A. Mohamed Basheer v. Pullambara Grama Panchayat & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945`** ## **`WP(C) NO. 35541 OF 2023`** ## **`PETITIONER/S:`** ``` A. MOHAMED BASHEER, AGED 71 YEARS S/O. ABDUL RAZAK, PROPRIETOR, M/S. NEENU CRUSHER INDUSTRY, MYLACKAL THEMPAKALA VEEDU, VENJARAMOODU, THIRUVANANTHAPURAM, PIN - 695607 ``` ``` BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV LEO LUKOSE RONY JOSE DERICK MATHAI SAJI KAROL MATHEWS SEBASTIAN ALENCHERRY KARAN SCARIA ABRAHAM ``` ## **`RESPONDENT/S:`** - `1 PULLAMBARA GRAMA PANCHAYAT, PULLAMBARA P.O, VENJARAMAOODU, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN - 695607` - `2 THE SECRETARY, PULLAMBARA GRAMA PANCHAYAT, PULLAMBARA P.O, VENJARAMAOODU, THIRUVANANTHAPURAM, PIN - 695607` - `3 THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY,DISTRICT OFFICE, PATTOM P.O, THIRUVANANTHAPURAM, PIN – 695004 SMT. DEEPA K. - GP` ``` SRI. VINOD SINGH CHERIAN – STANDING COUNSEL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(c) No. 35541 of 2023 2 ## **JUDGMENT** The petitioner states that he is conducting a quarry with all valid licenses and permits in 2.1504 Hectares of land in various Re-survey numbers in Pullampara Village within the jurisdiction of the 1[st] respondent, Panchayat. Ext. P1 is the quarrying lease issued by the 3[rd] respondent, the Geologist and Ext. P1(a) is the consent to operate issued by the Pollution Control Board. Ext. P1(b) is the trade license obtained from the 1[st] respondent, Panchayat. The petitioner also states that, he has been granted Environmental Clearance by the District Environmental Impact Assessment Authority (DEIAA) as per Ext. P2, which is valid till 15.11.2024 as per Ext. P3 order of this Court. 2. On 26.10.2023, the petitioner was served with Ext. P4 notice by the Panchayat directing him to stop W.P.(c) No. 35541 of 2023 3 all quarrying activities based on a complaint received from the nearby people and taking into account the fact that two houses got damaged due to quarrying activities. According to the petitioner, Ext. P4 has been issued without notice to him and without conducting any site inspection. The petitioner has also not been provided with a copy of the complaint referred to in Ext. P4. The petitioner has filed this writ petition challenging Ext. P4 notice. 3. Heard the learned counsel for the petitioner, the learned counsel for the Panchayat and the learned Government Pleader. 4.The learned counsel for the Panchayat submits that Ext. P4 stop memo has been issued on the basis of a complaint received from certain residents of the W.P.(c) No. 35541 of 2023 4 locality and that the report of the Geologist has been sought for. 5. The learned counsel for the petitioner refers to the decision of this Court in **Lizy Aby v. State of Kerala & Others (2021 (1) KHC 255),** wherein paragraph 6 reads as follows:- _“---A reading of the provisions in S.233A would indicate that an activity undertaken by a person in a factory, workshop or workplace could be prohibited by the Secretary of the Panchayat under sub-section (3) of S.233A in two situations namely, where there has been willful default in carrying out a direction given under sub-section (1) or where in the existing circumstances, the abatement of nuisance is found impracticable. The provisions would also indicate that even under such situations, the Secretary of the Panchayat is empowered to prohibit the working of factory, workplace or workshop and machinery only till such time the person concerned takes necessary steps to the satisfaction of the Secretary of the Panchayat for the abatement of the nuisance. In Ext.P10 notice, the Secretary has no case that there has been willful default in carrying_ W.P.(c) No. 35541 of 2023 5 _out a direction given under sub-section (1) of S.233A of the Panchayat Raj Act or that the abatement of nuisance is found impracticable in the existing circumstances. On the other hand, the allegation in Ext.P8 notice is only that complaints have been received to the effect that the industry of the petitioner is causing pollution. The power of the Secretary of the Panchayat under sub-section (3) of S.233A cannot be invoked on that ground. Going by the provisions contained in subsections (1) and (2) of S.233A of the the Panchayat Raj Act, the subjective satisfaction of the Secretary of the Panchayat that the factory, workshop, work place or machinery concerned causes nuisance by reason of a particular kind of fuel being employed or by reason of the noise or vibration created or effluent discharged or by reason of noxious odour, smoke or dust omitted, is a mandatory prerequisite to exercise his power under sub-section (1) to direct the person in charge of such factory, workshop or work place or machinery to abate the nuisance. Subsection (2) of S.233A which enables the Secretary of the Panchayat to obtain expert opinion from the departments concerned with regard to the determination of the nuisance or its abatement, at the cost of the owner or person in charge of the factory, workshop, work place or machinery, for arriving at the said subjective satisfaction, reinforces the said mandatory prerequisite. In other words,_ W.P.(c) No. 35541 of 2023 6 _without arriving at a conclusion based on materials including expert opinion obtained in terms of subsection (2) of S.233A of the Panchayat Raj to the effect that the factory, workshop, work place or machinery concerned causes nuisance by reason of a particular kind of fuel being employed or by reason of the noise or vibration created or effluent discharged or by reason of noxious odour, smoke or dust omitted, the Secretary cannot issue a prohibitory order under sub-section (3) of S.233A. In the case on hand, Ext.P10 stop memo does not indicate that such a conclusion was arrived at by the Secretary of the Panchayat before issuing Ext.P10 stop memo. Ext.P10 stop memo is, therefore, unsustainable in law. In the result, the writ petition is allowed and Ext. P10 stop memo is quashed. It is however, made clear that this judgment will not preclude the Secretary of the Panchayat from invoking the power under S.233A of the Panchayat Raj Act, over the industry of the petitioner, in accordance with the provisions therein.”_ 6. Since Ext. P4 notice has been issued without hearing the petitioner and without getting the report of the Geologist and contrary to the dictum laid down by this Court in **Lizy Aby (Supra)** , this Court is of the W.P.(c) No. 35541 of 2023 7 view that the parties shall treat Ext. P4 as a show cause notice. Accordingly, the petitioner shall file a reply to Ext. P4 notice within a period of three working days from the date of receipt of a certified copy of this judgment. On receipt of the reply from the petitioner, the 2[nd] respondent shall hear the petitioner and any of the complainants referred to in Ext. P4 in a representative capacity and pass appropriate orders in accordance with law within a period of ten days from the date of receipt of such reply. Till orders are passed as above and communicated to the petitioner, the interim order passed by this Court on 28.10.2023, will continue. The writ petition is disposed of. ## **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** bnu W.P.(c) No. 35541 of 2023 8 ## **`APPENDIX`** ``` PETITIONER’S EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE QUARRYING LEASE DATED 23.01.2019 VALID TILL 22.01.2029 ISSUED TO THE PETITIONER. ``` ``` Exhibit P1(a)TRUE COPY OF THE CONSENT TO OPERATE (VARIATION ORDER) DTD. 29.05.2023 VALID TILL 31.05.2024 ISSUED BY THE POLLUTION CONTROL BOARD. ``` ``` Exhibit P1(b)TRUE COPY OF THE TRADE LICENSE DTD. 31.05.2023 VALID TILL 31.03.2024 ISSUED BY THE PULLAMPARA PANCHAYAT. ``` ``` Exhibit P2TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE NO. DIA/KL/MIN/15846/2018 DTD. 16.11.2018 ISSUED BY THE DEIAA, THIRUVANANTHAPURAM. ``` ``` Exhibit P3TRUE COPY OF THE INTERIM ORDER DATED 30.09.2023 IN WP(C) NO. 32110/2023 ON THE FILES OF THIS HON'BLE COURT. ``` ``` Exhibit P4TRUE COPY OF THE NOTICE DATED 26.10.2023 BEARING NO. 40022/RPDC17/GPO/2023/4297 ISSUED BY THE 2ND RESPONDENT. ```