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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 8TH DAY OF JUNE 2018 / 18TH JYAISHTA, 1940
WP(C).No. 33982 of 2015
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PETITIONER :
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SHAJU, AGED 46 YEARS,S/O. C.U.DEVASSY,
CHUNDAKKATTIL HOUSE, PUTHUKKAD P.O.,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT,
PIN - 680 301.
BY ADVS.SRI.K.ABDUL JAWAD
SMT.V.K.ANJU
SMT.P.M.CIGY
RESPONDENTS :
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1. ALAGAPPANAGAR GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY,
ALAGAPPA NAGAR P.O. THRISSUR DISTRICT-680 035.
2. THE SECRETARY
ALAGAPPANAGAR GRAMA PANCHAYATH,
ALAGAPPANAGAR P.O., THRISSUR DISTRICT -680 035.
3. ALPHONSA JAMES, PROPRIETOR
KUNDUPARAMBIL METAL PRODUCTS,
MANAMPETTA, VARAKKARA P.O.
AMBALLUR, THRISSUR DISTRICT - 680 035.
R1 & R2 BY ADVS. SRI.K.S.BHARATHAN
SMT.S.ANJUSHA
R3 BY ADVS. SRI.T.M.CHANDRAN
SRI.S.SUJITH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-06-2018 ALONG WITH WPC NO.862/2018, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
18/6/2018
WP(C).No. 33982 of 2015 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P-1: TRUE COPY OF THE CERTIFICATE DTD 30.5.15, ISSUED BY THE
SECRETARY OF PUTHUKKAD GRAMA PANCHAYATH
EXT.P-2: TRUE COPY OF THE NO OBJECTION CERTIFICATE DTD.16.4.2015 ISSUED
BY THE 2ND RESPONDENT
EXT.P-3: TRUE PHOTOGRAPH OF THE PART CONSTRUCTION OF THE BUILDING
EXT.P-4: TRUE COPY OF THE GUIDELINES DTD 24.11.2009 FRAMED BY THE PCB
UNDER THE RELEVANT STATUES PROHIBITED ESTABLISHMENT OF CRUSHER
UNIT WITHIN 200 METERS FROM A RESIDENTIAL BUILDING.
EXT.P-5: TRUE COPY OF THE JUDGEMENT DTD 2.9.15 IN WPC NO.25699/15
PASSED BY THIS HON'BLE COURT.
EXT.P-6: TRUE COPY OF THE APPLICATION DATED 17.9.2015 UNDER THE RTI ACT
BEFORE THE 2ND RESPONDENT
EXT.P-7: A TRUE COPY OF THE REPLY DTD 14.10.2015 IN RESPONSE TO EXT.P6
EXT.P-8: TRUE COPY OF THE DECISION OF THE IST RESPONDENT
DATED 31.7.1993 THAT WAS FURNISHED IN RESPONSE TO EXT.P6
EXT.P9: COPY OF THE COMPLAINTS DATED 4/10/2017 (THE LAST INT HE SERIES
OF COMPLAINTS) ALONG WITH ACKNOWLEDGMENT
EXT.P9(a): COPY OF THE COMMISSION REPORT FILED IN OS NO.1893/15, ON THE
FILE OF MUNSIFF COURT, IRINJALAKKUDA.
EXT.P10: COPY OF THE LETTER DATED 12/9/2017, BY THE PETITIONER'S
LAWYER.
EXT.P11: COPY OF THE JUDGMENT DATED 23/6/2016 IN WPC NO.9291/16 ONT HE
FILE OF THIS HON'BLE COURT.
EXT.P12: COPY OF THE MEDICAL CERTIFICATE OF PETITIONER'S SON, ISSUED
BY THE DISTRICT DISABILITY BOARD, GENERAL HOSPITAL, THRISSUR.
RESPONDENT'S EXHIBITS :
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EXT.R3(a): COPY OF THE TEST REPORT (AS NO.75/01-12) ISSUED BY THE
EXECUTIVE ENGINEER, CHALAKUDY.
EXT.R3(b): COPY OF CONSENT ISSUED FROM THE KERALA STATE POLLUTION
CONTROL BOARD ISSUED ON 3/01/2017
WP(C).No. 33982 of 2015 (W)
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EXT.R3(c): COPY OF CIRCULAR DATED 8/2/2010.
EXT.R3(d): COPY OF NO. OBJECTION CERTIFICATE DATED 10/1/20107 ISSUED BY
THE ASST. DIVISIONAL OFFICER, FIRE, TRICHUR.
EXT.R3(e): COPY OF LICENCE DATED 9/11/2016 FROM THE DEPARTMENT OF
FACTORIES AND BOILERS.
EXT.R3(f): COPY OF APPROVAL DATED 29/5/2017 ISSUED BY THE TOWN PLANNER.
EXT.R3(g): COPY OF CERTIFICATE DATED 10/11/2017 FROM DMO, TRICHUR.
EXT.R3(h): COPY OF APPLICATION DATED 2/11/2017 FOR D & O LICENCE
EXT.R3(i): COPY OF ORDER PASSED BY RESPONDENT NO. 2 IN PURSUANCE OF EXT
P5 JUDGMENT
EXT.R2(a): COPY OF THE COMMUNICATION DATED 10/7/2017.
EXT.R2(b): COPY OF THE DECISION NO.3(12) OF THE PANCHAYATH COMMITTEE OF
THE R1 DATED 21/3/2015.
//TRUE COPY//
P.S. TO JUDGE
bp
18/6/2018
Devan Ramachandran, J.
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W.P.(C)Nos.33982 of 2015 & 862 of 2018
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Dated this the 8th day of June, 2018
JUDGMENT
These two writ petitions have been filed by one person, who claims to be the owner of a property, neighbouring that of Smt.Alphonsa James, who has been arrayed as the third respondent in W.P.(C)No.33982/2015 and as fourth respondent in W.P.(C)No.862/2018 .
2. Even though these two writ petitions relate to different causes of action, the constitutive issues in both are common and are entwined to each other. I, therefore, propose to dispose of these writ petitions by this judgment, but for the sake of convenience, I treat W.P. (C)No.33982/2015 as the lead case and reference to the parties and exhibits herein will be as appearing in that writ petition, unless specified otherwise. WPC 33982/15 & 862/18 2
3. I have heard Sri.K.Abdul Jawad, learned counsel for the petitioner, Sri.T.M.Chandran, learned counsel appearing for the party respondent, Smt.Alphonsa James, Sri.K.S.Bharathan, learned Standing Counsel for the Panchayat, Sri.T.Naveen, learned Standing Counsel for the Pollution Control Board and the learned Senior Government Pleader appearing on behalf of the official respondents.
4. As I have already said above, the petitioner says, he is the owner of the property neighbouring that of Smt.Alphonsa James, who asserts, is making an attempt to establish a new M-Sand unit in her property. Smt.Alphonsa James is stated to be already operating a stone crusher unit in her property for the last several years and the petitioner's allegations appear primarily to be targeted against the establishment of the new M-Sand Unit by Smt.Alphonsa James in an area property contiguous to the property where the stone crusher unit WPC 33982/15 & 862/18 3 is functioning, though he also has a case that the horse power of the existing stone crusher unit is sought to be enhanced without following the due procedure.
5. The materials available on record would show that Smt.Alphonsa James had obtained a building permit to construct a factory to house the M-Sand unit on 17.12.2014 and that she made an application for D & O licence on 02.11.2017. The singular allegation of the petitioner is that the building permit was issued by the Panchayat on 17.12.2014 even though Smt.Alphonsa James had not even applied for or obtained the imperative establishment licence under Section 233 of the Kerala Panchayat Raj Act. According to him, it is now settled law that no activity, of the kind mentioned in Section 233 of the Act, can be permitted without a specific permission being obtained from the Panchayat. He thus alleges that Smt.Alphonsa James had illegally constructed a building on the strength of the building permit issued by the WPC 33982/15 & 862/18 4 Panchayat unlawfully and prays that the construction, intended to house the M-Sand unit, made without securing the establishment permit under Section 233 of the Act be declared to be illegal and to consequently injunct her from establishing any such unit.
6. While W.P.(C)No.33982/2015 was pending, it appears that Smt.Alphonsa James had applied for and obtained a consent from the Pollution Control Board to establish the unit and that it was challenged by the petitioner by filing an appeal before the competent Appellate Authority under the Air (Prevention and Control of Pollution) Act, 1981. On the allegations that this appeal was not being considered by the said Appellate Authority and that his objections against the building permit was being refused to be considered by the Panchayat, he approached this Court by filing W.P.(C)No.25699/2015, which culminated in Exhibit P5 judgment. As is clear from the said judgment, the petitioner had confined his relief WPC 33982/15 & 862/18 5 to have his objections before the Panchayat Committee and his appeal, against the consent issued by the Pollution Control Board, pending before the competent Appellate Authority, be considered expeditiously. It is relevant and pertinent that at the time when he preferred W.P.(C)No.25699/2015, he had not raised a claim that the building permit was incompetent on account of the fact that Smt.Alphonsa James has not obtained the establishment permit under Section 233 of the Act.
7. Even though the Air Appellate Authority was directed to consider and dispose of the appeal preferred by the petitioner before it by this Court in Exhibit P5 judgment, it appears that the petitioner did not pursue it before the siad Authority and the learned counsel for the petitioner submits that this was because there was no sitting of the said Authority for a continuously long duration of time. Even though the pleading on record simply state that the appeal was dismissed as having WPC 33982/15 & 862/18 6 become infructuous, the learned counsel for the petitioner submits that, in fact, the appeal was closed because by then a new consent to operate had been issued by the Pollution Control Board. He says that this consent has been placed on record as Exhibit P9 in W.P. (C)No.862/2018 and that the same has been challenged on the ground that it is vitiated in law and having been issued without jurisdiction by the Pollution Control Board.
8. On an examination of the facts as are above narrated, it becomes obvious that even Smt.Alphonsa James does not have a case that before she applied for and obtained the building permit and commenced construction of the factory intended to house the M-Sand unit, she had obtained any establishment permit under Section 233 of the Act and it is now well settled, by a catena of decisions on this point, that any construction or establishment of a factory can be made only after a permit is obtained under the provisions of this Section .
WPC 33982/15 & 862/18 7
9. That being said, in the case at hand, I notice that when Smt.Alphonsa James started construction on the strength of a building permit issued to her, the petitioner challenged the same by preferring objections before the Panchayat Committee but without specifically including therein that she had not obtained a Section 233 permission prior to it. This was why in Exhibit P5 judgment, the learned Single Judge had disposed of the writ petition directing that the objections preferred by the petitioner before the Panchayat Committee, against the building permit, be considered expeditiously, but without, however, being aware that no establishment permit had been obtained prior to the building permit being issued by the Panchayat, since such a contention had not been taken by the petitioner therein.
10. Taking advantage of this apparent omission, Sri.T.M.Chandran, the learned counsel appearing for Smt.Alphonsa James, submits that the allegation of the WPC 33982/15 & 862/18 8 petitioner, based on Section 233 of the Act in this writ petition, is, thus completely untenable and impermissible at this point of time, because the petitioner had not raised this objection when he had approached this Court earlier and therefore that, since the construction of the building has now been completed, it is inequitable and improper for the petitioner to raise such contentions and file a subsequent writ petition before this Court.
11. Even though I have heard the learned counsel as above, the fact remains that the law specifies that no person shall, without the permission of the Village Panchayat under Section 233, construct or establish any factory. Obviously, therefore, the construction of the factory also has to be preceded by a Section 233 permission. In other words, before Smt.Alphonsa James had obtained the building permit, she should have ensured she had applied for and obtained a Section 233 permit. The officials of the Panchayat who issued the WPC 33982/15 & 862/18 9 building permit were also in error in not ensuring that a prior Section 233 permission had been issued. However, the fact also remains that the petitioner had challenged the building permit by approaching this Court, which culminated in Exhibit P5 judgment, wherein directions were given only to consider the objections to the building permit but not to assess its validity in having been issued without a prior Section 233 establishment permit having been obtained by Smt.Alphonsa James, since the petitioner had raised no such contention then.
12. The learned Standing Counsel for the Panchayat relying upon the counter affidavit filed on behalf of the Panchayat submits that the petitioner has made the challenge under Section 233 of the Act belatedly and that he should be seen to have given up such contentions when he obtained Exhibit P5 judgment. However, he concedes that Smt.Alphonsa James has not obtained a Section 233 permission prior to the building WPC 33982/15 & 862/18 10 permit was issued but his contention on this is that that would be of no consequence any more because the petitioner has virtually given up such contentions in Exhibit P5 judgment. When I asked him pointedly whether the Panchayat would have any objection in a Section 233 application being considered by it, if it is preferred by Smt.Alphonsa James, his answer was to the affirmative and he said that they would have no objection in doing so. The above being so, I am of the firm view that even though Smt.Alphonsa James had obtained a building permit and has completed the construction even prior to the issuance of Section 233 permission, such construction, in the particular facts noticed above, cannot be automatically found illegal and that she should be given the benefit of an opportunity of setting things right, but subject to the rigor of the specific provisions of law.
13. In that view of the matter, I am certain in my opinion that Smt.Alphonsa James cannot be allowed to WPC 33982/15 & 862/18 11 establish the new factory or to run the business of manufacture of M-Sand unless she applies for and obtains a Section 233 permit from the Village Panchayat. It is only on the basis of such a permission can she establish the factory, though the construction of the building is complete and to operate it, of course, subject to a D & O licence to be obtained by her.
14. As regards the consent to operate issued by the Pollution Control Board is concerned, I am of the view that since the earlier consent to establish issued to Smt.Alphonsa James had been challenged by the petitioner by filing a statutory appeal before the Air Appellate Authority but had then chosen not to prosecute it in spite of Exhibit P5 judgment, it is not justified on his part in challenging the subsequent consent to operate, namely Exhibit P9 in W.P.(C)No.862/2018, before this Court directly. This is more so because, the remedy of a statutory appeal, available to the petitioner under the WPC 33982/15 & 862/18 12 provisions of the Air (Prevention and Control of Pollution) Act, is equally efficacious, if not more, than approaching this Court because the said Appellate Authority has the jurisdictional capacity to look into and assess the relevant factual factors also, which this Court is proscribed from doing, while acting under Article 226 of the Constitution of India.
In the result,
(a) W.P.(C)No.33982/2015 is ordered directing Smt.Alphonsa James to make an appropriate application under Section 233 of the Act before the first respondent within a period of two weeks from the date of receipt of a copy of this judgment. On such application being received by the Panchayat, within the time granted herein, they will be enjoined to consider it in terms of the provisions of Section 233 of the Act and in particular that of Section 233(3) and to take a decision as mandated therein, after affording an opportunity of being heard to the petitioner WPC 33982/15 & 862/18 13 as well as Smt.Alphonsa James. An appropriate order under Section 233 of the Act shall be issued by the Panchayat within a period of one month from the date on which they receive the application.
It is clarified that if the order to be issued by the Panchayat under Section 233 of the Act is adverse to Smt.Alphonsa James, she will not be entitled further establish or commence operation of the M-Sand unit until such time as she is able to obtain orders in her favour through further proceedings.
(b) W.P.(C)No.862/2018 is ordered granting liberty to the petitioner to file an appropriate appeal before the Appellate Authority under the Air (Prevention and Control of Pollution) Act along with an application for condonation of delay, if it is so required, within a period of two weeks from the date of receipt of a copy of this judgment. On such an appeal, with or without the condonation application, is received by the Appellate WPC 33982/15 & 862/18 14 Authority within the time granted herein, it shall proceed to consider and dispose it of in terms of law, after affording an opportunity of being heard to the petitioner and Smt.Alphonsa James as expeditiously as possible but not later than the 31st of August, 2018. Needless to say, any action pursuant to Exhibit P9 consent will be undertaken by Smt.Alphonsa James only subject to the orders to be issued by the Appellate Authority.
If the petitioner chooses to prefer an appeal before the Appellate Authority under the liberty reserved herein above, he will be entitled to challenge Exhibit P9 consent on all its terms, including the grant of higher horse power to the existing stone crusher unit.
Sd/-
Devan Ramachandran, Judge tkv