Eldhose Mathew, C.Y. Joseph, Sebastian A.M., Anjitha Eldhose and N.S. Babu v. Kottappady Grama Panchayat & Others

**WP(C) NO. 13597 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944** ## **WP(C) NO. 13597 OF 2021** ## **PETITIONER:** 1 ELDHOSE MATHEW AGED 32 YEARS S/O MATHEW.C.O,CHERIAKUDY HOUSE,PANIPRA POST,NAGANCHERY, KOTHAMANGALAM,ERNAKULAM DISTRICT,PIN-686692. 2 C.Y.JOSEPH, AGED 55 YEARS S/O.C.O.YOHANNAN,CHERIAKUDY HOUSE,PANIPRA POST,NAGANCHERY, KOTHAMANGALAM,ERNAKULAM DISTRICT,PIN-686692. 3 SEBASTIAN.A.M, AGED 58 YEARS S/O.MATHAI,AZHAKANAKUNNEL HOUSE,PANIPRA POST,NAGANCHERY, KOTHAMANGALAM,ERNAKULAM DISTRICT,PIN-686692. 4 ANJITHA ELDHOSE, W/O ELDHOSE PAUL,NEERNAMKUNNUMPURATH HOUSE,PANIPRA POST,NAGANCHERY, KOTTAPPADY,KOTHAMANGALAM, ERNAKULAM DISTRICT,PIN-686692. 5 N.S.BABU, AGED 64 YEARS S/O.SREEDHARAN PILLAI,ALADIYIL HOUSE,PANIPRA POST,NAGANCHERY, KOTHAMANGALAM,ERNAKULAM DISTIRCT,PIN-686692. BY ADVS. SRI C.D.DILEEP MS.P.K.PAMALA MS.SHYLAJA VARGHESE ## **RESPONDENTS:** 1 KOTTAPPADY GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, **WP(C) NO. 13597 OF 2021** **2** KOTTAPPADY PO,KOTHAMANGALAM, ERNAKULAM DISTRICT,PIN-686692. 2 THE SECRETARY KOTTAPPADY GRAMA PANCHAYAT, KOTTAPPADY.P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT,PIN-686692. 3 M/S BLUE STAR PLYWOOD PANIPRA, PANIPRA.P.O, THRIKARIYOOR,KOTHAMANGALAM,ERNAKULAM DISTRICT-686692, REPRESENTED BY ITS MANAGING PARTNER SHRI.GEORGE MATHEW. ## **ADDL.R4 & R5 IMPLEADED** ADDL.R4 KERALA STATE POLLUTION CONTROL BOARD, PATTOM P.O., THIRUVANANTHAPURAM, PIN-695 004, REPRESENTED BY ITS CHAIRMAN. ADDL.R5 DISTRICT ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, GANDHI NAGAR, ERNAKULAM, PIN - 682 020. [ADDL.R4 & ADDL.R5 ARE IMPLEADED AS PER ORDER DATED 14.07.2021 IN I.A.1/2021 IN WP(C)13597/2021] BY ADVS. R1 & R2 BY SRI M.SASINDRAN R3 BY SRI B.ASHOK SHENOY SRI P.S.GIREESH SRI RIYAL DEVASSY SRI ARJUN R NAIK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7.4.2022, THE COURT ON 26.07.2022 DELIVERED THE FOLLOWING: **WP(C) NO. 13597 OF 2021** **3** ## **T.R. RAVI, J.** ## **--------------------------------------------** W.P.(C)No.13597 of 2021 -------------------------------------------Dated this the 26[th] day of July, 2022 ## **JUDGMENT** The petitioners claim to be residents of the 1[st] respondent Grama Panchayat. The writ petition has been filed praying to quash Ext.P1 decision of the Panchayat and Ext.P2 order of the 2[nd] respondent granting permission to the 3[rd ] respondent for installation of a plywood factory. There is also a prayer for a direction to the Tribunal for Local Self Government Institutions to accept the appeal filed by the petitioner on file after condoning the delay. 2. Heard Sri C.D.Dileep, counsel for the petitioner, Sri M.Sasindran, counsel for the respondents 1 and 2, Sri B.Ashok Shenoy, counsel for the 3[rd] respondent and the Standing Counsel for the respondents 4 and 5. 3. By Ext.P1, the 1[st] respondent on 20.9.2019 granted approval for the installation of the plywood unit and its machinery based on the No Objection Certificates issued by the Pollution Control Board, Fire and Rescue Department, and the Office of the District Medical Officer. Based on Ext.P1 decision of the Panchayat, the 2[nd] respondent issued Ext.P2 proceedings permitting installation of the **WP(C) NO. 13597 OF 2021** **4** Unit on certain conditions, which have been narrated in Ext.P2. According to the petitioner, the Factory is proposed to be started in a building that was constructed in the year 2012 based on Ext.P5 building permit, which only permits the construction of a building for running a small industrial unit having 461.98 Sq.M. area on the ground floor. The petitioners contend that the consent of the neighbouring residents was not obtained while granting permission for starting the industry. It is also submitted that the starting of a plywood unit will cause serious noise pollution and inconvenience to the petitioners and the public. It is pointed out that earlier, in the year 2012, the 3[rd] respondent had applied for permit for establishing the plywood manufacturing unit which was rejected by the Panchayat Committee by Resolution No.3 dated 28.12.2012. The 3[rd] respondent challenged the decision before the Tribunal by filing Appeal No.72/2013. The appeal was rejected by the Tribunal. However, the Tribunal directed reconsideration of the application submitted by the 3[rd] respondent in accordance with the provisions of the Panchayat Raj Act. The order dated 25.4.2013 in Appeal No.72/2013 is produced as Ext.P6. This court is of the opinion that the rejection of an application six years prior to Exts.P1 and P2 cannot in any way affect the validity or otherwise of Exts.P1 & P2 and is not germane for consideration of the issue on hand. **WP(C) NO. 13597 OF 2021** **5** 4. The petitioner relies on the decision of this Court in **Kurien T.K. & Ors. v. Government of India & Ors.** reported in **[2019 KHC 186]** , which laid down certain norms and control measures for new plywood units. According to the petitioners, a reading of the judgment and reference to the building plan and site plan which have been produced as Ext.P7 would show that the building where the Factory is proposed is unfit for starting the industry. The petitioners submit that the plywood factory can be set up only on land having at least 60 cents area and there should be a set back of 25 metres. It is the case of the petitioner that as per Ext.P5 building permit, the building is proposed to be set up in Sy.No.27/6B in which the 3[rd] respondent has only around 33 cents. Another reason stated is that the report of the District Medical Officer which had been issued on 7.10.2013 is insufficient insofar as the requirement of Section 233(4)(b) of the Panchayat Raj Act is concerned. The petitioners submit that the report of the District Medical Officer, which has been produced as Ext.P8 is silent as regards the possibility of nuisance or pollution if the connected load of machinery is 106.5 HP. The petitioners further submit that the reports of the District Fire Officer, the Factories Department, and the Pollution Control Board are also insufficient for the purpose of Section 233. According to the petitioners, Ext.P11 Consent Variation Order **WP(C) NO. 13597 OF 2021 6** issued by the Pollution Control Board is not in conformity with the norms contained in order No.PCB/T4/115/97 dated 1.10.2019. The petitioners point out that Ext.P11 was not available at the time when Ext.P1 decision was taken. It is their case that Ext.P1 decision was taken without verifying any of the reports. They further contend that D&O licence has not been issued to the 3[rd] respondent. It is also their case that the plywood industry uses dangerous chemicals for processing, and it would affect the nearby paddy land and water sources. The petitioners seek to justify the non-filing of an appeal before the Tribunal by stating that the 3[rd] respondent had stopped all work relating to the factory and that it was only when they started reviving their attempt, that the petitioners were constrained to approach this Court, as the time for challenging Exts.P1 and P2 before the Tribunal had by then expired. It is stated that when the 3[rd] respondent did not do any work, the petitioners reasonably believed that the 3[rd] respondent had dropped their idea of starting the proposed plywood manufacturing unit. It is in the above circumstances that this writ petition has been filed. 5. The 3[rd] respondent has filed a counter-affidavit denying the allegations in the writ petition. It is primarily contended that the petitioners did not avail of the alternate statutory remedy available and that none of the petitioners are residents of the immediate **WP(C) NO. 13597 OF 2021 7** vicinity of the proposed plywood factory and they cannot hence have any complaint regarding noise or other pollution. It is submitted that Exts.P1 and P2 orders were issued in 2019 and Ext.P5 building permit was issued on 18.2.2010 and the petitioners have approached this Court only on 6.7.2021. It is submitted that there is no justification for the undue delay in approaching any forum for a remedy. The submission is that Article 226 of the Constitution is not a remedy available to persons who failed to avail of the statutory remedies by their own choice. On merits, it is contended that the 3[rd] respondent is a partnership firm owning 38.04 Ares of land comprised in 24.28 Ares in Sy.No.27/6A-1 and 13.76 Ares in Sy.No.27/6B of Thrikkariyoor Village in Kothamangalam Taluk. Ext.P5 building permit was issued on 18.2.2010 and the building was also constructed. The application was submitted in the year 2012 for the establishment of the plywood factory, which was rejected by the 1[st] respondent by Decision No.3 on 28.12.2012. The order of rejection was challenged by the 3[rd] respondent before the Tribunal in Appeal No.72/2013 which was dismissed by Ext.P6 order. It was ordered that without the mandatory reports mentioned in Section 233(4) of the Act, a permit cannot be granted. It was also held that the 1[st] respondent should not have rejected the permit on the strength of the decision of the Grama Sabha, which has no power or **WP(C) NO. 13597 OF 2021** **8** authority to take a decision not to grant a permit or licence. There is also a direction to the 1[st] respondent Grama Panchayat to reconsider the application for the installation permit after obtaining all the mandatory documents. The 3[rd] respondent has stated in the counter affidavit that Section 233 of the Act came to be modified by the provisions of the Kerala Investment Promotion and Facilitation (No.2) Act of 2018, which came into effect from 28.10.2017 enabling liberalised grant of various permits and licenses. It is also pointed out that the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and, Factories) Rules, 1996 was also amended in the same lines and the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship activities and other services) Rules, 1996 came into effect from 31.10.2017. It is submitted that the 3[rd] respondent on 29.8.2019, applied for a permit in terms of the amended provisions with details of the maximum number of workers proposed to be employed on a day in the Factory and the plan of the subject plywood factory as required under the Rules. It is stated that the application was received by the 1[st] respondent on 29.8.2019 as can be seen from Ext.R3(a). It is the case of the 3[rd] respondent that even after the lapse of 30 days from 29.8.2019, nothing was heard of about the action taken on the application, and no orders or communications were issued to the 3[rd] respondent by the 1[st] or 2[nd] **9** **WP(C) NO. 13597 OF 2021** respondents. It is the case of the 3[rd] respondent that in view of the provisions contained in sub-section (6) of Section 233 of the Act and the law laid down in the decisions of this Court in **Sudhakaran vs . Pallichal Grama Panchayat** reported in **[2016 (2) KHC 481]** and **Abdul Shafeek v. Asamannoor Grama Panchayat** reported in **[2018 (3) KHC 170]** , it should be deemed that the petitioner has been granted a permit as required. 6. It is submitted that the 3[rd] respondent had approached the 2[nd] respondent during October, 2019 for issuance of a formal permit and the 2[nd] respondent had informed the 3[rd] respondent that the reports required under Section 233 of the Panchayat Raj Act are to be produced. The 3[rd] respondent states that thereafter the renewal of consent originally issued by the Pollution Control Board was obtained on 15.3.2001, a no objection certificate was obtained from the District Fire Officer, Fire and Rescue Services, Ernakulam, and factory plan approval had been obtained from the Joint Director of Factories and Boilers, Ernakulam. The above documents are produced as Exts.R3(b), (c) and (d). The 3[rd] respondent submits that Ext.P2 formal order granting permission for establishing the plywood unit was issued. It is further submitted that till a notice in the writ petition was served, the 3[rd] respondent had not been served with copy of Ext.P1 decision. The 3[rd] respondent submits that the building **10** **WP(C) NO. 13597 OF 2021** where the proposed unit is sought to be started is situated in 38.04 Ares of land comprised as 24.28 Ares in Sy.No.27/6A-1 and 13.76 Ares in Sy.No.27/6B, which are lying as a single compact plot as evident from the location sketch Ext.R3(e) issued by the Village Officer, Thrikkariyoor. It is further submitted that the decision reported in **Kurien (supra)** does not apply to plywood factories situated within the territorial limits of the 1[st] respondent Grama Panchayat, since the decision governs only functioning of plywood factories in Vengola Grama Panchayat. It was further submitted that the decision cannot govern the plywood factory which is to be set up by the 3[rd] respondent, since consent had been granted as early as in 2010 prior to the cut-off date stipulated in the decision. The averments in the writ petition have been denied specifically in the counter affidavit. It is further submitted that there can be no objection to the starting of the unit particularly in view of the modification of Section 233 of the Kerala Panchayat Raj Act by the provisions of Kerala Investment Promotion and Facilitation (No.2) Act, 2018. It is submitted that the report of the DMO is required only in respect of hospitals, clinics, paramedical institutions, clinical laboratories and other healthcare institutions and not in respect of other industries including plywood factories. Reliance is placed on the decision in **K.P.Wilson Vs Kozhinjampara Grama Panchayath** **WP(C) NO. 13597 OF 2021** **11** **and Ors.** reported in **[2015 (2) KLT 536]** . Regarding the averment that the property of the 3[rd] respondent is 'nilam', it is contended that a major portion of 24.28 Ares is dry land even as per BTR records. The Panchayat has also contended that building permit was issued in 2010 in accordance with the Rules, that the decision relied on by the petitioner is in respect of Units which are to be started in Vengola Grama Panchayat and does not apply to Units like that of the 3[rd] respondent. It is further submitted that an application for D&O licence has not been received. Regarding the report of the DMO, it is submitted that it does not have time period. It is further submitted that if the Panchayat is to reconsider the application based on the documents, the result would be the same, since after the amendment of the provisions contained in Section 233, the Panchayat has to issue the permission, if the applicant complies with the requirements of the Statute. 7. I have considered the contentions raised by the counsel on either side in extenso. The contention raised by the petitioner that the guidelines issued in the judgment of this Court in **Kurien (supra)** should be applied is without any basis. A reading of the judgment will clearly show that the decision was rendered with regard to the plywood factories in Vengola panchayat and was based on the Environmental Management Plan prepared with regard to the **WP(C) NO. 13597 OF 2021** **12** said Panchayat. The guidelines contained therein cannot have a general application with regard to the setting up of plywood factories in the other Panchayats in the State. The contention raised by the petitioner regarding the building permit also cannot be sustained since the building permit was issued in the year 2010, in accordance with the prevailing rules and the Panchayat also has no contention that the same was either wrongly issued or that the construction was not in accordance with the rules. The contention that a recent report of the DMO is required also cannot be sustained in the light of the report that had been issued by the DMO and the judgment in **K.P.Wilson (supra)** . The contention that earlier the Panchayat had refused to grant permit to the 3[rd] respondent for starting the Plywood unit and that the appeal filed by the 3[rd] respondent challenging the order of the Panchayat was rejected also cannot be countenanced. The Tribunal had in the order in appeal specifically stated that the application can be considered if the 3[rd] respondent submits all the necessary documents. The 3[rd] respondent has thereafter applied in the year 2019, by which time there has been a substantial change in the law. The Kerala Investment Promotion and Facilitation (No.2) Act, 2018 had been enacted enabling a liberalised grant of various permits and Section 233 had been amended and consequential changes have been brought about in the Rules governing the subject. **WP(C) NO. 13597 OF 2021** **13** It is in these circumstances that the prayers in the writ petition have to be considered. As long as the 3[rd] respondent complies with the requirements of law, as per the amended provisions, the petitioners cannot lay a challenge to the grant of the installation permit. As held by a Full Bench of this Court in **Tomy Thomas v. State of Kerala** reported in **[2019 (3) KLT 987 (FB)]** , after the amendment of Section 233 and the corresponding rules, even the power of the Village Panchayat to refuse permission has been considerably curtailed. As pointed out by the counsel for the respondents, the unit of the 3[rd] respondent is only at the stage of grant of installation permit. Even the application for D&O licence has not been submitted. Even according to the 3[rd] respondent, the NOC from the Forest authorities is to be obtained. In the above circumstances, this Court will not be justified in interfering with the orders issued by the statutory authorities in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition fails and is hence dismissed. Sd/- **T.R. RAVI JUDGE** dsn **WP(C) NO. 13597 OF 2021** **14** ## **APPENDIX OF WP(C) 13597/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE DECISION NO.8/58/2019 DATED 20/09/2019 OF THE 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE ORDER NO.A4-2634/19 DATED 17/10/2019 OF THE SECRETARY OF THE 2ND RESPONDENT. Exhibit P3 TRUE COPY OF THE RTI APPLICATION SUBMITTED BY SMT.BIJI SEBASTIAN,WIFE OF 3RD PETITIONER DATED 04.10.2019. - Exhibit P4 TRUE COPY OF THE INFORMATION FURNISHED BY THE INFORMATION OFFICER DATED 28.10.2019 - Exhibit P5 TRUE COPY OF THE BUILDING PERMIT NO.A4-2038/09 DATED 18/02/2010 OF THE KOTTAPPADY GRAMA PANCHAYAT. - Exhibit P6 TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE TRIBUNAL DATED 25/04/2013 IN APPEAL NO.72/2013. - Exhibit P7 TRUE COPY OF THE BUILDING PLAN WITH SITE PLAN. - Exhibit P8 TRUE COPY OF THE REPORT OF THE DISTRICT MEDICAL OFFICER OF HEALTH,ERNAKULAM NO.C2-12948/2013 DATED 07.10.2013. - Exhibit P9 TRUE COPY OF THE REPORT OF THE DISTRICT FIRE OFFICER OF FIRE AND RESCUE SERVICES,ERNAKULAM NO.G-7564/2019 DATED 15.10.2019. - Exhibit P10 TRUE COPY OF THE PERMIT NO.E-124/2019 OF THE JOINT DIRECTOR OF FACTORIES AND BOILERS DATED 09.10.2019. - Exhibit P11 TRUE COPY OF THE CONSENT NO.019ERNA-CTE-VARIA155249 DATED 01.10.2019 OF THE POLLUTION CONTROL BOARD. RESPONDENT EXHIBITS - EXHIBIT R3(A) TRUE COPY OF INWARD RECEIPT NO.2634 OF 2019 DATED 29/08/2019 ISSUED BY THE 1ST RESPONDENT ACKNOWLEDGING 3RD RESPONDENT'S APPLICATION FOR INSTALLATION PERMIT. EXHIBIT R3(B) TRUE COPY OF INTEGRATED CONSENT TO ESTABLISH RENEWAL NO.O19ERNA-CTE-R-515249 DATED 15.3.2021 ISSUED BY KERALA STATE POLLUTION TO 3RD RESPONDENT. **WP(C) NO. 13597 OF 2021** **15** EXHIBIT R3(C) TRUE COPY OF NO OBJECTION CERTIFICATE (SITE) NO.G-7564 DATED 15/10/2019 ISSUED BY DISTRICT FIRE OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM. EXHIBIT R3(D) TRUE COPY OF FACTORY PLAN APPROVAL ORDER/PERMIT NO.E/124/2019 DATED 09/10/2019 ISSUED BY JOINT DIRECTOR OF FACTORIES & BOILERS, ERNAKULAM. EXHIBIT R3(E) TRUE COPY OF LOCATION SKETCH NO.247/21 DATED 13/08/21 ISSUED BY VILLAGE OFFICER, THRIKARIYOOR. EXHIBIT R3(F) TRUE COPY OF LETTER NO.C2-19215/19 DATED 15/02/2020 ISSUED BY DISTRICT MEDICAL OFFICER (HEALTH), ERNAKULAM. ANNEXURE R1(A): TRUE COPY OF TITLE DEED SUBMITTED BY THE 3RD RESPONDENT DT.29.1.2010 - ANNEXURE R1(B): TRUE COPY OF CERTIFICATE No.A5/1635/2012 DT.9.4.2012 - ANNEXURE R1(C): TRUE COPY OF LETTER No.8847/09 ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM TO GENERAL MANAGER OF DIC, ERNAKULAM. ANNEXURE R1(D): TRUE COPY OF NO OBJECTION CERTIFICATE No.C212948-2013 DT.7.10.2013 ISSUED BY THE DISTRICT MEDICAL OFFICER, ERNAKULAM. - ANNEXURE R1(E): TRUE COPY OF CONSENT No.019ERNA-CTE-R-515249 DT.10.72019 FROM THE KERALA STATE POLLUTION CONTROL BOARD. ANNEXURE R1(F): TRUE COPY OF LETTER No.A4-2634/19 DT.27.9.2019 ISSUED BY THE RESPONDENT TO GEORGE MATHEW. - ANNEXURE R1(G): TRUE COPY OF NO OBJECTION CERTIFICATE No.B790/2019 DT.3.10.2019 ISSUED BY THE FACTORIES AND BOILERS DEPARTMENT TO THE RESPONDENT PANCHAYAT. - ANNEXURE R1(H): TRUE COPY OF PLAN APPROVAL ORDER NO.E/124/2019 DT.9.10.2019. ANNEXURE R1(I): TRUE COPY OF CONSENT VARIATION ORDER No.019ERNA-CTE-VARIA-515249 DT.1.10.2019 ISSUED BY THE POLLUTION CONTROL BOARD. - ANNEXURE R1(J): TRUE COPY OF NO OBJECTION CERTIFICATE No.G7564/2019 DT.15.10.2019 FROM THE DISTRICT OFFICE OF THE FIRE AND RESCUE DEPARTMENT.