Kerala High Court
V.K Janardhanan Nair Aged 47 Years vs Vijayamma on 5 February, 2016
Author: A.M. Shaffique
Bench: Ashok Bhushan, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 6TH DAY OF APRIL 2016/17TH CHAITHRA, 1938
WA.No. 274 of 2016 () IN WP(C).2387/2016
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AGAINST THE ORDER/JUDGMENT IN WP(C).2387/2016 of HIGH COURT OF KERALA
DATED 05-02-2016
APPELLANT(S)/1ST RESPONDENT IN THE WPC:
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V.K JANARDHANAN NAIR AGED 47 YEARS
S/O. KESAVAN NAIR, PROPRIETOR, V.K.J & COMPANY
VADAKKEPUTHANPURA VEETTIL, VARAPETTY P.O.
KOTHAMANGALAM - 686 691, ERNAKULAM DISTRICT.
BY ADVS.SRI.S.SREEKUMAR (SR.)
SRI.ALEXANDER JOSEPH
RESPONDENT(S)/PETITIONERS 1 & 2 & RESPONDENTS 3,4,5 IN WPC:
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1. VIJAYAMMA
AJITH BHAVANAM, ELAMPALLIL, PALLIKKAL
NOORANADU P.O., ADOOR, PATHANAMTHITTA - 690 504
2. LOLAMMA, GURUKULAM
ELAMPALLIL, PALLIKKAL, NOORANADU P.O.
ADOOR, PATHANAMTHITTA - 690 504.
3. MOHAN KUMAR
MANASWINI, THENGAMAM P.O., PALLIKKAL VILLAGE
ADOOR, PATHANAMTHITTA - 690 504.
4. THE DISTRICT COLLECTOR
COLLECTORATE, PATHANAMTHITTA - 689 645.
5. THE ENVIRONMENT ENGINEER
KERALA STATE POLLUTION CONTROL BOARD
PATHANAMTHITTA - 689 645.
6. PALLIKKAL GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, PAZHAKULAM P.O., ADOOR
PATHANAMTHITTA 691 527.
R1-R2 BY ADV. SRI.M.RAJAGOPALAN NAIR
R1-R2 BY ADV. SRI.G.BIJU
R6 BY ADV. SRI.K.SHAJ
R6 BY ADV. SRI.SAJJU.S
BY SR GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR
BY SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2016 , ALONG
WITH WPC. 37718/2015, THE COURT ON 06-04-2016 DELIVERED THE FOLLOWING:
WA NO.274/16
APPENDIX
APPELLANT'S EXHIBITS NIL
RESPONDENTS' EXHIBITS
ANNEXURE R6A. TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY
THE SIXTH RESPONDENT IN THE WRIT PETITION.
ANNEXURE R6B. TRUE COPY OF THE REPORT OF THE SECRETARY OF
THE PANCHAYAT TO THE PANCHAYAT COMMITTEE DATED 10/2/2016
AND ITS ENGLISH TRANSLATION.
//True Copy//
PS to Judge
Rp
ASHOK BHUSHAN, C.J. "C.R."
&
A.M. SHAFFIQUE, J.
================
W.A. No. 274 of 2016
&
W.P. (C) No. 37718 of 2015
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Dated this, the 6th day of April, 2016
J U D G M E N T
Shaffique, J.
WP(C) No. 37718/15 has been filed seeking police protection alleging that respondents 9, 10 and their men are obstructing the petitioner from operating the hot mix plant erected by them for road work of National Highway from Kollam High School Junction to Kadapuzha bridge. According to the petitioner, they have set up the hot mix plant in an extent of 1.50 acres of land which was taken on lease by the petitioner and situated in Pallickal Village. The Pollution Control Board had issued consent to establish the hot mix plant on certain conditions and when attempts were made to establish the same, obstruction was created. In the meantime, the 5th respondent Panchayat issued a stop memo which was stayed by the Tribunal for Local Self Government Institutions as per order dated 7/12/2015 in Appeal W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:2:- No.1052/2015. It is stated that the District Collector had permitted operation of the hot mix plant and despite the complaint being filed before the police seeking police protection for operating the hot mix plant, no action has been taken in the matter and hence the writ petition is filed.
2. Writ Appeal No.274/2016 has been filed by the 1st respondent in WP(C) No. 2387/16 challenging interim order dated 5/2/2016. This writ petition was filed during the pendency of WP (C) No. 37718/2015.
3. During the pendency of WP(C) No. 37718/2015, an interim order was passed on 15/12/2015 directing the 8th respondent to ensure that no obstruction is created by respondents 9 and 10 in running the temporary hot mix plant by the petitioner and for transporting materials. While passing the interim order, we have also taken note of the fact that consent has been obtained from the Pollution Control Board for operating the plant. A further interim order was passed on 18/1/2016 when allegation was made that despite the earlier interim order, obstruction still continues and sufficient police force was not W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:3:- available.
4. While the above writ petition was pending, two private parties filed WP(C) No. 2387/2016 seeking to quash Ext.P4 and for a declaration that installation of the aforesaid hot mixing plant requires permission from the Panchayat under Section 233 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the Act), for a direction to the 1st respondent to permit operation of the hot mixing plant only after obtaining consent to operate from the Pollution Control Board and other consequential reliefs were also sought for. The petitioners claimed that the hot mixing plant is situated in a thickly constructed area and is causing substantial pollution and that no permission was obtained from the Panchayat under Section 233 of the Act. It is also alleged that though they obtained a consent to establish, consent to operate had not been obtained. The plant is located in a thickly populated area near a natural stream and an Anganvady.
5. In the writ petition, counter affidavit is filed on behalf of the 1st respondent, who is the petitioner in WP(C) No. 37718/15 inter alia contending that they have obtained consent to operate W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:4:- from the Pollution Control Board and no permission from the Panchayat is required in the matter. It is stated that though a stop memo was issued by the Panchayat, the same has been stayed by the Tribunal, which order is extended until further orders as per order dated 22/12/2015. They also claimed exemption in terms of Section 233 B(d) of the Act and contended that it is a portable machine akin to concrete mixers used for construction activity and does not require permission from the local authority. The respondent also contended that the petitioners are not residing in the nearby locality. According to them, the operation of the mixing unit is as per the norms stipulated by the Pollution Control Board and there is no pollution at all, as there is no effluent being generated while using the hot mixing plant.
6. Petitioners filed a reply affidavit controverting the above stand and contended that the hot mixing plant is not a portable one exempted in terms of Sec.233B of the Act. The 5th respondent Panchayat has filed counter affidavit inter alia stating that the hot mixing plant can be installed only after W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:5:- obtaining permission under Section 233 of the Act and licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996.
7. The learned Single Judge by an interim order dated 5/2/2016 directed the Panchayat to take a decision whether licence is required in terms of Section 233(b)(2) of the Act, after adverting to the nature of the operation of the hot mixing plant, if any request is made by the 1st respondent. It was further observed that if the permit is not required, Panchayat has to issue a certificate to that effect and if it is refused, Panchayat has to pass a reasoned order adverting to the nature of operation of the hot mixing plant. It is also observed that it shall be open for the respondent to operate the unit after appraising the Panchayat authorities. However, they shall not operate the unit without obtaining further orders from the Court.
8. Since common issues arise for consideration in the writ appeal as well as in the writ petition, both are heard and decided together. The parties are referred to as described in the writ appeal. There is no dispute about the fact that the appellant has W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:6:- obtained a consent to establish as well as consent to operate the hot mixing plant from the Pollution Control Board. Therefore, once they operate the same in accordance with the conditions specified therein, the question of pollution may not arise. However, the learned counsel appearing for respondents 1 and 2 submits that as per the General Emission Standards as provided under Schedule VI Part D of the Environment (Protection) Rules, 1986, Particulate Matter (PM) is specified as 150. That standard had been fixed so that the concentration of Particulate Matter shall not exceed 150 mg/Nm3. The contention urged is that in the consent to operate issued by the Pollution Control Board, the Particulate Matter specification is shown as 250 mg/Nm3.
9. Learned counsel for Pollution Control Board on instructions would submit that the standard had been fixed as far as the hot mix plant is concerned taking into account the actual functioning of the equipment. However, taking into account the factual circumstances involved in the matter, appropriate directions can be issued to verify the necessity to reduce the Particulate Matter taking into account the general emission W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:7:- standards as well. Therefore, we do not think that the allegation of pollution or discharge of water to the nearby water sources are all matters which should be addressed when the Pollution Control Board has given consent to operate on certain conditions. In fact, even before giving consent to operate, Pollution Control Board issues a consent to establish the unit and it is after satisfying the parameters fixed by them in the consent to establish, that a consent to operate is issued. Despite such a situation, if any one feels that there is still pollution, it shall always be open for the parties to bring the matter to the notice of the Pollution Control Board who has to take appropriate action in accordance with law.
10. Therefore, having found that the apprehension of pollution is taken care of by the Pollution Control Board, the other question is whether the hot mix plant can be operated without obtaining a permission under Section 233 or a licence under Section 232 of the Act. When the Panchayat had issued a stop memo, the appellant had preferred an appeal before the Tribunal for Local Self Government Institutions and the stop memo had been stayed. Nevertheless, in view of the contention urged by W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:8:- the Panchayat that permission under Sec.233 and a licence under Sec.232 is required for establishing and operating the hot mixing plant, we do not think that the learned Single Judge was justified in directing the Panchayat to again consider the matter as they have expressed in clear terms that Sections 232 and 233 apply to the fact situation.
11. The learned senior counsel for the petitioner submits that Sections 233 or 232 have no application for erecting a hot mixing plant. As per Section 233(1)(b), necessary permission from Village Panchayat is required for installing any machinery or manufacturing plant driven by any power either steam power, water power, mechanical power or electrical power unless such machinery or manufacturing plant is exempted by the provisions of the Act, or the Rules. It is argued that Section 233B contains certain exemptions, which provision starts with a non obstante clause and indicates that notwithstanding anything contained in Sec.233, no permission of Village Panchayat shall be required for installation of establishment of certain type of machineries. Sub clause (d) indicates "portable drilling machines and portable W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:9:- engines used for construction purpose such as concrete mixers". It is argued that hot mixing plant comes within the purview of portable engines used for construction purpose. It is argued that hot mixing plant is used for mixing granite metal with tar and sand for the purpose of road work. It has the utility of a concrete mixture. This machine is installed for temporary purposes and it is portable as it is taken from one site to the other, though transported in trucks. It is argued that when the statute itself exempts such machinery merely because it has a huge size does not indicate that it is not portable. It is not a permanent installation whereas it is installed only for limited period and that too for a public purpose.
12. On the other hand, learned counsel appearing for respondents 1 and 2 while placing reliance on the judgment of the Supreme Court in M.C.Mehta v. Union of India (AIR 1999 SC 2367) contends that hot mixing plants are considered to be creating substantial pollution and in a matter relating to erecting hot mixing plant, for the purpose of tarring works related to Delhi Airport, the Supreme Court had occasion to relax the restriction W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:10:- imposed in using hot mixing plant in New Delhi and had observed that while permitting setting up of hot mix plants for resurfacing of the runways of Airport at New Delhi, the same is permitted since resurfacing of Airport Runways is a work of national importance which has to be carried out, so that the Airport is operational and does not cause any operational hazard at the time of landing or take off. It is stated that the environmental problem has to balance with the necessity of running an International Airport in the Capital of India. The argument of the learned counsel is that hot mix plants cause substantial pollution which has been taken note of by the Supreme Court in the aforesaid judgment and therefore, it is not something which can be treated as a small activity. It is also contended that even as per the consent to operate issued by the Pollution Control Board, the capacity of the unit is to prepare BMBC Mixture of 259 MT per day of which the water consumption itself will come to 14000 litres per day. Hence the argument is that though it is termed as a temporary hot mix plant, it is not a portable machinery.
13. Learned counsel appearing for the Panchayat also W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:11:- supports the view and reiterates the contention that Sections 233 and 232 apply to the installation of the hot mix plant, which is not exempted under the provisions of the Act. The learned counsel for the respondent produced certain photographs to indicate that the machinery is having a larger volume than ordinary concrete mixtures. No doubt, this is an equipment which requires to be moved only by using heavy machinery. It cannot be carried from one place to another easily. It is true that the word 'portable' normally means that, it is easy to carry. What is exempted under the provisions of the Act is with reference to portable drilling machines and portable engines. These are all equipments which cannot be easily carried. But it is being taken from one site to another and therefore, the meaning of the word portable cannot have a limited meaning, whereas, it has to be given a wider perspective, as the machineries are used for construction purposes and which includes concrete mixtures. Concrete mixtures are also of different dimensions and it is not easy to carry. Therefore, the word portable has to be considered taking into account various construction activities and the machineries W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:12:- used in such construction sites. Viewed in that angle, a machinery installed as a temporary measure for the purpose of a construction activity can also be termed as a portable machine. It is not a permanent fixture and it is definitely capable of being moved from one site to another site. The largeness of the machinery will not exclude it from the meaning of the word "portable" used in the statute. If a concrete mixture is considered to be portable, a hot mix plant having a dimension, may be a little more than a concrete mixture, can also be treated as "portable". Therefore, we are of the view that the Panchayat cannot contend that an application under Section 233 is required for the purpose of installing a hot mix plant which is used for preparation of hot mix for tarring purposes and that too with reference to construction of a High Way.
14. The next question is whether Section 232 applies to the fact situation. Section 232 requires a licence from the Secretary for any person to use the notified area of the Panchayat for any trade, which is notified as offensive or dangerous to human life or health or property. Schedule 1 of D & O Rules W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:13:- specifies the trade or business which cannot be conducted without a licence under Section 232. Item No.117 relates to "Tar- storing, packing, refining, preparing or selling". Operation of a hot mixing plant is not specified in Schedule I to the D & O Rules. What is provided is only storing, packing, refining, preparing or selling tar. This is not an activity by which there is storage, packing, refining, preparing or selling tar. The activity involved in a hot mix plant is to mix tar with sand and granite metal or other compounds for preparing a bitumen mix for tarring road. In so far as there is no specific provision in Schedule I, neither D & O Rules nor Sections 232 or 233 apply to the fact situation.
15. Having regard to the aforesaid finding, we are of the view that neither Section 232 or 233 does not apply to a temporary hot mixing plant set up for construction purpose.
16. That apart, it is evident from the factual circumstances involved in the matter that the machinery is set up for the purpose of construction of a National Highway which is in public interest. Therefore, we are of the view that the learned Single Judge was not justified in relegating the matter to the Panchayat. W.A. No. 274 of 2016 & W.P. (C) No. 37718 of 2015 -:14:-
17. Having regard to the aforesaid findings;
(i) WP(C) No. 37718/2015 is disposed of in the light of the interim orders dated 15/12/2015 and 18/1/2016.
(ii) WA No. 274/2016 is allowed. Interim order dated 5/2/2016 in WP(C) No. 2387/2016 is set aside.
Sd/-
ASHOK BHUSHAN, CHIEF JUSTICE Sd/-
A.M. SHAFFIQUE, JUDGE Rp //True Copy// PS to Judge