IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 17040 of 2007(C) -------------------------------------- PETITIONER: ------------------ 1. M.P.ISSAC, AGED 56 YEARS, S/O PAILY, MUKKADAKKAL,MAMALA P.O., KAKKAD-05. 2. M.P.GORGE, AGED 51 YEARS, S/O PAILY, MUKKADAKKAL, MAMALA P.O., KAKKAD-05. 3. VIJU KUMAR K.V., AGED 32 YEARS, KARAYATHUMPARAMBIL HOUSE, MAMALA P.O., KAKKAD-05. 4. VINU KUMAR K.V., AGED 37 YEARS, KARAYATHUMAPRAMBIL HOUSE, MAMALA P.O., KAKKAD -05. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENTS: ----------------------- 1. THE THIRUVANIYOOR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, THIRUVANIYOOR, ERNAKULAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE DISTRICT MEDICAL OFFICER, ERNAKULAM. 4. THE KERALA STATE POLLUTION CONTROL BOARD, PATTOM, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. 5. M/S. P.T. MATHAI CONSTRUCTION COMPANY, K.V.60/2, PANAMPILLY NAGAR, KOCHI-36, REPRESENTED BY ITS MANAGING DIRECTOR. 6. THE SUPERINTENDENT OF POLICE RURAL, ALUVA. BY ADV. SRI.PHILIP T VARGHESE, SRI.K.L.VARGHESE SRI.A.K.HARIDAS,ADV.COMMR SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR SRI.THOMAS T.VARGHESE BY GOVERNMENT PLEADER SRI.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C0 NO.17040/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE SKETCH OF THE MAMALA HOUSING COLONY SCHEME. EXT.P2:- COPY OF THE MASS PETITION SUBMITTED BY THE LOCAL RESIDENTS TO THIRUVANIYOOR GRAMA PANCHAYAT. EXT.P3:- COPY OF THE JUDGMENT IN WP(C) NO.34252/06 DT. NIL. EXT.P4:- COPY OF THE WRITTEN SUBMISSION MADE BY PETITIONERS. EXT.P5:- COPY OF THE PROCEEDINGS DT. 30.4.07. EXT.P6:- COPY OF THE REMINDER SENT BY THE PETITIONER. EXT.P7:- COPY OF THE LICENCE ISSUED TO THE 5TH RESPONDENT. EXT.P8:- COPY OF THE CONSENT ISSUED BY THE POLLUTION CONTROL BOARD. EXT.P9;- COPY OF THE INCORRECT PLAN SUBMITTED BY THE 5TH RESPONDENT. EXT.P10:- COPY OF THE PLANT (SKETCH). EXT.P11:- COPY OF THE REPRESENTATION GIVEN TO PCB COMMISSION REPORT. EXT.P12:- COPY OF THE ORDER OF THE IST RESPONDENT. RESPONDENT'S EXHIBITS EXT.R5(a):- COPY OF THE CIRCULAR DT. 7.7.03 OF THE KERALA STATE POLLUTION CONTROL BOARD. EXT.R5(b):- COPY OF THE APPLICATION FOR LICENSE DT. 17.10.06. EXT.R5(c):- COPY OF THE PROCEEDINGS DT. 2.11.06 OF THE SIT RESPONDENT. EXT.R5(d):- COPY OF THE LOCATION SKETCH. EXT.R5(e):- COPY OF THE CONSENT TO ESTABLISH ISSUED BY KERALA STATE POLLUTION CONTROL BOARD. EXT.R5(f):- COPY OF THE CERTIFICATE DT. 4.1.07 OF THE DISTRICT MEDICAL OFFICER OF HEALTH ERNAKULAM ALONG WITH COPY OF THE SITE PLAN . EXT.R5(g):- COPY OF THE ORDER PASSED BY THE SIT RESPONDENT PANCHAYAT DT. 15.5.07. EXT.R5(h) (i):- COPY OF THE METAL CRUSHER EXT.R5(h)(ii):- COPY OF THE SHOWING THE CLOSE VIEW OF THE CRUSHER. EXT.R5(h)(iii):- COPY OF THE SHOWING THE CONSTRUCTION OF WOOD FABRICATION UNIT. W.P.(C) NO.17040/2007 EXT.R5(h)(iv):- COPY OF THE SHOWING CEMENT CONCRETE GUNNIING UNIT. EXT.R5(h(v):- COPY OF THE SHOWING BETTER VIEW OF THE GUNNIING UNIT. EXT.R5(h)(vi):- COPY OF THE SHOWING CAST IRON PIPES STACKED IN THE GUNNING UNIT. EXT.R5(h)(vii):- COPY OF THE SHOWING ENGINEERING WORK SHOP. EXT.R5(h)(viii):- COPY OF THE SHOWING JCB WORKING IN ADJACENT NEW PLOT. EXT.R5(h)(ix):- COPY OF THE SHOWING ACTIVITIES GOING ON FOR THE NEW PROJECT. EXT.R5(h)(x):- COPY OF THE SHOWING LARGE NUMBER OF TREES PROVIDING GREEN BELT. EXT.R5(i):- COPY OF THE CERTIFICATE DT. 11.6.07 ISSUED BY THE SECRETARY, THIRUVANIYOOR GRAMA PANCHAYAT. EXT.R5(j):- COPY OF THE CIRCULAR DT. 9.8.04 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD, THE 4TH RESPONDENT . /TRUE COPY/ P.A. TO JUDGE tss PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 17040 of 2007 ---------------------------------- Dated this the 25th day of March , 2008 JUDGMENT As amended , this Writ Petition under Article 226 filed by the four petitioners, who claim to be resident of Mamala housing colony within the limits of the first respondent – Thiruvaniyoor Grama Panchayat seeks the following prayers; i). To direct the first respondent Panchayat to forthwith communicate the order passed, if any, on the representation of petitioners pursuant to Ext.P3 judgment. ii). To direct the first respondent not to grant licence to the fifth respondent who have already been issued with the installation licence on the establishment of a concrete cement mixing factory. WPC No.17040/2007 2 Iii). To declare that the establishment of concrete cement mixing factory in the Mamala Housing Colony is arbitrary and illegal since the same would adversely affect the health of the people in the locality. iv). To direct the respondents not to establish the concrete cement mixing unit in the residential area and to establish the same elsewhere. vi) To direct respondents 3 and 4 to study the impact of establishment of the unit of the fifth respondent and file a report before this court. 2. The petitioners claim that they are residents of Mamala and their residences are located in what is known as the Mamala Housing Colony, which was developed for the purpose of establishing a residential Housing Colony. The southern side is WPC No.17040/2007 3 known as the 'Colony Road' from which branches out the 'Estate Road' and another road called 'the Quarry Road'. The area was divided into 68 plots under the Mamala Housing Colony Scheme. It is claimed that the petitioners are some among the residents of the Mamala Housing Colony. They allege that they have come to know that the fifth respondent has purchased 77 cents of land within the Mamala Housing Colony and intends to establish a cement concrete mixing plant on that property. According to the petitioners, their residential houses are situated within 15-45 meters of the proposed site of the property. The proposed factory, the petitioners contend, requires licence both from the Panchayat and from the Pollution Control Board, who are bound to ensure that the industry does not cause pollution and is not established in a densely populated residential area. On finding that works for establishing the factory was started by the fifth respondent, the petitioners submitted Ext.P2 representation before the respondent Panchayat. Since no action was forth coming, the petitioners approached this court by filing W.P.(C) No.34252/2006. This court was informed that licence is already granted and accordingly this court took the view that the prayer WPC No.17040/2007 4 to restrain issuance of licence has become infructuous. The writ petition was disposed of by passing Ext.P3 judgment. Under Ext.P3 judgment, the Panchayat was directed to take a decision on Ext.P2 with notice to the concerned parties. Pursuant to Ext.P3, the petitioners alone appeared before the Panchayat and narrated their grievances. Ext.P4 is copy of the written submission made by the petitioners before the Panchayat. Since the fifth respondent was absent, the petitioners requested that orders be passed against the fifth respondent accepting their version. Ext.P5 is copy of the minutes of the proceedings of the Panchayat Secretary pursuant to Ext.P3. Since the Panchayat did not pass any orders on the basis of the hearing conducted on 30.4.2007, Ext.P6 reminder was sent to the Panchayat. Despite Ext.P6, orders were not passed or communicated to the petitioners. In the meanwhile, the petitioners have obtained copies of the licence which had been issued by the Panchayat to the fifth respondent. Ext.P7 is a copy of that licence. Petitioners point out that Ext.P7 is only a licence for instalation of machinery and not for operating the factory. Similarly, the petitioners have produced Ext.P8 copy of the consent issued by the WPC No.17040/2007 5 Pollution Control Board and it is pointed out that Ext.P8 is only a consent to establish and not a consent to operate. The petitioners allege that there is a concerted effort by the statutory authorities to aid and abet in establishing the unit of the fifth respondent by all or any means. This is why the statutory procedure invoked by Section 232 of the Panchayat Raj Act are not being followed and the fifth respondent is being permitted toe establish a polluting factory in a densely populated residential area. The petitioners allege that the fifth respondent has prepared a sketch showing that there are no residential houses within 100 meters radius from their property and it is by making use of that plan that they could obtain consent from the District Medical Officer and the Pollution Control Board. Ext.P9 produced, the petitioners submit, is copy of the incorrect plan. Ext.P10 produced by the petitioners show actual number of houses, wells temples, etc. falling within the 100 meters radius. Ext.P10, the petitioner claims, is a correct plan. Ext.P11 is copy of the representation submitted by the petitioners to the Pollution Control Board requesting them to intervene in the matter. When this Writ Petition was originally instituted, there was no WPC No.17040/2007 6 prayer for quashing Ext.P7, P8 and P12. Ext.12 is a copy of the order passed by the first respondent Panchayat, pursuant to Ext.P3 and prayer to quash Exts.P7, P8 and P12 is got incorporated in the writ petition by filing an amendment application on receiving counter affidavit filed in this case. It is alleged that Ext.P12 has been passed on extraneous considerations. 3. The fifth respondent has filed a detailed counter affidavit. It is contended that the writ petition has been filed on the allegation that the directions in Ext.P3 judgment have not been complied with and therefore, the proper remedy available to the petitioners is to invoke this court's jurisdiction under Contempt of Court Act. The Panchayat has already passed orders pursuant to Ext.P3, copy of which is produced as Ext.R5 (f) dated 15.5.2007. In view of Ext.R5(f), the writ petition has become infructuous. Answering the allegation that Ext.P3 judgment was obtained by misleading in the judge that the Panchayat has already issued a licence to the fifth respondent for operating the factory, the petitioners contend that since Ext.P3 was passed after hearing the counsel for the Panchayat, the WPC No.17040/2007 7 proper remedy for the petitioners is to seek a review of Ext.P3. The counter affidavit repudiates the allegations in the writ petition that the fifth respondent unit is situated in a residential area by name Mamala Housing Colony. It is pointed out that the petitioners' allegations are bereft of bona fides since on the front side of their property a wooden fabrication unit has been erected by “Aryabhangi” for the purpose of cutting, sawing, plaining and fabrication of doors/window frames and shutters. On the rear side of the fifth respondent's property there is a 'metal crusher' already working and the same is crushing large rock pieces/boulders into different sizes of metal. On another side an Engineering work shop is being constructed . Just in front of the petitioners' house a cement gunniting work shop is operating. A good number of large size, C.I.pipes, machine, shed, etc. are clubbed there. These industrial units are invariably making noise pollution and sound pollution whereas our unit is fully mechanized and computerized which is not making any noise pollution or sound pollution. Ext.R5(f) report of the Panchayat Sub committee which was constituted for enquiring into the complaint submitted by the petitioners mention about the WPC No.17040/2007 8 existence of these industrial unit. The Sub Committee inspected 'Contour Ready Mix Concrete unit' and became convinced that the fifth respondent unit also will not cause any dust pollution or noise pollution. Decision has been taken to issue licence only on the basis of Non Objection Certificate from the Pollution Control. Board and the District Medical Officer. 4. The fifth respondent points out that in the previous writ petition ( W.P.(C) No.34252/2006 there was no plea of any Housing Colony or any Harijan Colony which is now taken up by the same petitioners in this writ petition. Even in the earlier writ petition which was sought to be amended there was no such plea. The present plea is purely an after thought. There is no Housing Colony or Harijan Colony. But it is understood that certain individuals had divided their property into plots to form a housing colony for finance from the bank. There is no registered or recognised housing colony and nor even a Co-operative Society so as to claim any privilege for colony. The fifth respondent has produced Ext.R5(a) circular issued by the Kerala State Pollution Control Board on 7.7.2003 shows that concrete batching plant like the one proposed by the fifth respondent falls WPC No.17040/2007 9 under list of industries under green category. Ext.R5(b) is copy application submitted by the fifth respondent for licence. Ext.R5 (c) is copy of the permissive sanction for installation of the Ready Mix Concrete Unit. Ext.R5(d) is the location map certified by the Kerala State Pollution Control Board. Ext.R5(d) will show that the first house from the plan is 85 meters away and second one is 101 meters and the third one is 100 meters away. Ext.R5 (e) is copy of the consent letter from the State Pollution Control Board. Ext.R5(f) is a letter from the Pollution Control Board granting consent to establish the unit. Ext.R5(f) is a copy of the report of the DMO saying that there is no possibility of sand or dust nuisance from the unit and no possible health hazards due to instlation of the proposed Ready Mix Concrete Unit. Ext.R5 (g) is a perfectly valid order and has been issued on the basis of very dependable materials. The counter affidavit goes on to repudiate each and every allegation levelled by the petitioners and the grounds raised by them. It is submitted that the consent of the Pollution Control Board and the District Medical Officer and the Panchayat has been issued only after physical verification by those authorities. It is pointed out that in Cochin WPC No.17040/2007 10 Corporation limits there are four ready mix concrete units operating and they are permitted only after field study and being satisfied that they do not cause pollution or nuisance. One of these units viz. CVC Ready Mix Concrete is set up at Kumbalam closely adjacent to the National Highway, another one at Panangad belonging to GA Construction Company which provides ready mix concrete for N.H.four lane work, yet another one Neptune ready Mix Concrete is in front of White Fort Hotel at Kundannur and near Hotel”Sarovaram' and yet another one, Contoor Ready Mix Concrete which is at Palachuvadu, just 2 km from Ernakulam Medical Centre Hospital, which is thickly populated area where lot of residential houses are there. Yet another one is Geo ready Mix Concrete near Varappuzha bridge. All these units are operating closely adjacent to the N.H. Through which there is heavy density of traffic to the tune of lakhs of people. However, there is no complaint or any hue and cry as the petitioners are now making against the fifth respondent. The very fact that large number of vehicles and pedestrians are passing through these places safely will show that there is no cause for any apprehension or anxiety. The counter affidavit WPC No.17040/2007 11 reiterates th contention against the claim in raised in the context of Mamala Housing Colony. The Kerala P.W.D. Has earmarked Mamala as the source for rubble and metal for all PWD works in and around Kochi. 5. The fifth respondent has filed I.A.7873/2007 for issuance of Commission and along with the affidavit in support of that I.A., the fifth respondent produced further documents to support their point that site of their factory is not a housing colony and that the plans produced by the petitioners are incorrect plans. Ext.R5 (h) series of photographs have been produced. Ext.R5(h (i) is photograph which shows that closely adjacent to the fifth respondent unit there is a metal crusher presently functioning. Ext.R5(h) (i) shows the office of that a metal crusher unit. Ext.R5(h) (ii) is photographs showing closer view of the fifth respondent's plant. Ext.R5 (h) (iii) is photograph which will show that close to the fifth respondent property, there is another industrial unit coming up understoodly owned by 'Arya Bhangi' for fabrication of wooden items. Ext.R5(h) (iv) photograph shows that apart from the wooden fabrication unit, there is another unit working on the left side of the fifth respondent unit which is a WPC No.17040/2007 12 cement concrete gunniting unit. Ext.R5(h) (v) is another photograph giving better view of the gunniting unit and the gate of the wood fabrication unit. Ext.R5(h)(vi) shows that even now Cast Iron pipes stacked in the gunniting unit are available in the plot closely adjacent to the fifth respondent plot, which is just in front of the first petitioner's house. Ext.R5(h) (viii) is photograph which would show that an engineering work shop of vehicles body building unit is coming up on the right side of the fifth respondent's plot. Ext.R5(h) (viii) photograph shows that JCB is working in the new plot which is far away from the fifth respondent's plot. Ext.R5(h) (ix) is photograph relating to adjacent plot and the same is relied on to show that a new project is coming up in a nearby plot. And the project appears to be a non residential one. Ext.R5 (h) (x) photograph is relied on to show that on the left side of the fifth respondent's property they have retained plants and trees and beyond that there are lot of other trees providing green belt and for the petitioners' house. In view of these plants, there is no dust or air pollution. Prayers in the commission application were the following; 1). Whether the first house is not 85 meters WPC No.17040/2007 13 away from the plant, second house 101 meters away and the third house 100 meters away. If not, what is the exact distance? 2). Whether there are as many as 50 buildings within 100 radius from the plant site as per Ext.P10 sketch submitted by the petitioners? If not how many residential houses? 3). Is it humanly possible to accommodate 40 residential plots and 10 other buildings, temples, wells etc. in 100 meters radius as indicated in Ext.P10 sketch and if not what is the actual position? 4). Is the Cochin – Madura N.H.Bypass within 100 meters from the plant? 5). Is there any shop or hotel within 100 meters from the plant, if so what type? WPC No.17040/2007 14 6). Is there a crusher unit in the adjacent plot, if so what is the distance to the plant of R5 ? 7). Are there other industrial units in the plots adjacent to the plant site, if so details ? 8). Is there any indication of any housing colony presently seen within 100 meters radious of the plot of R5 ? 6. Commission application was allowed and the Commissioner filed his report after conducting inspection twice in the presence of both sides. The Commissioner has reported on the aspects sought for by the respondents also and has produced a sketch also along with his report. The Commission report by and large is in favour of the fifth respondent. As against the claim that there are as many as 50 residential buildings within 100 meters radius from the plant site, the commissioner has reported that only four residential houses are there including one WPC No.17040/2007 15 hut in the road side. The Commissioner has reported that the Cochin – Madura N.H. is in a radial distance of 171.40 meters . The Commissioner has reported that the fifth respondent's version regarding the existence of the crusher unit in the adjacent plot is correct. The question as to whether there is any indication of any housing colony presently seen within the 100 meters radius of the plot of the fifth respondent, the commissioner reported that there are no indications. What was seen is only a plain land having 3 demarcated plots shown to the commissioner by the petitioners and they told him that it is intended for a housing Colony. The Commissioner has reported that the said plot are out side 100 meters radius of the fifth respondents' site. 7. The petitioners filed objection to the commission report. 8. The petitioners have produced additional documents . Ext.R5(i) is a certificate issued by the Panchayat to the effect that as per the records of the Panchayat, in Mamala area of the Panchayat there is not even a single registered housing colony. Ext.R5(j) circular of the Pollution Control Board is also relied on WPC No.17040/2007 16 to show that as per the norms of the Pollution Control Board, the distance in case of industry shall be measured from the main building or the building housing the equipment, operation or process of most pollution potential and that horizontal distance to the nearest residence shall be measured as 3 M minimum in the green category. It is highlighted that per the commission report distance to the nearest residential building is 70.10 meters from the plant where as second house is 112.20 M away and the third house is 159.00 meters away from the plant. As directed by me, the counsel for the Panchayat has produced the report of the sub committee of the Pancnayat which was constituted by the Panchayat for enquiring into the complaint submitted by the petitioners. It is seen that the sub committee consisted of the Vice President of the Panchayat, the Ward member representing the ward in which the factory is proposed to be established and two other ward members. and that the Sub Committee along with the President of the Panchayat visited several other similar concrete ready mix units in and around the Cochin City and became convinced that those units are not causing any sound or dust pollutions. On the basis of the inspection conducted by WPC No.17040/2007 17 them, the Sub Committee has reported that the density of population is less and that in proximity to the proposed factory, there is a metal crusher unit and a work shop unit is also functioning. More importantly, the Committee found that the Housing Colony, which is highlighted representation of the petitioners does not exist and that no Harijan colony also exists. The Committee has directed that waste disposal arrangement should be provided in the factory and that materials for running of the factory should be brought from outside and subject to those directions, the Committee has decided to grant installation permit. 8. Extensive arguments were addressed before me by the learned counsel for the parties. Sri.P.Sanjay, the learned counsel for the petitioners, Sri.K.L.Varaghese the learned counsel for the fifth respondent, Sri.Philip Varghese the learned counsel for the Panchayat and Sri.M.K.Chandramohan Das the learned Standing Counsel for the Pollution Control Board. 9. The main question which arises for consideration is whether Ext.P12 order of the Panchayat rejecting the representation submitted by the petitioners is vitiated to the WPC No.17040/2007 18 extent of being corrected in judicial review by this court. That question has to be answered in the negative. I am convinced that the process by which Ext.P12 decision was arrived at has been by proper. The Sub Committee was constituted in the Panchayat for conducting an eqnuiry and it is seen that the Sub committee conducted a meaningful enquiry by visiting units in different parts of the Cochin city, apart from inspecting the factory site and its adjacent premises. The decision which is based on the sub committee's report, in my opinion, is reasonable and does not warrant any interference. It is seen that the Pollution Control Board has issued consent to establish the unit after holding enquiries and by incorporating necessary safeguards in the context of the pollution potentials of the unit. The unit comes within the green category and the pollution potentiality is minimum. Going by the records, the statutory authorities viz. the Panchayat and the Pollution Control Board have acted within the contours of the statute. 11. I am not inclined to grant the reliefs sought for. But, at the same time , I make it clear that,if it is seen that the fifth respondent is violating the conditions of licence issued to them WPC No.17040/2007 19 by the Panchayat for operating the factory or the consent to operate which may be issued to them by the Pollution Control Board, it is always open to the petitioners to approach the Panchayat and the Pollution Control Board and seek redressal of their grievances. The Writ Petition is dismissed with observations and without any cost. PIUS C. KURIAKOSE, JUDGE. dpk