IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(Crl.).No. 1358 of 2011(Q)


1. PASTER K.C.JOHN, AGED 62 YEARS,
                      ...  Petitioner

                        Vs



1. KERALA STATE POLLUTION CONTROL BOARD,
                       ...       Respondent

2. ENVIRONMENTAL ENGINEER,

3. REVENUE DIVISIONAL OFFICER AND

4. KOIPURAM GRAMA PANCHAYATH REPRESENTED

5. SHRI.VINU ABRAHAM SAKARIA,

                For Petitioner  :SRI.P.HARIDAS

                For Respondent  :SRI.P.B.SAHASRANAMAN

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :11/04/2011

 O R D E R
                            THOMAS P. JOSEPH, J.
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                           O.P.(Crl.) No.1358 of 2011
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                     Dated this the 11th day of April, 2011.

                                     JUDGMENT

Respondents 1 and 2 appear through Standing Counsel, Advocate Shri M.K.Chandramohan Das. Respondents 4 and 5 appear through counsel. Learned Public Prosecutor takes notice for respondent No.3.

2. Challenge in this proceeding is to Exts.P8 and P9, orders passed by the Sub Divisional Magistrate, Thiruvalla (respondent No.3) purporting to be under Sections 133 and 142 of the Code of Criminal Procedure (for short, "the Code"). The proceeding was initiated on the complaint of respondent No.5 which, in short is that petitioner is constructing a sewage and water treatment plant without permission from the appropriate authorities for treatment of sewage and waste water formed on account of a large assembly of people in the compound where the plant is being erected. The Sub Divisional Magistrate issued Ext.P8, order under Section 133 of the Code directing petitioner to remove the sewage tank 'constructed in an unscientific manner' and that if petitioner has any objection in doing so, he has to prefer his objection before the Sub Divisional Magistrate on 29.04.2011 at 3 p.m. The Sub Divisional Magistrate also issued Ext.P9, order dated 17.03.2011 restraining petitioner from continuing with construction of the sewage and water treatment plant 'in an unscientific manner'.

OP(Crl.)No.1358/2011 2

3. Petitioner contends that it is incorrect to say that construction is being done in any unscientific manner and at any rate, the Sub Divisional Magistrate is not competent to pass orders with respect to any possible, future nuisance, not to say about prevention of construction of the plant itself. Learned counsel for respondents would contend that it is without permission from respondent No.1 (for short, "the PCB") that petitioner is continuing with construction of the sewage and water treatment plant, the collection of sewage and waste water causes nuisance to the Public and in the circumstances the Sub Divisional Magistrate has passed the impugned orders. Learned counsel have invited my attention to the relevant documents. It is pointed out from Ext.P6, letter dated 26.02.2011 of the Environmental Engineer of PCB addressed to the petitioner that the present action of petitioner is illegal (obviously being in violation of the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Environment (Protection) Act, 1986.

4. It is seen from Ext.P6 that the Environmental Engineer (respondent No.2) who, I am told is the appropriate authority to sanction establishment and operation of sewage and waste treatment plant has issued certain directions to the petitioner such as -

(1) Provide a sewage treatment plant of adequate capacity to treat the effluent generated from your premises within 45 days.

(2) Stop discharging the wash water from auditorium premises to public  OP(Crl.)No.1358/2011 3 road with immediate effect.

(3) Clean the affected wells and provide drinking water supply to all affected residents until their wells are rejuvenated with fresh water.

(4) Apply and obtain consent of the Board to operate the establishment within 30 days.

(5) Report the action taken on the above directions within 7 days.

5. So far as Ext.P8, order is concerned, no interference is required since that order issued under Section 133 of the Code and though contains a direction to the petitioner to remove what respondent No.3 would describe as 'unscientific construction', it is followed by an option to the petitioner to prefer his objection if any in the matter before respondent No.3 on 29.04.2011. It is open to the petitioner to do so.

6. So far as Ext.P9, order of injunction is concerned, the operation and establishment of sewage and water treatment plant can only be in accordance with the provisions of the Act which I have referred above and approval by the Environmental Engineer (respondent No.2).

7. In the light of the controversy involved in the case what is required is to direct that Ext.P9, order of injunction will remain in force until respondent No.2, the Environmental Engineer has granted approval for establishment and operation of the sewage and water treatment plant. On getting approval for establishment of the plant it is open to the petitioner to proceed with the  OP(Crl.)No.1358/2011 4 construction but its operation will commence only on getting approval of respondent No.2. Ext.P9, order of injunction passed by the Sub Divisional Magistrate is to be modified to that extent.

8. On the question whether notwithstanding the approval granted by respondent No.2, operation of the sewage and water treatment plant caused any nuisance is a matter which the Sub Divisional Magistrate has to decide in accordance with the provisions of Chapter X of the Code.

Resultantly this Original Petition (Criminal) is disposed of in the following lines:

i. So far as Ext.P8, order is concerned, it is made clear that it is open to the petitioner to raise his objection in the matter before the Sub Divisional Magistrate as provided in the Code and in case any such objection is preferred the Sub Divisional Magistrate shall proceed in the matter as provided under law.

ii. It is directed that petitioner shall establish and operate the sewage and water treatment plant only on getting approval from respondent No.2. On getting approval for establishment it is open to the petitioner to proceed with establishment of the plant. But, operation of the plant will again be on getting approval of respondent No.2.Ext.P9, order of injunction passed by the Sub Divisional Magistrate will stand modified to the above extent.

iii. Notwithstanding the approval granted by respondent No.2 as above stated, whether operation of the sewage and water treatment plant caused any  OP(Crl.)No.1358/2011 5 nuisance as pleaded by respondent No.5 is a matter which the Sub Divisional Magistrate has to decide in accordance with Chapter X of the Code.

iv. Respondent Nos.2 and 3 shall expedite their proceedings in the matter. Parties can approach respondents 2 and 3 as the case may be, for early disposal of the representation/proceeding.

THOMAS P.JOSEPH, Judge.

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