IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2688 of 2010(S)
1. M.K.BINOY, S/O. M.K.KRISHNAN,
... Petitioner
Vs
1. VELLOOR GRAMA PANCHAYATH,
... Respondent
2. DISTRICT COLLECTOR,
3. TAHSILDAR,
4. R.D.O.,
5. DISTRICT SUPERINTENDENT OF POLICE,
6. DY.S.P.,
7. C.I. OF POLICE,
8. SUB INSPECTOR OF POLICE,
9. THE GEOLOGIST,
10. THE VILLAGE OFFICER,
11. SAJITH KUMAR,
12. SATYAVRATHAN,
13. P.U.JAMES,
14. GOPAKUMAR,
15. M.K.PRAKASAN,
16. M.K.NANDAKUMAR,
17. ELIAS,
18. T.K.SABU,
19. N.V.PRASAD,
20. THANKACHAN,
21. THE KERALA STATE POLLUTION CONTROL
22. THE DEPUTY DIRECTOR OF PANCHAYATHS,
For Petitioner :SRI.GEORGE SEBASTIAN
For Respondent :SRI.J.JULIAN XAVIER
The Hon'ble the Acting Chief Justice MR.P.R.RAMAN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :10/02/2010
O R D E R
P.R.Raman, Ag. C.J. &
Thottathil B.Radhakrishnan, J.
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W.P.(C) No.2688 of 2010
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Dated this the 10th day of February, 2010
JUDGMENT
P.R.Raman, Ag. C.J.
Petitioner is an individual residing within the area of the
first respondent Grama Panchayat with his family. He styled himself
as a public spirited citizen. The grievance raised in this writ petition is
that there are about 11 brick manufacturing units in the first respondent
Panchayat, most of which are functioning in paddy fields excavating
clay from the paddy fields and mixing the same with ordinary earth. It
is stated that the Grama Panchayat had taken a decision that licence to
run brick manufacturing unit within the territory of the first respondent
Panchayat would be granted only if the applicant for licence produces
no objection certificate and permission from the statutory authorities
and after getting consent from the people residing within 250 metres of
the proposed unit. Ext.P3 is stated to be the relevant extract of the
minutes of the meeting of the Grama Panchayat held on 19.11.2009. It
is also stated that the Additional Tahsildar, Vaikom had issued orders
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to the first respondent Panchayat detailing as to how it has to deal
with the application for licence. It is further stated that since it
involves conversion of paddy fields, the provisions contained in the
Kerala Land Utilisation Order and also the Kerala Conservation of
Paddy Land and Wet Land Act, 2008 will be applied. It is also stated
that orders have been issued by the revenue authorities evidenced by
Exts.P6 to P9, stopping the brick manufacturing activities until a
decision is taken. The complaint of the petitioner is that despite such
orders, the authorities are not taking appropriate action. There is yet
another complaint that Exts.P10 to P17 are other orders of like nature
issued by the Panchayat and the Panchayat itself has requested the
authorities for enforcement of the orders passed. But according to the
petitioner, except in paper, those orders are not implemented. Hence
he prays for a writ of mandamus to be issued by this Court not to
grant licences and permissions to respondents 11 to 20 under Sections
232 and 233 of the Kerala Panchayat Raj Act and also for a direction
to respondents 1 to 10, 21 and 22 to see that Exts.P6 to P17 are
implemented strictly and take appropriate action and finally for a writ
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of mandamus to respondents 1 to 10, 21 and 22 to see that the
functioning of brick manufacturing units by respondents 11 to 20 is
stopped at the earliest.
2. Though a counter affidavit is filed by the 11th
respondent and the other respondents are yet to file their counter
affidavits and seek time for filing such counter affidavits, in the view
we are taking it is not necessary for us to enter into any finding
regarding the alleged facts stated in the writ petition.
3. So long as there are orders issued by the revenue
authorities stopping the brick manufacturing activities, if a complaint
is made to them alleging any violation, certainly it is for the revenue
authorities to take action in accordance with law after hearing all
affected parties. Likewise, whether or not a licence has to be
granted to any brick manufacturing unit is a matter that is to be
considered by the Panchayat. This Court cannot issue a writ of
mandamus prohibiting the Panchayat not to give any such licence.
Secondly, if the Panchayat has issued orders stopping the brick
manufacturing units only because no licence has been granted or
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there is any violation of the conditions of the licence, there are
sufficient provisions under the Kerala Panchayat Raj Act enabling
them to move the appropriate authorities for taking action. We need
not execute the orders issued by the Panchayat. If the Panchayat
could not implement its order and there is any inaction on the part of
the said authorities, certainly it is open to the Panchayat to come to
this Court as against any such inaction, whereupon this Court may
consider such contention in the appropriate petition, if any, filed. All
that we say is that at this stage of the proceeding we cannot enter a
finding on the disputed orders passed by the authorities. If there is
any violation, that is a matter at the first instance to be considered by
the concerned authorities who have issued the orders.
4. As far as the affected persons who are indulged in the
activity of brick manufacturing is concerned, it is certainly open to
them to apply to the respective authorities, whereupon the respective
authorities will have necessarily to consider the application in
accordance with the provisions governing the same and, therefore, the
orders stopping the activities of the brick manufacturing units, at this
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stage, shall not adversely affect their right to move the authorities to
get sanction in accordance with law.
5. In the result, we direct that in case any complaint of
violation of any order competently passed by the appropriate
authority under the provisions contained in the Kerala Land
Utilisation Order and also under the Kerala Conservation of Paddy
Land and Wet Land Act, 2008, is made by the petitioner, that
authority will consider his complaint after hearing all the parties and
pass appropriate orders in this regard. In case, there is any inaction
on the part of the first respondent Panchayat in taking further action,
it is open to the petitioner to approach the Ombudsman for Local Self
Government Institutions.
Writ petition is disposed of as above.
P.R.Raman,
Ag. Chief Justice
Thottathil B.Radhakrishnan,
Judge
vns