IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WP(C).No. 33914 of 2007(K) ----------------------------------------- PETITIONER: -------------------- EAPEN JOSEPH,VEPLUKUNNEL HOUSE, CHEMALAMATTOM PO, VIA KANJIRAPALLY, KOTTAYAM DISTRICT. BY ADV. SRI.KURIAN GEORGE KANNAMTHANAM (SR.) SRI.JOY C. PAUL SRI.DOMINIC JOHNSON SRI.VIJU ABRAHAM RESPONDENTS: ------------------------ 1. THE DISTRICT COLLECTOR, KOTTAYAM . 2. ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, KOTTAYAM. 3. POONJAR GRAMA PANCHAYAT, POONJAR P.O., PIN 686 581, REPRESENTED BY ITS SECRETARY. 4. BOBY THOMAS, MANAGING PARTNER, M/S. ARANGATH LATEX,ARANGATH HOUSE, ARUMANOOR PO. KOTTAYAM 686 5681. 5. GEORGE SCARIA,PARTNER M/S.ARANGATH LATEX ARANGATH HOUSE ARUMANOOR P.O., KOTTAYAM 6865681. Kss ..2/- ....2.... WPC.NO.33914/2007 K *ADDL.R6 TO R12 ARE IMPLEADED: R6. P.M.JOSE, AGED 71, SON OF MATHAI, PURAYIDATHIL MATTEL HOUSE, KOONDOOR VILLAGE, THIDANADU, KOTTAYAM DISTRICT, TRUSTEE, ST.JOSEPH CHURCH, VARIYANIKADU. R7. SR.MARIETTE C.M.C., MOTHER SUPERIOR, CARMEL CONVENT, THIDANADU, MEENACHIL TALUK. R8. SR.THRESSIAMMA P.V., PRINCIPAL, CARMEL RANI PUBLIC SCHOOL, VARIYANIKADU, THIDANADU, MEENACHIL TALUK. R9. LEELAMANI K.R., WORKER, ANGANVADI CENTRE NO.67, THIDANADU, MEENACHIL TALUK. R10. OMANA, WORKER, ANGANVADI CENTRE NO.119, THIDANADU, MEENACHIL TALUK. R11. P.S.GOPALAN, S/O.SHANKARAN, PEZHUMKATTIL HOUSE, THIDANADU, MEENACHIL TALUK. R12. SUDHAKARAN P.M., S/O.MADHAVAN, CHALIL HOUSE, THIDANADU, MEENACHIL TALUK. (*ADDL.R6 TO R12 ARE IMPLEADED AS PER ORDER DTD. 30/11/2007 IN I.A.NO.15510/07) R1 BY SR.GOVERNMENT PLEADER SRI. K.J.MOHAMMED ANZAR R3 BY ADV. SRI.ROJO J.THURUTHIPARA R4&R5 BY ADV. SRI.GEORGE POONTHOTTAM SMT.T.S.MAYA (THIYADIL) ADDL.R6TOR12 BY ADV.SRI.RAJESH NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33914/2007 K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF REPRESENTATION DTD. 9/04/2007. EXT.P2: COPY OF RESOLUTION DTD. 17/04/207 PASSED BY THE THIDANADU PANCHAYATH. EXT.P3: COPY OF REPRESENTATION DTD. 12/11/2007. EXT.P4: COPY OF CIRCULAR DTD. 20/06/2007. EXT.P5: COPY OF REQUEST DTD. 9/11/2007. EXT.P6: COPY OF REPLY DTD. 12/11/2007. EXT.P7: COPY OF REPLY DTD. 12/11/2007. EXT.P8: COPY OF PAPER REPORT APPEARED IN DEEPIKA DAILY DTD.19/04/2007. EXT.P9: COPY OF PAPER REPORT APPEARED IN DEEPIKA DAILY DTD.21/04/2007. EXT.P10: COPY OF PAPER REPORT APPEARED IN DEEPIKA DAILY DTD. 16/05/2007. EXT.P11: COPY OF APPEAL FILED BY PETITIONER BEFORE THE APPELLATE AUTHORITY. EXT.P12: COPY OF STAY PETITION FILED BY PETITIONER BEFORE APPELLATE AUTHORITY. EXT.P13: TRUE PHOTOGRAPHS 3RD RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF THE MINUTES DTD. 30/03/207 OF THE 3RD RESPONDENT PANCHAYATH. EXT.R3(B): COPY OF THE MINUTES DTD. 27/04/2007 OF THE 3RD RESPONDENT. 4TH RESPONDENT'S EXHIBITS: EXT.R4(A): COPY OF THE INJUNCTION ORDER IN I.A.NO.815/207 IN O.S.NO.157/2007 DTD. 25/10/2007. Kss ...2/- ....2.... WPC.NO.33914/2007 K EXT.R4(B): COPY OF THE CONSENT TO ESTABLISH UNDER ORDER SECTION 25 OF WATER (PREVENTION & CONTROL OF POLLUTION) ACT, 1974 AND SECTION 21 OF THE (PREVENTION & CONTROL OF POLLUTION) ACT 1981. EXT.R4(C): COPY OF THE NO OBJECTION CERTIFICATE DTD. 3/04/2007. EXT.R4(D): COPY OF THE CIRCULAR NO.24136(1)/R.A.1/07 DTD. 25/07/2007. EXT.R4(E): COPY OF THE LETTER DTD. 25/07/2007. EXT.R4(F): COPY OF THE ACKNOWLEDGEMENT DTD. 5/02/2007. EXT.R4(G): COPY OF THE LETTER NO.PCB/KTM/CE/304/2007 DTD. 28/06/2007. EXT.R4(H): COPY OF THE FIR NO.416 DTD. 21/11/207 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ERATTUPETTA. EXT.R4(I): PHOTOGRAPH OF THE SITE TAKEN AT THE TIME OF THE INSPECTION BY THE COMMISSION. EXT.R4(J): PHOTOGRAPH OF THE SITE TAKEN AT THE TIME OF THE INSPECTION BY THE COMMISSION. EXT.R4(K): COPY OF THE STATEMENT FILED IN WP(C) NO.36401/2007 DTD. 12/12/2007. /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 33914 OF 2007-K ----------------------------------------------- Dated this the 5th February, 2008 J U D G M E N T The petitioner, a resident of Poonjar Grama Panchayat/ third respondent, is aggrieved by the construction of a centrifugal latex factory by respondents 4 and 5 by the side of a stream by name Kokarani Thodu which passes through the boundaries of Poonjar Grama Panchayath and adjacent Panchayath of Thidanadu. According to the petitioner, Kokarani Thodu is the only perennial source of fresh water for thousands of residents of these two Panchayaths and if the proposed latex factory is permitted to function water in the Thodu will be polluted beyond tolerable limits thus affecting the lives of the people around the locality. The Thidanadu Panchayath has passed Ext.P2 resolution raising objections to the construction of the latex factory by respondents 4 and 5. The petitioner and several other persons in the locality have submitted representations highlighting the grievances before various authorities including the first respondent, District Collector, 2nd respondent Environmental Engineer,Kerala State Pollution Control Board, and the Panchayath and Ext.P1 is copy of the representation dated 9-4-2007. Since there was no action on the part of respondents 1 to 3, Ext.P3 representation dated 5-11-2007 was WP(C)No.33914/2007 -2- submitted before the Government. The petitioner then refers to Government Circular No.24136/R.A 1/07 LSGD dated 20-6-2007 copy of which is produced as Ext.P4. The petitioner submits that on the basis of Ext.P4 circular, if constructions were made on the strength of no objection certificate issued by the Panchayath, and the construction has not proceeded beyond the ground level, it is obligatory that a building permit as per the Kerala Municipalities Building Rules be taken out before the construction proceeds. Further it is pointed out that if the construction necessitates large scale removal of soil, it is necessary that the permission of the revenue Divisional officer is taken in the matter. Referring to Section 233 of the Kerala Panchayath Raj Act, the petitioner submits that the construction in so far as the same is for an industrial unit, is permissible only if a permission of the local authority under Section 233 of the Act is taken out before commencement of constructions. The petitioner relies on Exts.P5 and P6 requests for information under the Right to Information Act and reply received from the Panchayath to contend that the Panchayath has not granted any permission to respondents 4 and 5 for constructing factory building. The petitioner relies on Ext.P7, which is a copy of the reply received by the local Member of Parliament through whom also the petitioner had WP(C)No.33914/2007 -3- submitted a complaint before the District Collector. It is pointed out that according to Ext.P7, enquiry conducted by the District Collector through the Tahsildar has revealed that the proposed factory will cause environmental problems and that a direction has been issued to the 2nd respondent for conducting necessary enquiry in the matter. According to the petitioner, construction is going on very fast and for discharge of waste from the unit what the respondents 4 and 5 have provided is a pipe into the thodu. The petitioner relies on Exts.P8, P9 and P10 newspaper reports in Deepika daily to show that the issue has gained attention of the media. On the above averments, the petitioner raises grounds (a) to (g) and pray for the following reliefs: i) issue a writ of mandamus or any other appropriate writ order or direction, directing respondents 1 to 3 to stop the construction of the industrial unit M/s.Arangath Latex of respondents 4 and 5. 2. A detailed counter affidavit has been filed by respondent 4 and 5 wherein the maintainability of the writ petition and the very locus standi of the petitioner to institute the writ petition are seriously challenged. It is alleged that the petitioner is guilty of suppressing material facts while instituting the petition and is disentitled for any relief on that reason. On account of personal ill-will WP(C)No.33914/2007 -4- the petitioner had been attempting to prevent the work and commissioning of the unit by resorting to all sorts of tactics and the 4th respondent became compelled to approach the civil court. The Court has passed Ext.R4(a)injunction order against the petitioner and three others. It is pointed out that the police have registered two criminal cases against the petitioner accusing him of commission of waste and mischief on the 4th respondent's premises. The unit is not being constructed by the side of the Thodu as alleged. The constructions are at a distance of about 150 ft.from the banks of the thodu and there is effluent treatment plant which is located further away at a distance of 100 metres from thodu. The allegation that the factory will pollute the thodu is totally baseless and it is pointed out that the B.O.D. of the treatment plant is less than the prescribed 30 mg/l. The B.O.D.of the water flowing through the thodu is higher than 30 mg/l. It is further pointed out that the treated water is being used for washing the bowls and barrels used in the unit and the remaining water is used for irrigation purposes. Consent to establish the unit has been issued by the 2nd respondent and Ext.R4(b) is the copy of the consent. 3. As regards the resolution passed by the Thidanadu Grama Panchayat against the unit, it is contended that the resolution is WP(C)No.33914/2007 -5- absolutely irrelevant. The unit is being established in Poonjar Panchayat and what is relevant is the permission of that Panchayat. Ext.R4(c) N.O.C. Has been issued by the Poonjar Panchayat in favour of the 4th respondent. It is pointed out that at the time when Ext.R4(c) was issued, the Kerala Municipality Building Rules had not been extended to that Panchayat. The Kerala Municipality Building Rules were extended to Panchayats only with effect from 6-6-2007. Ext.R4 (d) is a circular issued by the Government regulating construction of buildings in Panchayat areas after 6-6-2007. It is pointed out in the counter affidavit that as mandated by Ext.R4(d) the 4th respondent had informed the Secretary of the Panchayat as early as on 27-7-2007 by Ext.R4(e) letter dated 25-7-2007 that the construction had started before 6-6-2007 and is in progress. The 4th respondent has also filed Ext.R4(f) acknowledgment issued by the Department of Industries, Kerala on 5-2-2007 against the memorandum filed by 4th respondent expressing its intent to set up centrifuged rubber latex manufacturing unit. Ext.P4, it is pointed out, cannot be of any consequence in this case since the circular which governs the present construction which has proceeded beyond the ground level is Ext.R4(d). The counter affidavit explains Ext.P6 as meaning only that what has been issued to the 4th respondent is not a permission but is a `no objection WP(C)No.33914/2007 -6- certificate'. Permission was not necessary since the construction started prior to 6-6-07. The counter affidavit points out that the unit is established in a very large plot having 6 acres in extent. As regards the allegation that the District Collector has been convinced about the pollution potentiality of the proposed unit it is submitted that Ext.P7 has been issued by the District Collector relying only on the report of the Tahsildar and it is pointed out that the collector has ultimately only forwarded the matter to the Enviornmental Engineer. Ext.R4(e) letter written by the Environmental Engineer to the District Collector is relied on in the counter affidavit. It is stated on the basis of Ext.R4(e) that consent to establish has been given to the 4th respondent with conditions for controlling the pollution from the unit as per rules once the unit is commissioned. Respondents 4 and 5 have filed an additional counter affidavit also. It is contended therein that the petitioner and 19 others trespassed into the site where the industry is being established and manhandled the supervisor with deadly weapons. Ext. R4(h) F.I.R. Registered by the Erattupetta Police is relied on in this context. It is submitted that the petitioner who was taken law into his hands is not entitled for the favourable exercise of discretion of this court under Article 226 of the Constitution of India. 4. The Panchayat has filed a separate counter affidavit. It is WP(C)No.33914/2007 -7- contended therein that Ext. R4(c) N.O.C. Was issued by the Secretary on the basis of the decision taken by the committee of the Panchayat relying on inspections of the construction site at various levels. The decision of the Panchayat Committee dated 30-5-2007 is relied on as Ext.R3(a). It was after the issuance of Ext.R4(c) that the inhabitants of the neighbouring Thidanadu Panchayat submitted a mass petition and on receiving that mass petition a joint committee was constituted including three members from each of the Panchayats. In the first sitting of the joint committee it was decided to enquire into the above mass petition and the enquiry is now on. At the moment there are no problems of atmospheric or air or water pollution. The Panchayat endorses the stand of respondents 4 and 5 regarding the building construction. It is pointed out that the 5th respondent has given intimation to the Panchayat regarding the construction in terms of Ext.R4(d) circular. According to the Panchayat the Kerala Municipality Buildings Rules are not applicable in the case of the present construction since the construction has proceeded above the ground level at the time of promulgation of Ext.R4(d). The Panchayat also points out that the constructions are being made at a distance of 150 ft. from the banks of Kokkarani Thodu and that the the Panchayat is yet to issue any licence to R4 and R5 for operating the factory and WP(C)No.33914/2007 -8- that such licence will be issued only in accordance with the provisions of the Act and and the Rules. The Panchayat specifically contends that apart from Ext.R4(c) N.O.C. Respondents 4 and 5 have no obligation to obtain any other permission from the Panchayat regarding the constructions of the building. The counter affidavit denies all the allegations which are levelled against the Panchayat and claims that the Panchayat is interested in the welfare of its citizens and assure through the counter affidavit that such interest will be taken care of by the Panchayat. 5. Additional respondents 6 to 12 who got themselves impleaded subsequently have filed a counter affidavit completely supporting the case of the writ petitioner and through that counter affidavit they highlight the hardship that will be occasioned to the general public on account of pollution if the factory is permitted to commence its operations. 6. I appointed Advocate Smt. T.S.Maya as Commissioner mainly for ascertaining the stage of the construction of the factory. The Commissioner submitted a report after executing the commission work. The commissioner's visit was on 22-11-2007. The Commissioner confesses in the report that she has not been able to ascertain the correct age of the constructions. However, the WP(C)No.33914/2007 -9- commissioner would state at paragraph (9) that “I cannot ascertain the exact age of construction. But it appeared to be newly constructed and I judge it to be constructed within 2 or 3 weeks”. It is a very detailed counter affidavit which has been filed by the 4th respondent by way of objections to the Commissioner's report. According to this counter affidavit the Commissioner has reported irrelevant matters which are absolutely beyond the terms of reference. Ext.R4(i) and R4 (j) photographs are relied on in this counter affidavit to show that the commissioner's version regarding the stage of construction is untrue. I shall immediately notice that it is clear from Ext.R4(j) that the photograph is obviously taken during the course of the commissioner's inspection. It is not clear from Ext.R4(i) as to when that photograph is taken. When both the photographs are considered together it can be seen that the constructions on the upper terrace of the site which has three terraces, has proceeded beyond ground level at the time of inspection by the Commissioner. In order to show that the writ petitioner is a person who takes law into his hands and who gives distorted version of facts before this court, copy of the statement filed by the Sub Inspector of Police in WP(C)No. 36401/07, a petition for police protection filed by the 4th respondent is produced as Ext.R4(k). 7. The Panchayat has filed an additional counter affidavit on 13- WP(C)No.33914/2007 -10- 12-2007 opposing the Commissioner's report and claiming that the constructions are all in conformity with law. 8. Separate reply affidavits have been filed by the writ petitioner to the counter affidavit submitted by the party respondent and the Panchayat. It is contended through the reply affidavit that Ext.R4(b) consent has been issued by the Pollution Control Board under the influence of the party respondent. Against R4(b) the petitioner has submitted Ext.P11 appeal and Ext.P12 stay petition before the Appellate Authority under the Water Act. 9. It was very extensive and strenuous arguments which were addressed before me by the learned counsel appearing for the parties viz., Kurian George Kannanthanam, Senior Counsel for the writ petitioner , Sri. George Poonthottam, learned counsel for the party respondents, Sri.Rojo Joseph Thuruthipara, learned counsel for the Panchayat, Sri.M.K.Chandramohandas, Standing counsel for the Pollution Control Board, Sri.Rajesh Nair, counsel for addl. noncontesting party respondents and the learned Government Pleader Sri. Mohammed Anzar. My attention was drown by Sri.Kannamthanam to Ext.P4 and R4(d) circulars. He would also refer to the counter affidavit submitted by third respondent and to section 233 of the Panchayat Raj Act and Rule 5 of the Kerala Panchayat Raj WP(C)No.33914/2007 -11- (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996. Sri.George Poonthottam would highlight that the petitioner has no locus standi to institute the present writ petition. The construction of building within the area of the Panchayat is a matter governed by the Panchayat Raj Act and after 6-6-2007 by the Kerala Municipilaty Building Rules. The statutory authority to regulate such construction is the Panchayat. The Panchayat takes the stand that the construction is in conformity with the statutory provisions. It is not for the petitioner, a person who resides far away from the construction site to urge before this court that the petitioner should take out a building permit under the Kerala Municipality Building Rules or that a separate permission under section 233(3) should be taken out by the petitioner. Referring to the submission of Mr. Kannamthanam that a licence in terms of rules 4 and 12 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules is absolutely necessary, Mr. Poonthottam would submit that the stage for issuance of a licence is after the building construction is over. 10. I have very anxiously considered the rival submissions addressed before me by the learned counsel for the parties. The principal reason on which the petitioner, an agriculturist residing within WP(C)No.33914/2007 -12- the area of the third respondent Panchcayat is opposing the establishment of the rubber latex centrifuging factory by respondents 4 and 5 is (as could be discerned from the pleadings and the various documents produced along with the writ petition) that the water in the Kokkarani Thodu which is said to be the principal source of drinking water in the Panchayat will be polluted. According to the petitioner a separate permission from the Panchayat ought to be obtained by respondents 4 and 5 under section 233(1) of the Panchayar Raj Act for construction of the factory building since the building is expected to accommodate and install the machinery for the proposed industrial unit. According to me, the question of construction of any building even if that building is intended to accommodate the installations and machinery of proposed industrial unit, is concerned is regulated by the provisions of the Panchayat Raj Act and if the construction is after the promulgation of G.O(MS) 150/07/LSGD dated 6-6-07 by the Government (after 6-6-07) governed by the Kerala Municipality Building Rules. Though the Government promulgated GO (MS) 150/07 on 6-6-2007 and thereby extended the provisions of the Municipality Building Rules to all Panchayats the Government has issued Ext.P4 circular dated 20-6-2007 and R4(d) notificaiton dated 25-7-07 in continuation of the Government Order and explaining the WP(C)No.33914/2007 -13- same. R4(d) circular to a great extent clarifies and explains GO(MS) No.150/07.LSGD dated 6-6-07. According to R4(d) on the date of that circular (25-7-07) construction of a building within a Panchayat area hich commenced prior to 6-6-07 on the strength of a NOC issued by the Panchayat, if has proceeded above the ground level will not be regulated by the Kerala Municipality Building Rules. As per clause 8 of Ext. R4(d) as regards such constructions it will suffice if the builder gives an intimation to the secretary of the Panchayat on or before 31- 8-07 to the effect that the construction which commenced prior to 6- 6-07 is continuing. The claim of the contesting party respondent is that the construction in question started as early as in April 2007. I do not have convincing materials before me showing as to when exactly the construction commenced. Even the Advocate commissioner appointed by this court has confessed that she is unable to say as to when exactly the construction started. But there are certain materials which will indicate that preliminary works regarding the construction of the factory building were done by respondents 4 and 5 in the month of April 2007 and at any rate prior to 6-6-07. Ext.P1 mass petition submitted by residents of Poonjar and Thidanadu Grama Panchayats on 9-4-07 and Ext.P2 resolution of the Thidanadu Panchayat dated 17-4-07 contains indications to that effect. Ext.P7 WP(C)No.33914/2007 -14- letter of the District Collector to the local Member of Parliament also states that the residents of the Thidanadu Grama Panchayat had submitted complaint as early as on 7-5-07 opposing to the construction of the factory. Exts.P8 and P9, two among the three newspaper reports relied on by the petitioner are respectively of 19-4- 07 and 21-4-2007. At least Ext.P8 gives an indication that the factory is under construction. The above documents in my opinion give support to the claim of the party respondents 4 and 5 that the constructions started prior to 6-6-07. On a conjoint reading of Exts.P4 and R4(d) it will be seen that in respect of constructions which commenced prior to 6-6-07 on the basis of no objection certificates (which in this case case is significantly issued by the Panchayat as early as on 3-4-07)if has already proceeded beyond ground level as on the date of Ext.R4(d), do not have to be regulated by the Kerala Municipality Building Rules. The question therefore which arises now is whether it can be said that the constructions in question had proceeded beyond the ground level as on the date of Ext.R4(d). As already indicated neither the Advocate Commissioner's report nor the photographs produced by either sides give conclusive assistance in the matter of resolving the above question. But I am inclined on the facts and circurmstances of this case to accept the version of the local WP(C)No.33914/2007 -15- authority that the construction does not offend any rule and that the petitioner does not have to take out a building permit under the Kerala Municipality Buildings Rules since the constructions commenced prior to 6-6-07 and had proceeded beyond the ground level as on 25-7-07. Importantly the petitioner does not have a case that the proposed construction violates any rule among the Kerala Municipality Building Rules or any provision of the Kerala Panchayat Raj Act such as section 220(b) which directly regulates construction of buildings. The submission of the learned counsel for the party respondents 4 and 5 that the on going constructions do not offend any provision of law and much less the Kerala Municipality Building Rules was not seriously disputed before me by the learned senior counsel for the petitioners or by the counsel appearing for respondents 6 to 12. If that be so, the insistence of the petitioner that respondents 4 and 5 ought to have taken out a building permit under the Kerala Municipality Building Rules over and above Ext.R4(c) NOC is of academic importance only and hence not justified. 11. The question which arises next is whether it is necessary that respondents 4 and 5 should take out a licence under section 233 or under rules 4 and 12 of the Kerala Panchayat Raj (Issuance of licence to Dangerous and Offensive Trades and Factories) Rules and WP(C)No.33914/2007 -16- whether it is obligatory that such licence or permission should be taken out by respondents 4 and 5 even prior to construction of the factory in view of section 233(1). I am inclined to decide the 2nd limb of the above question against the petitioner and in favour of respondents