Kerala High CourtUnity Construction vs Vengola Grama Panchayat on 8 July, 2021Author:N.NagareshBench:N.NagareshIN THE HIGH COURT OF KERALA AT ERNAKULAM\n                         PRESENT\n           THE HONOURABLE MR.JUSTICE N.NAGARESH\n   THURSDAY, THE 8TH DAY OF JULY 2021/17TH ASHADHA, 1943\n                  WP(C) NO. 9247 OF 2021\n\n\nPETITIONERS:\n\n    1    UNITY CONSTRUCTION, METHALA P.O.,\n         PERUMBAVOOR, ERNAKULAM DISTRICT,\n         PIN-683 545, REPRESENTED ITS\n         MANAGING PARTNER RAJEEV P.K.\n\n    2    RAJEEV P.K.,S/O. KRISHNANKUTTY,\n         AGED 42 YEARS, PULICKAKUDY HOUSE,\n         METHALA P.O., PERUMBAVOOR,\n         ERNAKULAM DISTRICT, PIN-683 545.\n\n         BY ADVS.\n         BABU JOSEPH KURUVATHAZHA\n         SRI.M.G.SREEJITH\n\n\nRESPONDENTS:\n\n    1    VENGOLA GRAMA PANCHAYAT, VENGOLA P.O.,\n         ERNAKULAM DISTRICT, PIN-683 556,\n         REPRESENTED BY ITS SECRETARY.\n\n    2    VENGOLA GRAMA PANCHAYAT COMMITTEE,\n         VENGOLA GRAMA PANCHAYAT, VENGOLA P.O.,\n         ERNAKULAM DISTRICT, PIN-683 556,\n         REPRESENTED BY ITS PRESIDENT.\n\n    3    ENVIRONMENTAL ENGINEER,\n         KERALA STATE POLLUTION CONROL BOARD,\n         DISTRICT OFFICE-2,\n         NEAR KALLUNGAL AUDITORIUM,\n         PERUMBAVOOR,\n         ERNAKULAM DISTRICT, PIN-683 545.\n WP(C) Nos.9247 & 10173 of 2021\n                                 :2 :\n\n\n     4      DISTRICT INDUSTRIES CENTRE,\n            ERNAKULAM, KUNNUMPURAM-CIVIL STATION ROAD,\n            ECHAMUKKU, THRIKKAKARA, VAZHAKKALA,\n            KAKKANAD, KOCHI-682 030,\n            REPRESENTED BY ITS GENERAL MANAGER.\n\n            R1-R2 BY ADV SHRI.C.A.NAVAS, SC\n            R3 BY SRI. T. NAVEEN, SC\n            R4 BY GOVT. PLEADER SRI MANU RAJ\n\n     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR\nADMISSION ON 08.07.2021, ALONG WITH WP(C).10173/2021, THE\nCOURT ON THE SAME DAY DELIVERED THE FOLLOWING:\n WP(C) Nos.9247 & 10173 of 2021\n                                  :3 :\n\n\n\n\n           IN THE HIGH COURT OF KERALA AT ERNAKULAM\n                                 PRESENT\n              THE HONOURABLE MR.JUSTICE N.NAGARESH\n   THURSDAY, THE 8TH DAY OF JULY 2021/17TH ASHADHA, 1943\n                      WP(C) NO. 10173 OF 2021\n\n\nPETITIONER:\n\n            M/S.HIRA CONSTRUCTIONS, 13/2,\n            PERINGALA, KUMARAPURAM - 683 565,\n            REPRESENTED BY ITS MANAGING PARTNER,\n            K.S. MUHAMMAD, S/O. SULAIMAN,\n            AGED 62 YEARS, RESIDING AT KALLUNGAL HOUSE,\n            PERINGALA P.O., ERNAKULAM DISTRICT - 683565.\n\n            BY ADVS.\n            PAUL K.VARGHESE\n            SMT.A.A.GEETHA\n\n\nRESPONDENTS:\n\n     1      THE VENGOLA GRAMA PANCHAYAT\n            VENGOLA, NEAR PERUMBAVOOR,\n            ERNAKULAM DISTRICT - 683 556,\n            REPRESENTED BY ITS SECRETARY.\n\n     2      SECRETARY,\n            VENGOLA GRAMA PANCHAYATH,\n            VENGOLA, NEAR PERUMBAVOOR,\n            ERNAKULAM DISTRICT - 683 556.\n\n     3      THE COMMITTEE,\n            VENGOLA GRAMA PANCHAYATH,\n            VENGOLA, NEAR PERUMBAVOOR,\n            ERNAKULAM DISTRICT - 683 556,\n            REPRESENTED BY ITS PRESIDENT.\n WP(C) Nos.9247 & 10173 of 2021\n                                 :4 :\n\n\n*    4      ROBERT RAISON CORREYA, AGED 34 YEARS,\n            S/O SAMSON CORREYA, AMBATTU HOUSE,\n            ANGLO INDIAN COLONY,\n            CHUNDAMALAPPURAM, VENGOLA,\n            ERNAKULAM-683 556.\n\n            (SUPPLEMENTAL R4 IS IMPLEADED AS PER ORDER DATED\n            23/04/2021 IN I. A. NO. 1/2021 IN WP(C)\n            10173/2021.\n\n*    5      BINOY, AGED 40 YEARS, S/O VARGHESE,\n            MULLAMANGALAM HOUSE, WARD NO. 23,\n            ARAKKAPADY VILLAGE, VENGOLA,\n            ERNAKULAM DISTRICT.\n\n            (SUPPLEMENTAL R5 IS IMPLEADED AS PER ORDER DATED\n            23/04/2021 IN I. A. NO. 1/2021 IN WP(C)\n            10173/2021.\n\n            BY ADVS.\n            SHRI.C.A.NAVAS, SC, VENGOLA GRAMA PANCHAYAT\n            R4, R5 - SMT. VIDYA KURIAKOSE\n            SRI.V.SREEJITH (K/1398/2000)\n\n     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR\nADMISSION ON 08.07.2021, ALONG WITH WP(C).9247/2021, THE\nCOURT ON THE SAME DAY DELIVERED THE FOLLOWING:\n WP(C) Nos.9247 & 10173 of 2021\n                                  :5 :\n\n\n\n\n                          JUDGMENT~~~~~~~~~\n\n                 Dated this the 8th day of July, 2021\n\n                 [WP(C) Nos.9247 & 10173 of 2021]\n\n\n\n\n            Both these writ petitions are filed by partnership\n\nfirms running Bitumen Hot Mix Plant in Vengola Grama\n\nPanchayat and the writ petitioners are aggrieved by the\n\ndecision taken by the Grama Panchayat Committee on\n\n23.03.2021. Hence, they are heard together and being\n\ndisposed of by a common judgment.2.    The petitioners in WP(C) No.9247/2021 submitted\n\nan application for getting licences of all statutory authorities to\n\nrun a Bitumen Hot Mix Plant, through the Single Window\n\nClearance Board. The Board issued Ext.P2 Acknowledgment\n\nCertificate. Ext.P3 proceedings were also issued by the Board\n\npermitting the 1st petitioner to operate the Plant.           The\n\npetitioner in WP(C) No.10173/2021 also submitted similar\n\napplication to the Board and Ext.P2 Acknowledgment\n WP(C) Nos.9247 & 10173 of 2021:6 :Certificate     was    issued    to       the   petitioner   in   WP(C)\n\nNo.10173/2021 also.3.      According to the petitioners, once the Single\n\nWindow        Clearance    Board      issues     an   Acknowledgment\n\nCertificate under Section 5 of the Kerala Micro, Small and\n\nMedium Enterprises Facilitation Act, 2019, it has the effect as\n\nif it is a grant of licences, permission, approvals, clearances,\n\nregistration, consents, no objection certificates and the like,\n\nrequired under any State law in connection with the\n\nestablishment or operation of MSME in the State.4.      However, the Committee of the Vengola Grama\n\nPanchayat which met on 23.03.2021 decided to stop the\n\nfunctioning of all establishments causing pollution and to issue\n\nnotice to Firms having Bitumen Hot Mixing Plants functioning\n\nin the Panchayat.         In spite of the objection raised by the\n\nSecretary to the Grama Panchayat based on the provisions of\n\ntheMSME Facilitation Act, 2019, the Committee directed the\n\nSecretary to issue notice to the Firms running Bitumen Hot\n\nMix Plants.WP(C) Nos.9247 & 10173 of 2021:7 :5.    Pursuant to the said decision taken by the\n\nPanchayat Committee on 23.03.2021, the petitioners were\n\nserved with Ext.P11 notice. The petitioners contended that in\n\nview ofSection 6of the MSME Facilitation Act, 2019, the\n\npetitioners are entitled to run their units based on the\n\nAcknowledgment Certificates issued to them.This Court has\n\nheld in the judgment inLizy Aby v. State of Kerala[2021 (1)\n\nKHC 255] that a Panchayat cannot issue Stop Memos to\n\nindustrial units on the basis of complaints of pollution, without\n\nfirst arriving at a conclusion on pollution based on materials.6.    The supplemental respondents 4 and 5 in WP(C)\n\nNo.10173/2021 filed a counter affidavit in the writ petition and\n\ncontested the case. Respondents 4 and 5 stated that the Hot\n\nMix Plants run by the petitioners result in serious pollution\n\nissues. When the Pollution Control Board issued consent to\n\nestablish, the local residents submitted a mass petition before\n\nthe Pollution Control Board. Thereupon, the Environmental\n\nEngineer sent a letter dated 05.01.2021 to the units directing\n\nthem to comply with all the directions issued by the Pollution\n WP(C) Nos.9247 & 10173 of 2021:8 :Control Board.        According to respondents 4 and 5, the\n\nPollution Control Board has not so far issued consent to\n\noperate.7.    Respondents 4 and 5 contended that as perSection 166of the Kerala Panchayat Raj Act, it is the duty of\n\nthe Panchayat to meet the requirements of the Village\n\nPanchayat area in respect of matters enumerated it in the\n\nthird schedule. Maintenance of environmental hygiene is one\n\nof the mandatory functions of the Panchayat.8.    The learned counsel for respondents 4 and 5 relied\n\non a Division Bench judgment of this Court inGeorge Joseph\n\nand others v. Bose Well John and others[2021 (1) KHC\n\n609] in which it has been held that a contractor has to secure\n\nnecessary establishment permit in order to install Hot Mix\n\nPlant and only after establishment of unit, the contractor can\n\nseek for trade licence. In the facts and circumstances of the\n\ncase, the writ petition is liable to be dismissed, contended\n\nrespondents 4 and 5.9.    Heard the learned counsel for the petitioners, the\n WP(C) Nos.9247 & 10173 of 2021:9 :learned Standing Counsel for the Panchayat, the learned\n\nGovernment Pleader representing respondents 3 and 4 in\n\nWP(C) No.9247/2021 and the learned counsel appearing for\n\nadditional respondents 4 and 5 in WP(C) No.10173/2021.10. The petitioners have started their units and are\n\nrunning       Bitumen     Hot    Mix    Plant,   after     obtaining\n\nAcknowledgment Certificates from the Board.              Issuance of\n\nAcknowledgment Certificate will have the effect of the\n\npetitioners     having      licences,   permissions,      approvals,\n\nclearances, registration, consents, no objection certificates\n\nand the like, required under any State law in connection with\n\nthe establishment or operation of Micro, Small and Medium\n\nEnterprise in the State for a period of three years, in view ofSection 6read with Section 2(c) of the Kerala of Micro, Small\n\nand Medium Enterprises Facilitation Act, 2019.11. The Grama Panchayat has decided to stop the\n\nfunctioning of the Hot Mix Plants based on complaints\n\nreceived from various quarters with regard to environmental\n\npollution resulting from such plants. The impugned decision\n WP(C) Nos.9247 & 10173 of 2021: 10 :of the Grama Panchayat dated 23.03.2021 does not disclose\n\nthat the Panchayat has arrived at any finding on the alleged\n\npollution resulting from the units of the petitioners. This Court\n\nhas held in the judgment inLizy Aby v. State of Kerala[2021\n\n(1) KHC 255] that a Panchayat cannot issue Stop Memos to\n\nindustrial units on the basis of complaints of pollution, without\n\nfirst arriving at a conclusion on pollution, based on materials.\n\nNo material has been placed before this Court to show that\n\nthe Panchayat has conducted any study in the matter either by\n\nitself or through a competent body.12. For the said reason, the writ petitioners should\n\nsucceed. The impugned Ext.P10 decision dated 23.03.2021 of\n\nthe 1st respondent Panchayat and Ext.P11 notices issued\n\npursuant thereto are hence set aside.Writ petitions are disposed of as above.Sd/-N. NAGARESH, JUDGE\n\naks/27.07.2021\n WP(C) Nos.9247 & 10173 of 2021: 11 :APPENDIX OF WP(C) 9247/2021\n\nPETITIONER'S EXHIBITS:EXHIBIT P1          TRUE COPY OF THE CONSENT TO PERATE BEARING\n                    CONSENT      NO.O19ERNA-CTO-673915       DATED\n                    17.1.2020, VALID UP TO 29.9.2025, ISSUED\n                    BY THE 3RD RESPONDENT.EXHIBIT P2          TRUE    COPY     OF    THE    ACKNOWLEDGEMENT\n                    CERTIFICATE DATED 31.12.2020 VALID UP TO\n                    31.12.2023, ISSUED BY THE 4TH RESPONDENT.\nEXHIBIT P3          TRUE   COPY    OF    THE   PROCEEDING    DATED\n                    15.1.2021 ISSUED BY THE 4TH RESPONDENT.\nEXHIBIT P4          TRUE   COPY    OF   THE   CERTIFICATE    DATED\n                    15.1.2021 ISSUED BY THE 4TH RESPONDENT.\nEXHIBIT P5          TRUE COPY OF THE NO OBJECTION CERTIFICATE\n                    (FINAL)    NO.G-3034/20     DATED    22.7.2020\n                    ISSUED BY THE DISTRICT FIRE OFFICER, FIRE\n                    & RESCUE SERVICES, ERNAKULAM.EXHIBIT P6          TRUE   COPY    OF   THE   CERTIFICATE    DATED\n                    8.12.2020, ISSUED FIREFLY ENTERPRISES,\n                    PERTAINING TO THE ESTABLISHMENT OF FIRE\n                    EXTINGUISHERS BY THE PETITIONERS\nEXHIBIT P7          TRUE   COPY    OF    THE   GST    REGISTRATION\n                    NO.32AAGFU0520PIZ7       ENJOYS     THE    1ST\n                    PETITIONER WITH EFFECT FROM 5.8.2019.\nEXHIBIT P8          TRUE    COPY    OF    THE    LETTER    BEARING\n                    NO.A2/2150/2021 DATED 1.3.2021 ISSUED BY\n                    TEH IST RESPONDENT.EXHIBIT P9          TRUE COPY OF THE RECEIPT NO.7699288 DATED\n                    16.3.2021 ISSUED FROM THE OFFICE OF THE\n                    IST RESPONDENT.EXHIBIT P10         TRUE COPY OF THE RESOLUTION NO.1(1) DATED\n                    23.3.2021 PASSED BY THE 2ND RESPONDENT.EXHIBIT P11         TRUE COPY OF THE NOTICE NO.A2 2777/2021\n                    DATED    29.3.2021    ISSUED    BY   THE   IST\n                    RESPONDENT.\n WP(C) Nos.9247 & 10173 of 2021: 12 :APPENDIX OF WP(C) 10173/2021\n\nPETITIONER'S EXHIBITS:\n\nEXHIBIT P1        A TRUE COPY OF THE CONSENT ORDER ISSUED BYTHE POLLUTION CONTROL BOARD, PERUMBAVOOR TO\n                  THE PETITIONER DATED 16.11.2020.EXHIBIT P2        A   TRUE   COPY   OF   THE    ACKNOWLEDGEMENT\n                  CERTIFICATE ISSUED BY THE GENERAL MANAGER,\n                  DISTRICT INDUSTRIES CENTRE, ERNAKULAM DATED\n                  2.2.2021.EXHIBIT P3        A TRUE COPY OF THE STOP MEMO ISSUED BY THE\n                  RESPONDENT    TO   THE    PETITIONER    DATED\n                  5.1.2021.\nEXHIBIT P4        A TRUE COPY OF THE JUDGMENT REPORTED IN2021(H) KHC 255(LIZY ABY V.STATE OF KERALA\n                  AND OTHERS)\nEXHIBIT P5        A TRUE COPY OF THE DECISION OF THIS HON'BLE\n                  COURT REPORTED IN 2021(1) KHC 337.EXHIBIT P6        A TRUE COPY OF THE PROCEEDINGS OF THE\n                  SECRETARY,   IKKARANADU    GRAMA   PANCHAYATH\n                  DATED 21.01.2021.EXHIBIT P7        A TRUE COPY OF THE JUDGMENT IN WP(C) NO.28283/2020 OF THIS HON'BLE COURT DATED\n                  21.12.2020.EXHIBIT P8        A TRUE COPY OF THE JUDGMENT IN WP(C) NO.4997/2021 OF THIS HON'BLE COURT DATED\n                  25.02.2021.EXHIBIT P9        A TRUE COPY OF THE STOP A2-38/2021 OF THE\n                  SECRETARY VENGOLA GRAMA PANCHAYATH DATED\n                  15.03.2021.EXHIBIT P10       A TRUE COPY OF THE DECISION NO.1/1 OF THE\n                  VENGOLA GRAMA PANCHAYATH DATED 23.3.2021.\nEXHIBIT P11       A TRUE COPY OF THE NOTICE ISSUED BY THE\n                  SECRETARY, THE VENGOLA GRAMA PANCHAYATH TO\n                  THE PETITIONER DATED 29.03.2021.EXHIBIT P12       A TRUE COPY OF THE COMPLAINT BY THE\n                  PETITIONER BEFORE THE REVENUE DIVISIONAL\n                  OFFICER, MUVATTUPUZHA DATED 17.04.2021.\nEXHIBIT P13       A PHOTOGRAPH OF THE BITUMEN MIXING PLANT\n                  PUT UP BY THE PETITIONER\nncd