UNITED GRANITES Vs. PAZHAYANNUR GRAMA PANCHAYATH

JUDGEMENT

(1.) THE petitioner, a partnership firm, has filed this writ petition mainly challenging Ext.P17 letter sent by the second respondent informing the petitioner that permission to establish a granite crusher unit can be granted only on the petitioner producing letters of consent from the owners of the land adjoining the site of the proposed unit. THE brief facts of the case are as follows.

(2.) THE petitioner firm was constituted as per Ext.P1 partnership deed dated 1.9.2006. Long thereafter, the Managing Partner of the firm submitted Ext.P2 application dated 28.8.2008 to the second respondent, the Secretary of the Pazhayannur Grama Panchayat, for permission to establish a granite crusher unit in a parcel of land belonging to one of the partners of the firm. THE application was filed in terms of rule 12 of the Kerala Panchayat Raj (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1996 (hereinafter referred to as 'the Rules' for short). THE Committee of the Panchayat that met on 16.6.2009 resolved to grant the permission sought on the petitioner producing the consent of the concerned departments. THE Committee also resolved to authorise the Secretary of the Panchayat to grant the permission to establish the granite crusher unit.

(3.) I heard Sri.T.Krishnanunni, learned Senior Advocate apeparing for the petitioner, Sri.P.Jayaram, learned counsel appearing for the Pazhayannur Grama Panchayat and Sri.P.M.Poulose, learned Special Government Pleader appearing for the Divisional Forest Officer. The learned Senior Advocate appearing for the petitioner contended that section 233 of the Kerala Panchayat Raj Act and rule 12 of the Rules do not provide for the production of consent letters from the owners of the neighbouring lands and therefore the insistence on the production of a no objection certificate from the Forest Department is illegal. The learned Senior Advocate also contended that the reasons stated by the 4th respondent to decline the no objection certificate are also not tenable. The learned counsel contended that as section 233 of the Act and rule 12 of the Rules do not contemplate the production of consent letters from the neighbouring land owners and as no such consent letter from the other neighbouring land owners other than the Forest Department was insisted upon, there is no reason why the Forest Department's consent should be obtained. Per contra, Sri.P.M.Poulose, learned Special Government Pleader appearing for the Divisional Forest Officer, Thrissur contended that the petitioner cannot be permitted to establish a granite crushing unit close to the reserve forest as it will be detrimental to the tree growth and the wild animals. The learned counsel also placed reliance on the decision of the Apex Court in Virender Gaur and others v. State of Haryana and others, (1995) 2 SCC 577 to contend that the State and its instrumentalities and local authorities have a constitutional duty not only to ensure and safeguard proper environment, but an imperative duty to take proper measures to maintain and protect both man-made and natural environment and therefore, with a view to protect the forest which lies close to the site of the proposed granite crushing unit, the Panchayat was justified in insisting on the production of a no objection certificate from the Forest Department. Relying on the decision of the Apex Court in M.C.Mehta v. Kamal Nath, (1997) 1 SCC 388, M.C.Mehta v. Union of India and others, (2004) 12 SCC 118 and Glanrock Estate Private Ltd. v. State of Tamil Nadu, (2010) 10 SCC 96 the learned Special Government Pleader contended that the State and its instrumentalities as trustees are bound to preserve and protect the forests and therefore, the stand taken by the Divisional Forest Officer in Ext.P16 is perfectly in order.