IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WP(C).No. 33380 of 2008(W) -------------------------- PETITIONER: ------------- M/S. VALLUVANAD WOOD CONSORTIUM (P) LTD. P.O. CHERKKAPARMBU, PERINTHALMANNA, MALAPPURAM DISTRICT, REPRESENTED BY ITS ] MANAGING DIRECTOR SRI. P.K. MOHAMMED ALI, S/O. MOHAMMED HAJI P.K. COMPLEX, THALI JUNCTION, ANGADIPURAM P.O., MALAPPURAM DIST. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.KAUSER EDAPPAGATH RESPONDENTS: --------------- 1. THE DISTRICT SUPERINTENDENT OF POLICE, MALAPPURAM DISTRICT. 2. THE CIRCLE INSPECTOR OF POLICE, PERINTHALMANNA, MALAPPURAM DISTRICT. 3. THE SUB INSPECTOR OF POLICE, KOLATHUR POLICE STATION, MALAPPURAM DIST. 4. THE GENERAL MANAGER, DISTRICT INDUSTRIES CEMTRE. CONVENER SINGLE WINDOW CLEARANCE BOARD, MALAPPURM DISTRICT. 5. THE SECRETARY, PUZHAKKATTERY GRAMA PANCHAYATH, PUZHAKKATTER- 679 321, MALAPPURAM DISTRICT. 6. PALLIYALTHODY RAJESH, KOTTUVADU, PUZHAKKATTERY VILLAGE, PERINTHALMANNA, MALAPPURAM DISTRICT. 7. KARUVANTHODY RMACHANDRAN, DO...DO... 8. THOTTIYIL MUHAMMED @ KUTTY, DO...DO... 9. GOVINDAKRISHNAN, DO...DO.... BY SR.GOVT.PLEADER SHRI BENJAMIN PAUL R1 TO R4 ADV. SRI.P.CHANDRASEKHAR FOR R6 TO 9 SRI.P.K.VIJAYAMOHANAN FOR R5 SRI.NISHIL.P.S. FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.33380/08 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF CERTIFICATE OF APPROVAL OF GOVT.OF KERALA DATED 31.5.05. EXT.P2: TRUE COPY OF RECOMMENDATION BY THE GOVT.OF KERALA FOR CENTRAL GOVT.AID DATED 27.3.08. EXT.P3: TRUE COPY OF THE APPROVAL OF PETITIONER'S COMPANY. EXT.P4: TRUE COPY OF THE PERMIT NO.22/08 DATED 20.8.08. EXT.P5: TRUE COPY OF THE CONSENT ISSUED BY STATE POLLUTION CONTROL BOARD DATED 30.3.08. EXT.P6: TRUE COPY OF THE RECOMMENDATION OF DMO, MANJERI. EXT.P7: TRUE COPY OF THE NOC ISSUED BY ASST.DIVISIONAL OFFICER, MALAPPURAM. EXT.P8: TRUE COPY OF THE PROCEEDINGS OF THE MALAPPURAM DISTRICT SINGLE WINDOW CLEARANCE BOARD MEETING DATED 4.2.08. EXT.P9: TRUE COPY OF THE ORDER OF APPROVAL OF CHIEF TOWN PLANNER, TRIVANDRUM DATED 10.4.08. EXT.P10; TRUE COPY OF THE RESOLUTION OF THE 5TH RESPONDENT. EXT.P11: TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 5TH RESPONDENT. EXT.P12: TRUE COPY OF THE CONSENT OF THE NEIGHBOURING OWNERS. EXT.P13: TRUE COPY OF THE PAMPHLETS ISSUED BY RESPONDENTS 6 TO 9. EXT.P14: TRUE COPY OF THE FIR IN CRIME NO.376/08. EXT.P15: TRUE COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE RESPONDENTS 1, 3 AND DISTRICT MAGISTRATE, MALAPPURAM DATED 6.9.08. EXT.P16: TRUE COPY OF THE DECISION OF THE PANCHAYAT DATED 4.9.08. EXT.P17: TRUE COPY OF THE JUDGMENT IN W.P.(C)No.27433/08 DATED 22.9.08 OF THIS COURT. EXT.P18: TRUE COPY OF THE ORDER ON I.A.No.1074/08 IN APPEAL NO.527/08 DATED 29.9.08 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. EXT.P19: TRUE COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE 3RD RESPONDENT AND DYSP, PERINTHALMANNA DATED 1.11.2008. EXT.P20: TRUE COPY OF THE ACKNOWLEDGEMENT OF EXT.P19. EXT.P21: TRUE COPY OF THE ORDER IN APPEAL NO.527/08 DATED 7.11.2008 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. W.P.(C)No.33380/08 RESPONDENTS' EXTS: EXT.R6(A): TRUE COPY OF DECISION DATED 13.6.08 OF PUZHAKKATTIRI GRAMA PANCHAYAT. EXT.R6(B): TRUE COPY OF PETITION DATED 13.9.08 OF AYYAPARAMBIL ARUMUGHAN TO THE 5TH RESPONDENT. EXT.R6(C): TRUE COPY OF THE PETITION SUBMITTED BY U.MUHAMMEDALI TO THE 5TH RESPONDENT. EXT.R6(D): TRUE COPY OF THE PETITION SUBMITTED BY A.MOHANANTO TO THE 5TH RESPONDENT. EXT.R6(E): TRUE COPY OF THE PETITION DATED 30.10.08 SUBMITTED TO THE SUB DIVISIONAL MAGISTRATE, PERINTHALMANNA,BY SHRI SHAHUL HAMEED AND ANOTHER. TRUE COPY K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------------------- W.P.(C)No.33380 OF 2008 W ----------------------------------------------------- DATED THIS THE 26th DAY OF NOVEMBER, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioner is a Private Limited Company. It is proposing to set up a common facility centre for wood based industry in Perinthalmanna Taluk, Malappuram District. The petitioner submits, the said project is a joint venture of the Company and also that of the State and Central Governments. For establishing the industrial unit, the petitioner obtained permission from the Director of Factories and Boilers, as evident from Exhibit P4. It has obtained the requisite consent from the Pollution Control Board, which is produced as Exhibit P5. The District Medical Officer(Health), Manjeri has recommended the project of the petitioner as per Exhibit P6. The Assistant Divisional Officer, Fire and Rescue Services has given its NOC as per Exhibit P7 and the Single Window Clearance Board on 4.2.2008, recommended the petitioner's project, as per Exhibit P8. The petitioner submits, in view of the provisions of the Kerala Industrial Single Window W.P.(C)No.33380/08 -2- Clearance Boards and Industrial Township Area Development Act, 1999 (Act 5/2000) the Panchayat and other authorities are bound to grant necessary permits, once the Single Window Clearance Board issues its recommendation under Section 8 of the above Act. The Grama Panchayat as per Exhibit P10 decision issued the necessary building permit as evident from Exhibit P11. The petitioner has obtained the consent of some of the neighbours for establishing the industrial unit as evident from Exhibit P12, it is submitted. 2. While so, the 6th respondent, who is staying at a distance of 250 metres from the factory site and respondents 7 to 9, who are residing at a distance of 500 metres, have started causing obstruction to the construction of the factory building. They have circulated pamphlets, hand bills, etc. exhorting the people of the locality to rally against the establishment of the industrial unit by the petitioner-Company. On 3.9.2008, when granite stones were brought to the unit for constructing retention walls, respondents 6 to 9 and some others obstructed the vehicles. Based on the information lodged on behalf of the W.P.(C)No.33380/08 -3- petitioner, a crime has been registered against them as per Exhibit P14 FIR. The petitioner submits, it moved the District Magistrate by filing Exhibit P15 representation for necessary protection to the petitioner-Company and its employees. While so, by Exhibit P16, the Panchayat cancelled Exhibit P11 building permit. The petitioner moved the Tribunal for Local Self Government Institutions and the Tribunal, as per Exhibit P21, set aside Exhibit P16 on the ground of procedural impropriety and gave liberty to the Panchayat to take fresh action in accordance with law, if so advised. The petitioner also points out that though Exhibit P8 was challenged by the 6th respondent before this Court by filing W.P.(C)No.27510/08, this Court has not granted any interim order. The said Writ Petition is pending. The petitioner submits, in view of Exhibit P11 building permit granted pursuant to Exhibit P8 decision of the Single Window Clearance Board, the petitioner has got every right to construct the building to house the factory. The local people, including respondents 6 to 9 have no right to cause obstruction. If they cause any obstruction, the same will amount to commission of criminal offences and W.P.(C)No.33380/08 -4- therefore, the police are bound to proceed against them in accordance with law. They have also a duty to grant necessary protection so that the petitioner can proceed with the construction, it is submitted. In view of the above facts, the petitioner prayed for the following reliefs. “(i) issue a writ of mandamus or such other writ or order directing respondents 1 to 3 to accord adequate police protection to the petitioner for erecting factory, construction of boundary wall and executing the project as envisaged and approved in Exts.P1 to P11; (ii) issue a writ of mandamus or such other writ or order directing respondents 1 to 3 to accord police protection to the petitioner's employee and personnel of petitioner from illegal acts of respondents 6 to 9 and others.” 3. The respondents 6 to 9 have filed a counter affidavit resisting the prayers in the Writ petition. According to them, the petitioner does not have any building permit for construction of the compound wall. Exhibit P8 order is already under challenge before this Court and they propose to challenge Exhibit P21 order of the Tribunal for Local Self Government Institutions, restoring Exhibit P11 building permit. It is also submitted that in the process of constructing the compound wall, the petitioner W.P.(C)No.33380/08 -5- encroached into the neighbouring properties including the Panchayat road and the drain by the side of it. The petitioner is proposing to establish the industrial unit using a 150HP motor and the same is likely to be a perpetual source of sound pollution in the locality. The Pollution Control Board has given consent to establish it without adverting to the magnitude of the pollution, which is likely to be caused by such a huge machine. 4. The learned counsel for the 5th respondent-Local Grama Panchayat submitted that, for construction of the compound wall, the petitioner does not have any building permit. What, further action should be taken pursuant to Exhibit P21 is yet to be decided by the Panchayat, it is submitted. 5. The learned Government Pleader upon instructions submitted that local people are protesting, because of the apprehended pollution that may be caused by the unit. Whenever cognizable offences were reported by the petitioner, crimes were registered and they are being investigated, though the accused could not be arrested. 6. In view of the decisions of this Court in Devadasan v. W.P.(C)No.33380/08 -6- State of Kerala (2005(3) KLT 739) and Ajayakumar v. State of Kerala (2008(1)KLT 901), if anybody is causing obstruction to the construction of the compound wall, no police protection can be ordered. The remedy of the petitioner lies before the civil court. 7. But, the learned counsel for the petitioner submits that presently the petitioner-Company is in need of protection for construction of the factory building. According to him, in view of the decision of the Tribunal, the petitioner-Company has got every right to proceed with the construction. But, we feel that the police have no power or authority to go into the rights of the petitioner to proceed with the construction and thereafter stand guard for the construction undertaken by it. In this jurisdiction, we are concerned only with the breach of duty from the part of the police, to the petitioner and our power to issue directions is co-terminus with the failure of duty of the police. We cannot undertake any adjudication of the rights of the petitioner, mentioned above, and ask the police to enforce those rights. This Court has no such jurisdiction under Article 226 of the W.P.(C)No.33380/08 -7- Constitution of India. The petitioner has got an efficacious remedy to redress his grievance before the civil court. If the civil court is convinced of the right of the petitioner, it can injunct the local people from trespassing into the petitioner's compound and causing obstruction to the construction there. That injunction order will stand guard day and night, till the construction is over. If anybody violates that injunction order, apart from taking coercive action against him, the civil court can address the police also to render necessary police assistance to enforce its orders. In view of the above efficacious remedy available to the petitioner, it is unnecessary for this Court to order any police protection. See the decision of the Division Bench of this Court in George v. Circle Inspector of Police (1990(1) KLT 741). We are in respectful agreement with the principle laid down in that decision. Further, as mentioned earlier, having regard to the disputed nature of facts, we cannot find any breach of duty from the part of the police for not standing guard to the construction activities of the petitioner. In the result, the Writ petition is dismissed, without W.P.(C)No.33380/08 -8- prejudice to the contentions of the petitioner and its right to move the competent civil court for appropriate reliefs. It is clarified that this judgment will not affect the powers of the police to take action, if any cognizable offence is reported. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. dsn