Robert Raison Correya v. Hira Constructions and Ors.

W. A. No. 1464 of 2021 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943** **WA NO. 1464 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 10173/2021 OF HIGH COURT OF** ## **KERALA, ERNAKULAM** ## **APPELLANT/S:** - **1 ROBERT RAISON CORREYA, AGED 34 YEARS S/O. SAMSON CORREYA, AMBATTU HOUSE, ANGLO INDIAN COLONY, CHUNDAMALAPPURAM, VENGOLA, ENRAKULAM-683556.** - **2 BINOY,** - **S/O. VARGHESE, MULLAMANGALAM HOUSE, WARD NO.23, ARAKKAPADY VILLAGE, VENGOLA, ERNAKULAM DISTRICT683556.** **BY ADV V.SREEJITH (K/1398/2000)** ## **RESPONDENT/S:** - **1 M/S. HIRA CONSTRUCTIONS, 13/2, PERINGALA, KUMARAPURAM-683565, REPRESENTED BY ITS MANAGING DIRECTOR, K.S. MUHAMMED, S/O. SULAIMAN, RESIDING AT KALLUNGAL HOUSE, PERINGALA P.O., ERNAKULAM DISTRICT-683565.** - **2 THE VENGOLA GRAMA PANCHAYAT, VENGOLA, NEAR PERUMBAVOOR, ERNAKULAM DISTRICT-683556, REPRESENTED BY ITS SECRETARY.** - **3 THE SECRETARY, VENGOLA GRAMA PANCHAYAT, VENGOLA, NEAR PERUMBAVOOR, ERNAKULAM DISTRICT-683556.** - **4 THE COMMITTEE, VENGOLA GRAMA PANCHAYAT, VENGOLA, NEAR PERUMBAVOOR, ERNAKULAM DISTRICT-683556, REPRESENTED BY ITS PRESIDENT.** **SRI. PAUL K VARGHESE FOR R1, SRI.C.A.NAVAS, SC FOR R2 TO R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** - **09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. No. 1464 of 2021 -2- ## **J U D G M E N T** S. Manikumar, C.J. Instant writ appeal has been filed challenging the judgment dated 08.07.2021 in W. P. (C) No. 10173 of 2021, by which a learned Single Judge set aside the impugned Ext. P10 decision dated 23.03.2021 of the Vengola Grama Panchayat and Ext. P11 notice dated 29.03.2021, issued pursuant thereto. 2. Short facts leading to the writ petition are as hereunder:- According to the petitioner, he is a contractor is mainly engaged in tarring works of Public Works Department, Semi Government Department, Local Bodies etc. For the purpose of executing the tarring work of Seaport Airport Road within a time bound manner, as instructed by the officials, the petitioner intended to start a bitumen mix plant in the property owned by one Abdul Salam in Vengola Panchayat. Petitioner has submitted that the bitumen mix plant is proposed to be constructed in a remote area and no injury or damage will be W. A. No. 1464 of 2021 -3- caused to any person. Petitioner has also secured Exhibit P1 permission from the Pollution Control Board and Exhibit P2 acknowledgement certificate from District Industries Center as per Kerala Micro Small Medium Enterprises Facilitation Rules to establish the unit. Without considering the same, the Panchayat had issued Exhibit P3 stop memo against which the petitioner had filed W.P.(C) No. 4997 of 2021, and this Court, by way of Exhibit P8 judgment, directed the Panchayat Secretary to take a decision by considering the explanation submitted by the petitioner. Accordingly, by way of Ext. P9 order, the Panchayat Secretary had withdrawn the stop memo by stating that after calling for the report from the Assistant Engineer, LSGD, no illegal activity is being done by the petitioner. Petitioner has further submitted that thereafter, under the excessive illegal influence of certain persons, who are associated to the ruling party which controls the Panchayat, managed to pass Exhibits P10 decision and P11 notice against the petitioner. In fact Exhibits P10 decision and P11 notice are wrong and illegal. Petitioner has also submitted that this Court, in Ext. P4 W. A. No. 1464 of 2021 -4- judgment reported in 2021(1) KHC 255, clearly held that a person obtaining an acknowledgement certificate under the Kerala Micro Small Medium Enterprises Facilitation Rules for the purpose of establishing an enterprise need not obtain licenses, permission, approval, clearances, registration, consent, no objection certificate and the like required under any State law, in connection with the establishment of an enterprise for a period of 3 years. Thus by issuing Exhibits P10 and P11, the said decision is fully violated. Apart from that Exhibits P10 and P11 are clear violation of Exhibits P1, P2 permissions, Exhibits P4, P5 and P8 judgments of this Court and Exhibit P9 permission of the Secretary, Vengola Grama Panchayat, the 2[nd] respondent. 3. Writ petition has been filed praying for a writ of certiorari, calling for the records leading to Exhibits P10 and P11, and quash the same, by relying on Exhibits P1, P2 permissions and Exhibits P4, P5 and P8 judgments of this Court and Ext. P9 permission of the Secretary, Vengola Grama Panchayat, the 2[nd] respondent. 4. After considering the rival contentions, statutory provisions and the decision of this Court in Lizy Aby v. State of Kerala [2021 (1) W. A. No. 1464 of 2021 -5- KHC 255], writ court, by judgment dated 08.07.2021 in W. P. (C) No. 10173 of 2021, held thus:- “10. The petitioners have started their units and are running Bitumen Hot Mix Plant, after obtaining Acknowledgment Certificates from the Board. Issuance of Acknowledgment Certificate will have the effect of the petitioners having licences, permissions, approvals, clearances, registration, consents, no objection certificates and the like, required under any State law in connection with the establishment or operation of Micro, Small and Medium Enterprise in the State for a period of three years, in view of Section 6 read with Section 2(c) of the Kerala Micro, Small and Medium Enterprises Facilitation Act, 2019. 11. The Grama Panchayat has decided to stop the functioning of the Hot Mix Plants based on complaints received from various quarters with regard to environmental pollution resulting from such plants. The impugned decision of the Grama Panchayat dated 23.03.2021 does not disclose that the Panchayat has arrived at any finding on the alleged pollution resulting from the units of the petitioners. This Court has held in the judgment in Lizy Aby v. State of Kerala [2021 (1) KHC 255] that a Panchayat cannot issue Stop Memos to industrial units on the basis of complaints of pollution, without first arriving at a conclusion on pollution, based on materials. No material has been placed before this Court to show that the Panchayat has conducted any study in the matter either by itself or through a competent body. W. A. No. 1464 of 2021 -6- 12. For the said reason, the writ petitioners should succeed. The impugned Ext.P10 decision dated 23.03.2021 of the 1[st] respondent Panchayat and Ext.P11 notices issued pursuant thereto are hence set aside. ” 5. Being aggrieved, Mr. Robert Raison Correya, Ambattu House, Vengola, Ernakulam, and Binoy, Mullamangalam House, Vengola, Ernakulam, respondent Nos. 4 and 5 in the writ petition, have preferred the instant writ appeal, on the following grounds:- - A. The learned Single Judge ought to have considered the fact that the - 1[st] respondent has applied for the acknowledgment certificate under Kerala Micro Small and Medium Enterprises Facilitation Act, 2019, in order to get the cover of the exemptions contained is Section 7 and Section 10 of the Act. - B. The people of the area are suffering from serious pollution issues due to the 4 tar mixing units already existing in the area within a distance of 300m. - C. This Court in George Joseph & Others Vs Bose Well John & Others (2021 KHC 609) held that a contractor has to secure necessary establishment permit in order to install Hot Mix Plant and only after establishment of unit, the contractor can seek for trade W. A. No. 1464 of 2021 -7- licence. In the above judgment this Court held that before installing the hot mix plant establishment permit is to be obtained even if they have got the acknowledgment certificate as per Kerala Micro Medium Enterprises Facilitation Rules 2020. - D. As per Section 166 of the Panchayat Raj Act, 1994, it shall be the duty of the Village Panchayat to meet the requirements of the Village Panchayat area in respect of matters enumerated as mandatory functions in the third schedule. Maintenance of environmental hygiene is enumerated as mandatory function in the third schedule. The 2[nd] respondent ought to have conducted a study in the matter as it pertains to the mandatory function, either through itself or through a competent body. - E. The learned Single Judge ought to have given a direction to the 2[nd] respondent Panchayat to conduct a study and report the same as the matter pertains to serious environmental pollution and thereby affecting the life and living of the residents of the locality. - F. The learned Single Judge ought to have considered Section 11 of Kerala Micro Small and Medium Enterprises Facilitation Act, - 2019, which says that subject to the provisions of Section 10, W. A. No. 1464 of 2021 -8- nothing in the Act shall be construed as exempting any enterprise from the application of the provisions of any law for the time being in force, or any regulatory measures and standards prescribed thereunder, except to the extent expressly provided in the Act. The overriding effect of Section 10 will not have any application unless it is expressly provided. 6. Exhibit P10 decision of the Vengola Grama Panchayat dated 23.03.2021 and Exhibit P11 notice of the Panchayat dated 29.03.2021, impugned in the writ petition are as under:- ## “ **VENGOLA GRAMA PANCHAYATH** ## Decision taken in the urgent meeting convened on 23/3/2021 A notice was submitted by the Ward Member Sri. Basil Kuriakose and 13 members requiring to discuss about the functioning of the Tar Mixing Units in Ward 23 of Vengola Panchayath in an urgent manner. Considering the same the matter was taken in the meeting for discussion. Aggrieved by the steps taken on 15.3.21 by the Panchayath by which the stop memo which was issued on 5/1/2021 was withdrawn, an appeal petition was submitted by Robert Ryson Correa, Ambatt, Sri. Binoy Mullamangalam. A petition seeking a stay order of further proceedings in connection with the withdrawal of the Stop Memo till the final disposal of the appeal petition was also filed. Both W. A. No. 1464 of 2021 -9- the appeal and the stay petition were taken into consideration by the committee. Sri Basil Kuriakose spoke about the necessity of keeping in force of the stop memo. Thereupon other members named P.P Eldose, M.P Suresh, Shihab Pallikkal, Priyadarsini T.T, M.T Joy, A.M Subair, K.E Kunjumohammed and Abdul Jalal K.M also spoke about the matter. Each and every members put forth their opinion that emergent steps has to be taken to stop the functioning of the units which creates environmental pollution. In the above circumstances, the president suggested that steps will be taken to issue notice to four tar mixing units functioning in the area without obtaining license and also to issue notice to the fifth tar mixing unit which is proposed to function. All the committee members unanimously approved and consented to the above suggestion. At the same time the Secretary informed the Committee that, the Panchayath has no legal right to take any steps against those units which have obtained valid acknowledgement by submitting application as per KMSME Facilitation Act 2019 and if the above mentioned decision is taken, he is having objection to it. Even though the opinion of the secretary is as above, since the illegally functioning of the four tar mixing units without obtaining license and the construction which is carried out to establish a fifth Tar Mixing Unit in Survey No. 84/10/2, 84/11/2 situated in Arakkappady Village taking into consideration that the functioning of the above units would be hazardous to the health condition and peaceful life of the public, it was decided to entrust the secretary to issue notice to the above mentioned units. W. A. No. 1464 of 2021 -10- ## S/d President **VENGOLA GRAMA PANCHAYATH** Vengola P.O, Ernakulam 683566 Phone-0484-2522432 E Mail: vengolas@yahoo.com …............................................................................... Number: A2-2777/2021 29/3/2021 ## NOTICE Sub: Vengola Grama Panchayath - In connection with the stopping of the establishing works of the Tar Mixing Unit. Ref: Decision No 1 (1) dated 23/2/2021 of the Vengola Grama Panchayath. It is hereby informed you that all steps taken by you to start a Tar Mixing Unit in Survey No. 84/10/2, 84/11/2 situated in Arakkappady Village at Choondamala area of Ward 23 of Vengola Grama Panchayath shall be stopped urgently on receipt of this notice which is taken on the basis of the decision referred above. If you have to state anything about the same you may inform the panchayath within seven days in writing. Secretary S/d Secretary in Charge Vengola Grama Panchayath Seal To K.S Muhammed. Kallunkal House, Peringala P.O W. A. No. 1464 of 2021 -11- ## Secretary in Charge Vengola Grama Panchayat Seal” 7. Today, when the matter came up for hearing, placing reliance on the decision of this Court in George Joseph & Others v. Bose Well Jhon and Others [2021 KHC 609], Mr. Sreejith V., learned counsel for the appellant, submitted that for establishing a tar mixing unit, the contractor should secure necessary establishment permit. 8. Learned counsel for the appellant further submitted that the Secretary of the Panchayat, or the officer authorized by him, is empowered to enquire and report to the Village Panchayat, as to whether the establishment of the factory, workshop, or workplace, or other installation of machinery or manufacturing plant, for which permission is applied for, is objectionable by reason of density of population in the neighborhood, and the possibility of causing nuisance or pollution, and the Village Panchayat, can consider the application and the report of the Secretary, for issuance of the permit. 9. He also submitted that in the instant case, no report of such regard is submitted by the Secretary of the Panchayat, and thus, prayed for a direction to the Secretary of the Panchayat, to conduct an inspection, and submit a report before the Panchayat. W. A. No. 1464 of 2021 -12- 10. In our considered opinion, the respondent has secured Ext. P1 permission from the Kerala State Pollution Control Board and Ext. P2 Acknowledgment Certificate from the Department of Industries and Commerce, Government of Kerala, to establish the unit. 11. As evident from Ext. P10 decision of the Panchayat dated 23.03.2021, the decision is taken only on the basis that four tar mixing units, which according to the Panchayat, are functioning without obtaining license. The decision of the Panchayat does not disclose any finding on the alleged pollution resulting from the unit of the 1[st] respondent. 12. Panchayat has issued the stop memo without ascertaining any finding with respect to the pollution and simply on the basis of the complaint, decision has been taken. Panchayat should have ascertained from the Pollution Control Board, as to whether there is any cause for pollution, and thereafter, if the statue permits any action to issue a stop memo, same can be done. 13. Appellant has failed to produce any inspection report or prima facie opinion about pollution in the unit of the 1[st] respondent, by the Pollution Control Board. Merely based on complaints received from W. A. No. 1464 of 2021 -13- the residents including the appellant, Panchayat Committee has decided to issue the stop memo, which is not the right approach to deal with the issue. In view of the above discussion, we find no reason to interfere with the judgment of the learned Single Judge. Accordingly, writ appeal is dismissed. **Sd/-** **S. MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE