (Dama Seshadri Naidu, J) considered almost an identical issue: the officials negating the statutory, and even judicial, mandate in the name of public protests.
31. Southern Granite has prefaced its discussion on public protests with an observation that this Court has noticed in numerous writ petitions a common theme running through: the Local Self Governments are unable to discharge their statutory functions, despite the applicants' eligibility to obtain, as in that case, licences, solely on the ground that there have been public protests about the issues. Then, it acknowledges that peaceful protest is a constitutionally consecrated right under Article 19 of the Constitution of India. At any rate, it is a measure to bring to the notice of the executive the shortcomings in their administration or concerning any policy prerogatives that may have been affecting the public at large. As public protests are the order of the day-- exerting, sometimes justifiably and some other times not so 6 2016(1) KHC 207 W.P.(C) No. 35403/2016 -16- justifiably--enormous pressure on the public functionaries, especially at the local government level, it is apposite to dwell on the issue with some detail.
32. The protest is a symbol of strident and vibrant democracy. It is thinking out loud in a democratic discourse--a discourse nevertheless. Public protest is a quasi-legal mechanism at the hands of the general populace for a policy change or even its nullification, but not statutory annihilation; whereas electoral exercising franchise is the very legal mechanism for the same purpose. Thus, the general elections being a constitutional and statutory protest against or affirmation of the executive and legislative policies, public protests, on the other hand, are the intermittent instances of 'thinking-aloud' between. The core constitutional principle of a Republic is that a democratic government, paradoxical as it sounds, is a government of laws, not of men of the majority. In Marbury v. Madison7, Chief Justice Marshall has, in unmistakable terms, echoed the words of John Adams that the Government of United States is a government of laws and not of men. It rings true of any 7 5 U.S. 137, 163 (1803) W.P.(C) No. 35403/2016 -17- other democratic republic, not only the U.S.
33. Erick J. Haynie in 'Populism, Free Speech, and the Rule of Law: The Fully Informed Jury Movement and its Implications',8 has said that under the rule of law, citizen behavior is regulated not according to the passions and prejudices of human beings, but according to objective, published laws formally sanctioned by elected representatives through a pre-ordained process. But this Court is of the view that there is no denying that populism vis-`-vis democracy is a highly contested concept, for democracy has the popular mandate as its base and the rule of law as its crown--a seeming contradiction, though. We may note that a popular protest is, perhaps, a symptom of policy discontent, but not at all a remedy in itself.
34. Dissent is the keystone of the democratic edifice, but it must be in conformity with the very fabric of the edifice--the rule of law. Dissent thus being the legitimate stuff of democracy, its course altering potential is undeniable. Democracy is a cauldron of conflicting political ideologies and policy preferences; the churning 8 88 J. Crim. L & Criminology 343 (Fall 1997) W.P.(C) No. 35403/2016 -18- must go on, but only in an orderly manner--an oxymoron. And it may be to subserve the common good.
35. Indeed, the venerable principle that eternal vigilance is the price of liberty is the constant refrain of any democratic polity. There is, however, a cause for caution and concern that with dissent sans conformity, a democratic society descends into anarchy; but when regulated, it leads to progress. It is, in essence, a vice rather than a virtue to substitute public opinion for law, which in itself is the sanctified popular will. The line is thin. We may recollect the most felicitous words of Abraham Lincoln about the constant conflict between the law and public protests:9 "Let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made. I mean to say no such thing. But I do mean to say, that, although, bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed."
36. Exercising one's franchise in a general election is a wholesale political action, whereas intermittent protests are the preludes to the eventual wholesale action. Thus the protests on a smaller scale involving people of particular areas, a la voting with 9 (The Oxford Dictionary of American Legal Quotations, 1993 Edn, Pg.320) W.P.(C) No. 35403/2016 -19- feet, are usually confined to parochial pockets concerning the commonplace issues. They are essentially aimed at achieving immediate objectives of transitory nature, mostly. Essential as they are, they can never transcend the law, though. The danger is this:
unregulated, the dissent takes different forms; it may transform itself into vigilantism. Vigilantism finds justification in forms as varied as launching peaceful protests to lynching people. For historic reasons the American Constitution has recognised vigilantism (right to bear arms, for example), but Indian Constitution has not.
37. In Beenu Rawat v. Union of India10, the Supreme Court has sounded a word of caution: that nobody can be permitted to paralyse the functioning of police or other State institutions in the name of public protest cannot be rejected off hand because it is only a corollary to the right to protest peacefully; proverbially, the other side of the coin which corroborates the well-accepted principle is that rights without duties tend to degenerate into licence for misuse of rights.
10 (2013) 16 SCC 430 W.P.(C) No. 35403/2016 -20-
38. In Ramlila Maidan Incident11, In re, the Supreme Court has observed that the distinction between "public order" and "law and order" is fine but clear. A restriction imposed by "law and order" in mind would be least intruding upon the guaranteed freedom, while "public order" may qualify for more restriction since the public order is a matter of even greater social concern.
39. Indeed, exalted is the right to protest, as has been consecrated under Article 19(1)(a) & (b) of the Constitution, albeit subject to the restrictions under Article 19(2). But the State is equally under an obligation to preserve the peace and to protect the privacy, the lives, and the property of its people. So long as the democracy does not descend into mobocracy, the protest is paramount as a method of democratic discourse and also as a mode of dissemination of information. It is, to repeat, at best a method to exert pressure on the legislature or the executive to change or fine-tune its legislative or administrative policies, as the case may be.
40. But it must be clarified that however justified an instance 11 (2012) 5 SCC 1, para 44 W.P.(C) No. 35403/2016 -21- of protest is, it cannot hold the rule of law for ransom and negate the statutory mandate. Thus, the officials can hardly be heard saying that they could not discharge their statutory duties on a mere premise that there have been protests; nor can they justify their action at odds with the rule of law in the name of public protest or unrest.
41. In short, we may hold that the officials cannot abdicate their administrative responsibility on the premise there have been public protests. Nor can they alter their course of action with that singular excuse. Sometimes the administrative exigencies make the officials hurry through the procedural rigmarole; in that process, they may make mistakes--at times costly ones, affecting the environment, public safety, to name two hazards. They are not remediless, however. The officials can, with hindsight, realise the mistakes and rectify them, too. But the prerequisite for taking the corrective measures is the due process of law.
42. In the alternative, let us assume that the officials have inadvertently made a mistake in granting the permits or licences. They may have realised it in the wake of public protests. Still, knee- W.P.(C) No. 35403/2016 -22- jerk reactions and cosmetic cover-ups are no answer. They can always put the aggrieved party on notice and remedy the situation, of course, well-within the statutory parameters. In this process, a person may knock the doors of courts, which may, then, dictate the course of action--in the interest of justice.
CONCLUSION:
43. Veering back to the facts, we may observe that the role of the Secretary or the Grama Pacnhayat itself comes into play in terms of clause 7 of Ext.R10(a), the permit issued by the Chief Town Planner, only when the industry starts functioning. For the condition is that the Panchayath Secretary should ensure that the industrial unit functions without disturbing the peace of the nearby residents.
44. The advocate-commissioner, true, has concluded in his report that if the Somenis establish the industry, it may lead to seepage of waste water. He has also offered a solution: the seepage of the waste water can be effectively prevented if the industrial unit re-uses "the water in the unit itself by appropriate mechanism or device". The identified problem is pertinent, but the suggested W.P.(C) No. 35403/2016 -23- solution is gratutious. It is for the experts, say Pollution Control Board, to examine this issue. The contesting respondents can always approach--as they already said to have done--any authority complaining of any hazards posed by the industry.
45. To conclude, we observe that the stop-memo issued by the Panchayat stands stayed by the Tribunal, and the proceedings initiated against the Somenis by a third party have so far not borne any fruit. The upshot is that the permits and the licences are still in force. If a person desires to act on subsisting statutory permits, it is undesirable to prevent him merely because somebody else objects to it. The objection must be legally vindicated. Nor can we persuade ourselves that the pending judicial proceedings should automatically nullify the duly passed orders. If the Somenis proceed lis pendens, they do so at their own risk, for all their acts will be subject to the outcome of the judicial proceedings.
46. The police, we must observe, may not have much of a role to play in a dispute of this nature: somebody trying to establish an industry, and somebody else trying to scuttle it. But, all is said and done, the police's primary concern is law and order. And if it is W.P.(C) No. 35403/2016 -24- threatened, they act--complaint or no complaint.
47. So we hold that if the petitioners are anybody else complain to the police of breach of peace or potential for violence, they will act promptly, in accordance with law.
Thus, we dispose of this writ petition. No order on costs.
ANTONY DOMINIC, JUDGE.
DAMA SESHADRI NAIDU, JUDGE.
rv W.P.(C) No. 35403/2016 -25-