IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 6TH JUNE 2007 / 16TH JYAISHTA 1929 WP(C).No. 23928 of 2006(W) -------------------------- PETITIONER: ------------ M/S.PORIYATH LATEX, MALLIKASSERY P.O., PAIKA, PALAI, KOTTAYAM DISTRICT, REPRESENTED BY ITS PROPRIETOR, MR. TOMY FRANCIS. BY ADV. SRI.JOBI JOSE KONDODY SRI.V.GIRI RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, (CHAIRMAN OF SINGLE WINDOW CLEARANCE BOARD), COLLECTORATE P.O., KOTTAYAM-2, KOTTAYAM DISTRICT. 2. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, ST. ANTONY'S COMPLEX, NAGAMPADOM, KOTTAYAM DIST. 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, COLLECTORATE P.O., KOTTAYAM DISTRICT. 4. THE MEENACHIL GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, EDAMATTOM P.O., PALAI, KOTTAYAM DISTRICT. 5. THE SECRETARY, MEENACHIL GRAMA PANCHAYATH, EDAMATTOM P.O., PALAI, KOTTAYAM DISTRICT. Addl. 6. VILAKUMADAM EAST RURAL DEVELOPMENT SOCIETY (REGD.), CHATHAMKULAM, PO.MALLIKASSERY, KOTTAYAM DIST., PIN:686577, REP. BY ITS PRESIDENT, T.K.PRABHAKARAN NAIR. ADDL.6TH RESPONDENT IMPLEADED VIDE ORDER IN IA.14057/06 DT.11.10.06 WPC.23928/06 R1 & R3 BY GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA R2 BY ADV.SRI.M.K.CHANDRAMOHAN DAS, SC, PCB R4 & R5 BY ADV.SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL ADDL.R6 BY ADV.SRI.K.RAMAKUMAR SRI.MOHAN PULICKAL THIS WRIT PETITION (CIVIL) HAVING OME UP FOR ADMISSION ON 06/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. .......................................................... W.P.(C) No.23928 OF 2006-W ........................................................... DATED THIS THE 6TH JUNE, 2007 JUDGMENT The proprietor of a centrifuging-cum-latex creaming unit, a small scale industry has filed this Writ Petition under Article 226 of the Constitution, arraying the Chairman of the Single Window Clearance Board (SWCB) constituted under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act 1999 for Kottayam District, the Environmental Engineer of the Pollution Control Board, the District Medical Officer, the Meenachil Grama Panchayat and the Secretary of that Panchayat, seeking inter alia a direction to the 5th respondent-Secretary of the Panchayat either to renew Ext.P2 licence already issued for the year 2006-07 for operating a 50 HP electric motor or to issue a fresh licence; and a writ of mandamus commanding the 1st respondent-SWCB to issue a deemed Panchayat licence for running the petitioner's industry. 2. The petitioner states that the industry was established in the year 2004, after obtaining “Ext.P1 consent to establish” from the 2nd respondent-PCB. It is claimed that all necessary licences for establishing the unit including the Panchayat licence were obtained by him and Ext.P2 is copy of the Panchayat licence for the year 2005-06. WP(C)N0.23928 of 2006 -2- Ext.P3 is copy of the licence issued by the Rubber Board, valid upto 31.3.2007 for acquiring rubber for the proposed industry. The petitioner points out that as per Ext.P1, permission is given for processing 550 tonnes of field latex per month and on finding that 550 tonnes of latex is available in the local market, a 50 HP motor was installed so that the permitted quantity can be produced. Ext.P4 consent to operate, valid upto 31.12.2007, was obtained in this regard from the 2nd respondent-PCB. The petitioner complains that his application for renwal of Ext.P2 licence after its expiry has not been considered by the 5th respondent due to political animosity. It is alleged that due to the change in the political colour of the Committee governing the Panchayat after Ext.P2 licence was issued, licence is not being renewed due to the reason that the petitioner does not owe allegiance to the political group presently at the reigns in the Panchayat. Ext.P5 letter dated 7.9.2005 was submitted by the petitioner to the Panchayat for renewal of licence by way of permitting him to operate 50 HP motor. After submitting Ext.P5 to the Panchayat, a minimum guarantee agreement Ext.P7 was executed with the K.S.E.B. for an amount of Rs.1,65,017/- and the petitioner has become obliged to pay the entire amount shown in the minimum guarantee agreement before the line is charged. Though after WP(C)N0.23928 of 2006 -3- submitting Ext.P7 to the K.S.E.B., the 5th respondent was approached several times seeking renewal of Ext.P2 with permission to operate 50 HP motor, the Panchayat declined such renewal and accordingly the petitioner approached the 1st respondent for obtaining deemed licence for running the industry. The petitioner claims that the matter was considered by the SWCB in several meetings and in the meeting held on 29.11.2005, the Committee after considering the matter in detail decided to issue Panchayat licence to the petitioner subject to production of energisation order from the Electrical Inspectorate. It is submitted that the President of the Panchayat was present in all these meetings of SWCB and Ext.P8 minutes of the meeting of the 1st respondent-SWCB dated 14.12.2005 is relied on. After obtaining energisation order, the matter was once again placed before the SWCB meeting held on 25.2.2006. In that meeting, on account of the objections raised by the President of the Panchayat, the SWCB decided to conduct a joint inspection in the unit by the General Manager, District Industries Centre and the 2nd respondent (Environmental Engineer of the PCB). Accordingly a joint inspection was conducted and a report was submitted before the SWCB. Ext.P9 is copy of the above joint inspection report dated 25.2.2006 in which it is stated that the plant installed by the petitioner does not generate pollution and that WP(C)N0.23928 of 2006 -4- the same is situated in the middle of land having an extent of 11.5 acres and that there are no residences within 100 metres of the unit. Under Ext.P9 the petitioner is directed to construct a compound wall having height of 1 foot for avoiding even the remote possibility of water flowing from the factory site to the nearby canal. Under Ext.P9 it is suggested that the SWCB issues deemed licence with appropriate directions regarding strict adherence to the conditions prescribed by the PCB. Upon Ext.P9 being placed before the meeting of the SWCB held on 16.6.2006, the matter was once again considered in detail and it was decided after hearing the 5th respondent also that the Panchayat be directed to issue licence to the petitioner upon the petitioner constructing compound wall on the western side of the unit as suggested in Ext.P9. Ext.P10 is copy of the minutes of the meeting of the SWCB held on 16.6.2006. The petitioner claims that as against the direction to construct compound wall having a height of 1 foot, he would construct compound wall height of 1 ½ feet at a length of 176 metres on the western side. Thereafter, the Assistant District Industries Officer, Palai inspected the construction of the compound wall and submitted Ext.P11 report dated 1.8.2006 to the General Manager, District Industries Centre. The petitioner is aggrieved in that even though the General Manager, DIC has placed Ext.P11 before WP(C)N0.23928 of 2006 -5- the SWCB, he has not been given renewal of licence by the 5th respondent and much less any fresh licence. In the meanwhile, Ext.P12 notice dated 14.8.2006 was received by the petitioner from the Section Engineer of the K.S.E.B., requesting that electrical completion and test report for taking electrical energy be submitted at the earliest lest the Board should change UCM. Since Panchayat licence is mandatory for obtaining electrical completion certificate, a further representation Ext.P13 dated 23.8.2006 was submitted by the petitioner before the SWCB seeking issuance of a deemed Panchayat licence. The petitioner also relies on Ext.P14 certificate dated 12.8.2005 of the D.M.O. which is to the effect that from the public health point of view, there is no chance of any contamination from the unit. 3. Respondents 4 and 5 filed a detailed counter affidavit on 16.11.2006. I directed the 1st respondent to place Ext.P13 representation and all records relating to the petitioner's application for issuance of final recommendation under Section 8(3) of Act 5 of 2000 in the subsequent meeting of the SWCB and facilitate a decision whether to issue a final recommendation to the 4th respondent- Panchayat regarding issuance of licence to the petitioner. When copy of that interim order was produced before the 1st respondent, a WP(C)N0.23928 of 2006 -6- meeting of the SWCB was held and an order was passed rejecting the petitioner's application on the basis of the report of a Sub Committee which was constituted by the 1st respondent. Producing a copy of the minutes of the meeting held on 22.11.2006 as Ext.P16, the petitioner filed an application seeking amendment of the Writ Petition so as to incorporate the following prayers:- i) to quash Ext.P16; and ii) declare that Ext.P10 order passed by the Single Window Clearance Board is final and direct the 4th respondent-Panchayat to issue licence to the petitioner's unit for running the same with 50 HP motor. The amendment sought for was allowed. The petitioner has also produced Ext.P17 which is copy of the report of the Sub Committee on the basis of which Ext.P16 order was issued by the SWCB. The petitioner points out that the Sub Committee consisted of 5 members out of which 3 members were in favour of granting licence to him. The other two members who opposed the grant of licence to the petitioner were the President of the 4th respondent-Panchayat as well as an officer from the Additional District Magistrate's Office. It is contended that the President of the Panchayat who was all along opposing grant of licence to the petitioner's unit should not have been made a member of the Sub Committee constituted by the 1st respondent. It is also contended that Act 5 of 2000 does not confer powers on the 1st WP(C)N0.23928 of 2006 -7- respondent to constitute a Sub Committee after final orders are passed by the SWCB. It is pointed out that Ext.P16 order was passed by the SWCB in gross violation of the directions of this Court in Ext.P15 interim order. The petitioner complains that this Court directed the SWCB to hear the petitioner and though the petitioner and his representative were present on the date of hearing, the petitioner was not permitted even to enter into the meeting hall nor was he heard before the order was passed. 4. As already stated even prior to the amendment respondents 4 and 5 filed counter affidavit denying the averments in the writ petition and repudiating the grounds raised therein. Ext.R4(a) produced along with the counter affidavit is a copy of the licence application dated 17.12.2003 submitted by the petitioner for storage of rubber latex in his building having Door No. V/329-A. It is submitted that licence was granted as per Ext.R4 (a) for one year and thereafter renewed for the year 2004 – 05. Ext.R4 (b) is a copy of fresh application dated 2.3.2005 submitted by the petitioner for using 5 HP electric motor in his establishment. Ext.R4(b) application was also allowed by the Panchayat. The counter affidavit states that the Panchayat has no objection for renewing the licence granted pursuant to Ext.R4 (b) which is a licence for using 5 HP electric motor. What WP(C)N0.23928 of 2006 -8- the Panchayat is opposed is the request of the petitioner that his establishment which is presently one for latex collection be converted as centrifuged Rubbery Latex factory by erecting plant and machinery and by using 50 HP motor electric energy. The counter affidavit very stiffly denies the allegation that it is on account of political rivalry that the present Panchayat Committee controlled by the UDF is harassing the petitioner. It is pointed out that the petitioner himself belongs to the UDF and is a Block Secretary of the Congress I Party. The counter affidavit further points out that when Ext.R4 (b) application was submitted by the petitioner, he had not constructed the factory building nor had he installed the machinery for manufacturing centrifuged rubbery latex factory. Subsequent to Ext.R4 (b) application, the Panchayat received a mass petition signed by 568 persons belonging to the locality. Ext.P2 licence is not a licence issued by the Panchayat for 50 HP Centrifuged Rubber latex factory with its plant and machinery. It is a licence for using 5 HP motor only. Apart from submitting mass petition, the DYFI activists of the locality staged dharna in front of the Panchayat office. The Human Rights and Nature Protection Society functioning at Edamattom within the area of the Panchayat also submitted another mass petition signed by 250 persons. Lot of complaints regarding contamination of the water in WP(C)N0.23928 of 2006 -9- the nearby Ponnozhukum Thodu and the well constructed by the water authority for supplying water to the residents of the locality were raised. Pursuant to these complaints the Secretary of the Panchayat conducted inspection which revealed that the petitioner who had been permitted to erect and use 5 HP motor had not then far erected such motor at all. Therefore a notice was issued to the petitioner, who submitted Ext.R4(c) undated reply undertaking that he will not erect or operate any machinery without prior permission from the Panchayat in that regard. The counter affidavit refers to Section 233 (1) of the Panchayat Raj Act and submits that it is obligatory that the permission of the Panchayat is obtained before the factory is constructed and machineries are installed. Ext.P4 licence was obtained by the petitioner even before the Panchayat had been moved for permission to construct the factory building. It is contended that Ext.P5 is a highly misleading application. It is not an application for construction of factory and for installation of machinery as contemplated under Section 231, which are to be submitted in prescribed form giving prescribed details. On coming to know that Ext.P8 decision was taken by the SWCB to recommend the issue of licence to the petitioner the Panchayat Committee resolved on 11.1.2006 vide Ext.R4 (e) decision to request the SWCB to cancel WP(C)N0.23928 of 2006 -10- Ext.P8 decision. It was pursuant to Ext.R4 (e) that SWCB in its meeting held on 25.2.2006 decided to conduct joint inspection of the proposed site by the General Manager and the Environment Engineer of the Pollution Control Board. Even though the District Collector who is the Chairman of the SWCB had directed the members of the Joint Inspection Committee to inform the Panchayat also before the inspection is conducted the Panchayat was never informed about the inspection. The Panchayat was not permitted to participate in the inspection. The objection raised by the Panchayat and the local residents who had gathered near the property during inspection were not considered at all. It is alleged that the inspecting Committee did not inspect the well and pump house which is situated hardly 60 meters from the site. Ponnozhukum thodu which is main water channel of the Meenachil river passing hardly 60 meters away from the site is described in the report as a canal. Considering all these, Ext.R4(f) objection was submitted to the Chairman of SWCB by the Panchayat on 23.3.2006. On 31.1.2006 the Grama Sabha of Ward No. V of the Panchayat where factories proposed to be started took a unanimous decision not to grant licence to the petitioner for starting rubber latex factory and to submit a mass petition to the District Collector. After receipt of Ext.P9 inspection report, meeting of SWCB WP(C)N0.23928 of 2006 -11- was convened on 16.6.2006. In that meeting Ext.R4 (g) objection dated 15.6.2006 was submitted by the President of the Panchayat. Ignoring Ext.R4(g) SWCB took Ext.P10 decision. The counter affidavit points out that after Ext.P10, the petitioner filed a further application dated 5.7.2006 even before the direction in Ext.P10 regarding construction of compound wall had been complied with. On that application the Panchayat committee took Ext.R4 (h) decision on 10.7.2006 deciding not to issue licence for starting the factory at the proposed site. Thereafter, SWCB decided to schedule meeting on 25.8.2006. But the notice regarding that meeting was sent to the President of the Panchayat only on 23.8.2006, as a result of which the notice was received in the Panchayat office only on 26.8.2006. It is contended that the primary authority to grant permission for construction of factory or for installation of the machinery is the Panchayat itself. The petitioner is not entitled to approach the SWCB directly bypassing the statutory authority under the Panchayat Raj Act. Ext.P14 certificate issued by the DMO is challenged stating that the DMO to the best of the Panchayat's knowledge did not conduct any inspection and that certificate does not reflect consideration with application of mind to various series of objection which had been raised. As regards the petitioner's transaction with the KSEB, it is WP(C)N0.23928 of 2006 -12- contended that all the agreements with the KSEB and other authorities are executed by the petitioner without obtaining permission from the Panchayat under Section 233(1) for construction of factory or installation of machineries. The factory has been constructed and plant and machineries have been installed, it is pointed out, in violation of undertaking in Ext.R4(c). It is then submitted that on 15.6.2006 the President of the Panchayat submitted a representation to the District Collector, who is also the Chairman of SWCB, about the secret inspection by the District Industries' General Manager and by the 2nd respondent and about delayed dispatch of the notice of intimation regarding the meeting held on 25.8.2006. The District Collector, being convinced, directed not to issue deemed licence on the strength of Ext.P10 and decided to hear the objection of the Panchayat and the residents. SWCB will be considering the issue after inspection of the site by the District Collector. 5. Ext.P15 interim order was passed by this court considering the above counter affidavit and after hearing the parties. After amendment of the writ petition, the respondents 4 and 5 have filed another counter affidavit on 20.1.2007. It is contended that Ext.P16 order is not a final order and that the petitioner has an effective and efficacious alternative remedy by way of appeal before the State Board WP(C)N0.23928 of 2006 -13- under Section 11 of the Act. Referring judgments of this court in Valsamma Thomas v. Additional District Magistrate (1997 (2) KLT 979) and Geetha Timbers v. State of Kerala (1990 (1) KLT 402(FB) , it is pointed out that judicial review, which is contemplated in exercise of the powers under Article 226, is not a review of the decision of the administrative authority, but the same will be confined to the examination of the decision making process to ensure whether the petitioner received a fair treatment. Several disputed questions of fact such as whether the functioning of the proposed centrifuged Rubber Latex factory will cause pollution to the drinking water in the well and the pump house situated nearby, thereby contaminating water in the nearby Ponnozhukum Thodu, all of which require elaborate consideration based on evidence will arise. The appellate authority under Section 11, it is pointed out, is vested with ample power to take evidence and finally decide the issue on the basis of materials placed before it. It is then contended that Ext.P8 decision was taken by the SWCB without consulting the local authority and without knowing the views of the Panchayat and that since Ext.P10 decision is based on Ext.P8 recommendation, Ext.P10 is also unsustainable and this was why it was decided to appoint a Sub Committee for inspecting the site for submission of a report. This WP(C)N0.23928 of 2006 -14- Court passed the interim order after perusing the entire files and records of the SWCB and finding that Ext.P10 had not attained finality. The Sub Committee, it is stated, visited the site, heard the objections of the residents and submitted Ext.P17 report. Ext.P17 was considered by the SWCB at its meeting on 22.11.2006 which discussed the report. The members agreed with the views of the Additional District Magistrate and the Panchayat President and finally decided to reject the application for licence. Ext.P16 decision is the final decision under Section 10 of Act 5/2000. The counter affidavit goes on to reiterate most of the contentions raised in the counter affidavit which had been filed prior to the amendment of the Writ Petition. Documents Exts.R4(a) to R4(g) are once again marked and the contentions raised against the report of the D.M.O. and those raised in the context of Section 233(1) of the Panchayat Raj Act are also reiterated. It is alleged that the Writ Petition is filed stating incorrect facts, making misleading statements, false averments and by suppressing material facts. It is even prayed that suo motu action be initiated for filing false affidavit regarding his own political allegiance. Ext.R4(i) which is copy of the list of office-bearers of the Bharanganam Block Congress (I) Committee is produced along with a separate I.A. to bring home the contention that the petitioner is an office-bearer of WP(C)N0.23928 of 2006 -15- the Block Committee of the Congress Party which is a constituent of the U.D.F. 6. M/s.Vilakkumadam East Rural Development Society through its President Sri.Prabhakaran Nair was impleaded as the additional 6th respondent upon an application filed by them stating that the establishment of the factory proposed by the petitioner would generate immense water, air and noise pollution, deleteriously affecting the peaceful and healthy life of the villagers, the inhabitants of Ward Nos.4, 5, 6, and 7 of the Panchayat and that the Society and similar units affiliated to the Vanchinad Community Centre have been spearheading the opposition against the proposed factory from the beginning and therefore is interest in the Writ Petition. The additional 6th respondent has filed a counter affidavit supporting all the contentions raised by the Panchayat through their counter affidavit. Ext.R6(a) copy of a representation dated 19.8.2005 submitted by Vanchinad Community Centre against the proposal to establish the factory is produced. Ext.R6(b) is copy of another representation submitted by the residents of Ward No.5 of the Panchayat on 17.12.2005. Ext.R6(c) is copy of the minutes of the meeting of the Grama Sabha of Ward No.5 of the Panchayat wherein it was resolved to submit a petition to the District Collector against the establishment WP(C)N0.23928 of 2006 -16- of the factory by the petitioner. It is claimed that the Panchayat enquired into the grievances and objections aired by the Villagers and found that their fears were well-founded and it was after having been fully convinced of the possible health hazards resulting from the functioning of the factory that the Panchayat decided not to grant licence to the petitioner. The counter affidavit refers to Schedule-III of the Panchayat Raj Act and points out that it is the mandatory function of the Panchayat to preserve and improve public health and ensure environmental hygiene and also to ensure proper water supply for satisfying the needs of the villagers. The Ponnozhukum thodu which flows just 60 metres away from the proposed factory site is the main water channel which caters to the water needs of the inhabitants of ward Nos.4, 5 and 6 of the Panchayat. The well and the pump- house of the Vilakumadam Drinking Water Supply Scheme supplies water to the inhabitants of these Wards as also to various other institutions in the neighbourhood situated very near to the proposed site. It is contended that issuance of Ext.P1 consent by the Pollution Control Board will not entitle the petitioner to get licence from the Panchayat automatically. The Panchayat cannot turn blind and deaf to the outcries of the public. Section 232 of the Panchayat Raj Act is referred to and it is contended that for manufacture, storage and sale WP(C)N0.23928 of 2006 -17- of rubber and rubber products, a licence is required and the Kerala Panchayat Raj (Dangerous and Offensive Trades and Factories Licensing) Rules is necessary from the Panchayat. It was for the petitioner to have obtained permission from the Panchayat before obtaining clearance certificate from other statutory authorities. It is well within the powers of the Panchayat to decide whether permission should be granted or not for establishing a factory upon consideration of fact-situation from the perspective of public interest and the judgment of the Supreme Court in Action Council v. Benny Abraham (2002 (2) KLT 228) is referred. 7. Hearing the submission of the learned counsel for the petitioner that the directions of this Court in Ext.P15 interim order were