IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34217 of 2008(W)
1. BLUE BLAK GRANITES, AYATHUPADY,
... Petitioner
2. P.C.SALUS, PARTNER, BLUE BLACK
Vs
1. P.P.THANKACHAN, PARAPPURAM HOUSE,
... Respondent
2. KOOVAPPADY GRAMA PANCHAYAT, KOOVAPPADY
3. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
For Petitioner :SRI.V.G.ARUN
For Respondent :SMT.JAYASREE MANOJ
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/02/2011
O R D E R
S. SIRI JAGAN, J.
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W.P.(C) No.34217 OF 2008
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Dated this the 2nd day of February, 2011
JUDGMENT
The petitioners are partners of a firm by name ‘Blue Black
Granites’. They had obtained a consent from the Pollution
Control Board originally for establishing a secondary Metal
Crusher Unit using 40 h.p. machinery with 20 h.p. for secondary
Crusher Unit and 20 h.p. for Ancillary Unit. Ext.P2 is the consent
issued by the Pollution Control Board for the same. In
accordance with the said consent, the second respondent –
Panchayat issued Ext.P1 licence for running a Metal Crusher Unit
using 40 h.p. electric motor. Later on, the petitioners realised
that they cannot profitably run the Unit without a primary
Crusher Unit also. Therefore, they applied to the Pollution
Control Board for consent to establish an additional primary
Crusher Unit as well. By Ext.P3, the Pollution Control Board gave
consent for a Primary Crusher Unit of 45 h.p. The first
respondent herein objected to the petitioners establishing the
W.P.(C)No.34217/08 2
Primary Crusher Unit. He approached this Court by filing W.P.
(C)No.7672/2008. In that, this Court, by Ext.P4 judgment,
directed the Panchayat to consider the matter, after hearing
both sides. Thereafter, the Panchayat considered the matter
and ultimately passed Ext.P6 order, whereby licence was
directed to be granted to the petitioner to install an electric
motor of an additional 45 h.p. for a Metal Crusher Unit. The
first respondent challenged the same before the Tribunal for
Local Self Government Institutions. The Tribunal, after hearing
the parties, passed Ext.P8 order quashing Ext.P6 order holding
that going by the written statement of the Panchayat, what
was applied for was an up-gradation of the present 40 h.p.
machinery to 45 h.p. machinery whereas what was sanctioned
is an additional 45 h.p. In that view, the Tribunal quashed the
order with liberty to the first petitioner to file fresh application.
The petitioners have filed this writ petition challenging Ext.P8
order, seeking the following reliefs:
” i) to call for the records leading to Ext.P8 and
quash the same by the issuance of a writ of certiorari
or any other writ, direction or order;
ii) to declare that the petitioners are entitled to
establish and operate a Primary Crusher Unit of 45
HP after obtaining clearance from the statutory
authorities”
2. As is evident from the narration of the facts, the
W.P.(C)No.34217/08 3
petitioners are challenging Ext.P8 order on the ground that the
Tribunal committed a mistake in holding that, what the
petitioners sought, was the up-gradation of the existing 40
h.p. machinery to 45 h.p. machinery whereas, as is evident
from the documents produced, what the petitioners applied for
was, for installation of a new Primary Crusher Unit of 45 h.p. in
addition to the Secondary Crusher Unit and Ancillary Unit of
total 40 h.p.
3. The first respondent stoutly opposes the claim of
the petitioner. According to them, the Tribunal rightly
interfered with the order of the Panchayat.
4. I have considered the rival contentions in detail.
From Ext.P1 licence originally granted by the Panchayat to the
petitioners, it is clear that the licence was to run a Metal
Crusher Unit with 40 h.p. electric motor. In Ext.P2 consent
issued by the Pollution Control Board, column No.15 reads
thus:
"15. Machinery Details Primary - Nil
Secondary - 20 HP"
That shows that at that time, there was no Primary Crusher
Unit and there was only one Secondary Crusher Unit of 20 h.p.
In Ext.P3 consent, corresponding column No.15 reads thus:
W.P.(C)No.34217/08 4
“15. Machinery Details Primary Crusher 45 HP”
Therefore the consent is clearly for Primary Crusher Unit of
45 h.p. Nobody has a case that at the time of issuing Exts.P1
and P2 there was a Primary Crusher Unit and Exts.P1 and P2
clearly related to only a Secondary Crusher Unit. Therefore,
Ext.P3 is clearly for an additional Primary Crusher Unit of 45
h.p. Ext.P6 order also specifically reads thus:
“ORDER NO.A3-549/07 DATED 17.07.08
Sri/Smt…………….P.P.Cheriyan…………………….
as per the application read first above has requested for
permission to establish a work place is Sy.No.429/4
of …….Koovappady Village, ward ……V……….. of
Koovappady Grama Panchayat and to install an electric
motor of additional 45 HP (existing 40 H.P.)……
H.P………for metal Crusher Unit Blue black
granites…………….
Grama Panchayat after having examined the
application in the detail has resolved to grand permission
under section 233 of Kerala Panchayat Raj act 1994
Therefore, sanction is accorded to
Sri/Smt.P.P.Cheriyan …………………..establish a work
place in Sy.No.429/4 …………….of Koovappady Village
and to install additional 45 H.P. to existing 40 H.P.
Electric motor for a metal crusher unit (Blue black
granites)”
From the same, it is evidently clear that what has been
granted is permission to install an electric motor of additional
45 h.p. in addition to the existing 40 h.p. The Tribunal has in
paragraphs 8 and 9 of Ext.P8 order held thus:
“8.The application for permit under Section 233 of the
Kerala Panchayat Raj Act is to be submitted as perW.P.(C)No.34217/08 5
Rule 12 of the Kerala Panchayat Raj Act (Issue of
Licence to Dangerous and Offensive Trades and
Factories) Rules 1996 giving the details as specified in
the said rule with proper plan of the factory, workshop
or workplace. The application submitted by 2nd
Respondent is found on page 74 of the file produced
by the 1st Respondent. Particulars as to power of
machinery of plant proposed to be installed is shown
in column No.10 as 40 HP + 45 HP in the said
application dated 12.9.2007. Along with the
application the 2nd Respondent has produced consent
to establish obtained from Kerala State Pollution
Control Board on 16.6.2007 as valid up to 15.6.2009.
But in the said consent the machinery details specified
is only of 45 HP and not 40 + 45 HP. No proper plans
are seen submitted along with the application dated
12.9.2007 showing the location of the machinery in
existence at present as well as the location of the
additional machinery proposed to be installed. As
already pointed out the application submitted by 2nd
Respondent is not consistent with the consent to
establish obtained by him as to the power of the
machinery concerned.
9. Though the impugned decision is one enabling the
2nd Respondent to install additional 45 HP machinery
as against the consent to establish obtained by him
for installation of total 45 HP machineries only, it is
stated in the written statement filed by the 1st
Respondent that the impugned resolution only granted
a permit for machinery installation with a view to
expand the existing unit of 2nd Respondent’s metal
crusher unit from 40 HP to 45 HP. Thus as per
paragraph 3 of the written statement filed by the 1st
Respondent the permit was granted for increasing the
Horse Power of the machineries by 5 HP only, ie from
40 to 45. If it was so it could be found as consistent
with the consent to establish granted by the Pollution
Control Board on 16.6.2007. As already pointed out
the application submitted by 2nd Respondent was for
installation of 40 HP + 45 HP motors and the
impugned decision also is as enabling installation of
additional 45 HP machineries. Thus considering the
impugned decision and the written statement of 1st
Respondent, the 1st Respondent has no consistent
case as to the nature of the permit granted by the
impugned decision”.
From the same, it is evident that the Tribunal was under the
W.P.(C)No.34217/08 6
mistaken impression that what the petitioners applied for was
the up-gradation of existing Crusher Unit from 40 h.p. to 45
h.p. This mistake also arose because of a mistake in the
written statement filed by the Panchayat, which is extracted in
paragraph 3 of the order. As such, clearly Ext.P8 order has
been passed on the basis of the mistaken understanding of the
facts involved and therefore, Ext.P8 order is quashed. The
Tribunal is directed to reconsider the matter in the light of the
observations made above as expeditiously as possible, at any
rate, within three months from the date of receipt of a copy of
this judgment.
The writ petition is disposed of as above.
S. SIRI JAGAN, JUDGE
acd
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