IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 WP(C).No. 27884 of 2010(I) --------------------------------------- PETITIONER(S): ----------------------- M/S.UNITED GRANITES, PAZHAYANNUR, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER V.C. ELIAS, S/O.CHACKO, VARAPPATHUKUZHIYIL HOUSE, KILLIMANGALAM P.O., THRISSUR DISTRICT. BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE, ADV. SRI.K.C.KIRAN, SRI.JAMES ABRAHAM (VILAYAKATTU). RESPONDENT(S): ------------------------- 1. PAZHAYANNUR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, P.O. PAZHAYANNUR, THRISSUR DISTRICT-680 587. 2. SECRETARY, PAZHAYANNUR GRAMA PANCHAYATH P.O.PAZHAYANNUR, THRISSUR DISTRICT-680 587. 3. PRESIDENT, PAZHAYANNUR GRAMA PANCHAYATH, P.O. PAZHAYANNUR, THRISSUR DISTRICT-680 587. 4. DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, AYYANTHOLE, THRISSUR-680 003. R4 BY GOVT. PLEADER MR.BASANT BALAJI. R1 & R2 BY ADV. SRI.P.JAYARAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2010, THE COURT ON 24/05/2011 DELIVERED THE FOLLOWING: WP(C).No. 27884 of 2010(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PARTNERSHIP DEED EVIDENCING THE CONSTITUTION OF THE PARTNERSHIP DATED 01/09/2006. EXT.P2: COPY OF THE APPLICATION FOR PERMISSION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 23/10/2008. EXT.P3: COPY OF THE RESOLUTION OF PAZHAYANNUR GRAMA PANCHAYATH DATED 16/06/2009. EXT.P4: COPY OF THE CERTIFICATE DATED 09/06/2009 ISSUED BY THE VILLAGE OFFICER. EXT.P5: COPY OF THE CERTIFICATE ISSUED BY VILLAGE OFFICER DATED 21/05/2010. EXT.P6: COPY OF THE POSSESSION CERTIFICATE DATED 03/05/2010 ALONG WITH ANNEXURES. EXT.P7: COPY OF THE CONSENT ISSUED BY THE POLLUTION CONTROL BOARD DATED 06/05/2008. EXT.P8: COPY OF THE FACTOR PLAN APPROVAL ORDER ISSUED BY JOINT DIRECTOR OF FACTORIES AND BOILERS DATED 17/03/2010. EXT.P9: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE INSPECTOR OF FACTORIES AND BOILERS, THRISSUR DATED 17/08/2009. EXT.P10: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, THRISSUR DATED 16/07/2009. EXT.P11: COPY OF THE PROCEEDINGS OF SENIOR TOWN PLANNER, TRIVANDRUM DATED 19/01/2010. EXT.P12: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY DISTRICT MEDICAL OFFICER, THRISSUR DATED 22/10/2009. EXT.P13: COPY OF THE COMMUNICATION TO 2ND RESPONDENT FROM GEOLOGIST, THRISSUR DATED 27/07/2009. EXT.P14: COPY OF THE COMMUNICATION TO THE 2ND RESPONDENT FROM LABOUR OFFICER, THRISSUR DATED 04/08/2009. EXT.P15: COPY OF THE DECISION OF THE PAZHAYANNUR GRAMA PANCHAYATH DATED 13/07/2010. EXT.P16: COPY OF THE COMMUNICATION FROM DIVISIONAL FOREST OFFICER TO 2ND RESPONDENT DATED 11/08/2010. EXT.P17: COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 26/08/2010. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.27884 of 2010 ----------------------------------------- Dated this the 24th May, 2011 JUDGMENT The petitioner, a partnership firm, has filed this writ petition mainly challenging Ext.P17 letter sent by the second respondent informing the petitioner that permission to establish a granite crusher unit can be granted only on the petitioner producing letters of consent from the owners of the land adjoining the site of the proposed unit. The brief facts of the case are as follows. 2. The petitioner firm was constituted as per Ext.P1 partnership deed dated 1.9.2006. Long thereafter, the Managing Partner of the firm submitted Ext.P2 application dated 28.8.2008 to the second respondent, the Secretary of the Pazhayannur Grama Panchayat, for permission to establish a granite crusher unit in a parcel of land belonging to one of the partners of the firm. The application was filed in terms of rule 12 of the Kerala Panchayat Raj (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1996 (hereinafter referred to as 'the Rules' for short). The Committee of the Panchayat that met on 16.6.2009 W.P(C) NO.27884/2010 -:2:- resolved to grant the permission sought on the petitioner producing the consent of the concerned departments. The Committee also resolved to authorise the Secretary of the Panchayat to grant the permission to establish the granite crusher unit. 3. Pursuant to the said decision, the petitioner applied for and obtained Ext.P4 certificate from the Village Officer, Pazhayannur Village to the effect that there are no residential houses within a radius of 250 metres of the site of the proposed unit, Ext.P5 certificate from the Village Officer, Pazhayannur Village to the effect that the land where the petitioner firm proposes to establish the granite crusher unit is not forest land or poramboke or land surrendered as excess land, Ext.P6 possession certificate to the effect that Sri.V.K.Jose, partner of the petitioner firm, is in possession of the parcel of land where the petitioner proposes to establish the crusher unit, Ext.P7 consent from the Kerala State Pollution Control Board to establish the granite crusher unit, Ext.P8 approval order from the Joint Director of Factories and Boilers approving the plan of the proposed crusher unit, Ext.P10 no objection certificate from the Additional Divisional Officer, Fire and Rescue Services, Thrissur and produced them W.P(C) NO.27884/2010 -:3:- before the second respondent. The Inspector of Factories and Boilers, Thrissur had in the meanwhile sent Ext.P9 no objection certificate to the second respondent, the Secretary of the Pazhayannur Grama Panchayat, to the effect that the Factories and Boilers Department has no objection to the Panchayat granting a licence to the petitioner to establish a granite crusher unit. By Ext.P11 order dated 19.11.2010 the Chief Town Planner, Trivandrum, approved the site of the proposed granite crusher unit and by Ext.P12 letter dated 22.10.2009 the District Medical Officer, Thrissur also approved the site. Even after the aforesaid documents were produced and made available, when the permission was not forthcoming, the petitioner submitted a representation before the President of the Pazhayannur Grama Panchayat. The Committee of the Panchayat that met on 13.7.2010 thereupon resolved to request the Divisional Forest Officer, Thrissur to issue a no objection certificate to establish the crusher unit in view of the fact that one boundary of the site of the proposed crusher unit abuts a reserve forest. The Divisional Forest Officer, Thrissur thereupon sent Ext.P16 letter dated 11.8.2010 to the Secretary of the Pazhayannur Grama Panchayat to the effect that the Forest Department has objection to the W.P(C) NO.27884/2010 -:4:- establishment of a granite crusher unit in the proposed site and therefore, the no objection certificate cannot be issued. The Secretary of the Panchayat in turn sent Ext.P17 letter dated 26.8.2010 to the petitioner informing the petitioner that permission for establishing the granite crusher unit can be granted only on the petitioner producing consent of the persons owning lands on all four sides of the proposed site. The instant writ petition was thereupon filed challenging Ext.P17 and seeking the following reliefs:- a) Call for the records leading upto Ext.P17 and to quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. b) issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1 to 3 to allow Ext.P3 application and grant necessary permission to the petitioner to establish the crusher unit mentioned in Ext.P1. The main contention raised by the petitioner is that the stipulation that the no objection certificate from the Forest Department and the owners of the neighbouring lands should be produced is illegal and that such a stipulation cannot be insisted upon. 4. The respondents have been served and have entered W.P(C) NO.27884/2010 -:5:- appearance. The Divisional Forest Officer, Thrissur, the 4th respondent, has filed a counter affidavit dated 25.9.2010 wherein it is stated that the granite crusher unit is proposed to be established in a parcel of land adjoining a reserve forest, that the boundary of the land adjoining the reserve forest has a length of about 400 metres, that the site of the proposed unit is 55 metres away from the boundary of the reserve forest and that if a granite crusher unit is established in the proposed site it will be adversely affect the forest and wildlife and will cause environmental problems in the area. It is also stated that the noise, dust and frequent movement of heavy vehicles close to the forest will be highly detrimental to the fragile ecosystem and therefore, as the custodian of the reserve forest the 4th respondent has objection to the grant of permission to establish a granite crusher unit. It is further stated that as per the statutory requirements, the consent of all the neighbouring owners of the land is required for starting a granite crusher unit. The 4th respondent has also relied on the decisions of the Apex Court in M.C.Mehta v. Kamal Nath, (1997) 1 SCC 388 and Consumer Education and Research Society v. Union of India, (2005) 10 SCC 185 to contend that the principles therein apply to the case on hand and therefore the permission W.P(C) NO.27884/2010 -:6:- sought by the petitioner cannot be granted. The deponent has also stated that Ext.P16 letter is self explanatory. 5. I heard Sri.T.Krishnanunni, learned Senior Advocate apeparing for the petitioner, Sri.P.Jayaram, learned counsel appearing for the Pazhayannur Grama Panchayat and Sri.P.M.Poulose, learned Special Government Pleader appearing for the Divisional Forest Officer. The learned Senior Advocate appearing for the petitioner contended that section 233 of the Kerala Panchayat Raj Act and rule 12 of the Rules do not provide for the production of consent letters from the owners of the neighbouring lands and therefore the insistence on the production of a no objection certificate from the Forest Department is illegal. The learned Senior Advocate also contended that the reasons stated by the 4th respondent to decline the no objection certificate are also not tenable. The learned counsel contended that as section 233 of the Act and rule 12 of the Rules do not contemplate the production of consent letters from the neighbouring land owners and as no such consent letter from the other neighbouring land owners other than the Forest Department was insisted upon, there is no reason why the Forest Department's consent should be obtained. Per contra, Sri.P.M.Poulose, learned Special Government W.P(C) NO.27884/2010 -:7:- Pleader appearing for the Divisional Forest Officer, Thrissur contended that the petitioner cannot be permitted to establish a granite crushing unit close to the reserve forest as it will be detrimental to the tree growth and the wild animals. The learned counsel also placed reliance on the decision of the Apex Court in Virender Gaur and others v. State of Haryana and others, (1995) 2 SCC 577 to contend that the State and its instrumentalities and local authorities have a constitutional duty not only to ensure and safeguard proper environment, but an imperative duty to take proper measures to maintain and protect both man-made and natural environment and therefore, with a view to protect the forest which lies close to the site of the proposed granite crushing unit, the Panchayat was justified in insisting on the production of a no objection certificate from the Forest Department. Relying on the decision of the Apex Court in M.C.Mehta v. Kamal Nath, (1997) 1 SCC 388, M.C.Mehta v. Union of India and others, (2004) 12 SCC 118 and Glanrock Estate Private Ltd. v. State of Tamil Nadu, (2010) 10 SCC 96 the learned Special Government Pleader contended that the State and its instrumentalities as trustees are bound to preserve and protect the forests and therefore, the stand taken by the W.P(C) NO.27884/2010 -:8:- Divisional Forest Officer in Ext.P16 is perfectly in order. 6. I have considered the submissions made at the Bar by the learned counsel on either side. Sub-section (1) of section 233 of the Kerala Panchayat Raj Act, 1994 stipulates that no person shall, without the permission of the Village Panchayat and except in accordance with the conditions specified in such permission, construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or of other mechanical power or electrical power or install in any premises any machinery or manufacturing plant driven by any power as aforesaid not being machinery or manufacturing plant exempted by the provisions of this Act or the rules made thereunder. sub- section (2) thereof stipulates that an application for permission under sub-section (1) shall be submitted to the Village Panchayat addressed to the Secretary in such form and with such details as prescribed. Sub-section (3) of section 233 obliges the Secretary of the Panchayat to enquire and report to the Village Panchayat as to whether the establishment of the factory, workshop or workplace or other installation of machinery or manufacturing plant for which permission is applied for is objectionable by reason of density of population in the neighbourhood and the possibility W.P(C) NO.27884/2010 -:9:- to cause nuisance or pollution. It is also stipulated that the Village Panchayat shall thereafter take a decision in the mater after considering the application, the report of the Secretary and of the authorities specified in sub-section (4) within sixty days and either grant the permission or refuse it for reasons to be recorded. Sub- section (4) of section 233 stipulates that before granting or refusing permission under sub-section (3), the Village Panchayat, shall obtain and consider the report of the Inspector of Factories appointed under the Factories Act, 1948 (Central Act 63 of 1948) or of an officer of the Industries Department now below the rank of an Industries Extension Officer having jurisdiction over the area regarding the adequacy of ventilation, light etc. and sufficiency of the height and size of the rooms and doors and the suitability of exits to be used in case of fire in the plan of factories, workshop, workplace or premises if they came within the purview of the Factories Act, 1948 (Central Act 63 of 1948) and such other matters as may be prescribed; the report of the District Medical Officer regarding the possibility of nuisance or pollution if the connected load of the machinery proposed to be installed exceeds 25 HP or if the nature of the machinery and installation are such that it may cause nuisance or pollution; and the report of the W.P(C) NO.27884/2010 -:10:- Divisional Fire Officer or any other officer authorised by him regarding the adequacy of fire prevention and fire fighting measures planned if the proposed industry involves the use of high tension power or inflammable or explosive materials. Section 233 does not anywhere stipulate that the applicant should furnish a letter of consent from the neighbouring land owners or that where the lands in the neighbourhood belong to the State Government, the consent of the concerned Department of the State Government shall be obtained. Rule 12 of the Rules also contains provisions similar to section 233 of the Act. The said rule also does not contain a stipulation to the effect that consent of the neighbouring land owners shall be produced so as to facilitate the grant of permission under the Rules. The form of application prescribed by the Government also does not contain such a stipulation. The consent of the land owner is required only where the land where the factory is proposed to be installed does not belong to the applicant seeking the permission. From the scheme of section 233 of the Act and rule 12 of the Rules it is evident that the consent of the neighbouring land owner is not required to be furnished. If as in the instant case the Panchayat insists that every application for permission under the rules has to be W.P(C) NO.27884/2010 -:11:- accompanied by letters of consent from the owners of land situate on all sides of the site of the proposed factory, no factory can ever be established with the permission of the local authority for the simple reason that no land owner having lands abutting the boundary of the site of the proposed factory will give his or her consent. In my opinion the relevant consideration for declining permission under section 233 of the Act or rule 12 of the Rules can only be the possibility of nuisance or pollution to persons residing in the neighbourhood. That is evidently the reason why in the application for permission for construction, establishment or installation of a factory the distance between the site and residential buildings is required to be set out. The provisions of the Kerala Municipality Building Rules, 1999, especially rule 57 thereof, also does not contain such a stipulation. The stand taken by the Panchayat in Ext.P15 resolution that as one boundary of the site of the proposed granite crusher unit is a reserve forest the consent of the Divisional Forest Officer should be produced is without the sanction or authority of law. Necessarily therefore Exts.P15 and P17 cannot be sustained. 7. There is also yet another aspect of the matter. The Panchayat has not called upon the petitioner to produce letters of W.P(C) NO.27884/2010 -:12:- consent from the land owners who own lands on the other boundaries of the land where the crusher unit is to be established. The Panchayat has asked for a no objection certificate only from the Forest Department. The petitioner does not propose to set up a granite crusher unit in the land belonging to the Forest Department or in the midst of a forest. The petitioner's application is only to establish a granite crushing unit. If under the guise of running a granite crusher unit the petitioner commences quarrying operations without the permission of the local authority or other concerned authorities, it will certainly be open to the forest officials to point out the illegality and seek to prevent it. Further the Government have recently issued G.O(MS) No.239/2010/ID dated 1.12.2010 taking note of the fact that there are large deposits of granites/stones in plantation areas and degraded forest areas and have decided to permit quarrying operations in such areas. The Government have by that order directed the Forest Department and the Revenue Department to examine the possibility of granting licence for quarrying operations in those areas. The relevant portion of the Government order dated 1.12.2010 reads as follows:- “1) In certain areas land was W.P(C) NO.27884/2010 -:13:- leased/assigned for agriculture purpose and this was used for quarrying activity without specific approval of Government. Following complaints, District Collectors have cancelled the leases. Law Secretary will examine whether there is any need to amend the law to permit leasing of such lands for quarrying activity. He will also examine whether permission granted by Revenue Department for quarrying can be taken as deemed Government approval for change in activity. In respect of quarries that have made substantial investments in machinery etc., Revenue Department will examine whether after completing the formalities the land can be leased to the original assignees/successor in interest for quarrying. 2) Single Window Clearance Boards will be constituted in every district with District Collectors as Chairman General Managers, District Industries Centres as Convenors with members from Police Department, Mining & Geology, Pollution Control Board, Local Self Government and other Departments/agencies wherever necessary, to grant licenses for quarrying. xx xx xx 5) There are large deposits of granites/stones in plantation areas and degraded forest areas. Quarrying operation can be done W.P(C) NO.27884/2010 -:14:- without disturbance to the public in these isolated pockets of plantations and low-grade forests. Forest Department and Revenue Department will examine the feasibility of granting lease for quarrying operations in these areas. As a first step the Commissioner for Land Revenue will collect statistics of areas of such deposits and furnish the data to Government.” It is evident from the aforesaid order that the Government themselves propose to permit quarrying operations to be conducted in forest areas. The stand taken by the Divisional Forest Officer in Ext.P16 order runs counter to the aforesaid decision of the Government. Further, the petitioner does not propose to conduct quarrying operations. In such circumstances the various reasons put forward by the 4th respondent in Ext.P16 and in the counter affidavit filed by him cannot be a reason to hold that the consent of the Forest Department is required for establishing the granite crusher unit in private lands. I therefore, hold that the decision taken by the Pazhayannur Grama Panchayat in Ext.P15 resolution and Ext.P17 letter cannot be sustained. They are accordingly quashed. I accordingly dispose of the writ petition with a direction to respondents 1 to 3 to consider Ext.P3 application and pass W.P(C) NO.27884/2010 -:15:- appropriate orders thereon on the merits without insisting on the production of a no objection certificate from the 4th respondent or from the owners of lands situate on the boundaries of the site of the proposed granite crusher unit. A final decision in the application shall be taken expeditiously and in any event within one month from the date on which the petitioner produces a certified copy of this judgment before the second respondent. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.27884 of 2010 ---------------------------- JUDGMENT 24th May, 2011