Madras High Court
M.Ingaci vs The Commissioner on 1 December, 2011
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/12/2011 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.723 of 2010 And M.P.(MD) No.1 of 2010 M.Ingaci .. Petitioner vs. 1.The Commissioner, Devakottai Municipality, Devakottai, Sivagangai District. 2.The Revenue Divisional Officer, Devakottai, Sivagangai District. 3.The District Pollution Control Welfare Engineer, Madurai. 4.The Deputy Director of Health Services, Sivagangai District. 5.T.Ramasamy .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records relating to the order made in Na.Ka.No.91/08/H1 dated 11.1.2010 passed by the first respondent and quash the same. !For Petitioner ... Mr.D.Sadiq Raja ^For Respondent-1 ... Mr.Pala.Ramasamy For Respondents 2 & 4 ... Mr.M.Alagudevan, Special Government Pleader. For Respondent-5 ... Mr.G.R.Swaminathan :ORDER
The petitioner has come up with the above writ petition, challenging an order of the Devakottai Municipality, calling upon the petitioner to close down the Cement Shop run by him.
2. I have heard Mr.D.Sadiq Raja, learned counsel for the petitioner, Mr.Pala.Ramasamy, learned counsel for the first respondent, Mr.M.Alagudevan, learned Special Government Pleader for respondents 2 and 4 and Mr.G.R.Swaminathan, learned counsel for the fifth respondent.
3. The petitioner is the owner of 4 shops bearing Door Nos.40/1 to 40/4, Church Road, Alagapuri Nagar, Ram Nagar Extension, Devakottai. Each shop is of the measurement of 11 feet x 8 feet. The shops are located to the East of the fifth respondent's house. While Shop No.1 abutting the fifth respondent's house is a grocery shop, Shop No.4 is used by the petitioner for selling cement on retail basis.
4. It appears that the fifth respondent filed a public interest litigation in W.P.No.10799 of 2006, seeking a direction to the Pollution Control Board and the Commissioner of the Municipality to close down the petitioner's shop on the ground that it was causing air pollution. Facing a hostile climate before the Division Bench, the fifth respondent herein withdrew the writ petition. While dismissing the said writ petition W.P.No.10799 of 2006 filed by the fifth respondent, the Division Bench of this Court made certain observations. They are extracted as follows:-
"2. Accordingly, the writ petition is dismissed as withdrawn. Considering the facts and circumstances of the case, we are of the clear view that the present writ petition is a frivolous and vexatious one and the same has been filed by abuse of due process of law. In our opinion, this is the fit case where the petitioner should be mulcted with heavy cost for filing such frivolous petition under the grab of public interest litigation. However, in view of the request made by the learned counsel for the petitioner, we only observe that the petitioner should desist from filing such frivolous and vexatious petition under the grab of public interest litigation. We make it clear that if the petitioner continues to file such frivolous and vexatious petition in future, the same would be viewed seriously and appropriate action would be taken against the petitioner. No costs."
5. After the dismissal of the writ petition, the petitioner has filed a suit in O.S.No.41 of 2007 on the file of the Sub Court, Devakottai against the fifth respondent herein, seeking damages in a sum of Rs.1,05,000/-. The said suit is now pending.
6. Thereafter the fifth respondent filed another writ petition in W.P. No.9066 of 2008, seeking a direction to the Commissioner of the Municipality, the District Environmental Engineer and two other official respondents, to enforce a notice issued by the Deputy Director of Health Services, calling upon the petitioner to shift the godown to a non-residential area. The said writ petition was disposed of by an order dated 6.11.2008, directing the Sub Collector, Sivagangai, to consider the representation of the fifth respondent strictly in accordance with law, after giving opportunity to the petitioner herein. Unfortunately, the writ petition was disposed of at the admission stage, without notice to the petitioner herein, though the petitioner herein was a party to the writ petition.
7. Aggrieved by the order passed behind his back in W.P.No.9066 of 2008, the petitioner filed a Writ Appeal along with a petition to condone the delay. In the meantime, the Commissioner of the Municipality issued a notice dated 17.4.2009, in pursuance of the directions issued in W.P.No.9066 of 2008. By the said notice, the Municipality directed the petitioner to carry out certain alterations.
8. Challenging the notice issued by the Municipality dated 17.4.2009, the petitioner herein filed a writ petition in W.P.No.4214 of 2009. In the said writ petition, an Advocate Commissioner was appointed by this Court, to inspect the shop of the petitioner and to file a report. Thereafter the writ petition was allowed by an order dated 30.10.2009, setting aside the notice dated 17.4.2009 issued by the Municipality and remitting the matter back to the Municipality. The operative portion of the order passed on 30.10.2009 in W.P.No.4214 of 2009 reads as follows:-
"In the result, the writ petition is allowed and the impugned order is set aside and the matter is remitted back to the first respondent with a direction to the first respondent to call for report from the Pollution Control Board, afford sufficient opportunity to the petitioner and also the respondents 5 to 10 herein and then to pass appropriate orders in this regard. In any event, final order shall be passed in this matter, within a period of two months from the date of receipt of a copy of this order."
9. In pursuance of the said order, the Municipality addressed a letter to the Tamil Nadu Pollution Control Board. The District Environmental Engineer of the Pollution Control Board submitted a report on 16.12.2009. On the basis of the said report, the Commissioner of the Municipality passed an order, directing the petitioner to close the Cement Shop, within 7 days. It is as against the said order that the petitioner is before this Court.
10. Before proceeding with the rival contentions, one more fact requires to be taken note of. It is the fact that the petitioner also filed a writ appeal in W.A.No.38 of 2010 against the order passed in W.P.No.4214 of 2009 dated 30.10.2009. As I have pointed out earlier, W.P.No.4214 of 2009 was filed by the petitioner, challenging a notice issued by the Municipality on 17.4.2009. The writ petition was actually allowed, remitting the matter back to the Municipality to seek a report from the Pollution Control Board and to take action. Despite his success in the writ petition, the petitioner filed a writ appeal in W.A.No.38 of 2010. The grievance projected by the petitioner in the said writ appeal was that the action of the Municipality was at the instance of the fifth respondent, who attracted severe criticism by a Division Bench of this Court in the first case filed by him. The said writ appeal was closed by the Division Bench of this Court by an order dated 5.2.2010, expressing displeasure at the manner in which the second writ petition filed by the fifth respondent in W.P.No.9066 of 2008, was disposed of without notice to the petitioner herein. But by the time, the writ appeal came to be disposed of on 5.2.2010, the present writ petition has come to be filed against the impugned order of closure. Therefore, the Division Bench did not consider it fit to grant any relief to the petitioner. The operative portion of the order of the Division Bench dated 5.2.2010 in W.A.No.38 of 2010, reads as follows:-
"We are closing this writ appeal not because we find the grievance of the appellant has no substance but only because of the subsequent events. It is open to the writ appellant to bring to the notice of this Court which hears W.P.(MD) No.723 of 2010 all the grounds available viz., the details set out in the Advocate Commissioner's report and the contradictions that are pointed out between the earlier order and the subsequent order, the order of the Division Bench dated 7.3.2007 in W.P.(MD) No.10799 of 2006 and the fact that the Pollution Control Board had not given any opportunity. We have not given our decision on merits but we had to narrate the facts that led to our closing the appeal. The closing of this Writ Appeal is not to be construed as rejection of the other grounds that are raised in this Writ Appeal and it will not in any way prejudice the writ appellant, while pursuing his remedy in W.P.(MD) No.723 of 2010."
11. Keeping in mind the above background of facts, let us now revert to the grounds on which the petitioner assails the impugned order. The petitioner assails the impugned order of the Municipal Commissioner primarily on two grounds viz., (i) that the order has been passed at the instance of the fifth respondent, who came to be reprimanded by this Court by two Division Benches; and (ii) that the impugned order has been passed in violation of the principles of natural justice.
12. The first objection is no more open to the petitioner to raise. It is true that the fifth respondent was severely warned by the Division Bench of this Court in the first writ petition W.P.No.10799 of 2006, filed by him as a public interest litigation. But in the second writ petition W.P.No.9066 of 2008 filed by the fifth respondent, a single Judge of this Court issued a direction to the respondents 1 to 4 herein to consider the representation of the petitioner and pass orders. This order dated 6.11.2008 passed in W.P.No.9066 of 2008 came under criticism by the Division Bench in W.A.No.38 of 2010, though the writ appeal did not arise out of that order. Actually the writ appeal W.A.No.38 of 2010 arose out of the order passed in W.P.No.4214 of 2009 filed by the petitioner assailing the order of the Municipality dated 17.4.2009. In other words, the order passed in favour of the fifth respondent in W.P.No.9066 of 2008 dated 6.11.2008 was not the subject matter of the appeal W.A.No.38 of 2010. Yet the Division Bench found fault with the decision in W.P.No.9066 of 2008, as it was passed in a routine manner, without even a notice to the petitioner herein.
13. As a matter of fact, the fifth respondent herein was less responsible than the Court itself, for the order passed on 6.11.2008 in W.P.No.9066 of 2008. The fifth respondent had impleaded the petitioner herein as a party to the proceedings. The prayer of the fifth respondent herein in W.P.No.9066 of 2008 was also not for considering his representation and for passing orders. The writ petition filed by the fifth respondent herein was for a larger relief. But unfortunately, this Court ordered the writ petition at the admission stage without notice to the petitioner herein (who was the fifth respondent in that writ petition), granting a smaller relief. Therefore, the petitioner cannot assail the impugned order of the Municipal Commissioner, on the ground that it was brought forth by the fifth respondent herein.
14. As a matter of fact, the petitioner himself is partly to be blamed. The Municipal Commissioner did not call upon the petitioner to close down his shop in the first instance. In the first instance, the Municipal Commissioner gave a different choice to the petitioner. The Municipal Commissioner first issued notice dated 13.1.2009 calling upon the petitioner as to why he should not be directed to shift his shop to a non-residential area, as it was hazardous in terms of Sections 41(1), 43 and 44 of the Public Health Act, 1939. By the said notice dated 13.1.2009, the Municipal Commissioner also pointed out to the petitioner herein that the petitioner had not taken any license from the Municipality in terms of Section 249 of the Tamil Nadu Municipalities Act, 1920.
15. The said notice dated 13.1.2009 was followed by another notice dated 18.2.2009 issued by the Municipality. The contents of the said notice dated 18.2.2009 would show that the Municipality merely called upon the petitioner to make some alterations in his shop and also called upon him to obtain necessary license for carrying on business. The relevant portion of the notice dated 18.2.2009 issued by the Municipal Commissioner is extracted as follows:-
"nkYk; bghJkf;fSf;F Rfhjhuf; nfL Vw;glhjthW jq;fspd; filfspd; tlf;F gf;fk; cs;s thriy K:otpl;L bghJkf;fSf;F ,ila{W ,y;yhj tz;zk; fpHf;F Kfkhf cs;s thry; tHpahf rpkpz;l; tpahghuj;ij elj;jt[k; nkYk; chpkk; bgwhj fhyq;fSf;fhd chpk fl;lzj;ij cldoahf brYj;jt[k; rk;kjpj;jhy; jq;fspd; filf;F chpkk; tHq;FtJ Fwpj;J ghprPyid bra;ag;gLk; vd bjhptpf;fg;gLfpwJ. nkYk; jq;fspd; rk;kjj;ij vGj;J g{h;tkhf ,t;twptpg;g[ fpilj;j 48 kzp neuj;jpw;Fs; bfhLj;J bray;gLkhWk; mwpt[Wj;jg;gLfpwJ. jtWk; gl;rj;jpy; cq;fs; kPJ jkpH;ehL efuhl;rp bghJRfhjhug;gzp kw;Wk; jkpH;ehL efuhl;rp tpjpfspd;go eltof;if bjhlug;gLk;".
16. But the petitioner does not appear to have undertaken the alterations as required by the notice dated 18.2.2009. Therefore, after waiting for more than two months for the petitioner to make some small alterations in his shop, the Municipal Commissioner issued the notice dated 17.4.2009, that became the subject matter of challenge in W.P.No.4214 of 2009. If we look at the contents of the notice dated 17.4.2009 (that was challenged by the petitioner in W.P.No.4214 of 2009), it will be clear that the petitioner was very defiant and he refused even to make small alterations. The relevant portion of the notice dated 17.4.2009 is as follows:-
"1) jq;fspd; rpkpz;l; filfspd; tlf;F gf;fk; cs;s thry; K:lg;glntz;Lk;.
2) fpHf;F Kfkhf cs;s thry; tHpahf rpkpz;l; tpahghuj;ij elj;jpl ntz;Lk;.
3) rpkpz;l; filf;F chpkk; ,y;yhj fhyq;fSf;F fil chpkf;fl;lzk;
brYj;jg;glntz;Lk;.
nkw;fz;l mwpt[iug;go jhq;fs; elf;f rk;kjpj;jhy; kl;Lnk jq;fSf;F fil chpkk; tHq;FtJ Fwpj;J ghprPypf;fg;gLk;. nkYk; ,t;t[j;jput[ fpilf;fg;bgw;w 48 kzp neuj;jpw;Fs; cj;jputpd;go eltof;if nkw;bfhz;L vGj;J g{h;tkhd mwpf;ifia ,t;tYtyfj;jpy; bjhptpf;fg;glntz;Lk;. jtWk; gl;rj;jpy; eltof;if vLf;fg;gLk; vdt[k; mwptpf;fg;gl;oUe;jJ. Mdhy; ehsJ tiu jq;fsplkpUe;J vt;tpj gjpYk; bjhptpf;fg;gltpy;iy. ,dpa[k; fhyjhkjk; bra;ahky; nkw;fz;l mwpt[iug;go eltof;if nkw;bfhz;L 48 kzp neuj;jpw;Fs; ,t;tYtyfj;jpy; mwpf;if bra;a bjhptpf;fg;gLfpwJ. jtWk; gl;rj;jpy; jkpH;ehL efuhl;rp bghJRfhjhu rl;lk; kw;Wk; jkpH;ehL efuhl;rpfs; rl;lk; 1920d;go eltof;if nkw;bfhs;sg;gLk; vd;w tpguKk; ,Wjpahf bjhptpf;fg;gLfpwJ".
17. Interestingly, without making small alterations to the shop, as demanded by the Municipality in its notices dated 13.1.2009, 18.2.2009 and 17.4.2009, the petitioner challenged the last notice on the ground that the Municipal Commissioner did not take the opinion of the Pollution Control Board. It was only on account of this objection taken by the petitioner that W.P.No.4214 of 2009 was allowed by this Court directing the Municipality to take a report from the Pollution Control Board. Therefore, the invitation to the Pollution Control Board to inspect the Cement Shop and to give a report, was the petitioner's own making. Hence, he cannot now denounce the report of the Pollution Control Board on the ground that it goes contrary to the findings accorded by the Advocate Commissioner appointed in W.P.No.4214 of 2009.
18. The relevant portions of the report of the Advocate Commissioner and the report of the District Environmental Engineer may have to be taken note of, before arriving at a conclusion as to which of those reports is more acceptable. The relevant portions of the report of the Advocate Commissioner are as follows:-
"3. The rough sketch No.1 shows that, the Karaikudi-Devakottai main road is approximately 2000 feet distance from the alleged cement stock room. The park is approximately 500 feet distance from the alleged cement stock room. The Balasundaram's property is approximately at 100 feet from the alleged cement stock room. The Sebastian's property is approximately in a distance of 50' from the alleged cement stock room. Mr.Seshu Savarinathan's property is located approximately in a distance of 200' from the alleged cement stock room. The fifth respondent's property and Mr.Antony's property are abutting the petitioner's property, but distance from the cement stock room to the fifth respondent's house is 30' approximately and Mr.Antony's property is quite away at a distance of 60' from the stock room. The school ground and pastoral bungalow are too far from the alleged cement stock room in a distance of 200' and 500' respectively. The said Ram Nagar is a newly developing area with proper lay outs and roads. Wherein maximum plots are not utilised by their title holders. There are number of vacant sites around the alleged cement stock room.
4. The cement stock room as shown in rough sketch:2, a small shop room in a size of 11'x8', which is located as corner having two side road accesses. The loading and unloading of cement stocks by the petitioner are took place in the two roads junction only, then only loading and unloading is free, hence the said process is quite away from the fifth respondent's property. The other habitants in the locality except the fifth respondent have said no-disturbances caused by the petitioner through his cement business. I have recorded the same from J.Balasundaram, J.Vincent, Sebastian, Seshu Savarinathan, Anthony and few through passers.
5. I have also seen that the cement dusts were not found in trees, plants, in both petitioner's as well as the fifth respondent's one. For this fifth respondent has said that, rain washed them, but apparently there seems no-rain at all in the said surrounding place in recent days. Hence the version of fifth respondent as to rain and wash, are not acceptable. The neighbours of the petitioner and fifth respondent are narrating uniformly that, frequent quarrels between the fifth respondent and petitioner is alone be the cause of action for number of petition wars and finally before the Hon'ble High Court of Judicature. It is also noted that the petitioner's property in an extent of 6 cents in total; abutting the fifth respondent's property. The petitioner also told that, while he initiated steps to build in the vacant site rear side of the shops, the fifth respondent started quarrel with him. Due to the continuous quarrel, he stopped construction proposal till the disposal of the writ petition. Where it is found that the petitioner's vacant site is having separate cross roads at its eastern and southern sides. There also disturbances may not happen to fifth respondent.
6. Hence, in all, I can summarise that, there are no cement dusts found in trees, plants, bushes, buildings etc. Further I parked my car in front of the fifth respondent house for more that 4 hours. I can able to see only the red sand dust from road and no cement dusts found. The fifth respondent also agreed that red-sand dusts are found in the compound walls of his property. Further he pointed out dusts found in his T.V., sofa, table etc., but he is unable to reply me to my question as to why there were no dusts found in window grills? Hence, the cement stocks in shop 4 (as shown in sketch: 2) is not causing disturbance to the fifth respondent's property.
Except Mr.T.Ramasamy, others said no objection and no disturbances caused due to the petitioner's cement stock room. Mr.Antony the neighbour of T.Ramasamy has stated only on airy days cement dusts may come, like Road dusts. The others have unanimously stated that the complaint of T.Ramasamy is only based on his personal ill-will as against the petitioner and nothing else."
19. The relevant portion of the report of the District Environmental Engineer is as follows:-
"It was observed that the cement godown is located in the developing residential area. The cement godown is surrounded by residential houses in southern, western and northern sides. The complainant Thiru Ramasamy house is located very adjacent to this cement godown cum sales depot in the western side. The loading and unloading of cements from lorries were carried out in the northern side of the cement shop, which is located 20 feet from the complainant's house.
During unloading and loading of cement bags to the godown from lorry and godown from vehicles there is every possibility for the generation of dust from the handling of cement bags, when the wind blows from east to west direction, it will be carried out and deposited in the complainant's house through doors and windows.
Even as per Municipality's direction dated 17.4.2009, the entrance of the shop will be changed in the eastern direction and there is a possibility of arising dust emission from loading and unloading of cement bags since in the eastern direction there is a vacant land is existing between the complainant's house and cement godown through the dust emission will be directly carried out and deposited through the windows into the complainant's kitchen and hall. Hence, as per observation, there is every possibility of generation and deposition of dust emission from the cement shop while transferring of cement bags to the godown and from the godown. Even though, it is temporary and occurred in short duration the generation and deposition of cement dust will be possible in the complainant's house.
By observation, the area is also developing residential area, the existence of this cement godown will be definitely a nuisance to the nearby public.
Hence, it is recommended that this cement shop may be vacated from the residential area."
20. Between the report of an Advocate Commissioner and that of the District Environmental Engineer, the Court is to prefer the latter. An Advocate Commissioner is no expert in matters relating to pollution. But the District Environmental Engineer of the Pollution Control Board who is the third respondent herein, is an expert, who is specially assigned the task of protecting the environment from pollution. Therefore, the report of the District Environmental Engineer is more credible and acceptable than that of an Advocate Commissioner. Between the reports of an expert and a lay man, the Court should prefer only the report of the expert. Therefore, the petitioner cannot assail the impugned order of the Municipal Commissioner either on the ground that the fifth respondent was originally instrumental in bringing the present state of affairs or on the ground that the report of the Advocate Commissioner paints a better picture than that of the Pollution Control Board.
21. The second ground on which the petitioner assails the impugned order is that it has been passed in violation of the principles of natural justice, without giving him a copy of the report of the Pollution Control Board.
22. The impugned order does not show whether or not the petitioner was furnished a copy of the report of the District Environmental Engineer and his objections invited before the impugned order was passed. But the report of the District Environmental Engineer dated 16.12.2009 shows that at the time of inspection by the District Environmental Engineer on 15.12.2009, the petitioner was present. In other words, the inspection was carried out in the presence of the petitioner. In the affidavit in support of the writ petition, the petitioner does not dispute the statement that the inspection by the District Environmental Engineer was carried out in his presence. If inspection by the District Environmental Engineer had been carried out behind the back of the petitioner or during his absence from the spot, then the petitioner can complain. But the petitioner was present at the time of inspection. Therefore, the furnishing of a copy of the report of the Pollution Control Board, before the impugned order was passed, would not have made any difference. As a matter of fact, the inspection by the District Environmental Engineer was invited by the petitioner, by taking an objection to the notice issued to the Municipality in his writ petition W.P.No.4214 of 2009. Therefore, the contention that the impugned order was violative of the principles of natural justice, does not hold good.
23. The last contention of the petitioner is that the report of the District Environmental Engineer speaks only of the possibility of pollution. It does not record a positive finding that there is pollution. Therefore, it is contended by the petitioner that the first respondent should not have gone by the same.
24. But in matters relating to pollution, the Courts have consistently applied the "precautionary principle". As pointed out by the Supreme Court in M.C.Mehta vs. Union of India {1997 (3) SCC 715}, the precautionary principle has been accepted as part of the law of the land and the State has a mandate under Articles 21, 47, 48-A and 51-A(g) of the Constitution to protect and improve the environment. The fundamental premise on which the precautionary principle is developed, is that "the State Government is obliged to anticipate, prevent and attack the causes of environment degradation". An important aspect of the law relating to environment protection is that if two views are possible, the one that would not expose the environment to the danger of pollution or the one that would not alter the status quo, is to be preferred. To prevail upon the Court not to take such a view, the person establishing the industry has to show that there is no possibility of pollution. In other words, the burden of proof is only on the polluter and not on the member of the public. Therefore, the opinion expressed by the District Environmental Engineer that there is a possibility of pollution, is sufficient to uphold the order of the Municipal Commissioner.
25. There are two more aspects. One is that the petitioner has 4 shops located in a row. One of them is used for retail sale of cement. Another shop is used for selling grocery items. If the contention of the petitioner that there are only very few residential houses in the locality is true, he would not be running a grocery shop there. In any case, I cannot imagine how the grocery items sold by the petitioner will be fit for human consumption, when a cement shop is located adjoining the same. Therefore, the action taken on grounds of public health, cannot be found to be faulty.
26. The second aspect is that according to the Municipal Commissioner, the petitioner has not even obtained a license under the Tamil Nadu District Municipalities Act, 1920. This fact is indicated in all the notices issued by the Municipality, dated 13.1.2009, 18.2.2009, 17.4.2009 and 11.1.2010. A person who has not complied with the statutory requirement to obtain a license from the local body, before commencing business, cannot seek a discretionary remedy under Article 226 of the Constitution.
27. The argument that the impugned order offends the fundamental right under Article 19(1)(g) does not appeal to me. The fundamental right of the petitioner is subject to the fundamental rights of the members of the public at large. Therefore, the restrictions imposed in the name of public health and environment protection, cannot be very lightly interfered with.
28. Therefore, I find no merits in the writ petition and hence it is dismissed. There will be no order as to costs. Consequently connected miscellaneous petition is also dismissed.
Svn To
1.The Commissioner, Devakottai Municipality, Devakottai, Sivagangai District.
2.The Revenue Divisional Officer, Devakottai, Sivagangai District.
3.The District Pollution Control Welfare Engineer, Madurai.
4.The Deputy Director of Health Services, Sivagangai District.