IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 1947 of 2008(F) ----------------------------------- PETITIONER: ---------------- V.V.ABOOBACKER HAJI, S/O THERUVATH POCKER, AGED 60 YEARS, VALIYAKATH VEETTIL, VENMANAD, PAVARATTY POST, CHAVAKKAD, TRISSUR DISTRICT, KERALA STATE. MANAGING PARTNER, M/S JALALIYA INTERNATIONAL, CHUNGATHARA, MALAPPURAM DISTRICT. BY ADV. SRI.THOMAS ABRAHAM SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENTS: ---------------------- 1. THE SECRETARY, CHUNGATHARA GRAMA PANCHAYATH, CHUNGATHARA, POOKOTTUMANNA, MALAPPURAM DISTRICT. *ADDL. R2 IS IMPLEADED R2. ROY ISSAAC, S/O.M.M.ISAAC, AGED 42, MARUTHNAMKUZHY HOUSE, POOKOTTUMANNA.P.O, CHUNGATHARA, MALAPPURAM DISTRICT. *ADDL. R2 IS IMPLEADED AS PER ORDER DATED 30/01/2008 IN I.A.1293/2008. **ADDL. R3 AND R4 ARE IMPLEADED R3. M.M.MATHEW, MARATHANAMKUYIL HOUSE, CHUMKATHARA, POOKOTTUMANNA.P.O., NILAMBOOR. R4. SHAJI JOSEPH, CHEMBAKASSERI HOUSE, CHUMKATHARA, POOKOTTUMANA.P.O., NILAMBOOR. **ADDL R3 AND R4 ARE IMPLEADED AS PER ORDER DATED 15/02/2008 IN I.A. 1493/2008 W.P.(C).1947/2008-F #ADDL.R5 IS IMPLEADED ADDL.R5. SHANAVAS.M.A, S/O.ABOOBACKER, MAVUNKAL HOUSE, KURUMBALANGODU.P.O., CHUNGATHARA PANCHAYATH. #ADDL. R5 IS IMPLEADED AS PER ORDER DATED 15/02/08 IN I.A.1512/2008. ##ADDL. R6 TO R9 IMPLEADED ADDL.R6. M.KRISHNAKUMARI, W/O.P.GOPALAN, MEMBER, CHUNGATHARA GRAMA PANCHAYAT, P.O.CHUNGATHARA, PIN-679 334, MALAPPURAM DISTRICT. ADDL.R7. MARIAMMA ABRAHAM, MEMBER, CHUNGATHARA GRAMA PANCHAYAT, P.O.CHUNGATHARA PIN-679 334, MALAPPURAM DISTRICT. ADDL.R8. SUNIL.K.V., MEMBER, CHUNGATHARA GRAMA PANCHAYAT, P.O.CHUNGATHARA, PIN-679 334, MALAPPURAM DISTRICT. ADDL.R9. P.HAMSA, MEMBER, CHUNGATHARA GRAMA PANCHAYAT, P.O.CHUNGATHARA, PIN-679 334, MALAPPURAM DISTRICT. ##ADDL. R6 TO R9 ARE IMPLEADED AS PER ORDER DATED 13/03/2008. IN I.A.3111/08. BY ADV. SRI.K.M.SATHYANATHA MENON, SC - R1 SRI.R.ARUN RAJ - ADDL.R SRI.K.A.SALIL NARAYANAN - ADDL.R2 SRI.J.JULIAN XAVIER - ADDL.RES. SRI.FIROZ K.ROBIN - ADDL.RES. SRI.P.CHANDRASEKHAR -R ADDL.R THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 1947 of 2008 -------------------------------------------------------- Dated: JUNE 20, 2008 JUDGMENT Petitioner seeks to quash Exts.P3 and P14 and also a declaration that he is entitled to continue and complete construction of the building as per Exts.P1, P2, P4 and P5. A direction to the respondent to permit him to complete the construction of the building is also sought for. 2. Ext.P3 is a notice issued by the 1st respondent Panchayat requiring the petitioner to stop further work in relation to a mineral water and fruit juice project of the petitioner. Subsequently Ext.P14 order was issued cancelling the building permit. It is these orders that are sought to be quashed. 3. The facts of the case are that on an application made by the petitioner, the 1st respondent Panchayat issued Exts.P1 and P2, approving the plan submitted by the petitioner for the construction of the aforesaid industrial unit. Subsequently by Ext.P3 the petitioner was asked to stop further construction until he obtains approval from the District Town Planner. It is stated that after Ext.P3 was issued, petitioner obtained approval of the WP(C) 1947/08 2 District Town Planner vide Ext.P4, who had also approved the plan by Ext.P5. Once Exts.P4 and P5 were obtained from the District Town Planner, by submitting Ext.P6, the petitioner sought revocation of Ext.P3. 4. While the matters stood thus, petitioner submitted Ext.P7 project report, Ext.P8 sanction obtained from the District Industries Centre, Exts.P9 and P10 details of the machineries and a certificate to the effect that the machineries will not cause any pollution and also Ext.P11 consent to establish the unit obtained from the Pollution Control Board. It is his case that he had complied with all the conditions of Ext.P11 also. During all this period, despite having submitted the above documents and his various efforts, the Panchayat continued its inertia and Ext.P3 remained as such. Petitioner submits that while so, the Inspector of Factories and Boilers granted permit by Ext.P12 and the Ground Water Authority also issued Ext.P13 certificate permitting the petitioner to draw 8000 litres of water per hour for his industrial purposes. 5. Even thereafter as Ext.P3 was not revoked, petitioner approached this Court by filing a writ petition as WP(C) 1212/2008. That writ petition came up for orders before this WP(C) 1947/08 3 Court on 11th January 2008 when the counsel appearing for the Panchayat submitted that the Panchayat had already cancelled the permit issued in favour of the petitioner. Thereupon, recording the above submission, this Court directed the Panchayat to issue or serve a copy of the order on the petitioner. It is in pursuance to Ext.P15 judgment, the Panchayat issued Ext.P14 dated 11.1.2008. Ext.P14 refers to the decision of the Panchayat dated 3.1.2008 and says that considering the apprehensions expressed by the local residents, the Panchayat has decided to cancel the building permit. It is thereupon that this writ petition was filed seeking to quash Exts.P3 and P14 and seeking the other reliefs mentioned earlier. 6. From the counter affidavit filed by the Panchayat it would appear that the main reason for cancellation of the building permit issued in favour of the petitioner is the apprehensions expressed by the residents of the area. Panchayat would submit in paragraph 4 of its additional counter affidavit (the only one affidavit that it has filed) that there are more than 102 families residing in that area. It is stated that the area in question is a drought affected area during summer season and that it is the apprehension expressed by WP(C) 1947/08 4 the aforesaid residents which led the Panchayat to reconsider the permit that was issued in favour of the petitioner. 7. The additional 3rd respondent, a resident of the locality and a member of the Panchayat, in his affidavit would contradict the case of the Panchayat and would support the case of the petitioner. 8. In view of the allegedly wrong claim made by the Panchayat that there are more than 100 families residing in the neighbourhood of the factory site, in his commission application vide IA 3045/2008, the petitioner sought the appointment of an Advocate Commissioner to verify the correctness of this averment of the Panchayat. Accordingly an Advocate Commissioner was appointed and he has submitted his report dated 14.3.2008 in which it is reported that on inspection he found only two houses situated on the south-east and north-east direction of the proposed site. One of the houses is in the name of Mariakutty Joseph where one Mr. Roy Issac was residing. The Commissioner measured the distance of the house from the site and it is reported that the distance is 196.10 metres. The other house is that of the additional 5th respondent who is supporting the petitioner and the distance to his house is also WP(C) 1947/08 5 196 metres. The Commissioner has specifically reported that these are the only two houses which he could find during the time of inspection of the site. He also stated that from Pookottumana Junction there is a mud road leading to the site of the petitioner and the distance is about a kilometre and that in this route no houses were seen situated on either side of the road. He has also stated that at the time of inspection a group of people had assembled at the site and in response to his query as to whether they were residing nearby the unit, the answer was in the negative. In the aforesaid factual background, learned counsel for the petitioner would contend that there is absolutely no basis for Exts.P3 or P14. 9. When the matter was taken up for hearing, a request was made by the counsel for the Panchayat for time to file its objection to the report of the Advocate Commissioner. I see no bona fides in this request. If the Panchayat genuinely wanted, they could have filed its objections long back as the report is dated 14.3.2008. 10. As already noticed, the only reason stated for issuing Ext.P3 was want of sanction from the District Town Planner. As already noticed, the petitioner has obtained approval of the WP(C) 1947/08 6 District Town Planner by Exts.P4 and P5. Once Exts.P4 and P5 have been obtained by the petitioner, the basis of Ext.P3 goes and therefore ordinarily Ext.P3 cannot have any existence thereafter. 11. Coming to Ext.P14, as already noticed, the reason for issuing the said order was the apprehension expressed by the local residents. The nature of apprehension expressed by the so-called residents is not mentioned in Ext.P14 and is again left to one's imagination. In the counter affidavit, the effort of the Panchayat is to indicate that the apprehension is regarding the possibility of shortage of drinking water. 12. It is stated in the counter affidavit that there are 102 residents in the neighbourhood. This factual claim made by the Secretary of the Panchayat, to say the least, is incorrect. The Advocate Commissioner appointed by this Court has conducted a very detailed enquiry and has placed his report and he could only find two residential houses in the locality, of which one is that of the additional 5th respondent who is supporting the petitioner. If that be so, the Panchayat Secretary's affidavit, to be mild to him, is made in an attempt to mislead this Court. That apart, even in the affidavit filed, the Panchayat has not WP(C) 1947/08 7 placed anything on record to satisfy this Court that there is any basis for the apprehension entertained by the so-called residents which had been blindly accepted by the Panchayat and that too with notice to the petitioner and others. In the absence of any such material, the Panchayt should not have taken a decision as they have done in Ext.P14. It would appear that in this case the Panchayat seems to have taken it very lightly and has not realised the consequence of such a decision. The petitioner has expended huge sums of money for setting up the industrial unit and even the Factories and Boilers Department have granted licence by Ext.P17. The consequence of such a decision of the Panchayat is the closure of such an industrial unit. I am satisfied that the Panchayat has taken Ext.P14 decision without any material whatsoever and this order deserves to be quashed. Exts.P3 and P14 will stand quashed and the writ petition is allowed as prayed for. ANTONY DOMINIC JUDGE mt/-