Abdul Samad vs Ochira Grama Panchayat
2022 Latest Caselaw 9006 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                      WP(C) NO. 10623 OF 2022
PETITIONER:

             ABDUL SAMAD
             AGED 76 YEARS, S/O. MUHAMMED KUNJU,
             SURAS, PAYIKUZHY, OCHIRA P.O, 690 526.
             KOLLAM DISTRICT
             BY ADVS.P.CHANDRASEKHAR
             K.K.MOHAMED RAVUF
             SATHEESH V.T.
             MANJARI G.B.

RESPONDENTS:

      1      OCHIRA GRAMA PANCHAYAT
             REPRESENTED BY ITS SECRETARY,
             OCHIRA P.O, 690 526, KOLLAM DISTRICT.
      2      THE SECRETARY
             OCHIRA GRAMA PANCHAYAT,
             OCHIRA P.O 690 526, KOLLAM DISTRICT
      3      SMT HASEENA BEEVI,
             AGED 46 YEARS
             W/O. NIZAR BABU, THOPPIL HOUSE,
             PAYIKUZHY, OCHIRA P.O 690 526, KOLLAM DISTRICT
      4      THE STATION HOUSE OFFICER
             OCHIRA POLICE STATION, KOLLAM DISTRICT PIN 690 526
             BY ADVS.K.P.SATHEESAN (SR.)
             GEORGE POONTHOTTAM (SR.)
             ADVOCATE GENERAL OFFICE KERALA
             P.MOHANDAS (ERNAKULAM)
             K.SUDHINKUMAR
             S.K.ADHITHYAN
             SABU PULLAN
             GOKUL D. SUDHAKARAN
             NISHA GEORGE
             SRI.JIBU.T.S, GP, SRI.T.NAVEEN, SC FOR ADDL.R
       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON    27.07.2022,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C).No.10623/2022

                                    2




                   P.V.KUNHIKRISHNAN, J.
                    --------------------------------
                   W.P.(C).No.10623 of 2022
             ----------------------------------------------
            Dated this the 27th day of July, 2022


                            JUDGMENT

This writ petition is filed with following prayers:

i. Issue a writ of Mandamus or any other writ or direction directing the Respondents 1, 2 and 4 to take action against the 3rd Respondent and close down the Hose Manufacturing Unit of the 3 rd Respondent, if necessary by taking coercive steps and with police help.

ii. Issue a Writ of Mandamus or any other Writ, Order or direction directing the Respondents 1, 2 and 4 to ensure that the 3 rd Respondent does not conduct her Hose Manufacturing Unit without obtaining necessary license from the Panchayat and necessary consent to operate her unit namely Trans Ocean PVC Hose Manufacturing Unit forthwith.

iii. Pass such further orders as this Honourable Court may be pleased to grant on the facts and circumstances of the case.

(SIC) W.P.(C).No.10623/2022

2. The main prayer in this writ petition is to issue a

direction to respondents 1, 2 and 4 to take action against the

3rd Respondent and close down the hose manufacturing unit

of the 3rd respondent without taking licence and permission

from the statutory authorities. The second prayer is also to

ensure that the 3rd respondent does not conduct her hose

manufacturing unit without obtaining necessary license from

the Panchayat and necessary consent to operate her unit from

the statutory authorities.

3. When this writ petition came up for consideration,

the learned Senior Counsel Adv.George Poonthottam, who is

instructed to appear for the 3 rd respondent takes me through

paragraphs 7 to 9 of the counter affidavit filed by the 3 rd

respondent. It will be better to extract paragraphs 7 to 9:

"7. However, even after obtaining the Exhibit-R3(a) acknowledgment certificate, the 3rd respondent has not been operational and has also not been engaged in any manufacturing process. With regard to the allegation on the electricity bill, it is necessary to point out to the Court that, the unit has been provided with a commercial connection by the KSEB after paying lakhs of rupees. The unit is powered by a 100 HP transformer as against a normal connection W.P.(C).No.10623/2022

provided to the neighbours. The charge details can be dissected as the following.

Load Tension lines have a fixed charge of Rs. 8160/-.

Because the unit contains lakhs worth of machinery with sensors and heaters that require consistent flow of electricity, it is impossible to shut down the unit completely. These machines require electricity 24x7. If the electricity is cut-off, these machines could face irreparable damage. The charge reflected is the electricity used for the safe keeping of the machines.

Over the consumer charge of the 3rd respondent, she is also obligated to pay thousands of Rupees as Duty.

All the above requirement brings the Total amount to the rate questioned by the petitioner.

True copy of the electricity bills of the 3rd respondent's unit is herewith marked as Exhibit- R3(b). If the unit was in production, the monthly charge of electricity could be anticipated to be about Lakhs of rupees.

8. Following the mandate of Kerala Micro small W.P.(C).No.10623/2022

medium enterprise facilitation Act, the petitioner does not require further permission to consent to operate or to establish. But by following the direction of this Hon'ble Court, the petitioner has approached the Kerala State Pollution Control Board and has filed a fresh application requesting consent to establish on 15.04.2022. True copy of the application dated 15.04.2022 submitted by the petitioner before the Kerala State Pollution Control Board along with the receipt of payment is herewith marked as Exhibit-R3(c).

9. In the light of the above submission, it is fair to state that the 3rd respondent has not been functioning her unit as alleged by the petitioner in the instant Writ Petition. The prayer of the petitioner is without any merit, advanced with an intention to harass the 3rd respondent and her family. The unit owned by the respondent herein is not in production as alleged erroneously by the petitioner though there is no legal bar for the same. Even though the unit of the 3rd respondent has the requisite permission as per Exhibit-R3(a) to start her production, she has approached the Pollution control board for further permission to avoid another round of litigation."

4. The learned Senior Counsel submitted that the 3 rd

respondent is not now functioning the unit and the

manufacturing process is not going on. The learned Senior W.P.(C).No.10623/2022

Counsel also submitted that a fresh application for consent to

establish is already submitted before the additional 5th

respondent and the same is pending. The learned Standing

Counsel for the additional 5th respondent submitted that the

application is returned to the petitioner seeking certain

clarifications. Now it is submitted by the learned Senior

Counsel that the application will be resubmitted before the

additional 5th respondent. If that is the case, there can be a

direction to the additional 5th respondent to process the

application in accordance to law. The additional 5 th

respondent will also consider paragraph 8 of the judgment

dated 08.04.2022 in Writ Appeal No.477/2022 while

considering the fresh application.

Therefore, this writ petition is disposed of in the

following manner:

1. Paragraphs 7 to 9 of the counter affidavit

dated 19.06.2022 filed by the 3rd respondent is

recorded.

2. The additional 5th respondent will consider the

application for consent to establish in the light W.P.(C).No.10623/2022

of the observation in paragraph 8 of the

judgment dated 08.04.2022 in Writ Appeal

No.477/2022.

sd/-

P.V.KUNHIKRISHNAN JV JUDGE W.P.(C).No.10623/2022

APPENDIX OF WP(C) 10623/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF NOTICE DATED 05-02-2019 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT TO STOP THE FUNCTIONING OF ILLEGAL PVC HOSE MANUFACTURING UNIT Exhibit P2 TRUE COPY OF ORDER DATED 28-05-2019 IN W.P(C0 NO. 4894 OF 2019 Exhibit P3 TRUE COPY OF ORDER 02-09-2019 OF THIS HON'BLE COURT I IN W.P(C0 NO. 4894 OF

Exhibit P4 TRUE COPY OF THE CONSENT TO ESTABLISH PV HOSE MANUFACTURING UNIT DATED 03- 01-2018 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE 3RD RESPONDENT Exhibit P5 TRUE COPY ORDER DATED 04-03-2022 IN APPEAL NO. 7/2018 OF THE AIR APPELLATE AUTHORITY, THIRUVANANTHAPURAM Exhibit P6 TRUE COPY OF LETTER DATED 01-02-2020 OF THE 2ND RESPONDENT TO THE STATION HOUSE OFFICER, OCHIRA POLICE STATION Exhibit P7 TRUE COPY OF LETTER DATED 11-11-2019 OF PUBLIC INFORMATION OFFICER AND SENIOR SUPERINTENDENT, ELECTRICAL SECTION, OCHIRA Exhibit P8 TRUE COPY OF THE LETTER DATED 18-07-

2019 SHOWING THE ELECTRICITY CONSUMED BY THE UNIT OF THE 3RD RESPONDENT ISSUED BY THE PUBLIC INFORMATION OFFICER AND SENIOR SUPERINTENDENT, ELECTRICAL SECTION, OCHIRA TO THE PETITIONER.

Exhibit P9 TRUE COPY OF THE LETTER DATED 06-11-

2018 OF PUBLIC INFORMATION OFFICER AND SENIOR SUPERINTENDENT, ELECTRICAL SECTION OCHIRA TO THE PETITIONER.

Exhibit P10 TRUE COPY OF THE LETTER DATED 17-12-

2021 OF PUBLIC INFORMATION OFFICER AND SENIOR SUPERINTENDENT,ELECTRICAL SECTION OCHIRA TO THE PETITIONER W.P.(C).No.10623/2022

SHOWING THE ELECTRICITY CONSUMED BY THE 3RD RESPONDENT'S UNIT FOR THE PERIOD FROM AUGUST 2018 TO SEPTEMBER

RESPONDENT EXHIBITS Exhibit R3(a) TRUE COPY OF THE ACKNOWLEDGMENT CERTIFICATE DATED 07.02.2020 ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE.

Exhibit R3(b) TRUE COPY OF THE ELECTRICITY BILLS OF THE 3RD RESPONDENT'S UNIT.

Exhibit R3(c) TRUE COPY OF THE APPLICATION DATED 15.04.2022 SUBMITTED BY THE PETITIONER BEFORE THE KERALA STATE POLLUTION CONTROL BOARD ALONG WITH THE RECEIPT OF PAYMENT.

PETITIONER ANNEXURES Annexure I. The order dated 24.06.2022 in I.A. No. 1 of 2022 in W.P.(C) No. 10623/2022 of this Hon'ble Court.

Annexure II. The warrant of appointing Advocate Remya M. Menon as advocate commissioner in I.A. No. 1/2022 in W.P.(C). No. 10623/2022 issued by this Hon'ble Court dated 24.06.2022 Annexure III. The notice to the counsels appearing for the parties in the writ petition dated 01-07-2022.

Annexure IV. Online Payment Receipt dated 15.04.2022 issued by the Online Consent Management and Monitoring System, Ministry of Environment, Forest and Climatic Change Government of India bearing receipt No. 3443934.

Annexure V.       Online Industry Registration Receipt
                  dated 15.04.2022
Annexure VI.      Application for

Consent/Authorisation/Registration submitted before the Kerala State Pollution Control Board for consent to establish dated 15.04.2022 Annexure VII. Judgment in W.A No. 477 of 2022 dated W.P.(C).No.10623/2022

08-04-2022 before this Hon'ble Court Annexure VIII. Letter bearing No. A-561/2021-22 issued by the Sale Tax Office, Karunagappally dated 06.08.2021 Annexure IX. The printout of the roll of hose, taken using mobile phone Annexure X. The tag from the roll bearing brand name 'Trans Ocean India', manufacturing date and other details Annexure XI. The letter dated 20.02.2018 bearing No. O.P.6-1335/18 issued by the Ochira Grama Panchayath Annexure XII. The letter dated 17.07.2019 bearing No. O.P2-6123/19 issued by Secretary, Ochira Grama Panchayath, to the CI of Police Ochira Annexure XIII. The acknowledgement certificate bearing Acknowledgment No. KLMSME- 358/2020 issued by the Department of Industries and Commerce, Government of Kerala dated 07.02.2020 Annexure XIV. The copy of the notification bearing G.O.(P) No. 2/2020/ID dated 06-01-2020 published in the Kerala Gazette Annexure XV. The plan titled as 'OCCUPANCY CHANGED (COMMERCIAL BUILDING CHANGED TO BE INDUSTRIAL BUILDING) HOSE MANUFACTURING SHED NO. OP II/1698 PLAN OF TRANS OCEAN HOSE MAKING UNIT OWNED BY Mrs. HASEENA BEEVI, THOPPIL HOUSE, PAYIKKUZHI, OCHIRA, IN SY. NO. 48/15- 1, 48/15-2 AT OCHIRA VILLAGE' Annexure XVI. The possession certificate dated 04.07.2022 issued by the Oachira Village Office bearing No. 66111217 in Sy. No. 48/15-1 Annexure XVII. The possession certificate dated 04.07.2022 issued by the Oachira Village Office bearing No. 66111231 in Sy. No. 48/15-2 Annexure XVIII. The electricity bill payment details of consumer No. 1145675034220 bearing W.P.(C).No.10623/2022

Bill No. 4567220407242 dated 05.04.2022 for an amount of Rs.

44,750/-.

Annexure XIX. The electricity bill payment details of consumer No. 1145675034220 bearing Bill No. 4567220500320 dated 01.05.2022 for an amount of Rs.

40,053/-.

Annexure XX. The KSEB Receipt No. 45670220617102038 dated 17-06-2022 for an amount of Rs. 26,160/- issued to consumer No. 1145675034220 Annexure XXI. The reply issued by the Public Information Officer, Electrical Section, Ochira to M. Abdul Samad bearing No. Application/2022-23/15 dated 08-07-2022 Annexure XXII. The work memo dated 09.07.2022 submitted by 3rd respondent at the time of the inspection Annexure XXIII. A rough sketch showing the measurements Annexure XXIV. A rough sketch showing the measurements Annexure XXV. The Mahazar in W.P.(C). No. 10623/2022 before this Hon'ble Court.