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IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2254 of 2011(F)
1. MOLY VARGHESE, D/O. ITTIYAVIRA,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE MEMBER SECRETARY,
3. THE DISTRICT COLLECTOR,
4. KOTTAYAM MUNICIPALITY, REPRESENTED BY
5. SOJA M.JOSEPH,
6. ALICE JOSE,
For Petitioner :SRI.KURIAN GEORGE KANNANTHANAM (SR.)
For Respondent :SRI.M.K.CHANDRAMOHAN DAS,SC,POLL.C.BOAR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :29/03/2011
O R D E R
C.T. RAVIKUMAR, J
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W.P.(C)Nos. 2254, 4870, 8800, 9455 OF 2011
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Dated this the 29th day of March, 2011
J U D G M E N T
Common issues based on common facts involved in these writ petitions and therefore, they were heard jointly and are being disposed of by this common judgment.
2. The first petitioner in WPC No.8800/2011 is the Managing Partner of A.J. Rubbers and the second petitioner is the Managing Partner of J.S Rubbers. They had been conducting the said factories on the strength of the licenses issued by the Kumaranalloor Grama Panchayat that, later, merged with Kottayam Municipality with effect from 1.11.2010. In short, presently the said factories lie within the jurisdiction of the Kottayam Municipality. The contention of the petitioners in the said writ petition is that the factories had been functioning on the strength of the licences issued by the Kumaranelloor Grama Panchayat. They possessed the requisite consent to operate from the Kerala State Pollution Control Board besides the requisite licences from the Factories and Boilers department. In short, according to them WPC.2254/2011 and connected : 2 : the aforesaid factories had been functioning after obtaining all statutory licences, consents and permits. While so, against the very functioning of the said companies there arose a public agitation. Earlier, Ext.P6 order was issued by the Panchayat as on 30.7.2010. As per Ext.P6 the licences issued in respect of the above factories were cancelled and the petitioners were directed to close down the functioning of the factories. However, obviously Ext.P6 holds out an assurance of reconsideration on production of consent of the nearby residents. Later, the petitioners have submitted Exts.P12 and Ext.P14 explanation/objections. Ext.P13 would reveal the receipt of Ext.P12 objection submitted by the first petitioner and Ext.P15 would reveal the receipt of Ext.P14 submitted by the second petitioner. The grievance of the petitioners is that the respondents are not taking any action even on receipt of Exts.P12 and P14. At the same time, on account of the cancellation of the licences as per Ext.P6 the petitioners are not in a position to run their factories. WPC No.4870/2011 has also been filed by the very same petitioners challenging Ext.P6 therein and also with a prayer to issue a writ of WPC.2254/2011 and connected : 3 : mandamus commanding the 2nd respondent to consider and dispose of Exts.P7 and P8 after affording opportunity of being heard. Though in the writ petition Ext.P6 has been described as an order passed by the secretary of the Panchayat bearing No.A1-5180/09 dated 18.10.2010 a scrutiny of the same would undoubtedly reveal that the said order and the order referred to as Ext.P6 in WPC No.8800 of 2011 are one and the same viz., the order of the Secretary of the Panchayat bearing No.A1 5080/2009 dated 30.7.2010. The petitioners could not maintain two writ petitions challenging the very same orders. Exts.P7 and P8 appear to be the appeals preferred respectively by the petitioners against an order dated 18.10.2010 bearing No.A1-5080/2009 issued by the Secretary, Kumaranelloor Grama Panchayat. However, copy of the order dated 18.10.2010 bearing No.A1-5080/2009, described as Ext.P6 in the writ petition, has been subsequently, produced as Ext.P10 in the writ petition. WP(C)No.2254/2011 is filed by a resident of Perumbaikadu raising grievance against the functioning of the aforesaid two factories in one building without any licence. The main prayer in the said writ petition WPC.2254/2011 and connected : 4 : is to issue a writ of mandamus commanding the respondents 5 and 6 immediately stop all further manufacturing and processing activities in their establishment, without proper and valid licences from all statutory authorities concerned and to issue a writ of mandamus commanding respondents 2 and 4 not to issue licences to respondents 5 and 6, without affording an opportunity to the petitioner to raise her objections. WP (C)No.9455/2011 has been filed by 24 other residents of Perumbaikadu virtually, seeking the same reliefs as sought by the petitioner in WP(C) No.2254/2011. The petitioners are raising serious allegations regarding the functioning of the aforesaid two factories. It is contended that they are using motors which are far in excess of the permitted Horse Power. That apart, it is contended that the said factories had been operating without the prior consent prescribed under section 25 of the Water Prevention and Control of Pollution Act, 1974. Later, they moved the Human Rights Commission and based on a report submitted by the Panchayat, the Human Rights Commission directed the Panchayat to take immediate steps to stop the activities in the aforesaid factories. Ext.P8 is the WPC.2254/2011 and connected : 5 : order passed by the Human Rights Commission. The very contention of the petitioners in WP(C)Nos.8800/2011 and 4870/2011, viz., the Managing Partners of the aforesaid two factories is that they were absolutely unaware of any proceedings before the Human Rights Commission and they were not put on notice regarding any such proceedings. It appears to be true as Ext.P8 order referred above did not suggest anything to the effect that before passing the same the petitioners or any other persons on their behalf were heard. In fact, H.R.M.P No.2696 of 2009 was closed with the following recommendation:-
"In view of the above report and in view of the averments in the complaint and also in view of the admission of the Secretary, Kumaranalloor Grama Panchayat before me steps have to be taken by the said Panchayat to solve the problem faced by the petitioner and other residents and initiate steps by taking follow up action as per the notice dated 30.10.2009 which was already issued by the said Panchayat. The Panchayat will give an opportunity to the owners who are running the factory as well as to the residents in the area including the petitioner to plead their case and thereafter pass appropriate orders according to law.
The petition is closed with the above recommendation. Send a copy of this order each to the petitioner and the Secretary, Kumaranalloor Grama Panchayat.
Though a notice dated 30.10.2009 is referred to in Ext.P8 order of the Human Rights Commission the said order has not WPC.2254/2011 and connected : 6 : been referred to in Ext.P6 order dated 30.7.2010 in WP(C) No.8800/2011 As per Ext.P8 order dated 14.9.2010 the Human Rights Commission directed the Panchayat to give opportunity to the owners of the factory viz., the petitioners in WP(C) No.8800/2011, as well as the residents in the area to plead their respective case and thereafter, to pass appropriate orders according to law. Essentially, the contention of the petitioners in WP(C) Nos.2254/2011 and 9455/2011 is that in view of Ext.P6 order dated 30.7.2010 referred to in WP(C) No.8800/2011 and WPC NO.4870/2011 the petitioners in WP (C) No.4870/2011 and WP(C) No. 8800/2011 viz., the owners of the two factories, are not legally entitled to run the factories as the very licences were cancelled as per the said order. It is further contended that against Ext.P6 order whereby the licences were cancelled, the petitioners in WPC No.4870/2011 and 8800/2011 have not preferred any appeals and therefore, the order of cancellation have become final. In short, in view of the said circumstances the petitioner are not legally entitled to run the factories in question, it is contended. I do not think that this Court should consider the WPC.2254/2011 and connected : 7 : rival contentions raised in these writ petitions at this stage. As already noticed hereinbefore, as per Ext.P6 order whereby the licences issued to the petitioners in WPC Nos.4870/2011 and 8800/2011 to run K.J Rubbers and J.S Rubbers were cancelled. The petitioners were virtually, given time to raise their objections. Of course, as per Ext.P6 an offer for reconsideration was made only in case the petitioners therein produced the No Objection Certificate from the nearby residents. Obviously, the question is whether the petitioners in WP(C) NO.4870/2011 and 8800/2011 could be compelled for production of such No Objection certificate? The answer to the said question would depend upon the fact as to whether licences were issued by the Panchayat earlier and the issue now, pertains is only one relating renewal of an already existing licence. Of course, those aspects cannot and will not stand in the way of consideration of the pollution aspects. Even in the absence of non production of No Objection Certificate, the rights if any, of the petitioner in WPC Nos.4870/2011 and 8800/2011 are to be considered. Therefore, the respondent authorities cannot contend that WPC.2254/2011 and connected : 8 : such a consideration/re-consideration would be made only in case the No Objection Certificate has been produced from the nearby residents. In this context, it is to be noted that as per Ext.P8 in WP(C) No.9455/2011 the Human Rights Commission directed the petitioner to take appropriate decision in the matter after affording opportunity to the petitioners in WP(C) Nos.8800/2011 and 4870/2011 and also to the other residents, to plead their case. In fact, thereafter, Ext.P9 notice No.A1- 5080/09 dated 27.12.2010(Ext.P9 in WPC No.4870/2011) was issued to the petitioners in WPC No.4870/2011. It was informed that appeals preferred by the petitioners therein against Ext.P10 order viz., the order dated 18.10.2010, would be forwarded to the Kottayam Municipal Council, the second respondent therein. As already noticed the petitioners have started and continued with the functioning of factories in question based on the licences, permits and consents issued by the competent authorities, viz., the Kumaranalloor Grama Panchayat. Therefore, the question whether those licences are liable to be cancelled is bound to be considered in accordance with the provisions. It is required to be WPC.2254/2011 and connected : 9 : considered, in accordance with law, especially because the licenses were cancelled without actually affording the petitioners in WP(C) No. 8800/2011 an opportunity of being heard. I may hasten to add, before taking the drastic steps of cancellation of permits it would have been only appropriate to afford opportunity to them. Since as per Ext.P6 the licences have already been cancelled and the petitioners have raised all their contentions as per Exts.P12 and P14 before the second respondent in WPC No.8800/2011, I am of the considered view that the second respondent in the said writ petition is bound to consider the objections raised by the petitioner in WPC No.8800/2011 as per Exts.P12 and P14 in accordance with law. The order of cancellation is also liable to be reconsidered after affording an opportunity to the petitioners in WPC No.8800/2011. Necessarily while considering the objections raised by the petitioners therein the petitioners and all other parties concerned viz., the Managing Partners of the aforesaid factories and petitioners in WP(C) Nos.2254/2011 and 9455/2011 are also to be afforded with opportunity of being heard before taking a WPC.2254/2011 and connected : 10 : decision on the aforesaid issues. Taking note of the fact that the petitioners are not able to run the factories on account of the cancellation of the permits as per Ext.P6 and also by virtue of the interim order passed by this Court on 18.3.2011, I am of the view that an expeditious decision on the issue is required. Therefore, these writ petitions are disposed of with a direction to the second respondent in WPC No.8800/2011 to consider Exts.P12 and P14 and also the appeals preferred by them against Ext.P10 orders in WPC No. 4870/2011 and pass orders thereon, in accordance with law. Before passing any orders thereon, the petitioners in WPC No.4870/2011, petitioners in WPC Nos.2254/2011 and WPC No.9455/2011 and all the concerned party respondents shall also be afforded with an opportunity of being heard. This shall be done expeditiously, at any rate, within a period of two weeks from the date of receipt of copy of this judgment.
Sd/-
(C.T. RAVIKUMAR, JUDGE)
jma //true copy//
P.A to Judge