Partly allowed

Reju Joseph v. Thalappalam Grama Panchayath

Kerala HC6 Mar 2017WP(C)/8226/2011

Case brief

AI extract

What is this about?

The High Court withdrew interim protection granted to the petitioner operating a saw mill without mandatory licences. It directed the District Forest Officer to decide the pending licence application within 15 days, vacated all interim orders, and clarified that strict operation requires obtaining Forest, Panchayat, and Pollution Control clearances.

What did the court decide?

Vacated interim orders permitting operation; directed DFO to decide pending licence application within 15 days; dismissed writ petitions.

Reju Joseph Vs Thalappalam Grama Panchayath — Labour and Industrial Disputes | Kerala HC (2017)

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938

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WP(C).No. 8226 of 2011 (C)

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PETITIONER(S):

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REJU JOSEPH, ELITE WOOD INDUSTRIES, ELAMTHURUTHIL, PLASSANAL, THALAPPALAM,, ERATTUPETTA, KOTTAYAM.

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BY ADVS.SRI.N.MURALEEDHARAN NAIR

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SMT.K.HYMAVATHY

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RESPONDENT(S):

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1. THALAPPALAM GRAMA PANCHAYATH, PLASSANAL,P.O., KOTTAYAM DISTRICT-686579, REP. BY ITS SECRETARY.

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*** ADDITIONAL R2 IS IMPLEADED**

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2. BABU RAJ, S/O. K.C. SEBASTIAN, KOTTUKAPILLIL HOUSE, KUDAMALOOR, KOTTAYAM

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*** ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 26.05.2011 IN I.A.NO.5896/2011**

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R1 BY ADV. SRI.SHAJI THOMAS PORKKATTIL, SC R2 BY ADVS. SRI.LAL GEORGE SRI.T.M.ABDUL LATHEEF SRI.BINU PAUL

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SPECIAL GOVERNMENT PLEADER SRI. SANDESH RAJA.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2017, ALONG WITH WPC.18200/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SKG

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WP(C).No. 8226 of 2011 (C)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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------------- EXHIBIT P1	---------- TRUE COPY OF THE NOTICE ISSUED BY THE RESPONDENT DATED 25.02.2011.
EXHIBIT P2	TRUE COPY OF THE LETTER GIVEN BY THE PETITIONER DATED 28.02.2011
EXHIBIT P3	TRUE COPY OF THE NOTICE ISSUED BY RESPONDENT DATED 28.02.2011
EXHIBIT P4	TRUE COPY OF THE LETTER RECEIVED FROM SBT TO THE PETITIONER DATED 03.01.2011
EXHIBIT P5	TRUE COPY OF THE LETTER RECEIVED FROM SBI TO THE PETITIONER DATED 01.02.2011
EXHIBIT P6	TRUE COPY OF THE NOTICE ISSUED BY RESPONDENT DATED 11.05.2011
EXHIBIT P7	TRUE COPY OF THE LETTER ISSUED BY ASSISTANT ENGINEER, ELECTRICAL SECTION, ERATTUPETTA, DATED 11.05.2011
RESPONDENT(S) -------------	' EXHIBITS ----------
EXT.R2(A)	TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 16.02.2011
EXT.R2(A) & R	2(B) FILED ALONG WITH COUNTER AFFIDAVIT DATED 08.06.2011
EXT.R2(A)	TRUE PHOTOSTAT COPY OF THE NOTICE DATED 3.2.11.
EXT.R2 (B)	TRUE PHOTOSTAT COPY OF THE LETTER DATED 5.2.11.
EXT.R2(A) IN	I.A.NO.12012 TRUE COPY OF THE COMPLAINT DATED 16.7.2011 SUBMITTED BY THE PETITIONER BEFORE THE KERALA STATE POLLUTION CONTROL BOARD.
EXT.R2(D)	TRUE PHOTOSTAT OF THE COMMON JUDGMENT IN OS.NO.56/2011 AND 224/2011 /TRUE COPY/
SKG	P.S. TO JUDGE

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DEVAN RAMACHANDRAN, J.

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WP(C) Nos.8226, 18200, 19555, 20379 & 32732 of 2011

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Dated this the 6^th day of March, 2017

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JUDGMENT

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The bone of the contentions in all these cases is as to a legal capacity of a certain Mr.Riju Joseph to conduct and carry on the business of Saw Mill. The objectors to this activity of Mr.Riju Joseph contends that the Saw Mill is being run without any of the requisite and necessary clearances and licences. Mr.Riju Joseph on the other hand asserts that he has all the licences and he has been running the industry legally and validly.

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I see that Mr.Riju Joseph is appearing as party-in-person in WP(C) Nos.18200/2011 and 32732/2011. He, however, is represented by a counsel, Sri.N. Muraleedharan Nair in WP(C) No.8226/2011. In the other two writ petitions, which are filed against him by the objectors, I see that he is again appearing in party-in-person and is not represented by a counsel.

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WP(C) Nos.8226, 18200, 19555, 20379 & 32732 of 2011

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When the matters were called today, Mr.Riju Joseph was not present and therefore, his name was called, but to no response. However, I see that Sri.N. Muraleedharan Nair appearing for him in WP(C) No.8226 of 2011 is competent enough to answer the various issues that have been raised against Mr.Riju Joseph in these proceedings. In such circumstances, I proceed to dispose of all the writ petitions jointly since all of them relate essentially to the same issue, contain contentions which are related to each other and reliefs which are depended on one another.

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I have heard Mr.N. Muraleedharan Nair, the learned counsel appearing for Mr.Riju Joseph, Sri.Shaji Thomas, the learned Standing Counsel appearing for the Panchayat in all the cases, Sri.Lal George, the learned counsel appearing for the addl. 4^th respondent, Adv.Monisha K.R., the learned counsel appearing for the 3^rd respondent and the learned Government Pleader appearing for the official respondents.

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Whatever be the nature of the contest and I see that there are several facts which are in dispute, the one fact that

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WP(C) Nos.8226, 18200, 19555, 20379 & 32732 of 2011 3

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cannot be lost sight of is that Mr.Riju Joseph can continue and operate to run the Saw Mill only if he has all the requisite and applicable licences and consents. Primary among these is the licence from the Forest Department, the D&O licence to be obtained from the Panchayat, the consent of operate from the Pollution Control Board and licences from the Factories and Boilers Department, the Fire Department and the Health Department.

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It is virtually without dispute that the petitioner, at the

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moment, is operating on the strength of interim orders of this Court but without the support of the various licences. I am told that the petitioner had made an application for the licence under the Kerala Forest [Regulation of Saw Mills and other wood-based Industrial Units] Rules, 2012 [for brevity, the Rules] on 15.07.2012 and that the same is pending. It is indubitable that the petitioner requires a licence under these Rules and that he cannot operate without it. If that be so, it will incumbent upon the Divisional Forest Officer [DFO], Kottayam to consider his application made under these Rules and to issue orders thereon

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WP(C) Nos.8226, 18200, 19555, 20379 & 32732 of 2011 4

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within the shortest frame of time. I think a time frame of 15 days will be apposite since these matters have been pending for the last several years before this Court. I, therefore, direct the DFO, Kottayam to consider the aforementioned applications of the petitioner for licence within 15 days from the date of receipt of a certified copy of this judgment.

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I notice that WP(C) No.32732 of 2011 has been filed by Mr.Riju Joseph challenging Exts.P5 & P7 orders of the Tribunal for Local Self Government Institutions [the Tribunal for short] and the consequential order of the Panchayat respectively. I notice that the Tribunal, acting on a complaint that the building in which the Saw Mill is situated has been constructed in violation of the Kerala Panchayat Building Rules, directed the Panchayat to issue a fresh provisional notice indicating the violations as are found against this construction. Pursuant to this direction, the Panchayat issued Ext.P9 order, wherein the Panchayat has directed Mr.Riju Joseph to demolish certain offending structures. Even though the petitioner has produced this order as Ext.P9 in this writ petition, I see that he has not chosen to challenge the

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WP(C) Nos.8226, 18200, 19555, 20379 & 32732 of 2011 5

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same, presumably because he had challenged the order of the Tribunal and he is justified in thinking that if that challenge succeeds the consequent order would also fail. I have to, therefore, examine if Ext.P5 order of the Tribunal suffers from any vice or illegality. The Tribunal has found that the Panchayat had issued an earlier NOC illegally and without any basis and the Tribunal confirmed the subsequent action of the Panchayat, cancelling such NOC. The Tribunal has considered the factual scenario in detail and concluded that the Secretary of the Panchayat is obligated in law to issue a proper proceedings under Section 235 W of the Kerala Panchayat Raj Act, showing the exact violation committed by the applicant. I do not see how the petitioner would be prejudiced by these directions except that the order of the Panchayat withdrawing the earlier NOC being approved by the Tribunal, would then require the petitioner to shut shop. He had obtained an interim order of this Court and I am told that he has been operating on the strength of such interim order. However, I do not think that that such position can be allowed to be continued any further. If the petitioner's building

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WP(C) Nos.8226, 18200, 19555, 20379 & 32732 of 2011 6

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offends the applicable Building Rules, it is certain that the Secretary of the Panchayat should initiate and complete proper action as has been directed by the Tribunal. In such view of the matter, I repell all contentions of the petitioner against Exts.P & P9 in these writ petitions.

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At this point of time, the learned counsel for the 3^rd respondent says that while these proceedings were continuing against him, Mr.Riju Joseph had filed an application for building permit for further construction before the Panchayat and that it was rejected. It is also asserted that against that order Mr.Riju Joseph had filed an appeal before the Tribunal, which was also dismissed and that the 3^rd respondent, thereafter, had obtained an order of mandatory injunction against him, wherein he was interdicted from continuing with the operation of the Saw Mill.

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In WP(C) No.8226 of 2011, the learned counsel appearing for the 2^nd respondent has also produced Ext.R2(d), which is another judgment issued by a Court of competent jurisdiction namely the Munsiff's Court, Erattupetta restraining Mr.Riju Joseph from conducting the industry of Saw Mill without

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WP(C) Nos.8226, 18200, 19555, 20379 & 32732 of 2011 7

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the applicable licences.

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Having recorded all the above submissions and assertions as above, I am certain of one thing and that is that Mr.Riju Joseph cannot be allowed to continue the operation of Saw Mill without proper licences and consents. On a conspectus and summation of all that has been noticed above, it is virtually obvious that the petitioner does not now have the licence from the Forest Department under the Rules or the licence from the Panchayat under Section 233 of the Kerala Panchayat Raj Act or the consent to operate from the Pollution Control Board, because I see that by Ext.R4(c) in WP(C) No.18200 of 2011, the same has been withdrawn. I, therefore, do not deem it appropriate and apposite that the petitioner be allowed to continue the operation of the Saw Mill merely on the strength of interim orders of this Court. I, therefore, vacate all the interim orders obtained by Mr.Riju Joseph, which would thus disentitle him from continuing operations of the Saw Mill without the necessary licences and clearances.

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In the result and for such circumstances, I dispose of all

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WP(C) Nos.8226, 18200, 19555, 20379 & 32732 of 2011 8

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the writ petitions directing the DFO, Kottayam to dispose of finally the application made by Mr.Riju Joseph under the Rules within a period of 15 days from the date of receipt of the certified copy of this judgment. On the disposal of such application and if Mr.Riju Joseph is able to get a licence, he would be enabled to approach the Panchayat with all the attendant and necessary licences and consents to apply for a licence under Section 233 of the Kerala Panchayat Raj Act and the Secretary of the Panchayat will be obligated to consider the same in terms of law. As regards, the question of violation of the Building Rules are concerned, the Panchayat will be entitled to take further action as is permitted pursuant to the provisional order issued by it against Mr.Riju Joseph, namely Ext.P9 in WP(C) No.32732 of 2011, subject of course to the rights and remedies available to Mr.Riju Joseph to challenge the same under the applicable statutes, Rules and Regulations in such appropriate forum. Since I have vacated all the interim orders granted in this case, obviously Mr.Riju Joseph will no longer be entitled to conduct the licence of Saw Mill or to operate the same without obtaining the licences as

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WP(C) Nos.8226, 18200, 19555, 20379 & 32732 of 2011

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aforesaid. Necessary action in this regard shall be ensured by the

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Secretary of the Panchayat and the District Forest Officer, Kottayam.

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The writ petitions are ordered as above. In the facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs.

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Sd/-

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DEVAN RAMACHANDRAN,

JUDGE.

sp/06/03/17

//True Copy//

P.A. to Judge

Reju Joseph v. Thalappalam Grama Panchayath

Case brief

What is this about?

What did the court decide?

Reju Joseph v. Thalappalam Grama Panchayath

Case brief

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What did the court decide?

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