Dismissed

K.P.Rajan and Others v. the Rayamangalam Grama Panchayat & Ors.

Kerala HC16 Nov 2011WP(C)/1140/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging a Panchayat resolution and building permit for an industrial unit. The court held that effective statutory remedies existed and the petition was not maintainable without exhausting them, while granting a temporary stay on production.

What did the court decide?

Writ petition dismissed; liberty reserved to approach statutory authorities; respondent restricted from commencing production for one month.

K.P.Rajan and Others Vs the Rayamangalam Grama Panchayat… — Land Acquisition | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933

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WP(C).No. 1140 of 2011(N)

PETITIONER(S):

K.P.RAJAN,

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KALLEPPILLIL HOUSE, KEEZHILLAM P.O., ERNAKULAM.

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JOSEPH M.M.,

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MOLAYIL HOUSE, KEEZHILLAM P.O., ERNAKULAM.

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VINIL KUMAR K.S., LAKSHMI NIVAS, KEEZHILLAM P.O., ERNAKULAM.

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SANTHOSH KUMAR N.P., KALLEPPILLIL HOUSE, KEEZHILLAM P.O., ERNAKULAM.

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BIJU JOSEPH, PULIKKAKKUDI HOUSE, KEEZHILLAM P.O., ERNAKULAM.

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BABY T.C.,

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THATTALAYIL HOUSE, KEEZHILLAM P.O., ERNAKULAM.

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MATHEW JOSEPH, PULIKKAKUDI HOUSE, KEEZHILLAM P.O., ERNAKULAM.

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O.P.THOMAS,

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OLIKKAL HOUSE, KEEZHILLAM P.O., ERNAKULAM.

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S.GOPALAKRISHNAN NAIR, KALLEPPILLIL HOUSE, OLIKKAL HOUSE, KEEZHILLAM P.O., ERNAKULAM.

BY ADV. SRI.V.G.ARUN

SRI.T.R.HARIKUMAR

RESPONDENT(S):

THE RAYAMANGALAM GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, RAYAMANGALAM P.O., ERNAKULAM DISTRICT-683 545.

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WP(C).No. 1140 of 2011(N) 2

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THE RAYAMANGALAM GRAMA PANCHAYAT COMMITTEE, REPRESENTED BY ITS PRESIDENT, RAYAMANGALAM P.O., ERNAKULAM DISTRICT-683 545.

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SRI. LIJIN MATHAI, KODIYATTIL HOUSE, KEEZHILLAM P.O., ERNAKULAM, PIN-683 541.

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THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, ERNAKULAM-682 020.

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THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,

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THIRUVANANTHAPURAM-695 001.

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ADV. SRI.THAMPAN THOMAS FOR R3

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SRI.M.K.CHANDRAMOHAN DAS,SC,POLL.C.BOAR FOR R-4

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SRI.N.K.KARNIS FOR R1

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GOVERNMENT PLEADER SMT.ROSE MICHAEL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD

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ON 16/11/2011, THE COURT ON 16/11/2011 DELIVERED THE FOLLOWING:

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APPENDIX

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WP(C).No. 1140 of 2011(N) 3

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PETITIONERS EXHIBITS:

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EXT.P1- COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER UNDER THE RIGHT TO INFORMATION ACT DATED 25.9.2010.

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EXT.P2- COPY OF THE REPLY GIVEN BY THE 1ST RESPONDENT ALONG WITH THE REQUISITE DETAILS DATED 20.10.2010

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EXT.P3- COPY OF THE APPLICATION SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT PANCHAYAT

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EXT.P4- COPY OF THE MASS PETITION SUBMITTED BEFORE THE CHIEF MINISTER

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EXT.P5- A COPY OF THE LETTER DATED 17.8.2008

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EXT.P6- COPY OF THE PROCEEDINGS OF THE MEETING HELD ON 5.11.2008

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EXT.P7- COPY OF THE MINUTES OF THE GRAMA SABHA OF WARD NO.8 DATED 23.11.2008

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EXT.P8- COPY OF THE LETTER DATED 26.12.2008 ISSUED BY THE SENIOR TOWN PLANNER, ERNAKULAM

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EXT.P9- COPY OF THE NO OBJECTION CERTIFICATE DATED 3.4.2009

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EXT.P10- COPY OF THE MINUTES OF THE MEETING HELD ON 19.6.09 ISSUED TO THE 1ST RESPONDENT UNDER LETTER DATED 2.7.2009

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EXT.P11- COPY OF THE CONSENT BY THE 4TH RESPONDENT DATED 10.7.2009

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EXT.P12- COPY OF THE CHART SHOWING THE DISTANCE TO THE HOUSES SITUATED WITHIN 100 METERS OF THE PROPOSED UNIT

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EXT-P13- COPY OF THE RESOLUTION NO.10(2) DATED 13.8.2009 OF THE 2ND RESPONDENT

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EXT.P14- COPY OF THE APPROVED SITE PLANNER

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EXT.P14(A)- COPY OF THE APPROVED BUILDING PLAN

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EXT.P15- COPY OF THE BUILDING PERMIT DATED 17.8.2009 ISSUED ALONG WITH COVERING LETTER DATED 23.9.2010

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EXT.P16- COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONERS ADDRESSED T O THE DISTRICT COLLECTOR, ERNAKULAM

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EXT.P17- A TRUE COPY OF THE LETTER DATE 12-01-2011 ISSUED FROM THE OFFICE OF THE DISTRICT COLLECTOR

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WP(C).No. 1140 of 2011(N) 4

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EXT.P18- A TRUE COPY OF THE NOTICE DATED 21.8.2010 ISSUED BY THE JANAKEEYA SAMITHY OF WARD NO.8

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EXT.P19- A TRUE COPY OF THE NEWS ITEM REGARDING THE AGITATION PUBLISHED IN THE MATHRUBHUMI DAILY DATED 26.9.2010

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EXT.P20- A TRUE COPY OF THE MINUTES OF THE GRAMA SABHA PROCEEDING ISSUED TO THE 5TH PETITIONER UNDER RIGHT OT INFORMATION ACT DATED 17.2.2011.

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RESPONDENTS EXHIBITS:

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EXT.R3(1)- TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 11.02.2011 FROM THE CHIEF CONSERVATOR OF FOREST.

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EXT.R3(2)- TRUE COPY OF THE PHOTOGRAPH OF GOVERNMENT TIMBER DEPOT VETTOR.

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EXT.R3(3)- TRUE COPY OF THE DECISION IN W.P.(C) NO.9155 OF 2007 & 18355 & 18587 OF 2011

//TRUE COPY//

PA TO JUDGE

C.K. ABDUL REHIM,J.

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W.P.(C) No. 1140 OF 2011

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Dated this the 16th day of November, 2011

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JUDGMENT

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This writ petition is filed challenging Ext.P13 resolution adopted by the 1^st respondent Grama Panchayat and Ext.P15 Building Permit granted for construction of a Factory building issued under the Kerala Municipality Building Rules, 1999 along with Ext.P14 and P14(a) approved plans appended to such Building Permit.

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The 3^rd respondent had applied for establishment of an industry engaged in the process of 'Rubber Wood Peeling' and 'Vinyl Drying' as per Ext.P3 application. He had also applied for grant of Building Permit under the provision of Kerala Municipality Building Rules, 1999. The impugned resolution Ext.P13 was taken by the 1^st respondent Panchayat granting permission for installation of industrial unit. The Secretary of the 1^st respondent Panchayat had issued Ext.P15 Building Permit for construction of the Factory building.

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W.P.C. No. 1140 OF 2011 -2-

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It is contended that the establishment of the proposed industrial unit will cause health hazard and pollution problems to the nearby residents, including the petitioners, and that it will pollute the water resources in the area. It is also pointed out that there is illegality, irregularity and infirmity in granting the permission for installation and the Building Permit. Various anomalies and discrepancies have been pointed out in the application submitted and in the sanction granted. On the other hand, the 3rd respondent contended that the Factory is being established after obtaining all the requisite permits, licenses and consents from various authorities, including consent to establish granted by 4th respondent.

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Before considering the controversies, I take note of the fact that, the petitioner has got an effective remedy of appeal against Ext.P13 as provided under Section 276(5)(b) of the Kerala Panchayat Raj Act, 1994. Such appeal need be preferred before the Tribunal for Local self Government Institutions established by virtue of Section 271 S of the said Act. One of the contention raised by the petitioner is that Ext.P13 resolution

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W.P.C. No. 1140 OF 2011 -3-

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adopted by the 1st respondent Panchayat was liable to be resented in exercise of powers vested on the Government under Section 191. But it is evident from Section 191(3) that the Government is prevented from exercising such suo moto power if another remedy is available to the petitioners through the Tribunal under Section 276.

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So also against the granting of Building Permit, the petitioners can seek statutory remedy as contemplated under the provision of Kerala Panchayat Raj Act or under the Kerala Municipality Building Rules 1999. I am of the considered opinion that this writ petition which is filed without resorting to such remedy cannot be entertained, as such remedies are effective and alternative statutory remedies. However, I am of the view that the factual aspects in dispute between the parties cannot be adjudicated and resort in this writ petition, which is filed under Aticle 226.

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I notice that this Court had issued interim order on 13.01.2011 directing the respondents to maintain status quo. But on 18.02.2011 the said order was modified to the extent of

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W.P.C. No. 1140 OF 2011 -4-

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permitting the 3^rd respondent to continue the construction activities for establishment of industry subject to result of this writ petition, purely on the risk of 3^rd respondent. However, commencement of industry was directed to be kept in abeyance until further orders from this Court.

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Learned counsel for the petitioner pointed out that for commencing production in the industrial unit the 3^rd respondent has not obtained consent to operate, from the 4^th respondent. So also it is contented that no sanction for commencing production contemplated under Section 232 of Kerala Panchayat Raj Act has been obtained by the petitioner. Under such circumstances the petitioners seeks to restrain commencing of functioning of the unit till the petitioners could seek the statutory remedy.

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Considering all aspects of the matter, I am of the opinion that the writ petition is liable to be dismissed. However, liberty is reserved to the petitioners to challenge Ext.P13 and P15 by approaching the statutory authorities under the relevant provisions, as mentioned above. Needless to say that such

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W.P.C. No. 1140 OF 2011 -5-

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authorities if approached shall consider the fact with the petitioners were prosecuting this writ petition, for the matter of condoning the delay in filing the appeals, if any permissible.

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In view of the factual aspects prevailing and the appeal made by the petitioners, I make it clear that the 3^rd respondent shall not commence production of the industry for a period of one

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month from today, in order to facilitate petitioners to seek appropriate relief from the competent authority.

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C.K. ABDUL REHIM JUDGE.

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Kp/-

K.P.Rajan and Others v. the Rayamangalam Grama Panchayat & Ors.

Case brief

What is this about?

What did the court decide?

K.P.Rajan and Others v. the Rayamangalam Grama Panchayat & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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