Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 38385 of 2010(W)
1. V.I.ITOOP, VAZHAPILLY HOUSE,
... Petitioner
Vs
1. KERALA STATE POLLUTION CONTROL BOARD,
... Respondent
2. KUZHUR GRAMA PANCHAYATH,
3. VARKEY, PARASSERY HOUSE,
For Petitioner :SRI.VIJU ABRAHAM
For Respondent :SRI.M.K.CHANDRAMOHAN DAS,SC,POLL.C.BOAR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :27/06/2011
O R D E R
C.T.RAVIKUMAR, J.
----------------------------
W.P.(C)Nos.38385 of 2010,
1450 & 3174 of 2011
----------------------------
Dated 27th June, 2011
JUDGMENT
Common issues posed for consideration in these writ petitions and therefore, they were heard jointly and are being disposed of by this common judgment. For the sake of convenience, W.P.(C)No.38385 of 2010 is taken as the leading case and the documents are being referred to in this judgment in the order they are set out in the said writ petition unless otherwise specifically mentioned. The petitioner, on the strength of Ext.P1 licence, started a fire brick manufacturing unit by name `Vazhappilly Bircks'. Ext.P2 is the consent to operate issued by the Kerala State Pollution Control Board. The third respondent filed Ext.P3 complaint before the Ombudsman for Local Self Government Institutions mainly alleging that the said unit of the petitioner is functioning without any statutory licence and consent. W.P.(C)No.38385 of 2010 has been filed challenging Ext.P5 order. Ext.P5 is virtually a stop memo issued by the second respondent directing the petitioner to stop all activities in the petitioner's unit. According to the petitioner, it was issued in terms of Exts.P4 and P6 orders. It is the contention of the petitioner that Exts.P4 and P6 were issued on the premise that the petitioner is functioning without a valid licence. Therefore, it is contended that the said orders WP(C).No.38385/2010 & connected cases 2 cannot be relied on to issue a stop memo to the petitioner as the unit belonging to the petitioner is being operated on the strength of a valid licence.
2. W.P.(C)Nos.1450 and 3174 of 2011 are filed by two persons who are residing near the brick kiln belonging to the petitioner in W.P.(C)No.38385 of 2010. The petitioner in W.P.(C)No.1450 of 2011, contends that the petitioner in W.P.(C)No.38385 of 2010 viz., the first respondent in the said writ petition is operating the brick kiln in violation of the circulars issued by the Kerala State Pollution Control Board and without obtaining sanction under the Environment Protection Act and Prevention of Air Pollution Act. The prayer in the said writ petition is for issuance of a writ of mandamus commanding respondents 2 to 6 therein to ensure that the first respondent is not conducting the brick kiln without obtaining sanctions under the Environment Protection Act and Prevention of Air Pollution Act and for such other reliefs. In W.P.(C) No.3174 of 2011, the petitioner seeks issuance of a writ of mandamus commanding the second respondent therein viz., Kuzhur Grama Panchayat to ensure that the first respondent therein is not conducting the brick kiln in violation of Ext.P5 order of the Ombudsman. Ext.P5 in W.P.(C)No.3174 of 2011 is an order passed on Ext.P3 complaint in W.P. (C)No.38385 of 2010.
WP(C).No.38385/2010 & connected cases 3
3. The grievance of the petitioner in W.P.(C)No.1450 of 2011 to the extent that the petitioner in W.P.(C)No.38385 of 2010 viz., the first respondent therein is conducting the brick kiln without obtaining the requisite licence from the Kuzhur Grama Panchayat and without obtaining consent to operate from the Kerala State Pollution Control Board are not true to facts in view of Exts.P1 and P2 in W.P.(C)No.38385 of 2010. As already noticed hereinbefore, the petitioner in W.P.(C) No.38385 of 2010, who is the first respondent in the other writ petitions, started the brick manufacturing unit in question on the strength of Ext.P1 licence dated 19.4.2010. Ext.P2 is the consent to operate issued by the Kerala State Pollution Control Board. When that be the admitted position, the allegation that the the petitioner in W.P.(C)No.38385 of 2010 is conducting the brick kiln without the requisite licence and consent to operate from the Pollution Control Board is bereft of any basis.
4. As already noticed hereinbefore, the third respondent in W.P.(C)No.38385 of 2010 filed Ext.P3 complaint before the Ombudsman for Local Self Government Institutions. Obviously, in the said complaint a direction was issued to the Deputy Director of Panchayats to conduct an inspection into the premises where the petitioner is conducting the brick kiln in question and to submit a report. The said report has been WP(C).No.38385/2010 & connected cases 4 produced as Ext.P1 in W.P.(C)No.1450 of 2011 and Ext.P4 in W.P.(C) No.3174 of 2011. I am of the view that for the disposal of these writ petitions the said report as also Ext.R1(d) order of the Ombudsman assume relevance. The contentions in the other writ petitions as also the counter affidavit filed by the Panchayat and the Pollution Control Board would reveal that on account of the ill-functioning of the brick kiln in question the nearby residents are facing pollution and nuisance. The degree of the nuisance as also pollution have been elaborately explained by the Deputy Director of Panchayats in his report referred to as Ext.P1 in W.P.(C)No.1450 of 2011. Since I have already found, based on the relevant documents produced in these writ petitions, that the petitioner in W.P.(C)No.38385 of 2010 possessed the requisite licence from the Panchayat and consent to operate from the Pollution Control Board, the question to be considered is whether there is any substance in the contention of the respondents regarding the degree of pollution and nuisance being caused on account of the functioning of the brick kiln. It is also to be looked into whether the petitioner is conducting the said unit in such a manner to cause health hazards. It is in that context Ext.P1 referred to in W.P.(C)No.1450 of 2011 assumes relevance. The relevant portion in Ext.P1 report reads thus:-
"
.
WP(C).No.38385/2010 & connected cases 5 , , .
, .
. ..
. ,
.
.
.
.
.
.
. . ..
.
WP(C).No.38385/2010 & connected cases 6
.
. 25
.
,
.
.
.
.
25/04/2007 .
L
. ' ' ,
.
.
,
V
.
,
, ,
.
2
.
WP(C).No.38385/2010 & connected cases 7
16/03/2010-
!
. ..
. 03/12/2010-
."
A perusal of Ext.P1 that is, the report of the Deputy Director of Panchayats would thus reveal that indiscreet excavation made by the petitioner has adversely affected the water table in the locality besides causing air and water pollution. That apart, it is reported therein that about 25 families including children and women are engaged in the manufacturing of bricks in the brick kiln belonging to the petitioner and they are not even provided with hygienic circumstances even to answer the call of nature. The way of living itself is a source of pollution and a cause for nuisance. In fact, all those aspects have been specifically detailed in Ext.P1. Ext.R1(d) is the order of the Ombudsman dated 20.12.2010 in Complaint No.1656/2010. I am of the view that this document assumes relevance for the purpose of disposal of these writ petitions. It would reveal that the petitioner entered appearance in the proceedings before the Ombudsman. The petitioner has stated before the Ombudsman that he is proposing to take the remedial measures as WP(C).No.38385/2010 & connected cases 8 suggested by the Environmental Engineer attached to the Pollution Control Board. In view of the said submission made before the Ombudsman the Ombudsman directed the petitioner to intimate the Environmental Engineer attached to the Pollution Control Board the steps taken to abate and avert the pollution and nuisance and the Engineer was, in turn, directed to conduct an inspection into the premises wherein the petitioner is conducting the brick kiln with notice to the petitioner.
The Secretary of the Panchayat was directed to consider the question of withdrawal of the stop memo on receipt of the report from the Environmental Engineer attached to the Pollution Control Board. I am of the view that the said direction issued by the Ombudsman especially in the light of the report submitted before the Ombudsman by the Deputy Director of Panchayats cannot be said to be uncalled for. In fact, the said direction issued by the Ombudsman is not only proper but prophylactic as well in the facts and circumstances of this case. The learned counsel for the petitioner submitted that since the petitioner is running the brick manufacturing unit on the strength of the licence issued by the Panchayat and also on the strength of the consent to operate issued by the Pollution Control Board, there is no reason to interfere with its functioning. At the same time, it is to be noted that the state of affairs depicted by Ext.P1 report of the Deputy Director of WP(C).No.38385/2010 & connected cases 9 Panchayats cannot go unnoticed. If the state of affairs reported by the Deputy Director of Panchayats is a true reflection of the situation it certainly calls for immediate attention by the competent authority. True that, the right of the petitioner to conduct brick kiln on the strength of the requisite licence and consent to operate after complying with the directions from the competent authorities also has to be recognized. However, that cannot outweigh the right of the people of the locality to have health and hygienic surroundings to live on. In view of the said position obtained in these cases, I do not think it necessary to consider the other contentions raised in these writ petitions independently.
5. As already noticed, the contention of the petitioner in W.P. (C)No.38385 of 2010 is that he is conducting the unit on the strength of valid permit and consent to operate and the contentions of the respondents regarding the pollution is absolutely without any basis. Per contra, it is the contention of the respondents and the petitioners in the other writ petitions that on account of the ill-functioning of the manufacturing unit the life of the residents in the locality is virtually reduced to limbus. Prima facie the said contention cannot be said to be without any substance in the light of the report of the Deputy Director of Panchayats. In the said circumstances, these writ petitions are disposed of with a direction to the Environmental Engineer attached to the District WP(C).No.38385/2010 & connected cases 10 Office, Thrissur of the Pollution Control Board and also the District Medical Officer, Thrissur to conduct inspection into the premises wherein the petitioner in W.P.(C)No.38385 of 2010 is conducting the fire bricks manufacturing unit by name `Vazhappilly Bircks' with notice to the petitioner, the party respondents viz., the petitioners in the other writ petitions and also the Panchayat and to prepare and submit reports to the Secretary of the Kuzhur Grama Panchayat regarding the degree of pollution, nuisance and health hazard etc. This shall be done within three weeks from the date of receipt of a copy of this judgment. They may also specifically state in their reports as to the remedial measures, if any, to be taken by the petitioner in W.P.(C)No.38385 of 2010. On receiving such reports from the said authorities, the Secretary of the Kuzhur Grama Panchayat shall consider the question whether the application of the petitioner for renewal of licence should be favourably considered or not. Needless to say that renewal can be granted subject to the said reports and only if the petitioner takes all remedial measures, if any, suggested by the said authorities. The Secretary of the Panchayat shall take such a decision subject to the observations in the reports within two weeks from the date of receipt of such reports. Even in case the Secretary of the Panchayat renewed the licence as requested by the petitioner, it will be open to the Environmental Engineer to conduct WP(C).No.38385/2010 & connected cases 11 revisit to ascertain and ensure proper functioning of unit without emanating pollution.
All the writ petitions are disposed of accordingly.
Sd/-
C.T.RAVIKUMAR Judge TKS