K.Harikumar vs Ambalappuzha South Grama Panchayath

Shaji P. Chaly, J.

These appeals are preferred by the petitioners in W.P.(C) Nos. 3324 and 7554 of 2021 challenging the common judgment of the learned single Judge dated 23.09.2021, whereby the learned single Judge dismissed the writ petition and declined the following reliefs sought for in the writ petitions:

Declare that the Ready Mix Plant runs or the activities conducted under the cover of Kerala Irrigation Infrastructure Development Co­operation by the 6th and 7th respondents at the area in the Ward No.10 of Ambalappuzha South panchayat at Komana requires all licenses, permit etc. under the Kerala Panchayat Raj Act, 1994 and Environmental Laws.

Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P5 and Exts.P11 and P12 and quash the same.

Issue a writ of mandamus or any other appropriate writ, order or direction commanding the first respondent to hear the Exhibit P1, P2, P6 and other objections of the petitioner and similarly placed others immediately after issuing stop memo to respondents 6 and 7 and in the event of finding violation of statutory provisions disallow the plant to function.

Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 2 to 5 to hear the objections of petitioners and similarly placed others immediately after issuing stop memo to respondents 6 and 7 and take the decisions in accordance with law.

The subject issue relates to the installation of a Concrete Ready Mix Plant by the Kerala Irrigation Infrastructure Development Corporation Ltd., in ward No. 10 of Ambalappuzha South Panchayat, Alappuzha District.

The appellants are apparently residents of Ward No. 10 of Ambalappuzha South Panchayat and according to them, it is a very thickly populated area wherein many senior citizens, suffering from ailments such as heart disease, asthma etc., are residing.

The case projected by the petitioners is that a Concrete Ready Mix Plant is constructed by the 6th respondent in the writ petition, M/s. Ramalingam Construction Company Pvt. Ltd. in order to manufacture and laying Groynes to protect the sea shore in Ambalappuzha as per the contract awarded by the Kerala Irrigation Infrastructure Development Corporation, since there is acute sea erosion in the said area. The further case of the petitioners is that neither the Contractor nor the Kerala Irrigation Infrastructure Development Corporation has secured necessary clearances/licences and permits from the Grama Panchayat or the necessary statutory authorities. Therefore, according to the appellants, the construction carried out is illegal, which is liable to be interfered with, in order to protect the interest of the citizens residing in Ward No. 10 of the Ambalapuzha Grama Panchayat.

In fact, the Grama Panchayat has filed detailed counter affidavits in the writ petitions stating that the Ambalapuzha South Grama Panchayat is centrally located and in the middle of the areas where Groynes are to be laid. It is also submitted that the Contractor has started the plant in Ward No.10 which is hardly 1 km. away from the seashore.

It is also the case of the Grama Panchayat that as the Groynes are to be laid in public interest, the Panchayat has decided to give permission. It is also pointed out that since the activity undertaken by the 6th respondent is an activity of the Government, no permit is needed under Rule 7 of the Kerala Panchayat Building Rules, 2019 (‘Rules, 2019’ for short). It is further submitted that the activity is for a short duration and hence, Ext. P5 No Objection Certificate dated 07.12.2020 was issued by the Grama Panchayat.

In pursuance to the directions issued by the learned single Judge, the Environmental Engineer of the Kerala State Pollution Control Board, who is one of the respondents in the writ petition, has also filed a report dated 15.05.2021, wherein it is stated that the Plant has complied with all the consent conditions and directions issued by the Pollution Control Board and there is no chance of any pollution emanating from the unit.

The learned single Judge, after taking into account the contentions advanced by the rival parties, has held that the Plant is necessitated for construction and laying of Groynes in the seashores of Ambalapuzha South Panchayat, Ambalapuzha North Panchayat, Mararikulam South Panchayat and Arattupuzha Panchayat; that the seashores in those areas are facing serious sea erosion, which is a threat to the life and property of the people living in coastal areas and the fishermen community; that it is in the larger public interest that the Kerala Irrigation Infrastructure Development Corporation, a State Government Undertaking, has taken up the work financed by the Kerala Infrastructure Investment Fund Board (KIIFB); that the work is entrusted to M/s. Ramalingam Construction Company Pvt. Ltd.; and that the work undertaken is of a temporary duration and will be completed within the stipulated time. It is also found that the Contractor has the approval under the Kerala Micro, Small and and Medium Enterprises Facilitation Act which enables the 6th respondent to run the enterprise for three years without obtaining statutory clearances under various State laws.

After assimilating the legal and factual situations, the learned single Judge has held as follows:

The Cement Ready Mix Plant by itself does not require any prior Environmental Clearance under any statute. The body competent to ensure pollution prevention measures namely, the Pollution Control Board has made repeated site inspections and has taken all steps to ensure prevention of pollution. There is nothing on record to show that the heavy vehicles plied by the 6th respondent are damaging the roads. Even If the roads are so being damaged, taking into account the larger public interest behind the project, this Court should not interfere with the ongoing project having great public interest, on that ground. This Court is not inclined to accept the argument of the petitioners that their rights under Articles 14, 19 and 21 are infringed by the Project.

Hence, this Court finds no reason to interfere in the matter. The writ petitions are hence dismissed.”

The legality and correctness of the said judgment is under challenge in the writ appeals.

In fact, the construction of the Ready Mix Concrete Plant is a subject matter taken care of under the Rules, 2019. Rule 25 of the Rules, 2019 deals with ‘occupancy of buildings’ and the sub­Rule 2 thereto deals with the ‘description of occupancies’ categorising into various groups. Group I deals with ‘hazardous building’, which takes in Ready Mix Concrete Plant intended to function for more than six months. However, Rule 68(1) of the Rules, 2019 dealing with ‘temporary hut or shed’ makes it clear that the the Secretary may grant permission to a person to erect for a specified period huts or sheds of a purely temporary nature for stabling or similar purposes or hot mix plant or concrete mix plant, on general conditions as may be fixed by the Council. But, sub­Rule 2 thereto makes it clear that the Secretary may, on the failure of the person to demolish or dismantle the shed or hut or hot mix plant or concrete mix plant at the expiry of the period specified, cause it to be demolished or dismantled and the cost thereof shall be recovered from such person as if it were an arrear of property tax due under the Act.

Therefore, on a conjoint reading of the Rules, which take care of 'buildings' under Group I of Rule 25(2) and Rule 68 of the Rules, 2019, it is clear that if the Concrete Mix Plant is for a period less than 6 months, a permission from the Secretary is only required. Which thus means, if the Concrete Mix Plant is of permanent nature as contemplated under Group I of Rule 25(2), a permit is required; whereas, if it is of temporary nature taken care of under Rule 68 only, permission is required.

Therefore, taking into consideration the stand adopted by the Panchayat in the writ petition and Ext. P5 NOC, we find that the Panchayat has given permission to M/s. Ramalingam Construction Company Pvt. Ltd., as per its order dated 07.12.2020 for establishing a Concrete Mix Plant.

Furthermore, Rule 5(b) of the Rules, 2019 makes it explicit and clear that every person, other than a Central or State Government Department, has to apply for development or building permit to construct or reconstruct any building etc. in contemplation of the provisions of the Rules, 2019.

That apart, it is an admitted fact that the Contractor, M/s. Ramalingam Construction Company Pvt. Ltd., is approved by the Kerala Micro, Small and and Medium Enterprises Facilitation Act, which enables the Contractor to run the enterprise for three years without obtaining statutory clearance under various State laws. However, it is an admitted fact that consent from the Pollution Control Board is required. The report filed by the Environmental Engineer of the Pollution Control Board shows that adequate safety and security measures are taken by the Contractor in order to eliminate any pollution occuring from the plant. These are all aspects that have weighed with the learned single Judge in order to arrive at the conclusions recorded above.

Moreover, as pointed out by the learned single Judge, sea erosion in the coastal belts is a serious issue that is concerning the residents within the coastal areas, especially the fishermen, and it is with the larger public interest of the people within the coastal areas and to protect the landward side of the coastal areas Groynes are laid.

Taking into account the above legal and factual aspects, we are of the considered opinion that the appellants have not made out any case of jurisdictional error or other legal infirmities in the judgment of the learned single Judge liable to be interfered with, in an intra court appeal preferred under Section 5 of the Kerala High Court Act, 1958.

Upshot of the above discussion is that the writ appeals fail and accordingly, they are dismissed.