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2019 DIGILAW 872 (KER)

Joy Mathew v. State of Kerala

2019-10-29

A.K.JAYASANKARAN NAMBIAR

body2019
JUDGMENT : The petitioners, who are stated to be residents of Kuttikanam, are aggrieved by Ext.P1 order passed by the 1st respondent State Government, granting exemption under Section 81 of the Kerala Land Reforms Act (hereinafter referred to as 'the Act'), to 188 cents of land comprised in a tea plantation in Sy.No.64/1 of Elappara Village, for the establishment of a hot mix plant by the 6th respondent. In the Writ Petition, it is their case that Ext.P1 order, which ought to have reflected an exercise of discretion by the State Government in public interest, completely ignored the possibility of the neighbouring areas being polluted on account of the operation of the hot mix plant. In particular, it is stated that in the immediate proximity of the site where the hot mix plant is proposed to be installed, there are numerous educational institutions, hostels, hospitals and residential houses, apart from tourists resorts and other buildings housing entertainment facilities, and the pollution that could result from the operation of the hot mix plant could have a deleterious effect on the people of the locality since a hot mix plant is included in the category of hazardous industries by the Expert Committee of the Pollution Control Board. It is also contended that emissions from such plants comprise mainly of gasses, which are proven carcinogens. Reference is made to the decision of the Supreme Court in M.C. Metha Vs. Union of India [ (1997) 3 SCC 715 ] to contend that in New Delhi, the functioning of similar hot mix plants was held impermissible in residential areas. The contention, in other words, is that the non-application of mind by the State Government, to the relevant factors that ought to have informed their decision with regard to grant of exemption under Section 81 of the Act, is apparent from a reading of Ext.P1 order. 2. Referring to the licence granted by the 5th respondent Panchayath, to the Hot Mix Plant installed by the 6th respondent, it is contended that the said licence/permit was issued solely on the basis of Ext.P1 exemption that was granted in respect of the land in question. 2. Referring to the licence granted by the 5th respondent Panchayath, to the Hot Mix Plant installed by the 6th respondent, it is contended that the said licence/permit was issued solely on the basis of Ext.P1 exemption that was granted in respect of the land in question. The provisions of the Panchayat Raj Act are referred, to suggest that the procedure contemplated under Sections 232 and 233 of the Act were not followed by the Panchayat authorities while granting permission to the 6th respondent for setting up the hot mix plant or, for that matter, while granting the Dangerous and Offensive (D & O) licence for the operation of the said plant. Ext.P1 order of the State Government granting the exemption under the KLR Act, as well as Ext.P4 resolution of the Panchayat granting permission to the 6th respondent for operating the hot mix plant, are impugned in this Writ Petition. 3. A counter affidavit has been filed on behalf of the 6th respondent, wherein details are given of the correspondence entered into between the said respondent and the State Government, in connection with the request for providing suitable land for setting up the hot mix plant. The averments in the affidavit reveal that the 6th respondent had been awarded a contract for strengthening of the National Highway for the stretch from KM 185/500 to KM 215/480 including KM 205/180 to KM 210/900 of NH 183 (Old NH 220) in the State of Kerala. The award of contract was by the Public Works Department and it was pursuant to an invitation for National Competitive Bidding at the instance of the National Highway authorities. Consequent to the award of the contract, the 6th respondent took steps to order the machinery required for setting up the hot mix plant. A perusal of Ext.R6(2) indicates that the machinery ordered was such as would ensure that there was minimum pollution resulting from the operation of the plant, inasmuch as the machinery itself came equipped with a pollution control unit that would ensure that the emissions, if any, adhered to international standards. Ext.R6(3) flow chart is produced to show that the air that is let out through the outlets of the plant would be clean air adhering to the norms stipulated by the Pollution Control Board. Ext.R6(3) flow chart is produced to show that the air that is let out through the outlets of the plant would be clean air adhering to the norms stipulated by the Pollution Control Board. It is the further case of the 6th respondent that since the time for completion of the work awarded through R6(1) tender was 12 months from the date of handing over of the work site, the said respondent approached the Pollution Control Board with an application for consent to operate the unit. The said consent was obtained as evidenced by Ext.R6(9) certificate, which has a validity up to 31.01.2022, co-terminus with the period, under Ext.P1 order, by which exemption was granted in respect of the land. Armed with the said consent from the Pollution Control Board, the 6th respondent also obtained the No Objection Certificate from the Secretary of the 5th respondent Panchayat as is seen from Ext.R6(10) document and immediately thereafter, by Ext.R6(11), he is also seen to have obtained a D & O licence for operation of the hot mix plant. As already noted above, Ext.P1 order of exemption was obtained on 18.01.2019 pursuant to the request made by the 6th respondent in the interregnum for the allocation of suitable land for setting up the hot mix plant. The contention of the 6th respondent in its counter affidavit is essentially that the State Government cannot be faulted for having identified land suitable for the installation of a hot mix plant, and thereafter, considered the said land for exemption under Section 81 of the Act, taking note of the public interest involved in the strengthening of roads forming part of the National Highway in the State. Ext.P1 order is justified on the contention that the overriding public interest that informed Ext.P1 order must take precedence over the individual rights of the petitioners. 4. Responding to the arguments of the learned counsel for the petitioner as regards adverse effects on the environment, it is the contention of Sri.Santhosh Mathew, learned counsel for the 6th respondent that the principle to be followed by the State Government, while exercising its power to grant exemption under the KLR Act, had to be that of sustainable development, which involves the balancing of competing interests while deciding upon the suitability of an infrastructural development project, which could have a bearing on the environment. He also refers to Exts.R6(15), (16), (17), (23) and (24), which give details of the work orders subsequently awarded to the 6th respondent in connection with the strengthening of various stretches of the National Highway within Idukki District, to highlight that the exemption in Ext.P1 order was granted for a period of three years from the date of the order taking note of the possibility that there would be other works similar to that covered by R6(1) during the three year period for which the exemption was granted in Ext.P1 order. 5. I note from the files before me that, this Court had appointed an Advocate Commissioner to inspect the area and report to this court on various aspects. The Advocate Commissioner has filed a report before this Court giving her findings on the said aspects. Inasmuch as the said report would be relevant only in the context of determining whether, the non-intimation by the 6th respondent, of the fact of his having another hot mix plant in Idukki District, had a bearing on the decision taken by the Government in Ext.P1 order, do not proposed to go into the said Commission report at length since even in Ext.P1 order of the Government, the Government does not proceed on the assumption that there were no other hot mix plants in Idukki District. An allegation of suppression of material facts by the 6th respondent would assume relevance only if Ext.P1 Government order proceeded on the basis that there was no other hot mix plant in the area. This not being the case, as evident from a reading of Ext.P1 order itself, I am of the view that a detailed discussion on the aspects covered in the report of the Advocate Commissioner is unnecessary for adjudicating the issues in this writ petition. 6. I have heard Sri.Georgekutty Mathew, the learned counsel appearing for the petitioners, Sri. Santhosh Mathew the learned counsel for the 6th respondent, Sri. V.M. Krishnakumar the learned counsel for the 5th respondent and also the learned Government Pleader appearing for the official respondents of the State. 7. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the power of the State Government to grant exemption from the ceiling provision under the Act is to be found in Section 81(3) (b) which reads as follows: “81. 7. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the power of the State Government to grant exemption from the ceiling provision under the Act is to be found in Section 81(3) (b) which reads as follows: “81. Exemptions.- (1) xxxxxx (2) xxxxxx (3) The Government may, if they are satisfied that it is necessary to do so in the public interest- (a) xxxxx (b) On account of any land being bonafide required for the purpose of conversion into plantation or for the extension or preservation of an existing plantation or for any commercial, industrial, educational or charitable purpose, by notification in the Gazette, exempt such land from the provisions of this Chapter, subject to such restrictions and conditions as they may deem fit to impose: Provided that the land referred to in clause (b) shall be used for the purpose for which it is intended within such time as the Government may specify in that behalf; and, where the land is not so used within the time specified, the exemption shall cease to be in force.” 8. It is clear from the aforesaid provision that, the power of the Government is a discretionary one to be exercised in public interest. The power, when exercised, leads to an exemption being granted to identified land from the provisions of Chapter III of the Act, subject to such restrictions and conditions as the State Government has imposed. The proviso to the said Section makes it clear that the exempted land should be used for the purpose for which it is intended within such time as the Government may specify, and where the land is not so used within the time specified, the exemption shall cease to operate. A perusal of Ext.P1 order would suggest that it was taking into account the need for repair of roads forming part of the National Highway in Idukki District that the State Government identified the particular area of 1.88 acres in Sy.No.64/1 of Elappara Village for exemption from the provisions of Chapter III of the Act for the purposes of setting up a hot mix plant. The exemption took note of the contract already awarded to the 6th respondent, and despite noting that the period for completion of the said contract was only one year from the date of handing over of the site, the exemption was granted for three years from the date of the Government order. It can, therefore, be inferred that the intention of the Government was to grant an exemption for a three year period so as to enable the establishment of a hot mix plant on the land, that would help in completing road works in the region within the said three year period. Ext.P1 order also contains conditions, which have to be adhered to by the person in whose favour the exemption is granted, and those conditions mandate that the nature of the nearby plantations should not be altered, and further, that there should be no inconvenience caused to the peaceful habitation of residents in the locality through the operation of the plant. When examining the legality of the Government order, therefore, one cannot speculate on the possibility of misuse by a person in whose favour the exemption was granted. If there is any misuse noticed, the Government has the power to cancel the exemption. The aspects pointed out in the Writ petition with regard to the non-obtaining of a permit by the 6th respondent in accordance with the procedure contemplated under the Kerala Panchayat Raj Act and Rules, as also the aspect of pollution that could result from the operation of the hot mix plant, are not matters that could have been considered by the Government while exercising its power under Section 81(3) of the Act. No doubt, if an industry is inherently dangerous or hazardous, the grant of exemption without considering the nature of such industry could be seen as an erratic or mindless exercise of power by the State Government. In the instant case, however, the intended use to which the land was to be put was not something that could be seen as inherently dangerous or hazardous, and hence, Ext.P1 order cannot be seen as vitiated on account of the State Government not considering relevant facts while exercising its power under Section 81(3) of the Act. In the instant case, however, the intended use to which the land was to be put was not something that could be seen as inherently dangerous or hazardous, and hence, Ext.P1 order cannot be seen as vitiated on account of the State Government not considering relevant facts while exercising its power under Section 81(3) of the Act. It is also needs to be noted at this stage that the hot mix plant that has since come up on the land, has obtained the necessary permits and licences from the 5th respondent Panchayat and also the necessary consent from the Pollution Control Board, and it is not in dispute that the said consents and licences have not been cancelled by the regulatory authorities concerned till date. Under such circumstances, I do not see any reason to interfere with Ext.P1 order of the State Government that granted exemption in respect of the land on which the hot mix plant was subsequently erected. 9. As regards the challenge in the Writ Petition to Ext.P4 resolution of the 5th respondent Panchayat, it would be relevant to refer to the judgment of a Division Bench of this Court in Janardhanan Nair Vs. Vijayamma [ 2016 (2) KLT 735 ], which held that the provisions of Sections 232 or 233 of the Panchayath Raj Act do not apply to a temporary hot mix plant set up for construction purposes. A perusal of the judgment would clearly indicate that the exemption provisions under Section 237 of the Act were interpreted in wide terms to include an exemption not only to portable drilling machines and portable engines as expressly stated therein, but also to machines, which are larger in size, if the period for which they were intended for use was a temporary one. In the instant case, in as much as Ext.P1 Government order clearly mandates that the exemption in respect of the land under Section 81(3) of the Act is to enure only for a period of three years from the date of the Ext.P1 order, one can safely assume that the hot mix plant, which comes up in the area is only a temporary installation since, on the expiry of the three year period of exemption granted by the Government, the plant itself would have to be dismantled so as to comply with the requirements of the KLR Act and the ceiling provisions thereunder. In this sense, therefore, and going by the judgment of the Division Bench in Janardhanan Nair Vs. Vijayamma [ 2016 (2) KLT 735 ], it is doubtful whether the hot mix plant set up by the 6th respondent required a permit or a licence as contemplated under Sections 232 and 233 of the Panchayat Raj Act. At any rate, it is not in dispute that the 6th respondent did obtain such permits and licences, as well as the necessary consent from the Pollution Control Board for its operation. As the said permits and licences continue to be valid and have not been cancelled pursuant to any proceedings initiated under the respective enactments, this Court can safely presume that the hot mix plant is currently functioning with due compliance to the safety/pollution control norms fixed by the respective regulatory authorities. I find, therefore, that the challenge to Ext.P4 order in the Writ Petition cannot be legally sustained. In the result, I find that the challenge in the Writ petition to both Exts.P1 and P4 orders must fail. The Writ Petition is accordingly dismissed, but without any order as to costs.