1. The petitioner and her husband jointly own 18.87 ares of land in R.Sy.No.300/4-3 of Kozhencherry Village, Kozhencherry Taluk, Pathanamthitta District. On an application made by the petitioner, by Ext.P1 order dated 19.1.2010, the District Town Planner, Pathanamthitta granted permission to construct a building for starting a hollow brick manufacturing unit in the said parcel of land. By Ext.P2 order dated 3.3.2010, the Environmental Engineer, Kerala State Pollution Control Board, Pathanamthitta, granted consent to operate the unit to the petitioner. The Assistant Divisional Officer, Fire and Rescue Services, Kottayam, who was holding full additional charge of Assistant Divisional Officer, Pathanamthitta has issued Ext.P3 No Objection Certificate for the establishment of a hollow brick manufacturing unit in the aforesaid parcel of land. The petitioner thereafter applied to the local authority, viz., the first respondent herein for permission to establish a hollow brick manufacturing unit as required under section 233 of the Kerala Panchayat Raj Act, 1994 and rule 12 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996. Along with the said application, the petitioner also produced the originals of Exts.P1, P2 and P3. Upon receipt of the said application, the Secretary of first respondent Panchayat sent a letter dated 24.4.2010 to the District Medical Officer of Health, Pathanamthitta for approval of the plan of the proposed building submitted by the petitioner.
2. In the meanwhile, the fourth respondent and others filed objections before the Secretary of the Grama Panchayat contending that if a hollow brick manufacturing unit is established by the petitioner, it will result in air pollution. The fourth respondent and others thereafter filed W.P. (C) No.9293 of 2010 in this Court seeking a direction to the Kozhenchery Grama Panchayat to ensure that the petitioner herein, who was the 7th respondent in the said writ petition, does not run a hollow brick manufacturing unit without a licence. When that writ petition came up for hearing on 25.5.2010, it was submitted on behalf of the petitioner herein that she has obtained the necessary clearances from the Kerala State Pollution Control Board and the Fire and Rescue Services, that her application for licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades & Factories) Rules, 1996 is pending before the Secretary of the Panchayat and that the application for approval of the plan of the proposed building is pending before the District Medical Officer. Taking note of the said facts, this Court disposed of W.P.(C) No.9293 of 2010 with a direction to the local authority to consider the objections raised by the fourth respondent and others while considering the application for licence submitted by the petitioner herein. The Secretary of the Panchayat was directed to take a final decision in the matter within one month. This Court also directed the District Medical Officer of Health, Pathanamthitta to dispose of the application submitted by the Panchayat within the aforesaid period.
3. The District Medical Officer of Health thereafter sent Ext.P6 letter dated 21.7.2010 to the petitioner informing her that she should satisfy five conditions for the grant of a licence. One among the conditions was that the petitioner should put up a shed 100 meters away from the residence of the fourth respondent for unloading the raw material, that the shed should be enclosed on all three sides and that water should be sprinkled throughout to prevent pollution. A copy of Ext.P6 was also forwarded to the local authority. Upon receipt of that report, the Secretary of the Panchayat sent Ext.P7 letter dated 10.8.2007 to the petitioner informing her that as the land where she proposes to put up a hollow brick manufacturing unit has a length of only 65 meters, she cannot comply with condition No.2 in Ext.P6, and therefore, her application cannot be considered. Exts.P6 and P7 are under challenge in this writ petition.?
4. The petitioner contends that as the Kerala State Pollution Control Board which is the competent authority has granted consent to operate the unit, the District Medical Officer could not have imposed the conditions stipulated in Ext.P6, and that Ext.P6 is without the sanction or authority of law. The petitioner has also contended that on the application for permission to construct a hollow brick manufacturing unit, which was made in terms of section 233 of the Kerala Panchayat Raj Act, the report of the Medical Officer was not required to be called for, for the reason that the connected load of the machinery installed was only 10 HP and did not exceed 25 HP and the nature of the machinery and installation are such that, it does not cause any nuisance or pollution. It is contended that the rejection of the application for permission to establish the hollow brick manufacturing unit is therefore illegal.
5. The first respondent has filed a statement to the effect that if the petitioner is willing to abide by the conditions stipulated in Ext.P2 order passed by the Kerala State Pollution Control Board, the Panchayat has no objection in issuing a licence to the petitioner. It is further stated that the petitioner has not complied with conditions stipulated by the District Medical Officer in Ext.P6.
6. The Environmental Engineer, Kerala State Pollution Control Board, the second respondent herein, has filed a statement dated 13.9.2010 wherein it is stated that the minimum set back prescribed for the tiny industries like the one sought to be established by the petitioner is 3 meters from the nearby residences and that the residence of the fourth respondent from the proposed industrial unit is more than 15 meters. It is stated that in such industries the pollution caused is the dust generated by the handling of raw material and the noise generated from the block making and concrete mixture machines, which can be effectively controlled by water spraying and by providing a solid brick wall enclosure for the unit. It is stated that wet cement dust and crusher sand dust being heavier than air, settle down easily and as the chances of it being carried by wind to more than a few meters is less, the minimum distance prescribed by the Board for such tiny industries from residences is 3 metres. The second respondent has also stated that health aspects of nearby residents were taken into account before issuing Ext.P2 consent to operate and that the Pollution Control Board will closely monitor the operation of the unit and suggest further additional control measures, if any, required to abate the nuisance, if any, caused to the nearby residents.
7. The fourth respondent has filed a counter affidavit contending that as the petitioner had not produced a declaration by an officer of the Industries Department authorised in that behalf or by the Kerala State Pollution Control Board to the effect that the proposed industrial unit will not cause pollution, the District Medical Officer was competent to issue Ext.P6 and to stipulate the conditions mentioned therein. It is also contended that the District Medical Officer was competent to stipulate in Ext.P5 that the shed where the raw material is gathered should be located 100 meters away from the residence of the fourth respondent. The fourth respondent has filed an additional counter affidavit, after the writ petition was amended, contending that the District Medical Officer is competent to issue Ext.P6 and to incorporate the conditions stipulated therein. The fourth respondent has also raised a contention that Ext.P7 order is appealable under section 276 of Kerala Panchayat Raj Act and therefore, the writ petition is liable to be dismissed on that short ground.
8. I heard Sri. Jacob.P.Alex, the learned counsel appearing for the petitioner, Sri.Thomas Abraham, the learned counsel appearing for the first respondent, Sri.M.K.Chandra Mohandas, the learned standing counsel appearing for the Kerala State Pollution Control Board, Sri.K.Ramesh, the learned Government Pleader appearing for the third respondent and Sri.Biju Abraham, the learned counsel appearing for the fourth respondent. I have also gone through the pleadings and the materials on record. The main contention raised by the petitioner is that in view of the grant of the consent to operate by the Kerala State Pollution Control Board, which is the authority competent to issue such consent, the opinion expressed by the District Medical Officer and conditions stipulated by him are without the sanction or authority of law. Per contra, the main contention raised by the fourth respondent is that in view of the directions issued by this Court in Ext.P5 judgment which has become final, the District Medical Officer of Health was bound to pass orders on the application submitted by the Panchayat and that in view of the stipulations in sub-section 4(b) of section 233 of the Kerala Panchayat Raj Act, the District Medical Officer was competent to impose conditions to abate the nuisance or pollution that may be caused as a result of the functioning of the industrial unit. The learned counsel also submitted that the petitioner has an alternate remedy by way of appeal and she may be relegated to that remedy.
9. When this writ petition came up for hearing on 16.12.2010, this Court directed the third respondent, District Medical Officer, Pathanamthitta to produce the original of the application submitted by the Kozhenchery Grama Panchayat which is referred to in Ext.P6. Though nearly three weeks have passed thereafter, till date, the said application has not been produced. The learned counsel for the petitioner however made available to me a copy of the letter dated 24.4.2010 referred to in Ext.P6. Copies thereof were also furnished to the learned counsel for the fourth respondent and the learned Government Pleader. From the said letter, it is evident that it was not the petitioner who had sought the consent of the District Medical Officer of Health. The said letter discloses that the Panchayat had sought the opinion of the District Medical Officer of Health as regards the suitability of the site for establishing a cement block manufacturing unit. It was on the basis of the said letter that Ext.P6 letter containing the stipulation that the petitioner should unload the raw material in a shed which is situated 100 meters away from the fourth respondent's residence was issued. In view of the said stipulation which is incapable of performance, the petitioner's application for licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades & Factories) Rules, 1996 was declined. It is also evident that but for such a stipulation, the Panchayat would have issued the licence.
10. The short question that arises for consideration is whether the second condition stipulated in Ext.P6 by the District Medical Officer of Health, Pathanamthitta is sustainable or not. Sub- section (1) of section 233 of the Kerala Panchayat Raj Act stipulates that no person shall, without the permission of the Village Panchayat and except in accordance with the conditions specified in such permission, construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or of other mechanical power or electrical power. Sub-section (2) thereof stipulates that an application for permission under sub-section (1) shall be submitted to the Village Panchayat addressed to the Secretary in such form and with such details as prescribed. Sub- section (3) thereof states that the Secretary shall, as soon as may be after the receipt of the application, 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 the possibility to cause nuisance or pollution. It is also stipulated that the Village Panchayat shall after considering the application and the reports of the Secretary, and of such other authorities as specified in sub-section (4), grant the permission either absolutely or subject to such conditions as it thinks fit to impose or refuse the permission for reasons to be recorded. Sub-section (4) of section 233 stipulates that before granting or refusing permission under sub-section (3), the Village Panchayat shall obtain and consider the report of the Inspector of Factories appointed under the Factories Act or of an officer of the Industries Department not below the rank of Industries Extension Officer having jurisdiction over the area regarding the adequacy of ventilation, light etc. and sufficiency of the height and size of the rooms and doors and the suitability of exits to be used in case of fire in the plan of factories, workshop, workplace or premises if they came within the purview of the Factories Act; the report of the District Medical Officer regarding the possibility of nuisance or pollution if the connected load of the machinery proposed to be installed exceeds 25 HP or if the nature of the machinery and installation are such that it may cause nuisance or pollution; and also a report of the Divisional Fire Officer or any other officer authorised by him regarding the adequacy of fire prevention and fire fighting measures planned if the proposed industry involves the use of high tension power or inflammable or explosive materials.
11. In the instant case, clause (a) of sub-section (4) does not apply, and therefore, the report of the Inspector of Factories was not required to be produced. The petitioner had admittedly produced a report of the Assistant Divisional Officer, Fire and Rescue Services, Pathanamthitta. On the petitioner's application, a report of the District Medical Officer was also sought. But such a report was sought not in relation to the possibility of nuisance or pollution of the unit, but as regards the suitability of the site for the proposed unit. Under clause (b) sub-section (4) of Section 233, a report of the medical officer has to be called for only if the connected load of the machinery proposed to be installed exceeds 25 HP or if the nature of the machinery and installation are such that it may cause nuisance or pollution. The respondents have no case that the connected load of the machinery exceeds 25 HP. Therefore, the report from the Medical Officer was not required to be called for on that ground. Neither the Panchayat nor the fourth respondent have a case that the nature of the machinery and installation in the cement block manufacturing unit proposed to be set up by the petitioner are such that it may cause pollution or nuisance. The complaint of the fourth respondent was that the raw material used in the manufacture of cement blocks is likely to cause pollution thereby resulting in nuisance. In my opinion, the Panchayat rightly understood the objection by the fourth respondent and did not call for a report from the District Medical Officer as regards the possibility of nuisance or pollution. The Panchayat had only sought the approval of the site from the District Medical Officer in terms of the stipulations in that regard contained in rule 12(5)(b) of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades & Factories) Rules, 1996. In such circumstances, as the connected load of the machinery proposed to be installed did not exceed 25 HP and it is not a case where the nature of the machinery and installation in the proposed cement block manufacturing unit are such that it may cause nuisance or pollution, the District Medical Officer of Health was not competent to stipulate in Ext.P6 that the raw material should be unloaded and stored in a shed which is situated 100 meters away from the residence of the fourth respondent. Such a stipulation in Ext.P6 was beyond the competence of the District Medical Officer of Health. The Kerala State Pollution Control Board which has issued consent to operate to the petitioner did not deem it fit and necessary to stipulate such a condition. On the other hand, the stand taken by the Kerala State Pollution Control Board in the report filed before this Court is that cement block manufacturing is a least polluting industry and that the pollution that may be caused by such industries is the dust generated during the handling of raw material or the noise generated from the block
making machine and concrete mixture machines. It is also stated that the sound pollution can be prevented by providing a solid brick wall enclosure for the unit and dust can be controlled by spraying water. It is also stated that as the chances of wet cement dust being carried by wind to long distances is remote, the minimum distance prescribed by the Board for such industries from residences is 3 metres.
12. In the instant case, it is evident from the materials on record that the residence of the fourth respondent is situate at a distance of 13 meters from the proposed cement block manufacturing unit. In such circumstances, the stipulation in Ext.P6 that the petitioner should unload and store the raw material in a shed 100 meters away from the residence of the fourth respondent cannot be sustained. The land belonging to the petitioner has a depth of only 65 meters. Therefore, the said stipulation is incapable of performance. If the direction in Ext.P6 is to be complied with, the petitioner will have to unload and store the raw material in a place other than in her lands. No provision of the Kerala Panchayat Raj Act and the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades & Factories) Rules, 1996, which contains such a stipulation, was brought to my notice. The statement filed by the Panchayat discloses that but for the said stipulation; the Panchayat would have issued a licence. In such circumstances, it has to be necessarily held that the stipulation in Ext.P6 relied on in Ext.P7 to deny licence to the petitioner cannot be sustained. 13. I shall now deal with the contention raised by the learned counsel for the fourth respondent that the petitioner should be relegated to the alternate remedy by way of an appeal. This writ petition was filed on 19.8.2010. Nearly four months have passed thereafter. The period of limitation prescribed for filing an appeal before the Tribunal for Local Self Government Institutions is 30 days from the date of service of the order, which in the case on hand, was admittedly before 19.8.2010. Under the rules, the Tribunal can condone the delay only upto 30 days. Therefore, the appeal would be rejected on the ground of delay, even though for the past nearly four months the petitioner was prosecuting the writ petition in this Court. Recently, a Division Bench of this Court has in Padmavathi Amma v. Special Tahsildar and Others (2010 (4) KHC 648 (DB) held that once the writ petition is admitted and parties have entered appearance and filed pleadings, it would not be just or proper to relegate the party to the alternate remedy of appeal and that the writ petition should be heard and decided on the merits. In view of the facts stated above, I am not persuaded to accept the submission made on behalf of the fourth respondent that the writ petition should be dismissed on the ground of availability of an alternate remedy.
14. In the result, I allow the writ petition, quash Exts.P6 and P7 and direct the first respondent to pass fresh orders on the petitioner's application for licence to establish a cement block manufacturing unit having regard to the fat that he possesses a consent to operate issued by the Kerala State Pollution Control Board, and a No Objection Certificate from the Fire and Rescue services. A final decision in the matter shall be taken expeditiously and in any event within one month from the date on which the petitioner produces a certified copy of this judgment before the Secretary of the first respondent Panchayat.