Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 22ND DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 WP(C) NO. 5546 OF 2022 PETITIONER:
CHITRA AGED 39 YEARS W/O. ANILKUMAR, VENCODE VADAKKINKARA PUTTANVEEDU, KUNNATTUKAL, CHEIRIYAKOLLA DESOM, PANACHUMMOODU P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT 695 121 BY ADVS.V.G.ARUN (K/795/2004) NEERAJ NARAYAN V.JAYA RAGI R.HARIKRISHNAN (KAMBISSERIL) RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY , LOCAL SELF GOVERNMENT DEPARTMENT (LSGD) SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001 2 POLLUTION CONTROL BOARD REPRESENTED BY ITS CHIEF ENVIRONMENTAL ENGINEER, DISTRICT OFFICE, PLAMOODU JUNCTION, PATTOM P.O, THIRUVANANTHAPURAM DISTRICT 695 004 3 VELLARADA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, ARATTUKUZHI, PANACHAMOODU P.O, PARASSALA VELLARADA RD, VELLARADA 695 505 4 INSPECTOR OF POLICE VELLARADA POLICE STATION, VELLARADA THIRUVANANTHAPURAM 695 505 5 SHAMEER BISMI MANZIL, KUNNATTUKAL, CHEIRYAKOLLA DESOM, PANACHUMMOODU P.O, NEYYATTINKARA TALUK, THIRUVANNATHAPURAM DISTRICT 695 505 BY ADVS.SRI. T.NAVEEN SC, PCB U.JAYAKRISHNAN, S.AJITH KUMAR, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).No.5546/2022 2 P.V.KUNHIKRISHNAN, J.
-------------------------------- W.P.(C).No.5546 of 2022 ---------------------------------------------- Dated this the 22nd day of August, 2022 JUDGMENT This writ petition is filed with following prayers:
i.
Issue a writ of mandamus or any such other writ or order or direction commanding the respondents No.2 to 4 to take appropriate steps to stall illegal functioning of plywood unit run by the 5th respondent in the property abutting the house of the petitioner situated within the territorial jurisdiction of Vellarada Grama Panchayat.
ii.
Issue a writ of mandamus or any such other writ order or direction directing 2nd respondent to dispose the Exhibit P2 complaint within a time frame fixed by this Hon'ble Court after conducting site inspection and scientific tests iii.
Issue a writ of mandamus or any such other writ order or direction directing 2nd respondent to conduct surprise visit to the unit of the 5th respondent abutting the house of the petitioner and to conduct scientific tests to measure the quantum of air pollution and sound pollution in connection with the full-fledged functioning of the said unit and to report to this Hon'ble Court
W.P.(C).No.5546/2022 3 regarding the same.
iv.
Issue a writ of mandamus or any such other writ or order or direction commanding the respondents to ensure that the 5th respondent is complaining Exhibit P1 circular of the pollution control board or ensure that the 5th respondent is functioning between 6A.M to 6 P.M as per Exhibit P1 circular.
v.
Pass such any other direction, order or reliefs, as this Hon'ble Court may deem fit in the interest of justice, equity and good conscience.
(SIC) 2.
This writ petition is filed by the petitioner aggrieved by the plywood cutting and mica pressing unit started by the 5th respondent. It is the case of the petitioner that there is pollution because of the functioning of the unit of the 5th respondent.
3.
When this writ petition came up for consideration on 24.06.2022, this Court passed the following order:
“An authorised officer of the 2nd respondent will inspect the premises of the petitioner and find out whether any consent is necessary from the Pollution Control Board for conducting the establishment.
The report shall be placed on record within three weeks.”
W.P.(C).No.5546/2022 4 4.
Based on the same, a report is filed by the Environmental Engineer, Kerala State Pollution Control Board. It will be beneficial to extract the relevant portion of the report dated 08.08.2022:
“2. In compliance with the interim order of this Hon'ble court, an inspection was conducted on 03/08/2022. During the inspection it was found that the unit is not a plywood manufacturing unit as stated by the petitioner, but engaged in cutting and edge banding of MDF, plywood and multi wood for making modular kitchen cabinets, cot and similar interior furnishing products. This type of unit comes under "orange" category of the Board and consent of the Board is a pre-requisite to start the unit. As per the distance norms stipulated by the Board, these type of small scale industries has to be established at a minimum distance of 10 m from nearby residences and 15m from other establishments such as educational institutions/ worship centres/ public buildings etc. Petitioner's residence is located at a distance of 5.70m from the shed. The distance criteria of the Board were not satisfied by the unit.
3. During the inspection, it was found that the unit is operational with panel saw machine (7.3HP), manual edge band (3.5HP) and multi boring machine (2.5HP) in a shed size of 15.15X5.8m. The shed is completely enclosed. These machines have inbuilt dust collection
W.P.(C).No.5546/2022 5 facility. A garden net is also provided at a height of 3m facing the Petitioner's residence. During inspection no dust is seen outside the shed. The unit has not obtained Consent from the Board so far. A direction dated 05.08.2022 was issued to the unit directing them to show cause the reason for not obtaining prior consent to establish/operate from the Board and for violating distance norms is produced and marked as Annexure R-2(a).” 5.
The learned counsel for the 5th respondent seriously opposed the averments in the report. The learned counsel submitted that the averments in the report are unsustainable.
This Court is not going to the merit of the case. It is clear from the report that Ext.R2(a) show cause notice is issued to the petitioner. If that is the case, the petitioner is free to submit her explanation to the Pollution Control Board and the Pollution Control Board will consider the same in accordance to law. This writ petition can be disposed directing the Pollution Control Board to proceed in accordance to law based on Ext.R2(a), after giving an opportunity of hearing to the petitioner and the 5th respondent, if there is any pollution. The Panchayat can also proceed in accordance to law, if there is any violation.
W.P.(C).No.5546/2022 6 Therefore, this writ petition is disposed of in the following manner:
1.
There will be a direction to the competent authority of the 2nd respondent to proceed with Ext.R2(a) in accordance to law, after giving an opportunity of hearing to the petitioner and the 5th respondent.
2.
The 3rd respondent is also directed to proceed in accordance to law, after giving an opportunity of hearing to the petitioner and the 5th respondent.
3.
The above exercise should be completed by respondents 2 and 3, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.
4.
In the meanwhile, the 5th respondent can function the unit only in accordance to the directions of the Pollution Control Board and the Panchayat authorities.
sd/- P.V.KUNHIKRISHNAN JV JUDGE
W.P.(C).No.5546/2022 7 APPENDIX OF WP(C) 5546/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE CIRCULAR NO PCB/HO/SEE-3/TECH-01/2019 DATED 22-01- 2021 ISSUED BY THE POLLUTION CONTROL BOARD Exhibit P2 TRUE COPY OF THE COMPLAINT DATED 6-1- 2022 FILED BEFORE THE 2ND RESPONDENT POLLUTION CONTROL BOARD Exhibit P3 TRUE COPY OF THE RECEIPT DATED 6-1- 2022 BEFORE THE VELLARADA GRAMA PANCHAYAT Exhibit P4 TRUE COPY OF THE COMPLAINT DATED 6-1- 2022 BEFORE THE VELLARADA GRAMAPANCHAYAT Exhibit P5 TRUE COPY OF THE COMPLAINT FILED BEFORE THE STATION HOUSE OFFICER, VELLARADA POLICE STATION DATED 8-1- 2022 Exhibit P6 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED TO PETITIONER BY VELLARADA POLICE RESPONDENT EXHIBITS Exhibit R5(A) PHOTOGRAPH OF THE UNIT OF THE 5TH RESPONDENT Exhibit R5(B) TRUE COPY OF THE BUILDING INTERIOR DECORATION AGREEMENT DATED 16/04/2021 EXECUTED BY THE 5TH RESPONDENT WITH MR. RATHEESH BABU Exhibit R5(C) TRUE COPY OF THE STATEMENT SIGNED BY THE NEIGHBOURS OF THE 5TH RESPONDENT Exhibit R5(D) TRUE COPY OF THE GST REGISTRATION CERTIFICATE OF THE 5TH RESPONDENT Exhibit R5(E) TRUE COPY OF THE LOAN SANCTION LETTER DATED 02/12/2020 ISSUED FROM BANK OF BARODA Exhibit R5(F) TRUE COPY OF THE LOAN CONFIRMATION LETTER DATED 04/03/2022 ISSUED BY BANK OF BARODA
W.P.(C).No.5546/2022 8 Exhibit R5(G) TRUE COPY OF THE UDAYAM REGISTRATION CERTIFICATE OF THE 5TH RESPONDENT Exhibit R5(H) TRUE COPY OF THE ACKNOWLEDGEMENT CERTIFICATE BEARING NO.KLMSM3- 9847/2021 DATED 30/12/2021 ISSUED FROM DEPARTMENT OF INDUSTRIES AND COMMERCE, GOVERNMENT OF KERALA Exhibit R5(I) TRUE COPY OF THE PAYMENT RECEIPT DATED 30/12/2021 BEARING APPLICATION NO. KL- 16517/2021 ISSUED FROM K-SWIFT Exhibit R5(J) TRUE COPY OF THE MEDICAL RECORDS OF THE 5TH RESPONDENT