IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

           THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
                                   &
              THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

         TUESDAY, THE 5TH DAY OF MARCH 2013/14TH PHALGUNA 1934

                      WP(C).No. 24935 of 2012 (S)
                      ---------------------------
PETITIONER(S):
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       P.SASI, ADVOCATE,
       THALASSERY, RESIDING AT 'SEASCAPE', HOLLOWAY ROAD
       THALASSERY-1, KANNUR DISTRICT.

       BY ADVS.SRI.M.SASINDRAN
                        SRI.V.VENUGOPAL
                        SRI.PRADEESH MATHEW

RESPONDENT(S):
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     1. STATE OF KERALA,
       REPRESENTED BY CHIEF SECRETARY, SECRETARIAT
       THIRUVANANTHAPURAM-695001.

     2. THE KERALA STATE POLLUTION CONTROL BOARD,
       THIRUVANANTHAPURAM-695001
       REPRESENTED BY ITS CHAIRMAN.

     3. THE DISTRICT POLICE CHIEF,
       KANNUR-670001.

       R1 AND R3 BY SR.GOVERNMENT PLEADER SRI.P.I.DAVIS
       R BY SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BO

         THIS WRIT PETITION (CIVIL)     HAVING BEEN FINALLY HEARD ON
05-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:



                     MANJULA CHELLUR, C.J
                                   &
                     K.VINOD CHANDRAN, J.

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                   W.P(C).No. 24935 of 2012

              ----------------------------------------------

            Dated this the 5th day of March, 2013

                              O R D E R

Manjula Chellur, C.J.

The present Writ Petition is filed seeking the following reliefs:

"i) Issue a writ of mandamus or any other writ order or direction to the respondents to take immediate action for preventing emission of waste water from the lorries and other vehicles transporting fish through the National Highway-17 in Kasaragod, Kannur and Kozhikode Districts and other roads.

ii) To command the first respondent to take appropriate steps for taking action against those who are causing emission of waste water from lorries and other vehicles carrying fish through the public road.

iii) To command the 2nd respondent to take appropriate action for abatement of nuisance caused on account of the emission of waste water from lorries  WP(C).24935/12 2 carrying fish through the public road. iv. To issue any other writ order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case."

2. Learned counsel for the petitioner contends that serious nuisance and health hazards are caused due to air pollution on account of emission of waste water from the vehicles carrying fish through the National Highway-17 passing through Kasaragod, Kannur and Kozhikode districts resulting in constant foul odour and health hazards. Grounds 'B' and 'C' of the Writ Petition clearly indicate what exactly is the emission which causes air pollution and what enactment has to be looked into. For the sake of convenience, the above two paragraphs are extracted hereunder:

"B. According to the studies conducted by US Department of Health, Education and Welfare, the presence in the outdoor atmosphere of one or more contaminants or combinations thereof in such quantities and of such duration as may be or may tend to be injurious to human, plant or animal life or property or which unreasonably interferes with the comfortable enjoyment of life or property or conduct of business. An expert committee of  WP(C).24935/12 3 the Central Pollution Control Board defined air pollution as contamination of surrounding air with unwanted odour, sound, gaseous or dust which tends to interference with comfortable living conditions. The 'WHO' has defined the air pollution as subsistence put into the air by the activity of man in concentration sufficient to cause harmful effect to the health, vegetation, property, or to interfere with the enjoyment of his property. Air pollution is presence in the outdoor atmosphere of one or more contaminants such as dust, fumes, gas, mist, odour, smoke of vapor in quantities characteristics and duration such as to be injurious to human, plants or animal life or property or which unreasonably interfere with the comfortable enjoyment of life and property. The constant spreading of waste water throughout the public road comes within the purview of air pollution and hence the authorities vested with the power to control pollution is duty bound to take action or preventing such activities by the transporters of fish through the road. The inaction on the authorities is thus liable to be interfered with by this Hon'ble Court.

C. Section 2(a) of the Air (Prevention and  WP(C).24935/12 4 Control of Pollution) Act 1981 defines air 'pollutant' as any solid, liquid or gaseous subsistence including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment and air pollution defines under section 2(b) as the presence in the atmosphere of any air pollutant. Section 17 of the Act enumerates the functions of the State Pollution Control Board. It includes to plan a comprehensive programme for prevention control or abatement of air pollution and to secure the execution thereof and the Board is empowered under section 22A to make application to court for restraining persons from causing air pollution. In the case on hand, the emission of waste water from the lorries transporting fish causes severe air pollution resulting in serious health hazard. Hence the duty of the State Pollution Control Board to see that the nuisance caused by odour is abated. The failure on the part of the State Pollution Control Board is thus absolutely illegal, arbitrary and liable to be interfered with by this Hon'ble Court."

3. The petitioner contends that environment throughout the  WP(C).24935/12 5 public road and nearby areas get polluted severely on account of continuous overflow of waste containing parts of contaminated fish and chemicals used for preservation of fish throughout the road where such vehicles pass through. Having regard to the nature of allegations raised in this public interest litigation, in the light of the National Green Tribunal Act of 2010, which has already come into force and also the judgment of the Apex Court in W.P(C).No. 50 of 1998 dated 9.8.2012, the above matter deserves to be transmitted to the National Green Tribunal at Chennai.

The Registry is directed to do the needful in the light of the directions in the judgment of the Apex Court in WP(C).No.50 of 1998.

MANJULA CHELLUR, CHIEF JUSTICE K.VINOD CHANDRAN, JUDGE vgs5.3