IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WA.No. 1183 of 2007() ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.34413/2006 Dated 17/04/2007 .................... APPELLANT(S): PETITIONER ------------------------ CHACKO THOMMY,CHERUVANKALAYIL, MEMURI P.O.,MANJOOR,KOTTAYAM. BY ADVS. MR.V.G.ARUN MR.T.R.HARIKUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. THE MANJORR GRAMA PANCHAYATH, MANJOOR,REP.BY ITS SECRETARY. 2. THE SECRETARY,MANJOOR GRAMA PANCHAYATH, MANJOOR P.O.,KOTTAYAM. 3. M.T.THOMAS,CHIRAVALEL HOUSE, MEMURI P.O.,MANJOOR,KOTTAYAM. 4. THE SENIOR ENVIRONMENTAL ENGINEER, POLLUTION CONTROL BOARD,KOTTAYAM. BY ADVS.MR.MATHEW SKARIA MR.K.RAMAKUMAR, SENIOR ADVOCATE FOR R3 MR.T.RAMPRASAD UNNI FOR R3 MR.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOARD FOR R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2009, ALONG WITH WA NO. 1140 OF 2007 WA. NO.1199 OF 2007 AND WP(C) NO.34278 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.SURENDRA MOHAN, JJ. -------------------------------------------------- W.A.Nos.1140, 1183, 1199 of 2007 and W.P.(c) No.34278 of 2007 -------------------------------------------------- Dated this the Ist day of July, 2009 JUDGMENT The issue raised in these writ appeals and the writ petition essentially pertains to the functioning of a metal crusher unit by the writ petitioner in W.P.(C) No.34413 of 2006. The said writ petitioner approached this Court challenging Ext.P11 communication issued by the respondent Panchayat. The Panchayat withdrew the license granted to the petitioner for installing an additional capacity of 50+5+5+5 HP machinery. When the said writ petition was pending before this Court, third parties also got themselves impleaded. The Memuri Paristhithi Samrakshana Samithy also filed another Writ Petition as W.P.(C)No.31534 of 2006. Both the writ petitions were considered by the learned Single Judge and after elaborately considering the merits of the contentions taken by the parties, the writ petitions were disposed of with a direction to the writ petitioners to pursue the remedy by way of appeal before the Tribunal for Local Self Government Institutions. The main contention of the writ petitioner in W.A.No.1183 of 2007 is that the learned Single Judge W.A.No.1140/2007 & con.cases 2 having entered findings and having made observations with regard to the merits of the case, there is no point in relegating the petitioner to pursue the matter in appeal. 2. In the other two writ appeals, the main grievance is that the learned Single Judge, having relegated the writ petitioner to pursue the matter in appeal, should not have granted liberty to the writ petitioner to continue to function the metal crusher unit and such a permission was unwarranted in the circumstances of the case. The contention of the writ petitioner on the other hand is that the scope of the writ petition only pertains to the license for installation of additional machinery and not to the license itself and hence the learned Single Judge is perfectly justified in permitting the writ petitioner to continue to function the metal crusher unit. 3. On behalf of some of the neighbours, Writ Petition No.34278 of 2008 was filed pointing out that the functioning of the unit causes serious pollution to the people residing in the locality. A serious contention is taken to the effect that the original writ petitioner functions the unit only on the basis of a provisional license issued by the Panchayat and the sole basis for the provisional license is the direction issued by the learned Single Judge in the judgment dated 17.4.2007 in W.P.(C) No.34413 of 2006. W.A.No.1140/2007 & con.cases 3 Sri.Kaleeswaram Raj, the learned counsel appearing for the neighbours submits that in view of the decisions in State of U.P. and another v Raja Ram Jaiswal and another (AIR 1985 SC 1108), Action Council v Benny Abraham (2002{9} SCC 493) and Manjapra Grama Panchayat v State of Kerala (1996(2) KLT 719), the statutory duty vested in the Panchayat under the provisions of the Kerala Panchayat Raj Act to consider the issue of license should not have been interfered with by the writ court or by any other authority. The learned counsel for the original writ petitioner, however submits that the neighbours cannot enlarge the scope of the writ petition, since the relief claimed in the writ petition is mainly for quashing clause-3 of Ext.P3. Ext.P3 is a circular issued by the Kerala State Pollution Control Board, dated 26.8.2003, wherein the impugned clause reads as follows:- “Expansion of Stone Crushers shall be permitted only if the present criteria for establishing Stone Crushers are satisfied”. 4. There are other prayers as well for closing the metal crusher unit, or “in the alternative to ensure that the same is shifted to remote place where there are no human inhabitance around a W.A.No.1140/2007 & con.cases 4 radius of 2 kms. from the crusher unit.” 5. It is not in serious dispute that the metal crusher unit has been functioning for around a decade. The main grievance essentially pertains to the alleged pollution caused by the unit. When the writ appeals were pending before this Court, the Division Bench, on 13.8.2007 passed an order to strictly comply with the instructions issued by the Pollution Control Board. Thereafter, by order dated 31.3.2008 on an application to modify the said order, the Division Bench permitted the unit to function till 6 p.m. as permitted by the Pollution Control Board. 6. In view of the serious issue regarding pollution which was disputed by the metal crusher unit, an Advocate Commission was deputed by this Court as per order dated 23.3.2009 in W.P.(C) No.34278 of 2007. The Advocate Commissioner has submitted a detailed report on 20th May 2009. According to the original writ petitioner, it is fairly clear from the report that the directions of the Pollution Control Board have been carried out. According to the learned counsel Sri.Kaleeswaram Raj, the report would show that there are so many houses in the neighbourhood and that there is pollution by way of noise and dust. 7. Having heard the learned Senior Counsel Sri.Ramkumar, W.A.No.1140/2007 & con.cases 5 Sri.Sahasranaman and Sri.Kaleeswaram Raj on behalf of those who oppose the functioning of the metal crusher unit and Sri.V.G.Arun, the learned counsel appearing for the unit, we are of the view that this Court, at this stage, should not go into the various factual and technical aspects of the matter. In any case the learned Single Judge has relegated the owner of the crusher unit to pursue the matter before the Tribunal for Local Self Government institutions. Being a Tribunal, the said forum will be in a position to look into and adjudicate all the factual and other aspects. Therefore, the writ appeals and the writ petition are disposed of as follows:- The original writ petitioner, the owner of the metal crusher unit may pursue the appeal against Ext.P11 in W.P.(C) No.34413 of 2006 before the Tribunal for Local Self Government institutions. If such an appeal is filed within one month from today, the same shall be treated as filed in time. In the appeal, all the party respondents, the Panchayat and the writ petitioners in W.P.(C) No.24278 of 2007 shall be impleaded as parties. The Tribunal shall independently consider the matter untrammelled by any of the observations and findings of the learned Single Judge or in the interim orders passed by the Division Bench. In the event of the W.A.No.1140/2007 & con.cases 6 appeal thus being filed by the unit, the same shall be disposed of within six months thereafter. The unit shall be permitted to function on a provisional basis since it has been functioning for around a decade, till the matter is finally disposed of by the Tribunal. We direct the Panchayat and the Pollution Control Board to conduct periodic inspection and to see that the directions issued by the Pollution Control Board are strictly carried out, so that there is no pollution by way of noise and dust at the premises. KURIAN JOSEPH, Judge K.SURENDRA MOHAN, Judge css/