M/S E.G. Granite Crusher, Malamel vs. District Environmental Engineer, Kerala State Pollution Control Board, Edamulakkal Grama Panchayat, District Geologist

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** ## **WP(C).No.13627 OF 2020(C)** ## **PETITIONER:** **M/S E.G.GRANITES MALAMEL, PERUMANNOOR P.O., KOTTARAKKARA, KOLLAM, REPRESENTED BY ITS MANAGING PARTNER, ELDHO KURIAN.** **BY ADV. SRI.PHILIP J.VETTICKATTU** ## **RESPONDENTS:** - **1 THE DISTRICT ENVIRONMENTAL ENGINEER DISTRICT OFFICE, KERALA STATE POLLUTION CONTROL BOARD, USHAS BUILDING, BIG BAZAR, KOLLAM-691001.** - **2 THE KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS CHAIRMAN, PATTOM P.O., TRIVANDRUM-695004.** - **3 THE SECRETARY, EDAMULAKKAL GRAMA PANCHAYATH, EDAMULAKKAL P.O., KOLLAM-691321.** - **4 THE DISTRICT GEOLOGIST, KOLLAM, OFFICE OF THE DISTRICT GEOLOGIST, ASRAMAM, KOLLAM-691002.** ## **SRI.SAIGI JACOB PALATTY, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.13627 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C) No.13627 of 2020** **===========================** Dated this the 13[th] day of July, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: _That the petitioner had been conducting a crusher unit since the year 1995. The 1[st] respondent had been renewing the Consent to Operate from time to time. The same was renewed up to the year 2012. Before the expiry of the consent the petitioner had filed necessary application for renewal. In the meanwhile, certain persons objected the renewal of consent and in such circumstances, the application was kept pending. In view of non-disposal of application, the petitioner approached this Court by filing W.P.(C) No. No.22025/2015 and this Court vide Ext.P9, directed the 1st and 2nd respondents to consider and finally dispose off the application for renewal within a time limit by conducting physical inspection, if necessary. The respondents, conducted a physical inspection and thereafter passed Ext.P10 order, wherein it is stated that the petitioner herein should be permitted to conduct a trial run for six months. Though a writ petition was filed by a third party before this Court vide W.P.(c) No.5355/2016, challenging Ext.P10, this Court refused_ W.P(C) No.13627 of 2020 3 _to grant any interim order staying the operation of the said order. This Court, had only passed an interim order to the effect that the industry may not be permitted to conduct without obtaining a D & O license from the Panchayat (Ext.P11). In view of the above order, the petitioner approached the 1st respondent for renewal of Consent to Operate for the purpose of trial run. The 1st respondent insisted for the production of license from the Panchayat and in such circumstances, the petitioner approached the Panchayat for its license. The Panchayat intimated that the license can be granted only upon production of the Consent from the Pollution Control Board. In such circumstances, the petitioner again approached the 1st respondent for grant of consent to operate. However, vide the impugned order, viz. Ext.P13, the 1st respondent again insisted for the production of license of the local authority as a condition precedent for renewal of the consent to operate. It is pertinent to see that Ext.P13 does not refer to any other defects of shortcomings. The stand of the 1st respondent, is absolutely illegal and ultravires of the provisions of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter be referred to as Air Act for brevity) and the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter be referred to as Water Act for brevity) in so far as they do not stipulate anywhere that license from the local authority is a condition precedent or sequentially_ W.P(C) No.13627 of 2020 4 _dependent document for grant of Consent._ It is in the light of these averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: _1. “Issue a Writ of Certiorari or any other appropriate writ, order or direction quashing Ext.P13;_ _2. Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the 1st respondent to renew the Consent to Operate and issue a certificate to that effect, without insisting for the production of license from the Panchayat as a condition precedent;_ _3. Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the respondents to permit the petitioner to conduct a trial run to the crusher unit, without insisting for the consent to operate and license from the local authority;_ _4. Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the 4th respondent to grant necessary license/permission for conducting the crusher unit, without insisting the production of any consent to operate from the Pollution Control Board and license from the local Panchayat;_ _And_ _5. To grant such other reliefs as this Hon’ble Court may deem just and fit in the circumstances of the case.”_ 2. Heard Sri.Philip J.Vettickattu, learned counsel appearing for the petitioner, Sri.T.Naveen, learned Standing Counsel for the Pollution Control Board appearing for respondents 1 & 2 and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the 4[th] respondentDistrict Geologist. In the nature of the orders proposed to be passed in this Writ Petition, notice to the 3[rd] respondent (Edamulakkal Grama Panchayat) will stand dispensed with. W.P(C) No.13627 of 2020 5 3. The case of the petitioner is that he has duly obtained the statutory consent to establish the quarrying unit to run the crusher unit from the 1[st] respondent-Environmental Engineer of the State Pollution Control Board. Further that, the petitioner’s application for grant of statutory consent to operate the crusher unit was initially considered by respondent Nos.1 & 2 and on account of certain objections raised by third parties, the Member Secretary of the 2[nd] respondent-Kerala State Pollution Control Board had issued Ext.P-10 proceedings dated 08.01.2016, _inter alia_ ordering therein that permission could be given to the petitioner for trial run of the unit for a period of six months from the date of the said order, if he satisfies the other conditions mentioned therein. The conditions in the operative portion of Ext.P-10 proceedings dated 08.01.2016 issued by the Member Secretary of the 2[nd] respondent-Kerala State Pollution Control Board reads as follows: - “1. Once again inspect the unit with notice to both party to ascertain the compliance of the directions issued vide order no.PCB/KO/CTO/CR/28/06 dated 28/05/2015. 2. Permission shall be given for trial run of the unit for a period of six months from the date of order if satisfied the compliance. 3. Ambient noise and air shall be monitored during this period with a periodicity of two weeks by the company and submitted at District Office, Rgional Office & Head Office. 4. Surprise inspection also shall be conducted from District Office. 5. Consent application shall be considered based on the findings of the trial run.” W.P(C) No.13627 of 2020 6 4. Further that the legality of Ext.P-10 proceedings was challenged by an objector by filing W.P(C) No.5355/2016 before this Court, in which this Court has only passed an interim order on 12.02.2016 as per Ext.P-11, which reads as follows : “Notice by Speed post to R4 & R6. Learned Standing Counsel takes notice for R1 & R2. Learned Government Pleader takes notice for R3 & R5. The 6[th] respondent is restrained from operating crusher without obtaining D & O licence from the Panchayath. The Panchayath shall ensure that if 6[th] respondent is operating crusher without licence, that activities shall be stopped, forthwith.” 5. The petitioner would state that other than the interim order passed in Ext.P-11, this Court has not passed any further orders in W.P(C) No.5355/2016, whereby the discretion of respondent Nos.1 & 2 for issuance of the statutory consent to operate the crusher unit has in any manner been interdicted or interfered with. In Ext.P-11 all what has been directed is that the petitioner shall not run the crusher unit without obtaining the trade/D&O license to be issued by the respondent-Grama Panchayat authorities. Further that though the petitioner has secured license in terms of Sec.233 of the Kerala Panchayat Raj Act from the 3[rd] respondentPanchayat to run the crusher unit, the Secretary of the 3[rd] respondentPanchayat has not so far issued trade/D&O license to the petitioner’s crusher unit on the ground that the 2[nd] respondent has not granted the statutory consent to operate the said even after the issuance of Ext.P-10 W.P(C) No.13627 of 2020 7 proceedings. 6. According to the petitioner he has repeatedly approached the 3[rd] respondent-Panchayat for the formal issuance of the trade/D&O license to run the crusher unit and the 3[rd] respondent has taken the stand that the issuance of the trade/D&O license is the last formality and the same could be considered only if the petitioner produces consent to operate the unit at least in terms of Ext.P-10 proceedings issued by the 2[nd] respondent. That the petitioner has thereupon repeatedly approached respondents 1 & 2 who are taking the stand. Further that, the abovesaid stand of the 3[rd] respondent-Secretary of the Grama Panchayat is reflected in Ext.P-12 communication dated 13.08.2019. Further that, now the 1[st] respondent has issued Ext.P-13 notice to the petitioner ordering that unless the petitioner produces the requisite trade/D&O license to be issued by the 3[rd] respondent-Grama Panchayat, the 1[st] respondent will take steps to refuse the request of the petitioner for renewal of the integrated consent to operate the unit. 7. The impugned Ext.P-13 reads as follows: - “In reply please refer to no.PCB/KO/CTO/CR/28/06 Ref:- 1) Interim order of the Hon'ble High Court dated 12.02.2016 in WP(C)No.5355/16. 2) This office letter of even no. dated 20.02.2018 - 3) Application no.1394440 resubmitted on 06.05.2020 W.P(C) No.13627 of 2020 8 WHEREAS M/s.E.G.Granite Crusher, Malamel, Perumannoor P.O., Kottarakkara, Kollam - 691 545 in Sy.no.333/28, 333/35, 333/22 of Arackal Village, Pathanapuram Taluk, Kollam District (here in after referred to as industry), comes under the purview of the Water (Prevention & Control of Pollution) Act 1974, the Air (Prevention & Control of Pollution) Act 1981 and the Environment (Protection) Act 1986 and the industry is bound to comply with the Rules laid down there under; WHEREAS an interim Order of the Hon'ble High Court, restraining the operation of the crusher unit of the industry without obtaining D & O licence, vide reference cited (1) is in force currently; WHEREAS the industry had submitted application for Integrated Consent to Operate (Renewal); WHEREAS the application was returned on 17.03.2018, 12.07.2019 and 23.03.2020 for submitting a valid D&O License; WHEREAS the application was again resubmitted vide ref (3) above without a valid D&O License; AND WHEREAS the industry had failed to produce a valid D&O License or any further Order of the Hon'ble High Court permitting operation of the industry without D&O License; NOW THEREFORE, the Board proposes to refuse the Consent applied for by the industry However if the required documents are submitted within 15 days of the receipt of this notice, the matter will be reconsidered based on merits.” 8. The petitioner would contend that the stand of the 3[rd] respondent-Secretary of the Grama Panchayat that the issuance of trade/D&O license in terms of Sec.233 of the Kerala Panchayat Raj Act is the last formality and the same could be considered only after the 1[st] respondent grants consent to operate the unit at least on the basis of Ext.P-10, etc. is legally correct and that the contra stand of the 1[st] respondent in Ext.P-13 is legally wrong. W.P(C) No.13627 of 2020 9 9. _Per contra_ , Sri.T.Naveen, learned Standing Counsel for the Kerala State Pollution Control Board appearing for respondents 1 & 2 submits that the stand of the 1[st] respondent in Ext.P-13 is correct and that the request of the petitioner for renewal of the integrated consent to operate the crusher unit could be considered only if the petitioner produces the trade/D&O license from the 3[rd] respondent-Secretary of the Grama Panchayat, more particularly, in view of Ext.P-11 interim order passed by this Court in W.P(C) No.5355/2016. 10. The Full Bench of this Court in the case in _**Tomy Thomas v. State of Kerala**_ [2019 (3) KLT 987 (FB)] has considered various issues arising out of the requirements of Secs.232 & 233 of the Kerala Panchayat Raj Act and has held as follows in paragraph Nos.22, 23 & 24 thereof, which reads as follows: “22. Under the amended provisions of sub-section (3) of S.233 of the Act, the Secretary or the officer authorised by him should conduct an enquiry and submit report to the Village Panchayat as to whether the establishment of the factory, workshop, workplace or other installation of machinery or manufacturing plant, for which the permission is applied for, is objectionable by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution. The Village Panchayat on consideration of the application and the report of the Secretary and of such other authorities as specified in sub-section (4) may as expeditiously as possible, at any rate within thirty days grant the permission either absolutely or subject to such conditions as it thinks fit to impose. Subclause (a) and (b) of sub-section (3) contained in the unamended provisions were omitted through the amendment. Sub-clause (b) of sub-section (3) which enabled the Village Panchayat to refuse the prmission for reason to be recorded, was omitted from the statute book. It gives a clear indication that the power of the Village Panchayat to refuse the permission has been taken away by the legislature. W.P(C) No.13627 of 2020 10 23. Consequent to the above noted amendments to S.233 of the Act, the Licensing Rules were also amended. From the chart given as above it is evident that Rule 12 had undergone drastic changes. Under the unamended provision of sub-rule (3) of Rule 12 the Village Panchahyats were obliged to consider the application for permission within 45 days in case of obtaining no objection certificates from other establishments and within 30 days in other cases either to grant permission applied for, absolutely or subject to conditions or to refuse permission if it is of the opinion that such construction or establishment is objectionable by reason of high density of population in the neighbourhood or that it is likely to cause nuisance. The power vested on the Village Panchayat to refuse the permission as mentioned above contained under sub-clause (b) of sub-rule (3) of the Rule 12, was amended drastically. Under the amended sub-clause (b), it is provided that, if the Village Panchayat is of the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance, the Secretary shall as soon as may be after receipt of the application obtain an expert opinion of the department concerned with regard to determination of nuisance or its abatement, at the cost of the owner or person in-charge of the factory, workshop, workplace ormachinery concerned and such report shall be furnished to the Village Panchayat as soon as possible not later than 30 days of reporting such nuisance. Further it is provided that, on furnishing of such report of the concerned department, the Village Panchayat shall issue permission subject to such conditions as may be required for abatement of the nuisance if any, as recommended in the expert opinion of the concerned department. From the amendment incorporated under Rule 12(3) it is clear and evident that the power vested on the Village Panchayat to refuse the permission passed on the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood or that itself likely to cause nuisance, has been taken away by the legislature. Through the amendment it is clarified that if the Village Panchayat is of the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance, then the Secretary shall obtain an expert opinion of the department concerned and shall place such report for consideration of the Village Panchayat . There also the Village Panchayat is only authorised to issue permission subject to such conditions as may be required for abatement of the nuisance as recommended in the expert opinion of the concerned department. Therefore it is clear and evident that the power vested on the Village Panchayat to refuse the permission has been taken away by virtue of the amendments. 24. As mentioned in the foregoing paragraphs, the amendments specified above were introduced through the Kerala Investment Promotion and Facilitation (No.2) (Act 14/2018). The object of introducing such an Act, as specified therein, is intended to give effect to certain proposals of the W.P(C) No.13627 of 2020 11 Government of Kerala to avoid delay in granting various licences/permissions, approvals and clearances required under various enactments. Therefore the intention of the legislature to bring such drastic amendment is clear and explicit. Hence it is to be observed that, from the date of enforcement of the amendments from 20[th] October, 2017, it cannot be said that Village Panchayats have got primacy of power to take an independent decision to reject the applications for permission/licence under provisions of the Act and the Licensing Rules, for construction or for establishment of any factory workshop or work place. On the other hand, the Grama Panchayats (Village Panchayats) are obliged to grant permissions in cases where the authorities mentioned under S.233 of the Act had issued such permissions or consents or no-objection certificates. Even if the panchayat is of the opinion that the construction or establishment of the factory, workshop or workplace is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance, then also the panchayat can only obtain expert opinion from the department concerned and it is obliged to issue permission for such construction or establishment subject to such conditions as may be required for abatement of the nuisance, if any, as may be recommended in the expert opinion of the concerned department.” 11. From a reading of the abovesaid Full Bench judgment of this Court in **Tomy Thomas’s case** (supra), more particularly, paragraph Nos.22 to 24 thereof, it can be seen that in view of the amendments made to the Kerala Panchayat Raj Act, once the competent statutory regulatory authorities like the Pollution Control Board, Explosive Licensing Authority, etc. grants license/permissions/consents as per the relevant enactments, then the panchayat authorities do not have any significant discretion to reject the request of the party for grant of trade and establishment license. In other words, it is clear from the dictum laid down by the Full Bench of this Court in **Tomy Thomas’s case** (supra) that the issuance of the trade/D&O license and establishment license, in terms of Sec.232 & 233 of the Kerala Panchayat Raj Act, by the competent panchayat authorities W.P(C) No.13627 of 2020 12 concerned, etc. is rather automatic, once the competent statutory regulatory authorities like State Pollution Control Board, Explosive Licensing authority, etc. grants necessary permissions/consents/licenses, in terms of the applicable enactments. Then the panchayat authorities are bound to ensure that the application for formal licenses in terms of Secs.232 & 233 of the Kerala Panchayat Raj Act, as the case may be, should also be considered and granted and if there are any complaints against the functioning of the unit, it is for the panchayat authorities to refer such complaints through the competent statutory regulatory authorities concerned for their examination and action, in accordance with the applicable laws. In other words, it is crystal clear from the legal principles laid down by the Full Bench of this Court in **Tomy Thomas’s case** (supra) that the stand of the 3[rd] respondent-Secretary of the Grama Panchayat in Ext.P-10 is broadly correct and the contra stand of the 1[st] respondent in Ext.P-13 is not legally tenable. Moreover, in Ext.P-11 interim order rendered by this Court on 12.02.2016 in W.P(C)No.5355/2016, all this Court had ordered is that the crusher unit of the petitioner herein (6[th] respondent therein) should not be operated except after obtaining the D&O/trade license from the panchayat and further that the panchayat shall ensure that if the 6[th] respondent therein (petitioner herein) is operating the crusher unit without license from the W.P(C) No.13627 of 2020 13 panchayat, then the said activities should be stopped forthwith, etc. This Court is now apprised by both sides that other than Ext.P-11 interim order, this Court has not passed any further order in W.P(C)No.5355/2016, whereby the discretion of respondents 1 & 2 in considering the request for grant of consent to operate the unit has been in any manner interdicted or interfered with. The interim order in Ext.P-11 cannot be construed to mean in any manner that the request of the petitioner for grant of consent to be issued by respondents 1 & 2, should not be considered until and unless the petitioner produces trade/D&O license from the 3[rd] respondent-Secretary of the Grama Panchayat. The position in that regard is clarified and ordered. Accordingly, the following directions and orders are passed : (i) The directions issued by the 1[st] respondent in Ext.P-13 proceedings that the petitioner should necessarily produce the trade/D&O license from the 3[rd] respondent-Grama Panchayat, for considering the request of the petitioner for grant of consent to operate the unit, is illegal and untenable and the same will stand quashed and set aside. The application of the petitioner for grant of consent to operate as referred to in Ext.P-13 will stand remitted to the 1[st] respondentEnvironmental Engineer of the State Pollution Control Board for decision and consideration afresh. W.P(C) No.13627 of 2020 14 (ii) The 1[st] respondent should consider the said request of the petitioner and may pass orders thereon, without any reference to the stand taken in Ext.P-13 regarding the insistence that the petitioner should produce trade license from the 3[rd] respondent, etc. and after affording reasonable opportunity of being heard to the petitioner and the objector (petitioner in Ext.P-11 W.P(C)No.5355/2016) should pass orders on the said application for grant/renewal of the integrated consent to operate the unit, without much delay and in accordance with law, at any rate, within a period of one month from the date of production of a certified copy of this judgment. - (iii) If for any reason, the 1[st] respondent-Environmental Engineer takes the stand that the consent to operate the unit could be renewed only for a period of six months, as ordered in Ext.P-10, then the petitioner may pursue his application for trade/D&O license before the 3[rd] respondent-Secretary of the Grama Panchayat, who may then consider the case of the petitioner for grant of trade/D&O license for a period of six months, if it is so insisted by the 1[st] respondent on account of Ext.P-10. However, this will be without prejudice to the right to the petitioner to challenge any such decision that may be W.P(C) No.13627 of 2020 15 taken by the 1[st] respondent to limit the consent for a period of six months in view of Ext.P-10 and all such contentions of the petitioner are left open to be raised and decided in separate proceedings that may be initiated by the petitioner, in accordance with law. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd W.P(C) No.13627 of 2020 16 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF LICENSE DATED 2.11.1995 ISSUED BY THE EDAMULAKKAL GRAMA PANCHAYAT. EXHIBIT P2 TRUE COPY OF RELEVANT PAGES OF RENEWED CONSENT DATED 14.10.2009 VALID UPTO 30.6.2012. EXHIBIT P3 TRUE COPY OF APPLICATION FOR RENEWAL OF CONSENT DATED 16.4.2012 ALONG WITH RECEIPT. EXHIBIT P4 TRUE COPY OF COMPLIANCE LETTER, DATED 18.1.2014 SUBMITTED BY THE PETITIONER. EXHIBIT P5 TRUE COPY OF NOC ISSUED BY THE DISTRICT MEDICAL OFFICER, DATED 2.2.2013. EXHIBIT P6 TRUE COPY OF NOC ISSUED BY THE DEPARTMENT OF FIRE AND RESCUE, DATED 30.1.2013. EXHIBIT P7 TRUE COPY OF LICENSE DATED 29.10.2014 ISSUED UNDER THE PROVISIONS OF FACTORIES AND BOILERS ACT. EXHIBIT P8 TRUE COPY OF NOC GIVEN BY THE IMMEDIATE NEIGHBOURS OF THE PETITIONER DATED 12.11.2014. EXHIBIT P9 TRUE COPY OF JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C) NO.22022/2015 DATED 22.7.2015. EXHIBIT P10 TRUE COPY OF ORDER DATED 8.1.2016 ISSUED BY THE 2ND RESPONDENT GRANTING PERMISSION FOR TRIAL RUN. EXHIBIT P11 TRUE COPY OF INTERIM ORDER DATED 12.2.2016 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.5355/2016. EXHIBIT P12 TRUE COPY OF INTIMATION DATED 13.8.2019 RECEIVED FROM THE PANCHAYAT. EXHIBIT P13 TRUE COPY OF PROCEEDINGS OF THE 1ST RESPONDENT DATED 13.4.2020 INTIMATING SUBMISSION OF LICENSE FROM THE PANCHAYAT FOR GRANT OF CONSENT TO OPERATE.**