IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WP(C).No. 28089 of 2011(I) ------------------------------- PETITIONER(S): ------------------ SULFIKAR, AGED 42 YEARS, S/O. HASSAN, THACHIRUKUDI HOUSE, MARAMAPALLY VILLAGE,PALLIPRAM KARA, KUNNATHUNADU TALUK,(PROP: NIBA INDUSTRIES,MUDIKKAL) (NIBA HOLOBLOCK) REP. BY HIS P/A. ABDUL KHADER,S/O.MOHAMMED, KARAKATHUKUDI(H) MARAMPALLY VILLAGE,PALLIPRAM KARA, KUNNATHUNADU TALUK,EKM. BY ADV. SRI.SIRAJ KAROLY RESPONDENT(S): ------------------- 1. SUB INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION, PERUMBAVOOR-683534 2. CIRCLE INSPECTOR OF POLICE, PERUMBAVOOR.-683534 3. DISTRICT SUPERINTENDENT OF POLICE, ERNAKULAM RURAL, ALUVA-1. 4. VAZHAKULAM GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VAZHAKULAM GRAMA PANCHAYATH OFFICE MARAMPILLY P.O. - 683107 5. P.A.M. KUNJU, S/O. ABDUL RAHMAN, PALATHINAKL HOUSE, PALLIPRAM KARA, MARAMPALLY VILLAGE, MUDIKKAL.P.O.-683547 6. RIYAS, S/O. ALIYAR, CHENTHARA HOUSE, MARAMPALLY VILLAGE, PALLIPRAM KARA, MUDIKKAL.P.O.-683547 WP(C).No. 28089 of 2011(I) -2- 7. LATHEEF, S/O. MUSTHAFA, MOOKKADA, MARAMPALLY VILLAGE, PALLIPRAM KARA, MUDIKKAL.P.O.-683547 8. SALIM, S/O. ALIYAR, KUTTIKKATHOTTAM HOUSE, MARAMPALLY VILLAGE, PALLIPRAM KARA, MUDIKKAL.P.O.-683547 9. SAKKEER T.M., THOTTUNGAL HOUSE, MARAMPALLY VILLAGE, PALLIPRAM KARA, MUDIKKAL.P.O.-683547 10. MAHIN, S/O. ALIYAR, PALAKKA HOUSE, MARAMPALLY VILLAGE, PALLIPRAM KARA, MUDIKKAL.P.O.-683547 ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R5 SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR R5 SR. GOVERNMENT PLEADER SRI.M.K.ABOOBACKER FOR R1-R3 SRI.K.ABDUL JAWAD FOR R-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28089 of 2011(I) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE BUILDING PERMIT DATED 09/03/11 ISSUED BY THE 4TH RESPONDENT. EXT.P2:- TRUE COPY OF THE LAYOUT APPROVAL PERMIT ISSUED BY THE DY. TOWN PLANNER DT.27/12/10. EXT.P3:- TRUE COPY OF THE CONSENT LETTER ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.P4:- TRUE COPY OF THE INSTALLATION PERMIT DATED 26/07/11 ISSUED BY THE 4TH RESPONDENT. EXT.P5:- TRUE COPY OF THE STOP MEMO ISSUED BY THE 4TH RESPONDENT DATED 19/08/11 ISSUED BY THE 4TH RESPONDENT. EXT.P6:- TRUE COPY OF THE STAY ORDER IN WPC.23511/11 DATD 29/08/11. EXT.P7:- TRUE COPY OF THE REPRESENTATION DT.17/10/11 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 1 TO 3. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.28089 of 2011 ------------------------------------------------ Dated this the 3rd day of November, 2011 JUDGMENT Pius C. Kuriakose, J The petitioner who is about to return from Gulf shortly is seeking police protection for the construction of an industrial building on the basis of Ext.P1 permit issued by the Panchayat and also for bringing and installing the machineries which are permitted by the Panchayat in Ext.P4 Installation Permit. According to the petitioner apart from the Building Permit and Installation Permit issued by the local authority he is having Ext.P3 Consent to Establish issued by the Pollution Control Board and the proposed building and installations will be made strictly on the basis of the conditions incorporated in Ext.P3. He started the construction on the basis of Exts.P1 and P4. But at that juncture the Secretary of the Panchayat issued Ext.P5 stop memo. He has challenged Ext.P5 by filing Writ Petition W. P. C. No.28089 of 2011 -2- No.23511/11 and this Court has issued Ext.P6 order of stay of Ext.P5. Ext.P6 order of stay has been extended. The party respondents have not filed any counter. 2. Sri.V.Rajendran, the learned counsel for the party respondents submitted that the party respondents are not opposed to the petitioner putting up his industrial unit. What they are opposed to is only the pollution which is likely to be generated when the petitioner's hollow brick manufacturing unit becomes functional. Particularly, Sri.Rajendran would refer to the compound wall of the property where the building is being constructed and submitted that the height of the wall necessarily has to be increased. He submitted that the party respondents are preferring an appeal against Ext.P3 consent issued by the Pollution Control Board. Any protection granted by this Court for construction of the building may be made subject to the decision which the party respondents may obtain in the appeal being preferred against Ext.P3. Sri.Rajendran also submitted that it is not a small time hollow brick manufacturing unit which is W. P. C. No.28089 of 2011 -3- proposed by the petitioner. The fact that the petitioner proposes to install various motors having a total capacity of 49 HP will reveal that what the petitioner has in contemplation is a large scale factory which is sure to generate pollution. The learned counsel for the Panchayat submitted that Ext.P5 is only an interim order of stay which the Panchayat Secretary issued, on the basis of instructions from the council. An enquiry is being conducted as to whether the density of population aspect was taken note of while Ext.P4 was issued. The enquiry will be over shortly. Till then or till the High Court decides W.P.C.23511/11 protection orders may not be given to the petitioner. 3. Sri.Siraj Karoly, the learned counsel for the petitioner submitted that the construction of the building is more than 1/3 way through. Protection be granted at least for completion of the construction. The factory will be operated only later after obtaining operation consent from the Pollution Control Board. It is always open to the party respondents and even the Panchayat to oppose issuance of W. P. C. No.28089 of 2011 -4- the operation consent by the Pollution Control Board. 4. As against the request of Sri.Rajendran that height of the wall should be increased Sri.Siraj submitted that there will not be any serious objection to increasing the height by another 5 ft. 5. Having considered the submissions addressed at the Bar and keeping in mind the situation that Ext.P5 has been stayed by this Court, we are of the view that the petitioner should be permitted to complete the construction of the building which is permitted under Ext.P1. Therefore, we direct respondents 1 and 2 to afford adequate protection to the petitioner for completing the construction of the industrial building as permitted by the Panchayat in Ext.P1. The operation of the hollow brick manufacturing unit will be commenced by the petitioner only if the Pollution Control Board issues consent to operate. It is open to the party respondents to seek a hearing opportunity from the Pollution Control Board in the matter of issuance of consent to operate in favour of the petitioner. The establishment W. P. C. No.28089 of 2011 -5- consent Ext.P3 already issued in favour of the petitioner will be subject to any modification which may be made by the Pollution Control Board considering the appeal preferred or to be preferred by the party respondents against the same in the matter of the height of the compound wall and any other matter. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-