Ratheesh A. v. State of Kerala & Rayamangalam Grama Panchayath; Muhammed K.M. v. State of Kerala & Rayamangalam Grama Panchayath (WP(C).17704/2019(K) and WP(C).21478/2019(H))

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** # **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** # **WP(C).No.17704 OF 2019(K)** ## **PETITIONER:** **RATHEESH A., AGED 32 YEARS S/O ARAVINDAKSHAN, MANGALAMPILLI VEEDU, RAYAMANGALAM PANCHAYATH, KUNNATHUNADU TALUK, PERUMBAVOOR-683545.** ## **SRI.R.DIVAKARAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, CIVIL STATION, KAKKANADU, ERNAKULAM-682030.** - **3 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA-686661.** - **4 RAYAMANGALAM GRAMA PANCHAYATH, RAYAMANGALAM.P.O, KURUPPAMPADY-683545, REPRESENTED BY ITS SECRETARY.** - **5 KERALA STATE POLLUTION CONTROL BOARD, 1ST FLOOR, MANNALIKUDY ARCADE (MANNA RESIDENCY), M C ROAD, PERUMBAVOOR, ERNAKULAM-683542, REPRESENTED BY ITS ENVIRONMENTAL ENGINEER.** - **6 MUHAMMED.K.M, S/O MEETHIYAN, KANAMPURAM HOUSE, O.M.ROAD, VATTAKKATTUPADI, PERUMBAVOOR-683542.** **SRI.N.RAJESH SRI. T.NAVEEN SC SRI.PEEYUS A.KOTTAM SRI. RAJASEKHARAN NAIR, SR. GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2019, ALONG WITH WP(C).21478/2019(H), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.17704 OF 2019(K) & CON.CASE. 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** **WP(C).No.21478 OF 2019(H)** ## **PETITIONER:** **MUHAMMED K.M., AGED 65 YEARS S/O. K.M MEETHIAN, KANAMPURAM HOUSE, VATTAKKATTUPADY, RAYAMANGALAM, PERUMBVOOR.** **BY ADVS. SRI.PEEYUS A.KOTTAM SMT.JUBIN C.VADAKKAN** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 004 2 RAYAMANGALAM GRAMA PANCHAYAT, RAYAMANGALAM P.O, KURUPPAMPADY, PIN 683545, REPRESENTED BY ITS SECRETARY 3 ENVIRONMENT ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, ERNAKULAM 2, PERUMBAVOOR, PIN 683545 4 RATHEESH A, AGED 32 YEARS, S/O. ARAVINDAKSHAN, MANGALAMPILLIL VEEDU, RAYAMANGALAM P.O, KUNNATHUNADU TALUK, PERUMBAVOOR 683545** **SRI.N.RAJESH SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI. T.NAVEEN SC SRI. RAJASEKHARAN NAIR, SR. GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2019, ALONG WITH WP(C).17704/2019(K), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.17704 OF 2019(K) & CON.CASE. 3 ## **JUDGMENT** ## **[ WP(C).17704/2019, WP(C).21478/2019 ]** I am considering these two writ petitions together because the constitutive issues involved are analogous and the reliefs sought for in them are inter-dependent. 2. While W.P.(C) No.21478/2019 has been filed by Sri.Muhammed K.M., impugning the conditions imposed by the Rayamangalam Grama Panchayat in Ext.P6 notice issued to him, as per which, he has been directed not to operate his Plywood Manufacturing Unit after 6 p.m.; W.P.(C) No.17704/2019 has been filed by Sri.Ratheesh A. alleging that in spite of the afore conditions imposed, Sri.Muhammed K.M. is continuing to operate his Unit 24 hours. Sri.Ratheesh A. therefore, prays that Sri.Muhammed K.M. be directed not to operate his Unit in violation of Ext.P6 notice and that the Secretary of the Panchayat be directed to enforce it. 3. I have heard Sri.Peeyus A.Kottam, the learned counsel appearing for Sri.Muhammed K.M. - the petitioner in W.P.(C) WP(C).No.17704 OF 2019(K) & CON.CASE. 4 No.21478/2019; Sri.R.Divakaran, learned counsel appearing for Sri.Ratheesh A. - the petitioner in W.P(C) No.17704/2019; Sri.N.Rajesh, the learned standing counsel for the Panchayat in both these cases and Sri.T.Naveen, the learned standing counsel for the Pollution Control Board. 4. The essential question to be decided in these cases is whether the condition in the notice of the Grama Panchayat, a copy of which is produced as Ext.P6 in W.P.(C) No.21478/2019 and as Ext.P2 in W.P(C) No.17704/2019, has been imposed by the Secretary of the Panchayat in valid exercise of jurisdiction. The only available power to the Secretary in doing so is under Rule 13 of the Kerala Panchayat Raj (Issue of Licence to Industries, Factories, Trades, Entrepreneurship Activities and other Services) Rules, 1996 (for short, 'the FTEOS Rules') which is the successor to the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996, whereby a Panchayat is entitled to impose conditions, in the manner seen in these cases, only after instructions are first given to the owner of the Unit to abate nuisance and if he refuses or fails in carrying out such directions or where the abatement is found to be impractical. WP(C).No.17704 OF 2019(K) & CON.CASE. 5 5. In fact, this issue has already been considered by this Court in **Brandstorm Events Management v. Maneed Grama Panchayat** [2019 (4) KLT 811] and the declaration of law in the said judgment is that unless the mandate of Rule 13 of the FTEOS Rules is specifically complied with by the Secretary, a restrictive condition in the Trade Licence cannot be normally imposed. 6. Going by the pleadings on record and the materials available, it is without doubt that the Panchayat does not have a case that they had, in any manner, instructed Sri.Muhammed.K.M. to abate nuisance or to comply with any directions that they had issued; but the Secretary appears to have imposed the time restriction without any such procedure having been followed. Prima facie, this certainly appears to fall foul of Rule 13 of the FTEOS Rules and this Court cannot grant imprimatur to it, unless it is shown that the mandatory procedure there-under had been followed. 7. I am, therefore, of the view that the Secretary of the Panchayat must reconsider the matter, after hearing the petitioners in both these cases and then take an apposite WP(C).No.17704 OF 2019(K) & CON.CASE. 6 decision, adverting to the provisions of Rule 13 of the FTEOS Rules and adverting to **Brandstorm Events Management** (supra) as expeditiously as is possible. In the result, I order these writ petitions without entering into the merits of any of the other contentions of the parties and leaving it all open; with a consequential direction to the Secretary of the Panchayat to reconsider the impugned condition imposed in Ext.P6 in W.P.(C) No.21478/2019, after hearing the petitioners in both these cases; thus leading to an appropriate decision in terms of law, as expeditiously as is possible but not later than two weeks from the date of receipt of a copy of this judgment. I clarify that I have not set aside Ext.P6 but that the Secretary will be obligated to reconsider the impugned condition therein; and thereafter, if it is found so warranted, to issue appropriate orders either confirming it or modifying it, as per law. Needless to say, until such time as the afore exercise is completed, the interdiction against Sri.Muhammed K.M. in operating the Unit after 6 p.m. will continue, which will, WP(C).No.17704 OF 2019(K) & CON.CASE. 7 however, be subject to the further decision to be taken by the Secretary in terms of this judgment. It also goes without saying that since I have not considered the contentions of the parties, both sides will be at liberty to pursue all of them before the Secretary while the afore exercise is completed. **Sd/- DEVAN RAMACHANDRAN** Stu **JUDGE** WP(C).No.17704 OF 2019(K) & CON.CASE. 8 ## **APPENDIX OF WP(C) 17704/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT BEFORE THE 4TH RESPONDENT DATED 03.12.2018** - **EXHIBIT P2 THE TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT.** - **EXHIBIT P3 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE KERALA WATER AUTHORITY QUALITY CONTROL DIVISION.** **EXHIBIT P4 THE TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P5 THE TRUE COPY OF THE COMPLAINT BEFORE RESPONDENTS DATED 01.06.2019.** **EXHIBIT P6 THE TRUE COPY OF THE REPRESENTATION BEFORE THE 4TH RESPONDENT ON 10.6.2019** - **EXHIBIT P7 THE TRUE COPY OF THE DAILY NEWSPAPER OF JANMABHOOMI DATED 24.06.2019.** ## **RESPONDENT'S EXHIBITS:** - **ANNEXURE R5(A) TRUE COPY OF THE CONSENT TO OPERATE ISSUED TO THE UNIT DATED 08.06.2018.** - **ANNEXURE R5(B) TRUE COPY OF THE COMPLAINT DATED 03.12.2018 FILED BY THE NEIGHBOURING RESIDENTS.** - **ANNEXURE R5(C) TRUE COPY OF THE ANALYSIS REPORT.** - **ANNEXURE R5(D) TRUE COPY OF THE DIRECTION GIVEN TO THE 6TH RESPONDENT.** **EXHIBIT R6(A) THE TRUE COPY OF THE CONSENT TO OPERATE RENEWED UPTO 30.06.2023 BEARING FILE NO. 7161990 DATED 08.06.2018.** **EXHIBIT R6(B) TRUE COPY OF THE NO OBJECTION CERTIFICATE NO.A2297/14 ISSUED BY THE FIRE AND RESCUE SERVICES, ERNAKULAM DATED 19.03.2014.** WP(C).No.17704 OF 2019(K) & CON.CASE. 9 |**EXHIBIT R6(C)**|**TRUE COPY OF THE REPLY SUBMITTED BY THE**| |---|---| ||**PETITIONER BEFORE THE 4TH RESPONDENT.**| |**EXHIBIT R6(D)**|**TRUE COPY OF THE RECEIPT OF THE REPLY TO THE**| ||**SHOW CAUSE NOTICE SUBMITTED BY THIS RESPONDENT**| ||**DATED 03.07.2019 ISSUED BY THE RAYAMANGALAM**| ||**GRAMA PANCHAYAT.**| |**EXHIBIT R6(E)**|**THE TRUE COPY OF THE CERTIFICATE DATED**| ||**29.04.2015 ISSUED BY THE MEDICAL OFFICER**| ||**(HEALTH) CERTIFYING THAT CONSTRUCTION OF THE**| ||**UNIT HAS BEEN COMPLETED AS PER THE CONDITIONS**| ||**STIPULATED IN THE NOC NO.C2.109/15/DMOH/EKM**| ||**DATED 16.03.2015.**| |**EXHIBIT R6(F)**|**THE TRUE COPY OF THE REPORT SUBMITTED BY THE**| ||**ENVIRONMENTAL ENGINEER OF KERALA STATE**| ||**POLLUTION CONTROL BOARD TO THE REVENUE**| ||**DIVISIONAL OFFICER DATED 06.02.2009.**| |**EXHIBIT R6(G)**|**THE TRUE COPY OF THE LICENSE ISSUED FROM THE**| ||**PANCHAYAT WHICH IS VALID UP TO 31.03.2020.**| |**EXHIBIT R4 A**|**TRUE COPY OF THE LICENSE BEARING NO.A2-**| ||**1899/2019-20(265) DATED 01.07.2019 ISSUED TO**| ||**THE 6TH RESPONDENT**| |**EXHIBIT R4 B**|**TRUE COPY OF THE CONSENT TO OPERATE BEARING**| ||**NO.015ERNA-CTO-R-785743 DATED 08.06.2018 ISSUED**| ||**BY THE 5TH RESPONDENT TO THE 6TH RESPONDENT**| |**EXHIBIT R4 C**|**TRUE COPY OF THE LICENSE ISSUED BY THE**| ||**DIVISIONAL FOREST OFFICER, KOTHAMANGALAM**| ||**BEARING NO.WBI/KGLM/V&VII/53/2017 DATED**| ||**15.03.2017 TO THE 6TH RESPONDENT.**| |**EXHIBIT R4 D**|**TRUE COPY OF THE LICENSE DATED 12.01.2018**| ||**ISSUED TO THE 6TH RESPONDENT BY THE DEPARTMENT**| ||**OF FACTORIES AND BOILER**| |**EXHIBIT R4 E**|**TRUE COPY OF THE NO OBJECTION CERTIFICATE NO.A-**| ||**2297/14 DATED 19.03.2014 ISSUED TO THE 6TH**| ||**RESPONDENT BY ASSISTANT DIVISIONAL OFFICER,**| ||**FIRE AND RESCUE ERNAKULAM.**| WP(C).No.17704 OF 2019(K) & CON.CASE. 10 - **EXHIBIT R4 F TRUE COPY OF THE CERTIFICATE NO.C2.5936/15(L.DIS) DATED 29.04.2015 ISSUED BY THE DISTRICT MEDICAL OFFICER OF HEALTH, ERNAKULAM** **EXHIBIT R4 G TRUE COPY OF SANITATION CERTIFICATE NO.622/19 DATED 20.06.2019 ISSUED BY MEDICAL OFFICER, PHC, RAYAMANGALAM** - **EXHIBIT R4 H TRUE COPY OF THE LETTER NO.B4-7833/19 DATED 20.12.2018 ISSUED TO THE ASSISTANT ENGINEER, LSGD, RAYAMANGALAM.** - **EXHIBIT R4 I TRUE COPY OF PRELIMINARY REPORT NO.B4-7833/2018 DATED 20.12.2018 SUBMITTED BY ASSISTANT ENGINEER, LSGD RAYAMANGALAM** **EXHIBIT R4 J TRUE COPY OF THE REPORT NO.A2-2244/19 DATED 2903-2019 SUBMITTED TO THE 3RD RESPONDENT. EXHIBIT R4 K TRUE COPY OF THE REPORT NO.A2-2244/2019 DATED 29.03.2019 SUBMITTED BEFORE KERALA STATE HUMAN RIGHTS COMMISSION** **//TRUE COPY//** **P.A TO JUDGE** . WP(C).No.17704 OF 2019(K) & CON.CASE. 11 ## **APPENDIX OF WP(C) 21478/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE CONSENT TO OPERATE RENEWED UPTO 30-06-2023 BEARING FILE NO.7161990 DATED 08-06-2018** - **EXHIBIT P2 THE TRUE COPY OF THE NO OBJECTION CERTIFICATE BEARING NO. A-2297/14 DATED 19-03-2014 ISSUED BY THE FIRE AND RESCUE SERVICES, ERNAKULAM.** - **EXHIBIT P3 THE TRUE COPY OF THE LICENSE NO. A2-1899/201920(265) ISSUED BY THE 2ND RESPONDENT FOR THE PETITIONER'S INDUSTRY UPTO 31-03-2020 DATED 01-07-2019** - **EXHIBIT P4 THE TRUE COPY OF THE SANITATION CERTIFICATE NO. 622/19 ISSUED BY HEALTH INSPECTOR, PUBLIC HEALTH CENTER, RAYAMANGALAM DATED 20-06-2019** - **EXHIBIT P5 THE TRUE COPY OF THE REPORT BEARING NO. PCB/EKM/IAO-205/17 SUBMITTED BY THE ENVIRONMENT ENGINEER, KERALA STATE POLLUTION CONTROL BOARD DATED 06-02-2019 BEFORE THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA** - **EXHIBIT P6 THE TRUE COPY OF THE NOTICE NO. A2-158/19 DATED 07-01-2019 ISSUED BY THE PANCHAYAT TO THE PETITIONER.** **EXHIBIT P7 THE TRUE COPY OF THE DETAILED REPLY TO THE SHOW CAUSE NOTICE SUBMITTED BY THE PETITIONER DATED 02-07-2019** **RESPONDENTS' EXHIBITS : NIL** ## **//TRUE COPY//** ## **P.A TO JUDGE.**