IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE KURIAN JOSEPH THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WA.No. 1103 of 2009 ---------------------------------- AGAINST THE JUDGEMENT IN WPC.12484/2009 Dated 21/04/2009 .................... APPELLANTS/3RD PARTIES --------------------------------------- 1. N.A.GEORGE, NELLICKALAYIL HOUSE, CHENGARA P.O., NADUKANI, PATHANAMTHITTA, PIN-689 664. 2. ANNAMMA MATHEW, KOYIKALATHU HOUSE, -DO- -DO- 3. SISILY MATHEW, PUTHUPARAMBIL PEACE PALACE, -DO- -DO- 4. ANNAMMA MATHEW, PARACKAMANNIL HOUSE, -DO- -DO- 5. ABRAHAM JOSEPH, VENCHAL HOUSE, -DO- -DO- 6. PONNAMMA THOMAS, PUTHENPARAMBIL HOUSE, -DO- -DO- 7. K.J.SAMUEL, KOYIKALATH HOUSE, -DO- -DO- BY ADV. SRI.SABU GEORGE SRI.KALEESWARAM RAJ RESPONDENTS/PETITIONER AND RESPONDENT --------------------------------------------------------------------- 1. M/S.MALLELIL INDUSTRIES PVT.LTD., ATTACHACKAL P.O., KONNI, PATHANAMTHITTA-689692, REP.BY ITS MANAGING DIRECTOR R.SREEDHARAN NAIR. 2. KONNI GRAMA PANCHAYAT, KONNI P.O., PATHANAMTHITTA, REPRESENTED BY ITS SECRETARY. ADV. SRI.SIBY MATHEW FOR R2 SRI.PHILIP J.VETTICKATTU FOR R2 SRI.VELLAYANI SUNDARARAJ FOR (ADV.COMMNR.) SMT.I.SHEELA DEVI FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/08/2009, ALONG WITH WPC NO. 9940 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & Kurian Joseph, J. ------------------------------------------ W.A.No.1103 of 2009 & W.P.(C) No.9940 of 2009 ------------------------------------------ Dated, this the 6th day of August, 2009 JUDGMENT Kurian Joseph, J. Appellants in W.A.No.1103 of 2009 were not parties to W.P.(C) No.12484 of 2009. That writ petition was filed by the first respondent who runs a metal crusher unit praying for a direction to the Grama Panchayat to pass orders on its application for licence under Section 233 of the Kerala Panchayat Raj Act. The learned Single Judge disposed of the writ petition directing the Grama Panchayat to consider the application with notice to the objectors, if any, within a period of four weeks from the date of production of a copy of the judgment. According to the appellants, they are the aggrieved parties and behind their back only the first respondent filed the writ petition and obtained the order, and hence the writ appeal. In the meanwhile the Panchayat had issued the licence. It appears that some of the objectors had turned up for the hearing. The appellants in W.A.No.1103/2009, etc. - 2 - W.A.No.1103 of 2009 have in the meanwhile filed W.P.(C) No.9940 of 2009 for the following reliefs: “1. Direct the respondents 1 and 2 to stop the illegal functioning of the quarry, Crusher, Nirmithi Manal Unit and Hollow Bricks Unit under the name and style 'Mallelil Industries Pvt. Ltd.,' forthwith. 2. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 3 to 7 to take appropriate steps to ensure that the quarry, Crusher, Nirmithi Manal Unit and Hollow Bricks unit operated by the respondents 1 and 2 under the name and style 'Mallelil Industries Pvt. Ltd.,' are stopped forthwith. 3. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to restore the Parackamannil- Mallelipadi/Puthuparambupadi Meloottupadi Panchayat road and public water line and public taps destroyed by the respondents 1 and 2 to its original condition and provide the same for the use of the W.A.No.1103/2009, etc. - 3 - public and realize the costs from the respondents 1 and 2 at the earliest within a time limit prescribed by this Hon'ble Court. 4. Issue a writ of mandamus or any other appropriate writ or direction, directing the respondents 3 to 5 to examine and assess the degradation and damage caused to the environment and the pollution and the depletion of ground water resources caused by the illegal activities of respondents 1 and 2 and assess the financial requirement for restoring the environment and further direct the 3rd respondent to recover the amounts so determined from respondents 1 and 2. 5. Issue a writ of mandamus or any other appropriate writ or direction, directing the 3rd respondent to take appropriate steps to fill up the huge pits caused by the quarrying done by the respondents 1 and 2 beyond the legally permitted depth of 20 feet below the surface and to recover the cost for the same from respondents 1 and 2.” 2. While the proceedings were pending before this Court, it W.A.No.1103/2009, etc. - 4 - is reported that the first appellant in W.A.No.1103 of 2009 (first petitioner in W.P.(C) No.9940 of 2009) has transferred the property to the owner of the first respondent metal crusher unit and hence it is submitted that he is not interested in continuing the litigation. Learned counsel originally appearing for the parties in the writ appeal and writ petition relinquished the vakalath and the remaining parties have engaged Sri.Kaleeswaram Raj to continue the litigation in respect of them. 3. Sri.Kaleeswaram Raj submits that the attitude of the Grama Panchayat is strange. They having objected to the licence initially on account of serious pollution and health hazard have now taken a somersault and issued the licence. It is further submitted that the present activity of stone blasting is also likely to cause danger to life and property of the people living around the quarry. Learned counsel for the Grama Panchayat however submits that these aspects were considered by the Pollution Control Board and only based on the W.A.No.1103/2009, etc. - 5 - consent issued by the Pollution Control Board, the Panchayat has granted the licence. Sri.Kaleeswaram Raj points out that even according to the Pollution Control Board, their stand initially also was that there was serious pollution. They too have taken a somersault, it is submitted. 4. Be that as it may, since the Pollution Control Board has issued the consent to operate the metal crusher unit and since the first respondent is functioning the unit based on the licence granted by the Grama Panchayat, we do not think that this Court should go into the various factual disputes since writ petitioners 2 to 6 have an effective remedy to adjudicate on this issue before the Tribunal for Local Self Government Institutions/other forums. We direct the Pollution Control Board and the Grama Panchayat to issue copies of the consent and the licence granted by them, to writ petitioners 2 to 6 within two weeks from the date of production of a copy of this judgment. Thereafter it will be open to those petitioners to pursue their statutory remedy. We W.A.No.1103/2009, etc. - 6 - make it clear that we have not gone into the merits of the contentions taken by the parties nor have we adverted to the report of the Advocate Commissioner in the nature of the order we have passed. We may also in this context note that writ petitioners 2 to 6 have very serious objections to the report of the Advocate Commissioner and they have expressed the same in the affidavit accompanying the petition for setting aside the report. It is not necessary for us to pursue the matter any further. We leave open all the contentions with regard to the report of the Advocate Commissioner. We also direct the Kerala State Pollution Control Board as well as the Secretary of the Grama Panchayat to conduct periodic inspection jointly atleast once in two weeks and see that there is no danger to the life and property of the people living around the metal crusher unit, by ensuring that the first respondent complies with all the conditions of the consent/licence. By way of abundant caution, we make it clear that the limitation for pursuing the statutory remedy so far as writ petitioners 2 to 6 are W.A.No.1103/2009, etc. - 7 - concerned, will run only from the date of receipt of the consent/licence as directed by us above. The writ appeal and the writ petition are disposed of as above. S.R.Bannurmath, Chief Justice Kurian Joseph, Judge vns