K.Harikumar, Dwaraka, Komana vs Ambalappuzha Grama Panchayath

N.Nagaresh, J

The petitioner in WP(C) No.3324/2021 is a permanent resident of Ward No.10 of Ambalapuzha South Panchayat. The petitioners in WP(C) No.7554/2021 are Moodampadi Residents Association and three residents of Komana in Ambalapuzha.

The writ petitions are filed seeking to declare that the Ready Mix Plant or the activities conducted under the cover of Kerala Irrigation Infrastructure Development Corporation by 6th and 7th respondents at the area in the Ward No.10 of Ambalapuzha South Panchayat at Komana requires all licences, permit etc under the Kerala Panchayat Raj Act, 1994, Environmental Laws and all other relevant laws. Certain consequential and incidental reliefs are also sought for in the writ petitions. The respondents and exhibits are referred to in this judgment in the order they are arrayed/marked in WP(C) No.7554 of 2021.

The petitioners state that the Ward No.10 of Ambalapuzha is a thickly populated residential area. Petitioners 2 to 4 in WP(C) No. 7554/2021 are senior citizens suffering from ailments like Gastroenterological disease, heart disease, Asma etc. The 6th respondent-Construction Company established a Cement Ready Mix Plant in the Ward. It is a highly polluting industry falling in Red Category. The local residents filed a mass petition to the Panchayat authorities to take steps to stop the activities of the Plant. The Panchayat has not taken any steps in that regard.

No permit is granted to the Plant, under the Kerala Panchayat Raj Act, 1994. No licences or Consent were obtained by the 6th respondent, under various statutes. Ext.P2 lawyer notice was sent to the 1st respondent-Panchayat. On an RTI enquiry, the petitioners learnt that the RCCL Plant has obtained an establishment permission from the 2nd respondent-Environmental Engineer, Kerala Pollution Control Board. The 6th and 7th respondents have been misusing a Railway Road and damaging it, plying heavy duty vehicles carrying heavy machinery. The petitioners again submitted Ext.P6 complaint to the Panchayat. The Panchayat authorities have taken a stand that the work being carried out by the 6th respondent is one related to Kerala Irrigation Infrastructure Development Corporation and it does not require any permit or licence under the Kerala Panchayat Raj Act, 1994.

The learned counsel for the petitioners argued that the running of a highly polluting industry in a densely populated area offends the fundamental rights guaranteed to the petitioners under Articles 14, 19(e) and 21 of the Constitution of India. The purpose of the Cement Ready Mix Plant is said to be for facilitating Groynes construction at sea shore. The Plant at Ambalapuzha has not even a remote connection with the activity of Groynes construction. Consent from the Pollution Control Board was obtained by the 6th respondent suppressing material facts. No Environmental Impact Assessment was made before issuing Consent of the Pollution Control Board. The learned counsel for the petitioners further argued that Sections 232 and 233 of the Kerala Panchayat Raj Act stand violated by the 6th respondent. Under Section 233A, the 1st respondent is bound to issue Stop Memo on the 6th respondent. Section 10 of the Kerala Micro, Small and Medium Enterprises Facilitation Act, 2019 cannot abrogate the power of the Panchayat under Section 233A of the Kerala Panchayat Raj Act, 1994. Respondents 3 to 5 have a duty to ensure that the Railway Road is in good condition and is not damaged by the activities of the 6th respondent.

The 1st respondent filed a counter affidavit in the writ petition. The 1st respondent submitted that the 6th respondent awarded a work of installation of Groynes along the seashore in Ambalapuzha, by the Kerala Irrigation Infrastructure Development Corporation. Sea erosion is high and serious in this area. As the Ambalapuzha South Panchayat is in the middle of the areas where Groynes are to be laid, the 6th respondent sought to start the Plant in Ward No.10, which is hardly one kilometre far from the seashore. As the work is in larger public interest, the Panchayat decided to give permission. Since the activity undertaken by the 6th respondent is a Governmental activity, no permit is needed under Rule 7 of the Kerala Panchayat Building Rules. The activity is for a short duration. Hence, Ext.P5 No Objection Certificate was issued.

The 2nd respondent-Environmental Engineer submitted a Report dated 15.05.2021. The 2nd respondent 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 serious pollution problems from the Unit.

I have heard the learned counsel for the petitioners, the learned Standing Counsel for the 1st respondent-Panchayat, the 2nd respondent-Environmental Engineer and respondents 3 to 5 and the counsel for respondents 6 and 7.

The Ready Mix Plant in Ward No.10 of Ambalapuzha South Panchayat has been necessitated for construction and laying of Groynes in the seashores of Ambalapuzha South Panchayat, Ambalapuzha North Panchayat, Mararikulam South Panchayat and Arattupuzha Panchayat. The seashores in these areas are facing serious sea erosion which is a threat to the life and property of the people living in coastal areas and the fisher folk. It is in the larger public interest that the 10th respondent which is a State Government Undertaking has taken up the work financed by the Kerala Infrastructure Investment Fund Board (KIIFB). The 6th respondent has been entrusted with work.

It is to be noted that the work undertaken is of a temporary duration and will be completed within the stipulated time. The 6th respondent 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. Nevertheless, the Plant of the Unit would require Consents and Clearances under the applicable Central laws.

The 2nd respondent-Environmental Engineer has stated that when an application for Consent to Operate was received from the 6th respondent, the 2nd respondent inspected the Unit on 21.01,2021 and found that it has not adopted the specified pollution control measures. Water Sprinkler System, Dust Control system, and compound wall as stipulated in the Consent to Establish were in place. Hence, a Consent Refusal Intimation Notice was issued. The 6th respondent then took various remedial measures. Thereafter, an Integrated Consent to Operate was issued on 23.02.2021.

Another inspection was conducted on 26.03.2021 and certain defects were noted. A show-cause notice was therefore issued. Pursuant to the directions of this Court, a further inspection was conducted on 31.03.2021. The 6th respondent was directed to optimise water sprinkling and road wetting system, after a further inspection conducted on 29.04.2021. Thereafter, one more inspection was conducted on 06.05.2021 and noise level and concentration of suspended particulate matter was measured. It was found that Unit has complied with all Consent conditions and directions issued by the Board and there is no possibility of serious pollution problems from the Unit. In view of the above, the concern of the petitioners relating to pollution caused by the Plant stands answered.

The learned counsel for the petitioners argued that since the Groynes are being laid in a vast area exceeding 20,000 square metres, prior Environmental Clearance is necessary for the functioning of the Plant. This Court is unable to accept the argument as the petitioners have no case in the writ petitions that laying of Groynes by itself will result in environmental degradation. Even If the petitioners have such a case, the laying of Groynes is extremely necessary for protection of life and property of the general public in the coastal belt and the protection of their life should be given priority.

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.