IBRAHIMKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant was an applicant for permission/ licence to install a 30 H. P. electric machinery for his stone crushing plant. Permission from the executive authority is required under the Kerala Panchayats act and the Rules. THE District Medical Officer of Health issued a no objection certificate reading thus: "there is no objection from the public health point of view for issuing a licence to Sri M. Ibrahimkutty for running a stone crushing unit in Sy. No. 109/4c 109/4b of Keezhmad of Keezhmad Panchayat as recommended by the Medical Officer-in-charge, P. H. C. with the following conditions. 1. THE stone crushing machine should not be installed within a radius of 75 metres from any dwelling house. Sd/ Special Grade Executive Officer". THE site was found suitable from the fire point of view as seen from the certificate issued by the Fire Force Divisional Officer also. THE executive officer granted licence to last till 31/3/1985. This was renewed for the succeeding year and the current licence expires only on 31-3-1986. Against the initial grant of licence, there was a mass petition by the residents of the locality and the Deputy Director of Panchayats passed an order confirming the grant. Aggrieved, two persons, Shri V. L. Eapen and Shri M. A abubacker filed revisions before Government. THE Government set aside the order of the Deputy Director and also cancelled the licence by an order dated 23/3/1985 (Ext. P6 ). Government stated its reasons thus: "government have considered the case in all its aspects. As per the application form for the construction/ installation of factory/ workshop etc. appended to the Kerala Panchayat (Licensing of Dangerous and Offensive Trades and Factories) Rules, a minimum distance of 100 metres should be maintained between the site of the factory/workshop/work place and the nearest dwelling house. As the application form forms part of the Rules the minimum distance specified in the application form appended to the Rules is binding. In this case the distance from the stone crusher unit to the residential houses of two of the petitioners, Sri Mohan and Sri Aboobacker are only 90. 90 meters and 91. 30 metres. THE minimum distance prescribed under the rules has not been satisfied here. THE licence given by the Panchayat is liable to be cancelled for this reason alone. THE revision petitioner-1 pointed out that the mass petition were forwarded also to the District Medical Officer and the Divisional Fire Inspector. Notice could have been given at least to a few of the petitioners in the mass petition and opportunity for presenting their case could have been offered during the site inspection. This was not done. THE deputy Director had even refused opportunity to one of the petitioners who wanted on his accord to represent his case. Equity and fair play demanded opportunity to Sri Varkey for being heard and acceptance of the petition he wished to submit. THE contention that this was not required under the Rules will not stand. It is clear that the mass representation dated 3-9-1984 and the opinion of the local people were not given due consideration by the Deputy director. In the circumstances, the proceedings No. K. Dis (c) 9762/84 dated 11-1-1985 of the Deputy Director of Panchayats, Ernakulam is cancelled. It follows that the licence issued by the Keezhmad Panchayat to the counter petitioner for the installation of the stone crusher unit will also stand cancelled".

(2.) THE appellant filed a writ petition challenging this order. A learned single judge dismissed the same observing thus: "xxx A reading of the relevant rule along with the provisions contained in Clause. 6 of the Form prescribed under the Rules make it abundantly clear that the distance between the factory premises where the industrial establishment is to be started and the residential area must in fact be 225 metres, after 1978. XXX XXX It is true that the Medical Officer and the Divisional officer, Fire Force, have issued the no-objection certificates. THEse certificates alone will not help the petitioner to contend for the position that he is entitled to get the licence. He should also establish that the distance between the factory premises and the dwelling places is 225 metres. THE finding however, is that the distance between the premises where the petitioner proposes to establish the crushing machine and dwelling houses is not even 100 metres. Ext. P6 therefore is beyond challenge". This appeal is filed against this decision.

(3.) IN the application form prescribed, column 6 reads thus:-"distance between the site and residential area. (Specify whether the distance between the Factory premises and dwelling houses is not less than 225 feet except in areas declared specifically as INdustrial area". Column 7 runs thus: "distance from the nearest source of community water supply".