Kerala High Court
Lijesh M.P vs The Pallippuram Grama Panchayat on 30 May, 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
MONDAY, THE 31ST DAY OF JULY 2017/9TH SRAVANA, 1939
WP(C).No. 40753 of 2016 (T)
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PETITIONER:
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LIJESH M.P,
S/O.PUSHKARAN,AGED 26 YEARS,
EDAKKATT HOUSE,
CHERAI, PALLIPPURAM, ERNAKULAM DISTRICT.
BY ADVS.SRI.M.SHAJU PURUSHOTHAMAN
SRI.K.S.RAJESH
RESPONDENT(S):
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1. THE PALLIPPURAM GRAMA PANCHAYAT,
REP. BY ITS SECRETARY,
CHERAI P.O., PIN - 683 514.
2. THE SECRETARY,
PALLIPPUAM GRAMA PANCHAYAT,
CHERAI P.O., PIN - 683 514.
3. THE DISTRICT MEDICAL OFFICER,
ERNAKULAM DISTRICT - 682 035.
4. THE MEDICAL OFFICER/HEALTH SUPERVISOR COMMUNITY HEALTH
CENTRE, MALIPPURAM, ERNAKULAM DISTRICT,
PIN - 682 511.
5. THE CHIEF ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
GANDHI NAGAR,
KOCHI, PIN - 682 020.
6. BALAKRISHNA ,
S/O VAMANAKINI, "PREMA NIVAS", RAMESWARAM VILLAGE,
KOCHI, TALUK.682034.
8 ADDL R7 TO R11 IMPLEADED
7. AYYAPPAN P.N,
S/O NARAYANAN, PANDAPARAMBIL, AGED 70 YEARS,
CHERAI, PALLIPPURAM.
8. KAVITHA RAJESH,
D/O SUNDARAN, 41 YEARS, PANDAPARAMBIL HOUSE,
CHERAI, PALLIPPURAM.
WP(C).No. 40753 of 2016 (T)
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9. SHALESH C.S
S/O SURESH, AGED 31 YEARS, CHAKKAMURIHOUSE,
CHERAI, PALLIPPURAM.
10. VISHNU M.G,
S/O GOPALAN, MANNUCHIRANIKATHIL HOUSE,
H.NO.464A, CHERAI, PALLIPPURAM.
11. P.RAJEEV,
S/O PRABHAKARAN, AGED 54 YEARS,
POYKAYI PUTHENVEEDU, CHERAI, PALLIPPURAM.
* ADDL R7 TO R11 IMPLEADED AS PER ORDER DATED 30/5/2017
IN IA NO 8039/2017
R1,R2 BY ADVS. SRI.T.A.SHAJI (SR.)
SMT.NAMITHA JYOTHISH
R3-R4 BY ADV. GOVERNMENT PLEADER SRI RAVIKRISHNAN
R5 BY ADV. SRI.NAVEEN.T
R6 BY ADVS. SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SRI.P.U.VINOD KUMAR
SRI.MITHUN BABY JOHN
SRI.J.RAMKUMAR
SMT.AMRIN FATHIMA
R7 TO R11 BY ADV. SRI.K.T.POULOSE (KORATTY)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 31-07-2017,ALONG WITH WPC 25285/2017 THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
K.V.
WP(C).No. 40753 of 2016 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 THE TRUE COPY OF THE PHOTOGRAPH SHOWING THE NEARNESS
OF THE PEELING SHED AND THE HOUSE TO THE PETITIONER
DATED NIL.
EXHIBIT P1(A) THE TRUE COPY OF THE PHOTOGRAPH SHOWING THE DISCHARGE
OF EFFLUENT FROM THE PEELING SHED DATED NIL.
EXHIBIT P2 THE TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE
PANCHAYAT DATED 04/07/2015.
EXHIBIT P3 THE TRUE COPY OF THE REPORT MADE BY THE 4TH RESPONDENT
DATED 05/02/2016.
EXHIBIT P4 THE TRUE COPY OF THE NOTICE ISSUED BY THE 4TH
RESPONDENT TO THE 6TH RESPONDENT DATED 10/02/2016.
EXHIBIT P5 THE TRUE COPY OF THE NOTICE ISSUED BY THE 4TH
RESPONDENT TO THE SECRETARY OF THE PANCHAYAT
DATED 19/02/2016.
EXHIBIT P6 THE TRUE COPY OF THE NOTICE ISSUED BY THE 4TH
RESPONDENT TO THE CHIEF ENVIRONMENTAL ENGINEER
DATED 18/02/2016.
EXHIBIT P7 TRUE COPY OF THE INSPECTION REPORT DATED 1.7.2017.
RESPONDENT(S)' EXHIBITS
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R5(A) LETTER NO PCB/EKM/DO-01/OA-789/16 (ANNEXURE R5(A)
R6(A) A TRUE COPY OF the ROUGH SKETCH SHOWING THE LIE OF THE
PROPERTIES OF THE PETITIONER AND THIS RESPONDENT.
R6(B) A TRUE COPY OF THE AGREEMENT DATED 15/12/2015 EXECUTED
BY THE PETITIONER WITH THIS RESPONDENT.
R6(C) A TRUE COPY OF O S NO 636/2016 FILED BY THE FATHER OF
THE PETITIONER MR. PUSHKARAN BEFORE THE HON'BLE
MUNISFF COURT, PARAVUR AGAISNT THIS RESPONDENT AND
OTHERS.
R6(D) A TRUE COPY OF THE COMPLAINT DATED 22/11/2016
SUBMITTED BY THIS RESPONDENT AGAINST THE PETITIONER
BEFORE THE MUNAMBAM POLICE STATION.
R6(E) A TRUE COPY OF THE COMPLAINT DATED 1/3/2017 SUBMITTED
BY THIS RESPONDENT BEFORE THE MUNAMBAM POLICE STATION
HOUSE OFFICER.
/TRUE COPY/
P.S.TO JUDGE
K.V.
K.VINOD CHANDRAN, J.
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W.P.(C)Nos.40753 of 2016 & 25285 of 2017 (T)
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Dated this the 31st day of July, 2017
JUDGMENT
The petitioner in W.P.(C)No.40753/2016 is aggrieved with a peeling shed conducted by the 6th respondent; which is alleged to be the cause of immeasurable nuisance and untold hardship to the residents of the locality. Respondent Nos.7 to 11 are also represented through Counsel who support the petitioner. The petitioner submits that the 6th respondent is carrying on the peeling shed without D&O licence from the Panchayat and also without following the fundamental measures to mitigate the pollution, as would necessarily emanate from such an industry.
2. W.P.(C)No.25285 of 2017 is filed by the 6th respondent and is coming up for admission. However the learned Counsel for the 6th respondent submits that the entire facts have been stated in the counter affidavit. In such circumstances, the disposal of W.P.(C)No.25285/2017 would be in accordance with that of W.P.(C)No.40753/2016. The parties and documents are referred to from W.P.(C) No.40753/2016.
W.P.(C)Nos.40753/2016 & 25285/2017 2
3. The learned counsel for the 6th respondent points out that in the particular area there are a number of peeling sheds carried on; that too without licence. This even otherwise is the cause of the all pervading foul smell in the locality, which sustains itself on marine wealth. It is argued that any activity specified in Schedule-I of the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996 has to have a licence only if, under Rule 2 there is a publication made by the Panchayat. The entire properties as seen from Ext.R6(a) sketch belonged to the petitioner's father in which earlier a peeling shed existed right from 1967 onwards. There was no objection from any quarters and the petitioner purchased the property with the peeling shed from a subsequent assignee. The problems arose only when the petitioner's family constructed a new residential building in his property.
4. In the year 2015 the petitioner himself raised a complaint and a mediation was effected by the Panchayat in which Ext.P6 was reduced to writing. The entire demands of W.P.(C)Nos.40753/2016 & 25285/2017 3 the petitioner were complied with as undertaken in Ext.P6. A suit was also filed by the petitioner's father for injunction as evident from Ext.R6(c) in which there was no interim order granted. The above proceeding is a parallel proceeding; which cannot be entertained is the further contention. The 6th respondent relies on Exhibit P-8 produced in the other writ petition; which is a consent to operate issued by the Pollution Control Board (PCB). There is a mistake insofar as the processing allowed is of 100 Kgs. while the water consumption is 3000 litres per day. It is claimed that there is an application for correction filed produced as Ext.P9 in the new writ petition.
5. The respondent Panchayath submits that there is no licence issued till date and when an application was made for the year 2017-2018 finding the pendency of the writ petition filed by the petitioner in W.P.(C)No.40753/2016 no consideration was made. There are also complaints from various quarters about the polluting industry carried on without any license from the Panchayath. At the instance of the petitioner, by interim order dated 12.6.2017 the Medical Officer, the Health Supervisor along with Environmental Engineer was W.P.(C)Nos.40753/2016 & 25285/2017 4 directed to conduct an inspection of the premises and file a report. The report is placed on record by memo dated 17.7.2016.
6. The 6th respondent's contention that the Rules insist on a publication or advertisement; for a mandate to obtain license to carry on any activity under Schedule-I cannot be accepted. Rule 2 as claimed by the petitioner does not exist as of now in the Rules. As the Rules presently exists, Rule 3 specifically empowers the Government to specify in the first schedule, the matters, which in the opinion of the Government, are likely to be offensive or dangerous to human life, health or property. The peeling sheds are included as item No.45 in Schedule-I. Even in the amended Rules, the learned counsel for the petitioner argues that there is Rule 4 which requires such a publication to be made. Rule 4 only provides for a publication by the Village/Panchayat as an option since the word used is 'may' and not 'shall'. Going by the present Rules the inclusion of the activity in Schedule-I makes it mandatory that the said activities are carried on only with a licence. W.P.(C)Nos.40753/2016 & 25285/2017 5
7. Admittedly the petitioner did not have a licence till 2016-17 and an application was filed on objections being raised for the year 2017-18. The said application has not been considered by the Panchayat going by the impugned document in the writ petition filed by the 6th respondent. The fact that a suit has been filed would not restrain this Court from exercising the extraordinary jurisdiction under Article 226 of the Constitution of India; which necessarily is an exercise of discretion which this Court finds necessary in the teeth of the report filed by the Pollution Control Board.
8. Ext.P7 report filed jointly by the Medical Officer in charge, the Health Supervisor, Community Health Centre, Malappuram and the Assistant Engineer, Kerala State Pollution Control Board is extracted hereunder:-
"The Pollution Control Board has given no objection certificate to the Peeling shed up to 11/04/2020. The Pollution Control Board has sanctioned only upto 100 kg fish for peeling daily. But this peeling shed does approximately 2500 kg peeling daily. This is against standing order. As per the Pollution Control Board direction 3000 liters of water to be used for peeling. But they use approximately 50000 liters of water daily for W.P.(C)Nos.40753/2016 & 25285/2017 6 this purpose. This amount of polluted water cannot be filtered in Effluent Treatment Plant tank because of its small capacity. The water coming out of ETP Tank outlet is not filtered properly and the colour of water is black. This polluted water is poured out to Cherai river through pipe. The fish waste is seen mixed in the water of Cherai river. Bad smell is coming from this water. The following defects were also noticed by the inspection team as detailed below:-
1. Foul smell is prevailing around the premises and house of the petitioner. This makes the life of people miserable there.
2. Birds and animals entering into the peeling shed and spreading the waste around the surroundings of peeling shed, road and houses of people there. This also pollutes drinking water sources.
3. When the Manhole Tank and ETP opens unbearable bad smell comes out and this causes health problems to the people of the surrounding area.
4. This Peeling shed does not have Licence from Pallippuram Grama Panchayat. As per the grama panchayat records this building has 100 square feet area only and is recorded as coir and "kithary" unit. But the building is seen extended without permission and is approximately 2000 square feet now.
5. The ETP Tank was installed only after the complaint had been lodged. The polluted water is poured out to river without processing through ETP tank. This is against the standing High Court judgment and LSGD W.P.(C)Nos.40753/2016 & 25285/2017 7 Department Circular. The ETP plant is small and not sufficient for meeting the needs of the peeling shed.
6. No basic amenities are provided by the employer to the staff around 50 to 70 especially ladies staff. This affects the health of the staffs.
The peeling shed is working without observing the rules and causing public health problems. As per the joint inspection the peeling shed has no licence and it causes severe ill health to the inhabitants of the surroundings."
9. The petitioner's explanation is that there is a correction petition filed before the PCB for enhancing the capacity and that foul smell prevails in the area; for reason of the processing of fish being carried on as a cottage industry in the area. The petitioner has also established a Effluent Treatment Plant (EFT) and only when it is opened, even according to the report, a foul smell emanates.
10. The explanation of the petitioner that a mistake had occurred in issuing the consent by the PCB cannot at all be countenanced. Definitely, even if the correction petition is allowed by the PCB the petitioner would be entitled to carry out processing only of 1000 kgs. At present the consent to operate only provides for daily processing of 100 Kgs. and use W.P.(C)Nos.40753/2016 & 25285/2017 8 of 3000 liters of water. The report itself indicates that around 2500 Kgs. are processed on a daily basis using about 50000 liters of water. Even going by the petitioner's assertion of a correction requested for enhancement to processing of 1000 Kgs; the quantity now processed is far in excess. It is also to be noticed that the complaint is not only of the foul smell emanating on the manhole of the ETP tank being opened. Even otherwise it is found to pollute the entire area and the report is specific as to the pollution caused from the unit of the petitioner, engaged in processing of fish far in excess of the permitted quantity and the same also being carried on in a most un-hygienic manner. The report specifically points out that the foul smell emanates from the unit of the petitioner and that it makes the life of people around the petitioner's peeling shed, miserable. There cannot be any contention taken that the foul smell is on account of the various other peeling sheds existing in the locality.
11. Further it is to be noticed that ETP tank is not of sufficient capacity to handle the waste as processed in the petitioner's unit. The polluted water is seen poured out to the W.P.(C)Nos.40753/2016 & 25285/2017 9 river through a pipe. It is the further report that basic amenities are not provided by the employer to the staff which number around 50 to 70. Going by the report that the peeling shed is working without observing the rules and in a manner harmful to public health; this Court cannot but direct the peeling shed carried on by the 6th respondent to be stopped as of now. It cannot also be ignored that the petitioner has been carrying on the activity without a D&O licence from the Panchayath. The Panchayat would consider the application for D&O licence only after the consent to operate is revisited by the PCB; which is also the request of the petitioner.
12. The PCB while re-considering the issue shall give due weight-age to the facts as revealed from the report and impose any condition which mitigates the nuisance and hardship to the nearby residents. Till the said exercise is carried out and a consent to operate is produced before the Panchayat and the Panchayat considers the D&O licence application favourably; no activity shall be carried on by the 6th respondent.
W.P.(C)Nos.40753/2016 & 25285/2017 10
13. The PCB will consider the application as directed above within three weeks from the date of receipt of a certified copy of this judgment. W.P.(C)No.40753/2016 is allowed on the above terms. W.P.(C)No.25285/2017 is rejected, leaving open the liberty of the petitioner/6th respondent to approach the appropriate authorities for complying with the directions as in the other writ petition. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE skj