Unity Construction vs. Vengola Grama Panchayat - Kerala High Court, 08 July 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH THUR AY, 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 THUR AY, 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 : J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ 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.

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 : 6 : Certificate was issued to the petitioner in WP(C) No.10173/2021 also.

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.

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 : 7 :

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.

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 : 8 : Control Board. According to respondents 4 and 5, the Pollution Control Board has not so far issued consent to operate.

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.

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 : 9 : 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 : 10 : 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. N. NAGARESH, JUDGE aks/27.07.2021

WP(C) Nos.9247 & 10173 of 2021 : 11 : APPENDIX OF WP(C) 9247/2021 PETITIONER'S EXHIBITS: EXHIBIT P1OF 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 P2OF THE ACKNOWLEDGEMENT CERTIFICATE DATED 31.12.2020 VALID UP TO 31.12.2023, ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3OF THE PROCEEDING DATED 15.1.2021 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P4OF THE CERTIFICATE DATED 15.1.2021 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P5OF THE NO OBJECTION CERTIFICATE (FINAL) NO.G-3034/20 DATED 22.7.2020 ISSUED BY THE DISTRICT FIRE OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM. EXHIBIT P6OF THE CERTIFICATE DATED 8.12.2020, ISSUED FIREFLY ENTERPRISES, PERTAINING TO THE ESTABLISHMENT OF FIRE EXTINGUISHERS BY THE PETITIONERS EXHIBIT P7OF THE GST REGISTRATION NO.32AAGFU0520PIZ7

ENJOYS

THE 1ST PETITIONER WITH EFFECT FROM 5.8.2019. EXHIBIT P8OF THE LETTER BEARING NO.A2/2150/2021 DATED 1.3.2021 ISSUED BY TEH IST RESPONDENT. EXHIBIT P9OF THE RECEIPT NO.7699288 DATED 16.3.2021 ISSUED FROM THE OFFICE OF THE IST RESPONDENT. EXHIBIT P10OF THE RESOLUTION NO.1(1) DATED 23.3.2021 PASSED BY THE 2ND RESPONDENT. EXHIBIT P11OF THE NOTICE NO.A2 2777/2021 DATED 29.3.2021 ISSUED BY THE IST RESPONDENT.

WP(C) Nos.9247 & 10173 of 2021 : 12 : APPENDIX OF WP(C) 10173/2021 PETITIONER'S EXHIBITS: EXHIBIT P1 AOF THE CONSENT ORDER ISSUED BY THE POLLUTION CONTROL BOARD, PERUMBAVOOR TO THE PETITIONER DATED 16.11.2020. EXHIBIT P2 AOF THE ACKNOWLEDGEMENT CERTIFICATE ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ERNAKULAM DATED 2.2.2021. EXHIBIT P3 AOF THE STOP MEMO ISSUED BY THE RESPONDENT TO THE PETITIONER DATED 5.1.2021. EXHIBIT P4 AOF THE JUDGMENT REPORTED IN 2021(H) KHC 255(LIZY ABY V.STATE OF KERALA AND OTHERS) EXHIBIT P5 AOF THE DECISION OF THIS HON'BLE COURT REPORTED IN 2021(1) KHC 337. EXHIBIT P6 AOF THE PROCEEDINGS OF THE SECRETARY, IKKARANADU GRAMA PANCHAYATH DATED 21.01.2021. EXHIBIT P7 AOF THE JUDGMENT IN WP(C) NO. 28283/2020 OF THIS HON'BLE COURT DATED 21.12.2020. EXHIBIT P8 AOF THE JUDGMENT IN WP(C) NO. 4997/2021 OF THIS HON'BLE COURT DATED 25.02.2021. EXHIBIT P9 AOF THE STOP A2-38/2021 OF THE SECRETARY VENGOLA GRAMA PANCHAYATH DATED 15.03.2021. EXHIBIT P10 AOF THE DECISION NO.1/1 OF THE VENGOLA GRAMA PANCHAYATH DATED 23.3.2021. EXHIBIT P11 AOF THE NOTICE ISSUED BY THE SECRETARY, THE VENGOLA GRAMA PANCHAYATH TO THE PETITIONER DATED 29.03.2021. EXHIBIT P12 AOF 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 ncd