Kerala High Court
Unity Construction vs Vengola Grama Panchayat on 8 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 8TH DAY OF JULY 2021/17TH ASHADHA, 1943
WP(C) NO. 9247 OF 2021
PETITIONERS:
1 UNITY CONSTRUCTION, METHALA P.O.,
PERUMBAVOOR, ERNAKULAM DISTRICT,
PIN-683 545, REPRESENTED ITS
MANAGING PARTNER RAJEEV P.K.
2 RAJEEV P.K.,S/O. KRISHNANKUTTY,
AGED 42 YEARS, PULICKAKUDY HOUSE,
METHALA P.O., PERUMBAVOOR,
ERNAKULAM DISTRICT, PIN-683 545.
BY ADVS.
BABU JOSEPH KURUVATHAZHA
SRI.M.G.SREEJITH
RESPONDENTS:
1 VENGOLA GRAMA PANCHAYAT, VENGOLA P.O.,
ERNAKULAM DISTRICT, PIN-683 556,
REPRESENTED BY ITS SECRETARY.
2 VENGOLA GRAMA PANCHAYAT COMMITTEE,
VENGOLA GRAMA PANCHAYAT, VENGOLA P.O.,
ERNAKULAM DISTRICT, PIN-683 556,
REPRESENTED BY ITS PRESIDENT.
3 ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONROL BOARD,
DISTRICT OFFICE-2,
NEAR KALLUNGAL AUDITORIUM,
PERUMBAVOOR,
ERNAKULAM DISTRICT, PIN-683 545.
WP(C) Nos.9247 & 10173 of 2021
:2 :
4 DISTRICT INDUSTRIES CENTRE,
ERNAKULAM, KUNNUMPURAM-CIVIL STATION ROAD,
ECHAMUKKU, THRIKKAKARA, VAZHAKKALA,
KAKKANAD, KOCHI-682 030,
REPRESENTED BY ITS GENERAL MANAGER.
R1-R2 BY ADV SHRI.C.A.NAVAS, SC
R3 BY SRI. T. NAVEEN, SC
R4 BY GOVT. PLEADER SRI MANU RAJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.07.2021, ALONG WITH WP(C).10173/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.9247 & 10173 of 2021
:3 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 8TH DAY OF JULY 2021/17TH ASHADHA, 1943
WP(C) NO. 10173 OF 2021
PETITIONER:
M/S.HIRA CONSTRUCTIONS, 13/2,
PERINGALA, KUMARAPURAM - 683 565,
REPRESENTED BY ITS MANAGING PARTNER,
K.S. MUHAMMAD, S/O. SULAIMAN,
AGED 62 YEARS, RESIDING AT KALLUNGAL HOUSE,
PERINGALA P.O., ERNAKULAM DISTRICT - 683565.
BY ADVS.
PAUL K.VARGHESE
SMT.A.A.GEETHA
RESPONDENTS:
1 THE VENGOLA GRAMA PANCHAYAT
VENGOLA, NEAR PERUMBAVOOR,
ERNAKULAM DISTRICT - 683 556,
REPRESENTED BY ITS SECRETARY.
2 SECRETARY,
VENGOLA GRAMA PANCHAYATH,
VENGOLA, NEAR PERUMBAVOOR,
ERNAKULAM DISTRICT - 683 556.
3 THE COMMITTEE,
VENGOLA GRAMA PANCHAYATH,
VENGOLA, NEAR PERUMBAVOOR,
ERNAKULAM DISTRICT - 683 556,
REPRESENTED BY ITS PRESIDENT.
WP(C) Nos.9247 & 10173 of 2021
:4 :
* 4 ROBERT RAISON CORREYA, AGED 34 YEARS,
S/O SAMSON CORREYA, AMBATTU HOUSE,
ANGLO INDIAN COLONY,
CHUNDAMALAPPURAM, VENGOLA,
ERNAKULAM-683 556.
(SUPPLEMENTAL R4 IS IMPLEADED AS PER ORDER DATED
23/04/2021 IN I. A. NO. 1/2021 IN WP(C)
10173/2021.
* 5 BINOY, AGED 40 YEARS, S/O VARGHESE,
MULLAMANGALAM HOUSE, WARD NO. 23,
ARAKKAPADY VILLAGE, VENGOLA,
ERNAKULAM DISTRICT.
(SUPPLEMENTAL R5 IS IMPLEADED AS PER ORDER DATED
23/04/2021 IN I. A. NO. 1/2021 IN WP(C)
10173/2021.
BY ADVS.
SHRI.C.A.NAVAS, SC, VENGOLA GRAMA PANCHAYAT
R4, R5 - SMT. VIDYA KURIAKOSE
SRI.V.SREEJITH (K/1398/2000)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.07.2021, ALONG WITH WP(C).9247/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.9247 & 10173 of 2021
:5 :
JUDGMENT
~~~~~~~~~
Dated this the 8th day of July, 2021
[WP(C) Nos.9247 & 10173 of 2021]
Both these writ petitions are filed by partnership
firms running Bitumen Hot Mix Plant in Vengola Grama
Panchayat and the writ petitioners are aggrieved by the
decision taken by the Grama Panchayat Committee on
23.03.2021. Hence, they are heard together and being
disposed of by a common judgment.
2. The petitioners in WP(C) No.9247/2021 submitted
an application for getting licences of all statutory authorities to
run a Bitumen Hot Mix Plant, through the Single Window
Clearance Board. The Board issued Ext.P2 Acknowledgment
Certificate. Ext.P3 proceedings were also issued by the Board
permitting the 1st petitioner to operate the Plant. The
petitioner in WP(C) No.10173/2021 also submitted similar
application to the Board and Ext.P2 Acknowledgment
WP(C) Nos.9247 & 10173 of 2021
Certificate was issued to the petitioner in WP(C)
No.10173/2021 also.
3. According to the petitioners, once the Single
Window Clearance Board issues an Acknowledgment
Certificate under Section 5 of the Kerala Micro, Small and
Medium Enterprises Facilitation Act, 2019, it has the effect as
if it is a grant of licences, permission, approvals, clearances,
registration, consents, no objection certificates and the like,
required under any State law in connection with the
establishment or operation of MSME in the State.
4. However, the Committee of the Vengola Grama
Panchayat which met on 23.03.2021 decided to stop the
functioning of all establishments causing pollution and to issue
notice to Firms having Bitumen Hot Mixing Plants functioning
in the Panchayat. In spite of the objection raised by the
Secretary to the Grama Panchayat based on the provisions of
the MSME Facilitation Act, 2019, the Committee directed the
Secretary to issue notice to the Firms running Bitumen Hot
Mix Plants.
WP(C) Nos.9247 & 10173 of 2021
5. Pursuant to the said decision taken by the
Panchayat Committee on 23.03.2021, the petitioners were
served with Ext.P11 notice. The petitioners contended that in
view of Section 6 of the MSME Facilitation Act, 2019, the
petitioners are entitled to run their units based on the
Acknowledgment Certificates issued to them. This Court has
held in the judgment in Lizy Aby v. State of Kerala [2021 (1)
KHC 255] that a Panchayat cannot issue Stop Memos to
industrial units on the basis of complaints of pollution, without
first arriving at a conclusion on pollution based on materials.
6. The supplemental respondents 4 and 5 in WP(C)
No.10173/2021 filed a counter affidavit in the writ petition and
contested the case. Respondents 4 and 5 stated that the Hot
Mix Plants run by the petitioners result in serious pollution
issues. When the Pollution Control Board issued consent to
establish, the local residents submitted a mass petition before
the Pollution Control Board. Thereupon, the Environmental
Engineer sent a letter dated 05.01.2021 to the units directing
them to comply with all the directions issued by the Pollution
WP(C) Nos.9247 & 10173 of 2021
Control Board. According to respondents 4 and 5, the
Pollution Control Board has not so far issued consent to
operate.
7. Respondents 4 and 5 contended that as per
Section 166 of the Kerala Panchayat Raj Act, it is the duty of
the Panchayat to meet the requirements of the Village
Panchayat area in respect of matters enumerated it in the
third schedule. Maintenance of environmental hygiene is one
of the mandatory functions of the Panchayat.
8. The learned counsel for respondents 4 and 5 relied
on a Division Bench judgment of this Court in George Joseph
and others v. Bose Well John and others [2021 (1) KHC
609] in which it has been held that a contractor has to secure
necessary establishment permit in order to install Hot Mix
Plant and only after establishment of unit, the contractor can
seek for trade licence. In the facts and circumstances of the
case, the writ petition is liable to be dismissed, contended
respondents 4 and 5.
9. Heard the learned counsel for the petitioners, the
WP(C) Nos.9247 & 10173 of 2021
learned Standing Counsel for the Panchayat, the learned
Government Pleader representing respondents 3 and 4 in
WP(C) No.9247/2021 and the learned counsel appearing for
additional respondents 4 and 5 in WP(C) No.10173/2021.
10. The petitioners have started their units and are
running Bitumen Hot Mix Plant, after obtaining
Acknowledgment Certificates from the Board. Issuance of
Acknowledgment Certificate will have the effect of the
petitioners having licences, permissions, approvals,
clearances, registration, consents, no objection certificates
and the like, required under any State law in connection with
the establishment or operation of Micro, Small and Medium
Enterprise in the State for a period of three years, in view of
Section 6 read with Section 2(c) of the Kerala of Micro, Small
and Medium Enterprises Facilitation Act, 2019.
11. The Grama Panchayat has decided to stop the
functioning of the Hot Mix Plants based on complaints
received from various quarters with regard to environmental
pollution resulting from such plants. The impugned decision
WP(C) Nos.9247 & 10173 of 2021
of the Grama Panchayat dated 23.03.2021 does not disclose
that the Panchayat has arrived at any finding on the alleged
pollution resulting from the units of the petitioners. This Court
has held in the judgment in Lizy Aby v. State of Kerala [2021
(1) KHC 255] that a Panchayat cannot issue Stop Memos to
industrial units on the basis of complaints of pollution, without
first arriving at a conclusion on pollution, based on materials.
No material has been placed before this Court to show that
the Panchayat has conducted any study in the matter either by
itself or through a competent body.
12. For the said reason, the writ petitioners should
succeed. The impugned Ext.P10 decision dated 23.03.2021 of
the 1st respondent Panchayat and Ext.P11 notices issued
pursuant thereto are hence set aside.
Writ petitions are disposed of as above.
Sd/-
N. NAGARESH, JUDGE
aks/27.07.2021
WP(C) Nos.9247 & 10173 of 2021
APPENDIX OF WP(C) 9247/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CONSENT TO PERATE BEARING
CONSENT NO.O19ERNA-CTO-673915 DATED
17.1.2020, VALID UP TO 29.9.2025, ISSUED
BY THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGEMENT
CERTIFICATE DATED 31.12.2020 VALID UP TO
31.12.2023, ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE PROCEEDING DATED
15.1.2021 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED
15.1.2021 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE NO OBJECTION CERTIFICATE
(FINAL) NO.G-3034/20 DATED 22.7.2020
ISSUED BY THE DISTRICT FIRE OFFICER, FIRE
& RESCUE SERVICES, ERNAKULAM.
EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED
8.12.2020, ISSUED FIREFLY ENTERPRISES,
PERTAINING TO THE ESTABLISHMENT OF FIRE
EXTINGUISHERS BY THE PETITIONERS
EXHIBIT P7 TRUE COPY OF THE GST REGISTRATION
NO.32AAGFU0520PIZ7 ENJOYS THE 1ST
PETITIONER WITH EFFECT FROM 5.8.2019.
EXHIBIT P8 TRUE COPY OF THE LETTER BEARING
NO.A2/2150/2021 DATED 1.3.2021 ISSUED BY
TEH IST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE RECEIPT NO.7699288 DATED
16.3.2021 ISSUED FROM THE OFFICE OF THE
IST RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE RESOLUTION NO.1(1) DATED
23.3.2021 PASSED BY THE 2ND RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE NOTICE NO.A2 2777/2021
DATED 29.3.2021 ISSUED BY THE IST
RESPONDENT.
WP(C) Nos.9247 & 10173 of 2021
APPENDIX OF WP(C) 10173/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CONSENT ORDER ISSUED BY
THE POLLUTION CONTROL BOARD, PERUMBAVOOR TO
THE PETITIONER DATED 16.11.2020.
EXHIBIT P2 A TRUE COPY OF THE ACKNOWLEDGEMENT
CERTIFICATE ISSUED BY THE GENERAL MANAGER,
DISTRICT INDUSTRIES CENTRE, ERNAKULAM DATED
2.2.2021.
EXHIBIT P3 A TRUE COPY OF THE STOP MEMO ISSUED BY THE
RESPONDENT TO THE PETITIONER DATED
5.1.2021.
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT REPORTED IN
2021(H) KHC 255(LIZY ABY V.STATE OF KERALA
AND OTHERS)
EXHIBIT P5 A TRUE COPY OF THE DECISION OF THIS HON'BLE
COURT REPORTED IN 2021(1) KHC 337.
EXHIBIT P6 A TRUE COPY OF THE PROCEEDINGS OF THE
SECRETARY, IKKARANADU GRAMA PANCHAYATH
DATED 21.01.2021.
EXHIBIT P7 A TRUE COPY OF THE JUDGMENT IN WP(C) NO.
28283/2020 OF THIS HON'BLE COURT DATED
21.12.2020.
EXHIBIT P8 A TRUE COPY OF THE JUDGMENT IN WP(C) NO.
4997/2021 OF THIS HON'BLE COURT DATED
25.02.2021.
EXHIBIT P9 A TRUE COPY OF THE STOP A2-38/2021 OF THE
SECRETARY VENGOLA GRAMA PANCHAYATH DATED
15.03.2021.
EXHIBIT P10 A TRUE COPY OF THE DECISION NO.1/1 OF THE
VENGOLA GRAMA PANCHAYATH DATED 23.3.2021.
EXHIBIT P11 A TRUE COPY OF THE NOTICE ISSUED BY THE
SECRETARY, THE VENGOLA GRAMA PANCHAYATH TO
THE PETITIONER DATED 29.03.2021.
EXHIBIT P12 A TRUE COPY OF THE COMPLAINT BY THE
PETITIONER BEFORE THE REVENUE DIVISIONAL
OFFICER, MUVATTUPUZHA DATED 17.04.2021.
EXHIBIT P13 A PHOTOGRAPH OF THE BITUMEN MIXING PLANT
PUT UP BY THE PETITIONER
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