Kerala High Court
Hashim.S vs The Chief Of Police on 18 March, 2017
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 18TH DAY OF DECEMBER 2017/27TH AGRAHAYANA, 1939
WP(C).No. 20438 of 2017 (D)
----------------------------
PETITIONER(S):
-------------
1. HASHIM.S
AGED 48, S/O.SHAHUL HAMEED, KAPPAD HOUSE ,
T.S.H. THEKKADA, VEMBAYAM (P.O)-695615,
THIRUVANANTHAPURAM
2. SEENA HASHIM,
AGED 43, W/O.HASHIM S.,KAPPAD HOUSE ,
T.S.H. THEKKADA, VEMBAYAM (P.O)-695615,
THIRUVANANTHAPURAM
BY ADVS.SRI.LIJU. M.P
SMT.S.DHANYA
RESPONDENT(S):
--------------
1. THE CHIEF OF POLICE
THIRUVANANTHAPURAM DISTRICT (RURAL),
THIRUVANANTHAPURAM-695001
2. THE SUB INSPECTOR OF POLICE,
VATTAPPARA POLICE STATION,
VATTAPPARA, THIRUVANANTHAPURAM.
3. THE VEMBAYAM GRAMA PANCHAYAT,
VEMBAYAM, THIRUVANANTHAPURAM DISTRICT-695615
REPRESENTED BY ITS SECRETARY
4. VENUGOPALAN C.,
S/O.CHELLAPPAN ASARI, HOUSE NO.479,
T.S.H.THEKKADA, VEMBAYAM (P.O)-695615,
THIRUVANANTHAPURAM.
5. AJITH KUMAR,
S/O.RAVEENDRAN, R.B.HOUSE,
T.S.H.TOAD, THEKKAD, VEMBAYAM (P.O)
THIRUVANANTHAPURAM-695615.
WPC 20438/2017
6. SANTHAKUMARI,
W/O.VASU, MINI BHAVAN,
T.S.H.ROAD, THEKKAD, VEMBAYAM (P.O)
THIRUVANANTHAPURAM-695615
7. MANJU S.,
W/O.SREEKANTH, KASINADHAN,
T.S.H.ROAD, THEKKAD, VEMBAYAM (P.O)
THIRUVANANTHAPURAM-695615
R4-R7 BY ADV. SRI.K.B.PRADEEP
R4-R7 BY ADV. SMT.J.HARIPRIYA
R3 BY ADV. SRI.SAIJO HASSAN
R3 BY ADV. SRI.BENOJ C AUGUSTIN
R3 BY ADV. SRI.RAFEEK. V.K.
R3 BY ADV. SRI.VISHNU BHUVANENDRAN
R3 BY ADV. SMT.P.PARVATHY
R1&R2 BY ADV.SRI.P.P.THAJUDEEN, SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18-12-2017, ALONG WITH WPC. 21091/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).No. 20438 of 2017 (D)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1 COPY OF THE SPECIAL LICENCE TO DEAL IN RUBBER ISSUED
BY RUBBER BOARD IN INDIA
EXHIBIT P2 COPY OF CONSENT VARIATION ORDER ISSUED BY KERALA STATE
POLLUTION CONTROL BOARD DATED 18.3.2017
EXHIBIT P2(A) COPY OF LICENCE ISSUED BY THIRD RESPONDENT DATED
21.4.2017
EXHIBIT P3 ENGLISH TRANSLATION OF EXHIBIT P3
EXHIBIT P4 PHOTOGRAPHS OF THE PREMISES
EXHIBIT P5 COPY OF COMPLAINT ADDRESSED TO THE 1ST RESPONDENT
DATED 12.6.2017
EXHIBIT P5(A) COPY OF ENGLISH TRANSLATION OF EXHIBIT -P5
EXHIBIT P6 COPY OF POSTAL RECEIPT DATED 13.6.2017
EXHIBIT P7 : COPY OF CONSENT TO OPERATE DATED 28.11.2014 AND
SKETCH THEREIN ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.
RESPONDENT(S)' EXHIBITS
-----------------------
EXHIBIT R-4 A : SKETCH SHOWING THE LOCATION OF THE PETITIOENRS
SMOKE FACTORY AND THE HOUSES OF THE PETITIONERS.
EXHIBIT R-4B : COPY OF THE OUT PATIENT RECORD DATED 11.2.2017 OF A
MINOR BY NAME VAISHNAVI.
EXHIBIT R-4C : COPY OF OUT PATIENT RECORD DATED 11.2.2017.
EXHIBIT R-4D : COPY OF OUT PATIENT RECORD DATED 11.2.2017.
EXHIBIT R-4E : COPY OF DISCHARGE CARD DATED 18.4.2016.
EXHIBIT R-4F : COPY OF LETTER DATED 24.7.2017 ISSUED FROM THE
ENVIRONMENTAL ENGINEER TO R3.
EXHIBIT R-4G : COPY OF CIRCULAR DATED 9.8.2004 OF THE KERALA STATE
POLLUTION CONTROL BOARD.
EXHIBIT R-4H : PHOTOS SHOWING THE SMOKE HOUSE AND THE APPURTENANT
BUILDINGS.
EXHIBIT R-4I : COPY OF APPLICATION UNDER RTI ACT DATED 12.7.2017.
EXHIBIT R-4J : COPY OF REPLY PROVIDED BY THE PANCHAYAT DATED
10.8.2017.
//TRUE COPY//
PS TO JUDGE.
jg-20/12
K.VINOD CHANDRAN & ASHOK MENON, JJ.
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WP(C) Nos.20438 and 21091 of 2017
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Dated this the 18th day of December, 2017
J U D G M E N T
Vinod Chandran, J.
The controversy raised in both these writ petitions is with respect to carrying on of an industry in rubber by name "Kappad Industries". The petitioners in WP(C) No.20438/2017 seek police protection insofar as the obstruction caused by respondent Nos.4 to
7. Respondent Nos.4 and 5 have filed WP(C) No.21091/2017 against carrying on of the industry, insofar as they challenged the grant of licence by the Panchayat and the consent granted by the Pollution Control Board. A Division Bench had earlier heard the matter and connected the two writ petitions and passed an interim order dated 10.11.2017, which reads as hereunder:-
"Police protection is sought for by the petitioners in W.P.(C).No.20438/2017, with regard to the running of a smoke house, based on Ext.P1 proceedings of the Rubber Board, Ext.P2 clearance given by the Kerala State Pollution Control Board and Ext.P3 licence issued by the Local Authority. The party respondents in the said case have filed W.P.(C).No.21091/2017, with rival contentions and for praying appropriate reliefs.
WPC 20438 & 21091/17 -2-
2. Heard the learned counsel appearing for the parties, the learned Standing Counsel for the Board and also the learned Standing Counsel for the Panchayat; besides the learned Government Pleader.
3. It is submitted by the learned counsel for the petitioners in W.P.(C)No.21091/2017, who appears for the party respondents in the other case that, Ext.P1 issued by the Rubber Board in W.P.(C).No.20438/2017 is in respect of Building No.1001, whereas the smoke house is actually in Building No.482, as informed by the Panchayat, vide Ext.P15 obtained under the RTI Act. The licence issued by the Panchayat, vide Ext.P3, is in respect of Building No.481 - a different building. Since Ext.P2 'consent to operate' issued by the Pollution Control Board expired on 30.10.2017 and since the building in which the smoke house is actually situated is Building No.482, as disclosed from Ext.P15 and further since Ext.P1 is in respect of some other building, the operation of the smoke house is sought to be prevented by filing I.A.No.16183/2017 in W.P.(C).No.21091/2017.
4. The learned counsel appearing for the writ petitioners in W.P.(C).No.20438/2017 submits that the building number mentioned in Ext.P1 is the 'old number' assigned by the Local Authority, whereas, the building where the smoke house is situated is the actual building involved, as considered by the Panchayat.
5. As a matter of fact, two different buildings are situated close to each other and they are separately numbered as Building No.481 and Building No.482 - where the smoke house was sought to be started. The licence issued by the Panchayat as per Ext.P3, however, refers to the Building No.481. It is stated that the mistake came to the notice only on filing counter affidavit by the party respondents in W.P.(C).No.20438/2017. In the said circumstance, the petitioners have already moved the Panchayat for necessary correction or to issue a fresh licence in respect of Building No.482 and the same is stated as pending.
6. In the above circumstance, by virtue of the undisputed facts as to the particular building where the smoke house is situated (in Building No.482), there will be an interim order to the effect that no operation of the smoke house shall be pursued unless and until proper licence is obtained from the Panchayat, in respect of the said building; besides 'consent to operate' to be obtained from the Pollution WPC 20438 & 21091/17 -3- Control Board with reference to the said building.
7. The learned counsel for the petitioners who run the unit points out that, pursuant to certain defects pointed out by the Pollution Control Board, all the defects were rectified and it was reported to the Pollution Control Board. Pursuant to this exercise, they conducted a further inspection and a report has been filed before this Court on 24.10.2017 pointing out that the petitioners in W.P.(C).No.24038/2017, have complied with the directions. It is open for the petitioners to bring it to the notice of the Pollution Control Board, when extension of the 'consent to operate' is sought for to be acted upon. This order passed by this Court, interdicting the operation of the 'smoke house' for the time being will not be a bar for considering the application for issuance of renewal/licence in the Panchayat and so also, the extension of the consent to operate by the Pollution Control Board, if the proceedings are otherwise in order and no objection as per law does exist.
In view of the submission made by the learned counsel for the petitioners in W.P.(C).No.20438/2017 that steps are being pursued before the Panchayat in this regard, list these matters for further consideration, after two weeks."
2. We are of the opinion that the controversy can be settled, if the petitioners in WP(C) No.20438/2017 obtain the licences to carry on the industry, in the specific building in which the same is carried on. Suffice it to notice that the petitioners in WP(C) No.20438/2017 rely on Ext.P1 notice issued by the Rubber Board, the consent to operate issued by the Pollution Control Board as per Ext.P2 and the D&O licence issued by the local authority, evidenced by Ext.P3.
WPC 20438 & 21091/17 -4-
3. Ext.P1 is a licence issued by the Rubber Board indicating a smoke house in building No.VPX/1001. Ext.P2 consent to operate is issued without any building number. Ext.P3 is the D&O licence issued to operate the industry in building number UPIX/481. Admittedly, the smoke house is carried on now in building No.UPIX/482. The petitioners in WP(C) No.20438/2017 submit that they have approached the authorities to seek modification of the building numbers. The learned Standing Counsel for the Pollution Control Board submits that they have inspected the site and found the operation to be not causing any pollution.
4. The petitioners in WP(C) No.20438/2017 submit that they have approached the Pollution Control Board and the local authority to change the building number in the consent and in the licence. The petitioners would also have to approach the Rubber Board and get a licence to run the smoke house in the building number in which now the petitioners are intending to run the smoke house. In such circumstances, suffice it to direct the petitioners in WP(C) No.20438/2017 to approach the appropriate authorities and WPC 20438 & 21091/17 -5- in the context of the objection raised by respondent Nos.4 to 8, we direct that the local authority and the Pollution Control Board issue notice to the respondents also for a joint inspection of the premises; before a licence or consent order is issued to the petitioners. The petitioners in WP(C) No.20438/2017 shall make an application within a period of two weeks from today, and the local authority and the Pollution Control Board shall carry out an inspection with notice to the petitioners and respondent Nos.4 to 7 in WP(C) No.20438/2017. For the purpose of the inspection, the petitioners shall be allowed to operate the smoke house. The pollution, if any, shall be verified and at first, the Pollution Control Board shall issue a consent, if it is so permissible. On the basis of the consent, the Panchayat shall issue D&O licence, if otherwise permissible. On such licences being obtained from the local authority and the Pollution Control Board and also the Rubber Board, the petitioners in WP(C) No.20438/2017 would be allowed to operate the unit subject to any challenge to the orders made by respondent Nos.4 to 7.
WPC 20438 & 21091/17 -6- The Pollution Control Board and the local authority shall also hear respondent Nos.4 to 7 or their authorised representative before orders are issued. The interim order will continue to operate till such exercises are carried out. These writ petitions would stand disposed of leaving open the contentions of either parties. No order as to costs.
K.V INODJudge CHANDRAN ASHOK MENON Judge jg