Prasad Mathew v. Secretary, Koipuram Grama Panchayat & Koipuram Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938** ## **W.P(C).No.17441 of 2016 (E)** **--------------------------------** ## **PETITIONER(S):-** **----------------** **PRASAD MATHEW, KUTTICKATTU, KADAPRA P.O., KOIPURAM, PATHANAMTHITTA. BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX.** **RESPONDENT(S):-** **----------------** **1. THE SECRETARY, KOIPURAM GRAMA PANCHAYAT, PULLAD P.O., PATHANAMTHITTA, PIN-689 548. 2. KOIPURAM GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PULLAD P.O., PATHANAMTHITTA, PIN-689 548.** ## *** ADDITIONAL RESPONDENTS 3 TO 5 IMPLEADED:** **----------------------------------------** **ADDL. 3. K.G.BIJU, S/O.LATE GANGADHARAN, AGED 43, CHAIRMAN, BITUMEN PLANT VIRUDHA ACTION COMMITTEE, KUZHIUZHATHIL HOUSE, KUMBANAD MURI & VILLAGE, THIRUVALLA TALUK, KADAPRA P.O., PATHANAMTHITTA DISTRICT. ADDL. 4. T.RAJKUMAR, S/O.LATE THANKAPPAN NAIR, PUTHUPARAMBIL HOUSE, KUMBANAD MURI & VILLAGE, KADAPRA P.O., THIRUVALLA TALUK, PATHANAMTHITTA. ADDL. 5. K.M.VARGHESE, AGED 61 YEARS, KOCHUPURACKAMURIYIL HOUSE, KADAPRA P.O., THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.** *** ADDITIONAL RESPONDENTS 3 TO 5 ARE IMPLEADED AS PER ORDER DATED 18.07.2016 IN I.A.NO.11099 OF 2016.** **R1 & R2 BY ADV. SRI.S.JAYAKRISHNAN ADDL.R3 TO R5 BY ADVS. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-** ## **WP(C).No.17441 of 2016 (E)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:-** **----------------------EXT.P1 TRUE COPY OF THE D & O LICENSE FOR THE YEAR 2015-16 BEARING NO. C8-1/15-16 DATED 01-04-2015 ISSUED BY THE 1ST RESPONDENT. EXT.P2 TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE RENEWAL BEARING NO. PCB/PTA/ICO/191/2012 DATED 26-08-2014 ISSUED BY THE POLLUTION CONTROL BOARD. EXT.P3 TRUE COPY OF THE APPLICATION DATED 23-02-2016 SUBMITTED BY THE PETITIONER SEEKING RENEWAL OF D&O LICENSE FOR THE PERIOD 2016-17.** **EXT.P4 TRUE COPY OF THE APPLICATION DATED 30-04-2016 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER DT.08.04.2015 IN W.P.(C) NO.9247/2014. EXT.P6 TRUE COPY OF THE REPORT BEARING NUMBER PCB/PTA/ICO/1091/2012 DATED 20.5.2014. EXT.P7 TRUE COPY OF CIRCULAR BEARING NO.PCB/HO/CIRCULAR/2015(4) DATED 01.10.2015. EXT.P8 TRUE COPY OF THE JUDGMENT DT.4.11.2015 IN WPC 15520/2015. EXT.P9 TRUE COPY OF THE ORDER BEARING NO.PCB/HO/PTA/L/O1/2016 DATED 16.02.2016. EXT.P10 TRUE COPY OF THE REPORT BEARING NO.PCB/H//PTA/L/01/2016 DATED 11.04.2016 ALONG WITH THE TEST REPORT OF THE EXTERNAL AGENCY. EXT.P11 TRUE COPY OF THE LETTER BEARING NO.D1-451/2014 DATED 09.06.2016 ISSUED BY THE ASST. EXECUTIVE ENGINEER, PWD, PATHANAMTHITTA.** ## **RESPONDENT(S)' EXHIBITS:-------------------------** **EXT.R2(a) TRUE COPY OF DECISION NO.IV(1) DATED 29.03.2016 OF THE 2ND RESPONDENT-PANCHAYAT COMMITTEE MEETING. EXT.R2(b) TRUE COPY OF DECISION NO.IV(2) DATED 29.03.2016 OF THE 2ND RESPONDENT-PANCHAYAT COMMITTEE MEETING. EXT.R2(c) TRUE COPY OF DECISION NO.IV(3) DATED 29.03.2016 OF THE 2ND RESPONDENT-PANCHAYAT COMMITTEE MEETING.** **- 2 -** **WP(C).No.17441 of 2016 (E)** **EXT.R2(d) TRUE COPY OF REPORT NO.P.C.B./PTA/ICO/1091/2012 DATED 31.05.2016 ISSUED BY THE ENVIRONMENTAL ENGINEER TO THE 1ST RESPONDENT. EXT.R3(e) TRUE COPY OF THE REPORT NO.C6-1925/16 DATED 29.03.2016 ISSUED BY THE MEDICAL OFFICER, PH CENTRE, KOIPURAM TO THE 1ST RESPONDENT. EXT.R3(A) TRUE COPY OF THE NOTICE ISSUED BY THE OMBUDSMAN DATED 18.4.2016. EXT.R3(B) TRUE COPY OF THE PAPER EXTRACT OF THE HINDU DATED 9.1.16. EXT.R3(C) TRUE COPY OF THE PAPER EXTRACT OF THE HINDU DT.23.3.15. EXT.R3(D) TRUE COPY OF THE PAPER EXTRACT OF DESHABHIMANI DT.25.12.14. EXT.R3(E) TRUE COPY OF THE PAPER EXTRACT OF MANORAMA DT.25.3.15. EXT.R3(F) TRUE COPY OF THE PAPER EXTRACT OF MADYAMAM DT.15.2.15. EXT.R3(G) TRUE COPY OF THE PAPER EXTRACT OF MANORAMA DT.27.2.15. EXT.R3(H) TRUE COPY OF THE PAPER EXTRACT OF MANORAMA DT.25.3.15. EXT.R3(I) TRUE COPY OF THE PAPER EXTRACT OF MANORAMA DT.1.4.16. EXT.R3(J) TRUE COPY OF THE PAPER EXTRACT OF MANORAMA DT.19.3.16. EXT.R3(K) TRUE COPY OF THE REPRESENTATION DT.11.3.156 WITH RECEIPT. EXT.R3(L) TRUE COPY OF THE REPORT IN PURSUANCE TO THE MEDICAL OFFICER, P.H.C., KOIPURAM IN RESPONSE TO THE REPRESENTATION FILED BY NUMEROUS LOCALS. EXT.R3(M) TRUE COPY OF THE PETITION FILED BEFORE THE S.I. DT.30.3.15. EXT.R3(N) TRUE COPY OF THE RESOLUTION PASSED BY THE LOCALS WHO MET IN GRAMASABHA DT.17.3.16.** **EXT.R3(O) TRUE COPY OF THE REGISTERED NOTICE ISSUED TO THE PANCHAYAT BY THE ACTION SAMITHI. EXT.R3(P) TRUE COPY OF THE PLAINT IN O.S.NO.205/16 ON THE FILES OF MUNSIFFS COURT, THIRUVALLA. EXT.R3(Q) TRUE COPY OF THE TRUE COP[Y OF THE PLAINT IN O.S.NO.129/16 OF THE MUNSIFFS COURT, THIRUVALLA. EXT.R3(R) TRUE COPY OF CIRCULAR DT.1.10.15.** - **EXT.R3(S) TRUE COPY OF THE ORDER IN PROCEEDINGS OF THE KERALA STATE POLLUTION CONTROL BOARD DT.16.2.16.** **WP(C).No.17441 of 2016 (E)** **- 3 -** **EXT.R3(T) TRUE COPY OF THE STANDARDS OF CENTRAL POLLUTION CONTROL BOARD NATIONAL AMBIENT AIR QUALITY STANDARD DT.18.11.2009. EXT.R3(U) TRUE COPY OF THE LETTER OF THE STATE POLLUTION CONTROL BOARD DT.11.4.2016.** **vku/[ true copy ]** ## K. Vinod Chandran, J ---------------------------------------W.P.(C) No.17441 of 2016-E ---------------------------------------Dated this the 08[th] day of August, 2016 ## **JUDGMENT** The petitioner has filed the above writ petition seeking a prayer for issuance of a licence, which is deemed to have been issued under the provisions of the Kerala Panchayat Raj Act, 1994 [for brevity “the Panchayat Raj Act”], specifically Section 236(3). The application of the petitioner is dated 23.02.2016 and, admittedly, as of now the Panchayat has not rejected the application. The Panchayat has filed a counter affidavit dated 14.07.2016. The submission in the counter affidavit is that the licence could not be renewed within the stipulated period due to the agitations, protests and litigations filed by the general public against the functioning of the plant before the Civil Court and other forums, which are pending consideration. Hence, admittedly, the petitioner is entitled to seek for issuance of a deemed licence under Section 236(3) of the Panchayat Raj Act, as has been held by a Division Bench of this Court in _**Sudhakaran v. Pallichal Grama Panchayat**_ **[2016 (2) KLT 175].** - 2 - WP(C) No.17441 of 2016 2. The said prayer is stoutly opposed by the additional respondents 3 to 5, who are members of the locally resident public who have impleaded themselves in the above writ petition. On the last posting date, the learned Counsel for the additional respondents had submitted that there is a Public Interest Litigation filed by the additional respondents 3 and 4, numbered as W.P.(C) 25120 of 2016, and there is a specific order directing this writ petition also to be tagged along with the PIL. The said prayer was opposed by the learned Counsel for the petitioner on the ground that there is no such order and the Division Bench merely directed that the instant writ petition be posted along with the PIL, if it is a Division Bench matter. It is in such circumstance that the matter was posted today for verification. The learned Counsel for the additional respondents also now admits after verifying the order of the Division Bench that the matter was directed to be posted along with the PIL, only if the same is a Division Bench matter. Obviously this writ petition is not a Division Bench matter and the same is posted before this Court according to roster. Hence, the additional respondents 3 to 5 were heard. - 3 - WP(C) No.17441 of 2016 3. The additional respondents 3 to 5 would point out various aspects which they have brought to the notice of the authorities which, according to them, should have motivated the authorities in interdicting the operation of the Bitumen Mixing Plant carried on by the petitioner. The additional respondents contend that there have been agitations going on from the very inception of the plant in the year 2012 especially since the emissions from the unit are said to be carcinogenic, which occasioned respiratory problems and debilitating illness among the local residents. Along with the counter affidavit of the additional respondents, a number of paper reports and complaints are filed, which, according to the learned Counsel, indicate the widespread protest made by the general public of the locality against the installation and continuance of the Bitumen Mixing Plant by the petitioner. 4. It may not be proper for this Court to place reliance on the paper reports or the complaints filed; but, however, significant is Exhibit R3(L), the report of the Medical Officer, which dealt with the allegations of the residents of the locality regarding the effluents causing debilitating illness to the local residents and recommended - 4 - WP(C) No.17441 of 2016 that the functioning of the plant has to be verified and it has to be ascertained whether the same is carried on in accordance with the norms and also the distance rule. There are also two suits filed by the public in the locality, which are produced as Exhibits R3(P) and R3(Q); in which admittedly there are no orders passed. The learned Counsel appearing for the additional respondents would also point to Exhibit R3(N), which is a resolution passed by the Grama Sabha, comprised of residents in Ward Nos.10, 12, 13 and 14 against the functioning of the unit. 5. Refuting the above contentions, the petitioner has filed a reply affidavit. It is noticed from the reply affidavit that Exhibit P5 order was passed in two other writ petitions, again filed by the residents of the locality, wherein, on the allegation of emission of Carbon Monoxide and Hydro Carbons, this Court directed the Environmental Engineer, Kerala State Pollution Control Board, Thiruvananthapuram to conduct a further study to see whether any poisonous gas as specifically mentioned in Exhibit P2, produced in one of the said writ petitions, is being emitted during the operation of the plant. In compliance of that, the Pollution Control Board is - 5 - WP(C) No.17441 of 2016 said to have measured the emissions and a report filed as per Exhibit P6, wherein it is noticed that the emissions on the operation of the plant having been examined; the pollutants, if any, are below the non-detectable limit. 6. Further, the Pollution Control Board has also brought out Exhibit P7 Circular dated 01.10.2015, wherein the Chairman has directed Work Permit/Work Order with respect to hot mix plant, to be categorised as two; one temporary permission and the other permanent permission. As to the temporary permissions, three different durations have been prescribed; first for one year and then for three years and after that for three more years. As far as the permanent permission is concerned, the conditions in the Circular are as herein below: ## “2. ØíÅßø ¥ÈáÎÄß èØçµïÞY æØMçùxVå(Cyclone Seperator), ØídµÌîV (Scrubber), ÌÞ·í ËßWxVå(Bag filter) ®KßÕ ÎÄßÏÞÏ µMÞØßxßÏßW çÙÞGíÎßµíØí ÉïÞaßçÈÞ¿ÈáÌtÎÞÏß ØíÅÞÉßAáµÏᢠ20 ÎàxV ºßNßÈß ØíÅÞÉßAáµÏá¢, ÎßµíØߢ·ßÈá ¦ÕÖcÎÞÏ ¥Ø¢ØídµáÄ ÕØñáAZ ¥¿ºî æ×Ááµ{ßW çÖ¶øßAáµÏᢠ¥Ø¢ØídµáÄ ÕØñáAZ èµµÞøc¢ æºÏîá¢çÌÞÝá¢, çÜÞÁߢ·í/¥YçÜÞÁߢ ·í æºÏîá¢çÌÞÝᢠæÉÞ¿ßÉ¿Ü¢ ÉùAÞÄßøßAÞX çÕIáK Ø¢ ÕßÇÞÈçJÞ¿áµâ¿ßÏÄᢠÉïÞaßÈá ºáxáÎÄßçÜÞ¿áµâ¿ßÏÄáÎÞÏ - 6 - WP(C) No.17441 of 2016 ØíÅßø Ø¢ÕßÇÞÈBZAá 50 ÎàxV ºáx{ÕßW Õà¿áµç{Þ æÉÞÄáØíÅÞÉÈBç{Þ §ÜïÞJ Éf¢ çÌÞVÁí Èß×íµV×ßAáK ÈßÌtȵç{Þ¿áµâ¿ß ØíÅÞÉÈÞÈáÎÄßÏᢠ” dÉÕVJÈÞÈáÎÄßÏᢠÈWµÞÕáKÄÞÃí ; On a mere reading of these conditions, they are revealed to be more stringent than those insisted for temporary permissions. 7. The writ petitions in which Exhibit P5 order was passed, was heard along with one another writ petition and final orders were passed at Exhibit P8. In Exhibit P8, this Court directed the Pollution Control Board to examine as to whether the petitioner's unit has been granted permanent permission or temporary permit as per the circular of the Pollution Control Board dated 01.10.2015. The Pollution Control Board, based on the same, has considered the issue after hearing the affected parties and passed Exhibit P9, which is the subject matter of challenge in the PIL. It is the submission of the learned Counsel for the petitioner that the respondents 3 and 4, whose writ petitions were disposed of by order at Exhibit P8, had also at that point, confined their submissions to the issue of whether it is a temporary permission or - 7 - WP(C) No.17441 of 2016 a permanent permission. The same has been answered by the Pollution Control Board and, therefore, there is no further scope for challenge, is the contention of the petitioner. 8. Having noticed the above submissions, it is to be emphasised that the directions in the earlier writ petitions have been complied with by the Pollution Control Board and it has been found that there is no emission injurious to health as of now. It is also pertinent that now the additional respondents impleaded and who filed the PIL are other members of the public who were not before this Court in the earlier instances. As of now, this Court is only looking at whether there could be a deemed licence issued to the petitioner. The Panchayat though speaks of agitations and litigations, has not thought it fit to issue a rejection order on the basis of the same. In such circumstances, if the petitioner has obtained a consent for operation from the Pollution Control Board and the same is valid, necessarily the petitioner can continue the operations of the unit as has been held in **2016 (2) KLT 219 [** _**Ramapuram Grama Panchayath Vs. St. Basil Industries**_ **]** . In such circumstances, going by the decision in _**Sudhakaran**_ (supra), WP(C) No.17441 of 2016 - 8 - the Panchayat has to be directed to issue a deemed licence, within a period of one week from the date of receipt of a certified copy of this judgment, which would be subject to challenge initiated by the additional respondents against the consent issued by the Pollution Control Board, in the public interest litigation. The writ petition would stand allowed; without any order as to costs, with the above reservation. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]