Akhil Augusty v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **MONDAY, THE 3RD DAY OF FEBRUARY 2014/14TH MAGHA, 1935** ## **WP(C).No. 27794 of 2013 (Y)** **----------------------------** - **PETITIONER(S): ------------------------** **AKHIL AUGUSTY, AGED 21 YEARS, S/O.AUGUSTHY, KUNNATHEL HOUSE, SASIMALA.P.O., PULPALLY, WAYANAD DISTRICT-673 579.** **BY ADVS.SRI.C.V.MANUVILSAN SRI.RAJAN VISHNURAJ SRI.V.HARISH** ## **RESPONDENT(S):** - **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT COLLECTOR, KALPETTA, WAYANAD-673 121.** **3. THE ENVIRONMENTAL ENGINEER, DISTRICT OFFICE, KERALA STATE POLLUTION CONTROL BOARD, PINANGODE ROAD, KALPETTA, WAYANAD-673 121.** **4. THE SUB COLLECTOR, MANANTHAVADI, WAYANAD -673 579.** **5. THE MULLANKOLLI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MULLANKOLLI.P.O., WAYANAD-673 579.** **6. THE VILLAGE OFFICER, PADICHIRA, WAYANAD-673 579.** **..2/-** **Kss** **..2....** ## **WPC.NO.27794/2013 (Y)** **7. DIVISIONAL FOREST OFFICER, SOUTH WAYANAD DIVISION, KALPETTA .P.O., WAYANAD DISTRICT-673 121.** **8. CIRCLE INSPECTOR OF POLICE, MULLANKOLLI, WAYANAD-673 579.** **9. M/S. PULPALLY STONE CRUSHERS, PULPALLY, SASIMALA.P.O,** **WAYANAD DIST.REPRESENTED BY ITS MANAGING DIRECTOR BINOJ.K.BABY, KUNNATH HOUSE, MULLENKOLLY.P.O, WAYANAD, PIN-673 579.** **10. THE EXECUTIVE DIRECTOR, CENTRE FOR WATER RESOURCE AND DEVELOPMENT, KUNNAMANGALAM .P.O, KOZHIKODE-673 571.** **11. THE DISTRICT OFFICER, GROUND WATER DEPARTMENT, MEENANGADY.P.O, WAYANAD, PIN-673 591.** **12. THE SENIOR ENVIRONMENTAL ENGINEER, STATE POLLUTION CONTROL BOARD, KOZHIKODE-673 001.** **R1,R2,R4,R6,R7,R8 & R11 BY SPL.GOVT.PLEADER (FORESTS) SRI.M.P.MADHAVANKUTTY R3 & R12 BY ADV. SRI.JOICE GEORGE, SC,** **KERALA STATE POLLUTION CONTROL BOARD R5 BY ADV. SRI.MANOJ RAMASWAMY R9 BY SRI.S.SREEKUMAR,SENIOR ADVOCATE ADVS. SRI.P.MARTIN JOSE SRI.P.PRIJITH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** **WP(C).No. 27794 of 2013 (Y) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **---------------------------------------** **EXT.P1 A TRUE PHOTOCOPY OF THE OWNERSHIP CERTIFICATE DATED 22.07.2013 ISSUED BY THE PANCHAYATH.** **EXT.P2 A TRUE PHOTOCOPY OF THE LICENSE VIZ.CONSENT TO ESTABLISH VIDE NO.PCB/WND/ICE/227/2010 DATED 29.07.2010,ISSUED BY THE 3RD RESPONDENT.** **EXT.P3 A TRUE COPY OF THE ORDER NO.K-406/11 DASTED 28/07/2011 ISSUED BY THE 4TH RESPONDENT(A).** **EXT.P3(A) A TRUE PHOTOCOPY OF HTE REPORT OF THE EXECUTIVE DIRECTOR,CENTRE FOR WATER RESOURCE AND DEVELOPMENT ON THE ENVIRONMENT FEASIBILITY OF ESTABLISHING A STONE CRUSHER UNIT AT SASIMALA,IN MULLANKOLLY PANCHAYATH.** **EXT.P4 A TRUE COPY OF THE JUDGMENT DATED 16.07.2013 IN W.P(C)22625/2011.** **EXT.P5 A TRUE COPY OF THE REPRESENTATION DATED 03.05.2013.** **EXT.P5(A) A TRUE PHOTOCOPY OF THE ACKNOWLEDGMENT VIDE NO.134/2013 DATED 02.05.2013.** **EXT.P6 A TRUE PHOTOCOPY OF THE LICENSE DATED 23.08.2013,VIZ.CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD TO THE 9TH RESPONDENT.** **EXT.P7 A TRUE PHOTOCOPY OF THE CIRCULAR VIDE NO.PCB/TAC/ST.CR.COM/65/2005 DATED 24.11.2009.** **EXT.P8 A TRUE PHOTOCOPY OF THE SEIZURE MAHAZAR DATED 22.02.2011 OF CHEDLETH FOREST RANGE.** **EXT.P9 A TRUE PHOTOCOPY OF THE COMMUNICATION UNDER RTI ACT DATED 21.08.2013 ISSUED BY THE PUBLIC INFORMATION OFFICER,PCB DISTRICT OFFICE,WAYANAD.** **EXT.P10 A TRUE PHOTOCOPY OF THE OBJECTION DATED 23.09.2013,SUBMITTED BEFORE THE ENVIRONMENTAL ENGINEER.** **EXT.P11 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 23.10.2013 SUBMITTED BEFORE THE SENIOR ENVIRONMENTAL ENGINEER,KOZHIKODE.** **Kss** **..2/-** **...2....** ## **WPC.NO.27794/2013 (Y)** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** **R9(A): COPY OF JUDGMENT IN WPC.NO.2533 OF 2011 DTD. 07/02/2011 OF THIS HON'B LE COURT.** **R9(B): COPY OF CERTIFICATE DTD. 28/02/2011 ISSUED BY THE 5TH RESPONDENT PANCHAYAT.** **R9(C): COPY OF PROCEEDINGS DTD. 20/04/2011 ISSUED BY THE 3RD RESPONDENT.** **R9(D): COPY OF ORDER DTD. 28/07/2011 ISSUED BY THE 4TH RESPONDENT SUB COLLECTOR.** **R9(E): COPY OF INTERIM ORDER DTD. 14/10/2011 IN WPC.NO.22625 OF 2011.** **R9(F): COPY OF REPORT DTD. 13/06/2013 SUBMITTED BY THE 3RD RESPONDENT BEFORE THIS HON'BLE COURT.** **R9(G): COPY OF ORDER DTD. 08/11/2013 IN APPEAL NO.146 OF 2012 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, TRIVANDRUM.** **R9(H): COPY OF PHOTOGRAPHS SHOWING THE ALLEGED BUILDING BELONGING TO THE PETITIONER.** **R9(I): COPY OF PHOTOGRAPH SHOWING THE RESIDENTIAL BUILDING OF THE PETITIONER.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **P.N.RAVINDRAN, J. ----------------------------------------W.P.(C).No.27794 of 2013 ----------------------------------------Dated this the 3[rd] day of February, 2014** ## **JUDGMENT** Ext.P6 consent to operate issued to the 9[th] respondent by the Environmental Engineer, District Office, Kerala State Pollution Control Board, Kalpetta, Wayanad under section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and section 21 of the Air (Prevention and Control of Pollution) Act, 1981 is under challenge in this writ petition filed under Article 226 of the Constitution of India wherein the petitioner also prays for a writ in the nature of mandamus directing the 12[th] respondent (Senior Environmental Engineer, State Pollution Control Board, Kozhikode) to consider Ext.P11 representation filed by him and pass appropriate orders thereon after affording him an opportunity of being heard. 2. Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 and section 31 of the Air (Prevention and Control of Pollution) Act, 1981 provide for an appeal to the appellate authority at the instance of any person from an order made by the Kerala State Pollution Control Board. The period of W.P(C)No.27794/2013 -:2:- limitation prescribed for filing an appeal is thirty days. The appellate authority is also empowered to entertain the appeal after the expiry of the said period of thirty days if the appellate authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. Under section 33B of the Water (Prevention and Control of Pollution) Act, 1974 and section 31B of the Air (Prevention and Control of Pollution) Act, 1981 a further appeal lies to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010. Such being the situation I am of the opinion that the petitioner should invoke the appellate remedy available to him instead of seeking the intervention of this Court. 3. A Division Bench of this Court has in _**Biju Chacko v. The Dy.Director, Mining & Geology**_ , 2006 (1) KLJ 401, which was a case arising under the Minor Mineral Concession Rules, 1967, held that when the statute provides remedies by way of appeal and second appeal followed by a review there is no justification in invoking the jurisdiction of this Court under Article 226 of the Constitution of India. The same is the situation in the case on hand where the petitioner has two remedies by way of W.P(C)No.27794/2013 -:3:- appeal, one before the appellate authority and a further appeal before the National Green Tribunal. Such being the situation, I am of the opinion that the petitioner should invoke the appellate remedies available to him instead of seeking the intervention of this Court under Article 226 of the Constitution of India. I accordingly decline jurisdiction and dismiss the writ petition, leaving open the contentions of both sides and without prejudice to the right of the petitioner to invoke the appellate remedies available to him. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P.(C).No.27794 of 2013 ----------------------------** ## **JUDGMENT** **3[rd] February, 2014**