Kerala High Court
Jilmon John vs Manakad Grama Panchayath on 14 March, 2016
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938
W.P(C).No.17418 of 2016 (B)
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PETITIONER(S):-
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1. JILMON JOHN,
MADATHIL HOUSE, MANAKAD POST, THODUPUZHA.
2. JINO JOHN ,
MADATHIL HOUSE, MANAKAD POST, THODUPUZHA.
BY ADVS.SRI.MATHEW JOHN (K)
SRI.DOMSON J.VATTAKUZHY
RESPONDENT(S):-
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1. MANAKAD GRAMA PANCHAYATH,
CHITTOOR, PUTHUPARIYARAM POST,
IDUKKI DISTRICT-685 608, REPRESENTED BY ITS SECRETARY.
2. THE SECRETARY,
MANAKAD GRAMA PANCHAYATH, CHITTOOR,
PUTHUPARIYARAM POST, IDUKKI DISTRICT-685 608.
3. THE DISTRICT ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
IDUKKI-685 501.
R1 & R2 BY ADV. SRI.M.R.DHANIL
R1 & R2 BY ADV. SMT.M.R.JAYALATHA
R1 BY ADV. SRI.M.H.HANIL KUMAR
R3 BY STANDING COUNSEL SRI.T.NAVEEN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14-10-2016, ALONG WITH W.P(C).NOS.8725 OF 2016-M & 16515 OF 2016-L,
THE COURT ON 17-10-2016 DELIVERED THE FOLLOWING:
WP(C).No.17418 of 2016 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXT.P1 A COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER'S
BROTHER, JINO JOHN IN FAVOUR OF THE PETITIONER dt.18.12.2015.
EXT.P2 A COPY OF THE CIRCULAR DTD.1.10.2015 ISSUED BY THE CHAIRMAN
OF THE PCB.
EXT.P3 A COPY OF THE CONSENT TO ESTABLISH DTD.22.12.2015 ISSUED BY
THE ENVIRONMENTAL ENGINEER.
EXT.P4 A COPY OF THE RECEIPT DTD.13.2.2016 ACKNOWLEDGING THE
RECEIPT OF THE APPLICATION FOR PERMIT SUBMITTED BY THE
PETITIONER.
EXT.P5 A COPY OF THE PERMIT IN FAVOUR OF THE PETITIONER
DTD.15.2.2016 BY THE 2ND RESPONDENT.
EXT.P6 A COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT
DTD.17.2.2016.
EXT.P7 A COPY OF THE LETTER DTD.18.2.2016 BY THE 2ND RESPONDENT TO
THE DISTRICT MEDICAL OFFICER, IDUKKI.
EXT.P8 A COPY OF THE LETTER BY THE 2ND RESPONDENT TO THE ASST.
DIVISIONAL OFFICER KERALA FIRE AND RESCUE SERVICES, IDUKKI.
EXT.P9 A COPY OF THE NO OBJECTION CERTIFICATE DTD.19.2.2016 ISSUED
BY THE ASST. DIVISIONAL OFFICER, IDUKKI.
EXT.P10 A COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT
DTD.4.3.2016.
EXT.P11 A COPY OF THE ORDER DTD.7.4.2016 IN WPC NO.8725/2016.
EXT.P12 A COPY OF THE MINUTES OF THE MEETING DTD.15.4.2016 HELD BY
THE CHIEF SECRETARY.
EXT.P13 A COPY OF THE ORDER DTD.18.4.2016 BY THE SECRETARY TO THE
GRAMA PANCHAYATH.
EXT.P14 A COPY OF THE ORDER OF THE 2ND RESPONDENT DTD.29.4.2016.
EXT.P15 A COPY OF THE ORDER OF THE 2ND RESPONDENT DTD.5.5.2016 ALONG
WITH THE ORDER IN WP(C).NO.16515/2016.
WP(C).No.17418 of 2016 (B) - 2 -
RESPONDENT(S)' EXHIBITS:-
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EXT.R1(a) TRUE COPY OF THE COMPLAINT RECEIVED BY THE 1ST RESPONDENT
PANCHAYAT AGAINST THE HOT MIX PLANT.
EXT.R1(b) TRUE COPY OF THE MINUTES OF THE MEETING DT.19.2.2016.
EXT.R1(c) TRUE COPY OF DECISION OF THE PANCHAYAT COMMITTEE
DATED 14/03/2016.
vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C) Nos.17418 of 2016-B, 8725 of 2016-M & 16515 of 2016-L
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Dated this the 17th day of October, 2016
JUDGMENT
All these writ petitions deal with the establishment of a hot mix plant; two for and one against. Arguments have been addressed by the parties based on the documents produced in W.P(C) No.17418 of 2016; which is filed by the co-owners of the property one of whom intends to set up the unit in the property; who is the sole petitioner in W.P.(C) No.8725 of 2016. The first writ petition challenge the cancellation of a permission to establish the unit and the second challenge the subsequent rejection of an application for construction of building, on the ground of the pending litigation before this Court. W.P.(C).No.16515 of 2016 is filed by a neighbouring property owner, who raised a complaint against the establishment of the unit before the Panchayat and sought for implementation of the stop memo issued by the Panchayat, styling the said stop memo to be a prohibitory order against the establishment itself.
WP(C) No.17418 of 2016 & - 2 - connected cases.
2. The petitioners 1 and 2 in W.P.(C) No.17418 of 2016; which writ petition is referred to, are co-owners of a property having an extent of 2.72 acres of land in Survey No.170/10, 11, 7, 8, 9 of Manacad Village in Thodupuzha Taluk; wherein setting up of a bitumen mixing plant is proposed. Exhibit P1 is the permission granted by one co-owner to the other co-owner for the establishment of the unit and Exhibit P2 is a Circular issued by the Pollution Control Board [for brevity "PCB"] as to the specifications in granting permission to hot mix plants. The petitioner has obtained Exhibit P3 Consent to Establish from the PCB on the general conditions stipulated thereunder. The petitioner also applied for installation of machinery, as is evidenced at Exhibit P4; which has to be considered by the Panchayat Council under Section 233 of the Kerala Panchayat Raj Act, 1994 [for brevity "KPR Act"]. The Panchayat Council granted the permission for such establishment as per Exhibit P5; which was later sought to be withdrawn by Exhibit P10 notice. This was challenged in W.P.(C).No.8725 of 2016. Subsequently, Exhibit P13 dated 18.04.2016 was issued, interdicting the construction carried on by the petitioner in the property; which was without sanction under the WP(C) No.17418 of 2016 & - 3 - connected cases.
Kerala Panchayat Building Rules, 2011 [for brevity "KPBR"]. The petitioner is said to have stopped the construction and made an application for building permit to construct an office building, which was rejected s per Exhibit P14 on the ground of the pending litigation. The stop memo issued, based on Exhibit P14, is produced at Exhibit P15; which is sought to be implemented by way of W.P.(C) No.16515 of 2016.
3. The learned Counsel for the petitioner submits that the consent having been granted under Section 233 of the KPR Act, there could be no subsequent withdrawal of the same and relies on the decisions in S.Pathrose v. State of Kerala & Ors. [1996 KHC 495 = 1996 (2) KLJ 177] and Siyad Hassan v. Marady Grama Panchayat [2015 (1) KLT 961] to urge the above contention. Reliance is also placed on the decision of the Division Bench in Janardhanan Nair v. Vijayamma [2016 (2) KLT 735] to contend that a hot mix plant is not included in the Schedule to the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 [for brevity "D&O Rules"] and, hence, no licence under Section WP(C) No.17418 of 2016 & - 4 - connected cases.
232 of the KPR Act would be required. The Consent to Establish granted under Section 233 is said to be a one time affair, for which a renewal is not required under Section 232. To advance such a contention, the learned Counsel relies on the Division Bench decision in Sudhakaran vi. Pallichal Grama Panchayat [2016 (2) KLT 175]. The inability of the Panchayat to decline grant under Section 233 for reason of the apprehended pollution in the teeth of a No Objection Certificate [for brevity "NOC"] issued by the District Medical Officer of Health [for brevity "DMO(H)"] and the Consent to Establish issued by the PCB is urged relying on Soorya Retreats and Holidays India Pvt. Ltd. v. Elamadu Grama Panchayat [2016 (3) KLT 346].
4. The learned Standing Counsel appearing for the Panchayat would contend that, immediately on the grant being issued under Section 233 of the KPR Act, there were many complaints raised; based on which the Council members had visited another bitumen plant and was convinced that the apprehension raised by the residents, of hazardous pollution being caused, was justified. Hence, the decision taken earlier was reviewed. The learned Standing WP(C) No.17418 of 2016 & - 5 - connected cases.
Counsel would also argue that there are no bitumen plants in existence within the Panchayat or in the nearby Panchayats and it was in public interest that the grant under Section 233 was reviewed and withdrawn.
5. The learned Counsel appearing for the objector specifically takes me through the documents and the dates to point out a discrepancy insofar as the consideration made by the Panchayat. Section 233(4) of the KPR Act speaks of a consideration by the Council after obtaining a report from the DMO(H) and the PCB as also from the Fire & Rescue Services Department. Exhibit P5 grant was made on 15.02.2016 and the DMO(H) and the Assistant Divisional Officer, Fire and Rescue Services were addressed only on 18.02.2016 by Exhibits P7 and P8; based on which the NOC was issued by the Fire and Rescue Services Department as per Exhibit P9 dated 19.02.2016. The DMO has also not issued any NOC to the petitioner, is the further contention.
6. At the outset it is pertinent to note that the petitioner has not established the unit as of now and the apprehensions raised, are only anticipatory and if at all any pollution is caused despite the WP(C) No.17418 of 2016 & - 6 - connected cases.
conditions in the Consent to Establish issued by the PCB being complied with; necessarily any aggrieved person could take appropriate proceedings to measure such pollution, determine the hazardous nature of the same and seek for mitigating measures; for which an application could be made before the PCB.
7. S.Pathrose and Siyad Hassan are squarely applicable to the present case. Pathrose was a case in which the Panchayat granted a licence for establishment of an ice manufacturing unit, which was later withdrawn on the directions of the District Collector; which directions were issued on anticipation of communal tension being occasioned on the apprehension that the pollution caused by the industry would injuriously affect the public frequenting the mosque situated on the other side of the road. The learned Single Judge found that a citizen cannot be denied of the claim to exercise his lawful rights merely on the anticipation of a law and order situation; which the authorities of the State were bound to avert if and when it occurs. The very allegation of hazardous pollution being occasioned on the running of the industry was found to be based on surmises. WP(C) No.17418 of 2016 & - 7 - connected cases.
8. In Siyad Hassan a similar issue came up when an entrepreneur set up an industry based on the deeming provision under the KPR Act; since the Panchayat refused to act on the application made for establishment of the industry under Section 233 of the Act, despite there being a resolution of the Panchayat Council in favour of the grant. The petitioner was found to be entitled to take recourse to the deeming provision especially since the Panchayat had not acted on his application. The resolution of the Council was not acted upon for reason of certain objections having been received from the general public. The resolution of the Council was found to have been taken after taking into account all the eventualities and in that context was held to be irreversible. The objectors if at all, were found to have an effective remedy under Section 276 of the Act read with Rule 12 (4) of the D&O Rules.
9. The fact situation is very similar in the instant case also. The petitioner's application was considered by the Panchayat and a resolution was taken to grant the licence to establish the industry based on which an order was also issued by the Secretary as is seen from Exhibit P13. Pausing here for a moment, it has to be noticed that WP(C) No.17418 of 2016 & - 8 - connected cases.
the learned Counsel appearing for the Panchayat has a contention that without challenging the resolution, the petitioner cannot get an effective remedy under Article 226. The said contention is to be noticed; only to be rejected since the order of cancellation of the earlier grant which is the direct consequence of the resolution taken by the Council is challenged herein. The resolution earlier taken is irreversible, as has been held in Siyad Hassan and it cannot be said that the Council had not taken into account all the eventualities while permitting the grant. The cancellation also has been made on the basis of objections from the general public; which after the grant could have been very well taken up, in a valid challenge under Section 276 of the Act.
10. Further, in the present case the petitioner had obtained a Consent to Establish, from the PCB as is evidenced by Exhibit P3. Section 233(4)(b) speaks of a report of the DMO; which is not required as per the proviso, if there is a recommendation by the PCB. The further requirement as per sub-clause (c) of Section 233(4) is also satisfied by the NOC produced at Exhibit P9. The learned Counsel for the objector argues that Exhibit P9 was obtained after the WP(C) No.17418 of 2016 & - 9 - connected cases.
grant made by the Council and hence the same was not considered by the Council which is a mandatory requirement under Section 233 (4). Definitely that would have been a valid contention if there was any objection raised by the Assistant Divisional Officer of the Fire & Rescue Services. The said officer having granted a conditional NOC what is required is only the satisfaction of the conditions by the petitioner, which would have to be verified by the said officer itself and a fresh NOC issued, after completion but before occupation of the unit. In the circumstance of the essential conditions under Section 233 having been satisfied, this Court is of the opinion that there could be no interference caused to the grant made by the Panchayat Council, by the Council itself. This Court would hasten to add that this would not in any way frustrate the remedy against the grant, available under Section 276 of the Act; which if taken up within two weeks from the date of receipt of this judgment would be treated as validly instituted.
11. The reversal made of the earlier resolution is also on the ground of an apprehension of pollution. To further buttress the objections on grounds of apprehended pollution; the order canceling WP(C) No.17418 of 2016 & - 10 - connected cases.
the grant also speaks of a visit made by the Council members to another similar plant and satisfaction having been arrived at of the pollution being caused inevitably. It cannot but be noticed that it is not clear as to which of the hot mixing plants available in the State; the Council members visited and the facilities available there at for mitigation of pollution. The cancellation could not have been made on such a laconic statement made of a visit and subjective satisfaction of the Council members. Further the issue of pollution and the mitigation thereof is not a proper issue that could be addressed by the Council members. The legislative intent also is clear from a reading of Section 233; which speaks of such an issue being addressed properly by either the DMO, the Industries Department or the PCB as has been held in Soorya Retreats and Holidays.
12. The Consent to Establish having been issued by the PCB, what is to be further ensured is the emissions from the industry being within the standards as prescribed under the laws relating to environment protection. This could only be monitored after the industry itself is put in operation, when any person from the general public or an officer of the Panchayat could raise before the PCB WP(C) No.17418 of 2016 & - 11 - connected cases.
which would have to be examined and mitigation provided; failing which even the drastic step of a cancellation of the Consent to Operate could be issued by the PCB. In the present case the unit itself has not been commissioned. On the basis of the Consent to Establish issued and the grant made under section 233, the petitioner has to establish the unit and commission the machinery and before commencement of operation again approach the PCB for a Consent to Operate. The PCB could provide for effective measures to ensure that no pollution or emissions over the standards prescribed, is occasioned on the operation of the unit. Further as stated earlier, the PCB could also conduct periodic inspections at its own initiative or at the behest of any aggrieved person.
13. For all the above reasons this Court does not find any reason to sustain the reversal of the grant made under Section 233 of the Act. Exhibit P10 produced in W. P. (C) No.8725 of 2016 is set aside. Exhibit P15 produced in W. P. (C) No.17418 of 2016 is also set aside since the rejection of the application of the petitioner for constructing an office building in the premises, is on the ground that a litigation is pending before this Court. The said ground is not a valid WP(C) No.17418 of 2016 & - 12 - connected cases.
ground for rejection and, in any event, the litigation is concluded by this judgment. The application for building permit made by the petitioner would be considered by the Panchayat in accordance with the KPBR.
14. W. P. (C) No.16515 of 2016 would, essentially, have to be closed leaving open the remedy of the objector to challenge the grant made under Section 276. However the entrepreneur has a contention that there is no requirement of an application under Section 232 or 233 for the establishment of a hot mixing unit; for which reliance is placed on Janardhanan Nair. The learned Counsel would argue that the Division Bench of this Court has categorically found that 'hot mixing plant' is not included in Schedule I to the D&O Rules. It is also argued that if at all an application under Section 233 and the consent to establish by the Council, is required, that would be a one-time affair and no renewal need be sought for under Section
232. This court is unable to countenance the said argument. Janardhanan Nair was a case in which a temporary hot mix plant was erected for the purpose of road work of the National Highway between two points. The Division Bench had first considered the WP(C) No.17418 of 2016 & - 13 - connected cases.
exemption available under Section 233B. It was found that the temporary unit, is one akin to machinery used for construction purposes like concrete mixtures and the mere size of the unit would not by that alone detract from its coverage under the wide definition of 'portable' as found in the exemption clause. As to the requirement for an application under Section 232, on the fact situation it was found that the unit was not specified in Schedule I to the D&O Rules. Item number 117 of Schedule I was specifically noticed to find that the subject unit would not come under the said description. Item number 117 relates to "Tar-storing, packing, refining, preparing or selling". It was found that in the installation and the operation of a temporary hot mixing plant, for the purpose of producing bitumen to lay a road between two points none of these activities occur.
15. The same inference cannot be drawn for the activity which is carried on by the petitioner. The petitioner's hot mixing unit is not a temporary one and not portable also; in the sense in which the term is used in the exemption clause. The hot mixing unit which is to be permanently established also produces bitumen and sells it exclusively to the State. All the activities described in item number WP(C) No.17418 of 2016 & - 14 - connected cases.
117 of Schedule I of the D&O Rules definitely will occur in the operation of the petitioners unit. This Court is inclined to accept the contention of the respondent Panchayat and the objector that the Division Bench decision in Janardhanan Nair is on the distinct facts of the said case, wherein the subject was a temporary, portable hot mixing unit. In such circumstance the said decision has no application to the facts of the present case.
W.P.(C).Nos.8725 of 2016 and 17418 of 2016 are allowed setting aside the impugned orders and directing reconsideration of the building permit application, within a period of one month. W.P.(C) No.16515 of 2016 is closed with the above reservation. Parties are directed to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]