SUSHIJA SUKUMARAN PUTHIYA PURAYIL and MUKKALI ICE PLANT COLD STORAGE v STATE OF KERALA and 5 OTHERS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE SHAJI P.CHALY`** ## **`FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943`** ## **`WP(C) NO. 1625 OF 2018`** ## **`PETITIONER/S:`** - `1 SUSHIJA SUKUMARAN PUTHIYA PURAYIL, CHOMABALA P.O, VADAKARA, KOZHIKODE- 673 308,REPRESENTED BY POWER OF ATTORNEY HOLDER, PRADEEP KUMAR T.P` ``` 2MUKKALI ICE PLANT COLD STORAGE CHOMABALA P.O, VADAKARA, KOZHIKODE- 673 308,REPRESENTED BY ITS MANAGING PARTNER, PRADEEP KUMAR T.P BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM - 695 001.` - `2 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION REPRESENTED BY ITS SECRETARY, SREEMOOLAM BUILDINGS,COURT COMPLEX, VANCHIYOOR, THIRUVANANTHAPURAM - 695 035.` - `3 AZHIYUR GRAMA PANCHAYAT P O AZHIYUR - 673 309, KOZHIKODE, KERALA, REPRESENTED BY ITS SECRETARY.` - `4 SECRETARY AZHIYUR GRAMA PANCHAYATP O AZHIYUR - 673 309, KOZHIKODE, KERALA.` - `5 DISTRICT OFFICER GROUND WATER DEPARTMENT, CIVIL STATION, KOZHIKODE - 673 001.` - `6 KUDIVELLA SAMRAKSHANA SAMITHI THONDIVAYAL, CHOMBALA, VATAKARA TALUK, REPRESENTED BY ITS ACTION COMMITTEE CONVENER ASOKAN P.T., AGED 57,` ``` WP(C) NO. 1625 OF 2018 ``` ``` -2- ``` ``` S/O.KRISHNAN, RESIDING AT PALLIKUNITHAZHE, CHOMBAL AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS. R6 BY SRI.KALEESWARAM RAJ A.ARUNA THULASI K. RAJ SRI.C.KHALID SRI.MOHANAN V.T.K. SMT.K.REEHA KHADER SRI.T.P.SAJID SMT.SOUMYA CHANDRAN ``` ``` R1 AND 5 - SRI.RIYAL DEVASSY,GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C) NO. 1625 OF 2018`** ``` -3- ``` ## JUDGMENT This writ petition is filed by the petitioner seeking the following reliefs:- “i) Call for the records leading up to the issuance of the order datd 21.01.2017 passed by the 3[rd] respondent panchayat and the order dated 20.12.2017 2[nd] respondent Tribunal (collectively, ‘impugned orders’) and quash the same by issuance of a writ of certiorari or such other writ, order or direction; ii) Declare that the impugned orders are illegal and unsustainable in law. Iii) Declare that the petitioners are entitled to establish machinery as sought for in its application dated 28.07.2016 and 17.10.2017 respectively; iv) Direct the 3[rd] respondent panchayat to consider the petitioner’s applications dated 28.07.2016 and 17.10.2017 by the issuance of a writ of mandamus or such other writ, order or direction. And v) To pass such other order as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 2. The basic challenge in the writ petition is Ext.P11 order passed by the Secretary of the Azhiyur Grama Panchayath - the 4[th] respondent herein, whereby the council of the Panchayath has decided not to grant ``` WP(C) NO. 1625 OF 2018 ``` ``` -4- ``` Motor Installation Permit to the petitioner for drawing ground water. The said order was challenged before the Tribunal for Local Self Government Institutions, and the Tribunal for Local Self Government Institutions, vide Ext.P13 order, has upheld the decision of the Panchayath as follows:- “The present appeal is filed challenging the decision No.7/17 dated 17.1.2017 rejecting the application for permission and also claiming a deemed permission for installation of machinery. The impugned decision is not produced by the appellant. But the same is available in page 79 of Volume No.III file produced by the respondent. The impugned decision is to the effect that, considering the report of the Health Inspector and the notes of the Secretary since the Committee got satisfied that if more water is drawn for an industrial purpose there is every possibility of intrusion of saline water into that area and also on the reason that the Ground Water Department has intimated that wells for domestic purpose alone is feasible in that area and the ice plant would result in scarcity of water and for that reason the application for installation permit was refused. Learned counsel for the appellant submitted that the application dated 7.10.2016 ought to have been disposed of within the statutory time and communicated to the appellant and since the decision ``` WP(C) NO. 1625 OF 2018 ``` ``` -5- ``` was not taken within the statutory period appellant is entitled for a deemed permit. In support of the argument learned counsel for the appellant is relying on the decisions in Meenachal Hotel and Resorts Private Limited v. State of Kerala reported in 2016 (2) KLT 327 and Sudhakaran V. g. Pollachai Grama Panchayat and Another reported in 2016 (2) KLT 175. It is also to be noted that the applications in both the cases in the decision cited are D & O licence under Section 232 of Kerala Panchayat Raj Act and under Section 447 of Kerala Municipality Act and not an application for installation permit under Section 233. Nowhere in the decisions relied on by the learned counsel for the appellant it is found that for installation permit also the deeming provision is applicable. Therefore relying on the decisions cited supra, the case in hand which is an application under Section 233 of Kerala Panchayat Raj Act for installation permit it cannot be found that appellant is entitled for a deemed installation permit. For the Panchayat Committee, to consider an application for installation of machinery, it has to consider the report submitted by the Secretary as to whether the establishment of factory or installation of machinery for which permission is applied for is objectionable for the reason of density of population in the neighborhood and the possibility to ``` WP(C) NO. 1625 OF 2018 ``` ``` -6- ``` cause nuisance or pollution and such other reports stipulated in Section 233 (4) of Kerala Panchayat Raj Act. It is true that appellant has produced the reports stipulated in Section 233 (4) of the Kerala Panchayat Raj Act. But in the report of the Secretary available in page No.13 A of Volume No.III file produced by the respondent the Secretary has reported that only after obtaining an expert opinion from the Ground Water Department a decision can be taken in the application for permit. Ext.P15 is the copy of the report submitted by the District Officer, Ground Water Department to the Secretary of Azhiyoor Grama Panchayat. The report states that the area is having very sensitive environment condition and the problem of fresh ground water exists there and the extraction of ground water causes the depletion of fresh ground water as well as the intrusion of saline water in that area. The report further states that only domestic wells are permissible in that area, and that since the exact requirement of the factory is not intimated the permissibility of the ice factory could not be assessed and that the exact draft can be calculated by conducting a pump test in the well of the ice factor after the completion of the well. No materials are available in the file to find that on getting Ext.P15 report any further study as stipulated in Ext.P15 was conducted at ``` WP(C) NO. 1625 OF 2018 ``` ``` -7- ``` the instance of the respondent. But the 2[nd] respondent has produced Ext.R1, the copy of the report of hydrogeological studies conducted at Valiyararambathu near Mukkali, Azhiyoor Panchayat. The said report says that the hydrogeological investigatio was conducted in response to the request received from the Secretary, Azhiyoor Panchayat and the location where the study is conducted is the Valiyaparambathu proposed ice factory compound near Mukkali in Azhiyoor Panchayat. The inference as per the said report is that ‘the ice plant is going to start. Party not informed the Panchayat about the daily production of ice from the plant or the horse power of the pump going to use in the well for pumping. This is coastal area. So is very sensitive. Over draft of pumping will cause for the salt water intrusion. As far as the ice plant is concerned the main raw material is water. So, large quantity of water is required for this plant. This will cause to the salt water intrusion and thus to the water quality problem in that area.’ In the decision of the Panchayat, copy of which is available in page No.79 of Volume No.III file produced by the 1[st] respondent it can be seen that the Committee arrived at such a decision for refusing the installation permit for the reason that taking of water for industrial purpose for the ice factory would result in intrusion of saline ``` WP(C) NO. 1625 OF 2018 ``` ``` -8- ``` water to that area and the existence of drinking water itself will be adversely affected. But learned counsel for the appellant relied on Ext.P16 document to show that the Ground Water Department has conducted an yield test and has given Ext.P16 report and the pumping will be conducted only in the duration mentioned in Ext.P16 report. There is no reference in Ext.P16 that the said yield test was conducted in the compound of the ice plant of the appellant. Moreover the said yield test is not done at the instance of the Panchayat and also without notice to the Panchayat. Therefore Ext.P16 report cannot be relied on to get over the reports of Ground Water Department relied on by the Panchayat for arriving at the impugned decision. Therefore on going through the file produced by the respondent and the document discussed above it can be seen that the Panchayat Committee has rightly decided to reject the application for installation permit based on the report of the Secretary, to arrive at a finding on getting expert opinion from the Ground Water Department and also the reports of the ground water department. Therefore there is no need to interfere with the impugned decision of the Panchayat and the consequent notice by the Secretary dated 21.1.2017. This point is found accordingly.” ``` WP(C) NO. 1625 OF 2018 ``` ``` -9- ``` 3. It is thus challenging the legality and correctness of Ext.P11 order passed by the Panchayath and Ext.P13 order passed by the Tribunal, this writ petition is filed. 4. Learned counsel for the petitioner fairly submitted that, in view of an order passed by this Court dated 13.06.2018, the Ground Water Department had drawn a new report after conducting an impact study in respect of the availability of the ground water and the extent to which permissions can be granted and it would suffice, if the petitioner is permitted to file a fresh application and consideration of the same by the Secretary/Panchayat, taking into account the report so drawn and the present ground reality. The report is dated 21.05.2018. The report reads thus: ``` WP(C) NO. 1625 OF 2018 ``` ``` -10- ``` **==> picture [468 x 577] intentionally omitted <==** ``` WP(C) NO. 1625 OF 2018 ``` ``` -11- ``` **==> picture [456 x 567] intentionally omitted <==** ``` WP(C) NO. 1625 OF 2018 ``` ``` -12- ``` **==> picture [456 x 562] intentionally omitted <==** ``` WP(C) NO. 1625 OF 2018 ``` ``` -13- ``` **==> picture [456 x 562] intentionally omitted <==** ``` WP(C) NO. 1625 OF 2018 ``` ``` -14- ``` **==> picture [456 x 554] intentionally omitted <==** ``` WP(C) NO. 1625 OF 2018 ``` ``` -15- ``` 5. Therefore, according to learned counsel, a new study has been conducted in the year 2018, whereas, the rejection order passed by the Panchayath is on the basis of a study conducted in the year 2009. In that view of the matter and since several years have elapsed, I think it is only appropriate that the Panchayath is directed to reconsider the matter irrespective of the findings contained in Ext.P11 order passed by the Panchayath, as well as Ext.P13 order passed by the Tribunal. 6. Therefore, after having heard learned counsel for the petitioner Sri.Mohammed Raiz, learned Government Pleader Sri.Riyal Devassy and the learned counsel appearing for the 6[th] respondent Sri.Kaleeswaram Raj, this writ petition is disposed of, directing the Secretary of the Grama Panchayath to reconsider the application submitted by the petitioner for drawing ground water, taking into account the report of the Ground Water Department dated 21.05.2018, as extracted above. 7. Since several years have elapsed, the petitioner is directed to submit a fresh application and the Secretary of the Grama Panchayath is directed to consider the same, taking into account the report dated ``` WP(C) NO. 1625 OF 2018 ``` ``` -16- ``` 21.05.2018, and also taking into account the present situation, at the earliest and at any rate, within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. ``` Sd/- SHAJI P.CHALY JUDGE ``` uu 05.04.2022 ## **`WP(C) NO. 1625 OF 2018`** ``` -17- ``` ## **`APPENDIX OF WP(C) 1625/2018`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE COVERING LETTER DATED 08.05.2008 SENT BY THE DISTRICT OFFICER, GROUND WATER DEPARTMENT TO THE 4TH RESPONDENT ENCLOSING THE REPORT OF THE HYDROGEOLOGICAL STUDIES. EXHIBIT P2TRUE COPY OF THE LETTER DATED 30.03.2009 ISSUED BY THE DISTRICT OFFICER, GROUND WATER DEPARTMENT TO THE 2ND PETITIONER. EXHIBIT P3TRUE COPY OF THE CONSENT TO ESTABLISH GRANTED BY THE KSPCB DATED 07.04.2015 VALID TILL 07.02.2018. EXHIBIT P4TRUE COPY OF THE COMMON JUDGMENT DATED 9.12.2014 OF THIS HONOURABLE COURT IN WP(C) 15154 OF 2010 AND WP(C) 743 OF 2001. EXHIBIT P5TRUE COPY OF THE COMMON JUDGMENT DATED 18.02.2015 IN WRIT APPEAL NOS. 58 AND 59 OF 2015 OF THIS HON'BLE COURT. EXHIBIT P6TRUE COPY OF THE JUDGMENT DATED 26.02.2016 IN RP NO.390 OF 2015 IN W.A NO.58 OF 2015 OF THIS HON'BLE COURT. EXHIBIT P7TRUE COPY OF THE COMMON JUDGMENT DATED 14.06.2016 IN WRIT PETITION (CIVIL) NOS, 21805 OF 2015 AND 12290 OF 2016 OF THIS HON'BLE COURT. EXHIBIT P8TRUE COPY OF THE APPLICATION DATED 28.07.2016 MADE BY THE PETITIONER BEFORE THE 3RD AND 4TH RESPONDENTS. EXHIBIT P9TRUE COPY OF THE LETTER DATED 27.09.2016 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P10TRUE COPY OF THE PETITIONERS APPLICATION DATED NIL (WITHOUT THE ENCLOSURES) ALONG WITH ACKNOWLEDGMENT OF THE 3RD RESPONDENT PANCHAYAT SHOWING THE DATE OF SUBMISSION AS 17.10.2016 SUBMITTED WITH THE 4TH RESPONDENT. EXHIBIT P11TRUE COPY OF THE ORDER DATED 21.01.2017 ``` ## **`WP(C) NO. 1625 OF 2018`** ``` -18- ``` ``` ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS. ``` ``` EXHIBIT P12TRUE COPY OF THE APPEAL DATED 08.02.2017 PREFERRED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT TRIBUNAL, BEING APPEAL NO.120 OF 2017 (WITHOUT THE EXHIBITS) EXHIBIT P13TRUE COPY OF THE ORDER DATED 20.12.2017 ISSUED BY THE 2ND RESPONDENT. ``` ``` EXHIBIT P14 ``` ``` EXHIBIT P15 ``` ``` Exhibit P21 ``` ``` TRUE COPY OF THE REPORT ON HYDROGEOLOGICAL STUDIES CONDUCTED AT VALIYAPARAMBATH NEAR MUKKALI, AZHIYOOR PANCHAYAT. ``` ``` TRUE COPY OF THE RTI APPLICATION DATED 10.01.2018 FILED BEFORE THE 3RD RESPONDENT PANCHAYAT. ``` ``` TRUE COPY OF THE REPLY DATED 06/10/2021 BEARING REFERENCE NO.A5/320/18 TO THE RTI APPLICATION FILED BY MS.RAMYA.N.P. ```