Kerala High Court
A.A. Sakeer vs Shinu on 31 December, 2012
Bench: K.M.Joseph, C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
FRIDAY, THE 1ST DAY OF FEBRUARY 2013/12TH MAGHA 1934
WP(C).No. 27703 of 2012 (K)
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PETITIONER(S):
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A.A. SAKEER,
S/O.A.K.ALIAR, RESIDING AT AMBADAM, RAYONPURAM.P.O.,
PERUMBAVOOR, PROPRIETOR-A.P.K.POLYMERS, VALLAM,
OKKAL P.O.
BY SRI.K.GOPALAKRISHNA KURUP,SENIOR ADVOCATE
BY ADVS.SRI.S.MANU
SMT.K.DEEPA (PAYYANUR)
RESPONDENT(S):
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1. SHINU,S/O.ALIYAR, RESIDING AT VADAKKANVEETTIL,
CHOONDI BHAGOM,CHELAMATTOM VILLAGE,
OKKAL.P.O, ERNAKULAM DISTRICT - PIN-683 550.
2. ASSI, RESIDING AT NJATTUVELAYIL VEETTIL, CHOONDI BHAGOM,
CHELAMATTOM VILLAGE, OKKAL.P.O, PIN-683 550,
ERNAKULAM DISTRICT.
3. ISAHAC, S/O.ALIKUNJU, RESIDING AT THOTTATHIKULAM VEETTIL,
CHOONDI BHAGOM, CHELAMATTOM VILLAGE, OKKAL.P.O.,
PIN-683 550, ERNAKULAM DISTRICT.
4. SALIM, S/O.KUNJU MOHAMMED, RESIDING AT PALLATHUKUDI,
CHELAMATTOM VILLAGE, OKKAL.P.O, PIN-683 550,
ERNAKULAM DISTRICT.
Kss ..2/-
..2....
WPC.NO.27703/2012 K
5. SUDHEER, S/O.KUNJEENKUTTY, RESIDING AT CHENTHARA VEETTIL,
VALLOM BHAGOM, CHELAMATTOM VILLAGE, OKKAL.P.O.,
PIN-683 550, ERNAKULAM DISTRICT.
6. THE PRESIDENT,
OKKAL GRAMA PANCHAYATH, OKKAL.P.O, PIN-683 550,
ERNAKULAM DISTRICT.
7. THE SECRETARY,
OKKAL GRAMA PANCHAYATH, OKKAL.P.O, PIN-683 550,
ERNAKULAM DISTRICT.
8. SUB INSPECTOR OF POLICE,
PERUMBAVOOR, PIN-683 542, ERNAKULAM DISTRICT.
9. CIRCLE INSPECTOR OF POLICE,
PERUMBAVOOR, PIN-683 542, ERNAKULAM DISTRICT.
10. DEPUTY SUPERINTENDENT OF POLICE,
PERUMBAVOOR, PIN-683 542, ERNAKULAM DISTRICT.
*ADDL.R11 IMPLEADED:
R11. KERALA STATE POLLUTION CONTROL BOARD,
REPRESENTED BY CHIEF ENVIRONMENTAL ENGINEER,
REGIONAL OFFICE, ERNAKULAM.
*(ADDL.R11 IS SUO- MOTU IMPLEADED AS PER ORDER
DATED 31.12.2012 IN W.P(C))
R1 TO R5 BY SRI.K.RAMAKUMAR,SENIOR ADVOCATE
BY ADVS. SRI.S.M.PRASANTH
SMT.SMITHA GEORGE
R7 BY ADVS.SRI.SIBY MATHEW
SRI.PHILIP J.VETTICKATTU
R8 BY STATE ATTORNEY SRI.P.VIJAYARAGHAVAN
R8 TO R10 BY SR.GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR
R11 BY ADV.SRI. M.AJAY,SC, KERALA STATE POLLUTION CONTROL BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11/01/2013, THE COURT ON 01/02/2013 DELIVERED THE
FOLLOWING:
Kss
WPC.NO.27703/2012 K
APPENDIX
PETITIONER'S EXHIBITS:
EXT-P1 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE
ASSISTANT DIVISIONAL OFFICER,FIRE AND RESCUE SERVICES,ERNAKULAM.
EXT-P2 TRUE COPY OF THE REPORT OF THE DISTRICT MEDICAL OFFICER,
ERNAKULAM.
EXT-P3 TRUE COPY OF THE ORDER NO.A2-07/2012/2013 DATED 02.07.2012 ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONER.
EXT-P4 TRUE COPY OF THE CONSENT TO ESTABLISH,ISSUED TO THE PETITIONER
30.06.2012 BY THE KERALA STATE POLLUTION CONTROL BOARD.
EXT-P5 TRUE COPY OF THE LICENSE DATED 06.07.2012 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER.
EXT-P6 TRUE COPY OF THE NOTICE DATED 08.10.2012 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER.
EXT-P7 TRUE COPY OF THE ORDER DATED 22.10.2012 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER.
EXT-P8 TRUE COPY OF THE JUDGMENT DATED 31.10.2012 IN WP(C)25563/2012.
EXT-P9 TRUE COPY OF THE LETTER DT.13.11.2012 FROM THE 6TH RESPONDENT
TO THE 8TH RESPONDENT.
EXT-P10 TRUE COPY OF THE F.I.R.IN CRIME NO.2438/2012 OF
PERUMBAVOOR POLICE STATION.
EXT-P11 TRUE COPY OF THE PETITION DATED 13.11.2012 SUBMITTED BY THE
PETITIONER BEFORE THE 10TH RESPONDENT.
EXT-P12 TRUE COPY OF THE ORDER DATED 23/11/2012 IN WPC.NO.27792/2012.
Kss ..2/-
..2....
WPC.NO.27703/2012 K
EXT.P13: COPY OF THE APPLICATION BY THE PETITIONER FOR ISSUE OF
EXT.P3 LICENCE DTD. 2/06/2012.
EXT.P14: COPY OF THE APPLICATION DTD. 6/07/2012 FOR ISSUE OF EXT.P-5
LICENCE BY THE PETITIONER.
EXT.P15: COPY OF THE ENQUIRY REPORT IN RESPECT OF THE SAME
OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT.
EXT.P16: COPY OF THE STATEMENT SHOWING LIST.
EXT.P17: COPY OF THE PLAN SHOWING THE DETAILS OF THE MACHINERY
TO BE INSTALLED IN THE EXISTING FACTORY BUILDING
SUBMITTED TO THE PANCHAYAT.
EXT.P18: COPY OF THE LICENCE ISSUED BY JOINT DIRECTOR OF FACTORIES
AND BOILERS DTD. 8/03/2012.
EXT.P19: COPY OF THE LETTER TO THE JOINT DIRECTOR, FACTORIES AND
BOILERS OFFICE, ERNAKULAM FROM THE PETITIONER DTD.18/9/2012.
EXT.P20: COPY OF THE APPLICATION FOR AMENDMENT DTD. 22/09/2012.
EXT.P21: COPY OF THE CHALAN RECEIPT DTD. 22/09/2012.
EXT.P22: COPY OF THE LETTER NO.A1-922/2012 DTD. 12/12/2012.
RESPONDENTS' EXHIBITS:
R1(B): COPY OF THE LOCATION SKETCH.
R2(A): COPY OF ORDER DTD. 23/11/2012 PASSED BY THIS RESPONDENT
CANCELLING THE LICENSE ISSUED TO THE PETITIONER.
/TRUE COPY/
P.S.TO JUDGE
Kss
K.M. JOSEPH & C.K. ABDUL REHIM, JJ.
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W.P (c) No. 27703 OF 2012
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DATED THIS THE 1st DAY OF FEBRUARY, 2013
J U D G M E N T
Abdul Rehim, J:
This writ petition is filed by proprietor of an industrial unit proposed to be established which is engaged in manufacture of 'Amino Resin'. The unit has not commenced production and is only at the stage of installation of machineries. The petitioner is seeking direction to respondents 8 to 10 to afford adequate protection to carry out the construction and installation works as permitted under Ext.P3.
2. Contentions in brief are that, the petitioner was running a Timber industry in the building in question under the name and style "APK Timber Industries" from 1995 onwards. After winding up of the said industry, he decided to start a Resin manufacturing unit under the name and style "APK Polymers". On the basis of Exts.P1 and P2 no-objection certificates obtained from the Fire and Rescue W.P.(C) No.27703/2012 -2- Department and District Medical officer, the 7th respondent had issued Ext.P3 permission for installation of machinery in the building in question, to the extent of 40 H.P. Electic Motor, for starting production of Resin. Exhibit P3 permission was granted on the basis of 'consent to establish' obtained from the Additional 11th respondent. Eventhough 6th respondent panchayat had issued Ext.P5 licence under Section 232, the same was subsequently cancelled, as evident from Ext.P6 (a), on the basis that the petitioner had not obtained 'consent to operate' from the Pollution Control Board .
3. Grievance of the petitioner is that respondents 1 to 5 and their men are not permitting the petitioner to continue with works for installation of machinery, on the strength of Ext.P3 permission. Allegation is that on 27-10- 2012 the respondents 1 to 5 and their men had trespassed into the premises and caused threat to the life of the petitioner and his brother, for which Ext.P10 criminal case was registered. With respect to continued threat and W.P.(C) No.27703/2012 -3- obstructions the petitioner had submitted Ext.P11 complaint before the 10th respondent seeking police protection. Since no action was taken by the police, this writ petition is filed.
4. In the counter affidavit filed on behalf of respondents 1 to 5, inter alia it is contended that, by virtue of Ext.R1 (a) the panchayat had denied permission for installation any machinery. It is further stated that the respondents 1 to 5 had filed W.P (c) No.27792/2012 before this court in which an interim order was issued stopping all operations of the petitioner. Further allegation is that there is no approved plan for construction of the Factory and the re-construction of the building, attempted for another purpose, cannot be permitted. The factory in question is not satisfying requirements for manufacturing Amino Resin, which a toxic substance. In brief, according to the respondents, the permission granted under Ext.P3 is not legal and is not in order and hence the petitioner is not entitled to proceed with any construction for establishment of an industry producing poisonous and toxic substance in a W.P.(C) No.27703/2012 -4- manner causing health hazard to people residing in the locality.
5. Along with the reply affidavit the petitioner had produced Ext.P12 interim order of this court, which will indicate that the restrainment imposed is only with respect to commencement of production or operation of the unit. It is also contended that there is no requirement for obtaining any building permit since the proposed factory is to be installed only in an existing building. It is contended that obstructions and resistance now attempted are only ill- motivated, because whether there will be any nuisance or health hazard can be assessed only when the factory starts functioning.
6. The 7th respondent, Secretary of the panchayat, had filed counter affidavit conceding that the Panchayat committee had granted permission for establishment of the unit, as contemplated under Section 233. It is stated that, by mistake a licence was issued under Section 232 treating the 'consent to establish' granted by the Pollution Control W.P.(C) No.27703/2012 -5- Board as 'consent to operate'. Subsequently the licence was cancelled after considering objections of the petitioner submitted against a show cause notice, in view of the directions contained in Ext.P8 judgment of this court in W.P
(c) No.25563/2012.
7. Heard; Sri. K. Gopalakrishna Kurup, Senior counsel appearing for the petitioner and Sri. K. Ramkumar, Senior counsel appearing for respondents 1 to 5, and also the standing counsel appearing for respondents 6 and 7.
8. On behalf of respondents 1 to 5, strong contentions are raised to the effect that the petitioner is not entitled to establish the unit on the basis of Ext.P3, which is illegal and unsustainable. It is contended that, permission to establish a workplace/factory as contemplated under Section 233 (1) (a) of the Kerala Panchayat Raj Act and Rule 12 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 has not been obtained. According to learned senior counsel appearing for respondents 1 to 5, no proper application was W.P.(C) No.27703/2012 -6- submitted seeking permission for construction or establishment of the factory, along with any plan or sketch of the building showing details of residential houses situated within 100 meters radius. Pointing out to various provisions contained in the Factories Act and Rules framed thereunder, it is contended that the petitioner has not obtained the required permissions. It is also contended that the Grama Panchayat has not obtained any approval from the Inspector of Factories as required under sub-Rule 5 of Rule 12 of the licensing Rules, with respect to the suitability of the building. It is further contended that the Amino Resin intended to be manufactured is a hazardous substance coming within the purview of the Environment Protection Act and Rules made thereunder and unless special permission is obtained in this regard the petitioner is not entitled to establish such an industry.
9. The above contentions were met by learned senior counsel appearing for the petitioner submitting that the machineries are sought to be installed in an existing factory W.P.(C) No.27703/2012 -7- building, which was constructed after getting the required permissions. It is also contended that the Timber industry, which was conducted in the building, was having licence under the Factories Act and the petitioner had already applied for the requisite amendments in the licence, with respect to change of the name and substitution of the nature of activity.
10. Question remains as to whether it is proper for this court to adjudicate upon validity of Ext.P3 permission or on the question regarding adequacy of the permissions and licences required for establishing the industry in question. Fact remains that the petitioner had obtained Ext.P3 permission for installation of machinery for the purpose of a Resin manufacturing unit. It is evident that the said permission was granted on the basis of a 'consent to establish' granted by the Pollution Control Board and no objection certificates obtained from the Fire & Rescue Department and the District Medical officer. There is no material to show that respondents 1 to 5 or anybody else W.P.(C) No.27703/2012 -8- have challenged Ext.P3 by resorting to any statutory remedies available. There is no evidence to show that the 'consent to establish' granted by the Pollution Control Board was challenged before the statutory appellate authority. Nobody has challenged the steps taken by the petitioner for establishment of the factory or for installation of machinery on the ground of lack of requisite permissions provided under the Kerala Panchayat Raj Act or the Rules framed thereunder, or required under any other law which is in force and applicable to the industry in question. Admittedly the panchayat has not granted licence to run or to operate the unit in question. It is also evident that the Pollution Control Board has not granted 'consent to operate'. Presumably the unit will be permitted to start production only on the petitioner complying with all the conditions imposed in Ext.P3 permission and the 'consent to establish' granted. The petitioner will also be liable to comply with all conditions which will be incorporated in the 'consent to operate' to be obtained before commencing production. It is W.P.(C) No.27703/2012 -9- always left open to any person aggrieved by the grant of such permission and consents to challenge them in appropriate proceedings. Further, it is for the authorities concerned to consider, taking note of all objections and factual situations prevailing, as to whether the consent to operate or running licence for commencement of production is to be granted or not. More over persons aggrieved can also approach the authorities concerned for revocation or cancellation of the permission or consent, in accordance with the relevant provisions, to the extent permissible. In the case at hand the obstruction alleged is created without resorting to any such steps.
11. Sri. K. Ramkumar, learned senior counsel contended that this court may not exercise the discretionary jurisdiction vested, in favour of a person who had obtained the permission in an illegal manner. In other words, the contentions is that, if this court is prima facie satisfied that the activity with respect to which police protection sought for is per-se illegal, it should refrain from extending any W.P.(C) No.27703/2012 -10- help in perpetuating such illegality. Learned Senior Counsel placed reliance on the decision of the hon'ble apex court in M.I. Builders Pvt. Ltd. V. Radhey Shyam Sahu (AIR 1999 SC 2468) to canvass the dicta that the discretion cannot be exercised in moulding a relief which encourages or perpetuates an illegality. It is held therein that an unauthorised construction, if it is illegal, cannot be compounded, and is to be demolished. On facts, the case relates to an unauthorised constructions made in a parking lot. Reliance is also placed on a Division Bench decision of this court in Essar Telecom Infrastructure (P) Ltd. V. State of Kerala (2011 (2) KLT 516) to which one among us (Justice K.M. Joseph) is a party, in order to emphasise that it is an indispensable requirement to get permission for construction or establishment of any factory, workshop or workplace in which electrical power is employed, as contemplated under Section 233 of the Kerala Panchayat Raj Act, even in a case where Section 232 is not applicable. W.P.(C) No.27703/2012 -11-
12. In the case at hand the complaint is regarding inaction on the part of police authorities in preventing criminal acts and in protecting life and property of the petitioner. The petitioner is alleging failure in duty cast upon the executive authorities, inspite of specific demand. The relief if granted will virtually result in permitting the petitioner to install machineries in the premises in question for starting the industry proposed. Normal rule is that whenever there is failure on the part of the executive to discharge their bounden duties, this court should interfere to protect the fundamental rights of the citizens. But of course, the jurisdiction cannot be exercised to legalise an illegal activity or to permit perpetuation of an illegality. On the facts of the case questions arise as to whether the grant of Ext.P3 permission is valid or proper. Whether there was requirement to obtain a consent to establish the factory, as contemplated under Section 233 (1) (a) apart from the permission contemplated under sub Section (1) (b), in case when the machineries are sought to be installed in an W.P.(C) No.27703/2012 -12- existing factory building. Whether a new licence under the Factories Act and Rules ought to have been insisted for granting the installation permission. Whether any special permission or licence was required on the basis that the activity proposed is for manufacture of hazardous substances. All these questions cannot be adjudicated in this writ petition, because it requires consideration of various materials and evaluation of various factual aspects, which are in dispute. Fact remains that various competent authorities empowered to grant permission and consent had allowed the petitioner to install machinery for the proposed industrial unit. The persons who are allegedly obstructing setting up of the industry has not taken any efforts to question such permissions, consents or no-objections in any legal manner. They have also not resorted to any method recognized under law to prevent the activity of establishment or installation of the industrial unit, if it lacking in any other requisite permissions or licences. Instead, they are taking law into their own hands and W.P.(C) No.27703/2012 -13- resorting to methods of prevention amounting to illegal and criminal activities. In the given circumstances, this court is not in a position to conclude that the permission, consent or no-objection obtained are per-se illegal to deny the discretionary relief. It is not just and proper to venture upon a threat-bare adjudication on the validity of those permission/consent/no-objections or to evaluate the necessity for having any further licences. This especially because of the fact that this is not a writ petition filed in challenge of the validity of those matters. Considering the balance of convenience, if the relief is declined that will amount to legalising the criminal actions of the obstructors in preventing an activity which is already permitted by competent authorities on the basis of which the petitioner had accrued rights, which remains not challenged in any legal manner. On the other hand, if the activity permitted is illegal, then the respondents are always at liberty to establish the same through methods known to law and to prevent such activities. They are also at liberty to challenge W.P.(C) No.27703/2012 -14- the authorisations already granted and to object to the grant of further licences/consents/permissions for functioning or commencement of the industry in question. Therefore, declining relief to the petitioner will definitely result in irreparable legal injuries. Hence we are not convinced that there exist any valid or convincing reasons to deny the discretionary relief.
13. In the result the writ petition is allowed. The respondents 8 to 10 are directed to afford adequate police protection to the petitioner against respondents 1 to 5 or anybody acting under them, from causing any sort of obstructions to the establishment/installation works as permitted in Ext.P3 in the building mentioned therein, as long as Exts.P3 and P4 remains valid and in force.
14. It is made clear that the above directions will not stand in the way of the respondents 1 to 5 or anybody else in challenging Exts.P1 to P4 before any appropriate forum or in objecting the grant of consent or licence for functioning of the industry or for commencement of W.P.(C) No.27703/2012 -15- production. It will also not stand in the way of respondents 1 to 5 or anybody else resorting to any remedy available under law to contend that the petitioner has no permission under Section 233 (1)(a) of the Panchayat Raj Act, 1994 or under any other grounds sustainable under law. It is further made clear that the establishment/installation of the industry on the basis of the order of protection granted will be at the sole risk of the petitioner and the directions contained herein will not in any manner allow the petitioner to start functioning of the industrial unit, unless required consents/permissions and licences are obtained from competent authorities.
15. It is further made clear that the authorities concerned will be free to decide eligibility for grant of licence/consent for commencing production, untrammelled by any observations contained in this judgment.
Sd/-
K.M. JOSEPH, JUDGE.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge