Shine Kumar T.P v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942** ## **WP(C).No.10708 OF 2020(K)** ## **PETITIONER:** ## **SHINE KUMAR T.P** **S/O CHELLAPPAN, RESIDING AT PONGANPARA VEEDU, VENDAR P.O.KOTTARAKARA, KOLLAM DIST,PIN-691 507, REPRESENTED BY POWER OF ATTORNEY HOLDER RAJAN G, AGED 63 YEARS, S/O GOVINDAN, RESIDING AT PONGANPARA VEEDU, VENDAR P.O.KOTTARAKARA, KOLLAM DIST,PIN-691 507.** **BY ADV. SMT.SREEDEVI KYLASANATH BY ADV.ACHUTH KYLAS** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT , LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 ADDITIONAL CHIEF SECRETARY, LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **3 THE KERALA STATE ENVIRONMENTAL IMPACT ASSESSMENT COMMITTEE** - **PALLIMUKKU-KANNANMOOLA ROAD, VELAKUDI, PETTAH P.O. THIRUVANANTHAPURAM-695 024, REPRESENTED BY ITS CHAIRMAN.** - **4 ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, KOLLAM, USHAS BUILDING BIG BAZAR, KOLLAM, PIN-691 001.** - **5 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION RD, KAANKATHU MUKKU, KOLLAM , KERALA, PIN-691 013.** - **6 DEPUTY SUPERINTENDENT OF POLICE, KOLLAM RURAL, LINK ROAD, ASRAMAM, KOLLAM, KERALA-691 001.** W.P(C) No.10708 of 2020 2 - **7 THE TAHASILDAR, TALUK OFFICE, MINI CIVIL STATION, KOTTARAKKARA, KERALA, PIN-691 506.** - **8 DEPUTY DIRECTOR OF PANCHAYATH, OFFICE OF THE DEPUTY DIRECTOR, CIVIL STATION, KOLLAM, PIN-691 013.** - **9 THE VILLAGE OFFICER, PUTHUR VILLAGE, ENATHU PUTHOOR RD, PUTHOOR, KERALA, PIN-691 507.** - **10 THE KULAKKADA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MAVADI, KOTTARAKARA, KOLLAM-691 507.** - **11 BIJULAL, AGED 44 YEARS** - **S/O DIVAKARAN, MELETHIL HOUSE, MUGATHALA P.O.THRIKKOVILVATTOM VILLAGE, KOLLAM, PIN-691 577.** **BY ADV.** **SRI.K.J.MANU RAJ, GOVT.PLEADER, SRI.M.P.SREEKRISHNAN, SC , SRI.T.NAVEEN, SC, SRI.JOBI JOSE KONDODY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.10708 of 2020 3 ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 10708 of 2020 -----------------------------------Dated this the 3[rd] day of June, 2020 ## **JUDGMENT** The case set up in this Writ petition (C) is as follows: The petitioner is aggrieved by the arbitrary action of the respondents in taking no action and permitting the operation of the Crusher and M-sand unit operated by the 11[th] respondent without any valid licence and flouting statutory norms. The petitioner is a resident near the Crusher and M-sand unit by the name “Mundakkal Crushers” in Re Sy.No.326/7-1, 326/7-2, 326/6-1 of Puthur Village, Kottarakara, Kollam. The function of the above said unit was stopped vide order dated 29.05.2019 of the 10[th] respondent finding that there are unauthorized structures constructed by the 11[th] respondent and the crusher is operated in these structures. The order of the 10[th] respondent was set aside by the 2[nd] respondent and the license was extended till 31.03.2020 for rectifying the discrepancies without any valid reason. Such an order itself was illegal and issued without any authority. Deputy Director of Panchayath, Kollam in his report pointed out that the width of the road giving access to the crusher to W.P(C) No.10708 of 2020 4 the main road is only 4 metre which is not permissible as per Kerala Panchayat Building Rules, 2011, which specifies a minimum width of 7 metres from the plot to the main street or main road and shall be motorable. Now it is known that even the main Panchayath road does not have the requisite width. The 2[nd] respondent without considering any of these aspects set aside the order of the 10[th] respondent in the most casual and improper manner. The term of even that order expired on 31.03.2020. Thereafter another order was issued by the 1[st] respondent in the midst of the COVID-19 lock down stating that all the licences were extended for further 6 months. At present the 11[th] respondent taking advantage of the above order illegally operates the Crusher and M-sand unit. This is a gross abuse of process of law and it causes serious threat to the people in the locality. It is in the light of these averments and contentions, that the petitioner has filed this Writ Petition (C) seeking the following prayers: - _“i) To declare that the operation of Crusher and M-sand unit by the name “Mundakkal Crushers” operated by the 11[th] respondent in Re Sy.No. 326/7-1, 326/7-2, 326/6-1 of Puthur Village, Kottarakara, Kollam is illegal;_ - _ii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 10 to take effective measures so as to stop the illegal operation of Crusher and M-sand unit in Re Sy.No.326/71, 326/7-2, 326/6-1 of Puthur Village, Kottarakara,_ W.P(C) No.10708 of 2020 5 _Kollam._ - _iii) To declare that the 11[th] respondent is not entitled to continue with the operation of the Crusher unit in question under the guise of Ext.P6 Government order._ - _iv) To issue a writ of certiorari calling for records pertaining to Ext.P5 order and set aside the same;_ - _v) Issue such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Sri.Achuth Kylas, learned counsel appearing for the petitioner, Sri.K.J.Manu Raj, learned Government Pleader appearing for R1, R2, R5 & R6 to R9, Sri.M.P.Sreekrishnan, learned Standing Counsel for Kerala State Environmental Impact Assessment Authority appearing for R3, Sri.T.Naveen learned Standing Counsel for the Kerala State Pollution Control Board appearing for R4 and Sri.Jobi Jose Kondody, learned counsel appearing for contesting respondent No.11. In the nature of the orders proposed to be passed in this Writ petition notice to R10 will stand dispensed with. 3. The petitioner has made submissions in tune with the pleadings in WP(C). Per contra, Sri.Jobi Jose Kondody, learned counsel appearing for contesting respondent No.11 has made submissions with reference to his pleadings in the counter affidavit W.P(C) No.10708 of 2020 6 filed by R11 dated 01-06-2020. 4. After hearing both sides, it appears that after the 10[th] respondent Grama Panchayat had issued Ext.P3 stop memo, directing the petitioner to stop the functioning of his crusher and M-sand manufacturing unit, the 11[th] respondent had approached the competent authorities of the 2[nd] respondent Government in Local Self Government department so as to impugn the said order of the 10[th] respondent Grama Panchayat. Thereupon the 2[nd] respondent Government had directed the Deputy Director of Panchayat to examine the matter and submit a report and pursuant to which the Deputy Director of Panchayat has issued R11(c)/Ext.P4 report dated 18-07-2019 _inter alia_ dealing with the various objections against the functioning of the petitioner’s unit on account of violation of the provisions of the Kerala Panchayat Building Rules and further stating therein since the petitioner's manufacturing unit has been functioning for the last so many years, they could be given permission in the matter etc,. Pursuant to Ext.R11(c)/Ext.P4 report dated 18-07-2019, the competent authority of the 2[nd] respondent Government in the Local Self Government department has issued W.P(C) No.10708 of 2020 7 Ext.P5 proceedings dated 27-08-2019 (in which the abovesaid Ext.P4 report dated 18-07-2019 has been cited as second paper therein) whereby it has been ordered that the Panchayat should permit the petitioner to function till the expiry of the licence year 2019-2020 on 31-03-2020. 5. It is beyond any factual dispute that pursuant to the permission obtained by the 2[nd] respondent Government as per Ext.P5 proceedings dated 27-08-2019, the 11[th] respondent has in fact functioned the unit till 31-03-2020 and therefore the impugned Ext.P5 proceedings has worked out itself. 6. To a specific query as to whether the petitioner is even now pressing with his challenge as against Ext.P5, Sri.Achuth Kylas, learned counsel appearing for the petitioner would submit fairly on the basis instructions from the party that in view of the fact that the 11[th] respondent has already functioned for the maximum period he has been permitted to function as per Ext.P5, ie upto 31-03-2020 the challenge as against Ext.P5 has become practically futile or infructuous and therefore the petitioner is not pressing the challenge as against Ext.P5. W.P(C) No.10708 of 2020 8 7. The 11[th] respondent in his counter affidavit has detailed out various factual aspects in the matter and has also pointed out that the alleged violation of the Kerala Panchayat Building Rules as referred to in the impugned proceedings including that in Ext.P4 report is mainly on account of the 11[th] respondent not providing a road having an extent of not less than 7 metres as the present road is having a width of only 4 metres. 8. The learned counsel for the respondent No.11 would assert that if his party is in a position to ensure that road is provided for access to his unit having a width of not less than 7 metres, then the basic complaints regarding alleged violation of the Kerala Panchayat Building Rules will not stand. Accordingly the alleged violations of the Kerala Building Rules could be easily regularised by the respondent Panchayat authorities. In this regard the learned counsel for R11 would point out that R11 has already undertaken in Para.16 on page Nos. 5 and 6 of the abovesaid counter affidavit dated 01-06-2020 that R11 would construct a 7 metre width access road to his unit before the renewal of Ext.R11(d) licence by the 10[th] respondent Secretary of the Panchayat and hence the 11[th] respondent W.P(C) No.10708 of 2020 9 would submit that if the said party is in a position to fulfil the said vital requirement, then the compliance will no longer be tenable and the objections if any could be even easily regularised by the 10[th] respondent Panchayat. Paragraph No.16 of the abovesaid counter affidavit dated 01-06-2020 filed by the 11[th] respondent reads as follows. _“16. The averments contained in paragraphs 4 to 9 are absolutely false and hence denied. The capacity of my crusher unit was enhanced from 95 HP to 410 HP in the year 2012 itself after obtaining permission form the forth respondent and the Kerala State Pollution Control Board. Exhibit P3 order was issued by the Secretary of the 10[th] respondent upon the petitioner filing complaint before the Vigilance and Anti-Corruption Bureau stating that my unit comes under Group 1 Hazardous Category under the Kerala Panchayat Building Rules, 2011 and therefore a 7 metre wide access road is mandatory for operating the unit. As already submitting since the Government has power to relax the rules for unit functioning prior to the enactment of the Kerala Panchayt Building Rules, 2011, I approached the 2[nd] respondent and obtained Exhibit P5 stay order in the light of Exhibit P4 report of the Deputy Director of Panchayat and also upon my undertaking that I will construct a 7 metre access road to my unit before renewing Exhibit R11(b). The Government is well within its powers to issue Exhibit P5 order and Exhibit P6 Government Order. Exhibit P7 and P7(a) produced by the petitioner does not relate to the road leading to my crusher unit. Once when the access road is completed by me through the private property recently purchased by me, I will be having 7 metre width access road till my crusher unit form the public road.”_ 9. It is also brought into the notice of this Court that the Government has already issued G.O(MS) No.836/2020/LSGD dated 07-05-2020, wherein it has been ordered that on account of the extra W.P(C) No.10708 of 2020 10 ordinary crisis that has emerged in the State on account of the Covid-19 pandemic, the deadline of 31-03-2020 for renewal of existing trade license granted by Local Self Government bodies granted for the year 2019-2020 will stand extended upto 31-10-2020, in cases covered by that Government Order. In other words, it appears that the Government has issued such norms so that existing trade licensees covered by the Government order who are having trade licence from the Local Self body concerned for the year 2019-2020 need to renew their trade licence for the year 2020-2021 only by 31-10-2020. In other words, it appears that such units having trade licence for the year 20192020 would function upto 31-10-2020 without renewal for the year 2020-2021. 10. In the light of these aspects this Court is of the considered opinion that the matter could be disposed of and hence the following directions and orders are passed in the interest of justice. - _1) Since the monsoon has already started and there are problems on account of the Covid-19 pandemic, R11 will have to be given some more time to take remedial measures for construction of the 7 metre width access road in terms of the undertaking as_ W.P(C) No.10708 of 2020 11 _given above. Hence the 11[th] respondent is given time till 31-08-2020 to construct the said 7 metre width access road to his unit and also to remedy all other defects/deficiencies if any, that may be required for the renewal of his trade licence by the 10[th] respondent Panchayat._ - _(2) Thereafter the petitioner may submit the requisite application for renewal of the trade licence for the year 2020-2021 before the Secretary of the 10[th] respondent Grama Panchayat and should also produce all necessary documents to show that he has obtained all the necessary consents and licences etc., from the competent statutory regulatory authorities like the State Pollution Control Board and any of the licence that may have to be issued by the officials of the Mining and Geology Department, as may be required in connection with renewal of the trade licence for the functioning of the crusher unit and M-sand unit._ - _3) Thereafter, the 10[th] respondent Secretary of the_ W.P(C) No.10708 of 2020 12 _Grama Panchayat will take up for consideration the matters raised in relation to the said application of renewal of trade licence for the year 2020-2021 and may conduct an inspection with due prior notice to the 11[th] respondent and the petitioner and may ensure that copy of the said inspection report is furnished to both the said parties and thereafter should also permit both the said parties to submit the written submissions in the matter and thereafter should afford reasonable opportunity of being heard to both the said parties through their authorised representative or counsel if any, and then should pass orders on the request of the 11[th] respondent for renewal of the trade licence for the year 2020-2021, without much delay, at any rate, on or before 31-10-2020. The Secretary of the 10[th] respondent Kulakkada Grama Panchayat will also adhere to the principles well settled by a series of rulings of this Court including legal principles laid down by the full bench of this_ W.P(C) No.10708 of 2020 13 _Court in the case in_ _**Tomy Thomas v. State of Kerala,** [2019 (3) KLT 987 (FB)] and also in consonance with the amended provisions of the Kerala Panchayat Raj Act and the rules framed thereunder, in the matter of renewal of such trade licences._ - _4) Until orders are passed on the said request of the 11[th] respondent for renewal of the trade licence, 11[th] respondent will stand permitted to function the abovesaid units._ 11. The petitioner will produce certified copy of this judgment along with a copy of the memorandum of this W.P(C) with all the Exhibits before the 10[th] respondent Secretary of the Kulakkada Grama Panchayat, for necessary information. With these observations and directions the above Writ Petitions (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS 14 W.P(C) No.10708 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN WPC NO 25897/2017 DATED 10.8.2017** - **EXHIBIT P2 THE TRUE COPY OF THE ORDER NO C.R.M.P NO 4265/02/LAI/2018/KESCPCR OF THE KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS DATED 31.12.2019** - **EXHIBIT P3 THE TRUE COPY OF THE ORDER NO K7/3626/19 OF THE 10TH RESPONDENT DATED 29.5.2019** - **EXHIBIT P4 THE TRUE COPY OF THE REPORT OF THE 8TH RESPONDENT DATED 18.7.2019** - **EXHIBIT P5 THE TRUE COPY OF THE ORDER NO R.C.3/361/2019/LSGD OF THE 2ND RESPONDENT DATED 27.8.2019** - **EXHIBIT P6 THE TRUE COPY OF THE GOVERNMENT ORDER NO CO 836/2020 LSGD DATED 7.5.2020** - **EXHIBIT P7 THE TRUE COPY OF THE RTI DATED 1.7.2019 FILED BEFORE THE PUBLIC INFORMATION OFFICER KULAKKADA PANCHAYATH** - **EXHIBIT P7 (A) THE TRUE COPY OF THE REPLY TO THE RTI DATED 20.7.2019** - **EXHIBIT P8 THE TRUE COPY OF THE REPRESENTATION DATED 4/5/2020 ADDRESSED TO THE 10TH RESPONDENT** - **EXHIBIT P8 (A) THE TRUE COPY OF THE RECEIPT OF THE REPRESENTATION FILED BEFORE 10TH RESPONDENT** **EXHIBIT P9 THE TRUE COPY OF THE POWER OF ATTORNEY DATED 3.12.2019** W.P(C) No.10708 of 2020 15 ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R11(a):** **A TRUE COPY OF THE D&O LICENSE ISSUED BY THE 10TH RESPONDENT FOR OPERATING THE CRUSHER UNIT OF THE 11TH ESPONDENT DATED 07/04/2011.** **EXHIBIT R11(b):** **A TRUE COPY OF THE PRESENT D & O LICENCE ISSUED ON 01/04/2019 BY THE 10TH RESPONDENT FOR THE FINANCIAL YEAR 2010-2020.** **EXHIBIT R11(c): A TRUE COPY OF THE ORDER DATED 18/07/2019 ISSUED BY THE 8TH RESPONDENT TO THE GOVERNMENT.** - **EXHIBIT R11(d): A TRUE COPY OF THE CERTIFICATE DATED 29/05/2020 ISSUED BY THE SECRETARY OF THE 10TH RESPONDENT FOR PRODUCING IT BEFORE THE GEOLOGIST, MINING & GEOLOGY.** - **EXHIBIT R11(e): A TRUE COPY OF THE PETITION FILED BY THE 11TH RESPONDENT BEFORE SUB INSPECTOR OF POLICE AGAINST THE PETITIONER DATED 07/12/2017.** - **EXHIBIT R11(f): A TRUE COPY OF THE PETITION FILED BY THE 11TH RESPONDENT BEFORE THE DYSP, KOTTARAKKARA, DATED 28/12/2018 SEEKING ADEQUATE PROTECTION.** - **EXHIBIT R11(g): A TRUE COPY OF THE REPORT DATED 21/04/2018 FILED BY THE DYSP OF POLICE, KOTTARAKKARA BEFORE THE HUMAN RIGHTS COMMISSION.** - **EXHIBIT R11(h): A TRUE COPY OF THE ORDER DATED 03/05/2018 ISSUED BY THE HUMMAN RIGHT COMMISSION, KERALA.** - **EXHIBIT R11(i): A TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE DATED 28/09/2016 VALID UPTO 31/12/2017 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE 11TH RESPONDENT.** W.P(C) No.10708 of 2020 16 **EXHIBIT R11(j):** **A TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE-RENEWAL ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE 11TH RESPONDENT HAVING VALIDITY UPTO 31/12/2020.**