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. 38232 of 2010(D) ---------------------------------- PETITIONER(S): ------------------- A.I.POTHEN, S/O.IDICHANDY, MANAGING PARTNER, MOUNT ZION GRANITE, MALAYALAPPUZHA, THAZHAM P.O., PATHANAMTHITTA DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE ADVS. SRI.T.S.JOHN SRI.JESTIN MATHEW RESPONDENT(S): -------------------- MALAYALAPPUZHA GRAMA PANCHAYATH, MALAYALAPPUZHA, PATHANAMTHITTA DISTRICT - 689 866, REP. BY ITS SECRETARY. R1 BY ADVS. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) 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. 38232/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LICENCE NO.10/09-2010 ISSUED BY THE RESPONDENT PANCHAYATH TO THE PETITIONER DATED 09/04/2010. P2: COPY OF THE SANCTION ORDER BY THE KERALA POLLUTION CONTROL BOARD TO THE PETITIONER DATED 06/04/2009. P3: COPY OF THE APPLICATION FOR BUILDING SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT PANCHAYATH DATED 14/05/2009. P4: COPY OF THE ORDER NO.811/2006-07/470/M3/2006 DATED 21/03/2007 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY (IC) UPTO 07/02/2018. P5: COPY OF THE APPROVAL ORDER NO.C3/10023/09/D/DIS. DATED 04/01/2010 ISSUED BY THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. P6: COPY OF THE SANCTION ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICE, KOTTAYAM DATED 03/02/2010 P7: COPY OF THE CERTIFICATE BY THE ASST. ENGINEER, MALAYALAPPUZHA GRAMA PANCHAYATH DATED 19/12/2009. P8: COPY OF ORDER ISSUED BY THE PANCHAYATH COMMITTEE DATED 17/03/2010. P9: COPY OF THE JUDGMENT IN WPC.NO.14655 OF 2009 (B) DATED 23/06/2009 OF THIS HON'BLE COURT. P10: COPY OF THE JUDGMENT IN WPC.NO.524/2010 DATED 04/02/2010 OF THIS HON'BLE COURT. P11: COPY OF THE ORDER DATED 29/06/2010. P12: COPY OF THE APPLICATION DATED 16/07/2010. P13: COPYOF THE ORDER DATED 19/07/2010 OF THE RESPONDENT. P14: COPY OF THE DECISION OR THE PANCHAYATH. svs ................2/-... ...2... WPC.NO.38232/2010 P15: COPY OF THE APPEAL BEFORE THE TRIBUANAL. P16: OPY OF THE ORDER DATED 19/10/2010 BY THE TRIBUNAL. P17: COPY OF THE ORDER DATED 15/12/2010 BY THE RESPONDENT. P18: COPY OF THE ORDER OF PANCHAYATH. P19: COPY OF THE ORDER FROM THE DISTRICT OFFICER OF GROUND WATER DEPARTMENT, PATHANAMTHITTA DATED 04/02/2011. RESPONDENT'S EXHIBITS: R1(a):COPY OF REPORT DATED 29/11/2010 PREPARED BY THIS RESPONDENT. R1(b):COPY OF MINUTES OF THE PANCHAYAT COMMITTEE MEETING CONVENED ON 14/12/2010. R1(c):COPY OF DECISION TAKEN BY THE PANCHAYAT COMMITTEE ON 14/12/2010. /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 38232 of 2010 --------------------------------------- Dated this the 7th day of July 2011. JUDGMENT The writ petition is filed seeking to quash Ext.P17 order passed by the Panchayat and for a direction directing the Panchayat to issue license for 65 H.P for primary crusher unit and 2 secondary crusher unit of 30 H.P. each to the petitioner. 2. Heard the Learned Senior Counsel for the petitioner Adv. Sri. V.Chidambaresh and Learned Standing counsel Sri. Siby Mathew for the respondent. 3. The petitioner is running a crusher unit using 30 H.P. within the territorial area of the respondent Panchayat. The petitioner has applied for license for expansion of the crusher unit by installing 125 H.P. unit. The petitioner obtained certificates from all the statutory authorities concerned. More than one occasion, W.P.(C) No. 38232 of 2010 2 the Panchayat and appellate authority had occasion to consider the application for expansion of crusher unit owned by the petitioner. Ext.P17 is the order passed by the Panchayat as directed by the revisional authority i.e. Tribunal for Local Self Government Institutions. The present application was submitted by the petitioner for expansion of his unit on 14.5.2009. The Panchayat rejected the application mainly for the reason that the proposed expansion will cause health hazards to the public. The Panchayat after hearing the petitioner and representatives of public took the view that the proposed expansion of unit will cause air, sound and water pollution in that area. It also noted the fact that the area is thickly populated and that if the proposal for expansion of the unit is granted there may arise so many difficulties for the people residing in the vicinity. The Panchayat also found that there are residential houses within 100 meters of the crusher unit. These facts were considered by the Panchayat W.P.(C) No. 38232 of 2010 3 while passing Ext.P17 order. Besides these facts, the Panchayat also considered the question of availability of drinking water. The Panchayat took the view that water scarcity will be severe if the crusher unit is established as requested by the petitioner. 4. Learned Senior Counsel for the petitioner submits that the petitioner complied with all the formalities required under law for the expansion of the proposed unit. He had obtained permission from all the statutory authorities and therefore the Panchayat is not justified in refusing the permission. This court considering the matter under Article 226 of the Constitution of India, is not in a position to take a decision on the disputed facts pleaded by both sides. At the same time, statutory remedy available to the petitioner is to prefer an appeal to the tribunal under section 233 of the Panchayat Raj Act. The Tribunal being the appellate authority can go into the facts of the case based on the materials produced by both W.P.(C) No. 38232 of 2010 4 sides. The petitioner is free to substantiate his contentions on the basis of the documents which he proposes to rely on. In the circumstances, the writ petition is disposed of with a direction permitting the petitioner to prefer an appeal before the Tribunal for Local Self Government Institutions within a period of one month from today. If the petitioner prefer appeal, the appellate authority shall consider the appeal in accordance with law without going in to the question as to whether the same is filed within the statutory period or not. The writ petition is disposed of as above. HARUN-UL-RASHID JUDGE al