w w w . L a w y e r S e r v i c e s . i n



Malabar Granites, Represented by Its Managing Partner, M.K. Joseph v/s The Secretary, Koppam Grama Panchayat & Others


Company & Directors' Information:- G T P GRANITES LIMITED [Active] CIN = U14102TZ1990PLC002722

Company & Directors' Information:- G S R GRANITES PRIVATE LIMITED [Active] CIN = U14103UP1995PTC019241

Company & Directors' Information:- P P GRANITES PRIVATE LIMITED [Active] CIN = U14102KA2007PTC043203

Company & Directors' Information:- B R GRANITES PRIVATE LIMITED [Strike Off] CIN = U14102TG2005PTC047897

Company & Directors' Information:- G K GRANITES LIMITED [Active] CIN = U14102KA1999PLC065823

Company & Directors' Information:- R R K GRANITES LIMITED [Active] CIN = U14102TZ1990PLC002719

Company & Directors' Information:- A K J GRANITES PRIVATE LIMITED [Active] CIN = U14102RJ1994PTC008304

Company & Directors' Information:- M L GRANITES PRIVATE LIMITED [Active] CIN = U14102KL2008PTC023027

Company & Directors' Information:- G D GRANITES PRIVATE LIMITED [Strike Off] CIN = U14101KA1990PTC011509

Company & Directors' Information:- K N L GRANITES PRIVATE LIMITED [Active] CIN = U14102AP2012PTC082961

Company & Directors' Information:- S V R GRANITES PVT LTD [Active] CIN = U14102AP1990PTC010843

Company & Directors' Information:- P M R GRANITES INDIA PRIVATE LIMITED [Active] CIN = U14106KL2011PTC028573

Company & Directors' Information:- A P GRANITES PRIVATE LIMITED [Strike Off] CIN = U14102TG1995PTC021475

Company & Directors' Information:- D T GRANITES PRIVATE LIMITED [Strike Off] CIN = U14200AP2015PTC097227

Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- V B GRANITES PRIVATE LIMITED [Strike Off] CIN = U14102KL2005PTC018741

Company & Directors' Information:- S K M GRANITES PRIVATE LIMITED [Strike Off] CIN = U14102TZ1997PTC008050

Company & Directors' Information:- J J GRANITES LIMITED [Active] CIN = U51311WB1992PLC055896

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

Company & Directors' Information:- AT GRANITES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U14200TG2010PTC071741

Company & Directors' Information:- J J GRANITES PVT LTD [Active] CIN = U51311WB1992PTC055896

Company & Directors' Information:- A & A GRANITES PRIVATE LIMITED [Strike Off] CIN = U14291TN1997PTC037595

Company & Directors' Information:- MALABAR CORPORATION PRIVATE LIMITED [Dissolved] CIN = U74999KL1938PTC000695

Company & Directors' Information:- S S GRANITES PRIVATE LIMITED [Strike Off] CIN = U26931UP1980PTC005137

Company & Directors' Information:- G & L GRANITES PRIVATE LIMITED [Strike Off] CIN = U14220TG2016PTC103857

Company & Directors' Information:- V GRANITES PRIVATE LIMITED [Strike Off] CIN = U26940TN2008PTC066786

Company & Directors' Information:- M C GRANITES PRIVATE LIMITED [Strike Off] CIN = U14102KA2008PTC048539

    WP(C). No. 15914 of 2018

    Decided On, 24 January 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Petitioner: Philip J. Vettickattu, Vineeth Kuriakose, Advocates. For the Respondents: R1 & R2, S.P. Aravindakshan Pillay, K.N. Remya, L. Annapoorna, N. Santha, K.A. Balan, Peter Jose Christo, S.A. Anand, V. Varghese, Addl. R3, Rajan Vishnuraj, V. Harish, Advocates.



Judgment Text

1. This writ petition is filed by the petitioner seeking to quash Ext.P9 communication issued by the 1st respondent, i.e., the Secretary of the Koppam Grama Panchayat dated 13.04.2018, declining to renew the licence to the Crusher Unit of the petitioner for want of No Objection Certificates from Fire & Rescue Department and the District Medical Officer. Brief material facts for the disposal of the writ petition are as follows:

2. Petitioner is conducting a Crusher Unit in Ward No.9 of the Koppam Grama Panchayat. The Crusher Unit was originally established in the year 1995, in pursuance of the permission granted by the Koppam Grama Panchayat as per Ext.P11 proceedings dated 18.12.1995. According to the petitioner, 1st respondent was granting/renewing licence from time to time till 31.03.2018. The unit is having all the statutory licences or consent, i.e., consent to operate by the Pollution Control Board, licence issued by the Factories and Boilers etc.

3. Ext.P6 application was submitted by the petitioner for renewal of the licence for the period 2018-19. It is the case of the petitioner that, Rule 10 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trade and Factories) Rules, 1996, (hereinafter referred to as 'the Rules, 1996') stipulates the 1st respondent to renew the licence on submission of such application. However, 1st respondent rejected the same for want of No Objection Certificates as specified above. Further, vide the provisions of the Kerala Investment Promotion and Facilitation Ordinance, 2017, which was later enacted as a law, states that, an NOC from the DMO is applicable only in respect of hospital, clinic, para medical or clinical laboratories or other health care institutions.

4. As far as Fire NOC is concerned, such an approval is required only in respect of new crusher units, which are established after the enforcement of the Kerala Panchayat Building Rules, 2011. In the present case, the crusher unit was established in the year 1995, and therefore, no such insistence can be made by the 1st respondent.

5. A detailed counter affidavit is filed by respondents 1 and 2. Among other contentions, it is stated that, at the time of granting permission to the predecessor of the petitioner, to establish the crusher in the year 1995, permission was granted only for installing machineries with a total capacity of 65HP, whereas, at present, petitioner has been granted permission for installing machineries of 598HP and the petitioner has already installed machinery with a total capacity of 420HP. So also, from Ext.P3, the power permitted to be used by the petitioner has been enhanced from 26.11KW to 313.32KW. Therefore, it is evident that the industrial unit of the petitioner has made drastic changes in the use of machineries from the time of its original inception 23 years before. Therefore, the petitioner cannot any more rely upon Ext.P11 to get over the requirement of furnishing necessary certificate from the Fire & Rescue Department, as directed in Ext.P9. In effect, the sum and substance of the contention advanced by respondents 1 and 2 is that, when the No Objection Certificates are insisted from the statutory authorities to protect the larger interest of the public, petitioner cannot turn around and say that the petitioner is not liable to produce the same, since those are documents to be considered at the time of granting of the licence and permit.

6. The additional 3rd respondent, who is said to be residing 500 metres away from the crusher unit, has also filed a detailed counter affidavit. It is pointed out thereunder that, there are various nuisances faced by the people of the locality from the crusher unit including severe respiratory and allergic ailments. That apart, it is submitted, while issuing the licence, 1st respondent had a duty to ensure that the project proponent has all the required documents for running an industry of dangerous nature while issuing licence under Sec.232 of the Kerala Panchayat Raj Act, 1994. So much so, while renewing the licence, the 1st respondent has a bounden duty to ensure that the requisites provided under law is produced by the project proponent. According to the 3rd respondent, merely because in the amended provisions of Rules, 1996, the licences are directed to be renewed on submission of application, it is not a blanket provision for renewal of the licence. But the renewal can be done only on relying upon, appropriate documents produced by the operator, in order to secure the renewal of the licence. Therefore, according to the 3rd respondent, the insistence made by the 1st respondent for production of No Objection Certificates cannot be said to be illegal in any manner.

7. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition and certain documents are also produced along with the same.

8. I have heard learned counsel for the petitioner and the respective counsel appearing for the respondents. Perused the pleadings and the documents on record.

9. The sole question to be considered is, whether the 1st respondent is entitled to insist for production of the No Objection Certificates from the Fire Department as well as the District Medical Officer for renewal of the licence. According to learned counsel for the petitioner, the NOC from the Medical Officer is not at all required even for grant of a licence. So far as the Fire NOC is concerned, the same is insisted upon on the basis of the provisions of the Kerala Panchayat Building Rules, 2011. Petitioner has established the unit in the year 1995, and therefore, 1st respondent is not entitled to insist the petitioner to produce a No Objection Certificate from the Fire & Rescue Department also.

10. Yet another contention advanced by learned counsel for the petitioner is relying upon Rule 10 as per the amendment Act of 2017 of Rules, 1996, which read thus:

'A licence issued under these Rules shall be renewed on payment of the fee specified under Schedule-II along with a self-certificate from the applicant within thirty days before the end of an year'.

Therefore, according the learned counsel, if and when the petitioner files an application for renewal along with a self-certificate and on payment of fee as per Schedule-II, the 1st respondent is duty bound to renew the licence of the petitioner.

11. On the other hand, learned counsel appearing for 1st and 2nd respondents submitted that, initially, petitioner had only 65HP machineries, and at present, the petitioner is having machineries more than 500HP capacity, which was being put up by the petitioner stage by stage, and therefore, in order to protect the interest of the people residing in the Panchayat and in the larger interest of the community, the insistence made by the respondent Panchayat cannot be said to be illegal or bad. Therefore, according to the learned counsel, Ext.P9 was issued in accordance with law, and insistence for production of the NOC from the Medical Officer was made to ensure that the emissions from the unit is not causing any manner of prejudice to the people residing in the nearby area. Learned counsel for the 3rd respondent also submitted that, in order to ensure that the unit is being operated without causing prejudice to the people of the locality and within the Panchayat area, the Secretary is duty bound to insist for production of appropriate documents.

12. I have evaluated the rival submissions made across the Bar. In this context, Sec.233 of the Kerala Panchayat Raj Act, 1994, is relevant, which is dealing with permission for the construction of factories and the installation of machinery. As per the amended provisions, sub-section (3) is substituted and the Secretary or the officer authorised by him, on receipt of the application, shall enquire and report to the Village Panchayat as to whether the establishment of the factory, workshop or workplace or other installation of machinery or manufacturing plant for which permission is applied for is objectionable by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution and the Village Panchayat, after having considered the application and the reports of the Secretary and of such other authorities as specified in sub-section (4) may, expeditiously as possible, within thirty days, grant the permission either absolutely or subject to such conditions as it thinks fit to impose.

13. Therefore, the Secretary is duty bound under law to provide a report to the Village Panchayat for the purpose of establishment of factories and the installation of machineries. It is true, licence and permissions were granted to the petitioner as early as in the year 1995, at a time when the petitioner was having a 65HP capacity machinery, and power capacity of 26.11KW, whereas, now it is an admitted fact that the capacity of the machineries employed by the petitioner is having more than 500HP and the power capacity is enhanced to 313.32KW. Even though, sub-section (3) has the intention of processing the application initially, such applications are processed taking into account the machineries provided by the applicant at that point of time. It is an admitted fact that petitioner has improved and enhanced the machineries in the unit in question substantially and to several multitude. Even going by Rule 6 of the amended Rules, an application for issuance of a licence is to be accompanied by clearance from other Departments stipulated under the Rules for grant of licence along with other requirements.

14. Rule 12 of Rules 1996 deals with application to be made for constructing or establishing factory, workshop or workplace wherein steam power or other power is to be used. As per sub-rule (2), 'the application shall specify the maximum number of workers proposed to be employed on a day in the factory, workshop, workplace or on the land and shall be accompanied by,- (i) the plan of the factory, workshop, workplace or the land prepared in such manner as directed by the officer authorised by Government; and (ii) the details in respect of power, machinery, plant or land that the Village Panchayat may call for in this behalf'. The above provisions of the rule will convincingly establish that, the Panchayat is at liberty to call for necessary documents, if and when the circumstances require, as in the present case. So also, sub-rule 2(d) stipulates that the Secretary shall in the case of factories, industrial establishments etc. with machinery having capacity of less than 5 horse power and not causing pollution after accepting the fee for licence, without the no objection certificate of another establishments or the special permission of the Village Panchayat, can issue licence.

15. That apart, as per sub-rule 5(c) thereunder, in respect of matters that may be specified by the Government by general or special order, consult with the Divisional Fire Officer, the precautionary measures to be taken against the outbreak of fire. Therefore, the insistence of NOC from the Fire Officer made by the 1st respondent cannot be said to be bad. Moreover, after the establishment of the unit in the year 1995, definitely there would be more residential houses in the locality, and consequent to the enhancement made to the machineries, the production, nature of work, employment, emissions etc. etc. also must have increased to a larger extent. Therefore, it was with the intention of protecting the public interest that No Objection Certificates were insisted by the 1st respondent from the Fire Department as well as the Medical Department.

16. While running an industry, definitely, the petitioner will have to take necessary precautionary measures to protect the larger interest of the community and the workers and life and liberty of the people. While considering such issues, the predominant consideration shall be welfare of the people, which is the sine-qua-non of a welfare State. Which thus also means, there cannot be a hard and fast rule imposed on a statutory authority to overlook such vital aspects and allow the application submitted for renewal. The legislature also did not intend the Secretary/or the Panchayat to do so. Therefore, the renewal of application on submission of self-certificate and the fees, contemplated under law shall be read down to mean, on submission of application with required documents under law, due to any changed circumstances. If such insistences were not made, when the permissions/clearances were granted to the petitioner, that by itself, will not disable or prevent the statutory authority for insisting such requirements, if that is a felt necessity of the time during which petitioner sought for renewal of the licence.

17. In this context, the provisions of the Travancore Cochin Public Health Act, 1955, are relevant, especially certain provisions of Chapter VI, dealing with abatement of nuisances, which read thus:

'39. Certain things to be nuisances.-Without prejudice to the generality of the definition of the expression 'nuisance' contained in clause (27) of Section 2, the following shall be deemed specially to be nuisances for the purposes of this Chapter.-

(1) any premises in such a state as to be prejudicial to health or a nuisance;

(2) any pond, pool, ditch, gutter, water-course, water-trough, latrine, cess-pool, drain or ash-pit, which is foul or in such a state as to be prejudicial to health or a nuisance;

(3) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;

(4) any accumulation or deposit of refuse or other matter which is prejudicial to health or a nuisance;

(5) any factory (not being a factory governed by the provisions of the Factories Act, 1948) workshop, or workplace, which is not provided with sufficient means of ventilation, or in which sufficient ventilation is not maintained, or which is not kept clean or not kept free from noxious effluvia or which is so overcrowded while work is carried on as to be prejudicial to the health of those employed therein;

(6) any fireplace or furnace which does not, as far as practicable, consume the smoke arising from the combustible used therein, and which is used for working engines by steam or in any mill, factory, dye-house, brewery, bake-house or gas-work or in any manufacturing or trade process whatsoever;

(7) any chimney sending forth smoke in such quantities as to be a nuisance; and

(8) any noise, vibration, dust, cinders, irritating smell or offensive odour produced by a factory, workshop or workplace which is a nuisance to the neighbourhood.

40. Detection of nuisance.- Every local authority shall.-

(a) cause its local area to be inspected from time to time with a view to ascertain what nuisances exist therein calling for abatement under the powers conferred on such authority by this Act; and

(b) enforce the provision of this Act in order to abate such nuisance.

41. Information regarding nuisance.-Any person aggrieved by a nuisance in any local area may give information of the same to the Health Officer or any other officer of the public health establishment of the local authority.

42. Power of Health Officer to abate nuisance.-

If the Health Officer is satisfied, whether upon information given under section 41 or otherwise, of the existence of the nuisance, he may, by notice, require the person by whose Act, default or sufferance the nuisance arises or continues or if that person cannot be found, the owner or occupier of the premises on which the nuisance arises or continues, to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose;

Provided that-

(a) where the nuisance arises from any defect of a structural character, the notice shall be served on the owner of the premises; and

(b) where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act, default or sufferance of the owner or the occupier of the premises, the Health Officer may himself forthwith do what he considers necessary to abate the nuisance and to prevent a recurrence thereof.

43. Power of local authority to abate nuisance.- If the person on whom a notice to abate a nuisance has been served under Section 42 makes default in complying with any of its requirements within the time specified therein, or if the nuisance although abated within such time, is, in the opinion of the local authority, likely to recur on the same premises, the local authority, may arrange for the execution of any works necessary to abate the nuisance or to prevent its recurrence, as the case may be, and may recover the cost from such person as if it were a tax due to the local authority.

46. Power of entry and inspection.- The executive authority or any officer of the Public Health Department of the Government or of the local authority, not below the rank of H

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ealth or Sanitary Inspector, may enter and inspect any premises for the purpose of enforcing any of the provision contained in this Chapter; Provided that- (a) No such entry shall be made between sunset and sunrise except when a nuisance is caused by anything done or omitted to be done in the premises between sunset and sunrise; (b) no dwelling house shall be so entered without the consent of the occupier thereof, unless he has received at least twenty-four hours' previous notice of the intention to make such entry; (c) sufficient notice shall in every case be given to enable the inmates of any apartment appropriated to women to withdraw to some part of the premises where their privacy may be preserved; and (d) due regard shall be paid so far as may be compatible with the exigencies of the purposes of the entry, to the social and religious usages of the persons residing in the premises.' The afore-said provisions make it explicit, the local authority is vested with ample powers to seek production of an NOC from the District Medical Officer. Therefore, in my considered view, Ext.P9 cannot be said to be bad or illegal, justifying interference of this Court under Article 226 of the Constitution of India. 18. When this writ petition was admitted to the files of this Court, the operation of Ext.P9 was stayed and it was being renewed time and again and the said order is in force even now. Since there is only two months period for the end of the financial year, the said interim order will continue to operate till 31.03.2019. However, I make it clear that, if and when petitioner is submitting application for the ensuing year 2019-20, the Panchayat will be at liberty to insist for clearances from the Fire & Rescue Department as well as the District Medical Officer. The writ petition is disposed of accordingly.
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19-06-2019 Joseph Thomas @ Thampi Kannanthanam & Others Versus Molly George @ Molamma High Court of Kerala
14-06-2019 C. Joseph Versus The District Collector, Coimbatore & Others High Court of Judicature at Madras
14-06-2019 V.M. Joseph Versus Kadanad Grama Panchayath, Represented by Its Secretary, Kottayam & Others High Court of Kerala
11-06-2019 Clarence Joseph Bhengra Versus State of Jharkhand High Court of Jharkhand
07-06-2019 L'Oratoire Saint-Joseph du Mont-Royal Versus J.J Supreme Court of Canada
30-05-2019 Thresiamma Manshoven Versus Manshoven Jacques Joseph High Court of Kerala
30-05-2019 D.B. Jatti & Another Versus Kambam Sudhir Joseph Reddy & Another High Court of Karnataka
29-05-2019 Asha, Rep. by the Power of Attorney Holder Jonh D'cruz Versus P.K. Joseph & Another High Court of Kerala
02-05-2019 Lydia Agnes Rodrigues (Since deceased) through her legal heirs & Others Versus Joseph Anthony D'Cunha & Others High Court of Judicature at Bombay
26-04-2019 Viji Joseph & Another Versus P. Chander & Others High Court of Judicature at Madras
25-04-2019 Management of St. Joseph of Cluny Montessori School, Pondicherry Versus The Director of School Education, Government of Pondicherry & Others High Court of Judicature at Madras
09-04-2019 Joseph Santhosh Kottarathil Alexander & Others Versus The Superintendent of Customs (Aiu), Cochin International Airport, Nedumbassery, Kochi & Others High Court of Kerala
02-04-2019 Sabmiller India Limited (Formerly Known As Skol Breweries Limited), Unit-Malabar Breweries, Thrissur, Represented by Its General Manager, N. Srinivasa Versus Union of India, Through Its Secretary, Ministry of Finance, Department of Revenue, New Delhi & Another High Court of Kerala
29-03-2019 Joseph Peter & Others Versus Elizabath Manuel & Others High Court of Kerala
25-03-2019 Commissioner, West Arni Panchayat Union, Thiruvannamalai Versus St. Joseph Social Welfare Centre, Rep by Brother & Others High Court of Judicature at Madras
14-03-2019 Joseph Saldhana Versus State of Karnataka, Represented by the Deputy Commissioner & Others High Court of Karnataka
08-03-2019 K.A. Joseph Versus The District Collector, Kottayam & Others High Court of Kerala
07-03-2019 Sebastian Joseph Versus The Governor, Reserve Bank of India, Mumbai Others High Court of Kerala
06-03-2019 James Joseph Murren as Trustee of the James J Murren Spendthrift Trust & Daniel Lee Versus Glenn Schaeffer Court of Appeal of New Zealand
27-02-2019 Tushar Versus Internal Complaints Committee Christ University, Rep. by its Presiding Officer Dr. Mayamma Joseph & Others High Court of Karnataka
27-02-2019 Malabar Cements Ltd. Represented by Secretary, Palakkad Versus K.K. Chandrababu & Others High Court of Kerala
27-02-2019 The South Malabar Gramin Bank, Malappuram, Represented by The General Manager K. Kishore Kumar Versus The Regional Provident Fund Commissioner, Kozhikode & Another High Court of Kerala
22-02-2019 Shali Joseph & Another Versus S.K. Sasikumar High Court of Kerala
19-02-2019 P.B. Dineshan Pillai Versus Joseph @ Jose High Court of Kerala
18-02-2019 Joseph Versus State of Karnataka & Others High Court of Karnataka
13-02-2019 HDB Financial Services Limited, Ernakulam, Represented by Its Legal Officer (Kerala) & Authorized Officer, A.C. Pratheesh Versus M/s. Kings Baker Private Limited, Kottayam, Represented by Its Proprietor, Tom.P. Joseph & Others High Court of Kerala
08-02-2019 Malabar Granites, Palakkad, Represented by Its Managing Partner, M.K. Joseph Versus The Secretary , Koppam Grama Panchayat, Palakkad & Others High Court of Kerala
31-01-2019 Sami Labs Limited Versus M.V. Joseph High Court of Karnataka
29-01-2019 P. Santhosh Joseph & Another Versus The Principal Secretary to Government, Municipal Administration & Water Supply Dept., Chennai & Others Before the Madurai Bench of Madras High Court
24-01-2019 Thomas Joseph Versus Caculo Automotive Pvt. Ltd. & Another Goa State Consumer Disputes Redressal Commission Panaji
24-01-2019 The Commercial Tax Officer, Changanassery & Others Versus M/s. Hotel Breezeland Ltd., Changanassery, Represented by Its Managing Director Joseph Cherian & Another High Court of Kerala