IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 11100 of 2007(U)
1. PROMOTERS CHARITABLE SOCIETY,
... Petitioner
Vs
1. VELLAVOOR GRAMA PANCHAYATH,
... Respondent
For Petitioner :SRI.JOHN JOSEPH VETTIKAD
For Respondent :SRI.M.V.BOSE
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :16/10/2007
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No. 11100 OF 2007U
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Dated this the 16th October, 2007
J U D G M E N T
This writ petition has been filed by a Charitable
Society praying for quashing Ext.P10 decision of the 1st
respondent Panchayat and to direct the Panchayat to
renew its licence for the conduct of a stone metal
crusher unit, in the property comprised in Sy. No.232/1
of Vellavoor Village.
2. After obtaining necessary licences, the petitioner
established a Stone Metal Crusher Unit. Ext.P3 dated 24.05.1993
is the resolution of the 1st respondent to grant licence to the
petitioner’s unit and Ext.P4 is the licence No.4/1993-94
granted in pursuance thereof. After about a year, a suit was
filed before the Munsiff’s Court, Changanassery as O.S.No.345
of 1994 seeking to restrain the unit from functioning and the
suit was dismissed by Ext.P1 judgment. Thereafter, proceedings
under section 133 of the Cr.P.C. were initiated by the Sub
Divisional Magistrate, Kottayam at the instance of some other
persons and that also resulted in Ext.P2 order holding that the
A party therein failed to prove any public nuisance or danger.
The case was dismissed with a direction to the petitioner to
obtain fresh licences and permission from the authorities
concerned for operating the unit.
3. It is the case of the petitioner that the Kerala
State Pollution Control Board (`KSPCB’ for short) had granted
consent for the establishment of the unit and that the same was
WPC No. 11100/07 2
renewed upto 30.06.2009 by Ext.P5. In the meantime the licence
granted to the petitioner had expired and Ext.P7 application
was submitted for its renewal. It is averred in the writ
petition that Ext.P7 application was considered by the
Panchayat Committee on 23.03.2007 and it was resolved not to
renew the licence and that copy of the resolution was not even
issued to the petitioner. It is at that stage, this writ
petition was filed on 29.03.2007.
4. On 30.03.2007 when this case came up for orders,
this Court has passed an interim order directing the 1st
respondent to issue certified copy of the relevant Minutes of
the Committee held on 23.03.2007 together with a copy of the
Secretary’s Report submitted before the Committee. Thereafter,
the documents were given to the petitioner and along with
I.A.No.5346 of 2007, the Minutes of the Meeting and the Report
of the Secretary, were produced marking the same as Exts.P10
and P11 respectively. It is stated in Ext.P10 that after
detailed deliberations, it was resolved by the Panchayat to
obtain the expert opinion of the Kerala Water Authority, Centre
for Earth Science Studies/ Central Water Commission before the
application is considered. It was so resolved on the
apprehension that the establishment of the unit would adversely
affect the proposed water supply scheme for which a Water
Treatment Plant was to be established in the vicinity of the
unit. Ext.P11 dated 12.03.2007 is the Report of the Secretary
of the 1st respondent, which states that the location of the
proposed Water Treatment Plant is about 3/4 K.M away from the
site and that in between that location and the site, there are
two other stone metal crusher units functioning.
5. It is contending that if the unit is established
WPC No. 11100/07 3
there is no possibility of any kind of pollution, that there
are two other units already functioning, that no steps have
been taken for the establishments of the Water Treatment Plant,
this writ petition has been filed. Petitioner has also
produced as Ext.P8, copy of a litho plan, indicating the
location of the unit and the proposed Water Treatment Plant.
Ext.P9 photographs have been produced stating that in the
proposed location there already exists a storage tank, which is
not in use at all. On these averments, petitioner is seeking
the relief’s mentioned above.
6. On behalf of the 1st respondent, the Secretary has
filed a counter affidavit producing Exts.R1(a) and (b), which
are Exts.P11 and P10 and stating that the application of the
petitioner can be considered and licence granted only after the
report of the experts are obtained.
7. The President and Vice President of the 1st
respondent Panchayat, filed I.A.No.5623 of 2007 to get
themselves impleaded as Addl. Respondents 2 and 3, which was
allowed by order dated 17.04.2007. They have filed a counter
affidavit contending inter-alia that the remedy of the
petitioner is provided under Section 276 of the Kerala
Panchayat Raj Act 1994. It is also stated that since the
Panchayat Committee has not rejected the application of the
petitioner but has only resolved to obtain an expert opinion
before taking a decision, the writ petition is premature. It is
also their contention that the Panchayat cannot be restrained
from exercising its right as the licensing authority.
8. I.A.No. 7455 of 2007 was filed by two persons
claiming to be the beneficiaries of the proposed water supply
scheme, seeking to get themselves impleaded as Addl. Respondents
WPC No. 11100/07 4
5 and 6. This court by order dated 07.06.2007 allowed their
impleadment also and they have filed a counter affidavit, the
main thrust of which is that the unit will affect the water
supply scheme.
9. This court by order dated 17.04.2007 suo moto
impleaded the Kerala Water Authority (`KWA’ for short), as
additional 4th respondent. By orders dated 07.06.2007 and
18.06.2007 in I.A.Nos.7453 of 2007 and 8059 of 2007, the Centre
for Earth Science Studies, Trivandrum (`CESS’ for short) and
the Environmental Engineer, KSPCB, were impleaded as Addl.
Respondents 7 and 8 respectively. These additional respondents
have filed statements and reports, about which detailed
reference will be made at a later stage.
10. On the above pleadings the points that arise for
consideration are the following:
I. In view of the statutory remedy available to the
petitioner, whether the writ petition is maintainable.
II. Whether Ext.P10 Resolution of the Panchayat is legal.
III. The relief to be granted in the writ petition.
I. Point No.1: It is true that the Kerala Panchayat Raj Act
1994 provides statutory remedies against a decision in the
nature of Ext.P10. It is on this basis that respondents 2 and
3 are contending that the writ petition is not maintainable.
It is true that ordinarily when a statutory remedy is
available, the party has to pursue that remedy. However, this
is a rule of discretion and not one of compulsion. In
appropriate cases the High Court may entertain a writ petition
WPC No. 11100/07 5
even if any alternate remedy is available. In short the rule
of alternate remedy is only a self imposed restriction.
(i) That apart this writ petition was entertained by
this Court. Addl. Respondents were impleaded, both suo moto
and on applications made in that behalf. Counter Affidavits and
Reports have been filed by the parties. After having done all
this, it is not fair to relegate the petitioner to pursue his
statutory remedy. In several cases, the apex court and this
court have held that after entertaining a writ petition,
keeping it pending and hearing the arguments, the court should
not throw out the same on the ground of availability alternate
remedy. This case does not pose any disputed question of fact
incapable of being resolved in this proceeding.
(ii) Following its decision Sri.L. Hirday Narain vs.
ITO (1970 (2) SCC 355), in the case of State of H.P vs.
Gujarat Ambuja Cement Ltd. (2005 (6) SCC 499) the apex
court held that;
“if the High Court had entertained a petition despite
availability of alternate remedy and heard the parties
on merits it would be ordinarily unjustifiable for the
High Court to dismiss the same on the ground of non-
exhaustion of statutory remedies; unless the High Court
finds that factual disputes are involved and it would
not be desirable to deal with them in a writ petition”.
The law laid down by the apex court is fully applicable to the
facts of this case and therefore I hold that the writ petition
is maintainable.
II. Point No.2: While examining the validity of Ext.P10
Resolution of the Panchayat, the reasons stated therein needs
WPC No. 11100/07 6
to be referred to. The primary apprehension that was expressed
in the meeting of the Panchayat is that the functioning of the
unit will affect the Manimala Major Water Supply Scheme, and it
is on that basis the Panchayat resolved to seek expert opinion
from KWA, CESS/ Central Water Commission. The correctness of
this resolution and the reasons stated therein, can be examined
only with reference to the affidavits and reports such as
Ext.P11 Reports of the Secretary of the Panchayat, KSPCB and
the CESS and also the affidavit filed by the KWA in this Court.
(a) Ext.P11 report of the Secretary:
In this Report it is stated that initially the petitioner
was granted licence and that the writ ceased to function
following the litigations. It is stated that he had inspected
the premises and that the Water Treatment Plant that was
proposed to be installed was about 3/4 K.M away from the unit
and that two stone metal crusher units were already functioning
in closer proximity to the site of the Water Treatment Plant.
(b) Counter Affidavit by KWA:
In this affidavit the details of the Comprehensive Water
Supply Scheme to Manimala and adjoining Villages, have been
furnished. According to KWA, the main factors to be considered
in the context of Air Pollution are the dust emanating from the
unit and the arial distance between the unit and the treatment
plant. It is stated that the unit is in a lower area, which
increases the chances of air pollutants reaching the elevated
location of the treatment plant as the finer particles in the
dust having lesser density will move upwards in the atmosphere.
However, it is stated that since they are not provided with the
WPC No. 11100/07 7
details of the activities in the unit, the KWA is not in a
position to ascertain the actual level of pollution, vibration
etc. According to KWA, agencies like KSPCB, CESS, Geology
Department, who are the experts in their respective fields are
to be involved for conducting detailed studies.
(c) Report of the KSPCB:
The Environmental Engineer had inspected the unit with
notice to the respondents. He has found that the unit has
satisfactorily provided pollution control measures in
compliance with the conditions of the consent order, granted on
17.08.1998, for the operation of a secondary crusher of 30 HP
capacity. Regarding the location of the unit the report states
that;
“the location of the crusher unit is in a rocky region
surrounded by hill-locked terrain covered by rubber
estates and other plantations. There are no residences
within 100 meter distance on any sides of the crusher
unit. The site proposed for the water treatment plant
of the Kerala Water Authority is not in the vicinity of
the crusher unit. The location of the said site was
found to be on the top plain area of the hill existing
at South West direction of the crusher unit. The arial
distance between the crusher unit and the site of the
proposed Water Treatment Plant has been measured by the
Geologist (who accompanied the scientists from the
Centre for Earths, Science and Studies) under Global
Positioning System using hand held G.P.S. monitor and
obtained as 710 Meter. In between the existing crusher
and the site for Water Treatment Plant, two Nos. of
stone quarries, reported as unlicenced, were observedWPC No. 11100/07 8
under operation.
Regarding the Water Treatment Plant no construction
activities was seen commenced in the proposed site.
According to the Assistant Executive Engineer, Kerala
Water Authority, who was present during the inspection,
the Government have not so far acquired the land proposed
for the project.
Regarding the allegation that the proposed Water
Treatment Plant will be subjected to the dust pollution,
once the crusher unit is put into operation, I may submit
that, considering the topographic virtue of the area where
the crusher unit is located, and more over, the crusher
unit being surrounded by lush green belt formed by tall
plantations upto the area of the proposed site, the
anticipation/ allegation of dust pollution to the Water
Treatment Plant due to the operation of the crusher unit
is highly impracticable even without adoption of any
pollution control measures at the unit”.
The report also states that under the stringent conditions
imposed in the consent order,
“any dust pollution even at the boundary of the premises
of the crusher unit beyond safety level is ruled out”.
The report concludes by saying;
“And, it is further submitted that, the crusher unit has
provided pollution control measures as per consent
conditions satisfactorily. And if the crusher unit
plant is operated in compliance with the consentWPC No. 11100/07 9
conditions of the Board, no any pollution problems due
to the operation of the crusher unit beyond the safer
limit prescribed under the Environmental (Protection)
Rule is anticipated”.
(d) Report submitted by CESS:
After a detailed study, the CESS concludes its report with
the following Conclusion and Recommendations:
“The study revealed that reopening the Crusher would
have no impact on the proposed water tank. The crusher
activity with all precautionary measures causes
negligible stress than quarrying and blasting. The
activity of the crusher installed at the site may not
affect any structures beyond a safe distance of 250 m.
However, a safer distance of 500 m for water storage
structures may be maintained. The following
recommendations are made based on the study:-
The reopening of the Crusher unit installed by M/s.
Promoters Charitable Society at Vellavoor is feasible
subject to the following conditions:-
1. The proprietor should maintain the greenery of the site.
Surrounding the property a green belt with the width of
about 25 m – 30 m with native species may be planned and
gradually developed.
2. The crusher operation should be restricted to daytime
preferably between 8 AM – 6 PM.
3. The proponent should not accumulate or dump any crusher
debris on the steep slopes adjacent to the crusher.
4. The proprietor shouldn’t obstruct the drainage; prevent
rock debris, oil and grease washed down to the stream
flowing nearby.
WPC No. 11100/07 10
5. The workers in the crusher should be provided with air
masks to prevent dust, and earplugs to avoid health
impacts due to high noise level. Wearing of earplugs
and masks should be strictly enforced.
6. Four sprinklers and four showers are recommended for the
crushing unit. Their regular operation should be
ensured. Water sprinkling should also be made mandatory
at sites for preventing fugitive air emissions.
7. The transportation of rock rubbles should be done in
closed trucks. The roads should be surfaced and
maintained periodically by the society.
8. All machinery should be in good working condition and
ensure all safety measures on site.
9. The proprietor should strictly implement all the
conditions and directions stipulated in the consent to
establish the crusher unit issued by the Kerala State
Pollution Control Board.
10. The environmental situation may be reviewed by a
competent agency once the Crusher is in operation, and
corrective measures, if required, should be taken.
The Grama Panchayat may also take necessary steps
to restrict the number of crusher units and
quarries in the area”.
11. Thus, from the reports made by the above Expert
bodies, it is evident that if the unit is allowed to function
strictly in compliance with the conditions specified in the
consent order issued by the KSPCB and the recommendations of
the CESS, there cannot be any threat of air pollution to the
proposed Water Treatment Plant. Therefore, the apprehension
WPC No. 11100/07 11
expressed by the members of the committee when they passed
Ext.P10 Resolution and that of respondents 2, 3, 5 and 6 in the
counter affidavits filed in this case, has no basis. In this
context I should also mention that the reports of the Secretary
and the KSPCB specifically refers to the functioning of two
stone metal crusher units in closer proximity to the site of
the proposed Water Treatment Plant, the distance of which is
now confirmed to be 710 meters away from the site of the unit.
Both these aspects were conveniently omitted by the committee
when they deliberated on Ext.P7 renewal application submitted
by the petitioner.
12. After the aforesaid materials were filed in this
court, by order dated 16.08.2007 this court directed the 1st
respondent consider the reports and take a decision in the
matter on or before 5th September 2007, keeping in view the
opinion/grievances of other respondents also. In pursuance to
this order Panchayat considered this matter in their meeting
held on 04.09.2007 when they passed Ext.R1(c) resolution.
Instead, since its apprehension of pollution mentioned in
Ext.P10 has been proven to be baseless, one would have expected
the 1st respondent to have renewed the licence. It is stated in
Ext.R1(c) that though Ext.P7 application was for using 30 H.P.
Motor, during inspection of the unit a motor of 50 H.P. was
found. It is stated that since consent with respect to the 50
H.P. motor has not been obtained by the petitioner from the
KSPCB, it was resolved to defer a decision on the application
until consent was obtained.
13. Petitioner does not dispute the existence of a 50
H.P. motor at the unit nor does it dispute that it does not
have consent in respect of the said motor. On the other hand
WPC No. 11100/07 12
Ext.P3 application of the petitioner is to renew the licence
with the 30 H.P. motor and the petitioner submits that unless
and until they obtain consent in respect of the 50 H.P. motor,
they will not utilize the same. However, this aspect has not
been considered by the Panchayat either in Ext.P10 or in Ext.R1
(c). On the other hand the existence of the 50 H.P. motor has
been used conveniently, to deny renewal of licence to the
petitioner, when the possibility of pollution, the only reason
stated in Ext.P10, has now been ruled out by the KSPCB and the
CESS. Thus, it is obvious that the 1st respondent Panchayat has
been inventing reasons to deny licence to the petitioner.
14. With the reports submitted by the KSPCB and the CESS
I am satisfied that the reasoning of the Panchayat for denying
renewal of licence for running the petitioner’s unit with a 30
H.P. motor is illegal and arbitrary and Ext.P10 resolution
dated 23.03.2007 deserves to be set aside and I do so.
III. Point No.3: Now that I have found that Ext.P10 resolution
of the 1st respondent is illegal and arbitrary, the next
question is as to what is the relief that the petitioner is
entitled to. Ordinarily, when the decision of a statutory
authority is set aside by a court, the matter will be remanded
to that authority with a direction to reconsider the matter. It
is on this basis that the learned counsel for additional
respondents 2 and 3 contended that the Panchayat cannot be
deprived of its statutory right to decide on the application on
the petitioner, on which till now, no final decision has been
taken.
(ii) I would have certainly remitted matter back to the
Panchayat with a direction to take a fresh decision in the
WPC No. 11100/07 13
matter. However, in this case, I am satisfied that such a
direction can only do injustice to the petitioner. My reasons
for such a conclusion are that the decision of the Panchayat on
Ext.P7 renewal application was to obtain report of expert
bodies such as KWA, CESS/ Central Water Commission. This court
by order dated 17.04.2007 impleaded KWA as additional
respondent No.4 and CESS was impleaded by order dated
07.06.2007 in I.A.No.7453 of 2007. In addition to this the
KSPCB also has been impleaded by order dated 18.06.2007 in
I.A.No.8059 of 2007. The CESS has reported in favour of
allowing the unit to function, subject to conditions. The
KSPCB’s Report is also one ruling out pollution on compliance
with the conditions of the consent order. The KWA, though
apprehends air pollution, suggested study by expert bodies such
as KSPCB. In both Exts.P10 and R1(c), Panchayat has no case
that the unit is lacking in any respect. Thus, with the
materials that have come on record, I have to conclude that the
apprehension of air pollution expressed by the Panchayat in
Ext.P10 has no basis.
(iii) While the Panchayat seems to be very concerned
about the threat of pollution from the petitioner’s unit, it
had not shown any such concern while two stone metal crusher
units were functioning in closer proximity to the site of the
proposed water treatment plant, despite the fact that these
units did not have any licence. However, Panchayat has made a
last minute attempt to tell this court in its affidavit dated
30.09.2007, that action is already taken to stop functioning of
these quarries and no permission has been granted to the
functioning of the same. Therefore, the attempt is deny licence
to the petitioner for reasons which are not genuine or
WPC No. 11100/07 14
bonafide.
(iv) My conclusion is fortified by Ext.R1(c) resolution
of the Panchayat, passed pursuant to this court’s order dated
16.08.2007. In the light of materials available, one would
have expected the Panchayat to grant the licence. However,
this resolution, a new reason has been invented by the
Panchayat that the petitioner has not obtained consent in
respect of its 50 H.P. motor. As I have already mentioned
Ext.P7 application of the petitioner was only for renewing the
licence with a 30 H.P. motor and neither the petitioner nor the
Panchayat has a case that the petitioner has made any
application in respect of its 50 H.P. motor. Petitioner has
undertaken that unless and until necessary licenses are
obtained, the 50 H.P. motor will not be made use of. Thus, on
the whole, the Panchayat was deliberately refusing to take a
final decision on Ext.P7 application and the intention is to
deny licence to the petitioner, which has already set up and
was functioning the stone metal crusher units.
(v) The apex court in Controller and Auditor General of
India vs. K.S. Jagannathan (1986 (2) SCC 679) has held as
follows:
“Art.226 is designedly couched in a wide language in
order not ot confine the power conferred by it on the
High Courts only to the power to issue prerogative writs
as understood in England. The High Courts exercising
jurisdiction under Art.226 can issue `directions, order
of writs’ so as to enable the High Courts to reach
injustice wherever it is found and to mould the reliefs
to meet the peculiar and complicated requirements ofWPC No. 11100/07 15
this country. The High Courts have the power to issue a
writ of mandamus or a writ in the nature of mandamus or
to pass orders and give necessary directions where the
government or a public authority has failed to exercise
or has wrongly exercised the discretion conferred upon
it by a statute or a rule or a policy decision of thegovernment or has exercised such discretion mala fide or
in irrelevant considerations or by ignoring the relevant
considerations and materials or in such a manner as to
frustrate the object of conferring such discretion or
the policy for implementing which such discretion has
been conferred. In all such cases and in any other fit
and proper case a High Court can compel the performance
in a proper and lawful manner to the discretion
conferred upon the government or a public authority, and
in a proper case, in order to prevent injustice
resulting to the concerned parties, the court may itself
pass an order or give directions which the government or
the public authority should have passed or given had it
properly and lawfully exercised its discretion”.
Following this, a Division Bench of this court in Jancy
Chandy vs. Jose Puthenkala (2006 (4) KLT 116) held that
the jurisdiction of this Court under Article 226 of the
Constitution of India cannot be cribbed and cabined by
technical pleas and that it is meant to reach wherever
injustice is found and to prevent injustice, the writ court
should in appropriate cases pass orders and give directions
which the concerned statutory authorities could have and should
WPC No. 11100/07 16
have passed. By the aforesaid reasoning, the Division Bench
upheld the judgment of the Learned Single Judge declaring that
the appellant therein had incurred disqualification in terms of
Section 3 of the Local Authorities (Prohibition of Defection)
Act 1999 (Kerala).
15. Following the law laid down by the Apex Court and
this Court, I am satisfied that in the circumstances of this
case, the 1st respondent Panchayat should be directed to renew
the licence of the petitioner pursuant to Ext.P7 application
submitted by it. I make it clear that the petitioner shall
function its stone metal crusher unit strictly in compliance
with the consent order of the KSPCB and the recommendations of
the CESS. Necessary orders renewing the licence of the
petitioner will be passed by the 1st respondent within 2 weeks
from the date of receipt of a copy of the judgment.
ANTONY DOMINIC
JUDGE
pr/jan.