Ashamol P.R. v. Kerala State Pollution Control Board; P.D. Mani, P.M. Cyriac & Lincy Cyriac v Athirampuzha Grama Panchayat and Others (WP(C).Nos.5606/2019 and 16615/2019)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941** ## **WP(C).No.5606 OF 2019(A)** ## **PETITIONER:** ## **ASHAMOL.P.R. AGED 43 YEARS** **W/O MANIKEN.V,RESIDING AT PAITTETTUPARAMBIL ATHIRAMPUZHA, KOTTAYAM DISTRICT,PIN-686562.** **BY ADVS. SRI.R.O.MUHAMED SHEMEEM SMT.NASEEHA BEEGUM P.S.** ## **RESPONDENTs:** - **1 THE CHAIRMAN, KERALA STATE POLLUTION CONTROL BOARD HEAD OFFFICE,PATTOM.P.O,THIRUVANANTHAPURAM, PIN-695004.** - **2 THE CHIEF ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, SCHOOL MASTER BUILDING,NEAR KARIIKINETH TEXTILES,NAGAPADAM,KOTTAYAM,PIN-656001.** - **3 THE ENVIRONMENTAL ENGINEER, DISTRICT OFFICE,KERALA STATE POLLUTION CONTROL BOARD,SCHOOL MASTER BUILDING, NEAR KARIKINETH TEXTILES,NAGAPADAM, KOTTAYAM,PIN-656001.** - **4 HEALTH OFFICER, PRIMARY HEALTH CENTRE,ATHIRAMPUZHA, KOTTAYAM DISTRICT,PIN-686562.** - **5 THE SECRETARY, ATHIRAMPUZHA GRAMA PANCHAYATH OFFICE, ATHIRAMPUZHA.P.O,KSRTC DEPOT, THIRUVANANTHAPURAM,PIN-695033.** **6 THE DIRECTOR, VIGILANCE ANTI CORRUPTION BUREAU, PMG,VIKAS BHAVAN.P.O,OPPOSITE KSRTC DEPOT,THIRUVANANTHAPURAM,PIN-695033.** - **7 THE DISTRICT POLICE CHIEF, CIVIL STATION,KOTTTAYAM DISTRICT, PIN-686002.** - **8 STATION HOUSE OPFFICER, GANDHI NAGAR POLICE STATION, GANDHI NAGAR,KOTTAYAM,PIN-686002.** **WP(C).Nos.5606 & 16615 OF 2019** **2** **9** **P.T.MANI, PROPRIETOR,KINGS RUBBER FACTORY, ATHIRAMPUZHA.P.O,KOTTAYAM DISTRICT, PIN-686562.** **BY ADV. SRI.SIBY CHENAPPADY BY ADV. SMT.ANU GEORGE BY ADV. SRI.ABRAHAM GEORGE JACOB BY ADV. SRI.JIBU P THOMAS** ## **OTHER PRESENT:** **SRI.T.NAVEEN - SC, SMT.POOJA SURENDRAN - GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2019, ALONG WITH WP(C).16615/2019(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.5606 & 16615 OF 2019** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941** ## **WP(C).No.16615 OF 2019(B)** ## **PETITIONERS:** |**1**|**P.D.MANI**| |---|---| ||**AGED 84 YEARS**| ||**SON OF DEVASIA**| ||**RESIDING AT PURAKARAYIL HOUSE, ATHIRAMPUZHA P.O.,**| ||**KOTTAYAM 686 562.**| |**2**|**P.M. CYRIAC**| ||**AGED 55 YEARS**| ||**S/O. MANI**| ||**RESIDING AT PURAKARAYIL HOUSE, ATHIRAMPUZHA P.O.,**| ||**KOTTAYAM 686 562.**| |**3**|**LINCY CYRIAC**| ||**AGED 49 YEARS**| ||**WIFE OF CYRIAC,**| ||**RESIDING AT PURAKARAYIL HOUSE, ATHIRAMPUZHA P.O.,**| ||**KOTTAYAM 686 562.**| ||**BY ADVS.**| ||**SRI.ABRAHAM GEORGE JACOB**| ||**SRI.JIBU P THOMAS**| ## **RESPONDENTS:** |**1**|**ATHIRAMPUZHA GRAMA PANCHAYAT**| |---|---| ||**ATHIRAMPUZHA P.O., KOTTAYAM 686 562**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**THE SECRETARY,**| ||**ATHIRAMPUZHA GRAMA PANCHAYT,**| ||**ATHIRAMPUZHA P.O.,**| ||**KOTTAYAM 686 562.**| |**3**|**THE PANCHAYAT STANDING COMMITTEE**| ||**FOR HEALTH AND EDUCATION, ATHIRAMPUZHA GRAMA PANCHAYATH**| ||**ATHIRAMPUZHA P.O.,**| **WP(C).Nos.5606 & 16615 OF 2019** **4** **KOTTAYAM 686 562, REPRESENTED BY ITS CHAIRMAN.** - **4 KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY THE ENVIRONMENTAL ENGINEER, DISTRICT OFFICE, ST. ANTONYS, COMPLEX, NAGAMAPADOM, KOTTAYAM 686 001** - **5 SALIMON M.K., SON OF MADHAVAN RESIDING AT SREEBHAVAN, ATHIRAMPUZHA P.O., KOTTAYAM 686 652.** - **6 ASHAMOL.P.R., WIFE OF MANIKKEN.V. RESIDING PAITTETTUPARAMBIL ATHIRAMPUZHA P.O., KOTTAYAM 686 562.** - **7 JASMIN ASHRAF WIFE OF LATE ASHRAF RESIDING AT BAITHOOLNOOR, ATHIRAMPUZHA P.O., KOTTAYAM 686 562.** **BY ADV. SRI.SIBY CHENAPPADY BY ADV. SMT.ANU GEORGE BY ADV. SRI.R.O.MUHAMED SHEMEEM BY ADV. SMT.NASEEHA BEEGUM P.S.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2019, ALONG WITH WP(C).5606/2019(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.5606 & 16615 OF 2019** **5** ## **J U D G M E N T** These two writ petitions have been heard together on account of the analogous factual circumstances presented and the nature of the reliefs sought for by the parties. 2. While W.P.(C)No.5606/2019 has been filed by a person named Ashamol P.R (who will hereinafter be referred by such name) impugning Ext.P9 communication issued by the Pollution Control Board (hereinafter referred to as 'Board' for short), to a Rubber Band Manufacturing Unit under and style the name 'M/s.Kings Rubbers', which is operating in her vicinity, alleging that this communication is illegal because the Board is proposing to renew consent to operate earlier granted to the said Industry even though it is extremely polluting and has been found to be dangerous and noxious to the residents of the locality. 3. The petitioner says that, as is clear from Ext.P3, a show cause notice had already been issued by the Board asking M/s.Kings Rubbers as to why their consent cannot be withdrawn and that Ext.P2 stop memo had already been issued by Athirampuzha Grama Panchayat finding that its operations **WP(C).Nos.5606 & 16615 OF 2019** **6** are profusely polluting. Smt.Ashamol P.R, therefore, prays that Ext.P9 be set aside and that the factory being run by M/s.Kings Rubbers be shut down. 4. While the afore writ petition was pending, W.P. (C)No.16615/2019 was filed by the owners of M/s.Kings Rubbers challenging Ext.P18 proceedings of the Secretary of the Grama Panchayat, as per which, they have been informed that they will not issue Trade Licence to the rubber factory on account of the perceived heath problems to the local residents. The petitioners say that this stand of the Panchayat is contrary to the judgment of a Full Bench of this Court in **Tomy Thomas** **v. State of Kerala [2019(3) KLT 987]** and therefore, that Ext.P18 be set aside. 5. I have heard Sri.R.O.Muhamed Shemeem, learned counsel appearing for Smt.Ashamol P.R; Sri.Abraham George Jacob, learned counsel appearing for the petitioners in W.P. (C)No.16615/2019; Sri.T.Naveen, learned Standing Counsel for the Pollution Control Board and Sri.Siby Chenappady, learned counsel appearing for Athirampuzha Grama Panchayat. 6. It is obvious from the narration of facts as afore and **WP(C).Nos.5606 & 16615 OF 2019** **7** the pleadings on record that, as of now, the consent to operate earlier granted to M/s.Kings Rubbers factory is no longer in force. It transpires that the 3[rd] petitioner in W.P. (C)No.16615/2019, who is stated to be the daughter in law of the original Proprietor of M/s.Kings Rubbers, has now moved an application before the Board for renewal of the consent to operate along with a request that the name of the Industry be changed as 'M/s.Maria Rubbers'. This application is yet to be considered by the Board and it is, therefore, without doubt that the factory cannot run in the absence of any such consent. 7. That said, Athirampuzha Grama Panchayat, has in this writ petition, taken a stand that unless the petitioners in W.P.(C)No.16615/2019 are able to obtain a proper Consent to Operate from the Board, it will not be possible for them to grant a Trade Licence. It is this decision that has been challenged by the rubber factory. 8. While so, Smt.Ashamol P.R challenges the action of the Board in even considering the application of the petitioners in W.P.(C)No.16615/2019, asserting that operation of the factory will create unbearable pollution. It is, therefore, **WP(C).Nos.5606 & 16615 OF 2019** **8** obvious that this is a dispute between the parties, which hinge on various factual circumstances and with the requirement of a proper assessment of the Pollution Causing Potential of the rubber factory being run by the petitioners in W.P. (C)No.16615/2019. 9. It is, therefore, ineluctable that this Court, while acting under Article 226 of the Constitution of India, cannot delve into these issues or to state affirmatively thereon, being incapacitated from considering and assessing the factual inputs as well as the materials required to arrive at a proper decision. Since the Pollution Control Board is the competent Statutory Authority to look into these aspects, I am certain that they should be allowed to complete the processes pursuant to the application preferred by the petitioners in W.P. (C)No.16615/2019, particularly when it is clear from Ext.P16 therein, that the Board has started consideration of the said application asking for a trial run. However, this is being opposed by Smt.Ashamol P.R, perhaps under the apprehension that even a trial run will cause uncontrolled pollution. 10. In the afore circumstances and since the allegations **WP(C).Nos.5606 & 16615 OF 2019** **9** of Smt.Ashamol P.R are yet to be fully substantiated because the factory is now closed down and no trial run has been done, I am certainly of the view that the application of the petitioners in W.P.(C)No.16615/2019 will have to be taken to its logical conclusion by the Pollution Control Board, since it is only thereafter, can the Panchayat has any role to play in considering the application for trade licence preferred by the petitioners therein. Resultantly, I order these writ petitions and grant liberty to the Kerala State Pollution Control Board to conduct a trial run of the factory being operated by the petitioners in W.P. (C)No.16615/2019; however, only under complete control and supervision of the Chief Environmental Engineer, Thiruvananthapuram, since Smt.Ashamol P.R appears to have certain apprehensions against the Environmental Engineers of Ernakulam and Kottayam. Even though these apprehensions are only unproved allegations and nothing more, it is offered before me by the learned Standing Counsel for the Board that the Chief Environmental Engineer will depute other competent Officers to conduct trial run of the factory operated by the **WP(C).Nos.5606 & 16615 OF 2019** **10** petitioners in W.P.(C)No.16615/2019, so as to avoid any dispute in future. Once the trial run is thus completed, further operations of the factory will be ceased and the Pollution Control Board will then consider whether the Consent to Operate can be renewed in the name of the 3[rd] petitioner in W.P. (C)No.16615/2019, as has been applied for; in which event, they will issue necessary orders thereon only after affording an opportunity of being heard to Smt.Ashamol P.R also. Needless to say, the petitioners in W.P.(C)No.16615/2019 will be at liberty, if they are able to obtain the Consent to Operate from the Pollution Control Board, to approach the Panchayat with an appropriate application for renewal of their Trade Licence, which shall then be considered by the said Panchayat in terms of law and again after hearing Smt.Ashamol P.R. After I dictated this judgment, the learned Standing Counsel for the Pollution Control Board submitted that a minimum of one month of trial run will be required since efficacy of the Pollution Control Mechanism installed therein **WP(C).Nos.5606 & 16615 OF 2019** **11** can be assessed only within that period. I, therefore, leave liberty to the Chief Environmental Engineer, Pollution Control Board, Thiruvananthapuram to conduct a trial run of the factory operated by the petitioners in W.P.(C)No.16615/2019 for a period of 30 days and then complete the processes as ordered above. **Sd/-** rp **DEVAN RAMACHANDRAN JUDGE** **WP(C).Nos.5606 & 16615 OF 2019** **12** ## **APPENDIX OF WP(C) 5606/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.A3-5971/13,DATED 08/11/2013,ISSUED BY THE 5TH RESPONDENT PANCHAYATH SUSPENDING THE RUNNING OF FACTORY** **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 22/11/2013 ISSUED BY THE 5TH RESPONDENT,TO THE SUB INSPECTOR OF GANDHI NAGAR POLICE STATION.** **EXHIBIT P3 TRUE C0PY OF THE SHOW CAUSE NOTICE DATED 14.06.2013 ISSUED BY THE 3RD RESPONDENT TO 9TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE STOP MEMO DATED 01.12.2018 ISSUED BY THE 5TH RESPONDENT ATHIRAMPUZHA GRAMA PANCHAYATH TO 9TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE INSPECTION REPORT DATED 13.12.2018 SUBMITTED BY THE HEALTH OFFICER,PRIMARY HEALTH CENTRE HEALTH DEPARTMENT. EXHIBIT P6 TRUE COPY OF THE EXTRACT OF THE PROCEEDINGS CONTAINING AGENDA IN MEETING HELD ON 17.12.2018 BY ATHIRAMPUZHA GRAMA PANCHAYATH. EXHIBIT P7 TRUE COPY OF THE STOP MEMO DATED 17.12.2018 ISSUED BY THE 5TH RESPONDENT ATHIRAMPUZHA GRAMA PANCHAYATH TO 8TH RESPONDENT EXHIBIT P8 TRUE COPY OF THE IMPUGNED LETTER DATED 28.12.2018 ISSUED BY THE 3RD RESPONDENT ENVIRONMENTAL ENGINEER. EXHIBIT P9 TRUE COPY OF THE IMPUGNED LETTER DATED 14.02.2019 ISSUED BY THE 3RD RESPONDENT ENVIRONMENTAL ENGINEER. EXHIBIT P10 TRUE COPY OF THE APPLICATION DATED 23.03.2018 INCLUSIVE OF LOCATION MAP SUBMITTED BY THE 9TH RESPONDENT BEFORE THE KERALA STATE POLLUTION CONTROL BOARD. EXHIBIT P11 TRUE COPY OF THE LOCATION MAP SHOWING RESIDENCE OF PETITIONER AND OTHER DWELLERS WITH THE RESTRICTED DISTANCE. EXHIBIT P12 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE DRASTIC** **WP(C).Nos.5606 & 16615 OF 2019** **13** ## **POLLUTION IN WELL AND SURROUNDING AREA.** **EXHIBIT P13,13(A),13(B) TRUE COPY OF THE WATER QUALITY RESULTS DATED AND 13(C). 03.01.2019 OF PETITIONER AND SURROUNDING DWELLERS,TESTED BY TROPICAL INSTITUTE OF ECOLOGICAL SCIENCES,KOTTAYAM,TESTED BY PETITIONERS.** **RESPONDENT'S/S EXHIBITS: EXHIBIT R9 A TRUE COPY OF THE BUILDING PERMIT OF THE PETITIONER DATED 21.10.2019 ISSUED BY THE ATHIRAMPUZH GRAMA PANCHAYAT EXHIBIT R9 (B) TRUE COPY OF THE REPORT OF THE HEALTH SUPERVISORM, ATHIRAMPUZHA DATED 29.01.2019 EXHIBIT R9C TRUE COPY FO THE TEST REPORT DATED 08.04.2019 ISSUED BY THE KERALA WATER AUTHORITY QUALITY CONTROL DISTRICT LAB PERTAINING TO THE PROPERTY OF THE CYRIAC P.M. EXHIBIT R9 D TRUE COPY OF THE TEST REPORT DATED 08.04.2019 ISSUED BY THE KERALA WATER AUTHORITY QUALITY CONTRL DISTRICT LAB PERTAINING TO THE PROPERTY OF THE ASHAMOL** **WP(C).Nos.5606 & 16615 OF 2019** **14** ## **APPENDIX OF WP(C) 16615/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF LICENSE ISSUED BY THE 1ST RESPONDENT NUMBER 44/94-95** **EXHIBIT P2 TRUE COPY OF THE LICENSE DATED 27.6.2017 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE RENEWAL ORDER DATED 12.6.2015 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 10.4.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE PURCHASE INVOICE TAX INVOICE OF THE 3 HP ACTIVATED CARBON SCRUBBERS DATED 4.8.2018 EXHIBIT P6 TRUE COPY OF THE LETTER DATED 23.8.2018 ISSUED BY THE 1ST PETITIONER EXHIBIT P7 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 8.11.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P8 TRUE COPY OF THE LETTER DATED 15.11.2018 ISSUED BY THE 1ST PETITIONER EXHIBIT P9 TRUE COPY OF THE STOP MEMO DATED 1.12.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE LETTER DATED 5.12.2018 ISSUED BY THE 1ST PETITIONER EXHIBIT P11 TRUE COPY OF THE CONSENT TO CONDUCT TRIAL RUN DATED 14.2.2019 ISSUED BY THE 4TH RESPONDENT EXHIBIT P12 TRUE COPY OF THE LETTER DATED 11.4.2019 ISSUED BY THE 1ST PETITIONER REQUESTING PERMISSION FOR TRIAL RUN. EXHIBIT P13 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HONOURABLE COURT IN WPC NO. 5606 OF 2019 DATED 17.4.2019 EXHIBIT P14 TRUE COPY OF THE CONSENT LETTER DATED 22.3.2019 EXECUTED BY THE 1ST PETITIONER EXHIBIT P15 TRUE COPY OF THE REPORT DATED 29.4.2019 SUBMITTED BY THE HEALTH SUPERVISOR OF THE BLOCK PRIMARY HEALTH CENTRE, ATHIRAMPZUHA. EXHIBIT P16 TRUE COPY OF THE LETTER DATED 30.4.3019 ISSUED BY** **WP(C).Nos.5606 & 16615 OF 2019** **15** **THE 4TH RESPONDENT TO THE 3RD PETITIONER** **EXHIBIT P17 TRUE COPY OF THE APPLICATION DATED 2.5.2019 FOR RENEWAL OF LICENSE FILED BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P18 TRUE COPY OF THE ORDER DATED 28.5.2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P19 TRUE COPY OF LETTER DATED 01.08.2019 ISSUED BY THE ENVIRONMENTAL ENGINEER OF THE 4TH 3RD RESPONDENT.** **EXHIBIT P20 TRUE COPY OF LETTER DATED 03/08/2019 ISSUED BY THE ENVIRONMENTAL ENGINEER OF THE 4TH RESPONDENT.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R6(1) TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT DATED 18.06.2019 IN W.P.C.NO.5606 OF 2019. EXHIBIT R6(2) TRUE COPY OF THE INTERIM ORDER DATED 19.06.2019 IN W.P.C.NO.16615 OF 2019. EXHIBIT R6(3) TRUE COPY OF THE ORDER NO.B5-3065/18 DATED 28.05.2018, IN THE PROCEEDINGS OF SECRETARY,ATHIRAMPUZHA GRAMA PANCHAYATH EXHIBIT R6(4) TRUE COPY OF THE DECISION TAKEN BY THE ATHIRAMPUZHA GRAMA PANCHAYATH HELD IN AN EXTRA-ORDINARY MEETING ON 28.06.2019 EXHIBIT R6(5) TRUE COPY OF THE REPRESENTATION DATED 25.07.2019 ALONG WITH RECEIPT ISSUED BY THE 4TH RESPONDENT DATED 29.07.2019 EXHIBIT R6(6) TRUE COPY OF THE LETTER DATED 01.08.2019 ILLEGITIMATELY ISSUED BY THE 4TH RESPONDENT. EXHIBIT R6(7) TRUE COPY OF THE EXTRACT OF PROCEEDINGS OF MEETING HELD ON 28.06.2019 ISSUED IN ATHIRAMPUZHA GRAMAPANCHAYAT. EXHIBIT R6(8) TRUE COPY OF THE LETTER DATED 01.08.2019. ILLEGITIMATELY ISSUED BY THE 1ST RESPONDENT. EXHIBIT R6(9) TRUE COPY OF THE APPLICATION SUBMITTED BY THE 3RD PETITIONER BEFORE THE KERALA STATE POLLUTION CONTROL BOARD.**