Kerala High Court
B.Ravi vs Girija on 20 November, 2024
2024:KER:88536
W.A. No.1835 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2024 / 29TH KARTHIKA,
1946
WA NO. 1835 OF 2024
AGAINST THE JUDGMENT DATED 6.11.2024 IN WP(C) NO.1847
OF 2024 OF HIGH COURT OF KERALA
APPELLANT/7TH RESPONDENT IN WPC:
B.RAVI,
S/O BALAKRISHNA PILLAI, AGED ABOUT 57 YEARS,
RESIDING AT SARADALAYAM, KOTTACKKAKOM, PERINADU
POST, KOLLAM, PIN - 691 001
BY ADVS.
B.MOHANLAL
ASWIN V. NAIR
P.S.PREETHA
KARTHIK J SEKHAR
ABIJITH M.
AVANI NAIR
JAYAPRABHA ARJUN
PRAVEENA T.
2024:KER:88536
W.A. No.1835 of 2024
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RESPONDENTS/PETITIONER 2 AND 3 AND R1 TO 6 IN WPC:
1 GIRIJA,
AGED 61 YEARS, W/O ANANDAN, RESIDING AT ATHIRA,
C.K.P JUNCTION, KOTTACKKAKOM, PERINADU POST,
KOLLAM, FROM SIVAMANGALATHU VEEDU,
KADRAMKAANIMURI * P2 IS RECORDED AS THE LEGAL
REPRESENTATIVE OF THE DECEASED 1ST PETITIONER, AS
PER ORDER DATED 01.07.2024 IN I.A.02/2024 IN
WP(C)1847/2024., PIN - 691 601
2 ALOK.A.G.,
S/O.ANANDAN, AGED 31 YEARS, RESIDING AT ATHIRA,
C.K.P JUNCTION, KOTTACKKAKKOM, PERINADU POST,
KOLLAM, PIN -691 601 * IS IMPLEADED AS PER ORDER
DATED 01.07.2024 IN I.A.02/2024 IN
WP(C)1847/2024.
3 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, LAW DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-
695 001
4 KOLLAM CORPORATION,
REPRESENTED BY ITS SECRETARY, CORPORATION
BUILDINGS, KOLLAM, PIN - 691 001
5 KERALA STATE POLLUTION CONTROL BOARD,
KOLLAM OFFICE REPRESENTED BY THE ENVIRONMENTAL
ENGINEER, USHUS BUILDING, BIG BAZAAR,
KOLLAM, PIN - 691 001
6 NATIONAL HIGHWAYS AUTHORITY OF INDIA,
KOLLAM OFFICE, REPRESENTED BY EXECUTIVE ENGINEER,
N.H DIVISION, BEACH ROAD, KOLLAM, PIN - 691 001
7 THE STATION HOUSE OFFICER,
ANCHALUMMOODU POLICE STATION, PERINAD POST,
KOLLAM, PIN - 691 001
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W.A. No.1835 of 2024
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8 THE COMMISSIONER OF POLICE,
POLICE COMMISSIONER'S OFFICE, MUNDAKKAL,
KOLLAM, PIN - 691 001
OTHER PRESENT:
SRI B MOHANLAL
SRI R KISHORE,
SRI S SREEKUMAR(KOLLAM),
SRI T NAVEEN , SC,
SRI LEJO JOSEPH GEORGE FOR R6
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
20.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:88536
W.A. No.1835 of 2024
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JUDGMENT
Dated this the 20th day of November, 2024 Nitin Jamdar, C.J.
The controversy pertains to the functioning of a private fish market of the Appellant in the Thrikkadavoor Village. The Appellant was the Original Respondent No.7 in W.P.(C)No.1847 of 2024 filed by Respondent Nos.1 and 2 herein/Original Petitioners. The Petitioners prayed for quashing and setting aside the consent to operate dated 31 March 2023 (Ext.P9) issued by the Kerala State Pollution Control Board (Board) and the licence issued on 27 November 2023 (Ext.P10) by the Kollam Corporation (Corporation) to the Appellant. By judgment dated 6 November 2024, the learned Single Judge allowed the writ petition and cancelled the licences issued to the Appellant. Being aggrieved, the Appellant is before us with this appeal under Section 5 of the Kerala High Court Act, 1958.
2. We have heard Mr. B. Mohanlal, learned counsel for the Appellant, Mr. R. Kishore, learned counsel for Respondent Nos.1 and 2, Mr. S. Sreekumar (Kollam), learned Standing Counsel for the Corporation and Mr. T. Naveen, learned Standing Counsel for the Board.
3. The appeal is admitted and taken up for disposal.
2024:KER:88536 W.A. No.1835 of 2024 5
4. In the writ petition, it was the contention of the Petitioners that the Appellant was illegally conducting a private fish market, causing nuisance and disturbance to the Petitioners, who are suffering from various illnesses. The Petitioners own properties close to the market run by the Appellant, and this market is situated on the south side of a private lane that starts from their property to the Highway and by order passed in O.S. No.973 of 2023 instituted by them in the Munsiff Court, Kollam, an order of temporary injunction has been passed restraining the Appellant from trespassing into the private lane and committing any waste, damage or mischief, yet the injunction order is being violated. Ms. Saradamma, the mother of the Appellant - Mr. B. Ravi, who had the licence, had stopped functioning the market and had informed the same in writing to the Corporation. Thereafter the licences and the permission granted issued by the Corporation and the Board were in violation of the distance norms. Issues were also raised regarding the easementary rights of the Petitioners and the nuisance stated to be caused by the Appellant.
5. The Appellant filed a counter affidavit dated 25 February 2024 and denied the contentions. The Appellant had stated as follows:
Ms. Saradamma, the mother of the Appellant, was the licensee of the private fish market. The area was located in Thrikkadavoor Grama Panchayat, which was later bifurcated to Kollam Corporation.
2024:KER:88536 W.A. No.1835 of 2024 6 Ms.Saradamma had paid licence fees, and receipts for the years 1996 - 1997 were on record. A copy of the licence issued in favour of Ms.Saradamma dated 22 April 2021 is on record. The Appellant had obtained title in respect of the property from his mother Ms.Saradamma who had closed the private market only for repairs and thereafter, the Appellant sought permission to construct the private market. The permission granted was valid till the end of the year 2027. The authorities had conducted physical verification and granted permissions. The civil court had not restrained the Appellant from conducting business in the private market. On these grounds, the petition was opposed.
6. A statement dated 24 July 2024 was filed by Respondent No.4 - Corporation wherein it was stated that the licence was issued after conducting necessary inspection and there were no health problems and if there is any violation of the licence or hardship, the licencee would be directed to rectify the defects.
7. A counter affidavit dated 12 August 2024 was filed by Respondent No.5 - Board in which it was asserted that the consent to operate was granted and since the unit was already functioning, integrated consent to operate was issued. An additional counter affidavit dated 11 September 2024 was filed by the Board wherein it was stated that there were no violations and the consent to operate was 2024:KER:88536 W.A. No.1835 of 2024 7 properly issued.
8. Memo dated 9 September 2024 was filed by the Senior Government Pleader, stating that no law and order situation exists on the site.
9. An additional affidavit dated 7 October 2024 was filed by the Board wherein the copies of the application filed by the Appellant and consent to operate were placed on record.
10. The learned Single Judge concluded that the market was earlier closed, and it is an admitted case that Ms. Saradamma had stopped the business. Accordingly, the learned Single Judge allowed the writ petition and, by impugned judgment dated 6 November 2024, directed that the licence and the consent to operate be quashed and they will have to be reconsidered and in the meanwhile, the Appellant was restrained from conducting the fish market. This order is challenged by the Appellant in this Appeal.
11. The learned counsel for the Appellant made a grievance that while arriving at a finding that the market was closed, the learned Single Judge recorded a finding that it is an admitted case that the mother of the Appellant, Ms. Saradamma, had stopped the business and the Application should have been treated as a fresh application and on that basis, proceeded to cancel the trade licence. The learned 2024:KER:88536 W.A. No.1835 of 2024 8 counsel submitted that the impugned order is bereft of any reasoning, and the counter affidavits filed by the Appellant and the Board and the statement of the Corporation have not been considered at all. He submitted that there was no such admitted case as a serious factual issue had arisen, which had to be adjudicated. The learned counsel for the Appellant also contended that the observation that admittedly distance criteria was not followed only because the Panchayat had intimated that there was a fish market in operation earlier and therefore, this finding is linked with the finding that there was no functional private market. The learned counsel for the Petitioners supported the impugned judgment, contending that the licence is required to be cancelled and that the Appellant is violating the injunction order. The learned Standing Counsel for the Board and the Corporation as per their stand taken before the learned Single Judge, submitted that the licence and the consent to operate were validly given.
12. Perusal of the impugned judgment shows that a conclusion is reached primarily with the observation that the non-functioning of the market was an admitted position based on Ext.P1 document dated 11 July 2022. This document is not a document signed by the Appellant or his mother. It is an observation made by the Health Supervisor of the Corporation. He stated that the mother of the Appellant had stopped the functioning of the private market. However, the stoppage 2024:KER:88536 W.A. No.1835 of 2024 9 of the private market at that point of time was not the fact in issue, the fact in issue was different, it was whether the market was stopped for repairs. The case put up by the Appellant was that it was stopped for repairs.
13. In this context, the rival pleadings that fell for consideration will have to be referred to.
13.1. The case of the Appellant was as under:
"5. The rival business group who was the Licensee of the nearby private market situated adjacent to the Sivodayam Private Market filed complaint against the conduct of the private market before the Minister for Health through certain persons, it was forwarded to the 2nd Respondent and the Respondents conducted inspection of the Market found that there is no proper arrangement for waste disposal and caused pollution, the 2nd Respondent as per Order No:T2/TPI/316/2022 dated 06/07/2022 ordered to close down the Private Market and issued Public Notice No:T2/TP1/316/2022 dated 08/07/2022. The true copy of the Notice No:T2/TP1/316/2022 dated 08/07/2022 issued by the 2nd Respondent is produced herewith and may be marked as Exhibit-R7(e). As per Ext.R7(e) the Sivodayam Private Market run by the mother of this Respondent was closed for repairing works.
6. It is submitted that this Respondent obtained the title in respect of the property of the Private Market from his mother Smt.K.Saradamma submitted application for construction of the building, the 2nd Respondent as per Order No:TZ/BA/120/22-23 dated 02/09/2022 granted building 2024:KER:88536 W.A. No.1835 of 2024 10 permit to this Respondent for carrying out construction in the private market. This Respondent constructed commercial building in the private market strictly in terms of the building permit, the 2nd Respondent issued occupancy certificate in file No:TZ/BA/120/22-23 dated 17/12/2022 certifying that this Respondent completed the construction on 14/12/2022 . The true copy of the occupancy certificate in file No:TZ/BA/120/22-23 dated 17/12/2022 issued by the 2 nd Respondent to the 7th Respondent is produced herewith and may be marked as Exhibit-R7(f). This Respondent remitted the arrears of property tax and other remittances to the 2 nd Respondent for the period 2022- 2023. The true copy of the receipt issued by the 2nd Respondent dated 11/01/2023 to the 7th Respondent is produced herewith and may be marked as Exhibit-R7(g). This Respondent obtained consent No:KSPCB/KL/ICO/10020219/2023 dated 31/03/2023 from the 3rd Respondent to establish the Private Market in the property of this Respondent having its validity till 31/12/2027. The true copy of the consent No:KSPCB/KL/ICO/10020219/2023 dated 31/03/2023 issued by the 3rd Respondent to the 7th Respondent is produced herewith and may be marked as Exhibit-R7(h). This Respondent submitted application before the 2nd Respondent on 31/03/2023 along with required documents for license to conduct the private market in the property the Respondents conducted physical verification of the property it was found that this Respondent complied necessary safeguards and required facilities to conduct the private market and submitted the file to the Corporation Council for license, however due to interference and influence of the rival business group who is conducting the private market adjacent to the property of this Respondent raised bald allegations to prevent from getting license to conduct the private market of this Respondent."
2024:KER:88536 W.A. No.1835 of 2024 11 (emphasis supplied) 13.2. The stand taken by the Board in its affidavit dated 12 August 2024 was as follows:
"8. The 7th respondent had submitted an application for 'Integrated Consent to Operate' on 23.01.2023 under the name & style of "M/s. R.P. Building", Kottakkakam, Perinad P.O., Kollam. The 7th respondent had submitted a notice received from Thrikkadavoor Grama Panchayat Secretary as proof of existence of the unit in 1996-97 and also furnished license issued from the 2nd respondent during the period 2021-22. A true copy of the Notice dated 19.07.1996 issued from the Thrikkadavoor Grama Panchayat is produced herewith and marked as Exhibit R-3(d). Since the Unit started operation prior to Annexure R3(b) Circular of the Board, which prescribe the siting criteria and distance norms are not applicable for the unit. On the basis of application, an inspection was conducted on 18.03.2023 and found that unit building was enclosed with metal sheets and also provided compound wall with adequate height. The 7th respondent's house is adjacent to the unit location. Nearest residence to the shed, other than 7th respondent's residence, was seen at 8.50m distance. A commercial building was found at 8.30m from the unit shed location. Since satisfying pollution control measures were found implemented in the 7 th respondent Unit, the Board had issued Ext P9 Consent to Operate on 31-3-2023 having validity up to 31.12.2027.
9. As regards the averments contained in the Writ Petition to the effect that Ext.P9 Consent to Operate was given without there being a Consent to Establish, it is submitted that, since the unit was already established and functioning, Integrated Consent to Operate was issued after implementing adequate 2024:KER:88536 W.A. No.1835 of 2024 12 pollution control measures."
(emphasis supplied) 13.3. Further, in the additional counter affidavit dated 11 September 2024 of the Board, it was stated as under:
"5. As per the application submitted, the Unit claimed to operate in land bearing Survey Numbers 135-3-2-2, 135-8- 5-2 of Thrikadavoor (CT) village, and the same was verified from the land tax receipt submitted along with the application. It is respectfully submitted that the distance to the nearby residence was measured not from the property comprising in Survey No: 135-3-2-2, 135-8-5-2 but from the source of pollution. Here the source of pollution is the final discharge point of both biogas plant and waste water treatment plant. Both the points satisfy the distance criteria to the nearby residences. It is submitted that other than 7 th respondent's residence, a commercial building is seen at 8.3 m distance and nearest residence owned by one Dr. Santhosh is at 8.5 m distance from the unit shed. Since the unit is an existing one and established before the siting criterion were introduced the distance norms are not applicable. Apart from that distance criteria are not applicable to commercial buildings. Since it is an existing unit and pollution control measures adopted in the unit are adequate, Ext. P9 Integrated Consent to Operate was issued to the unit affixing the survey numbers as per the application submitted."
(emphasis supplied) 13.4. In the further affidavit dated 7 October 2024, the Board stated as follows:
2024:KER:88536 W.A. No.1835 of 2024 13 "4. It is submitted that the Board had issued Ext.P9 consent to operate to the 7th respondent on 31-3-2023 having validity upto 31-12-2027. Ext.P9 consent was issued pursuant to the application submitted through online on 23-
01-2023 along with site plan, land tax receipt and affidavit as supporting documents. A true copy of the application submitted by the 7th respondent through online on 23-01- 2023 is produced herewith and marked as Exhibit R-3(e). A true copy of the site plan submitted by the 7" respondent is produced herewith and marked as Exhibit R-3(f). "
13.5. The statement filed by the Corporation dated 24 July 2024 reads thus:
"2. It is submitted that license was issued after conducting necessary inspections and scrutinizing the relevant documents. The Pollution Control Board and other concerned departments have also conducted their own inspections and no lacuna was noted by any agency. On inspection it is found that no Health related problems or other nuisance are caused to the nearby residents by the operation of the market."
14. These were the pleadings that fell for consideration. From the pleadings, an issue had arisen as to whether the private market existed and continued or the same was closed on the applications for permission were considered and granted. The core of the reasoning of the impugned judgment is to be found in paragraph 8, where, based on Ext.P1, it was concluded that the application filed by the Appellant could only be considered as a fresh application and not a renewal as it 2024:KER:88536 W.A. No.1835 of 2024 14 was an admitted case that the mother had stopped the business. Ext.P1 is an observation made in an order wherein a statement is recorded. An admission, as commonly understood under the Code of Civil Procedure, is made by a party that acknowledges the truth of certain facts against their interest. Admissions are binding unless proved erroneous and can provide a basis for the court to grant relief without further inquiry, but it is open to a party to explain the so-called admission. A statement occurring in an order not written by a party can always be explained. Ext.P1 is not the only evidence on record, and the Appellant had placed on record his version; therefore, the statement made in Ext.P1 could not have been elevated to the status of an admission to treat it as the best evidence without looking into anything else on record to conclude that the market was closed for all purposes and not for repairs as contended. This is not to conclude the issue but to state that various questions have arisen regarding this contentious issue. For a judicial finding on contested facts, pleadings, evidence, and the admitted position to be evaluated in totality, even where one document presumes to establish a fact, it has to be examined alongside other pieces of evidence to determine its credibility. Such enquiry is missing from the impugned order.
15. Thus, an enquiry into all aspects is necessary, more particularly considering that the petition was finally allowed, permissions were set 2024:KER:88536 W.A. No.1835 of 2024 15 aside, and the business was stopped. In light of this conclusion, the impugned judgment dated 6 November 2024 is set aside. The writ petition is restored to the file. Our observations are only in the context of emphasising the need for detailed scrutiny at the first instance and not the conclusions on the rival contentions.
16. As far as the injunction already granted by the civil court is concerned, it is an entirely different subject matter and nothing that is observed in these proceedings would affect the orders passed by the civil court and if there is any breach of the injunction, the Respondents/Original Petitioners will have their remedies open.
17. The appeal is accordingly allowed. No order as to costs.
Sd/-
Nitin Jamdar Chief Justice Sd/-
S. Manu Judge vpv