Dismissed

Sheena Shivaprasad v. Udayanapuram Grama Panchayath

Kerala HC7 Dec 2021WA/1377/2021

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COURT OF KERALA AT ERNAKULAM PRESENT THE…

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Sheena Shivaprasad Vs Udayanapuram Grama Panchayath — Writ and Judicial Review | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 7^TH DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943 WA NO. 1377 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 26108/2018 OF HIGH COURT OF KERALA DATED 11.6.2021

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APPELLANT/PETITIONER:

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SHEENA SHIVAPRASAD, AGED 42 YEARS W/O. SHIVAPRASAD, PUTHENPURAYIL HOUSE, UDAYANAPURAM P.O, VADAKKEMURI VILLAGE, KAIKOM, KOTTAYAM - 686143.

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BY ADV RESMI NANDANAN

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RESPONDENTS/RESPONDENTS:

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1 UDAYANAPURAM GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY, UDAYANAPURAM GRAMA PANCHAYATH, UDAYANAPURAM P.O, VAIKOM, KOTTAYAM - 686143.

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2 THE SECRETARY, UDAYANAPURAM GRAMA PANCHAYATH, UDAYANAPURAM P.O, VAIKOM, KOTTAYAM - 686143.

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3 KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY THE ENVIRONMENT ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, SREENIVASA IYER ROAD, (OPP. CMS COLLEGE), KOTTAYAM - 1,

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4 THE DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, FOREST DEPARTMENT, CIVIL STATION, COLLECTORATE P.O, KOTTAYAM - 686002.

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5 THE DISTRICT MEDICAL OFFICER, DISTRICT MEDICAL OFFICE, 2ND FLOOR, CIVIL STATION, COLLECTORATE P.O, KOTTAYAM - 686002.

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6 AMMINI , KANJIRAKKAPPALLIL HOUSE, UDAYANAPURAM P.O, VADAKKEMURI VILLAGE, VAIKOM, KOTTAYAM - 686143.

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SRI.T.P.SAJAN, SPL.G.P. FOR R4 AND R5 SRI.T.NAVEEN, SC FOR R3 SRI.ANIL XAVIER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.No.1377 of 2021

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JUDGMENT

Dated this the 7^th day of December, 2021

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S.MANIKUMAR, C.J.

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The issue involved is the illegal and polluted functioning of the wooden furniture manufacturing unit without obtaining necessary permits and without complying with the conditions issued by the Pollution Control Board and without leaving sufficient setback and minimum distance from residential house.

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Reliefs sought for in the writ petition were as follows:

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i) To issue a writ of mandamus or any other writ, order or direction, directing the 1^st and 2^nd respondent to withdraw the permit given to the 6^th respondent to function the wooden furniture unit in Building No.496,497 & 498 in ward No XIV in Udayanapuram GramaPanchayath without following the procedure established by law.

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ii) To issue a writ of mandamus or any other writ, order or direction directing 3^rd respondent to verify the consent to operate given to the 6^th respondent for functioning furniture manufacturing unit in building No.496, 497 & 498 in ward No.XIV in Udayanapuram Grama Panchayath and to make sure that the guidelines regarding the setback and minimum distance rule from residence is adhered to along with the directions contained in the Ext P-5 is strictly complied with.

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Short facts leading to the filing of this writ appeal are as

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follows: Petitioner is a person residing within the limits of the first

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W.A.No.1377 of 2021

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respondent, Udayanapuram Grama Panchayat. The building in which the writ petitioner is residing is one constructed in 2006 in a property purchased by the husband of the petitioner during 1990. The adjacent property, measuring 2.160 cents belongs to one Ammini, the sixth respondent.

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The sixth respondent purchased the above property during

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It is stated by the petitioner that the sixth respondent was earlier running a furniture manufacturing unit in a premises bearing Door No.558A in Ward No.IV of the Panchayat located about 500 meters away from the residential property of the petitioner, and after purchase of the property adjacent to the residential property of the petitioner, he constructed a shed therein and shifted the furniture manufacturing unit to that shed, without obtaining the requisite licences and permissions from the authorities concerned.

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In order to show that the sixth respondent owns the building bearing No.558A in Ward No.IV of the Panchayat also, the petitioner

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has produced as Ext.P1, a copy of the ownership certificate issued by the Panchayat to the sixth respondent in respect of the said building.

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W.A.No.1377 of 2021

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It is also stated by the petitioner that the unit of the sixth respondent is situated about 10 meters away from the house of the petitioner. As it was producing intolerable sound during its operation, during 2014, she preferred Ext.P6 complaint before the Ombudsman for Local Self Government Institutions, Thiruvananthapuram.

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The said complaint was disposed of by the Ombudsman in terms of Ext.P9 order, permitting the petitioner to prefer a complaint before the Secretary of the Panchayat, and directing the Secretary of the Panchayat to take appropriate decision thereon, after affording the petitioner and the sixth respondent an opportunity of hearing.

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Pursuant to Ext.P9 order, the petitioner preferred Ext.P10 complaint before the Secretary of the Panchayat. The Committee of the Panchayat considered Ext.P10 complaint and found that the sixth respondent is running the unit, after obtaining all the requisite permissions and licences.

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Nevertheless, having regard to the grievance voiced by the petitioner, the Committee of the Panchayat disposed of Ext.P10 complaint directing the sixth respondent to limit the operation of the

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W.A.No.1377 of 2021

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unit from 9 a.m. to 4 p.m. Ext.P11 is the decision taken by the Committee, in this regard, on 11.8.2016. Writ petition has been filed almost two years thereafter, seeking for a direction to the Panchayat and its Secretary, to withdraw the licence issued to the sixth respondent for running the unit on the ground mainly that the operation of the unit in its present location is wholly unauthorised.

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After considering the rival contentions and materials available on record, writ court disposed of the writ petition vide judgment dated 11.6.2021. Being aggrieved, instant writ appeal is filed.

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On the grounds raised, Mrs.Resmi Nandan, learned counsel for the appellant contended that the appellant and family members are residing in the building from 2006 onwards, but the Pollution Control Board issued the license only in 2012. The Panchayath has renewed the license periodically, without proper enquiry; the ward number shown in one license is ward No.2 and ward No.14 in other license. Generally, the license is issued for a period of one year, but the period for license is 3 months.

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W.A.No.1377 of 2021

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According to the learned counsel, writ court failed to consider the fact that the 6^th respondent has purchased the property on 12.03.1999, but the DFO has issued permission on 13.01.1999. The license issued for this furniture work that was functioning in a shed and that was not a concrete building. The number of concrete building is 496 IVX. The act on the part of the respondents in allowing the 6^th respondent to conduct the furniture manufacturing unit using high power machineries, without obtaining necessary permissions and without following mandatory provision of law is absolutely illegal. Moreover, functioning of the furniture unit is creating noise and air pollution. Hence interference of this court is sought for.

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Denying all the contentions raised by the appellant, learned counsel appearing for the 6^th respondent submitted that the sixth respondent has obtained all the requisite licenses and permissions for running the furniture unit. It is also submitted that there has been no change of location. The sixth respondent has established the furniture unit at the premises where the unit is presently functioning.

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Learned counsel appearing for the Panchayat as well as the Standing Counsel appearing for the Pollution Control Board also made

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W.A.No.1377 of 2021

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submissions on their behalf. According to them, the sixth respondent is conducting the furniture unit after obtaining all the requisite licenses and permissions.

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Relevant portion of the said judgment reads thus:

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“19. The main ground on which the petitioner seeks relief in the writ petition is that the sixth respondent was running the furniture manufacturing unit at a different place and that the same was shifted and continued in its present location without obtaining the licences and permissions required for the same. In other words, the ground of the petitioner is that the various licences and permissions obtained by the sixth respondent for the industrial unit are licences and permissions obtained by him in respect of the premises where the industrial unit was run by him earlier, and not in respect of the present location of the unit. The first and foremost question to be examined therefore is as to whether the case set out by the petitioner that the sixth respondent was running the furniture manufacturing unit at a different place prior to 1999 is correct.

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The specific case pleaded by the petitioner in this regard is that the sixth respondent was running the industrial unit earlier in the premises owned by him bearing Door No.558A in Ward No.IV of the Panchayat and the premises where the unit is presently run is the premises bearing Door No.496 in Ward No.XIV. She relies on Annexure R4(a) licence issued to the sixth respondent under the Kerala Forest (Regulation of Sawmills and Other Wood-based Industrial Units) Rules, 2012 and Exts.P17(a), P17(b) and P17(c) licences issued to the sixth respondent by the panchayat, to show that the said licences were issued not in respect of the present premises where the unit is run, but in respect of premises bearing Door No.558A in Ward No.IV of the Panchayat. True, the premises referred to in Annexure R4(a) licence is Door No.558A in Ward No.IV. Similarly, the premises referred to in Ext.P17(a) licence is Door No.558A in Ward No.IV. Likewise, the premises referred to in Exts.P17(b) and P17(c) licences is also Door No.558A, though ward number is shown in the said

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W.A.No.1377 of 2021

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licences as Ward No.II. In the counter affidavit filed by the Panchayat on 05.03.2019, it is categorically stated that the building where the unit is functioning was one falling under Ward No.IV upto 2013 and the same now falls under Ward No.XIV. It is also stated by the Panchayat that ward number has been shown mistakenly as Ward No.II instead of Ward No.IV in the licence issued to the sixth respondent during 2012 and the said ward number was shown inadvertently in the licences issued to the sixth respondent during 2015 and 2016 also. It is also stated by the Panchayat in the said counter affidavit that the old door number of the premises was 558A in Ward No.IV and the corresponding new door number is 496 in Ward No.XIV. In the affidavit filed by the Secretary of the Panchayat on 24.03.2021, it is asserted that no licence whatsoever has been issued to the sixth respondent for running the unit in any other premises. In respect of the assertion made by the petitioner in the affidavit filed by her on 22.03.2021 that the premises where the sixth respondent was earlier running the industrial unit has been sold by her to one Surendran, it is stated by the Secretary of the Panchayat in the affidavit dated 24.03.2021 that no licence whatsoever has been issued by the Panchayat to the sixth respondent in respect of the said premises. I do not find any reason to disbelieve the stand of the Panchayat in the matter.

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Ext.R6(i) is a letter addressed by the Divisional Forest Officer, Kottayam to the Assistant District Industries Officer, Vikom dated 13.1.1999 stating that the Forest Department has no objection in granting SSI registration to the sixth respondent for starting a furniture manufacturing unit in building No.IV in the Panchayat. Placing reliance on the said communication, it was argued by the petitioner that the said communication being one issued long prior to the purchase of the property by the sixth respondent where the unit is presently located, it can be inferred that the industrial unit of the sixth respondent is not one established in its present location. I am not impressed by this argument also. Ext.R6(i) is only a No Objection Certificate of the Forest Department so as to enable the sixth respondent to obtain SSI registration for a furniture manufacturing unit. The said communication itself shows that the sixth respondent has not started the unit. If the sixth respondent had not started the unit at the time when the said communication was issued,

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W.A.No.1377 of 2021

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there cannot be any inference at all based on the said document as submitted by the petitioner. In the circumstances, I have no hesitation to hold that the premises bearing Door No.558A in Ward No.IV and the premises bearing Door No.496 in Ward No.XIV are one and the same. In other words, the petitioner is not entitled to any relief on that premise.

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As noted, it was also argued by the petitioner that in terms of the siting criteria prescribed by the State Pollution Control Board with effect from 01.07.2011, insofar as the distance between the house of the petitioner and the unit of the sixth respondent is less than 50 meters, the sixth respondent ought not have been granted consent to operate the unit. In the report filed by the State Pollution Control Board pursuant to the interim order dated 09.02.2021, it was explained that the unit of the sixth respondent being one established prior to 1.7.2011, the revised siting criteria brought into force with effect from 01.07.2011 does not apply to the said unit in terms of Ext.R3(f) circular issued by the Board. The petitioner has no case that the industrial unit of the sixth respondent is not one established prior to 01.07.2011. It is the specific case of the petitioner that the unit is one established in the present location during 1999. The petitioner does not challenge Ext.R3(f). In the circumstances, the contention aforesaid of the petitioner is only to be rejected.

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True, permission of the Panchayat is required for industrial units in which it is proposed to employ electric power, and the said requirement is exempted only for industrial units with machinery having capacity of less than 5 HP. Ext.R6(h) proceedings of the Panchayat shows that the sixth respondent has been granted permission only to install machinery having capacity of 3HP. In other words, the sixth respondent is not entitled to use machinery having capacity of 5 HP in his industrial unit. The materials on record indicate that the sixth respondent is using machinery having capacity of 5HP in his industrial unit. The Panchayat, in the circumstances is obliged to ensure that the sixth respondent does not use machinery having capacity of 5HP, without obtaining permission of the Panchayat under Section 233 of the Panchayat Raj Act.

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W.A.No.1377 of 2021

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As noted, in terms of Ext.P11 order passed by the committee of the Panchayat, the sixth respondent is entitled to run the unit only between 9am and 4 pm. The petitioner has pleaded that the sixth respondent is operating the unit throughout the day. Insofar as Ext.P11 is an order that binds the sixth respondent, the Panchayat is obliged to ensure compliance of Ext.P11 order also.

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In the result, the writ petition is disposed of directing the second respondent to ensure, by appropriate means, that the sixth respondent complies with Ext.P11 order, and does not use machinery having capacity of 5HP in his industrial unit, without obtaining permission of the Panchayat.”

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Contentions of the respondents are duly supported by

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documents. Writ court has extensively considered the rival submissions and by a well considered judgment, disposed of the writ petition.

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Considering the entire facts and circumstances of the case, we find no reason to interfere with the matter.

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Writ appeal is dismissed.

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SD/S.MANIKUMAR CHIEF JUSTICE

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SD/-

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SHAJI P. CHALY JUDGE

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jes

Sheena Shivaprasad v. Udayanapuram Grama Panchayath

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Sheena Shivaprasad v. Udayanapuram Grama Panchayath

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