IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 WP(C).No. 18372 of 2011(V) ---------------------------------- PETITIONER(S): ------------------- TESLY, S/O.NICHOLAS, MARAPARAMBIL HOUSE, CHIRAKKAKOM, VARAPUZHA P.O., ERNAKULAM DISTRICT. BY ADVS. SRI.P.K.RAVISANKAR SRI.T.K.RADHAKRISHNAN RESPONDENT(S): -------------------- 1. SUB INSPECTOR OF POLICE, VARAPUZHA, ERNAKULAM DISTRICT, PIN-683517. 2. THE SECRETARY, VARAPUZHA GRAMA PANCHAYATH, VARAPUZHA-683517. 3. DEEPU KRISHNAN, S/O.KRISHNAN, MALLANPARAMBIL HOUSE, PUTHENPALLIKKARA, VARAPUZHA P.O., ERNAKULAM DISTRICT, PIN-683517. R1 BY GOVT. PLEADER SMT.C.M.CHARISMA R2 BY ADVS. SRI.A.J.R.VARGHESE SRI.SREELAL N.WARRIER R3 BY ADV. SRI.T.S.RAJAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 18372/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE BUILDING PERMIT NO.B1-447/09-10 DATED 23/04/2010 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF THE LICENSE NO.328/10-11 DATED 28/10/2010 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF CONSENT LETTER DATED NIL ISSUED BY THE NEIGHBOURING LAND OWNERS. P4: COPY OF RECEIPT NO.41 DATED 04/05/2011 ISSUED BY 2ND RESPONDENT. P5: COPY OF ACKNOWLEDGEMENT ISSUED BY DEPARTMENT OF INDUSTRIES GOVERNMENT OF KERALA DATED 20/01/2011. P6: COPY OF THE COMPLAINT DATED 02/07/2011 MADE BEFORE THE 1ST RESPONDENT. P7: COPY OF RECEIPT NO.206/2011 DATED 02/07/2011 ISSUED BY 1ST RESPONDENT. P8: COPY OF THE LETTER DATED 08/06/2011 ISSUED BY THE 2ND RESPONDENT. P9: COPY OF MINUTES OF THE PANCHAYATH DATED 05/07/2011. P10: COPY OF THE CIRCULAR DATED NIL ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO LOCAL SELF GOVERNMENT INSTITUTIONS. P11: COPY OF THE SKETCH SHOWING THE WORKING OF THE OIL SEPARATOR. RESPONDENT'S EXHIBITS: R3(1):COPY OF THE PROPOSED SITE DATED 13/07/2011. R3(2):COPY OF THE COMPLAINT FILED BEFORE THE PANCHAYATH DATED 04/06/2011. svs .............2/-.... ...2... WPC. NO.18372/2011 R3(3):COPY OF THE RECEIPT ISSUED BY THE PANCHAYATH R3(4):COPY OF THE APPLICATION FILED BEFORE THE PANCHAYATH ASPER RTI ACT DATED 12/07/2011. R3(5):COPY OF THE RECEIPT ISSUED BY THE PANCHAYATH R3(6):COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE DISTRICT COLLECTOR. R3(7):COMPLAINT FILED BEFORE THE DISTRICT MEDICAL OFFICE DATED 10/06/2011. R3(8):COPY OF THE COMPLAINT FILED BEFORE THE POLICE STATION DATED 13/06/2011. R3(9):COPY OF THE COMPLAINT FILED BEFORE THE POLLUTION CONTROL BOARD DATED 08/07/2011. R3(10):COPY OF THE RECEIPT ISSUED BY THE POLUTION CONTROL BOARD DATED 12/07/2011. R3(11):COPY OF THE LETTER FROM PRIMARY HEALTH CENTRE (PHC), VARAPUZHA TO THE SECRETARY OF THE VARAPUZHA GRAMA PANCHAYATH DATED 29/06/2011. R3(12):COPY OF THE LETTER NO.B1 4730/2011 ISSUED BY THE VARAPUZHA GRAMA PANCHAYATH TO THE PETITIONER DATED 08/06/2011. R3(13):COPY OF THE LETTER NO.A1-5265/2011 ISSUED BY THE VARAPUZHA GRAMA PANCHAYATH TO THE ERNAKULAM DISTRICT MEDICAL OFFICER DATED 13/07/2011. /TRUE COPY/ P.A. TO JUDGE. svs PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------- W.P.(C) No.18372 of 2011 ------------------------------- Dated this the 23rd day of August, 2011. J U D G M E N T C.K.ABDUL REHIM, J. The petitioner had obtained a Building Permit from the 2nd respondent for construction of an Automobile Service Station, in 3 cents of property owned by him situated at Varapuzha in Ernakulam District. Ext.P2 is the licence issued by the 2nd respondent to the petitioner for running of the Service Station, after completing the construction. The petitioner had also obtained consent from the neighbouring land owners as per Ext.P3. He has submitted application for renewal of Ext.P2 permit and remitted the required free as evidenced from Ext.P4. The petitioner’s establishment was granted with registration from the Industries Department of the State Government as per Ext.P5. 2. It is stated that, the 3rd respondent had purchased 2 W.P.(C) No.18372 of 2011 property situated near to the Service Station from a person who had already given consent and signatory in Ext.P3 series. After purchasing the land, the 3rd respondent started objecting the functioning of the Service Station. He submitted complaints before various authorities. But having failed in his attempts to stop functioning of the Service Station, the 3rd respondent started to cause physical obstructions and hindrances to the conduct of the Service Station. Under such circumstances, the petitioner submitted Ext.P6 complaint before the 1st respondent seeking to afford police protection for running of the Service Station. Since no effective steps are taken by the 1st respondent, this writ petition is filed. 3. In the counter affidavit filed by the 3rd respondent it is contended that, Ext.P3 series of consents were obtained by suppressing material facts. It is also contended that the petitioner has not started operation of the Service Station, till date and that the construction is not yet completed. However, the allegations that the 3rd respondent had caused 3 W.P.(C) No.18372 of 2011 physical obstructions to the vehicles coming to the Service Station, is denied. All the allegations regarding obstructions and hindrances caused to the functioning of the Service Station are also refuted. It is further stated that, the 3rd respondent alongwith 25 others had submitted a complaint before the 2nd respondent Panchayat as per Ext.R3(2) and on the basis of such complaint a stop memo was issued to the petitioner by the Panchayat. It is stated that complaints were also submitted before the District Collector and the District Medical Officer, against establishment of the Service Station. Further contention is that, the 3rd respondent alongwith others had also raised objections before the Sub Inspector of Police as well as before the authorities of the State Pollution Control Board. 4. In the reply affidavit filed by the petitioner, the allegation regarding issuance of stop memo, is denied. On the other hand it is contended that, the 2nd respondent had only issued a letter as per Ext.P8, requesting the petitioner to produce ‘No objection certificates’ from the Pollution 4 W.P.(C) No.18372 of 2011 Control Board and the District Medical Officer. It is stated that, when the petitioner appraised the Secretary of the Grama Panchayat about the legal position regarding non requirement of any consent, the matter was referred to the decision of the Panchayat Committee. It is further stated that, in Ext.P9 the Panchayat Committee had resolved to refer the matter for opinion of the District Medical Officer and the State Pollution Control Board. According to the petitioner, since the Service Station is not one coming within the specified industries under Ext.P10 circular, no consent of the State Pollution Control Board or the District Medical Officer is required. 5. The 3rd respondent had filed an additional counter affidavit producing Ext.R3(12) which is the copy of the letter issued by the 2nd respondent to the petitioner intimating that the functioning of the Service Station should be stopped and requiring the petitioner to produce NOCs. It is also stated that the Panchayat had already referred the matter to the DMO for his opinion, as per the letter issued, 5 W.P.(C) No.18372 of 2011 Ext.R3(13). 6. The Secretary of the 2nd respondent Panchayat had filed a counter affidavit stating that the petitioner was specifically informed that the work could be started only after obtaining necessary certificates from the DMO and the Pollution Control Board. It is further stated that, a complaint was received from 25 persons of the locality and the matter was considered in the Panchayat Committee. The President of the Panchayat was authored to call both parties and to discuss the matter. Accordingly, the parties were heard personally by the President and the decision to seek opinion of the Pollution Control Board and DMO was taken on the basis of such personal hearing conducted. 7. During the course of proceedings we noticed that, Ext.P8 as well as Ext.R3(12) are copies of the letter issued by the 2nd respondent to the petitioner on the same day and both bear the very same reference number. But in contents, the operative portion are different. While Ext.R3 (12) contains a specific direction to stop functioning of the 6 W.P.(C) No.18372 of 2011 Service Station, it is lacking in Ext.P8. Under such circumstances, we ordered personal appearance of the 2nd respondent alongwith relevant office records and files. On a perusal of the files, we noticed office copies of both the letters issued on the same day which contained signature of the petitioner in acknowledgment of its receipt. Eventhough the ‘Despatch Register’ as well as the ‘Front office Register’ were produced, those registers do not contain any record regarding service of Exts.P8 or R3(12). But the 2nd respondent offered an explanation admitting that both the letters were issued on the same day, by hand to the petitioner. According to him, Ext.P8 was issued in the morning on the particular day. But on the basis of a local inspection conducted on the same day, it was revealed that there is truth in the allegations made by the objectors. Therefore, Ext.R3(12) was issued on the same day, directing to stop the work. The petitioner who was personally present before this Court on 19.8.2011, volunteered and admitted that Ext.R3(12) as well as Ext.P8 were issued on 7 W.P.(C) No.18372 of 2011 the very same day and he had acknowledged receipt of both the letters. According to him, Ext.R3(12) was issued first, directing to stop the work but when he raised protest and wanted to consult members of the Committee, the Secretary has issued a modified letter as per Ext.P8. Eventhough we express our dissatisfaction with respect to the manner in which the matter is dealt with by the 2nd respondent, we are not proposing to pursue any further action since we are convinced that there was no malafide or ill-motivated steps on the part of the 2nd respondent. 8. From the facts and circumstances as narrated above, it is evident that a complaint received against functioning of the Service Station is pending consideration before the Panchayat, and the Panchayat had directed the petitioner to produce NOCs from two authorities. It was left open to the petitioner either to comply with such direction, or to challenge the same if he was advised that such a direction was not legal and unsustainable. It is also evident that Ext.R3(12) letter was issued to the petitioner directing 8 W.P.(C) No.18372 of 2011 stoppage of the functioning, till such NOCs are obtained. It was also left open to the petitioner to challenge such instructions in appropriate proceedings. But we notice that no such challenge was made and no final decision has been taken by the Grama Panchayat on the subject of continuation of the licence already granted. Therefore, we are of the considered view that, interest of justice will be served by directing the 2nd respondent Panchayat to take a fresh decision on the matter within a time frame. 9. Eventhough Sri.P.K.Ravi Sankar learned counsel for the petitioner addressed arguments that the licence granted to the petitioner is cancelled and that he is entitled to continue operation of the Service Station, we are not inclined to grant any order directing police protection, in view of Ext.R3(12) and since the Panchayat is in seizin of the matter, as evidenced from the records. We think that in view of the conflicting directions in Ext.P8 and Ext.R3 (12), a fresh decision by the Panchayat Committee will be of more desirable. 9 W.P.(C) No.18372 of 2011 10. Under the above mentioned circumstances, the writ petition is disposed of directing the Varapuzha Grama Panchayat to take a final decision on the basis of Ext.P9, if necessary after affording further opportunity of personal hearing to both parties. Such decision shall be taken at the earliest possible, at any rate within one month from the date of receiving a copy of this judgment. 11. Needless to say that, if the petitioner is permitted continued operation of the Service Station, the 3rd respondent shall not cause any physical obstructions. In case any such obstructions is caused, it is for the 1st respondent to take necessary steps to avert such obstructions and to ensure smooth functioning of the Automobile Service Station. PIUS.C.KURIAKOSE, JUDGE C.K.ABDUL REHIM, JUDGE ami/