JOY MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners, who are stated to be residents of Kuttikanam, are aggrieved by Ext.P1 order passed by the 1 st 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 6 th 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 5 th respondent Panchayath, to the Hot Mix Plant installed by the 6 th 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 and 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 6 th respondent for operating the hot mix plant, are impugned in this Writ Petition.

(3.) A counter affidavit has been filed on behalf of the 6 th 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 6 th 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 6 th 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. 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 5 th 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 and 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.