Anisha J. v. District Collector, Kasaragod; Udma Grama Panchayath; Kerala State Pollution Control Board; Musthafa A.P. v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** # **`WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 WP(C) NO. 24471 OF 2017`** ## **`PETITIONER:`** ``` ANISHA J. AGED 42 YEARS, W/O.RAMAKANTH SARJU, SUJATHA NIVAS, NEAR CANARA BANK,PALAKKUNNU, PALLIKKARA II VILLAGE,P.O. BEKAL, HOSDURG TALUK. BY ADV SRI.A.ARUNKUMAR ``` ## **`RESPONDENTS:`** - **`1 DISTRICT COLLECTOR, KASARAGOD COLLECTORATE, VIDHYANAGAR, KASARAGOD.`** - **`2 REVENUE DIVISIONAL OFFICER KASARAGOD AT KANHANGAD, KANHANGAD P.O, HOSDURG TALUK. 671 315.`** - **`3 UDMA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY,P.O.UDMA, KASARAGOD DISTRICT. 671319.`** - **`4 THE SECRETARY UDMA GRAMA PANCHAYATH, P.O. UDMA, KASARAGOD DISTRICT. 671 319.`** - **`5 THE ENVIRONMENT ENGINEER KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, KASARAGOD, MAM ARCADE, NEAR RAILWAY STATION, KANHANGAD. 671315.`** - **`6 MUSTHAFA AGE AND FATHER'S NAME NOT KNOWN, PROPRIETOR QUALITY RESTAURANT, PALAKKUNNU, P.O.BEKAL, KASARAGOD DISTRICT -671 315.`** - **`7 THE QUALITY RESTAURANT REPRESENTED BY ITS MANAGER, PALAKKUNNU, P.O.BEKAL, KASARAGOD DISTRICT -671 315. BY ADVS.SRI.BINU GEORGE SRI. T.NAVEEN SC, KERALA PCB SRI.O.V.MANIPRASAD SMT.HEMALATHA SRI.RIYAL DEVASSY, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.05.2024, ALONG WITH WP(C).22273/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).Nos.24471 & 22273 of 2017 **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 WP(C) NO. 22273 OF 2017 ``` ## **`PETITIONER:`** ``` MUSTHAFA A.P. AGED 58 YEARS S/O.HAMSA, PROPRIETOR QUALITY RESTAURANT, A.P. HOUSE, PALAKUNNU PO, BEKAL, KASARGOD 671318 BY ADVS.SRI.O.V.MANIPRASAD SRI.JOSE ANTONY ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM`** - **`2 THE SECRETARY UDMA GRAMA PANCHAYATH, UDMA, PALLOM PO, KASARAGOD`** - **`3 DISTRICT MEDICAL OFFICER KASARGOD`** - **`4 THE KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS SENIOR ENVIRONMENTAL ENGINEER, KASARGOD`** - **`5 SMT. ANEESHA D/O.JANARDHANAN, SUJATHA NIVAS,PALAKUNNU PO, BEKAL, KASARGOD BY ADVS.SRI.BINU GEORGE SRI. T.NAVEEN SC, KERALA PCB SRI.A.ARUNKUMAR GOVERNMENT PLEADER SRI.RIYAL DEVASSY SMT.HEMALATHA`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.05.2024, ALONG WITH WP(C).24471/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).Nos.24471 & 22273 of 2017 **3** ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------W.P.(C).Nos.24471 & 22273 of 2017 ---------------------------------------------Dated this the 22[nd] day of May, 2024** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing these writ petitions by a common judgment. 2. W.P.(C). No.24471/2017 is filed by the petitioner alleging that the restaurant conducted by the 6[th] respondent is creating pollution to the drinking water in the well situated in her property. The petitioner submitted that Exts.P4, P10 and P13 reports show that the water in the well of the petitioner is polluted. Ext.P11 communication from the Director of Ground Water Department, Kasaragod shows that the water in the well of the petitioner is polluted from the waste of the 7[th] respondent restaurant run by the 6[th] respondent is the submission. Copies of all the reports and Ext.P11 communication were communicated to the 3[rd] respondent within time and there is no action at all from the part of the 3[rd] respondent to protect the rights of the petitioner and her WP(C).Nos.24471 & 22273 of 2017 **4** family is the grievance of the petitioner. Hence this writ petition is filed with following prayers: - i. issue writ of mandamus, any other, writ, order or direction commanding the 3[rd] respondent to direct the 6[th] respondent to make necessary arrangements for proper waste management in 7[th] respondent Restaurant and take action against them for causing pollution; - ii. issue writ of mandamus, any other, writ, order or direction commanding the 3[rd] respondent to direct the 6[th] respondent close down 7[th] respondent restaurant till providing proper waste treatment plant. - iii. issue writ of mandamus, any other, writ or order, directing the 5[th] respondent to see that the 7[th] respondent restaurant is functioning only by complying with all statutory requirements and proper waste treatment plant; - iv. issue any other writ or order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case; **==> picture [36 x 12] intentionally omitted <==** 3. W.P.(C). No.22273/2017 is filed by the 6[th] respondent in W.P.(C). No.24471/2017. The petitioner in this case is conducting a restaurant in the name and style 'Quality Restaurant and Bakery'. According to the petitioner, the WP(C).Nos.24471 & 22273 of 2017 **5** restaurant and bakery is functioning for the last several years. It is also submitted that, the 5[th] respondent in this writ petition, who is the petitioner in W.P.(C). No.24471/2017, is in inimical terms with him and hence unnecessary allegations are raised against the restaurant conducted by the petitioner is the submission. According to the petitioner, the well is situated about 24 metres away from the restaurant and it is not causing any pollution to the well water and the allegation is only to wreak vengeance against the petitioner. The petitioner in this writ petition is mainly aggrieved by Ext.P8 order by which the Udma Grama Panchayat directed to stop the functioning of the restaurant. This writ petition is filed with following prayers: - i. To issue a writ of certiorari quashing Ext.P8. ii. To issue a writ of mandamus, order or direction, directing the 4[th] respondent to suggest appropriate remedial measures if any to be taken in the issue covered by Ext P8 after making inspection. - iii. To issue a writ of mandamus, order or direction, directing the 2[nd] respondent not to take any action against the petitioner till a final decision is WP(C).Nos.24471 & 22273 of 2017 **6** arrived at by the 4[th] respondent. - iv. To issue a writ of mandamus, order or direction, directing the 2[nd] respondent to keep in abeyance Ext P8 and all further proceedings till a proper report is obtained from 3[rd] respondent. - v. Such other relief this Hon'ble court deems fit and proper to grant in the facts and circumstances of the case. **==> picture [39 x 13] intentionally omitted <==** 3. Heard the learned counsel for the petitioners in these writ petitions and the learned Government Pleader. I also heard the learned counsel for the Panchayat and the learned Standing Counsel for the Pollution Control Board. 4. The petitioner in W.P.(C). No.24471/2017 is aggrieved by the alleged pollution because of the functioning of a restaurant and bakery conducted by the petitioner in W.P. (C). No.22273/2017. The grievance of the petitioner in W.P. (C). No.22273/2017 is that the stop memo is issued without giving an opportunity of hearing to the petitioner. When W.P. (C). No.22273/2017 came up for consideration on 06.07.2017, this Court stayed the operation of Ext.P8 for a period of one month. The interim order was extended until further orders on 16.09.2017. Even now the interim order is in force and WP(C).Nos.24471 & 22273 of 2017 **7** based on the order, the restaurant is functioning. According to the petitioner in W.P.(C). No.24471/2017, even now the pollution from the restaurant is continuing. 5. Considering the facts and circumstances of the case and also considering the contentions of the petitioner in W.P. (C). No.22273/2017, I am of the considered opinion that the impugned order in W.P.(C). No.22273/2017 can be set aside and there can be a direction to the Panchayat to reconsider the matter, after giving an opportunity of hearing to the petitioners in these writ petitions. I make it clear that I have not considered the matter on merit and the Panchayat is free to pass appropriate orders, after giving an opportunity of hearing to the petitioners. Therefore, these writ petitions are disposed of with following directions: 1. Ext.P8 in W.P.(C). No.22273/2017 is set aside. 2. The 2[nd] respondent in W.P.(C). No.22273/2017 is directed to reconsider the matter, after giving an opportunity of hearing to the petitioners in these WP(C).Nos.24471 & 22273 of 2017 **8** writ petitions and pass appropriate orders in accordance with law, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. 3. All the contentions of the petitioners in these writ petitions are left open and they are free to agitate the same before the Panchayat at the time of hearing. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).Nos.24471 & 22273 of 2017 **9** ## **`APPENDIX OF WP(C) 22273/2017`** ``` PETITIONER EXHIBITS EXHIBIT P1THE TRUE COPY OF THE LICENCE ISSUED BY THE FOOD SAFETY AND STANDARDS OF INDIA, GOVERNMENT OF KERALA EXHIBIT P2THE TRUE COPY OF THE LICENSE DATED 25.05.2017ISSUEDBYTHE2ND RESPONDENT EXHIBIT P3THE TRUE COPY OF THE COMPLAINT DATED 04.06.2016 FILED BY THE 5TH RESPONDENT BEFORE THE PETITIONER EXHIBIT P4THE TRUE COPY OF THE DECISION DATED 13.07.2016 OF THE PANCHAYATH COMMITTEE EXHIBIT P5THE TRUE COPY OF THE REPORT DATED 25.04.2017 OF THE 3RD RESPONDENT EXHIBIT P6THE TRUE COPY OF THE NOTICE DATED 07.06.2017 OF THE 2ND RESPONDENT EXHIBIT P7THE TRUE COPY OF THE REPLY DATED 20.06.2017 GIVEN TO THE 2ND RESPONDENT BY THE PETITIONER EXHIBIT P8THE TRUE COPY OF THE NOTICE DATED 29.06.2016 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT EXHIBIT P9THE TRUE COPY OF THE REPLY DATED 30.06.2017ISSUEDTOTHE2ND RESPONDENT BY THE PETITIONER ``` ## **`RESPONDENTS EXHIBITS`** ``` EXT. R2(A): A TRUE COPY OF COMMITTEE MEETING DECISION DATED 13.07.2016. ``` ``` EXT. R2(B):A TRUE COPY OF COMMITTEE MEETING DECISION DATED 25.04.2017. ``` ``` EXT. R2(C A TRUE COPY OF REPORT DATED 1.06.2017 ISSUED BY ASSISTANT ENGINEER. ``` WP(C).Nos.24471 & 22273 of 2017 **10** ``` EXT. R2(D): A TRUE COPY OF REPORT DATED 29.05.2017 ISSUED FROM GROUND WATER DEPARTMENT, VIDYANAGR, KASARGOD. ``` ``` EXT. R2(E): A TRUE COPY OF NOTICE DATED 7.06.2017. ``` ``` EXT. R2(F): A TRUE COPY OF LETTER DATED 11.07.2017 ISSUED FROM RDO KASARAGOD AT KANHANGAD. ``` WP(C).Nos.24471 & 22273 of 2017 **11** ## **`APPENDIX OF WP(C) 24471/2017`** ``` PETITIONER EXHIBITS EXHIBIT P1A TRUE COPY OF THE COMPLAINT GIVEN BY THE FATHER OF THE PETITIONER TO THE 1ST RESPONDENT DATED 06.09.2007 EXHIBIT P2A TRUE COPY OF THE COMPLAINT GIVEN BY THE FATHER OF THE PETITIONER TO THE 2ND RESPONDENT DATED 07.04.2008 EXHIBIT P3A TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 04.06.2016 EXHIBIT P4A TRUE COPY OF THE REPORT DATED 24.06.216 FROM REGIONAL ANALYTICAL LABORATORY, KOZHIKODE. EXHIBIT P5A TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P6A TRUE COPY OF THE COMMUNICATION DATED 29.06.2016ISSUEDBYTHE2ND RESPONDENT TO THE 3RD RESPONDENT EXHIBIT P7A TRUE COPY OF THE HEARING NOTICE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT EXHIBIT P8A TRUE COPY OF THE COMPLAINT DATED 24.06.2016 GIVEN TO THE 1ST RESPONDENT EXHIBIT P9A TRUE COPY OF THE COMPLAINT DATED 12.04.2017GIVENTOTHE1ST RESPONDENT. EXHIBIT P10A TRUE COPY OF THE REPORT OF ANALYSIS DATED 18.05.2017 FROM FOOD SAFETY DEPARTMENT,REGIONALANALYTICAL LABORATORY, KOZHIKODE. EXHIBIT P11A TRUE COPY OF THE COMMUNICATION DATED 29.05.2017 OF THE DIRECTOR OF GROUND WATER DEPARTMENT, KASARGOD. EXHIBIT P12A TRUE COPY OF THE COMPLAINT GIVEN TO THE 5TH RESPONDENT DATED 01.06.2017 EXHIBIT P13A TRUE COPY OF THE REPORT ON ANALYSIS OF WATER DATED 07.06.2017 OF KERALA WATER AUTHORITY. EXHIBIT P14TRUE COPY OF THE LETTER ISSUED BY THE ``` WP(C).Nos.24471 & 22273 of 2017 **12** ``` 5TH RESPONDENT TO THE 7TH RESPONDENT DATED 11.07.2017 ``` ``` EXHIBIT P15 ``` ``` A TRUE COPY OF THE LETTER DATED 11.07.2017ISSUEDBYTHE2ND RESPONDENT TO THE 33RD RESPONDENT. ``` ## **`RESPONDENTS’ EXHIBITS:`** ``` EXT.R4(A): A TRUE COPY OF APPLICATION FOR D&O LICENSE DATED 24/4/2017. ``` ``` EXT.R4(B): A TRUE COPY OF SANITARY CERTIFICATE ISSUED BY HEALTH INSPECTOR, PRIMARY HEALTH CENTRE, UDMA. ``` ``` EXT.R4(C): A TRUE COPY OF COMMITTEE MEETING DECISION DATED 13/7/2016. ``` ``` EXT.R4(D): A TRUE COPY OF COMMITTEE MEETING DECISION DATED 25/4/2017. ``` ``` EXT.R4(E): A TRUE COPY OF REPORT DATED 1/6/2017 ISSUED BY ASSISTANT ENGINEER. ``` ``` EXT.R4(F): A TRUE COPY OF NOTICE DATED 7.06.2017. ``` ``` EXT. R4(G): A TRUE COPY OF STOP MEMO DATED 29/6/2017. ``` ``` ANNEXURE R5(1) - TRUE COPY OF THE NOTICE DATED 6-7- 2017 ISSUED BY THE PCB. ``` ``` ANNEXURE R5(2) - TRUE COPY OF THE REPLY DATED 17-7- 2017 SUBMITTED BY THE UNIT. ``` **13** WP(C).Nos.24471 & 22273 of 2017 ``` ANNEXURE R5(3) - TRUE COPY OF THE LETTER DATED 28-7- 2017 ISSUED BY THE PCB. ``` ``` ANNEXURE R5(4) - TRUE COPY OF THE ANALYSIS REPORT DATED 25-7-2017. ```