Kerala High Court
Sakeer Hussain vs State Of Kerala on 11 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 11TH DAY OF AUGUST 2021/20TH SRAVANA, 1943
WP(C) NO. 24756 OF 2019
PETITIONER:
SAKEER HUSSAIN,
AGED 37 YEARS,
S/O ABBAS RAWTHER, THARAYILVEEDU,
PULIKULAM, SOORANADU NORTH.P.O,
KUNNATHUR, KOLLAM-690561.
BY ADVS.
SRI.VINOY VARGHESE KALLUMOOTTILL
KUM.A.V.AISWARYA
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT,
THIRUVANANTHAPURAM-01.
2 DEPUTY DIRECTOR OF PANCHAYATH,
OFFICE OF DEPUTY DIRECTOR OF PANCHAYATH,
NEAR COLLECTORATE, KOLLAM-691013.
3 ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
DISTRICT OFFICE, USHUS BUILDING,
NEAR BIG BAZAR,
KOLLAM-691008.
4 SOORANADU NORTH GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
OFFICE OF SOORANADU NORTH GRAMA PANCHAYATH,
SOORANADU SOUTH.P.O, KOLLAM-690561.
5 ANANDAN,
AGED 51 YEARS,
S/O GOPALAN, VILAYILAYYATHU VEEDU,
PULIKULAM MURI,
KUNNATHOOR, SOORANADU VADAKKU VILLAGE,
KOLLAM-690561.
WP(C) No.24756/2019 & 28308/2020
:2 :
BY ADVS.
SRI.M.R.SASITH
SMT.N.P.ASHA
SRI.T.NAVEEN, SC
BY SR.GOVERNMENT PLEADER SMT.SURYA BINOY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.08.2021, ALONG WITH WP(C).28308/2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 11TH DAY OF AUGUST 2021/20TH SRAVANA, 1943
WP(C) NO. 28308 OF 2020
PETITIONER:
ANANDAN,
AGED 52 YEARS,
S/O.GOPALAN, VILAYILAYYATHU VEEDU,
PULIKULAM MURI, KUNNATHOOR,
SOORANADU NORTH P.O., KOLLAM-690 561.
BY ADV N.P.ASHA
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
2 ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
DISTRICT OFFICE, USHUS BUILDING,
NEAR BIG BAZAR, KOLLAM-691 008.
3 THE TAHSILDAR, TALUK OFFICE,
KUNNATHUR, KOLLAM-690 561.
4 THE DISTRICT COLLECTOR,
CIVIL STATION, KOLLAM-691 013.
5 SOORANADU NORTH GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY,
SOORANADU NORTH P.O., KOLLAM-690 561.
6 VILLAGE OFFICER,
VILLAGE OFFICE, SOORANADU NORTH P.O.,
KOLLAM-690 561.
7 GEOLOGIST,
MINING AND GEOLOGY DEPARTMENT,
KOLLAM-691 008.
8 GENERAL MANAGER,
DISTRICT INDUSTRIES CENTER,
ASHRAMAM, KOLLAM-691 008.
WP(C) No.24756/2019 & 28308/2020
:4 :
9 SAKEER HUSSAIN,
AGED 38 YEARS,
S/O.ABBAS RAWTHAR, THARAYILVEEDU,
PULIKULAM, SOORANADU NORTH P.O.,
KOLLAM-690 561.
BY ADVS.
SRI. T.NAVEEN, SC, KERALA STATE POLLUTION
CONTROL BOARD,
BY SR. GOVERNMENT PLEADER SMT.SURYA BINOY
SRI.M.R.SASITH
SRI.VINOY VARGHESE KALLUMOOTTILL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.08.2021, ALONG WITH WP(C).24756/2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.24756/2019 & 28308/2020
:5 :
JUDGMENT
Dated this the 11th day of July, 2021
[W.P.(C) Nos. 24756/2019 and 28308/2020]
W.P.(C) No.24756 of 2019 has been filed by the
petitioner seeking to direct the respondents 3 and 4, who are
Environmental Engineer and the Sooranadu North Grama
Panchayath respectively, to inspect the property and take
appropriate decision for granting necessary licence and
permit to run the Unit of the petitioner.
2. W.P.(C) No.28308 of 2020 has been filed by the
5th respondent in W.P.(C) No.24756 of 2019, seeking to
command the respondents 2 to 8 to take appropriate action
to stop the functioning of the bricks manufacturing Unit in the
petitioner's property. The 5th respondent has also sought to
direct the General Manager, District Industrial Centre to
cancel the Acknowledgment Certificate issued to the
petitioner in W.P.(C) 24756 of 2019 to conduct bricks
WP(C) No.24756/2019 & 28308/2020
manufacturing Unit.
3. As both the case are based on same set of facts,
they are heard together and being disposed of by a common
judgment.
4. The petitioner in W.P.(C) No.24756 of 2019
wanted to start a SSI Unit in the field of manufacturing of
bricks. A brick manufacturing unit falls under White
Category, according to the petitioner. While the petitioner
was running the unit, the Panchayath Authorities issued
Ext.P10 to the petitioner, pointing out that the building where
the unit is functioning, is a residential building and the same
cannot be used for other purpose. The Panchayath
Authorities also required the petitioner to obtain NOC from
the Pollution Control Board. The Panchayat Authorities
insisted that the petitioner can continue the brick
manufacturing unit only after obtaining change of occupancy
of the building.
5. The petitioner thereupon submitted an application
WP(C) No.24756/2019 & 28308/2020
for change of occupancy of the building. The petitioner also
submitted a Certificate of Registration issued by the Pollution
Control Board.
6. In the mean while, the 5 th respondent in the writ
petition (the petitioner in W.P.(C) No.28308 of 2020) filed a
Civil Suit O.S. No.185/2018 in the Sasthamcotta Munsiff
Court. The Civil Court as per Ext.P3 order restrained the
petitioner from running the unit without obtaining all
necessary licences from the Authorities. It is under such
circumstances, that the petitioner has approached this Court
seeking to direct the Panchayat Authorities to take
expeditiously decision on his application for change of
occupancy of the building and also for issuing of a Trade
Licence to the petitioner.
7. In W.P.(C) No.24756 of 2019, the learned
Standing Counsel for the 4th respondent appeared and
submitted that the petitioner cannot run the Industrial Unit
without effecting change of occupancy of the building and
WP(C) No.24756/2019 & 28308/2020
without obtaining Trade Licence from the Panchayat. The
Panchayat has pointed out certain defects to the petitioner in
his application, as per Ext.P10. If the petitioner cures those
defects, the Panchayat Authorities have no objection in
considering the application submitted by the petitioner, in
accordance with law.
8. The learned Counsel for the 5 th respondent
pointed out that the petitioner is running the unit without
getting licences from Pollution Control Board and without
obtaining D and O licence. The 5th respondent has a further
case that the Industrial Unit has been established in a
Wetland, violating the provisions of the Kerala Conservation
of Paddy Land and Wetland Act, 2018. The 5th respondent
would further allege that under the guise of running a brick
manufacturing unit, the petitioner is excavating soil from his
field without the sanction and permission of Geologist and
other competent Authorities.
9. The learned counsel for the 5th respondent pointed
WP(C) No.24756/2019 & 28308/2020
out that, the 5th respondent has filed O.S.No.158 of 2018 in
which a competent Civil Court has ordered that the petitioner
shall not conduct the unit without obtaining licences from the
Authorities. At that point of time, the petitioner in order to
over come the orders of the Civil Court, has changed the
name of the unit and obtained an Acknowledgment
Certificate from the Kerala Micro, Small and Medium
Enterprise Facilitation Act, 2019. The said Ext.P8
Acknowledgment Certificate has been obtained suppressing
material facts and the said Acknowledgment Certificate is
liable to be canceled in view of the fact that the petitioner has
violated condition No.2(d) made in the said Ext.P8
Acknowledgment Certificate.
10. The learned Counsel for the 5 th respondent further
stated that instead of manufacturing wire cut bricks using
sunlight, the petitioner is operating a brick kiln without the
requisite licences. The counsel for the 5 th respondent
brought the attention of this Court to Ext.P11 Advocate
WP(C) No.24756/2019 & 28308/2020
Commission report which discloses that the petitioner has
failed to produce necessary documents before the Advocate
Commissioner. The Advocate Commissioner further has
reported that the petitioner is running a brick kiln.
11. The learned Standing Counsel representing the
Pollution Control Board submitted that on the basis of
complaints received against the Unit of the petitioner, the
Pollution Control Board Authorities initially issued a notice of
revocation of Consent and ultimately has revoked the
Consent granted to the petitioner. The petitioner can resume
the operation only after obtaining further Consent from the
Pollution Control Board. The learned Senior Government
Pleader on instructions, submitted that on the basis of
complaints received, the Geologist has also issued notice to
the petitioner.
12. Heard the learned counsel for the petitioner, the
learned Government Pleader representing the Governmental
Authorities, the learned Standing Counsel for the Pollution
WP(C) No.24756/2019 & 28308/2020
Control Board, the learned Standing Counsel for Panchayat
and the learned Standing Counsel for the 5 th respondent who
is the petitioner in W.P.(C) No.28308 of 2020.
13. On appreciation of the facts of the case this Court
find that the petitioner in W.P.(C) No.24756 of 2019 has
already approached the Panchayat Authorities for getting
change of occupancy in respect of the building in which the
petitioner proposes to continue with the brick manufacturing
unit. Without getting a change of occupancy, the petitioner
may not be eligible to get a Trade Licence to run the
business.
14. The Panchayat Authorities have pointed out a
number of defects in respect of the application made by the
petitioner as per Ext.P10. In such circumstances, this Court
is of the considered view that the application submitted by
the petitioner for occupancy change of the building and
Trade Licence should be considered by the Panchayath
Authorities, in accordance with law. As the 5 th respondent
WP(C) No.24756/2019 & 28308/2020
has serious objections relating to issuance of Trade Licence
to the petitioner for running the brick manufacturing unit, it
will be only just and proper that the Panchayat hear the 5 th
respondent also while taking a decision in the matter.
Accordingly, W.P.(C) No.24756 of 2019 is disposed of
directing the Panchayath to consider the application for
change of occupancy and issuance of Trade Licence
submitted by the petitioner within a period of two months,
after giving an opportunity of hearing to the petitioner as well
as the 5th respondent.
15. As far as W.P.(C) No.28308 of 2020 is concerned
it has come out during the arguments that subsequent to the
complaints preferred by the 5 th respondent, the Pollution
Control Board has already acted and canceled the Consent
given to the petitioner. Similarly as regards the allegation of
the 5th respondent regarding illegal excavation of earth, the
Geologist has also issued a notice to the petitioner. The
Geologist shall take a final decision in the matter after
WP(C) No.24756/2019 & 28308/2020
hearing the 5th respondent also.
The other allegations made by the 5 th respondent
against the petitioner is relating to violation of the Kerala
Conservation of Paddy Land and Wetland Act, 2008, and the
violation of the provisions of The Kerala Micro, Small and
Medium Enterprise Facilitation Act, 2019. Going through the
pleadings in the matter, this Court find that there is no
material to show that the petitioner has approached those
Authorities raising complaints. In the circumstances, it will be
upto the 5th respondent to raise his grievances relating to
violation of the provisions of the Kerala Conservation of
Paddy Land and Wetland Act, 2008 and the Kerala Micro,
Small and Medium Enterprises Facilitation Act, 2019 before
the appropriate Authorities. The W.P.(C) Nos. 24756 of 2019
and 28308 of 2020 are disposed of as above.
Sd/-
N. NAGARESH
JUDGE
SR
WP(C) No.24756/2019 & 28308/2020
APPENDIX OF WP(C) 24756/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DEVELOPMENT PERMIT
ISSUED BY THE 4TH RESPONDENT DATED
16/03/2018.
EXHIBIT P2 TRUE COPY OF THE GENERAL BUILDING
PERMIT ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ORDER IN
I.A.NO.1119/2018 IN O.S.NO.185/2018 OF
MUNSIFF COURT, SASTHAMCOTTA.
EXHIBIT P4 TRUE COPY OF THE LETTER ISSUED BY THE
4TH RESPONDENT PANCHAYATH DATED
25/09/2018
EXHIBIT P5 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE INSPECTOR OF FACTORIES AND BOILERS
KOLLAM, DATED 27/11/2018.
EXHIBIT P6 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE FIRE AND RESCUE SERVICE, KOLLAM
DATED 3/12/2018.
EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE
3RD RESPONDENT DATED 4/12/2018.
EXHIBIT P8 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE VILLAGE OFFICER SOORANADU NORTH
VILLAGE.
EXHIBIT P9 TRUE COPY OF THE RECEIPT ISSUED BY THE
PANCHAYATH DATED 25/09/2019 ON
SUBMISSION OF APPLICATION FOR LICENSE.
WP(C) No.24756/2019 & 28308/2020
APPENDIX OF WP(C) 28308/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPLY IN NO.52/2018
SENT BY 6TH RESPONDENT TO THE
PETITIONER DATED 10.12.2018.
EXHIBIT P2 TRUE COPY OF DEVELOPMENT PERMIT ISSUED
BY THE 5TH RESPONDENT DATED
01.06.2018.
EXHIBIT P2 A TRUE COPY OF THE GENERAL BUILDING
PERMIT ISSUED BY THE 5TH RESPONDENT
DATED 01.06.2018.
EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT
DATED 17.01.2019 IN OS NO.185/2018.
EXHIBIT P4 TRUE COPY OF THE ORDER IN IA
NO.1119/2018 IN OS NO.185/2018 DATED
28.02.2019 OF THE MUNSIFF COURT,
SASTHAMCOTTA.
EXHIBIT P5 TRUE COPY OF THE WPC NO.24756/2019
BEFORE THIS HONOURABLE COURT FILED BY
9TH RESPONDENT DATED 04.09.2019
WITHOUT EXHIBITS.
EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER IN WPC
NO.24756/2019 DATED 20.08.2020 WITHOUT
EXHIBITS.
EXHIBIT P7 TRUE COPY OF THE APPLICATION FORM
NO.KLMSME-1310/2020 DATED 27.05.2020
DATED ON 27.05.2020 SUBMITTED BY 9TH
RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE ACKNOWLEDGMENT
CERTIFICATE.
EXHIBIT P9 TRUE COPY OF THE LETTER
NO.IEOSKTO/2020 DATED 08.07.2020 SENT
BY INDUSTRIAL DEVELOPMENT OFFICER,
SASTHAMCOTTA.
WP(C) No.24756/2019 & 28308/2020
EXHIBIT P10 TRUE COPY OF THE REPORT FOR
CANCELLATION OF PERMISSION ISSUED BY
SUB DISTRICT INDUSTRIAL DEVELOPMENT
OFFICER DATED 13.07.2020.
EXHIBIT P11 TRUE COPY OF THE COMMISSION REPORT
SUBMITTED BY ADVOCATE COMMISSIONER IN
OS NO.185/2018 DATED 01.11.2020.
EXHIBIT P12 TRUE COPY OF THE PHOTOGRAPHS OF BRICKS
MANUFACTURING UNIT.
RESPONDENTS' EXHIBITS:
EXHIBIT R9(A) TRUE COPY OF THE ACKNOWLEDGMENT
CERTIFICATE ISSUED BY THE DEPARTMENT
OF INDUSTRIES AND COMMERCE
EXHIBIT R9(B) TRUE COPY OF THE APPLICATION DATED
27/05/2020 SUBMITTED BEFORE THE
INDUSTRIAL DEPARTMENT TO OBTAIN
ACKNOWLEDGMENT CERTIFICATE.
EXHIBIT R9(C) TRUE COPY OF THE RECEIPT OF PAYMENT OF
FEE TO THE POLLUTION CONTROL BOARD.
ANNEXURE R2(A) TRUE COPY OF THE CIRCULAR DATED 29-11-
2019 ISSUED BY THE BOARD
ANNEXURE R2(B) TRUE COPY OF THE REGISTRATION ISSUED
TO THE UNIT ON 10-12-2019
ANNEXURE R2(C) TRUE COPY OF THE NOTICE OF INTENTION
TO RECOVATION OF REGISTRATION ISSUED
ON 13.07.2021 ISSUED BY THE BOARD.
ANNEXURE R2(D) TRUE COPY OF THE RECOVATION ORDER
DATED 2-8-2021 ISSUED BY THE BOARD.
