Prabhakaran v. Kottukal Grama Panchayath & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY ,THE 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940** ## **WP(C).No. 39306 of 2018** ## **PETITIONER/S:** **PRABHAKARAN, AGED 61 YEARS, S/O.GOVINDAN, GEEPRABHA, OORUTTUKALA, NEYYATTINKARA, THIRUVANANTHAPURAM.** **BY ADVS. SRI. S. SREEKUMAR (SR.) SRI.AJITH KRISHNAN SRI.V.P.RAMESAN** ## **RESPONDENT/S:** - **1 KOTTUKAL GRAMA PANCHAYATH, REPRESENTED BY SECRETARY, KOTTUKAL P.O., BALARAMAPURAM (VIA), THIRUVANANTHAPURAM-695 501.** - **2 THE SECRETARY, KOTTUKAL GRAMA PANCHAYATH, KOTTUKAL P.O., BALARAMAPURAM (VIA), THIRUVANANTHAPURAM-695 501.** - **3 KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ENVIRONMENT ENGINEER, THIRUVANANTHAPURAM-695 004.** **BY ADVS. R1 & R2 BY SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN R3 BY SRI. NAVEEN T. STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2019, THE COURT ON 14.01.2019 DELIVERED THE FOLLOWING:** W.P.(C) No.39306 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P11 order passed by the 2[nd] respondent i.e., the Secretary of the Kottukal Grama Panchayat, declining D&O licence to operate a tar mixing plant within the limits of the Panchayat. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner is a PWD contractor and he undertakes execution of Government works including Ext.P1, which is a major work involving probable amount of contract of Rs.1,66,79,753/-. For the execution of the works, petitioner has put up a tar mixing plant in the property covered as per Ext.P2 rent deed. Petitioner has obtained consent from the 3[rd] respondent Pollution Control Board as well as the sanitary fitness certificate from health authorities. Thereafter, petitioner submitted an application to the 1[st] respondent for issuance of D&O licence. In response to that application, Panchayat issued Ext.P4 letter dated 09.03.2018, requesting the petitioner to cure the defects in the application by furnishing building number, consent issued by Pollution Control Board and W.P.(C) No.39306 of 2018 3 sanitary fitness certificate. Pursuant to Ext.P4, petitioner has produced the consent issued by the 3[rd] respondent and the sanitary certificate. In respect of building number, according to the petitioner, it is a vacant plot where the tar mixing unit was put up. Again, the Panchayat issued Ext.P6 letter, requiring the petitioner to furnish the building number, which, according to the petitioner, is with the _malafide_ motive of denying the licence. 3. It is the case of the petitioner that, there is no building required to operate a tar mixing unit, as it is a portable unit. Thereupon, petitioner has filed W.P.(C) No.25460 of 2018 before this Court, and the writ petition was disposed of, directing the 2[nd] respondent to consider the licence application submitted by the petitioner, taking into account as to whether petitioner is using a portable tar mixing plant, and therefore, asking for building number is an impossible act. Anyhow, the application for D&O licence was declined as per Ext.P9, which was challenged in W.P.(C) No.27753 of 2018, wherein Ext.P9 order was quashed and directed the Secretary to take a fresh decision. It was thereafter taking into account the directions and other aspects, Ext.P11 impugned order is W.P.(C) No.39306 of 2018 4 passed by the Panchayat, which is under challenge in this writ petition. 4. A detailed counter affidavit is filed by respondents 1 and 2, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the contention of the petitioner that the tar mixing unit is a portable unit is not at all true or correct, and the same is a fixed one, and the machinery is mounted on a concrete platform in a shed with concrete roofing and having electricity connection, evident from Ext.R2(a) series of photographs. In March, 2018, petitioner submitted an application for D&O licence to conduct a Tar Mixing Unit in the property in question, for a period of five years, evident from Ext.R2(b) application dated 09.03.2018. Since there were defects in the application including the absence of building number, it was returned with a direction to cure the defects. However, petitioner has not cured the defects. 5. It is further pointed out that, near to the petitioner's tar mixing unit, a Hospital, one U.P. School, and one Teachers' Training Institute with boarding facility are functioning. The chimney of the unit is not in consonance with prescribed level, and it W.P.(C) No.39306 of 2018 5 is constructed in lower level than the one prescribed, which results in the smoke spreading over the area causing serious ailments to the public especially to the patients, children, senior citizens, pedestrians etc. It is further submitted, even though petitioner obtained Ext.P3 consent to operate from the 3[rd] respondent, petitioner is bound to comply with the terms and conditions prescribed under the Environmental (Protection) Act, the Rules and the conditions prescribed under Ext.P3. However, innumerable complaints were received from the public against this unit, and true copy of the same are produced as Exts.R2(c) and R2(d). 6. It is also pointed out that, the unit is a life-endangering threat to the area, on which, the Gramasabha has also expressed its concern and anxiety in its meetings. It is further stated that, the unit is installed in an unauthorizedly constructed room with brick walls, and concrete roofing having electricity connection, which is liable to be demolished. It is also stated that, taking note of the complaints, the Panchayat Committee meeting held on 10.08.2018 decided not to grant licence to the petitioner's tar mixing unit. As per Rule 12(3)(b) of the Kerala Panchayat Raj W.P.(C) No.39306 of 2018 6 (Issue of licence to Dangerous and Offensive Trades and Factories) Rules, 1996, the Grama Panchayat has the power to refuse the permission, if it is of the opinion that such establishment is bound to cause health hazards to the people of the locality, likely to cause objectionable nuisance, and if the unit is situated in the midst of residential buildings, schools, public places etc. Therefore, according to respondents 1 and 2, the unit is likely to cause serious environmental issues, and it was under the said background, the application submitted by the petitioner was rejected. It is also submitted that, there is no _malafide_ or illegal action on the part of the 2[nd] respondent to reject the application. Moreover, a resolution is passed viz., Ext.R2(e) by the Panchayat committee considering the situation. Further, the Secretary has heard the petitioner and other concerned persons on 27.11.2018, and it was thereafter only, Ext.P11 proceedings are issued rejecting the application for licence submitted by the petitioner. 7. I have heard learned Senior Counsel for the petitioner and the learned Standing Counsel for the respective respondents and perused the pleadings and the documents on record. W.P.(C) No.39306 of 2018 7 8. The paramount contention advanced by learned Senior Counsel for the petitioner is that, since the tar mixing unit is a portable one, no establishment permit or licence is required under Sections 233 and 232 of the Kerala Panchayat Raj Act, 1994, (for brevity, 'the Act, 1994') respectively. It is also submitted that, since it is a portable unit used for construction purpose in the category of concrete mixers, the plant is exempted under Sec.233B of Act, 1994. Learned Senior Counsel has also invited my attention to the judgment of a Division Bench of this Court in _**'Janardhanan Nair v. K.V. Vijayamma and Others**_ ' [2016 (2) KHC 932 (DB)], wherein, after considering the issues, it was held that the facts and circumstances show that the equipments used by the petitioner therein is a portable one, and therefore, no establishment permit and D&O licence are required to operate the unit. 9. Learned Senior Counsel has also invited my attention to yet another Division Bench judgment of this Court in _**'Jilmon John v. Manakad Grama Panchayat'**_ [2017 (1) KLT 794], wherein the same issue was considered, however, distinguished the judgment in _**'Janardhanan Nair'**_ ( _supra_ ), and held that, the plant 8 W.P.(C) No.39306 of 2018 and machinery show that they are not portable units, and therefore, requires establishment permit and licence under Sections 233 and 232 of Act, 1994. 10. On the other hand, learned Standing Counsel for respondents 1 and 2 submitted that, Ext.P11 order is passed by the Secretary taking into account all the contentions advanced by the petitioner and the application for D&O licence was rejected assigning various reasons, and therefore, petitioner has got an efficacious remedy to prefer an appeal, if the petitioner is aggrieved by Ext.P11 order. That apart, it is submitted that, the tar mixing unit operated by the petitioner is not a portable one, and therefore, it requires establishment permit and licence as per the provisions of the Act, 1994. Learned Standing Counsel has heavily relied upon Ext.R2(a) series of photographs, wherein, various units of the tar mixing plant are demonstrated. Ext.R2(a) series of photographs are not at all disputed by the petitioner. It is submitted, on an evaluation of the photographs, it is evident that the unit is fixed on various concrete blocks having long pipes, and machineries separately, along with bins for storing metal, so as to cater to the needs of the plant. Therefore, according to the W.P.(C) No.39306 of 2018 9 learned Standing Counsel, the nature of the plant shows that it requires establishment permit and D&O licence. 11. Learned Standing Counsel has also submitted that, the decision in the case of _**'Janardhanan Nair'**_ ( _supra_ ) has no manner of factual resemblance to the facts in issue and the issue is squarely covered in the Division Bench judgment of this Court in _**'Jilmon John'**_ ( _supra_ ), and therefore, without obtaining an establishment permit and the D&O licence, petitioner cannot operate the plant. Moreover, it is submitted that, there are various public institutions situate in and around the area in question, and if the plant is functioning, there will be innumerable difficulties and environmental problems so as to affect the normal and peaceful life of the people within the area of operation of the unit. It is further reiterated, as stated in earlier occasions, that in the property a building with concrete roof is situated with electric connection, and therefore, the petitioner is duty bound to provide the building number, as is sought for by the Secretary of the Panchayat. 12. I have evaluated the rival submissions made across the Bar. The first and foremost question to be considered is, whether the petitioner is entitled to W.P.(C) No.39306 of 2018 10 get the benefit of the proposition of law laid down by this Court in the judgment in _**'Janardhanan Nair'**_ ( _supra_ ). From the narration of facts thereunder, it is quite clear and evident that the said judgment was rendered by a Division Bench of this Court, relying upon the facts and circumstances involved in the matter, and after understanding the nature of the tar mixing plant used by the petitioner therein. Being satisfied that the tar mixing plant is a portable one, it was held in that particular case that licence and establishment permit are not required under the provisions of the Kerala Panchayat Raj Act, since it comes clearly under the exempted category provided under Sec.233B of Act, 1994. 13. However, on a reading of the judgment in _**'Jilmon John**_ ' ( _supra_ ), it is clear the Judges papers in the case of _**'Janardhanan Nair'**_ ( _supra_ ) was called for, and assimilated the fact situations and compared the nature of the tar mixing plant operated by the respective parties. I have also called for the files in _**'Janardhanan Nair'**_ and also ' _**Jilmon John**_ ' and finds that the plant in question, though not as large as in the case of ' _**Jilmon John**_ ', it has the characteristics of permanent *fixtures, resembling ' _**Jilmon John**_ ' and W.P.(C) No.39306 of 2018 11 Ext.R2(a) series of photographs produced by respondents 1 and 2 in this writ petition show that it is a different nature of unit than in the case of _**'Janardhanan Nair'**_ ( _supra_ ). Moreover, from Ext.P3 consent issued by the Pollution Control Board, it is quite clear and evident that, the capital investment made by the petitioner for the unit is Rs.29.70 Lakhs. True, it is in the 'Orange' category and capital investment is less than the case in _**Janardhanan Nair**_ and _**Jilmon John** (supra)_ . However, the total power required is 88 HP. It is also true, Ext.P3 consent is issued only for a period of one year. But, fact remains, the application submitted by the petitioner for operating the tar mixing plant is for a period of five years, evident from Ext.R2(b) application and the counter affidavit filed by respondents 1 and 2, which are not disputed by the petitioner. Be that as it may, irrespective of the investment, what is to be looked into and identified is whether the unit is a portable one. 14. I have also gone through the Circular dated 01.10.2015 issued by the Pollution Control Board, produced as Ext.P4(a) in the case of _**'Janardhanan Nair'**_ ( _supra_ ), wherein certain stipulations are fixed in W.P.(C) No.39306 of 2018 12 respect of temporary permit to Hot mix plant. Therein, it is clearly stated that, if the work permit/work order is for one year, and if there are no houses or public institutions within 25 metres distance, temporary permit shall be given for installing and operating Hot mix plant with chimney for a height of 11 metres and security deposit of Rs.2 lakhs. Therefore, even though the Pollution Control Board has granted permit only for a period of one year, that by itself will not alter the nature and character of the plant, and the application submitted by the petitioner for granting licence is for a period of five years. Moreover, it is quite evident that, the unit established by the petitioner is a larger unit having various machineries so as to cater the needs of the tar mixing plant, and it is clearly fixed on concrete blocks, making it a machinery fixed or attached to earth, and which persuades me to think that it is never a portable unit, but is a unit not exempted under Sec.233B of Act, 1994. So much so, in _**Janardhanan Nair**_ case in the consent to establish, it is specifically shown as temporary whereas in the integrated consent i.e. Ext.P3 in this case it is shown as “Hot Mix Plant”, near Kochupally. W.P.(C) No.39306 of 2018 13 15. The word _'portable'_ is defined in the Chambers Concise Dictionary, Deluxe Edition to mean; easily or conveniently carried or moved about; (of a computer program) easily adapted for use on a wide range of computers, etc. etc. Therefore, the contention advanced by learned Senior Counsel for the petitioner that the plant in question is a portable unit, cannot be sustained under law, and therefore, the petitioner will have to necessarily get the establishment permit and D&O licence for establishing the unit. There is no case for the petitioner that petitioner has submitted any application for establishment permit before the Panchayat. In my considered view, before securing D&O licence, petitioner ought to have applied for establishment permit before the Panchayat under Sec. 233 of Act, 1994. Therefore, the stand adopted by the Panchayat that the plant in question is not a portable one, in my view, is a legalistic approach to the issue in question. Moreover, petitioner himself has applied for the D&O licence, and having participated in a legal process initiated by the petitioner, petitioner is not at liberty to turn around and contend that, petitioner is not liable to secure a D&O licence. Which thus also means, petitioner was conscious of the fact that the W.P.(C) No.39306 of 2018 14 unit is not a portable one, entitled for exemption under section 233B of Act, 1994. 16. Now, the sole question is, whether any manner of interference is warranted to Ext.P11 order passed by the 2[nd] respondent. In my considered view, petitioner was heard and various factual circumstances were taken into account, including the complaints filed by the residents of the locality, and has arrived at a conclusion that if the plant is allowed to be operated, there is every likelihood of causing environmental pollution and difficulties to the people residing nearby and the public institutions functioning in the locality, specified in the order as well as in the counter affidavit. Moreover, the 2[nd] respondent has arrived at the conclusion by depending upon various factual circumstances, including that, a building is situated in the property with electric connection. The said aspect is stoutly disputed by the petitioner, which makes the situation more complex on facts, and there is no material on record to hold otherwise. Moreover, none of the complainants are made parties to this writ petition. 17. Taking into account, the said cluster of factual and legal circumstances, I am of the considered W.P.(C) No.39306 of 2018 15 opinion that, no manner of interference is warranted to Ext.P11 order, exercising the powers of judicial review under Article 226 of the Constitution of India, there being no arbitrariness or illegality. Resultantly, writ petition fails, accordingly it is dismissed. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) No.39306 of 2018 16 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO.DBV/EST.NO.2016/8201 DATED 18.09.2017 ISSUED BY SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT TO THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE RENT DEED EXECUTED BETWEEN THE PETITIONER AND THE PROPERTY OWNER DATED 09.03.2018.** - **EXHIBIT P3 TRUE COPY OF THE CONSENT TO OPERATE DATED 10.05.2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE LETTER NO.B2/2888/18 DATED 09.03.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE SANITARY FITNESS CERTIFICATE DATED 09.07.2018 ISSUED BY THE PRIMARY HEALTH CENTRE, KOTTUKAL.** - **EXHIBIT P6 TRUE COPY OF THE LETTER NO.B2/7783/2018 DATED 13.07.2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 23.07.2018 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE SAID JUDGMENT IN WPC NO.25460/2018.** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO.B2/8948/2017 DATED 13.08.2018 ISSUED BY THE 2ND RESPONDENT ALONG WITH THE DECISION OF THE PANCHAYATH COMMITTEE.** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 24.10.2018 IN WP(C)NO.27753/2018.** - **EXHIBIT P11 TRUE COPY OF THE ORDER NO.B2/8948/2017 DATED 27.11.2018 ISSUED BY THE PANCHAYATH.** - **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 06.10.2018 ISSUED BY THE SUPERINTENDING ENGINEER.** W.P.(C) No.39306 of 2018 17 **RESPONDENTS' EXHIBITS:** **EXHIBIT R2(A) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE MOUNTING OF THE TAR MIXING UNIT AND THE ARRANGEMENTS MADE FOR THE LARGE SCALE PRODUCTION IN THE UNIT.** **EXHIBIT R2(B) TRUE COPY OF THE APPLICATION FORM SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 09.03.2018.** **EXHIBIT R2(C) TRUE COPY OF THE COMPLAINT FILED BY THE NAVABHAVANA RESIDENTS ASSOCIATION DATED 09.04.2018.** **EXHIBIT R2(D) TRUE COPY OF THE COMPLAINT FILED BY THE SNDP SAKHA YOGAM, CHOWARD DATED 06.04.2018. EXHIBIT R2(E) TRUE COPY OF THE RESOLUTION NO.1(1) DATED 21.11.2018 OF THE 2ND RESPONDENT.** //TRUE COPY// P.S. TO JUDGES St/-