IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 WP(C).No. 34217 of 2008(W) -------------------------- PETITIONERS: -------------------- 1. BLUE BLAK GRANITES, AYATHUPADY, KOOVAPPADY P.O., ERNAKULAM DISTRICT REPRESENTED BY ITS MANAGING PARTNER, P.P.CHERIYAN. 2. P.C.SALUS, PARTNER, BLUE BLACK GRANITES, KOOVAPPADY P.O., RESIDING AT PARAPPURAM VEEDU, AYATHUPADI, KOOVAPPADY, VIA.PERUMBAVOOR. BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS: ----------------------- 1. P.P.THANKACHAN, PARAPPURAM HOUSE, KOOVAPPADY P.O., PERUMBAVOOR VIA., ERNAKULAM DIST. 2. KOOVAPPADY GRAMA PANCHAYAT, KOOVAPPADY VIA., PERUMBAVOOR, REPRESENTED BY ITS SECRETARY. 3. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. R1 BY ADVS. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SMT.FOUSIA SATHAR SMT.M.KABANI DINESH SMT.M.P.SEETHA SMT.BOBY M.SEKHAR R2 BY ADV. SMT.JAYASREE MANOJ R3 BY GOVERNMENT PLEADER, SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2.2.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34217 of 2008(W) ------------------------------------------ APPENDIX ----------------- PETITIONER'S EXHIBITS ------------------------------------- EXT.P1. COPY OF THE LICENCE DATED 14.10.2005. EXT.P2. COPY OF THE CONSENT ISSUED BY THE POLLUTION CONTROL BOARD DATED 15.1.2007. EXT.P3. COPY OF THE CONSENT TO ESTBLISH DATED 16.6.2007. EXT.P4. COPY OF THE JUDGMENT IN WP.(C) NO.7672 OF 2008 DATED 19.3.2008. EXT.P5. COPY OF THE LETTER NO.PCB-EKM/1AQ-27/07 DT. 18.8.2008. EXT.P6. COPY OF THE ORDER NO.A3-549/07 DT. 17.7.208. EXT.P7. COPY OF THE ORDER IN IA. NO.1992/08 IN O.S. 244/08 DATED 30.98.2008 of the MUNSIFF COURT OF PERUMBAVOOR. EXT.P8. COPY OF THE ORDER IN APPEAL NO354/2008 DATED 25.9.08. EXT.P9. COPY of the CIRCULAR NO.PCB/T4/17/80 DT.26.8.2003. EXT.P10. COPY OF THE NO.OBJECTION ISSUED BY THE DISTRICT MEDICAL OFFICER, ERNAKULAM DATED 6.2.1992.M EXT.P11. COPY OF THE CERTIFICATE ISSUED BY THE ASST. DIVISIONAL OFFICER, FIRE FORCE ERAKULAM DATED 22.2.1992. RESPONDENTS' EXHIBITS : -------------------------------------- EXT.R1(A). COPY OF THE REPORT OF THE COMMISSIONER APPOINTED BY THE MUNSIFFF COURT, MUVATTUPUZHA IN O.S.NO.244/08. EXT.R1(B). COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE DISTRICT INDUSTRIES CENTRE. EXT.R1(C). COPY OF THE CIRCULAR DATED 8.10.2007 ISSUED BY THE POLLUTION CONTROL BOARD. / TRUE COPY P.A. TO JUDGE VK S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.34217 OF 2008 --------------------------------------- Dated this the 2nd day of February, 2011 JUDGMENT The petitioners are partners of a firm by name 'Blue Black Granites'. They had obtained a consent from the Pollution Control Board originally for establishing a secondary Metal Crusher Unit using 40 h.p. machinery with 20 h.p. for secondary Crusher Unit and 20 h.p. for Ancillary Unit. Ext.P2 is the consent issued by the Pollution Control Board for the same. In accordance with the said consent, the second respondent – Panchayat issued Ext.P1 licence for running a Metal Crusher Unit using 40 h.p. electric motor. Later on, the petitioners realised that they cannot profitably run the Unit without a primary Crusher Unit also. Therefore, they applied to the Pollution Control Board for consent to establish an additional primary Crusher Unit as well. By Ext.P3, the Pollution Control Board gave consent for a Primary Crusher Unit of 45 h.p. The first respondent herein objected to the petitioners establishing the W.P.(C)No.34217/08 2 Primary Crusher Unit. He approached this Court by filing W.P. (C)No.7672/2008. In that, this Court, by Ext.P4 judgment, directed the Panchayat to consider the matter, after hearing both sides. Thereafter, the Panchayat considered the matter and ultimately passed Ext.P6 order, whereby licence was directed to be granted to the petitioner to install an electric motor of an additional 45 h.p. for a Metal Crusher Unit. The first respondent challenged the same before the Tribunal for Local Self Government Institutions. The Tribunal, after hearing the parties, passed Ext.P8 order quashing Ext.P6 order holding that going by the written statement of the Panchayat, what was applied for was an up-gradation of the present 40 h.p. machinery to 45 h.p. machinery whereas what was sanctioned is an additional 45 h.p. In that view, the Tribunal quashed the order with liberty to the first petitioner to file fresh application. The petitioners have filed this writ petition challenging Ext.P8 order, seeking the following reliefs: “ i) to call for the records leading to Ext.P8 and quash the same by the issuance of a writ of certiorari or any other writ, direction or order; ii) to declare that the petitioners are entitled to establish and operate a Primary Crusher Unit of 45 HP after obtaining clearance from the statutory authorities” 2. As is evident from the narration of the facts, the W.P.(C)No.34217/08 3 petitioners are challenging Ext.P8 order on the ground that the Tribunal committed a mistake in holding that, what the petitioners sought, was the up-gradation of the existing 40 h.p. machinery to 45 h.p. machinery whereas, as is evident from the documents produced, what the petitioners applied for was, for installation of a new Primary Crusher Unit of 45 h.p. in addition to the Secondary Crusher Unit and Ancillary Unit of total 40 h.p. 3. The first respondent stoutly opposes the claim of the petitioner. According to them, the Tribunal rightly interfered with the order of the Panchayat. 4. I have considered the rival contentions in detail. From Ext.P1 licence originally granted by the Panchayat to the petitioners, it is clear that the licence was to run a Metal Crusher Unit with 40 h.p. electric motor. In Ext.P2 consent issued by the Pollution Control Board, column No.15 reads thus: “15. Machinery Details Primary – Nil Secondary – 20 HP” That shows that at that time, there was no Primary Crusher Unit and there was only one Secondary Crusher Unit of 20 h.p. In Ext.P3 consent, corresponding column No.15 reads thus: W.P.(C)No.34217/08 4 “15. Machinery Details Primary Crusher 45 HP” Therefore the consent is clearly for Primary Crusher Unit of 45 h.p. Nobody has a case that at the time of issuing Exts.P1 and P2 there was a Primary Crusher Unit and Exts.P1 and P2 clearly related to only a Secondary Crusher Unit. Therefore, Ext.P3 is clearly for an additional Primary Crusher Unit of 45 h.p. Ext.P6 order also specifically reads thus: “ORDER NO.A3-549/07 DATED 17.07.08 Sri/Smt................P.P.Cheriyan......................... as per the application read first above has requested for permission to establish a work place is Sy.No.429/4 of .......Koovappady Village, ward ......V........... of Koovappady Grama Panchayat and to install an electric motor of additional 45 HP (existing 40 H.P.)...... H.P.........for metal Crusher Unit Blue black granites................ Grama Panchayat after having examined the application in the detail has resolved to grand permission under section 233 of Kerala Panchayat Raj act 1994 Therefore, sanction is accorded to Sri/Smt.P.P.Cheriyan .......................establish a work place in Sy.No.429/4 ................of Koovappady Village and to install additional 45 H.P. to existing 40 H.P. Electric motor for a metal crusher unit (Blue black granites)” From the same, it is evidently clear that what has been granted is permission to install an electric motor of additional 45 h.p. in addition to the existing 40 h.p. The Tribunal has in paragraphs 8 and 9 of Ext.P8 order held thus: “8.The application for permit under Section 233 of the Kerala Panchayat Raj Act is to be submitted as per W.P.(C)No.34217/08 5 Rule 12 of the Kerala Panchayat Raj Act (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules 1996 giving the details as specified in the said rule with proper plan of the factory, workshop or workplace. The application submitted by 2nd Respondent is found on page 74 of the file produced by the 1st Respondent. Particulars as to power of machinery of plant proposed to be installed is shown in column No.10 as 40 HP + 45 HP in the said application dated 12.9.2007. Along with the application the 2nd Respondent has produced consent to establish obtained from Kerala State Pollution Control Board on 16.6.2007 as valid up to 15.6.2009. But in the said consent the machinery details specified is only of 45 HP and not 40 + 45 HP. No proper plans are seen submitted along with the application dated 12.9.2007 showing the location of the machinery in existence at present as well as the location of the additional machinery proposed to be installed. As already pointed out the application submitted by 2nd Respondent is not consistent with the consent to establish obtained by him as to the power of the machinery concerned. 9. Though the impugned decision is one enabling the 2nd Respondent to install additional 45 HP machinery as against the consent to establish obtained by him for installation of total 45 HP machineries only, it is stated in the written statement filed by the 1st Respondent that the impugned resolution only granted a permit for machinery installation with a view to expand the existing unit of 2nd Respondent's metal crusher unit from 40 HP to 45 HP. Thus as per paragraph 3 of the written statement filed by the 1st Respondent the permit was granted for increasing the Horse Power of the machineries by 5 HP only, ie from 40 to 45. If it was so it could be found as consistent with the consent to establish granted by the Pollution Control Board on 16.6.2007. As already pointed out the application submitted by 2nd Respondent was for installation of 40 HP + 45 HP motors and the impugned decision also is as enabling installation of additional 45 HP machineries. Thus considering the impugned decision and the written statement of 1st Respondent, the 1st Respondent has no consistent case as to the nature of the permit granted by the impugned decision”. From the same, it is evident that the Tribunal was under the W.P.(C)No.34217/08 6 mistaken impression that what the petitioners applied for was the up-gradation of existing Crusher Unit from 40 h.p. to 45 h.p. This mistake also arose because of a mistake in the written statement filed by the Panchayat, which is extracted in paragraph 3 of the order. As such, clearly Ext.P8 order has been passed on the basis of the mistaken understanding of the facts involved and therefore, Ext.P8 order is quashed. The Tribunal is directed to reconsider the matter in the light of the observations made above as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.34217/08 7 W.P.(C)No.34217/08 8