Shaffique, . The petitioners in W.P(C) No. 9136/2014 are the appellants W.A. No. 1715 of 2014. They challenge the judgment dated 7.11.2014 of the learned Single Judge.
2. W.P(C) No. 9136/2014 was filed seeking to quash Ext. P5, a common order passed by the Tribunal for Local Self Government Institutions (hereinafter referred as the 'Tribunal') in Appeal No. 274/2013 and Revision Petition No. 157/2013. Appeal No. 274/2013 was filed by the 1st respondent herein challenging the decision dated 8.3.2013 of the Municipal Council, whereby the 1st respondent was denied renewal of his licence for functioning an industrial unit. Revision Petition No. 157/2013 was filed by the 1st respondent, challenging the decision dated 8.10.2013 in an appeal filed by the 1st respondent before the Municipal Council. The appeal and the revision were heard together and allowed. The decision of the Municipal Council dated 8.3.2013 was set aside and a direction was issued to the Municipality to issue licence to the 1st respondent. The revision petition was also allowed, setting aside the order dated 8.10.2013, rejecting the appeal filed by the 1st respondent.
3. The facts involved in the writ petition would disclose that the petitioners are certain persons in the Municipal area where the 1st respondent has started functioning a unit under the name and style M/s. Palappilin Specified Block Rubbers Pvt. Ltd. According to the 1st respondent he is the Managing Director of a Company M/s. Palappilin Specified Block Rubbers Pvt. Ltd. , which started functioning since 1983. In the year 1996, it started to operate as a small crumb rubber factory with all licences/permission from statutory authorities. Certain objections were raised by the Pollution Control Board regarding treatment of the effluent during 2011, on the basis of which the Municipality suspended the licence. The contention urged by the 1st respondent before the Tribunal was that despite rectifying of defects pointed out by the Pollution Control Board, the licence was not renewed. Several litigations followed and finally, as per judgment dated 10.12.2012 in W.P(C) No. 1253/2012, this Court directed the Council to dispose of the Appeal pending before it. It is stated that a sub committee was constituted by the Council who inspected the factory and prepared a report. Based on the said report, the Council, in its meeting held on 8.3.2013, decided to refuse the licence to the 1st respondent. There was a request to renew the licence and by virtue of a direction issued by this Court in its judgment dated 20.6.2013 in W.P(C) No. 15653/2013, a decision was taken by the Council in the meeting held on 31.8.2013 deciding not to renew the licence, which was the subject matter in the revision petition before the Tribunal.
4. It was inter alia contended by the appellants before the learned Single Judge that even from the documents produced before the Tribunal, it was clear that the unit was not fit to be granted a licence. Therefore, the Tribunal was not justified in directing grant of licence or renewal thereof. It was further contended that the consent given by the Pollution Control Board did not have any sanctity, as, subsequently, the Pollution Control Board had indicated that the 1st respondent did not comply with the conditions imposed as per the consent issued and therefore when a sub committee, after site inspection, had come to the clear finding that the unit cannot be permitted to function on account of severe pollution, the Tribunal was not justified in taking a contrary view. The materials produced before the Tribunal have not been considered and the decision taken as per Ext. P5 is arbitrary and not based on the materials available on record.
5. The learned Single Judge, after elaborately considering the facts and circumstances involved in the matter, dismissed the writ petition. While impugning the aforesaid judgment, it is argued by the learned counsel for the appellants that none of the grounds raised by the appellants has been considered by the learned Single Judge. That apart, when the sub committee report was available on record, reliance should have been placed on the said document rather than discarding the said document without any basis. Specific reference is also made to the judgment of this Court in Manjapra Grama Panchayat v. State of Kerala, 1996(2) KLT 719, wherein this Court found that even though the licences/permission had been obtained from Pollution Control Board as well as District Medical Officer, the Panchayath has to independently consider whether setting up of the unit within its area would affect the people of the locality. The Panchayath being an institution of self Government, has powers and duties which enable them to reject a licence, if it is found that the functioning of the unit affects the public at large. Further, it is argued that even as per the materials available on record, especially the report submitted by the Pollution Control Board as instructed by this Court, would show that the effluent is not up to the standards and the sound emanated is exceeding the limits.
6. On the other hand, the learned counsel for the 1st respondent supported the stand taken by the Tribunal and pointed out that there is no basis for the contentions urged on behalf of the appellants as the defects pointed out have been completely rectified. There is no effluent which is being discharged as the same is recycled and sound level is within the parameters specified for industrial units in the locality. It is further pointed out that the unit had been set up in 1983 and it is thereafter that several residents have started residing in the locality. It is unfair to reject renewal of licence when this unit had been functioning for the last several years without causing any nuisance or pollution as contended by the Municipality.
7. W.P(C) No. 26922/2013 is filed by the Company which runs the unit, seeking for police protection. They allege obstruction in the functioning of the unit by the party respondents. They have submitted a complaint to the police seeking for police protection and since no action had been taken in the matter, the writ petition is filed seeking appropriate orders for police protection to function the factory. According to them, on the basis of the directions issued by the Tribunal, the Municipality is bound to renew the licence and therefore their right to operate the unit cannot be obstructed by any person.
8. Heard the learned counsel for the appellants, respondents in the appeal and the respective counsel appearing in the writ petition.
9. The appellants mainly rely upon the report of the sub committee appointed by the Municipality. The minutes of the meeting which considered the sub committee report is produced as Ext. R1(t). The translation of Ext. R1(t) reads as under:
Minutes Proceedings of the urgent council held on 8.03.2013, the Friday at 10.30 am under the convenorship of Sri. K.P. Babu, Municipal Chairman.
Present: All members except Sri. Aji Narayanan and K.V. Thomas, Municipal Secretary, ME.HI 1st P.O and Revenue Superintendent.
1. Considering the report dated 6.03.2013 submitted by the sub-committee as per the decision No. 5 of the Municipal Council dated 25.01.2013 in order to take a decision in application submitted by the owner of the Palapillil Specified Block Rubbers Pvt. Ltd. seeking permission for functioning of factory as directed by the Hon'ble High Court of Kerala in its judgment dated 10.12.2012 in WPC 1253/2012.
Ref:
1. The sub-committee members are Sri. Kennedy Peter, A.G. George and George Kuriakose.
2. Committee has recommended not to give the factory permission to operate since it is a matter affecting more than 100's of families residing near the factory. The factory is causing pollution. Visited the families residing near to the factory.
The report given below submitted by the three sub- committee consisting of Sri. George Kuriakose, Sri. Kennedy Peter and Sri. A.G. George.
Based on the report of the sub-committee, the High Court has directed the Municipality to take a decision regarding the function of the Palapillil Specified Block Rubbers. The said factory was operating in ward 26. It was closed down for the past sixteen months as per the recommendations of PCB and Municipality. The sub committee was appointed by the council in the meeting held on 25.01.2013 to study and file a report regarding Palapillil factory. Palapillil factory is situated in ward No. 26 of the kothamangalam Municipality, 200 meters away from NH-49 and at a distance of 3 km. from town. The Mathirapilly School where more than 1000 children are studying is situated only at a distance of 200m from the factory. Students are acing difficulty in studying due to the smell and sound from the factory. This was reported earlier. There is a PWD Road in front of the company which is used by the public at large daily. There is a colony only just 5 km away. It was noticed by the committee that the nearby well was polluted since the factory has not installed any mechanism for treating the effluent (around lakhs of litres of effluent per day) or to use it without causing trouble to the residents of the locality. The factory is situated in relatively higher area where sound and smell are very high.
The company started functioning as a creep mill when the population was very less. With passage of time, it was developed into a Block Rubber factory without the consent of the residents. A canal known as 'Erappinkal Thodu' is running through the back area of the factory. It is a canal used by the residents It is a source of drinking water. This has come to the notice of the committee. The localities complained that when the company was functioning the water in the canal used to cause health problems like itching. This was brought to the notice of the Municipality by filing a mass petition. It is pertinent to note that the Health Department of Municipality and PCB rejected the permission to function taking note of the fact that the factory was discharging the effluent to the canal.
The burning of cashew nut shell for heating the burner creates a lot of smoke and causes air pollution. Since it functions 24 hours or 3 shifts children are unable to study or sleep. Women and children have complained that they are facing many problems. Since the machinery is very old it is creating noise higher than the permissible limits. It is also a fact that if the factory is allowed to function, even if any kind of devices are installed it won't be a permanent solution for the stinking smell or the worms in the rainy seasons. Localities complained that the factory is responsible for some deaths happened in the near by areas.
There are many poor people living within a radius of 200 meters. The committee has been to around 30 houses and interacted with them directly. Committee is convinced of the seriousness of the matter. The only pathway available to the persons living in the colony has become unfit for use because of the malicious acts of the company. When the current density of the area is considered it is evident that the situation is not suitable for functioning of such a company.
The Health Department of Municipality was totally careless with respect to this matter. Health department has taken a stand opposite to the earlier stand of Municipality without considering the hardship faced by the people and without seeking scientific and expert opinions. Therefore the committee is hereby recommended not to give license to the factory when the people are agitating for unpolluted water and air.
The application for license for Palapillil factory Pvt. Ltd. is hereby rejected by accepting the report of the sub-committee. Srimati Beena Radha Krishnan, Shibi Paulose, Abhilash V. Madhu, Sindhu Vikraman, Sinshu Ganeshan, Sri Devi Sasi and Ratnamma Dasan objected.”
10. The report of the committee was considered by the Council and the aforesaid decision taken. On this basis, it is contended that the unit is highly polluted. Further reference is made to a report of the Environmental Engineer, which was produced before this Court in W.P(C) No. 9802/2012. Ext. R1(n) is the said report, which reads as under:
“As per the order dated 3rd August 2012 on IA 8673/2012 in WP(C) No. 1253/2012(F), the Board officials conducted day to day analysis from 10.08.2012 to 01.09.2012. The unit was inspected on all the days on which they are operational. Effluent samples were collected from raw effluent collection tank and from treated effluent portion. During inspection sound level were also measured outside the unit. Regarding air pollution, no foul smell except the normal smell from a crumb rubber industry was experienced during monitoring. It was also seen that they have provided alkaline scrubber to reduce smell from the drying section. Tabulated data of analysis ( (Both effluent as well as sound) is produced herewith and marked as Exhibit R2(a). The above data revealed that the unit achieved treatment efficiency except on 7 days in which the parameter Biochemical Oxygen Demand (BOD) only was exceeding the limit 30 mg/Lit.
Though parameter BOD is found to be exceeding the permissible limit, the present operation of the unit is satisfactory on following considerations.
1. The effluent treatment plant installed in the unit has not achieved stabilization. Normally full efficiency of the treatment system could be assessed only after achieving stabilization. After stabilization, considerable reduction is expected in the concentration of BOD and other parameters.
2. Though the concentration of the parameters allowed as per consent is for river discharge (BOD-30 mg/lit, SS-100mg/lit, Oil & Grease-10 mg/lit) the treated effluent was seen recycled to the processing section only and no treated effluent discharge was seen outside the premises.
3. Much exceeding sound levels were not noticed.
It is also respectfully submitted that certain additional measures need to be taken to ensue that the industry is operating complying with all the stipulated norms as per the relevant section of the The Environment Protection Act, 86 The Water Act 4 and The Air Act, 81. They are as follows:
a. Separate water meters shall be installed and ensure such meters are functional and easily accessible to assess the quantity of water consumed for different purpose (process, domestic, cooling etc.) for which different rates shall be paid as per the Water (Prevention and Control of Pollution) Cess Act, 1977.
b. Effluent flow meter/s (Electro magnetic type flow meter) shall be installed in the effluent discharge/treated effluent recycling line to ensure that the treated effluent is properly recycled/only consented quantity of effluent is discharged through the authorized outlet/s.
c. Separate energy meter shall be installed exclusively for effluent treatment plant/sewage treatment plant if any, to ensure the continuous operation of the effluent treatment facilities.
d. For all these measurements, records/logbooks shall be kept and produced as and when inspecting officers demanded.”
11. Before proceeding to consider the contention regarding the alleged pollution on account of the functioning of the unit, it will be worthwhile to consider the first argument of the learned counsel for the appellants based on the judgment in Manjapra Grama Panchayat's case (supra).
12. In the said judgment, a learned Single Judge of this Court was considering the question relating to grant of licence for putting up a metal crusher and hollow bricks manufacturing unit. This Court held that the Panchayath being a Local Self Government Institution, is entitled to consider whether a licence can be granted even if the applicant has obtained all other statutory permissions. There is substantial difference between consideration of an application for issuance of a fresh licence and that of an application for renewal of licence. No doubt, when a fresh application is submitted, it has necessarily to be considered whether the Panchayat should actually permit such an industrial unit in the locality. That was a case in which an attempt was made to instal a metal crusher unit along with hollow brick unit in an agricultural area. A consideration of the relevant parameters required for starting a unit including the fact that whether it should be permitted to be put up in an agricultural area is a matter definitely to be considered by a Panchayath. It was in the said circumstances that the learned Single Judge has decided the Manjapra Grama Panchayat's case (supra).
13. But that is not the situation in the case on hand. In the present case, the petitioner was running a unit in crumb rubber. The unit was in existence since 1983 and all along, it was functioning with the licence from the Municipality. Only at a later stage, when the question of renewal of licence came, there were allegations about pollution by the local people. It is at that stage several action had been taken by the Municipality on the basis of various orders issued by this Court and other statutory authorities. The 1st respondent had taken all necessary steps for ensuring compliance of all the statutory requirements. A reference to the counter affidavit filed in W.P(C) No. 9136/2014 would clarify the nature of proceedings that ensued in respect of the above unit. The following facts will be relevant.
(i) The crumb rubber unit was established in the year 1983 in an extent of 6 acres of land in Sy. No. 1369/1/4/A of Kothamangalam Village. The Environmental Engineer, by a communication dated 11.11.2011, called upon the respondent to modify the effluent treatment plant. The 1st respondent submitted a proposal before the Pollution Control Board for constructing effluent treatment plant.
(ii) Alleging that there was obstruction from some persons in the locality in the construction of the treatment plant, the respondent filed W.P(C) No. 1253/2012, in which this Court passed an interim order granting police protection.
(iii) The Municipal Council issued an order of stay against the construction on 24.3.2012.
(iv) W.P(C) No. 7876/2012 was filed and the order of the Secretary dated 24.3.2012 was stayed and the construction of the treatment plant was completed. The treatment plant was installed and the permission granted by the Pollution Control Board is produced as Ext. R1(h) dated 2.4.2012.
(v) W.P(C) No. 7876/2012 was finally disposed of on 13.4.2012 directing the Municipality to consider the application of the 1st respondent for renewal of the licence for the year 2012-2013, pursuant to which licence was granted.
(vi) An extra-ordinary general meeting was held by the Municipal Council on 16.6.2012 and they have passed an order restraining the respondent from proceeding with the functioning of the unit.
(vii) The respondent filed W.P(C) No. 14490/2012 and the order passed by the Municipal Council was stayed.
(viii) The Division Bench passed an interim order in I.A. No. 8673/2012 in W.P(C) No. 1253/2012 permitting the unit to be operated for 15 days in order to ensure that the effluent treatment plant was working properly and the Pollution Control Board was directed to analyze the situation and file a report. Ext. R1(n) is the report. The Division Bench disposed of W.P(C) No. 1253/2012, directing the Municipal Council to consider the case of the unit for granting licence. The Pollution Control Board issued consent to operate, which is valid till 30.6.2015 (Ext. R1(p)).
(ix) The Municipal Council again held a meeting on 8.8.2012 and decided to reject the licence. On the basis of the judgment of the High Court in W.P(C) No. 1253/2012, again, a representation was given. The Municipal Council selected a sub committee under the leadership of one Sri. A.G. George. The sub committee submitted a report on 6.3.2013 pointing out the health hazards in the locality.
(x) Pursuant to the committee's report, the Municipal Council again took a decision on 8.3.2013, deciding not to renew the licence. This was followed by another order of the Secretary issued on 13.3.2013.
(xi) Consequent to the direction issued by the Tribunal, which is under challenge, the Secretary had issued the licence on 23.3.2014.
14. The learned counsel for the appellants' main argument is based on the fact that the Tribunal, while considering the appeal and revision, did not advert to the material evidence available in the case and has erroneously directed the licence to be issued. Perusal of Ex. P5 order dated 1.3.2014 of the Tribunal would indicate that the Tribunal has come to the aforesaid conclusion after considering the report submitted by the Environmental Engineer before this Court (Ext. R1 (n)) and also the report of the committee constituted by the Municipality. As far as the report filed before this Court as Ext. R1(n) is concerned, the Tribunal had specifically mentioned that the officials of the Pollution Control Board had conducted day to day analysis of the unit from 10.8.2012 to 1.9.2012. In respect of the report of the sub committee as well, it is found that one of the Municipal Councilor A.G. George, who has objected to the unit functioning in the locality, was also a member of the sub committee. Further, it is held that such a report cannot be the basis for denying the licence. It is also found that the finding of the sub committee is against the consent issued by the Pollution Control Board and without any scientific basis and cannot be accepted.
15. Further, the learned Single Judge, while considering the respective contentions of the parties, has taken note of the fact that the consent to operate issued by the Pollution Control Board has not been challenged by the appellants and that the respondent is having a deemed licence as per Section 447(6) of the Municipality Act, 1994 in respect of the current financial year and fee for renewal had been submitted as per Ext. R1(x). Further, the learned Single Judge held that the findings of fact by the Tribunal cannot be interfered in writ proceedings. The learned Single Judge also held that while taking a decision, the local authority has to be guided by expert opinion and though public interest is also a relevant factor, there has to be some basis for denying the licence. On that basis the learned Single Judge did not interfere with the order passed by the Tribunal.
16. It is argued by he learned counsel for he appellants that the Tribunal should not have directed grant of licence and no such power is available to the said authority. Section 509 of the Kerala Municipality Act, 1994 deals with appeals and revision, the procedure and the manner in which appeal has to be filed and considered by the Tribunal. Sub-section (9) of Section 509 indicates that the Tribunal shall pass appropriate orders on an appeal or revision petition filed before it and the order so passed shall be final. Appropriate order apparently includes any order that the Tribunal may deem it necessary in order to give effect to the orders passed. Rules have been framed by the Government in exercise of powers conferred under Section 509 of the Kerala Municipality Act, 1994 as the Tribunal for Local Self Government Institutions Rules, 1949 (hereinafter referred to as 1949 Rules) Rule 21 reads as under:
“21. Consequence of the order of the tribunal:- The notice or order issued or action taken by the Local Self Government Institution or its Secretary, as the case may be, shall stand as such or be modified or annulled in accordance with the final order of the Tribunal on the petition from the date of issue of such final order.
(2) Copy of the order of the Tribunal shall be issued to each party to the petition within one week from the date of the order.”
Reference to the aforesaid Rule clearly indicates that it is open for the Tribunal to modify or annul any decision of the Local Self Government Institutions or its Secretary. When authority is given to the Tribunal to annul any order, it can also direct issuance of the permit/licence, if it is found that the impugned order is patently illegal. This is a case in which the 1st respondent was unable to function the unit over a period of time. Since there were objections from the people in the locality, he had to approach the writ court on several occasions seeking appropriate directions and therefore when it was felt that licence has not been issued by the Municipality without any justifiable reason, it is well within the power of the Tribunal to direct grant of licence.
17. This is a case in which the unit has started operation in 1983 and was a functioning unit. There was no complaint from any quarters over a period of time. Only during 2011 certain complaints had arisen. It is not possible for a Municipality who had permitted grant of licence, to refuse to renew the licence merely on the ground of public protest. Public protest can be considered if a new unit affects the public in any manner. In fact, the Municipality Act itself makes specific provisions to enable the Secretary to ensure that nuisance, if any, is abated. Chapter XIX of the Municipality Act gives appropriate powers to the Secretary to ensure that no nuisance is being caused and the measures to be taken to abate such nuisance.
18. In the case on hand, the alleged nuisance was regarding the effluent discharged from the factory. The material available on record clearly indicates that the 1st respondent has put up an effluent treatment plant and Pollution Control Board had certified that it is a zero discharge plant. Therefore, such an issue has become irrelevant. Regarding the sound pollution also, being an industry, during day time, the permissible limit of standard of noise is 75 decibels and during night it is 70. In a commercial area, it is 65 during day time and 55 during night hours. Only in residential area, it is 55 during day time and 45 during night. Apparently, the property in question is an area where an industry has been put up for the last several years and it can afford to have noise ambiance level of 75 decibels during day time. The report of the Pollution Control Board at Ext. R1(n), clearly indicates that it is much below the standards prescribed for industrial area. Even assuming that it is a residential area, the sound emanated exceeds very minimal and therefore it is not possible for the appellants to contend that there is any form of pollution as matters stand now.
19. With reference to the report at Ext.R1(n), the learned counsel for the appellants argued that during certain days, the Bio-chemical Oxygen Demand (BOD) exceeds the limit and therefore the functioning of the unit is not satisfactory. We have already extracted the report itself. The Environmental Engineer has further stated that after stabilisation, considerable reduction is expected in the concentration of BOD and other parameters. The report came to be prepared during a trial verification as directed by this Court for a limited period. As far as sound level is concerned, the report indicates that “much exceeding sound levels” were not noticed. They have further mentioned about certain operative measures to be taken, which, according to the petitioner, they have complied. Therefore, it is evident from the materials on record which have been rightly adjudicated by the Tribunal that the alleged cause of pollution is absolutely baseless.
20. Yet another contention urged is based on the sub committee report. The said report, as rightly held by the Tribunal, cannot be the basis for rejection of the licence. One of the Councilors, who was totally against the continuance of the industry in the locality, was a member of the said committee. That apart, the committee members have no technical expertise. It is the contention of the learned counsel for the 1st respondent that they visited the premises when the unit was not functioning. Even if the Municipality can delegate verification of a unit to a sub committee, they can only verify the visible features in the locality. As far as the technical aspects are concerned, they have to get the assistance of experts. In the present case, the question is that of pollution, which apparently had to be considered by an expert body. It is for that purpose that the statute itself had made specific provisions to enable the Municipality to get the assistance of the Pollution Control Board. When an opinion has been expressed by the Pollution Control Board in regard to a particular industry with reference to air, water and noise pollution, it has to be treated as an expert opinion in the matter and the Councilors or a sub committee consisting of members of Council cannot override such expert opinion based on their site inspection.
21. Learned counsel for the appellants contended that there is public protest in the locality. This again is based on an apprehension of pollution. This is not an industry which has just started functioning. Of course, the Municipality can seek opinion from the members of public. An existing industry can be refused renewal of licence only if they do not comply with the statutory provisions and if they fail to comply with the standards prescribed by the competent authorities. Public protest cannot override the right of the owner of the industry to carry on lawful business.
22. Under such circumstances, we are of the view that the grounds urged by the learned counsel for the appellants challenging the judgment of the learned Single Judge fails and accordingly the writ appeal is dismissed.
23. In regard to W.P(C) No. 26922/2014, this being an application seeking police protection, once the petitioner functions a unit with a valid licence or permission from the competent authorities, the party respondents cannot obstruct the said activities and if any such obstruction is created, it amounts to law and order situation or prevention in carrying on the business activities, and police is bound to interfere and ensure that no obstruction is caused in the functioning of the unit and that law and order situation is maintained. Counter affidavit is filed by the 2nd respondent raising grounds similar to that raised in the appeal. Having regard to the fact that there is stiff opposition from some quarters among party respondents, we are of the view that this writ petition requires to be allowed and appropriate directions are to be issued to respondents 7 and 8 to maintain law and order situation in the area.
In the result,
(i) Writ Appeal No. 1715/2014 is dismissed.
(ii) W.P.(C) No. 26922/2013 is allowed. Respondents 7 and 8 are directed to ensure that no obstruction or law and order is created by respondents 1, 2, 4, 5 and their men in the matter relating to the functioning of the factory of the petitioner.
Sd/-
Ashok Bhushan, Ag. Chief Justice Tds/ Sd/-
A.M. Shaffique, Judge.