Kerala High Court
Sucheendran vs State Of Kerala on 30 October, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941
WP(C).No.9696 OF 2019(J)
PETITIONERS:
1 SUCHEENDRAN,
AGED 67 YEARS
S/O. PARAMU ASARI, RESIDING AT CHARUVILA PUTHENVEEDU,
CHIRAKKARA THAZHAM P.O, KALLUVATHUKKAL, KOLLAM DISTRICT-
691578.
2 REKHA S.R,
AGED 32 YEARS
W/O. BINU, PUNARTHAM, KATTIKADA, CHIRAKKARA THAZHOM P.O,
KALLUVATHUKAL, KOLLAM DISTRICT-691578.
3 BEENA
AGED 48 YEARS
W/O. KAUMARACHANDRAN, CHARUVILAPUTHENVEEDU, KATTIKADA,
CHIRAKKARA THAZOM P.O, KALLUVATHUKKAL, KOLLAM DISTRICT-691578
4 ABHIJA RAJEEVAN,
W/O. G.RAJEEVAN, RAJEEVAM, KATTIKADA, CHIRAKKARA THAZOM P.O,
KALLUVATHUKKAL, KOLLAM DISTRICT-691578
5 SHEENA,
SOPANAM, KATTIKADA, CHIRAKKARA THAZOM P.O, KALLUVATHUKKAL,
KOLLAM DISTRICT-691578
BY ADV. SRI.H.VISHNUDAS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION ROAD,
KAANKATHU MUKKU, KOLLAM-691013.
2 EXECUTIVE ENIGNEER PWD (ROADS DIVISION)
KOLLAM-686001.
3 KERALA STATE POLLUTION CONTROL BOARD,
REPRESENTED BY ITS DISTRICT OFFICER,, USHUS BUILDING, BIG
BAZAR, KOLLAM-691001.
4 CHIRAKKARA GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, PANCHAYATH OFFICE, CHIRAKKARA
THAZHAM P.O, KOLLAM DISTRICT-691578.
5 NIZAMUDDIN,
A(PROPRIETOR), P AND T CONSTRUCTIONS, THAVANAPOIKA,
CHIRAKKARA THAZOM P.O, KOLLAM DISTRICT-691578, RESIDING AT
THOPPIL HOUSE, ADAYAMON P.O, THATTATHUMALA, KILIMANOOR,
WP(C).No.9696 OF 2019(J)
2
THIRUVANANTHAPURAM-695614.
BY SRI. T.NAVEEN SC
BY SRI.V.VENUGOPALAN NAIR,SC
BY ADV. SRI.AJITH KRISHNAN
OTHER PRESENT:
SRI.PAUL ABRAHAM VAKKANAL, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.9696 OF 2019(J)
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JUDGMENT
The petitioners, who are stated to be the residents of Ward No.VIII of Chirakkara Grama Panchayat, have approached this Court against the Consent to Operate issued by the Pollution Control Board (hereinafter referred to as 'Board' for short), and the Trade Licence issued by the 4th respondent - Chirakkara Grama Panchayat to the 5 th respondent to operate a Tar Mixing Plant, under the name and style 'Thoppil Constructions'.
2. According to the petitioners, operation of the Tar Mixing Unit by the 5th respondent is causing unbearable pollution and nuisance to the residents of the locality but that without considering any of these aspects, both the Board and the Panchayat had given them necessary Licences and Consents. They, therefore, pray that the Consent to Operate issued by the Board, namely Ext.P20; and the Trade Licence issued by the Panchayat, namely Ext.P8, be set aside and the 5 th respondent be injuncted from operating his Tar Mixing Unit.
3. The learned Standing Counsel appearing for the Pollution Control Board - Sri.T.Naveen, submits that a detailed counter affidavit has been placed on record, wherein, they have WP(C).No.9696 OF 2019(J) 4 clearly stated that the 5th respondent has all the Consents and Licences required to operate the Tar Mixing Unit. He adds that the Consent to Operate issued by the Board was granted on the basis of all relevant and germane inputs and after verifying that the Tar Mixing Unit, being operated by the 5 th respondent, does not cause any pollution in the area concerned. He, however, admits that Ext.R3(j) communication had been issued to the 5 th respondent on 15.10.2019, asking him to rectify certain deficiencies found subsequently and that the 5 th respondent has now reported that he has complied with the same. The learned Standing Counsel therefore, says that if the petitioners have any further objections against the Consent to Operate, their remedy is to approach the competent Appellate Tribunal constituted under the provisions of the applicable Statutes and Rules. He, therefore, prays that this writ petition be dismissed.
4. Sri.Mohammed Al Rafi, learned counsel appearing for the 5th respondent, submits that the afore allegations made by the petitioners are without basis and are merely speculative because, as is clear from the counter affidavit of the Pollution Control Board, every requirement has been met by his client and asserts that even the deficiencies shown in Ext.R3(j) have been fully rectified. He says, therefore, that the petitioners cannot WP(C).No.9696 OF 2019(J) 5 now object to his client's Tar Mixing Unit merely based on conjectural apprehensions, which he says is also guided by certain extraneous considerations, because none of them are residing close to the Unit in question. He, therefore, prays that this writ petition be dismissed.
5. The learned Standing Counsel appearing for the respondent - Grama Panchayat also affirms most of the submissions made on behalf of the Pollution Control Board and adds that the Trade Licence was granted to the 5 th respondent based on the Consent to Operate which they have produced, as also all the other necessary Licences and Consents. He also, therefore, prays that this writ petition be dismissed.
6. When I consider the afore submissions and examine the materials on record, it is without doubt that the petitioners have approached this Court under an apprehension that continuation of the Tar Mixing Unit in the area would cause great prejudice and detriment to the residents around it. The petitioners also say that their properties are remaining on a higher plain and that the Unit, being operated by the 5 th respondent, is on lower terrain and therefore, that even though the chimney may be within the legal parameters, the smoke emanating therefrom would still pollute their area and would WP(C).No.9696 OF 2019(J) 6 cause untold misery and health issues. Of course, the learned Standing Counsel for the Pollution Control Board maintains that the parameters, as are prescribed by the various Statutes, have been complied with by the 5th respondent and therefore, that their hands are tied in assessing whether there is any pollution in spite of these parameters being met.
7. When I hear the parties as afore, it is without doubt that the fundamental duty of the Pollution Control Board is to ensure that any activity being carried on complies with the requirements of public health and pollution fighting requirements implicitly. Even if the parameters are met by a particular Industry, if it is found in exceptional circumstances that even then there is pollution, I am certain that the Board has a duty to intervene and rectify the same and they cannot merely stand by and say that since all the legally prescribed requirements have been met, they do not have any further role to play.
8. The present case is a classic example of what I have said above because, the petitioners assert that their residences are on a higher terrain, while the Unit operated by the 5 th respondent is on a lower one. They say that, therefore, even though the chimney may be 20 metres in height, as is required WP(C).No.9696 OF 2019(J) 7 under the law, pollution is still rampant and unbearable since their properties are at the receiving end of the smoke emanating therefrom. This certainly is a matter that the Board will have to consider and they cannot wash their hands of merely saying that the chimney has been installed up to the requisite height. They are also obligated to consider whether the assertions of Sri.Mohammed Al Rafi, that his client has complied with Ext.R3(j) fully, are true or otherwise.
Resultantly, I order this writ petition and direct 3 rd respondent - Environmental Engineer, to immediately hear the petitioners as well as the 5th respondent and then take a decision as to whether the 5th respondent has complied with the requirements in Ext.R3(j) and whether any further pollution fighting mechanisms or requirements will have to be complied with by him, particularly taking note of the allegations of the petitioners that their residences are on a higher terrain than that of the Unit of the said respondent.
The afore exercise shall be completed by the 3 rd respondent, as expeditiously as is possible but not later than two weeks from the date of receipt of a copy of this judgment and the resultant order shall be issued to both sides without any further delay.
WP(C).No.9696 OF 2019(J) 8 Needless to say, once a decision is taken in terms of this judgment, the competent Authority of the Board will be obligated to ensure that the conditions, if any, imposed are complied with by the 5th respondent and if he fails to do so, then to take necessary action to either withdraw the consent or to shut down the Unit in terms of law.
Once a decision is taken by the 3rd respondent on the afore lines, the petitioners will be free to bring the same to the notice of the Secretary of the Panchayat, who will thereupon, depending upon the decision taken therein, take necessary action including to cancel the Licence in terms of law; however, only after following due procedure.
This writ petition is thus ordered.
Sd/-
DEVAN RAMACHANDRAN
rp JUDGE
WP(C).No.9696 OF 2019(J)
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT 21 A TRUE PHOTOCOPY OF THE LICENSE RENEWED BY THE
4TH RESPONDENT
EXHIBIT P1 TRUE COPY OF THE RESOLUTION NO.C3-790/14 DATED
22.02.2014 BY 4TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE STOP MEMO NOTICE C3-790/14 DATED
22.02.2014 OF THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 25.02.2014 IN IA
NO.444/2014 OF APPEAL NO.237/2014 IN THE COURT OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO.8186 OF 2014 DATED 21.03.2014 OF THIS HON'BLE COURT.
EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT FILED IN APPEAL NO.237/2014 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P6 TRUE COPY OF THE ORDER IN APPEAL NO.237/2014 DATED 15.11.2016 BEFORE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF WPC NO.31209 OF 2017 DATED 5.11.2017 OF THIS HON'BLE COURT.
EXHIBIT P8 TRUE COPY OF THE (D AND O)LICENSE NO.C4-1627/18 DATED 16.04.2018 ISSUED BY 4TH RESPONDENT PANCHAYATH.
EXHIBIT P9 TRUE COPY OF CIRCULAR NO.PCB/HO/CIRCULAR/2015(4) DATED 01.10.2015 ISSUED BY POLLUTION CONTROL BOARD, EXHIBIT P10 TRUE COPY OF THE APPLICATION UNDER RTI ACT DATED 02.03.2019 TO THE PUBLIC INFORMATION OFFICER,CHIRAKKARA PANCHAYATH.
EXHIBIT P11 TRUE COPY OF THE REPLY TO RTI APPLICATION DATED 21.03.2019 OF THE PUBLIC INFORMATION OFFICER, CHIRAKKARA PANCHAYAT.
EXHIBIT P12 TRUE COPY OF THE MASS PETITION NO.HRMP 10785/15/KLM DATED 29.10.2015.
EXHIBIT P13 TRUE COPY OF THE REPORT OF ENVIRONMENTAL ENGINEER UNDER PCB, KOLLAM SUBMITTED BEFORE HUMAN RIGHTS WP(C).No.9696 OF 2019(J) 10 COMMISSION.
EXHIBIT P14 TRUE COPY OF THE MINUTES OF THE GRAMS SABHA CONVENED ON 03.02.2019.
EXHIBIT P15 TRUE COPY OF THE PROPERTY TAX RECEIPT IN THE NAME OF THE HUSBAND OF THE 2ND PETITIONER.
EXHIBIT P16 TRUE COPY OF THE PROPERTY TAX RECEIPT FOR THE YEAR 2018-19.
EXHIBIT P17 TRUE COPY OF THE PROPERTY TAX RECEIPT IN THE NAME 4TH PETITIONER.
EXHIBIT P18 TRUE COPY OF THE SERIES OF PHOTOGRAPHS EXHIBIT P19 TRUE COPY OF THE INTERGRATED CONSENT DATED 25.08.2017 ISSUED BY THE 3RD RESPONDENT EXHIBIT P20 TRUE COPY OF THE INTERGRATED CONSENT DATED 12.06.2018 ISSUED BY THE 3RD RESPONDENT EXHIBIT P21 A TRUE COPY OF THE LICENSE RENEWED BY THE 4TH RESPONDENT.
EXHIBIT P22 A TRUE PHOTOCOPY OF THE OBJECTION TO LICENSE RENEWAL APPLICATION EXHIBIT P23 A TRUE PHOTOCOPY OF THE REPLY TO OBJECTION TO LICENSE DATED 20/5/2019.
EXHIBIT P24 A TRUE PHOTOCOPY OF THE REPRESENTATION GIVEN BY THE PETITIONERS TO 3RD RESPONDENT/POLLUTION CONTROL BOARD.
EXHIBIT P25 A TRUE PHOTOCOPY OF THE RECEIPT OF THE REPRESENTATION GIVEN BY THE PETITIONERS. EXHIBIT P26 A TRUE PHOTO COPY OF THE 3 MEDICAL CERTIFICATES OF THE PETITIONERS.
EXHIBIT P27 A TRUE COPY OF THE PHOTOGRAPH.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R3(a) TRUE COPY OF THE CONSENT TO OPERATE GRANTED BY THE BOARD ON 26-4-2014.
EXHIBIT R3(b) TRUE COPY OF THE COMMUNICATION DATED 11-1-2016 ISSUED BY THE PCB.
EXHIBIT R3(c) TRUE COPY OF THE NOTICE OF INTENTION TO REVOKE THE CONSENT TO OPERATE ISSUED BY THE PCB ON 11-2- 2016.
WP(C).No.9696 OF 2019(J) 11 EXHIBIT R3(d) TRUE COPY OF THE LETTER DATED 18-5-2016 ISSUED BY THE PCB.
EXHIBIT R3(e) TRUE COPY OF THE LETTER DATED 3-10-2016 ISSUED BY THE PCB.
EXHIBIT R3(f) TRUE COPY OF THE LETTER DATED 2-3-2017 ISSUED BY THE BOARD.
EXHIBIT R3(G) TRUE COPY OF THE CONSENT RENEWAL DATED 25-8-2017 ISSUED BY THE PCB.
EXHIBIT R3 (h) TRUE COPY OF THE CONSENT RENEWAL DATED 12-6-2018 ISSUED BY THE PCB.
EXHIBIT R3(i) TRUE COPY OF THE LETTER DATED 21-3-2019 ISSUED BY THE PCB.
EXHIBIT R3(J) TRUE COPY OF THE LETTER DATED 15-10-2019 ISSUED BY THE BOARD.