Kerala High Court
James Varghese vs Kerala State Human Rights Commission on 20 January, 2011
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
THURSDAY, THE 31ST DAY OF MAY 2012/10TH JYAISHTA 1934
WP(C).No. 35119 of 2011 (L)
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PETITIONER(S):
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1. JAMES VARGHESE,
S/O.VARGHESE CHACKO, CHERUV PARAMBIL HOUSE,
VELLARAMKUNNU KARA, KUMILY VILLAGE, PEERMADE TALUK.
2. VARGHESE CHACKO @ PAPPACHAN,
S/O.CHACKO, CHERUV PARAMBIL HOUSE
VELLARAMKUNNU KARA, KUMILY VILLAGE, PEERMADE TALUK.
BY ADVS.SRI.G.HARIHARAN
SRI.SHINE VARGHESE
SRI.PRAVEEN HARIHARAN
RESPONDENT(S):
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1. KERALA STATE HUMAN RIGHTS COMMISSION,
M.P.APPAN ROAD, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695 014
REPRESENTED BY ITS REGISTRAR.
2. KUMILY GRAMA PANCHAYATH,
KUMILY, IDUKKI DISTRICT
REPRESETNED BY ITS SECRETARY,PIN-685 509.
3. THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
ESSAREN BUILDING, AANAKOODU JUNCTION, THODUPUZHA
IDUKKI, PIN-685 584.
4. BINU THOMAS,
KUNNEL HOUSE, VELLARAMKUNNU.P.O., IDUKKI-686 535.
R1 BY GOVERNMENT PLEADER SMT.P.MAYA
R2 BY ADV. SRI.JOICE GEORGE
R3 BY ADVS. SRI. M.AJAY, SC, KERALA STATE POLLN CONTROL BOARD
SRI.M.K.CHANDRAMOHAN DAS,SC,POLL.C.BOARD
R4 BY ADV. SRI.C.K.VIDYASAGAR
BY ADV. SRI.P.CHANDY JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 35119 of 2011
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE PLAINT FILED BY THE PETITIONERS IN
O.S.NO.161/2009 BEFORE THE MUNSIFF COURT, PEERMADE.
EXT.P2: COPY OF THE JUDGMENT MADE IN O.S.NO.161/2009 DATED
20.01.2011 PASSED BY THE MUNSIFF COURT, PEERMADE.
EXT.P3: COPY OF THE CURRENT LICENCE ISSUED BY THE KUMILY GRAMA
PANCHAYAT FOR THE PERIOD ENDING ON 31.3.2012.
EXT.P4: COPY OF THE NOTICE ISSUED FROM THE REVENUE DIVISIONAL
OFFICE, IDUKKI ON 22.9.2011 ALONG WITH A COPY OF THE
COMPLAINT CALLING UPON THE PETITIONERS TO APPEAR FOR A
HEARING.
EXT.P5: COPY OF THE NOTICE DATED 6.7.2010 ISSUED FROM THE KERALA
STATE WOMEN COMMISSION IN THE NAME OF THE PETITIONERS.
EXT.P6: COPY OF THE SUMMONS DATED 16.9.2011 ALONG WITH A COPY OF THE
COMPLAINT DATED 2.4.2009 FILED BY THE 4TH RESPONDENT ISSUED
BY THE 1ST RESPONDENT TO APPEAR ON 26.9.2011.
EXT.P7: COPY OF THE OBJECTION DATED 9.2.2011 FILED BY THE
PETITIONERS BEFORE THE REVENUE DIVISIONAL OFFICER, IDUKKI.
EXT.P8: COPY OF THE OBJECTION DATED 26.9.2009 FILED BY THE
PETITIONERS BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION.
EXT.P9: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON 14.11.2011
FORWARDED BY THE REGISTRAR ON 16.12.2011 AND RECEIVED BY THE
PETITIONER ON 21.12.2011.
EXT.P10: COPY OF THE ONE SUCH CONSENT LETTER DATED 10.1.2011
SUBMITTED BY ANTONY, S/O.THOMAS RESIDING AT VALLARAMKUNNU
BEFORE THE REVENUE DIVISIONAL OFFICER, IDUKKI.
EXT.P11: COPY OF THE APPLICATION FILED BEFORE THE MUNSIFF COURT,
PEERMADE ON BEHALF OF THE PETITIONER AS I.A.NO.7/2012 IN
O.S.NO.161/2009.
EXT.P12: COPY OF THE ORDER ISSUING NOTICE TO THE PETITIONERS HEREIN
BY THE MUNSIFF COURT, PEERMADE.
EXT.P13: COPY OF THE PETITION FILED BY THE 4TH RESPONDENT BEFORE THE
MUNSIFF COURT, PEERMADE AS I.A.NO.206/2011 IN O.S.NO.161/
2009 WITH ENDORSEMENT OF THE PETITION HAVING BEEN ALLOWED ON
23.7.2011.
EXT.P14: COPY OF THE REVIEW PETITION FILED UNDER ORDER XLVII RULE I
OF THE CIVIL PROCEDURE CODE AGAINST THE ORDER PASSED IN
I.A.NO.206/2011 IN O.S.NO.161/2009.
WP(C).No. 35119 of 2011
EXT.P15: COPY OF THE CERTIFICATE ISSUED BY SECRETARY, KUMILY GRAMA
PANCHAYAT EVIDENCING FUNCTIONING OF CARDAMOM PROCESSING UNIT
IN THE BUILDING COMPRISED IN DOOR NO.X/268 FOR YEARS 2007-
2008 TO 2009-2010.
EXT.P16: COPY OF THE ORDER ISSUED BY THE SECRETARY, KUMILY GRAMA
PANCHAYAT ON 24.12.2011.
RESPONDENT'S EXHIBITS:
EXT.R4(a): PHOTOCOPY OF THE LICENSE BEARING NUMBER A2/489/10-11 ISSUE
BY THE 2ND RESPONDENT TO THE PETITIONER.
EXT.R4(b): PHOTOCOPY OF THE REPORT OF 3RD RESPONDENT BEARING NO.HRMP
NO.1412/2009 IDUKKI BEFORE THE 1ST RESPONDENT.
EXT.R4(c): PHOTOCOPY OF THE REPORT DATED 3.10.2011 FORWARDED BY THE
DISTRICT MEDICAL OFFICER BEFORE THE 1ST RESPONDENT.
EXT.R4(d): PHOTOCOPY OF THE ORDER NO.C 1/5071/10 ISSUED BY SUB
DIVISIONAL MAGISTRATE DATED 20.12.2010.
EXT.R4(e): PHOTOCOPY OF THE ORDER DATED 22.12.2010 OF REMOVAL OF
NUISANCE ISSUED BY SUB DIVISIONAL MAGISTRATE, IDUKKI.
EXT.R4(f): PHOTOCOPY OF THE COMPLAINT FILED BY P.K.SOMAN AND REJI
THOMAS BEFORE R.D.O., IDUKKI BEARING NUMBER C1/5071/2010.
EXT.R4(g): PHOTOGRAPH SHOWING THE TEMPORARY STRUCTURE WERE THE CARDAMOM
UNIT IS INSTALLED AND 4TH RESPONDENT'S RESIDENTIAL HOUSE,
ETC.
EXT.R3(a): COPY OF THE REPORT IN HRMP NO.1412/09/IDUKKI SUBMITTED TO
THE FIRST RESPONDENT DATED NIL.
EXT.R3(b): COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 16.12.2011.
EXT.R3(c): COPY OF THE LETTER NO.PCB/IDK/COMP/17/2010 OF THE THIRD
RESPONDENT DATED 30.12.2011.
/TRUE COPY/
P.A. TO JUDGE
VPV
P.N.RAVINDRAN,J.
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W.P.(C) No.35119 of 2011
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Dated this the 31st day of May, 2012
JUDGMENT
The first petitioner is the owner of 10 cents of land situated in Sy.No.65/1 of Periyar Village. The second petitioner is the owner of 15 cents of land lying contiguous with the land belonging to the first petitioner. The petitioners are running a cardamom processing unit in the said lands. The fourth respondent is residing on the eastern side of the said 25 cents of land. Alleging that the fourth respondent attempted to trespass into the eastern portion of their land at about 10 a.m. on 17.9.2009 and take forceful possession of the property, the petitioners filed O.S.No.161 of 2009 in the Court of the Munsiff of Peermade for a permanent prohibitory injunction restraining the fourth respondent from taking forceful possession of their property or from committing acts of mischief therein. In the plaint, a copy of which is produced as Ext.P1, the petitioners alleged that they are running a cardamom store in the suit property and had prayed for a permanent prohibitory injunction W.P.(C) No.35119 of 2011 2 restraining the fourth respondent herein, the defendant in the suit, from obstructing them from running the cardamom store. Though the fourth respondent was served and had entered appearance through counsel, he did not file a written statement. He was therefore set ex-parte, the plaintiff was examined and on the uncontested evidence, the suit was decreed by Ext.P2 judgment delivered on 20.1.2011.
2. Aggrieved by ex-parte decree, the fourth respondent filed I.A.No.206 of 2011 under Order IX, Rule 13 of the Code of Civil Procedure. By order passed on 23.7.2011, the Court of the Munsiff allowed the application and set aside the ex-parte decree passed in the suit. It appears that the fourth respondent had on 2.4.2009, before the institution of the suit, filed a complaint before the Chairman of the Kerala State Human Rights Commission alleging that on account of the cardamom processing unit being run by the fourth respondent, he and his family members are not in a position to reside in his land. Upon receipt of notice from the Human Rights Commission, the first petitioner entered appearance and filed Ext.P8 objections. He contended W.P.(C) No.35119 of 2011 3 that he is running a cardamom store after obtaining the necessary license from the Kumily Grama Panchayat. By Ext.P9 order passed on 14.11.2011, the Human Rights Commission directed the Secretary of the Kumily Grama Panchayat and the Kerala State Pollution Control Board to take steps to stop the cardamom processing unit run by the petitioners. Hence this writ petition challenging Ext.P9 and seeking the following reliefs:
"i) Issue a writ of certiorari or any other appropriate writ quashing Exhibit.P9 order passed by the 1st respondent as the same is issued against the provisions of Section 36 of the Human Rights Act 1993.
ii) Issue a writ of mandamus or any other appropriate writ restraining the respondents 2 and 3 from acting pursuant to Exhibit.P9 order passed by the 1st respondent."
3. The main contention raised by the petitioners is that in view of section 36 of the Human Rights Act, 1993, the Commission should not have enquired into Ext.P9 complaint after the expiry of one year from the date on which the act constituting a violation of human rights is alleged to have been committed. Relying on rule 17 of the Kerala State Human Rights Commission (Procedure) Regulations, 2001 it is contended that as the dispute W.P.(C) No.35119 of 2011 4 between the petitioners and the fourth respondent is a civil dispute, the Human Rights Commission ought to have dismissed the complaint.
4. The Environmental Engineer, Kerala State Pollution Control Board, Thodupuzha, the third respondent in the writ petition has filed a report dated 30.1.2012. The relevant portion thereof is extracted below:
"Three sides of the 4th respondent's residence (Complainant of the petitioners unit) are hotel and other commercial establishments. The cardamom drying unit is situated just two meter from the nearest residence (4th respondent). Fire wood is used to produce hot air and with the help of a blower, hot air is supplied to the drier unit where the cardamom is dried. The time required for drying process is 24 hours. The drying capacity of the unit is 1200 kg of green cardamom per day. The total horse power used in the unit is 6.5HP. A diesel generator set of 15 KVA is installed in the unit without acoustic enclosure for noise control. The unit of petitioner is working illegally without Board's consent to operate. The operation of the petitioner's unit causes noise and air pollution problem to the nearest residence (4th respondent). The functioning of the cardamom drying unit in the present location will cause pollution problems in the area, particularly to the residence of 4th respondent and require shifting."
W.P.(C) No.35119 of 2011 5
5. Along with that report, the third respondent has produced a copy of the statement filed by him before the Human Rights Commission. In that report a copy of which is produced as Ext.R3(a), the third respondent had stated that the Kerala State Pollution Control Board has not issued consent to operate the cardamom processing unit and that the functioning of the cardamom processing unit causes sound and air pollution. It was also stated that acoustic enclosures have not been provided to the generator therein and that the cardamom processing unit is working round the clock.
6. The fourth respondent has filed a counter affidavit dated 3.2.2012. In paragraph 3 he has stated that he is residing in a parcel of land approximately 4 cents in extent, that to the south of the said land the petitioners have put up a temporary shed two meters away from his front door and installed five cardamom drier units therein. He has also stated that the cardamom drier units are run using a 6.5 H.P. high speed motor and a 15 K V A capacity diesel generator, that fire wood is used to run the unit round the clock, that there is a winnowing unit W.P.(C) No.35119 of 2011 6 attached for cleaning dried cardamom, that noise, smoke and dust and other pollutants produced are unbearable and result in serious health hazards. Relying on the report filed by the Environmental Engineer of the Kerala State Pollution Control Board, it is contended that the functioning of the petitioners' unit causes air and sound pollution in the locality.
7. I heard Sri.G.Hariharan, learned counsel appearing for the petitioners, Sri.M.Ajay, learned standing counsel appearing for the Kerala State Pollution Control Board and Sri.P.Chandy Joseph, learned counsel appearing for the fourth respondent. I have also gone through the pleadings and the materials on record. The petitioners do not dispute any of the findings and observations made by the Human Rights Commission in Ext.P9 order, which in turn is based on Ext.R3 (a) report filed by the Environmental Engineer of the Kerala State Pollution Control Board. The main ground put forward by the petitioners is that the Human Rights Commission should not have enquired into the complaint one year after it was filed. The only other contention raised is that the dispute between the parties is a civil dispute W.P.(C) No.35119 of 2011 7 and therefore, the Human Rights Commission should have dismissed the complaint. A reading of Ext.P1 plaint discloses that the petitioners had instituted the suit on the allegation that the fourth respondent herein, their neighbour, is attempting to trespass into their lands. They had in the plaint sated that they are running a cardamom store in the suit property. In the light of the averments and allegations in Ext.P1 plaint which has nothing to do with the running of the cardamom processing units, found to be in existence in the property and the pollution caused on account of it, it cannot be said that the Human Rights Commission could not have entertained the complaint, merely for the reason that the petitioners herein, had instituted a suit to prevent trespass into their property. The trespass which is highlighted in the plaint, is different and distinct from the environmental pollution caused on account of the functioning of the cardamom processing unit run in the petitioners' lands. I therefore, find no merit in the contention that the dispute between the parties is a civil dispute and therefore, the Human Rights Commission ought to have dismissed the complaint. W.P.(C) No.35119 of 2011 8
8. The next question is whether as contended by the petitioners the Commission could have enquired into the complaint after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed. On a plain reading of sub-section (2) of section 36 of the Act, the said contention is also liable to be rejected. All that sub-section (2) of section 36 of the Act stipulates is that the Commission shall not enquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed. In the instant case, Ext.P6 complaint was filed on 2.4.2009, even before the petitioners instituted the civil suit. Upon receipt of notice from the Human Rights Commission, the first petitioner entered appearance and filed Ext.P8 objections dated 26.9.2009. It is evident from the materials on record that the act in the instant case is a continuing act, done everyday. The petitioners have no case that one year prior to the date of the impugned order the cardamom processing units were stopped. As the petitioners were running the cardamom processing units even on the day W.P.(C) No.35119 of 2011 9 previous to the date on which Ext.P9 order was passed, I am of the opinion that the mere fact that more than one year had passed after the filing of Ext.P6 complaint, is not a reason to hold that the Commission is deprived of the jurisdiction to pass appropriate orders in the matter.
I accordingly hold that the challenge to Ext.P9 is without merit. The writ petition fails and is dismissed. No costs.
Sd/-
P.N.RAVINDRAN JUDGE /TRUE COPY/ P.A. To JUDGE vpv