IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 16708 of 2007(L)


1. T.P.RUBEENA, W/O.SULAIMAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. KERALA STATE POLLUTION CONTROL BOARD,

3. THE ENVIRONMENTAL ENGINEER,

4. KARIVELLUR-PERALAM GRAMA PANCHAYAT,

5. THE DEPUTY DIRECTOR OF PANCHAYAT,

6. THE SECRETARY TO GOVERNMENT,

7. THE PROPRIETOR,

                For Petitioner  :SRI.KALEESWARAM RAJ

                For Respondent  :SMT.K.K.THULASY BHAI,SC,POLLUTION C.BOA

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :17/06/2011

 O R D E R
                         S. SIRI JAGAN, J.
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                   W.P.(C) No.16708 OF 2007
           ----------------------------------------------
             Dated this the 17th day of June, 2011

                             JUDGMENT

The petitioner and her family are residents of a house in Ward No.1 of the 4th respondent Panchayat. In property adjacent to the petitioner's residence, the 7th respondent is running an auditorium. According to the petitioner, the pollution emanating from the kitchen of the auditorium is so unbearable that the petitioner and her family find it extremely difficult to reside in their house. The petitioner contends that as is evident from Exts.P4 to P8 and P11 series, the 7th respondent was directed by the Kerala State Pollution Control Board to apply for a consent under the Kerala Water (Prevention and Control of Pollution) Act 1974 and also to take appropriate measures to contain the pollution caused by the kitchen of the auditorium, which the 7th respondent has not cared to do so far. In the above circumstances, the petitioner has filed this writ petition seeking the following reliefs:

"i) to issue a writ of mandamus directing the  W.P.(C)No.16708/07 2 respondents to take effective steps for shifting the kitchen in the unit owned by the 7th respondent from the present position to a position which is at least at a distance of 25 meters from the petitioner's residential house;

ii) to issue a writ of mandamus directing the respondents to take appropriate proceedings for prosecution and levy of find against the 7th respondent.

iii) to issue a writ of mandamus directing the respondents to close down the kitchen now operated by the 7th respondent"

2. Except the 4th respondent, no other respondent has filed any counter affidavit.

3. I have considered the contentions of the petitioner as well as the contentions of the counsel for the 4th respondent, who only have chosen to present themselves for arguments, apart from the learned Government Pleader. In the counter affidavit of the 4th respondent, they vaguely submitted that certain directions have been issued to the 7th respondent and the 7th respondent has informed the Panchayat that he has complied with the said directions and therefore, in the light of the subsequent developments there is no chance for any pollution from the kitchen. But, it is the definite case of the petitioner in the writ petition that the Pollution Control Board has specifically directed the 7th respondent to apply for  W.P.(C)No.16708/07 3 consent under the Kerala Water (Prevention and Control of Pollution) Act 1974 and that the 7th respondent has neither applied for the consent nor complies with the directions of the Pollution Control Board to take measures to contain the pollution.

4. Neither the 7th respondent nor the Pollution Control Board has filed any pleadings in this writ petition controverting the specific allegations raised by the petitioner. I specifically asked the learned counsel for the 4th respondent as to whether the Panchayat has verified as to whether the 7th respondent has obtained consent from the Pollution Control Board. He could not give any definite answer. The counter affidavit of the 4th respondent does not disclose that the Panchayat has verified that the 7th respondent has obtained a consent from the Pollution Control Board. In such circumstances, I have to assume that the allegations of the petitioner in the writ petition are true and that the 7th respondent has not complied with the directions issued by the Pollution Control Board. The vague statement of the 4th respondent unsupported by any materials on record that in the light of subsequent  W.P.(C)No.16708/07 4 developments there is no chance of any pollution from the kitchen cannot be accepted on face value. As pointed out by the learned counsel for the petitioner, the tenor of the counter affidavit is that the Panchayat has simply accepted the version of the 7th respondent. There is no averment in the counter affidavit that pursuant to the letter stated to have been received from the 7th respondent, an inspection of the premises was conducted by the Panchayat and they found that there is no pollution. That being so, such vague statements of the 4th respondent cannot be accepted on face value. In the said circumstances, I am satisfied that the Pollution Control Board and the Panchayat had failed to perform their statutory duties in taking appropriate action against the 7th respondent for not complying with the pollution laws.

Accordingly, this writ petition is disposed of with a direction to respondents 2 to 4 to see that appropriate action is taken against the 7th respondent for not complying with the pollution laws and see that the 7th respondent complies with the directions and statutory requirements, as expeditiously as possible, at any rate, within one month from the date of  W.P.(C)No.16708/07 5 receipt of a copy of this judgment. Until the 7th respondent complies with the Pollution laws the 7th respondent shall not run the auditorium and the respondents 2 to 4 shall ensure the same.

S. SIRI JAGAN, JUDGE acd