Kerala High Court
Woodon Mdf Panels Private Limited vs Velliyamattom Grama Panchayath on 4 March, 2022
W.P.(C)Nos.18105 of 2020
& 9546 of 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 4TH DAY OF MARCH, 2022 / 13TH PHALGUNA, 1943
WP(C) NO. 18105 OF 2020
PETITIONER:
WOODON MDF PANELS PRIVATE LIMITED
PPM HAJI TOWER, AM ROAD, NELLIKUZHY P. O.,
KOTHAMANGALAM, KERALA - 686 691., REPRESENTED BY
ITS MANAGING DIRECTOR, SHRI PAREETH K. V.
BY ADVS.
SRI JOJI GEORGE JACOB
SRI BABY KURIAKOSE
SRI S.SREEKUMAR (SR.)
SRI P.MARTIN JOSE
RESPONDENTS:
1 VELLIYAMATTOM GRAMA PANCHAYATH
PANNIMATTOM P. O., THODUPUZHA,
IDUKKI - 685 588.
2 SECRETARY
VELLIYAMATTOM GRAMA PANCHAYATH, PANNIMATTOM P. O.,
THODUPUZHA, IDUKKI - 685 588.
3 VADAKKANAR NEERTHADA SAMRAKSHANA SAMITHI
PANNIMATTOM P.O,THODUPUZHA REPRESENTED BY ITS VICE
PRESIDENT JACOB SEBASTIAN,
S/O.DEVASSIA, AGED 53 YEARS,
KATTUPARA KUZHIYIL HOUSE, KOOVAKANDOM P.O,
POOMALA THODUPUZHA, IDUKKI-685588.
4 KERALA STATE POLLUTION CONTROL BOARD,
ESSAREN BUILDING,ANAKKODU JUNCTION,
THODUPUZHA,IDUKKI-685584
REP.BY CHIEF ENVIRONMENTAL ENGINEER
R1 & R2 BY SMT.DAISY A.PHILIPOSE
SRI.JAI GEORGE
R3 BY SRI T.V.GEORGE
R4 BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.12.2021, ALONG WITH WP(C).9546/2021, THE COURT ON
04.03.2022 DELIVERED THE FOLLOWING:
W.P.(C)Nos.18105 of 2020
& 9546 of 2021 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 4TH DAY OF MARCH, 2022 / 13TH PHALGUNA, 1943
WP(C) NO. 9546 OF 2021
PETITIONERS:
1 SOBY THOMAS
AGED 44 YEARS
S/O. THOMAS KURIAN,
CHIRAPURATH HOUSE,
ELAMDESOM P.O.
IDUKKI DISTRICT, 685 588.
2 K.M. VARGHESE,S/O. MATHAI MARKOSE,
KAKKATHURUTHEL HOUSE, PANNIMATTOM P.O.,
IDUKKI DISTRICT, 685 588.
3 SANEESH JACOB,S/O. JACOB LUKOSE,
KARINTHOLIL HOUSE, ELAMDESOM P.O.
IDUKKI DISTRICT, 685 588.
4 JAMES ABRAHAM,S/O. ABRAHAM CHACKO,
PAMPARA HOUSE, KALAYANTHANI P.O.
VETTIMATTOM,IDUKKI DISTRICT.
5 ANIL KUMAR A.N.,
S/O. NAYARANANA NAIR, ARACKAL HOUSE,
VELLIYAMATTOM P.O. AMBALAPPADY,
IDUKKI DISTRICT, 685 588.
6 ANISH.P.SEBASTIAN,
AGED 44 YEARS,S/O. DEVASIA JOSEPH,
PERUMBRAYIL HOUSE,PANNIMATTOM P.O.
IDUKKI DISTRICT, 685 588.
7 JOSE THOMAS OSB,S/O.V.V. THOMAS,
FR. SUPERIOR ST.
EPHREM BENEDICAT MONASTRY, ELAMDESOM P.O.
IDUKKI DISTRICT, 685 588.
BY ADV SRI D.ANILKUMAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
W.P.(C)Nos.18105 of 2020
& 9546 of 2021 3
2 DISTRICT COLLECTOR,
IDUKKI, CIVIL STATION,
IDUKKI DISTRICT, 685 601.
3 VELLIYAMATAM GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, VELLIYAMATTAM P.O.
IDUKKI DISTRICT, 685 588.
4 KERALA STATE POLLLUTION CONTROL BOARD,
REPRESENTED BY ITS CHAIRMAN, PATTOM P.O.
THIRUVANANTHAPURAM 695 001.
5 THE DISTRICT ELECTRICAL INSPECTOR,
KERALA STATE ELECTRICITY BOARD,
PALATTUKUNNEL BUILDING, MOOLAMATTOM P.O.
IDUKKI DISTRICT, 685 589.
6 WOODON MDF PANEL PRIVATE LIMITED,
111/243B, PPM HAJI TOWER, AM ROAD,
NELLIKKUZHI PANCHAYATH, ERMALLOOR,
ERNAKULAM, 686 692 REPRESENTED BY ITS MANAGING
DIRECTOR.
7 WOODON STAR PARTICLE BOARD PRIVATE LIMITED,
REPRESENTED BY MANGING DIRECTOR, 111/243B,
PPM HAJI TOWER AM ROAD, NELLIKKUZHI PACHAYATH,
ERMALLOOR, ERNAKULAM 686 692.
8 ADDL.R8. THE CENTRAL POLLUTION CONTROL BOARD,
ADDITIONAL R8 IS SUO MOTU IMPLEADED AS PER THE
ORDER DATED 21.12.2021 IN WP(C) 9546/2021
BY ADVS.SHRI.N.MANOJ KUMAR, STATE ATTORNEY
SRI.P.G.PRAMOD,
SRI VIPIN NARAYAN, GOVERNMENT PLEADER
SMT.DAISY A.PHILIPOSE
SRI P.PRIJITH
S.SREEKUMAR (SR.)
SRI P.MARTIN JOSE
SRI THOMAS P.KURUVILLA
SRI AJAY BEN JOSE
SRI MANJUNATH MENON
SRI SACHIN JACOB AMBAT
SRI R.GITHESH
SMT.HANI P.NAIR
SRI HARIKRISHNAN S.
MS.ANNA LINDA V.J
SRI JAI GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 22.12.2021, ALONG WITH WP(C).18105/2020, THE
COURT ON 4.3.2022 DELIVERED THE FOLLOWING:
W.P.(C)Nos.18105 of 2020
& 9546 of 2021 4
T.R. RAVI, J.
--------------------------------------------
W.P.(C)Nos.18105 of 2020 & 9546 of 2021
--------------------------------------------
Dated this the 4th day of March, 2022
JUDGMENT
These two writ petitions are intrinsically connected and hence
they are being heard and disposed of together. The facts of the
two writ petitions are as follows:
W.P.(C)Nos.18105 of 2020
2. The petitioner is a Company which proposes to establish
a particle board manufacturing unit in the 1 st respondent
Panchayat. On 17.8.2019, they preferred an application under
Section 233 of the Kerala Panchayat Raj Act, 1994 seeking
permission for construction of factory and installation of
machineries, through the Sanketham e-portal. Hard copy of the
application was submitted on 24.8.2019. When no action was
taken on the applications, the petitioner submitted a letter on
17.10.2019 before the 2nd respondent claiming that they are
entitled to deemed permit under Section 233 (6) of the Kerala
Panchayat Raj Act. It appears that the 1 st respondent had
considered the application on 30.9.2019 and on that basis, the
Secretary and 6 members of the Panchayat Committee had visited
W.P.(C)Nos.18105 of 2020
the site for the proposed industry on 11.10.2019 and prepared a
report. Thereafter, it appears that meetings were held on
17.10.2019 and 22.10.2019. Finally, the petitioner's application
was rejected as per the decision taken on 22.10.2019, the minutes
of which has been produced as Ext.P4. The reasons stated for
rejection are as follows:
"(i) No infrastructure for the operation of 4202.413 HP
motor has been arranged.
(ii) Absence of the report of the Chief Town Planner.
(iii) Absence of the report of the Pollution Control Board.
(iv) Absence of the report of the District Medical Officer.
(v) Absence of the report of the Fire and Rescue Services.
(vi) Formaldehyde contained in Amino Resin as mentioned
in the application will cause cancer.
(vii) Glue making process will cause various ailment and
will lead to environment pollution.
(viii) As the Company is proposed to commence its function
on the banks of the Vadakkanar river, there is chance of the
river getting polluted.
(ix) Assistant Executive Engineer of the MVIP has raised
concern that if the river gets polluted that may
subsequently cause contamination to the water body in
Malankara reservoir.
(x) Identical concern as raised by the Assistant Executive
Engineer MVIP were raised by the public and various
political parties.
3. In the same meeting referred above, the 1 st respondent
has also considered the claim of the petitioner that they are
W.P.(C)Nos.18105 of 2020
entitled to deemed permit. The said claim was also rejected as per
Ext.P5 stating that there were 15 public holidays since the
submission of the application for installation permit on 6.9.2019
and that on 30.9.2019 and 17.10.2019, the Committee had
considered the application and initiated proceedings on the same.
For the above reasons, it was concluded that the benefit of Section
233(6) of the Kerala Panchayat Raj Act will not be available to the
petitioner. The petitioner was informed of the decisions of the
Panchayat as per Ext.P6 dated 25.10.2019.
4. The petitioner filed the above writ petition seeking to
call for the records leading to Ext.P4 minutes of the 1 st respondent
rejecting Ext.P1 application submitted by the petitioner and to
quash the same. There is a further prayer to quash Ext.P5 minutes
declining deemed permit to the petitioner and the petitioner also
prays for a declaration that the petitioner is eligible for deemed
permit under Section 233(6) of the Kerala Panchayat Raj Act,
1994.
5. On 21.12.2020, this Court after recording the
submission that the defects pointed out in the application
submitted by the petitioner has been cured, directed the
Panchayat to consider the application and pass orders within three
weeks. Thereafter, on 13.1.2021, the Panchayat considered the
W.P.(C)Nos.18105 of 2020
application. The proceedings of the meeting would show that the
Secretary had opined that in the light of the fact that the petitioner
has obtained all necessary licenses, the Company can be granted
installation permit. It would appear from the proceedings that the
Panchayat noticed that within 2 KMs of the proposed factory, there
are 3 schools, 2 Anganwadis, 1 community Health Centre, several
residential houses and some Government offices. It was further
noticed that the proposed factory is very near the main drinking
water source of the Panchayat, i.e., Vadakkanar. An apprehension
was expressed in the meeting that the factory may pollute the
drinking water source. Finally, it was decided that the Panchayat
should obtain a detailed project report from the petitioner and to
constitute an Expert Committee consisting of the President, the
Vice President, an A Grade Chemist with Government approval, the
District Medical Officer and an Officer at the State Level of the
Pollution Control Board to study the project and thereafter decide
on the grant of the installation permit. The decision of the
Panchayat has been produced as Ext.P7. The petitioner thereafter
received a communication dated 1.2.2021 which has been
produced as Ext.P8 forwarding the minutes of the meeting of the
Panchayat Committee held on 28.1.2021. Ext.P8 would show that
the Panchayat had sought a report from the Tahsildar, Thodupuzha
W.P.(C)Nos.18105 of 2020
on the legality of issuing installation permit, since the title deed of
the petitioner shows the land as Pandaravakapattom thottam'. A
doubt seems to have been expressed that the property is classified
as a plantation and the Kerala Land Reforms Act which provides
exemption for plantations, does not permit the exempted land to
be utilised for any other purposes. Another reason stated in
Exts.P7 and P8 is that the operation of the factory can cause
pollution. It is admitted that the petitioner has obtained consent to
establish from the 4th respondent, necessary permission from the
Director, Factories and Boilers, clearance for fire safety from the
Regional Fire Officer, Fire and Rescue Services, Ernakulam and
necessary sanction from the Town Planner, Idukki. According to
the petitioner, the factory will not have any effluents neither liquid
nor gas, to pollute the atmosphere. It is also submitted that the
Pollution Control Board has classified the Unit in the 'Orange
Category'. The petitioner hence prays to quash Exts.P7 and P8
decisions of the Panchayat also which were issued pending the writ
petition.
W.P.(C)No.9546 of 2021
6. W.P.(C)No.9546 of 2021 has been filed by persons who
are residents of the Panchayat who claim that the establishment of
the factory is likely to cause serious issues of pollution in the area.
W.P.(C)Nos.18105 of 2020
The main grievance appears to be that the raw materials that will
be used on a daily basis in the factory, which comprise of raw
rubber wood trunks, limp, saw dust, UF resin, phenolic
formaldehyde resin, melamine formaldehyde resin, hardener,
emulsions, hexamethylenetramine ammonia solution, etc. and the
nature of the process which involves the breaking down of the
hard wood or soft wood residuals into wood fibres and combining
them with resin binder and forming it into panels by applying high
temperature and pressure will lead to emission of toxic gases into
the surroundings. Objection is taken particularly to the use of
formaldehyde which are excellent binding agents, and it is
submitted that continuous long term exposure to formaldehyde
can cause headache, burning sensation in the throat, difficulty in
breathing and trigger or aggravate asthma symptoms. It is also
submitted that it is a probable human carcinogen. It is submitted
that the formaldehyde and melamine resin are equally bad if the
levels of emissions are not within the limits. The petitioners
submit that the area is a densely populated area with the river
flowing on the eastern boundary of the proposed industrial unit
and there are chances of the water in the river becoming
contaminated. It is pointed out that the Assistant Executive
Engineer, Muvattupuzha Valley Irrigation Project, had written to
W.P.(C)Nos.18105 of 2020
the Secretary of the Grama Panchayat, stating that permission to
operate the industrial unit should be given only after conducting
studies on the issue. Yet another aspect pointed out is that as per
the consent to establish granted by the State Pollution Control
Board, a smokestack having height of 30 Metres must be provided
to emit the smoke. It is submitted that the petitioners are residing
uphill and the polluted air, smoke, dust particles, etc. directly come
to the level heights of the houses of the petitioners and therefore
they are directly going to be adversely affected by the operation of
the industry. The petitioners also pointed out that that area was
originally a plantation which got fragmented by partition among
the legal heirs and that the lands have been levelled and the trees
were removed for the purpose of developing the plot. The
petitioners submit that Section 233 of the Kerala Panchayat Raj Act
has been amended by the Kerala Investment, Promotion and
Facilitation Act, 2018, whereby the power to refuse licence has
been taken away. It is contended that the said amendment is
illegal and unconstitutional, and it violates Articles 14 and 21 of
the Constitution of India. Section 22 of the Air (Prevention and
Control of Pollution) Act is referred to, to submit that no person
operating any industrial plant, in any air pollution control area shall
discharge or cause or permit to be discharged the emission of any
W.P.(C)Nos.18105 of 2020
air pollutant in excess of the standards laid down by the State
Board under Section 17(1)(g). It is pointed out that by SRO
No.1831/1993 dated 26.11.1993, the entire State of Kerala has
been declared as an air pollution control area and therefore there
is a requirement that the Pollution Control Board declares the
standards of emission of formaldehyde and dust particles, so that
the issue can be tested with respect to the factory in question.
The contention is that in the absence of such standards being
prescribed, no consent can be granted to operate an industry.
7. After noticing the contentions of either parties, on
23.11.2021, this Court directed the 4 th respondent Pollution
Control Board to depute an Officer who is familiar with the working
of such industry and submit a report regarding the aspects and
apprehensions pointed out by the Panchayat as well as the
petitioners in W.P.(C)No.9546 of 2021. Thereafter on 21.12.2021,
after noticing the submission of the Standing Counsel for the
Kerala State Pollution Control Board that at present there are no
standards prescribed regarding the emission of formaldehyde
resin, this Court directed the Central Pollution Control Board to be
impleaded as an additional respondent. On 19.7.2021, the
Pollution Control Board has submitted a report. It is stated in the
report that the distance criteria which is to be followed in the case
W.P.(C)Nos.18105 of 2020
of plywoods/particle board manufacturing units is 50 Metres from
the nearest residence and a minimum set back of 25 Metres from
all sides. It is pointed out that as per the consent application and
the document produced, the raw materials proposed to be used as
well as the process has been clearly stated. It is stated that the
only possible chance of pollution is air pollution and for that
purpose, a 30 Metre height chimney with water scrubber for
thermic fluid heater and hot air generator has been proposed. Any
water pollution is sought to be abated by installation of a sewage
treatment plant and even in case of the said plant, the main
effluent generation will be domestic effluent from canteen and
employees. It is stated that an inspection was conducted on
23.11.2019 by the Board officials, when the construction work has
not commenced. It is stated that the nearest residence is more
than 50 Metres away from the proposed building and 25 Metres set
back is available on all directions. It is stated that since the Board
is satisfied with the distance criteria, the consent to establish was
granted. Thereafter based on the directions issued by this Court
on 23.11.2021, a report has been submitted by the Environmental
Engineer, Kerala State Pollution Control Board, District Office,
Idukki. Along with the report, Annexure R4(a) circular has been
produced to show the requirement as far as distance is concerned.
W.P.(C)Nos.18105 of 2020
The consent to establish has been produced as Annexure R4(b). It
is stated that the Environmental Engineer, District Office-II
inspected the site on 1.12.2021. The conclusions of the inspection
have been stated in the report. It is stated that the major
pollutants from a particle manufacturing company are particulate
matter generated during chipping, shaving, screening, refining of
particles and from the cutting, trimming and polishing of the
finished products and particulate matter in flue gas from thermic
fluid heater and hot air generator is also a source of pollution. It is
stated that bag houses and cyclones of centralised dust collection
system in screening and refining area and dust collectors with
fabric filters provided in trimming and sanding area are adequate
for controlling air pollution problems in these areas. It is further
stated that mechanical dust collectors, cyclones, waterbed or
water scrubber proposed in flue gas emission are also adequate to
contain the particulate matter pollution. The report specifically
says that the apprehension that resins used for the manufacturing
process, if they escape, will cause health problems is not correct.
It is stated that since the preparation of resins, chemicals and
additives is done in closed system and blending of resins, particles
and other ingredients are done in a closed system with controlled
automatic injection, the chances of escaping of resin and other
W.P.(C)Nos.18105 of 2020
additives into atmosphere is also very low. It is stated that since
pre-pressing is done before hydraulic pressing, chances of
emissions from hot press is also very low. It is further stated that
the chimney of 30 Metre height above the ground level proposed
for thermic fluid heater and hot air generator are adequate for the
emissions and complies with the specifications of the Central
Pollution Control Board for boilers. It is stated that the
manufacturing process does not generate trade effluent and hence
chances of water bodies being polluted with wastewater from the
industry is also very low. It is further stated that if all raw
materials and other solid wastes generated in the industry
including boiler ash are kept in enclosed building with proper
roofing and concreted or tiled flooring, there are no chances of
discharge of any waste to the nearby land or water body. It is
observed that domestic wastewater generation will be around 4600
litres per day and a proposal for a sewage treatment plant of 5
KLD submitted by the proponent including preliminary, primary,
secondary and tertiary treatment units, will be adequate for
achieving the treated water standards for the domestic effluent.
8. The Senior counsel appearing for the petitioner in W.P.
(C)No.18105 of 2020 submitted the industry is only at the
installation stage and has not started functioning and hence it
W.P.(C)Nos.18105 of 2020
cannot be ascertained whether the industry is likely to cause any
pollution at all, as apprehended by the respondents. That being
the case, it is submitted that it is not necessary to go into those
issues at this stage and all that need be gone into is whether the
Panchayat was liable to grant the licence which had been applied
for. Based on the report of the Pollution Control Board, the Senior
Counsel submits that the industry will not lead to any pollution, if
it functions in the manner which is detailed in the report and in
accordance with the process that has been explained in the
application as well. It is further submitted that there are sufficient
provisions in the Panchayat Raj Act to take care of situations
where, during the functioning of the industry, it creates pollution or
other nuisances. Section 233A of the Act is referred to. Regarding
the contention that the industry cannot be set up in a land which
was a plantation exempted under the Kerala Land Reforms Act, it
is submitted that the question is no longer res integra. This Court
has held that merely because an exempted land was used for
other purposes, the action cannot be termed illegal, and the only
consequence will be that that the exemption granted will be lost
and the extent of land used for other purposes will also have to be
added to the total extent of land of the declarant under the Kerala
Land Reforms Act and the area to be surrendered as excess land
W.P.(C)Nos.18105 of 2020
will have to be reworked.
9. Shri D. Anilkumar appearing for the petitioners in
W.P(C)No.9546 of 2021 submits that there is no denial that the
property was initially a plantation. It is submitted that under
Chapter III of the Kerala Land Reforms Act, every person who
holds land in excess of the ceiling area is to submit a declaration,
based on which the excess land that is to be surrendered to the
Government will have to be worked out. It is submitted that in the
case of plantations, there can be situations where a declaration is
not submitted by the owner, since the entire land held under
plantation is in the exempted category and there will not be any
excess lands at all. The counsel contends that in such cases there
may not even be any ceiling proceedings and the absence of
ceiling proceedings cannot be the basis of deciding whether the
land is exempted land under the Kerala Land Reforms Act. It is
further submitted that there is nothing to show that a land which
was earlier plantation is not the area where the proposed building
of the factory is to be constructed. The counsel referred to the
Environment Impact Assessment Notification, 2006 issued by the
Ministry of Environment, Forest and Climate Change, regarding
environmental clearance and submits that buildings which are
exceeding 20000M2 need environmental clearance. It is pointed
W.P.(C)Nos.18105 of 2020
out that the notification was later amended in the year 2016
whereby the built-up area was redefined, but the amendment has
been stayed by the Court in W.P.(C)No.3097 of 2016. The counsel
for the Panchayat endorses the contentions raised by the Sri
Anilkumar and submitted that the apprehension of the Panchayat
regarding the likelihood of the pollution that may be caused by the
starting of the industry is fully justified. It is submitted that all
such apprehensions should be answered even before the industry
is set up, so that things will not be led to a situation where
remedial measures will have to be taken. In answer to the above
contention the Senior Counsel appearing for the petitioner in W.P.
(C)No.18105 of 2020 submits that there has been a subsequent
amendment in the year 2018 whereby the figure 20000 has been
amended as 50000. The counsel further submitted that even
otherwise the proposed building is less than 20000M 2 in area. It is
further pointed out that the restriction regarding the area
contained in the 2006 notification as amended is concerning
Building or Construction projects or Area Development projects
and Townships as well as for industrial sheds, educational
institutions, hospitals and hostels for educational institutions and
does not take in an industry of the kind sought to be set up by the
petitioner in W.P.(C)No.18105 of 2020.
W.P.(C)Nos.18105 of 2020
10. Having heard the counsel on either side, I believe this
Court will not be justified in going into the aspect whether there is
a likelihood of a factory which is yet to be established, causing
pollution. Starting an industry in accordance with the rules that
govern the same is a lawful activity and there cannot be an
injunction against a lawful activity. The report of the Pollution
Control Board does not indicate any reason warranting the
stoppage of even the installation of the factory. This Court finds no
reason to suspect the report of the Pollution Control Board.
11. As regards the contention that the factory should not be
permitted in a land which was earlier a plantation, the issue is no
longer res integra. The only consequence of the land exempted
under the provisions of the Kerala Land Reforms Act being put to a
different use is that the exemption will no longer be available, and
the land thus used will have to be added to the total extent of the
declarant for the purpose of reworking the excess land. (See
Mathew K.Jacob and another v. District Environment Impact
Assessment Authority, Kottayam (FB) [2018 (4) KLT 913],
Nazar K.H. v. Mathew K.Jacob & Ors. [2019 (4) KLT 82
(SC)] and Kinallur Rock Sand v. State of Kerala & Ors. [2021
KHC 3252].
12. The next contention is regarding the constitutionality of
W.P.(C)Nos.18105 of 2020
the amendment to Section 233 of the Kerala Panchayat Raj Act,
which is raised in W.P.(C) 9546 of 2021. The contention is that the
right to refuse licence which was available with the Local Self
Government Institutions is taken away by the amendment. I do
not think the said issue needs to be gone into in these
proceedings. The challenge is not at the instance of any Local Self
Government Institution which has allegedly lost such a power. The
challenge is raised by persons who are apprehending pollution if an
industry is started and is more in the nature of a collateral
challenge to support the refusal of permission by the Local Self
Government. It can be seen from Section 233A that the entire
power of the Panchayat is not taken away. Even after the grant of
licence, it is well within the powers of the Panchayat to consider
whether the industry is causing any nuisance and take necessary
action to ensure that such nuisance is abated. Any issue regarding
pollution or the like can hence be addressed by the Panchayat,
even after the grant of permit. It is only if this Court is to hold that
the amendment is ex facie unconstitutional, this Court will be
justified in issuing a direction to stop the establishment of the
factory. The Hon'ble Supreme Court has held that in matters
involving challenge to the constitution of the legislation enacted by
the legislature and the rules framed thereunder, the courts should
W.P.(C)Nos.18105 of 2020
be extremely loath to pass an interim order. The Court observed
that at the time of final adjudication, the Court can strike down the
statute if it is found to be ultra vires. It was further held that the
operation of the statutory provisions cannot be stultified by
granting an interim order except when the court is fully convinced
that the particular enactment or the rules are ex facie
unconstitutional and the factors like balance of convenience,
irreparable injury and public interest are in favour of passing an
interim order. (See Shri Ram Krishna Dalmia v Shri Justice
S.R.Tendolkar & Ors. [AIR 1958 SC 538] and Health for
Millions v. Union of India & Ors. [(2014) 14 SCC 496].
13. It is difficult to hold that Section 233 as amended is ex
facie unconstitutional. A reading of the entire provision will show
that sufficient safeguards have been made to ensure that the
industry that is sought to be established complies with the
requirement of the environmental laws coming within the purview
of Pollution Control Board, the issue coming under the Factories
Act, the issues relating to Fire and Rescue and issues relating to
Health. It is only after being convinced about these factors, that
the Panchayat is obliged to grant permission. The mere fact that
the power of refusal is taken away does not mean that the
Panchayat can exercise the power to grant in an unregulated
W.P.(C)Nos.18105 of 2020
manner. It has also to be remembered that the amendment itself
was brought in with the purpose of easing business which also
cannot be termed as a purpose against public interest. So also on
the facts of the case it cannot be held that factors like the balance
of convenience, irreparable injury and prima facie case is in favour
holding that the industry should not be established. The above
observations are made only for the limited purpose of rendering a
finding on whether the statutory provision is ex facie
unconstitutional. Since the industry in question is only at the stage
of installation, I find that this is not a fit case to consider the issue
regarding the constitutionality of Section 233. The said contention
is hence left open and the observations made above will not
prejudice the contention in any manner.
14. In the result, W.P.(C)18105 of 2020 is allowed. Exts.P4,
P7 and P8 decisions of the 1 st respondent are set aside. The
respondents 1 and 2 are directed to consider the application
evidenced by Ext.P1, submitted by the petitioner, and grant them
the permit, if they are otherwise entitled for the same, strictly in
accordance with Section 233 of the Kerala Panchayat Raj Act. The
reasons stated in Exts.P4, P7 and P8 regarding the possibility of
pollution and the earlier nature of the land shall not be reasons to
reject the application. Necessary orders shall be issued within one
W.P.(C)Nos.18105 of 2020
month from the date of receipt of a certified copy of this judgment.
W.P.(C)No. 9546 of 2021 is closed without expressing any opinion
on the question as to the constitutionality of Section 233 of the
Kerala Panchayat Raj Act as amended and with liberty to the
petitioners to challenge the said provision in appropriate
proceedings, and with further liberty to approach the Court in case
of any violation of the conditions of the permit, if granted, or the
conditions prescribed by other statutory authorities for
establishment of the factory by the petitioner in W.P.(C)No.18105
of 2020, at a later stage.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)Nos.18105 of 2020
APPENDIX OF WP(C) 18105/2020
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE ACKNOWLEDGEMENT GENERATED
BY THE SANKETHAM E-PORTAL BEARING E-FILE
NO.06505960119001101459 DATED 17.08.2019.
EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT
NO.6588824 DATED 24.08.2019 ALONG WITH THE
CASH RECEIPT AND COVERING LETTER OF THE
PETITIONER.
EXHIBIT P3 A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT
NO.6589258 DATED 17.10.2019.
EXHIBIT P4 A TRUE COPY OF THE MINUTES OF THE COMMITTEE
OF THE 1ST RESPONDENT PANCHAYAT DATED
22.10.2019.
EXHIBIT P5 A TRUE COPY OF THE MINUTES OF THE URGENT
COMMITTEE MEETING OF THE 1ST RESPONDENT
PANCHAYAT DECIDING THE MATTER ON EXHIBIT P3
AS ITEM NO.1/2 DATED 22.10.2019.
EXHIBIT P6 A TRUE COPY OF THE LETTER OF THE 2ND
RESPONDENT BEARING NO.B1-4950/19 DATED
25.10.2019.
EXHIBIT P7 TRUE PHOTOCOPY OF THE COMMUNICATION DATED
28/1/2021 BEARING NO.A3-4633/20 ISSUED BY THE
2ND RESPONDENT ALONG WITH THE MINUTES OF
MEETING CONVENED ON 13/1/2021
EXHIBIT P8 TRUE PHOTOCOPY OF THE COMMUNICATION DATED
1/2/2021 BEARING NO A30-4633/20 ALONG WITH
THE MINUTES OF THE MEETING HELD ON 28/1/2021
EXHIBIT P9 TRUE PHOTOCOPY OF THE CONSENT TO ESTABLISH
ISSUED BY THE ADDITIONAL 4TH RESPONDENT DATED
19/3/2020 WHICH IS VALID UP TO 18/3/2025
EXHIBIT P10 TRUE PHOTOCOPY OF THE PERMIT NO.48/2020 DATED
29/2/2020 ISSUED BY THE DIRECTOR OF FACTORIES
AND BOILERS, THIRUVANANTHAPURAM
EXHIBIT P11 TRUE PHOTOCOPY OF THE FIRE SAFETY CLEARANCE
DATED 25/2/2020 BEARING NUMBER D1/7214/2019
ISSUED BY THE REGIONAL FIRE OFFICER, FIRE AND
RESCUE SERVICES, ERNAKULAM
EXHIBIT P12 TRUE PHOTOCOPY OF THE ORDER DATED 7/12/2019
BEARING NUMBER TCPIDK/772/2019-D ISSUED BY
THE TOWN PLANNER, IDUKKI
W.P.(C)Nos.18105 of 2020
RESPONDENT EXHIBITS
EXT.R2(A) TRUE COPY OF HARD COPY OF THE APPLICATION
DT.17.8.2019 FOR CONSTRUCTION, ESTABLISHMENT
OR INSTALLATION OF FACTORY, WORKPLACE IN
WHICH STEAM OR OTHER POWER IS TO BE EMPLOYED
SUBMITTED BY THE PETITIONER
EXT.R2(B) TRUE COPY OF REPORT DT.4.9.2019 SUBMITTED BY
THE ASSISTANT ENGINEER ATTACHED TO THE 1ST
RESPONDENT PANCHAYAT
EXT.R2(C) TRUE COPY OF COMMUNICATION DT.16.10.2010
ISSUED BY THE PETITIONER TO THE 2ND
RESPONDENT.
EXT.R2(D) TRUE COPY OF HARD COPY OF THE APPLICATION FOR
CONSTRUCTION, ESTABLISHMENT OR INSTALLATION
OF FACTORY, WORKPLACE IN WHICH STEAM OR OTHER
POWER DT.4.6.2020 SUBMITTED BY THE PETITIONER
EXT.R2(E) TRUE COPY OF EMAIL COMMUNICATION
DT.11.12.2020 SENT BY 1ST RESPONDENT TO GMAIL
EXT.R2(F) TRUE COPY OF REPLY MAIL DT.11.12.2020 ISSUED
BY GMAIL TO THE 1ST RESPONDENT
EXT.R2(G) TRUE COPY OF FILE NOTE DT.29.8.2019
EXT.R2(H) TRUE COPY OF COVERING LETTER DT.NIL SUBMITTED
BY THE PETITIONER ALONG WITH APPLICATION
RESUBMITTED ON 6.9.2019
EXT.R2(I) TRUE COPY OF COVERING LETTER DT.17.8.2019
SUBMITTED BY THE PETITIONER ALONG WITH
APPLICATION DT.17.8.2019
EXT.R2(J) TRUE COPY OF RECEIPT DT.9.10.2019 ISSUED BY
SRI MS VISWAM, REPRESENTATIVE OF THE
PETITIONER/COMPANY
EXT.R2(K) TRUE COPY OF FORWARDING LETTER OF THE THEN
SECRETARY DT.9.10.2019 TO THE TOWN PLANNER
EXT.R2(L) TRUE COPY OF FORWARDING LETTER OF THE THEN
SECRETARY DT.9.10.2019 TO THE FIRE AND RESCUE
DEPARTMENT.
EXT.R2(M) TRUE COPY OF ORDER DT.7.12.2019 ISSUED BY THE
OFFICE OF THE TOWN PLANNER.
EXHIBIT R2(N) TRUE COPY OF LETTER NO.KI-1868/2021
DT.27.2.2021 ISSUED BY THE TAHSILDAR,
THODUPUZHA TO THE 2ND RESPONDENT.
EXHIBIT R2(O) TRUE COPY OF RELEVANT EXTRACT OF THE
W.P.(C)Nos.18105 of 2020
PLANTATION REGISTER IN RESPECT OF THE LANDS
COMPRISED IN SY.No.1159/1 ISSUED BY THE
VILLAGE OFFICER, VELLIYAMATTOM.
EXHIBIT R2(P) TRUE COPY OF LETTER No.4633/20 DT.12.5.21
SUBMITTED BEFORE THE DISTRICT COLLECTOR,
IDUKKI BY THE 2ND RESPONDENT.
EXHIBIT R2(Q) TRUE COPY OF LETTER DT.8.7.2019 ISSUED BY THE
GEOLOGIST, IDUKKI TO THE TAHSILDAR,
THODUPUZHA.
EXHIBIT R2(R) TRUE COPY OF LETTER No.13-1/AE/LSGD/VLTM/21-
22 TO THE 2ND RESPONDENT.
EXHIBIT R2(S) TRUE COPY OF LETTER No.A3/4633/20 DT.21.4.21
ISSUED BY THE 2ND RESPONDENT TO THE
GEOLOGIST, IDUKKI
ANNEXURE R4(A): TRUE COPY OF CIRCULAR No.PCB/T4/115/97
DT.20.7.11 ISSUED BY THE BOARD
ANNEXURE R4(B): TRUE COPY OF THE CONSENT TO ESTABLISH
No.PCB/RO-EKM/IDK/O191DU976891/2020
DT.19.3.2020 ISSUED BY THE BOARD
ANNEXURE R4(C) TRUE COPY OF REPORT DT.5.12.2021 OF THE
ENVIRONMENTAL ENGINEER, DISTRICT OFFICE-2,
ERNAKULAM.
EXT.R3(A) TRUE COPY OF APPLICATION FOR REGISTRATION
DT.20.1.2020 SUBMITTED BY THE 3RD RESPONDENT
TO THE DISTRICT REGISTRAR ALONG WITH ITS
BYELAW
EXT.R3(B) TRUE COPY OF REGISTRATION CERTIFICATE
DT.19.2.2020 ISSUED BY THE REGISTRAR
EXT.R3(C) TRUE COPY OF PHOTOGRAPH SHOWING THE TAIL END
FITTED TO DISCHARGE WASTE FROM THE COMPANY
W.P.(C)Nos.18105 of 2020
APPENDIX OF WP(C) 9546/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF LETTER DATED 14.10.2019 WRITTEN
BY ASSISTANT EXECUTIVE ENGINEER (MVIP) TO
THE SECRETARY GRAMA PANCHAYAT.
EXHIBIT P2 TRUE COPY OF CONSENT ISSUED BY THE POLLUTION
CONTROL BOARD DATED 19.3.2020.
EXHIBIT P3 TRUE COPY OF ASSET REGISTER IN RESPECT OF
ELAMDESOM - MULLAKKARY PANCHAYATH ROAD.
EXHIBIT P4 TRUE COPY OF ORDER DATED 20/2/2020 ISSUED BY
THE 5TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF LETTER DATED 8/7/2019 ISSUED BY
THE GEOLOGIST, IDUKKI TO THE TAHSILDAR,
THODUPUZHA.
RESPONDENT EXHIBITS
Exhibit R6(a) TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT
NO.6589258 DATED 17-10-2019.
Exhibit R6(b) TRUE COPY OF THE MINUTES OF THE COMMITTEE OF
THE 3RD RESPONDENT PANCHAYAT DATED 22-10-
2019.
Exhibit R6(c) TRUE COPY OF THE MINUTES OF MEETING OF THE
3RD RESPONDENT PANCHAYAT.
Exhibit R6(d) TRUE COPY OF THE LETTER NO.B14950/19 DATED
25-10-2019.
Exhibit R6(e) TRUE COPY OF MINUTES OF MEETING OF THE
PANCHAYAT DATED 13-01-2021.
Exhibit R6(f) TRUE COPY OF THE MINUTES OF THE PANCHAYAT
COMMITTEE DATED 28-01-2021.
Exhibit R6(g) TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED
BY THE 4TH RESPONDENT DATED
Exhibit R6(h) TRUE COPY OF PERMIT NO.48/2020 DATED 29-02-
2020 ISSUED BY DIRECTOR, FACTORIES AND
BOILERS TRIVANDRUM.
Exhibit R6(i) TRUE COPY OF THE FIRE SAFETY CLEARANCE DATED
25.02.2020 BEARING NUMBER D1/7214/2019
ISSUED BY THE REGIONAL FIRE OFFICER, FIRE
AND RESCUE SERVICES, ERNAKULAM
Exhibit R6(j) TRUE COPY LETTER DATED 09.10.2019 FORWARDED
THE APPLICATION SUBMITTED BY THE 6TH
W.P.(C)Nos.18105 of 2020
RESPONDENT TO THE DISTRICT TOWN PLANNER,
IDUKKI
Exhibit R6(k) TRUE COPY OF THE ORDER DATED 07.12.2019
BEARING NUMBER TCPIDK/772/2019-D ISSUED BY
THE TOWN PLANNER, IDUKKI
Exhibit R6(l) TRUE COPY OF LETTER DATED 12.02.2021 BY THE
3RD RESPONDENT PANCHAYAT
Exhibit R6(m) TRUE COPY OF RENEWAL OF PERMIT FOR A PERIOD
OF ONE YEAR WITH EFFECT FROM 01.03.2021 VIDE
ORDER NO. T DATED 15.04.2021
Exhibit R6(n) TRUE COPY OF ASSET REGISTER OF THE 3RD
RESPONDENT PANCHAYATH
Exhibit R6(o) TRUE COPY OF THE PERMIT NO. A3-
BA(22855)/2019 DATED 30.11.2018 ISSUED BY
THE PANCHAYATH
Exhibit R6(p) TRUE COPY OF THE MOVEMENT PERMIT DATED
06.12.2017
Exhibit R3(a) TRUE COPY OF COMPLAINT DT.13.5.2019
SUBMITTED BY THE RESIDENTS OF KUNNEL
SCHEDULED CASTE COLONY IN WARD NO.12 OF
VELLIYAMATTOM PANCHAYAT BEFORE THE 3RD
RESPONDENT
Exhibit R3(b) TRUE COPY OF COMPLAINT DT.28.5.2019
SUBMITTED BY THE PANCHAYAT COMMITTEE OF
UNITED DEMOCRATIC FRONT, BEFORE THE 3RD
RESPONDENT
Exhibit R3(c) TRUE COPY OF LETTER DT.7.6.2019 SUBMITTED BY
THE 6TH RESPONDENT BEFORE THE 3RD
RESPONDENT.
Exhibit R3(d) TRUE COPY OF RESOLUTION No.11/1 TAKEN BY THE
PANCHAYAT COMMITTEE IN ITS MEETING HELD ON
25.6.2019
Exhibit R3(e) TRUE COPY OF LETTER DT.4.9.2019 ISSUED BY
THE ASSISTANT ENGINEER TO THE 3RD RSPONDENT.
Exhibit R3(f) TRUE COPY OF COVERING LETTER SUBMITTED BY
THE 6TH RESPONDENT ON 6.9.2019 BEFORE THE
3RD RESPONDENT.
Exhibit R3(g) TRUE COPY OF RESOLUTION NO.10/2 TAKEN BY THE
PANCHAYAT COMMITTEE IN ITS MEETING HELD ON
6.9.2019
Exhibit R3(h) TRUE COPY OF LETTER No.A4-7897/2019
DT.27.9.2019 ISSUED BY THE DEPUTY DIRECTOR
W.P.(C)Nos.18105 of 2020
OF PANCHAYAT, IDUKKI TO THE 3RD RESPONDENT.
Exhibit R3(i) TRUE COPY OF REPRESENTATION DT.27.9.2019
SUBMITTED BY THE PANCHAYAT COMMITTEE OF
INDIAN UNION MUSLIM LEAGUE BEFORE THE 3RD
RSPONDENT.
Exhibit R3(j) TRUE COPY OF RESOLUTION No.44/1 TAKEN BY THE
PANCHAYAT COMMITTEE, IN ITS MEETING HELD ON
30.9.2019
Exhibit R3(k) TRUE COPY OF LETTER NO.996/2019
DT.14.10.2019 ISSUED BY THE ASSISTANT
EXECUTIVE ENGINEER (MVIP) TO THE 3RD
RESPONDENT.
Exhibit R3(l) TRUE COPY OF MINUTES OF THE ALL PARTY
MEETING HELD ON 14.10.2019 AT THE PANCHAYAT.
Exhibit R3(m) TRUE COPY OF LETTER DT.16.10.2019 SUBMITTED
BY THE 6TH RESPONDENT BEFORE THE 3RD
RESPONDENT.
Exhibit R3(n) A TRUE COPY OF THE LETTER NO.D1-7214/2019
DATED 23.11.2019 ISSUED BY THE REGIONAL FIRE
OFFICER, ERNAKULAM TO THE 6TH RESPONDENT
Exhibit R3(o) A TRUE COPY OF THE REPORT DATED 29.02.2020
ISSUED BY THE ASSISTANT ENGINEER
Exhibit R3(p) A TRUE COPY OF THE REPORT DATED 20.06.2020
ISSUED BY THE ASSISTANT ENGINEER
Exhibit R3(q) A TRUE COPY OF THE LETTER NO.KI-1868/2021
DATED 27.2.2021 ISSUED BY THE TAHSILDAR,
THODUPUZHA TO THE 2ND RESPONDENT
Exhibit R3(r) A TRUE COPY OF THE RELEVANT EXTRACT OF THE
PLANTATION REGISTER IN RESPECT OF THE LANDS
COMPRISED IN SY.NO.1159/1 ISSUED BY THE
VILLAGE OFFICER, VELLIYAMATAM
Exhibit R3(s) A TRUE COPY OF LETTER NO.4633/20 DATED
12.5.2021 SUBMITTED BEFORE THE DISTRICT
COLLECTOR, IDUKKI BY THE 2ND RESPONDENT
Exhibit R3(t) A TRUE COPY OF THE COMPLAINT DATED
17.10.2019 SUBMITTED BY ANIL RAGHAVAN AND 2
OTHERS BEFORE THE DISTRICT COLLECTOR WHICH
WAS FORWARDED TO THE 3RD RESPONDENT
Exhibit R3(u) A TRUE COPY OF THE MINUTES OF THE MEETING
HELD ON 22.10.2019 BY THE PANCHAYATH
COMMITTEE
Exhibit R3(v) A TRUE COPY OF THE LETTER NO.B1-4950/19
W.P.(C)Nos.18105 of 2020
DATED 25.10.2019 ISSUED TO THE 6TH
RESPONDENT BY THE 3RD RESPONDENT
Exhibit R3(w) A TRUE COPY OF THE LETTER NO.B4-5199/19
DATED 29.10.2019 SUBMITTED BEFORE THE DEPUTY
DIRECTOR OF THE PANCHAYATH, IDUKKI BY THE
3RD RESPONDENT
Exhibit R3(x) A TRUE COPY OF THE RESOLUTION NO.22/1 TAKEN
IN THE MEETING HELD ON 22.07.2020 BY THE
PANCHAYATH COMMITTEE
Exhibit R3(y) A TRUE COPY OF THE LETTER NO.A3-4633/20
ISSUED BY THE SECRETARY TO THE 6TH
RESPONDENT
Exhibit R3(z) A TRUE COPY OF THE LETTER NO.13-
1/AE/LSGD/VLTM/21-22 DATED 16.4.2021 ISSUED
BY THE ASSISTANT ENGINEER, TO THE 3RD
RESPONDENT
Exhibit R3(z1) A TRUE COPY OF THE LETTER NO.A3/4633/20
DATED 21.4.2021 ISSUED BY THE 3RD RESPONDENT
TO THE GEOLOGIST, KOCHI
Exhibit R3(z2) A TRUE COPY OF THE LETTER NO.A3/4633/20
DATED 22.4.2021 ISSUED BY THE 3RD RESPONDENT
TO THE 6TH RESPONDENT
