Kerala High Court
S. Pathrose vs State Of Kerala And Ors. on 27 June, 1996
Equivalent citations: AIR1997KER48, AIR 1997 KERALA 48, (1996) 2 KER LJ 177
ORDER S. Sankarasubban, J.
1. Petitioner is the owner of 11 cents of property in Sy. No. 53/3 of Kadakkavoor Village. He applied to the Anjengo Panchayat for licence for manufacturing ice and for constructing a building for the plant. Ext. P1 will show that the Panchayat had permitted him to instal 50 H.P. electric motor. It will further show that the District Medical Officer and the District Fire Force Officer had granted their approval. Ext. P2 is the order issued by the Executive Officer separately on the basis of Ext. P1 sanctioning construction of the work place as well as the starting of industry for manufacturing ice. Ext. P5 registration certificate issued by the Director of Industries and Commerce will show that the product to be manufactured is ice blocks and the raw materials are fresh water and ammonia gas. Petitioner also applied electricity connection and the Electricity Board granted the same by Ext. P6. On the basis of the above, petitioner has started conduction of the building.
2. According to the petitioner, there were frequent interference from the fifth respondent-President of Anehuthengu Muslim Juma Ath during the construction of the building. The proposed ice plant and the mosque are situated on the opposite sides of the road. When there was interference by the fifth respondent, petitioner got police protection from the Revenue Divisional Officer. Subsequently, petitioner received copy of the communication addressed by the District Collector to Circle Inspector of Police, Attingal. This refers to a complaint by the fifth respondent. It is stated that on enquiry, it was found that there is every likelihood of Juma Ath being polluted by dirty water from the proposed ice plant and also the entire atmosphere will be polluted with foul smell of fish. This may create difficulties, for those who go to Juma Ath and ultimately result in communal tension. On the basis of this, Circle Inspector of Police was directed to see that the construction of the building is not made further. Subsequently, petitioner approached the District Collector and sought permission for completion of the construction of the building and undertook that he would not start manufacturing process until he hears from the District Collector.
3. It is seen that on the basis of the complaint of the fifth respondent, District Collector made enquiries through the Circle Inspector of Police and on the basis of this personal inspection, District Collector passed Ext. P9 order by which he came to the conclusion that if the ice plant is allowed to be operated in the area, there is every likelihood of the neighbouring area being polluted and further lorries carrying fish will be parked in front of the Juma Ath and this may ultimately lead to communal tension. By Ext. P9, District Collector directed the Executive Officer, of the Panchayat to cancel the licence. Against Ext. P9, petitioner filed representation before the Government. But the Government dismissed the same by means of Ext; P10 order. Petitioner prayes for quashing of Exts. P7, P9 and P10 and for a direction not to interfere with the construction of the ice plant by the petitioner.
4. Counter-affidavits have been filed by the District Collector as well as by the fifth respondent District Collector submits that the fifth respondent filed a complaint on the basis of which enquiry was started. In paragraph of the counter affidavit it is stated that there was no provision for drainage facilities to discharge the effluent from the factory premises. The lorries laden with fish may stop in the premises of the factory near the Mosque thereby flowing foul water from the lorries to the road and from there to the Mosque's compound and if such a situation is permitted, it may create tension between Muslim and Christian Communities. The law and order authorities cannot put the issue to experiment. In paragraph 14 of the counter affidavit, it is stated that there was no provision for drainage facilities to discharge the effluent from the factory premises. The factory may become potential source of perpetual nuisance. In the counter affidavit filed by the fifth respondent, it is stated that if the plant is allowed to come into existence, it will cause nuisance and further lead to communal tension.
5. I went through the records of the case. On the basis of the instuctions of the District Collector, Circle Inspector of Police made inspection and he filed a report dated 3-5-1988. It is seen from that report that petitioner purchased 11 cents of property from one Rugmini. Before that it belonged to another person. At that time in this 11 cents of property trade in fish was going on. After the petitioner purchased the property, he stopped fish trade. It is also seen that the petitioner has taken loan of Rs. 8,65,000/- from the State Bank of Travancore, Kadakkavoor for the purpose of the ice plant. No doubt, Circle Inspector of Police has reported that there is possibility of pollusion and it may ultimately lead to communal tension. District Collector visited the site and file a report. This is what is stated in the report: "Inspected the land. The proposed site is right in front of a Mosque. Trucks carrying fish may be parked in front of the Mosque and the .... (not legible) (may also flow to the Mosque. This may in a sensitive area like Anchuthengu create problems later. Hence I am not in favour of sanctioning this".
6. Thus it is seen that on a complaint filed by the Juma Ath, District Collector had recommended to the Panchayat to cancel the licence and on the basis of this recommendation, licence was cancelled. Learned counsel for the petitioner Shri. K.L. Narasimhan contended that the interference on the basis of the report of the District Collector is unwarranted. Counsel submitted that Kerala Panchayat Act deals with proceudre for granting licence. He refers to Section 97 of the Kerala Panchayat Act. He further submitted that before granting licence, no objection certificates have been obtained from the District Medical Officer and District Fire Force Officer. Further he submitted that the entire reasoning given by the District Collector is not based on the existing facts. It is the result of mere imaginations. Petitioner wants to manufacture only ice and he is making use of water and ammonia gas. There is no question of any business in fish. The proposed ice plant is situated on one side of the road whereas Juma Ath is situated on the other side of the road and the contention that lorries containing fish will be parked in front of the Mosque is without any basis. As already submitted petitioner wants to trade only in ice and there is no question of contaminated water flowing into the Mosque. Further counsel submitted that the petitioner would get permission from the State Pollution Control Board and he is prepared to obey the directions of the Pollution Control Board to check the possibility of the effluent flowing to the Mosque and to take all necessary steps to make the neighbourhood pollution free. The contention that there will be communal tension is without any basis. If such a view is taken, it will not be possible to start any industry anywhere.
7. Learned counsel for the fifth respondent stated that petitioner has got other properties nearby and further there is possibility of the area being contaminated, which will ultimately cause nuisance to those coming to the Juma Ath. It is to prevent such a situation that the fifth respondent complained. Learned Government Pleader on the basis of the file submitted that the District Collector on the basis of the reports and inspection was of the view that sanction should not be given.
8. After hearing the parties, I am of the view that the action taken by the second respondent in cancelling the licence is without sufficient reasons. Here is a project for establishing ice plant for the purpose of manufacturing ice. Ice plant has not become operational, only building has been constructed. Authority competent to grant licence has granted licence after complying with the procedure required for the same. District Medical Officer as well as Fire Force Officer have given their green signal for starting the industry. Complaint of the Juma Ath is not based on actual facts. It is not known how trade in fish was brought into the picture. May be ice block will be purchased for the purpose of preserving fish and on account of that persons dealing with fish may be coming there for purchasing ice. How, the District Collector on a mere look came to the conclusion that lorries loaded with fish may be parked in front of the Juma Ath and that effluent will flow to the Mosqe. If, as a matter of fact, Collector feels that the working of the ice plant may cause any pollution, he would have directed the petitioner to take all necessary steps to abate the same. But here the ice plant is not started manufacturing ice. District Collector had to test by a trial run of the plant and then come to the conclusion that the ice plant will be harmful. On the basis of mere surmises, District Collector came to the conclusion that pollution will be caused if the ice plant is allowed to operate. Further according to me, District Collector was wrong in saying that communal tension will be created. It is strange that a person, who is in charge of law and order, should say that the starting of an ice plant will create communal tension and hence it should not be started Authorities should take all steps to prevent such situations.
9. Here, I refer with great respect the observations made by Kalliath, J. in the decision reported in Manager, Fort High School v. Government of Kerala, ILR (1991) 2 Ker 811 -- which read thus :
"A law and order situation has to be dealt with by the Government using its prerogative powers granted by the Constitution of India. Citizens are entitled to exercise their lawful rights and for that purpose, Government is bound to give adequate protection. Under the threat of a law and order situation, a citizen cannot be denied to exercise his lawful rights. If this is permitted, it will be an indication of the failure of a constitutional Government. I feel that the prime duty of the Government is to see that every citizen is allowed to exercise his lawful rights even if large number of people are against the exercise of his legal rights".
We cannot forget the fundamental right enshrined in Article 19 of the Constitution of India. Article 19(1)(g) of the Constitution grants fundamental right to every citizen to exercise his professional, trade, etc. Hence, according to me, "Exts. P7, P9 and P10 have been passed without any basis and they are hereby quashed.
10. Since the licence granted by the Panchayat has been cancelled, petitioner has to approach the Anjengo Panchayat again for the grant of licence. Panchayat may require the petitioner to get certificate from the State Pollution Control Board as to the precautions to be taken by the petitioner. I also hereby record the undertaking given that it is only manufacture of ice that is going to take place in the proposed plant. On the basis of the recommendation of the State Pollution Control Board, Panchayat may grant licence to the petitioner for starting the industry.
Original petition is disposed of as above.