Venad Readymix Concrete Pvt. Ltd. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE ACTING CHIEF JUSTICE MR. MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR.JUSTICE K.T.SANKARAN** **TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938** **WP(C).No. 24320 of 2016 (L)** **----------------------------** **PETITIONER(S) :-** **------------------** **TOMCY ANTONY, MANAGING DIRECTOR, VENAD READYMIX CONCRETE (PVT) LTD., THOTTAKKAD P.O., KOTTAYAM - 686 539.** **BY ADVS.SRI.JOMY GEORGE SRI.DEEPAK MOHAN SMT.A.MINI JOSEPH KUM.M .ANJU THOMAS** **RESPONDENT(S) :- ------------------** |**1.**|**SAJI.P.ZAKARIA, CHERKOTT HOUSE,**| |---|---| ||**THOTTEKKAD P.O., KOTTAYAM DISTRICT - 686 539.**| |**2.**|**G.SARATH, MOOLAPLAKKAL HOUSE,**| ||**THOTTAKKAD P.O., KOTTAYAM DISTRICT - 686 539.**| |**3.**|**MERCY THARAKAN, KAITHALAVIL HOUSE,**| ||**THOTTEKKAD P.O., KOTTAYAM DISTRICT - 686 539.**| |**4.**|**SUB INSPECTOR OF POLICE**| ||**VAKATHANAM POLICE STATION,**| ||**VAKATHANAM P.O., KOTTAYAM - 686 538.**| |**5.**|**SUPERINTENDENT OF POLICE,**| ||**KOTTAYAM - 686 002.**| |**6.**|**STATE OF KERALA,**| ||**REPRESENTED BY CHIEF SECRETARY,**| ||**GOVERNMENT SECRETARY, THIRUVANANTHAPURAM - 695 001.**| |**Addl.7.**|**ALEX P. GEORGE, AGED 45 YEARS, S/O.E.P. GEORGE,**| ||**ILLICKAL HOUSE, THOTTAKKAD P.O.**| ## **WP(C).No. 24320 of 2016** **Addl.8. KUNJUMON PHILIP, AGED 55 YEARS, S/O.PHILIP, KALLADAYIL HOUSE, THOTTAKKAD P.O.** **Addl.9. RAJESH P.R., AGED 41 YEARS, S/O.RAJU E.K., PULLOLICKAL PARAMBIL HOUSE, THOTTAKKAD P.O.** **ADDITIONAL R7 TO R9 IMPLEADED AS PER ORDER DATED 16.8.2016 IN I.A.No.12879/2016.** **Addl.10. PUTHUPPALLY GRAMA PANCHAYAT, PUTHUPPALLY P.O., KOTTAYAM DISTRICT - 686 011, REPRESENTED BY ITS SECRETARY.** **IS IMPLEADED AS PER ORDER DATED 29.8.2016 IN I.A.No.13822/ 2016.** **R1 - R3 BY ADV. SMT.M.D.BEENA R1 - R3 & ADDL R7-R9 BY ADV. SRI.ABRAHAM P.GEORGE SRI.K.VINODKUMAR SMT.M.SANTHY SRI.M.P.JAYAN ADDL.10 BY SRI.GEORGE SEBASTIAN, SC R4 - R6 BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** **WP(C).No. 24320 of 2016 (L)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :-** **-----------------------** **EXHIBIT P1 : TRUE COPY OF THE BUILDING PERMIT DTD 28/3/2016 ISSUED BY THE PUTHUPALLY PANCHAYATH.** **EXHIBIT P2 : TRUE COPY OF THE CONSENT LETTER DTD 27/6/2016 GIVEN BY THE PUTHUPPALLY PANCHAYATH FOR INSTALLING 216 HP MOTOR.** **EXHIBIT P3 : TRUE COPY OF THE CONSENT LETTER DTD 4/6/2016 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD FOR ESTABLISHING THE READYMIX CONCRETE PLANT.** **EXHIBIT P4 : TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE CENTRAL WATER AUTHORITY.** **EXHIBIT P5 : TRUE COPY OF THE CHALAN DTD 8/7/2016 EVIDENCING PAYMENT OF THE NECESSARY FEE FOR GETTING PERMISSION FROM THE GROUND WATER DEPARTMENT.** **EXHIBIT P6 : TRUE COPY OF THE HEALTH CERTIFICATE ISSUED TO THE PETITIONER UNDER TRAVANCORE KOCHI PUBLIC HEALTH ACT BY THE HEALTH INSPECTOR.** **EXHIBIT P7 : TRUE COPY OF THE COMPLAINT DTD 15/7/2016 FILED BEFORE THE 4TH RESPONDENT** **EXHIBIT P8 : TRUE COPY OF THE RECEIPT FOR EXHIBIT P7 COMPLAINT ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P9 : TRUE COPY OF THE COMPLAINT DTD 19/7/2016 FILED BEFORE THE 4TH RESPONDENT.** **EXHIBIT P10 : TRUE COPY OF THE ORDER DATED 21.7.2003 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT P11 : PHOTOGRAPH OF THE SHED CONSTRUCTED BY THE RESPONDENTS 1 TO 3 INFRONT OF THE PETITIONER'S PROPOSED PLANT.** **EXHIBIT P12 : TRUE COPY OF THE RESOLUTION PASSED BY THE PANCHAYAT ON 14.6.2016 GIVING CONSENT TO THE PETITIONER FOR INSTALLING THE MACHINERY ALONG WITH ITS ENGLISH TRANSLATION.** **EXHIBIT P13 : TRUE COPY OF THE ATTENDANCE REGISTER OF MEMBERS OF THE MEETING HELD ON 14.6.2016.** ## **WP(C).No. 24320 of 2016 (L)** **----------------------------** **EXHIBIT P14 : TRUE COPY OF THE REPORT OF INSPECTION CONDUCTED BY THE SECRETARY OF THE GRAMA PANCHAYAT ALONG WITH ITS ENGLISH TRANSLATION.** **EXHIBIT P15 : TRUE COPY OF THE RECEIPT DATED 27.6.2016 EVIDENCING PAYMENT OF PERMIT FEE FOR INSTALLATION OF MACHINERY.** **EXHIBIT P16 : TRUE COPY OF THE PROCEEDINGS OF THE STEERING COMMITTEE DATED 16.8.2016 ALONG WITH ITS ENGLISH TRANSLATION.** **EXHIBIT P17 : TRUE COPY OF THE DIRECTION GIVEN BY THE PRESIDENT ON 16.8.2016 TO THE SECRETARY FOR CANCELLING EXHIBIT P2, ALONG WITH ITS ENGLISH TRANSLATION.** **EXHIBIT P18 : THE LETTER DATED 18.8.2016, ALONG WITH ITS ENGLISH TRANSLATION.** ## **RESPONDENT(S)' EXHIBITS :-** **-----------------------** **EXT.R1(A) : TRUE COPY OF THE REPFORT OF THE VILLAGE OFFICER DATED 23.7.2016 SUBMITTED TO THE HON'BLE REVENUE DIVISIONAL OFFICER - ISSUED UNDER RIGHT TO INFORMATION ACT.** **EXT.R1(B) : TRUE COPY OF THE REPRESENTATION SUBMITTED BY PARENT TEACHER ASSOCIATION OF CMS LP SCHOOL, THOTTAKKAD DATED 25.7.2016 BEFORE THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM.** **EXT.R1(C) : TRUE COPY OF REPRESENTATION SUBMITTED BY THE ST.LUKE'S CSI CHURCH BEFORE THE GOVERNMENT IN THE SUBJECT MATTER.** **EXT.R1(D) : THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DATED 20.7.2016 REGARDING THE AGITATION GOING ON IN THE PANCHAYAT AGAINST THE PROPOSED READY MIX PLANT.** **EXT.R1(E) : TRUE COPY OF THE REPRESENTATION DATED 18.7.2016 SUBMITTED BEFORE THE ENVIORNMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, KOTTAYAM.** **EXT.R1(F) : TRUE COPY OF THE REPRESENTATION DATED 18.7.2016 SUBMITTED BEFORE THE DISTRICT OFFICER, GROUND WATER DEPT., KOTTAYAM.** **EXT.R1(G) : TRUE COPY OF THE NOTICE No.A4-4045/2016 DATED 16.8.2016 ISSUED BY THE SECRETARY, PUTHUPALLY GRAMA PANCHAYAT (TRUE ENGLISH TRANSLATION OF THE SAME IS PRODUCED HEREWITH).** **WP(C).No. 24320 of 2016 (L)** **----------------------------** **EXT.R10(A) : TRUE COPY OF JUDGMENT DATED 26.8.2016 IN WP(C) 28473/2016.** //TRUE COPY// P.A. TO JUDGE ## **Mohan M. Shantanagoudar, Ag. CJ & K.T. Sankaran, J** -------------------------------------------------------------W.P(C). No. 24320 of 2016 --------------------------------------------------------------Dated this the 6[th] day of September, 2016 ## J U D G M E N T ## K.T. Sankaran, J The petitioner is the Managing Director of Venad Redymix Concrete Pvt. Ltd., a Company registered under the Companies Act. The Company owns an extent of 3 Acres 28 Cents of land in Ward No.10 of Puthuppally Panchayat. The petitioner obtained Ext.P1 licence from the Panchayat for establishing the readymix concrete plant. The Pollution Control Board issued Ext.P3 consent letter. It is submitted that the application submitted by the petitioner before the Central Water Authority for licence to take required quantity of water is pending consideration. The Health Inspector has issued Ext.P6 Certificate. 2. When the petitioner started construction of the Unit, a group of people claiming to be the members of an action council came to the petitioner's Unit and obstructed the construction work. The obstruction continues and though Ext.P7 petition was submitted to the Police, no assistance was offered to the 2 _**W.P(C).24320/16**_ petitioner to go on with the construction activity. The relief prayed for in the writ petition is to issue a direction to respondents 4 to 6 to provide adequate and effective police protection to the life of the petitioner, his employees and workers for free access, ingress and egress to the site and to continue with the construction of the plant. 3. Respondents 1 to 3 filed counter affidavit. It is contended that the Panchayat has issued Ext.P2 permit without proper enquiry, ignoring sound pollution and dust pollution on functioning of the unit. The functioning of the Unit will spoil the “harmonious village atmosphere” and would also create health problems to the residents of the locality. Ext.P3 is only a consent to establish the Unit and it is not consent to operate the Unit. Ext.P6 certificate was issued by the Health Inspector mechanically without conducting any enquiry. The records reveal that the petitioner intends to manufacture concrete mix at the rate of 62800 Kgs per day and for that purpose, 10,000 litres of water per day may be required. If the petitioner is permitted to take water indiscriminately from the pond situated in the area, it would lead to acute water shortage and the local inhabitants will be adversely affected. The 3 _**W.P(C).24320/16**_ Panchayat and the Pollution Control Board did not consider the relevant facts. It is also stated that the effluents discharged from the plant would go to a canal, which passes nearby and it would also create water pollution. It is stated that the canal leads to a river. The inhabitants of the village had submitted several representations to the competent authority including the Revenue Divisional Officer, to call for a report from the Village Officer. The Parent Teacher Association of CMS LP School has also submitted a representation before the Deputy Director of Education, Kottayam. The residents of the locality formed a 'Samithi' against the establishment of readymix concrete plant and they have submitted representations to various authorities including the Environmental Engineer, Kerala State Pollution Control Board and Ground Water Department. 4. Learned counsel for the party respondents also submitted that a licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trade and factories) Rules is required for running the plant. Rule 6 of the said Rules provides that the authority to issue licence is the President of the Panchayat. In the case on hand, no such 4 _**W.P(C).24320/16**_ licence has been granted by the President of the Grama Panchayat. Ext.P2 is issued by the Secretary and not by the President and therefore the petitioner cannot run the plant, without getting licence issued by the President. 5. In reply to the above submission, learned counsel for the petitioner relied on the decision of a Division Bench of this Court in **Kadaplamattom Grama Panchayat v. Johny Roy** [2013 (3) KLT 1053], where the Division Bench held that the word “President” occurring in Rule 6 has to be read as “Secretary”. The principles have been set out in paragraphs 13 and 19 of the judgment, which read as follows : 13. The question to be considered is regarding the authority of the Village Panchayat in issuing or refusing a license under the D & O Rules in view of the specific conferment of power on the Secretary as per S.232 of the Act. The word “Secretary” has been incorporated with effect from 24.3.1999 to S.232 of the Act, by way of substitution for the words “Village Panchayat”. The D & O Rules came into force as per S.R.O No.76 of 1996. R.1(2) indicates that the rules shall come into force at once. But it is notified in the Kerala Gazette only on 23.4.2003. Apparently at the time of framing of the rules the Village Panchayat alone had the power under S.232 of the Act and the President was given the power to issue the licence. Whereas when the amendment was made to S.232 of the Act, with effect from 24.3.1999, the same is not incorporated in the D & O rules. This has given rise to certain controversies in respect of the authority to issue the license. It is a settled principle of law that rules cannot be framed contrary to the provisions of the statute and therefore, when S.232 of the Act gives power on 5 _**W.P(C).24320/16**_ the Secretary of the Panchayat to issue license to such establishments coming under the Schedule, the D & O Rules have to be read as if the power is vested with the Secretary. **==> picture [231 x 6] intentionally omitted <==** 19. In the light of the specific conferment of power on the Secretary to issue license in regard to establishments coming purely under S.232 of the Act read with D & O rules, even if it is stated in the rules that the President is empowered to issue such a license, the rules have to be read as if the power is vested under R.6, 7, 8 and 11 on the Secretary of the Village Panchayat. 6. Construction of the plant is not completed. In fact, the construction has just begun. The running of the plant arises after construction of the plant. Even at the stage of construction of the plant, obstruction has been made by the party respondents and their henchmen. So far as construction of the plant is concerned, the Secretary of the Panchayat has granted necessary permit. The permit was granted on the basis of the decision of the Committee of the Panchayat, as evidenced by Ext.P2. In view of the decision of the Division Bench referred above, the Secretary has authority to grant permit for construction of the plant as well as for grant of licence under Rule 8 of the D & O Rules. Therefore, the objection raised by the party respondents cannot be sustained. 7. More over, once the factory is established and it is run, if any pollution occurs, the party respondents are not without remedy. They 6 _**W.P(C).24320/16**_ can resort to proceedings under 233 A of the Kerala Panchayat Raj Act and other remedies are also available to them. Without resorting to such remedies at appropriate time, the party respondents are not entitled to obstruct the construction of the plant, when required licences have been obtained from the Panchayat and other authorities concerned. Accordingly the writ petition is allowed. Accordingly, there will be direction to respondents 4 and 5 to provide adequate and effective police protection to the petitioner to construct the plant and to erect the machineries of Venad Readymix Concrete Pvt. Ltd., in accordance with Ext.P1 and P2 permits granted by the Panchayat. The rights of the party respondents to move appropriate authority after commencing the production in the plant is reserved. **==> picture [25 x 11] intentionally omitted <==** Mohan M. Shantanagoudar, Acting Chief Justice Sd/- K.T. Sankaran, Judge sou.7/9.