Kerala High Court
Nisha M.G vs Corporation Of Kochi
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 25TH DAY OF AUGUST 2017/3RD BHADRA, 1939
W.P(C).No.13865 of 2017 (G)
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PETITIONER(S):-
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NISHA M.G., AGED 38, W/O UNNIKRISHNAN,
PROPRIETRIX, M/S. SAI BHAGYA COLOUR PROCESSING,
ROOBIYAN BUILDING, 66/1975, ARAGATHU ROAD,
PULLEPADY, ERNAKULAM NORTH PO, PIN. 682 018.
BY ADVS.SRI.S.RENJITH
SRI.K.R.PRATHISH
RESPONDENT(S):-
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1. CORPORATION OF KOCHI,
PARK AVENUE ROAD, ERNAKULAM,
KOCHI. 682 011, REP. BY ITS SECRETARY.
2. KERALA STATE POLLUTION CONTROL BOARD,
REP. BY THE CHIEF ENVIRONMENTAL ENGINEER,
DISTRICT OFFICE, GANDHI NAGAR, ERNAKULAM.682 020.
ADDITIONAL 3RD RESPONDENT IMPLEADED:
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ADDL.R3. K.P.JOSEPH, AGED 76 YEARS, S/O.POULOSE,
KACHAPALLY HOUSE, ARANGATH ROAD, PULLEPADY,
ERNAKULAM NORTH P.O., PIN - 682 018,
ERNAKULAM DISTRICT.
ADDITIONAL 3RD RESPONDENT IS IMPLEADED AS PER ORDER ON
I.A.NO.10573 OF 2017 DATED 4.8.17.
R1 BY STANDING COUNSEL SRI.SHIBU JOSEPH.
R BY SRI.P.K.SOYUZ,SC,COCHIN CORPORATION.
R2 BY STANDING COUNSEL SRI. T.NAVEEN.
ADDL.R3 BY ADVS. SRI.M.V.JOHN
SRI.RENJU JOHN
SRI.B.JAYAPARAKASH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.13865 of 2017 (G)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXHIBIT P1 COPY OF THE RECEIPT REMITTING FOR FEE FOR D & O LICENSE FOR
THE PERIOD OF 2016-2017 DATED 29.02.2016.
EXHIBIT P2 COPY OF THE NOTICE DATED 30.04.2016 ISSUED BY THE HEALTH
OFFICER OF CORPORATION OF KOCHI.
EXHIBIT P3 COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE EXT.P2
NOTICE DATED 10.05.2016.
EXHIBIT P4 COPY OF THE RECEIPT EVIDENCING THE ACKNOWLEDGEMENT OF EXT.P3
REPLY ISSUED BY THE RESPONDENT DATED 12.05.2016.
EXHIBIT P5 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE
THE SECRETARY, CORPORATION OF KOCHI.
EXHIBIT P6 COPY OF THE RECEIPT EVIDENCING THE ACKNOWLEDGEMENT OF EXT.P5
APPLICATION ISSUED BY THE RESPONDENT DATED 25.02.2017.
EXHIBIT P7 COPY OF THE LETTER DATED 22.03.2017 ISSUED BY THE HEALTH
OFFICER.
RESPONDENT(S)' EXHIBITS:-
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EXHIBIT R3(a) TRUE COPY OF REPORT DATED 06.10.2015 OF THE VILLAGE
OFFICER, ERNAKULAM VILLAGE.
EXHIBIT R3(b) TRUE COPY OF ORDER NO.D-8498/15/L.DIS. DATED
23.12.2015 ISSUED BY THE REVENUE DIVISIONAL OFFICER,
FORTKOCHI.
EXHIBIT R3(c) TRUE COPY OF ORDER IN M.C.3/17/D(D-4370/16)
DATED 03.05.2017 OF THE SUB DIVISIONAL MAGISTRATE,
FORTKOCHI.
EXHIBIT R3(d) TRUE COPY OF SHOW CAUSE NOTICE BEARING
NO.PCB/EKM/D0-1/CC44/15 DATED 15.12.2015 ISSUED BY
THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION
CONTROL BOARD.
Vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C).No.13865 of 2017-G
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Dated this the 25th day of August, 2017
JUDGMENT
The petitioner was before this Court challenging Exhibit P7 order issued by the Municipal Corporation. The petitioner admittedly is conducting a Colour Processing unit, which is engaged in printing works inter alia of vinyl flex, etc. The petitioner's contention in the writ petition was that she was having a D&O Licence issued by the Corporation all-through the years till 2016-17. To evidence the same, the petitioner has also produced copy of the receipt for payment of licence fee, at Exhibit P1. The petitioner then was issued with Exhibit P2 by the Corporation, alleging that there was pollution caused by the unit. The said notice was also on the complaint of the additional 3rd respondent. The petitioner filed a detailed objection at Exhibit P3, pointing out that the petitioner is carrying on only a printing unit with 2 printers and 6 computers and there is no pollution caused; nor is there any necessity for a Consent to Establish, or Operate, from the Kerala State Pollution Control Board [for brevity "PCB"]. Despite that, WP(C) No.13865 of 2017 - 2 - the petitioner was issued with Exhibit P7, is the contention raised in the writ petition.
2. The additional 3rd respondent impleaded himself in the writ petition and filed a counter affidavit. The said counter affidavit indicates that the additional 3rd respondent had also initiated a proceeding before the Revenue Divisional Officer [for brevity "RDO"] under Section 133 of the Code of Criminal Procedure [for brevity "Cr.P.C."] in the year 2015 itself. Exhibit R3(c) preliminary order under Section 133 of the Cr.P.C. is issued by the RDO. The petitioner had not impleaded the additional 3rd respondent despite the notice from the Corporation indicating the proceedings having been initiated on his complaint. There is clear abuse of process of Court and suppression of material facts which led this Court to grant an interim order allowing the petitioner's unit to be continued, argues the learned Counsel.
3. The PCB has also appeared and on instructions, it is submitted that as per Circular No.PCB/T4/115/97(3) dated 31.08.2016 flex printing units were brought under industrial categorization. Such units are also categorised as "Orange", which WP(C) No.13865 of 2017 - 3 - requires a Consent to Establish and Operate from the PCB. Since the petitioner's unit had commenced operation before the Circular, it requires a Consent to Operate. The PCB is also said to have issued a notice, No.PCB/EKM/DO-1/CC-44/15 dated 15.12.2015 to the petitioner's unit. The said notice is also produced by the additional 3rd respondent as Exhibit R3(d)-2. The contention of the petitioner is that it was issued in the name of her husband and it was not in her name. The petitioner, however, does not deny that she was informed of such a notice. No reply has been filed to the counter affidavit to the specific averments made by the additional 3rd respondent. This leads to a further instance of suppression of material facts, argues the learned Counsel.
4. The order under Section 133 Cr.P.C. was issued only after the writ petition was filed. The notice of the PCB was issued far earlier. The petitioner admittedly does not have a Consent to Operate from the PCB. The petitioner's unit shall be stopped forthwith. The Secretary of the Corporation shall ensure that the petitioner does not carry on any activity in the unit till Consent to Operate is obtained from the PCB. The petitioner, if so advised, shall file an application WP(C) No.13865 of 2017 - 4 - for Consent to Operate before the PCB and the Environmental Engineer shall hear the petitioner and the additional 3rd respondent before such application for Consent to Operate is considered. The PCB shall also inspect the premises to ascertain whether any pollution is caused as alleged. If Consent to Operate is issued, and pollution is occasioned on the operation of the unit, the additional 3rd respondent would be entitled to approach the PCB, which shall be looked into by the PCB.
The writ petition is dismissed with the above directions.
Sd/-
K.Vinod Chandran Judge.
Vku/-
[ true copy ]