Kerala High Court
Gopinathan N.M vs State Of Kerala on 4 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941
WP(C).No.34406 OF 2019(A)
PETITIONER/S:
1 GOPINATHAN N.M.,
AGED 41 YEARS
S/O.VELAYUDHAN, MUTHAM VATHUKKAL HOUSE, VAYALAR P.O.,
CHERTHALA - 688 524.
2 OUSEPH,
AGED 59 YEARS
S/O.PALIO, THURATHIL, VAYALAR P.O., CHERTHALA - 688
524.
BY ADVS.
SRI.V.JOHN MANI
SRI.S.JAYANT
SHRI.VARGHESE SABU
SMT.MANJU ELSA ISAC
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY, DEPARTMENT OF HEALTH AND
FAMILY WELFARE, ROOM NO.693, 6TH FLOOR, ANNEXE II,
SECRETARIAT, TRIVANDRUM - 695 001.
2 DISTRICT COLLECTOR,
ALAPPUZHA DISTRICT, 1ST FLOOR, COLLECTORATE, CIVIL
STATION, ALAPPUZHA, KERALA - 688 001.
3 ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD, ALAPPUZHA
DISTRICT OFFICE, AMC/X/501, THATHAMPALLY P.O.,
ALAPPUZHA - 688 013.
4 REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, OPP. TO DISTRICT COURT
COMPLEX, SH40, THODANKULANGARA, ALAPPUZHA - 688 013.
5 PANCHAYAT SECRETARY,
VAYALAR GRAMA PANCHAYAT, KERALA - 688 536.
6 NANDAKUMAR,
MAMGALAYI PADATH, KALAVANKODAM P.O., CHERTHALA,
WP(C).No.34406 OF 2019(A) 2
ALAPPUZHA - 688 524.
7 GEORGE KUTTY,
KUZHIPALLITHARA, KALAVANKODAN P.O., CHERTHALA,
ALAPPUZHA - 688 524.
8 ADDL R8, JINO.K.GEORGE,
SON OF GEORGE KUTTY, KUZHIPALLITHARA, KALAVANKODAN
P.O, CHERTHALA, ALAPPUZHA-688 524
ADDL R8 IMPLEADED AS PER ORDER DATED 11-02-2020 IN
IA NO.3/20.
R5 BY ADV. SRI.BRIJESH MOHAN
R5 BY ADV. SRI.R.RAJPRADEEP
R6 BY ADV. SRI.LAL K.JOSEPH
R6 BY ADV. SRI.A.A.ZIYAD RAHMAN
R6 BY ADV. SRI.V.S.SHIRAZ BAVA
R7 BY ADV. SRI.JOBY CYRIAC
R7 BY ADV. SHRI.KURIAN K JOSE
OTHER PRESENT:
SRI.JESTIN MATHEW, GOVT.PLEADER, SRI.T.NAVEEN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.34406 OF 2019(A) 3
ALEXANDER THOMAS, J.
-----------------------------------------
W.P.(C.) No. 34406 of 2019
-----------------------------------------
Dated this the 4th day of March, 2020
JUDGMENT
The case set up in the W.P.(C.) is as follows :
That the petitioners herein are aggrieved by the non-consideration of Ext.P4, P5, P6 by 2nd, 3rd and 4th respondents respectively requesting them to take action against 2 peeling sheds operating under the ownership of 6 th and 7th respondents in Uzhuvanpullanchira Keraladityapuam Road polluting the land and adjoining water bodies and creating nuisance for the petitioners and other residents of the place. There is no waste storage, management or scientific treatment plant in this shed and the untreated waste is let out to the land and nearby Uzhuvanpullanchira backwaters.
This backwaters is used by residents to take bath and for other purposes.
Now, the residents are having various skin diseases. The indiscriminate dumping of waste on the land causes pollution to the ground water and the residents in the area are forced to consume polluted water now. The waste from the peeling shed is creating foul order and is a breeding ground for vectors like mosquito, houseflies etc. It is understood that the peeling shed of 6th respondent have operated with consent from Pollution Control Board WP(C).No.34406 OF 2019(A) 4 at some occasions. However, majority of the time he has operated the shed without renewal of consent and not following the conditions under which the consent was granted. The peeling shed of 7 th respondent have been operating without any consent from the Pollution Control Board in past one year. He obtained consent from pollution control board most recently and continued operating the shed without getting other necessary approval for a peeling shed. This has been brought to the notice of 3 rd, 4th and 5th respondents but there have been no action from their part.
2. In the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers :
(i) To issue a writ in the nature of mandamus or such other writ, order or direction directing the 2nd, 3rd , 4th and 5th respondents to stop the operation of the peeling shed operated by the 6th and 7th respondents.
(ii) To issue a writ in the nature of mandamus or such other writ, order or direction direct 2nd, 3rd, 4th and 5th respondents to take appropriate action against the peeling shed under the ownership of 6th and 7th respondents.
(iii) To issue a writ in the nature of mandamus or such other writ, order or direction directing the 3rd, 4th and 5th respondents to consider Ext.P4. Ext.P5 and Ext.P6 respectively and pass orders on it within a timeframe to be fixed by this Hon'ble Court.
(iv) To issue such other writs or pass such orders as this Hon'ble Court deems fit in the interests of justice."
3. The 5th respondent has filed a counter affidavit dated 22.2.2020 and paragraphs 3 and 4 of the said counter affidavit reads as follows :
"With regard to the averments in paragraphs 1 to 5 of the writ petition, it is most humbly submitted that the prawn peeling sheds are in Vayalar Grama Panchayat and that when complaints were received in the office of this respondent, immediate steps were taken in the matter and hence, the allegation of inaction from this respondent's side is not true. Upon enquiry, it was found that these two peeling sheds were functioning without license from the Grama Panchayath and that, even though the peeling shed of the 7 th respondent is having the valid NOC from the Kerala State Pollution Control Board. The peeling shed of the 6 th respondent was not having a valid consent to operate issued by the Pollution Control Board and the Panchayat licence as well. So stop memos were issued to both the 6 th and 7th respondents on 25.11.2019 by WP(C).No.34406 OF 2019(A) 5 this respondent Grama Panchayath, copy of which is produced herewith and marked as Exts.R5(a). The peeling shed of the 6 th respondent is having a name board of Sea King Marines and that of the 7th respondent is named as J.S.Marines. On 26.11.2019, the petitioner herein filed another complaint before the Panchayath about the illegal functioning of the peeling shed of the 6 th respondent and another person filed a complaint against the functioning of the peeling shed of the 7 th respondent. Again on 12.12.2019, the petitioner herein filed another complaint before the Panchayath. Based on these complaints, the Medical Officer, Primary Health Centre, Vayalar, was asked to submit a report about the functioning of these peeling sheds. The Medical Officer reported that the peeling shed of the 6 th respondent is functioning without Effluent Treatment Plant and proper waste disposal facilities, whereas, the peeling shed of the 7th respondent is functioning satisfactorily as per the guidelines of Pollution Control Board in this regard. The Panchayath also sought reports from the 3 rd respondent in this regard. The 3rd respondent on 24.12.2019 replied that the peeling shed of the 7 th respondent is functioning satisfactorily with a valid consent from the Pollution Control Board, whereas the peeling shed of the 6 th respondent is functioning without a valid consent from the Pollution Control Board and that there are no sufficient facilities to dispose the waste in the peeling shed. As already stated, the Panchayath has already issued stop memos to these two peeling sheds for the violation of S.232 of the Kerala Panchayath Raj Act, 1994.
With regard to the averments in paragraphs 6 to 10 of the writ petition, it is most humbly submitted that after the issuance of Stop Memo to the peeling sheds of respondents 6 and 7, this respondent also sought the help of the Police for the closure of these units on 16.12.2019. By that time the petitioner filed this writ petition. As submitted earlier, upon enquiry it was found that the peeling shed of the 6 th respondent was functioning violating the guidelines of the Pollution Control Board and S.232 of the Kerala Panchayath Raj Act, 1994. Though the unit of the 7 th respondent is following the guidelines of the Kerala State Pollution Control Board, it is functioning without a proper licence from the Panchayath. Later on 28.12.2019, one Mr.Jino K George submitted an application for licence to the very same peeling shed. On enquiry, it was revealed that the 7th respondent is the owner of the land and his son Jino K George is running the peeling shed with his consent. When verified with the SANCHAYA SOFTWARE (A software developed by the Information Kerala Missions, a Government of Kerala Undertaking and used to record the details of the buildings in the Panchayath area which otherwise, can be regarded as the electronic version of the assessment register of buildings in the Grama Panchayath), it was found that the Building No.9/218A is recorded as a motor shed having a plinth area of 4.08 M2. A verification at the site of the peeling shed in Sy.No.103/3A3 of Vayalar Village revealed that the 7th respondent has constructed 4 more buildings in the land illegally without any building permit from the Panchayath. The plinth area of the peeling shed is 104.11 M2, office room with 5.25M2 area and a kitchen and toilet with plinth area of 18.1 and 5M2 respectively. It is found that all buildings except the peeling shed are constructed violating Rule 27 of the Kerala Panchayath Building Rules, 2011. even though the land wherein the new peeling shed is constructed is included as paddy land in the revenue records, it is not included in the Data Bank. So the 7 th respondent has violated the provisions of Section 235 F of the Kerala Panchayath Raj Act, 1994, Rule 7 of the Kerala Panchayath Building Rules, 2011 and Section 3 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. On 22.1.2020 the 6 th respondent was asked to apply for the regularisation of his peeling shed."
4. Heard Sri.V.John Mani, learned counsel appearing for the petitioners, Sri.Jestin Mathew, learned Government Pleader appearing for WP(C).No.34406 OF 2019(A) 6 respondents 1, 2 and 4, Sri.T.Naveen, learned standing counsel appearing for Kerala State Pollution Control Board (R3), Sri.R.Raj Pradeep, learned counsel appearing for R5 (Grama Panchayath), Sri Ziyad Rehman, learned counsel appearing for 6th respondent and Sri.Joby Cyriac, learned counsel appearing for respondents 7 and 8.
5. The learned counsel appearing for the petitioner and the learned counsel appearing for the 1 st respondent Panchayat has made submissions in tune with the respective pleadings in the matter, whereas Sri.Ziyad Rehman, learned counsel appearing for R6 would submit that R6 has obtained the requisite statutory consent to operate the peeling unit from the 3rd respondent Kerala Pollution Control Board and their applications of D&O licence is pending with the 5 th respondent Panchayat and the same has now been acted upon by the said Panchayat. Sri.Joby Cyriac, learned counsel appearing for R7 and R8 would submit that the said parties should be treated to have obtained deemed permit since their application for licence has not been acted upon by the 5 th respondent Panchayat within the stipulated time and further that the said parties have also obtained the statutory consent from the respondent State Pollution Control Board etc.
6. Taking note of the facts and circumstances of this case, it is ordered that the 3rd respondent Environmental Engineer Kerala State WP(C).No.34406 OF 2019(A) 7 Pollution Control Board will immediately file a report before the Secretary of the 5th respondent Vayalar Grama Panchayat as to whether R6, R7 and R8 have obtained statutory consent to operate the peeling unit from the State Pollution Control Board and the further details of the matter including the copies of the consents, if any should also be appended along with the said report. The report in this regard should be submitted by the 3rd respondent to the 5th respondent within 10 days from the date of receipt of a certified copy of this judgment. Thereafter, 5th respondent the Secretary of the Vayalar Grama Panchayat will examine the complaint of the petitioners as made out in Ext.P6 and should afford reasonable opportunity of being heard to the petitioners as well as respondents 6 to 8 and take a considered decision in the matter, without much delay, preferably within a period of 4 weeks from the date of receipt of the report as aforestated from the 3rd respondent Environmental Engineer, Kerala State Pollution Control Board.
With these observations and directions, the above W.P.(C) will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE SKS WP(C).No.34406 OF 2019(A) 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF PHOTOGRAPHS OF PEELING SHED UNDER THE OWNERSHIP OF 6TH RESPONDENT.
EXHIBIT P2 A TRUE COPY OF PHOTOGRAPHS OF PEELING SHED UNDER THE OWNERSHIP OF 7TH RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE RTI REQUEST DATED
26/11/2019 FILED BY THE PETITIONER BEFORE
THE 5TH RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION MADE
BEFORE THE 3RD RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION MADE
BEFORE THE 4TH RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION MADE
BEFORE THE 5TH RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE PETITION SIGNED BY THE
RESIDENTS OF THE AREA.
EXHIBIT P8 A TRUE COPY OF THE RTI REPLY DATED
21.12.2019 BY THE 5TH RESPONDENT TO THE 1ST
PETIONER
EXHIBIT P9 A TRUE COPY OF THE RTI REQUEST MADE BEFORE
THE 5TH RESPONDENT DATED 12.12.2019
EXHIBIT P10 THE REPLY GIVEN BY THE 5TH RESPONDENT DATED
4.1.2020
EXHIBIT P11 A TRUE COPY OF THE RTI REQUEST DATED
15.12.2019 FILED BY THE PETITIONER BEFORE
THE MEDICAL OFFICER,PRIMARY HEALTH CENTRE
VAYALAR.
EXHIBIT P12 A TRUE COPY OF THE REPLY NO-391/2020 DATED
14.1.2020 BY THE PUBLIC INFORMATION
OFFICER, PRIMARY HEALTH CENTER,VAYALAR.
EXHIBIT P13 THE INVESTIGATION REPORT DATED 27.3.2011
SUBMITTED BY THE OFFICER OF POLLUTION
CONTROL BOARD, ALAPPUZHA AFTER VISITING THE
SITE OF PEELING SHED OF THE 6TH RESPONDENT.
WP(C).No.34406 OF 2019(A) 9
EXHIBIT P14 A TRUE COPY OF THE RENEWAL OF CONSWNT FILE
NO-PCB/ALP/UCO DATED 5.2.2013 ISSUED BY THE
3RD RESPONDENT TO THE 6TH RESPONDENT TO THE
6TH RESPONDNET.
EXHIBIT P15 A TRUE COPY OF THE INSPECTION REPORT DATED
25.3.2015 MADE BY THE OFFICERS OF POLLUTION
CONTROL BOARD,ALAPPUZHA.
EXHIBIT P16 A TRUE COPY OF THE RENEWAL OF INTEGRATED
CONSENT TP OPERATE FILE NO-PCB/ALP/UCO-
118/07 DATED 29.6.2015 ISSUED BY THE 3RD
RESPONDENT TO THE 6TH RESPONDENT
EXHIBIT P17 A TRUE COPY OF THE REPLY DATED 20.12.2019
FROM THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P18 A TRUE COPY OF THE NOTICE GIVEN BY THE 3RD
RESPONDENT TO THE 6TH RESPONDENT DATED
20.12.2019
EXHIBIT P19 A TRUE COPY OF THE COMPLAINT DATED 3.1.2020
BEFORE THE 4TH RESPONDENT
EXHIBIT P20 A TRUE COPY OF THE RTI REQUEST DATED
28.12.2019 SUBMITTED BEFORE THE 5TH
RESPONDENT
EXHIBIT P21 A TRUE COPY OF THE REPLY NO-C2-8723/19
DATED 15.1.2020 BY THE 5TH RESPONDENT
EXHIBIT P22 A TRUE COPY OF THE RTI APPLICATION DATED
28.12.2019 FILED BY VARGHESE JOSEPH BEFORE
THE VILLAGE OFFICER, VAYALAR EAST (ALONG
WITH ENGLISH TRANSLATIONS)
EXHIBIT P23 A TRUE COPY OF THE REPLY NO-1/20 DATED
28.1.2020 BY THE VILLAGE OFFICER, VAYALAR
EAST (ALONG WITH ENGLISH TRANSLATIONS)
RESPONDENT'S/S EXHIBITS:
EXHIBIT R5A COPY OF THE STOP MEMO VIDE N0.C2-6278/19
DATED 25.11.2019 ISSUED TO THE RESPONDENTS
6 AND 7
EXHIBIT R5 B COPY OF THE LETTER VIDE NO. C2-8720/19
DATED 22.01.2020 ISSUED BY THE PANCHAYAT TO
SRI.JINO K GEORGE
EXHIBIT R6 A TRUE COPY OF THE LATEST 'INTEGRATED CONSENT
WP(C).No.34406 OF 2019(A) 10
TO OPERATE' VALID UP TO 30.6.2023, ISSUED
BY THE 3RD RESPONDENT
EXHIBIT R6 B TRUE COPY OF PHOTOGRAPHS OF THE EFFLUENT
TREATMENT PLANT.
EXHIBIT R6 C TRUE COPY OF THE LETTER SENT TO THE 3RD
RESPONDNET PCB.
EXHIBIT R6 D TRUE COPY OF THE APPLICATION FOR THE
LICENSE FROM THE PANCHAYAT ON 30.12.2019.
EXHIBIT R6 E TRUE COPY OF THE RECEIPT FROM THE PANCHAYAT
EVIDENCING THE RECEIPT OF THE APPLICATION