IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 WP(C).No. 17306 of 2011(K) --------------------------------- PETITIONER(S): -------------------- K.J.VARGHESE, AGED YEARS, S/O.YACOB, PROPRIETOR, SOUTHERN M SAND, KARIYAD, MAIKAD P.O., PIN - 683 589. BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM 2. THE SECRETARY,NEDUMBASSERY GRAMA PANCHAYATH, KARIYAD, MAIKAD P.O., PIN - 683 589. 3. THE PRESIDENT,NEDUMBASSERY GRAMA PANCHAYATH, KARIYAD, MAIKAD P.O., PIN - 683 589. 4. P.V.POULOSE, PRESIDENT, NEDUMBASSERY GRAMA PANCHAYATH, KARIYAD, MAIKAD P.O., PIN - 683 589. R1 BY GOVT. PLEADER SRI.GOPAKUMAR R2 & R3 BY ADV. SRI.GEORGE SEBASTIAN R4 BY ADV. SRI.GEORGE SEBASTIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 17306/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RESOLUTION DATED 26/07/2010. P2: COPY OF THE CONSENT ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. P3: COPY OF THE CIRCULAR DATED 08/02/2010. P4: COPY OF THE NO OBJECTION DATED 16/11/2011. P5: COPY OF THE BUILDING PERMIT DATED 30/04/2010. P6: COPY OF THE NOTICE NO.A2-3077/11 ALONG WITH THE COPY OF THE COMPLAINT MADE BY A 'JANAKIYA COMMITTEE' SIGNED BY 3 PERSON DATED 13/06/2011. P7: COPY OF THE ORDER DATED 25/06/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 17306 of 2011 --------------------------------------- Dated this the 7th day of July 2011. JUDGMENT The writ petition is filed mainly seeking to quash Ext.P7 stop memo passed by the Panchayat and for a declaration that the petitioner is entitled to carry on construction of the building of his unit as per Ext.P5 sanction. 2. Heard the learned counsel for the petitioner and Govt.Pleader Sri. Gopakumar for the respondents. 3. During July 2010 the petitioner applied to the 2nd respondent Panchayat for permission to establish M-sand Unit. After considering the request of the petitioner, the 2nd respondent granted sanction by resolution dated 26.7.2010. Pursuant to the resolution, the Panchayat issued permit for starting the M-sand and concrete mixing plant. The W.P.(C) No.17306 of 2011 2 petitioner obtained consent of the Pollution Control Board. Ext.P2 is the consent to establish the Unit. The petitioner obtained 'No objection certificate' from the other statutory authorities as required under law. While the construction is going on as per the permission issued by the 2nd respondent Ext.P7 memo was issued by the Secretary of the Panchayat. The reason for issuing Ext.P7 memo is that the President of the Panchayat has received several complaints from the public against the functioning of the proposed unit. Acting on the complaint as directed by the President of the Panchayat, the Secretary issued Ext.P7 stop memo. 4. The petitioner submits that no residential houses are situated within the prohibited distance prescribed by the Pollution Control Board. Ext.P3 circular dated 8.2.2010 stipulates the distance rule. The petitioner submits that the nearest houses situated are at a distance of more than 130 metres. According to the petitioner, there are 3 houses situated beyond the distance of 130 meters and they have no objection in the petitioner conducting the unit. W.P.(C) No.17306 of 2011 3 Petitioner submits that the persons who have alleged complaints are residing about 1 km away from the unit and the complaint was lodged with malafide motives and that the President of the Panchayat without applying his mind and with some political ill motivation directed the Secretary of the Panchayat to issue stop memo. Under this circumstances, petitioner prays that Ext.P7 stop memo may be quashed. The petitioner also referred to section 235 (o) and 235 (x) of the Kerala Panchayat Raj Act, which enable the Secretary only to issue stop memo if the conditions stipulated are not satisfied. In this case, stop memo was issued as directed by the President of the Panchayat. The Secretary without applying his mind has issued stop memo. Therefore, it is evident that the Secretary is not having the authority to issue the order in the nature of Ext.P7. Taking into account the aforesaid facts, this court is of the view that there is no justification for the Secretary to issue Ext.P7 stop memo and therefore, it is not sustainable in law. Ext.P7 order is therefore quashed. This W.P.(C) No.17306 of 2011 4 order will not stand in the way of the Secretary of the Panchayat to initiate or take decision and pass orders in accordance with law if circumstances so demands. The writ petition is disposed of as above. HARUN-UL-RASHID JUDGE al