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
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941
WP(C).No.29689 OF 2019(I)
PETITIONERS:
1 T.P.GOPALAKRISHNAN,
AGED 74 YEARS
WARD NO.1, 504A, KANAKAPILLY HOUSE, NEAR ANSAS TILE FACTORY,
THALORE P.O., THRISSUR DISTRICT.
2 MRS.K.SARASWATHY,
AGED 73 YEARS
W/O.T.P.GOPALAKRISHNAN, WARD NO.1, 504A, KANAKAPILLY HOUSE,
NEAR ANSAS TILE FACTORY, THALORE P.O., THRISSUR DISTRICT.
BY ADV. SRI.T.N.MANOJ
RESPONDENTS:
1 THE SECRETARY,
NENMANIKKARA GRAMA PANCHAYAT, PALIYEKKARA, P.O.CHITTISSERY,
TRISSUR DISTRICT-680301.
2 NENMANIKKARA GRAMA PANCHAYAT,
PALIYEKKARA, P.O.CHITTISSERY, TRISSUR DISTRICT, REPRESENTED
BY THE SECRETARY, 680301.
3 M/S.ANSAS TILE WORKS THALORE,
TRISSUR DISTRICT, REPRESENTED BY ITS MANAGING PARTNER
T.K.ANTO, TRISSOKKARAN HOUSE, TRISSUR- 680306.
4 THE DISTRICT OFFICER,
KERALA STATE POLLUTION CONTROL BOARD, MAJESTIC SQUARE, 3RD
FLOOR, PARAVATTANI, OLLUKKARA, P.O., TRISSUR- 680655.
BY ADV. SRI.C.HARIKUMAR
BY ADV. SRI.RENJITH RAJAPPAN
BY SRI. T.NAVEEN SC,
OTHER PRESENT:
SR.GP- RAJASEKHARAN NAIR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.11.2019,
ALONG WITH WP(C).30316/2019(L), THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).Nos.29689 & 30316 OF 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941
WP(C).No.30316 OF 2019(L)
PETITIONER:
ANTO T.K.
AGED 67 YEARS
S/O.KOCHAPPAN, MANAGING PARTNER ANSAS TILES, THALORE.P.O.,
THRISSUR, KERALA- 680306.
BY ADVS.
SRI.RAJIT
SMT.V.VIJITHA
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF
GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 NENMANIKKARA GRAMA PANCHAYAT,
PALLIKKARA, CHITTISSERY.P.O., CHITTISSERY.P.O.,
THRISSUR-680301, REPRESENTED BY ITS SECRETARY.
3 THE SECRETARY,
NENMANIKKARA GRAMA PANCHAYAT, PALLIKKARA,
CHITTISSERY.P.O., THRISSUR-680301.
4 ENVIRONMENT ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD, MAJESTIC SQUARE, 3RD
FLOOR, PARAVATTANI, OLLUKKARA.P.O., THRISSUR-680655.
5 T.P.GOPALAKRISHNAN,
KANAKAPILLY HOUSE, THALORE.P.O., THRISSUR-680306.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.11.2019, ALONG WITH WP(C).29689/2019(I), THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).Nos.29689 & 30316 OF 2019
3
JUDGMENT
I am considering these two writ petitions on account of the analogous nature of the factual circumstances presented therein and because the reliefs to be granted in one will certainly influence the reliefs to be granted in the other.
2. Among the two writ petitions W.P.(C)No.29689/2019 has been filed by Sri.T.P.Gopalakrishnan and another asserting that the 3rd respondent - Unit is being run without obtaining necessary licences and consents and that it is causing unbearable pollution to the residents of the area. The petitioners allege that the Unit is being run in violation of law and that the pollution caused is not merely to air but that it is causing severe contamination of all ground water sources in the said area. They, therefore, pray that the 1 st respondent - Secretary of the Grama Panchayat be directed to take immediate action to stop functioning of the 3rd respondent - Unit.
3. While so, W.P.(C)No.30316/2019 has been filed by Sri.Anto T.K., who is the Managing Partner of the 3 rd respondent - Unit in W.P.(C)No.29689/2019, impugning Ext.P9 communication issued by the Pollution Control Board withdrawing their Consent to Operate on the allegation that the Unit had unauthorisedly burnt sawdust and had allowed to escape the smoke emanated therefrom WP(C).Nos.29689 & 30316 OF 2019 4 except through the chimney. Interestingly, the petitioner herein concedes that the factual statements contained in Ext.P9 are true but explains that this was done solely on account of the fact that the bricks had to be dried on an urgent basis using sawdust on account of the heavy and continuous rains this year that this had never been done in the past. He says that he has, therefore, approached the Pollution Control Board seeking that Ext.P9 be withdrawn and that his Consent to Operate be restored. He adds to the afore by submitting that, going by the provisions of Section 22 of Air (Prevention and Control of Pollution) Act, 1981, as long as the smoke is within the permissible limits of the pollutants as envisaged therein, Ext.P9 could not have been issued. He says that the said order has been, however, issued without any consideration of these aspects.
4. The learned Standing Counsel for the Pollution Control Board submits that the order impugned in W.P.(C)No.30316/2019 has been issued finding that the Unit was unauthorisedly burning sawdust and that smoke was emanating through all the orifices of the Unit and not merely from the chimney, as is permitted under the Consent to Operate. He says that, to make matters worse, this burning of the sawdust was, in fact, done in an unauthorised building, which did not have the requisite infrastructural WP(C).Nos.29689 & 30316 OF 2019 5 requirements; and prays that therefore, this Court may not interdict Ext.P9.
5. When I consider the afore submissions, it becomes ineluctable that the Pollution Control Board has found that the Unit had illegally burned sawdust in another building and had allowed smoke to flow through channels other than the chimney, thus being in violation of the Consent to Operate issued by them. Hence, even if the petitioner asserts that the pollutants released through the smoke are within the limits of the afore mentioned Act, I cannot find the action of the Unit in having burnt sawdust in an unauthorised building and in having allowed the smoke to emanate in such fashion to be deserving favour of this Court. Therefore, notwithstanding the technical objections raised by Sri.Rajit - learned Counsel for the Unit, I do not think that this Court will be justified in interfering with Ext.P9, produced along with W.P.(C)No.30316/2019 in a writ petition filed under Article 226 of the Constitution of India, since I cannot enter into the factual realm to assess the truth of the allegations.
6. Perhaps, sensing my mind as afore, Sri.Rajit submits that if this Court is not inclined to quash Ext.P9, then the Pollution Control Board may be directed to hear his client and take a decision as to whether the Consent to Operate can be reinstated on appropriate conditions.
WP(C).Nos.29689 & 30316 OF 2019 6
7. The afore submission of Sri.Rajit is opposed by Sri.T.N.Manoj, learned counsel for Sri.T.P.Gopalakrishnan and another, asserting that the Unit cannot be allowed to have the Consent to Operate in future because of the illegal action already committed and therefore, prays that W.P.(C)No.29689/2019 be allowed.
8. The undisputed facts available before this Court clearly indicate that the Pollution Control Board has found objectionable action from the part of the Unit in variance with the conditions imposed in the Consent to Operate; and have therefore, taken a decision to set aside the Consent to Operate. Pertinently, I am not told of any action having been initiated by the Unit to impugn Ext.P9 order before the competent Statutory Appellate Authority but they have chosen to approach this Court asserting that the said order is untenable in law and also that the situation noticed at the time when the same was issued has now improved.
I am, therefore, of the view that this is a matter that the Pollution Control Board themselves should consider, leading to a decision as to whether the Unit's Consent to Operate can be reinstated, subject to requisite conditions, as are permissible in law.
Resultantly, I order W.P.(C)No.29689/2019 and direct the 3 rd respondent therein not to operate the Unit unless their Consent to WP(C).Nos.29689 & 30316 OF 2019 7 Operate is reinstated by the Pollution Control Board; and I consequentially, dispose of W.P.(C)No.30316/2019, directing the Pollution Control Board to hear the petitioner therein as also to the petitioners in W.P.(C)No.29689/2019 and take a decision as to whether the Consent to Operate earlier issued by them to the Unit can be reinstated and if so, on what terms.
The afore exercise shall be completed by the Pollution Control Board as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgement; and I reiteratingly clarify that until such time as the Consent to Operate is reinstated, the Unit shall not be allowed to operate and that the official respondents will make sure that these orders are complied with implicitly.
Sd/-
DEVAN RAMACHANDRAN rp JUDGE WP(C).Nos.29689 & 30316 OF 2019 8 APPENDIX OF WP(C) 29689/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMPLAINT PETITION FILED BY THE PETITIONERS BEFORE THE HEALTH INSPECTOR OF THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE REPORT OF THE HEALTH INSPECTOR OF THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE INTIMATION OBTAINED FROM THE POLLUTION CONTROL BOARD ABOUT ISSUANCE OF NOTICE OF SHOW CAUSE NOTICE.
EXHIBIT P4 TRUE COPY OF THE COMPLAINT PETITION FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE NOTICE OF SHOW CAUSE OF THE POLLUTION CONTROL BOARD TO THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE COMPLAINT PETITION FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.
WP(C).Nos.29689 & 30316 OF 2019 9 APPENDIX OF WP(C) 30316/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE D & O LICENSE NO.E-1048-
179/2018-19 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE CONSENT NO.PCB/DO/TSR/F/ICO/6932/2017 DATED 15.7.2017.
EXHIBIT P3 THE LATEST RENEWAL APPLICATION DATED 26.2.2019 ALONG WITH RECEIPT SHOWING PAYMENT OF LICENSE FEE.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 20.9.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 1.10.2019 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REPLY LETTER DATED 16.10.2019 OF THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED 16.10.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE MINUTES OF THE HEARING CONDUCTED ON 22.10.2019.
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 31.10.2019 ISSUED BY THE 4TH RESPONDENT.