Babujan S. and Dr. Nisha K. Moideen v. Chirakkadavu Grama Panchayath, Kerala State Pollution Control Board, James C. Kappen and Jean James Kappen

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas, J.
Judgment Date: 2020-02-11
Court Decision / Holding: The writ petition is disposed of with specific directions: the PCB must receive written objections, furnish copies of the petition dated 20.1.2020 to the petitioners, hear the parties, and render a considered decision on Ext.R-3(c) within 4–6 weeks. Until the PCB issues its decision, respondents 4 & 5 must not operate the Honda Generator service unit in breach of the minimum distance rule.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

BABUJAN S., S/O. T.P. SULAIMAN
DR. NISHA K. MOIDEEN

Respondents

Chirakkadavu Grama Panchayath
Secretary, Chirakkadavu Grama Panchayath
Kerala State Pollution Control Board
James C. Kappen
Jean James Kappen

Legal Representation & Advocates

Counsels for Petitioners

• SMT. SUMATHY DANDAPANI (Sr.)
• Sri. MILLU DANDAPANI

Counsels for Respondents

• Sri. Mathew John (K) for R1 & R2
• Sri. Mathew Devassi for R1 & R2
• Sri. Aby J Augustine for R1 & R2
• Sri. T. Naveen SC, for PCB
• Sri. Unni Sebastian Kappen, for R4 & R5

Case Synopsis & Summary

This writ petition challenges actions of the Kerala State Pollution Control Board (PCB) in relation to a Honda Generator service unit operated by respondents 4 and 5 at Kunnumbhagom, Kanjirappally. The petitioners allege that the unit operated without statutory consent and that after the PCB stopped its functioning (stop memo Ext.P7, 28.12.2017), respondents 4 and 5 sought to circumvent norms by relocating the unit to claim compliance with the minimum distance rule of 11 meters from nearby residences. Although the PCB granted consent (Ext.R-3(a) on 26.2.2018) following an enquiry, subsequent complaints alleged renewed relocation of the service unit in breach of the distance rule, leading to Ext.R-3(c) dated 27.8.2019 titled “Closure Intention Notice.” The petitioners contend that the relocation pattern demonstrates attempts to avoid compliance and results in noise and air pollution to residents. The respondents submit that norms and statutory conditions are being met and that decisions must come from the PCB. The High Court notes these disputes fall within the PCB’s statutory domain and directs a process: petitioners should file objections, the PCB should provide copies of petitions and notices, hear all parties, and render a reasoned decision on Ext.R-3(c) within 4–6 weeks, while ensuring no breach of the minimum distance rule pending the PCB’s decision. The petition is disposed with these directions.

Submissions & Arguments

Contentions of Appellants / Petitioners

petitioners submit that the PCB’s stop order followed by a later consent process and the repeated relocation of the service unit indicate an attempt to circumvent compliance. They argue the unit causes substantial sound and air pollution to nearby residents and pray for mandamus to implement Ext.P7 and Ext.P8, shift the operation, demolish or regulate the boundary wall height in accordance with law, and grant costs. They emphasize that the matter concerns statutory controls within the PCB’s jurisdiction and seek urgent resolution.

Contentions of Respondents

respondents contend that norms have been or can be satisfied, that the PCB granted consent (Ext.R-3(a)) and that ongoing disputes should be resolved by the PCB through due process. They request that the court refrain from micromanaging the matter and allow the statutory authority to decide, asserting compliance with applicable norms and the need for a timely decision by the PCB.

Extracted Judgment Text

Exact text extracted from official judgment records.

WP(C) No. 20213 of 2019 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** ## **WP(C).No.20213 OF 2019(B)** ## **PETITIONERS:** |**1**|**BABUJAN S., AGED 48 YEARS,**| |---|---| ||**S/O. T.P. SULAIMAN, RESIDING AT FAMY MANZIL,**| ||**KUNNUMBHAGOM, KANJIRAPPALLY (P.O), KOTTAYAM**| ||**DISTRICT-686 507**| |**2**|**DR. NISHA K. MOIDEEN,**| ||**RESIDING AT FAMY MANZIL, KUNNUMBHAGOM,**| ||**KANJIRAPPALLY P.O, KOTTAYAM DISTRICT-686 507.**| **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENTS:** |**1**|**CHIRAKKADAVU GRAMA PANCHAYATH,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, PONKUNNAM P.O,**| ||**KOTTAYAM DISTRICT-686 506.**| |**2**|**SECRETARY,**| ||**CHIRAKKADAVU GRAMA PANCHAYATH, PONKUNNAM P.O,**| ||**KOTTAYAM DISTRICT-686 506.**| |**3**|**KERALA STATE POLLUTION CONTROL BOARD,**| ||**DISTRICT OFFICE, SREENIVAS IYER ROAD,**| ||**KOTTAYAM DISTRICT-686 001,**| ||**REP. BY ENVIRONMENTAL ENGINEER.**| WP(C) No. 20213 of 2019 ..2.. ***4 JAMES C.KAPPAN, KAPPIL HOUSE, PALA, KOTTAYAM DISTRICT-686 575. CORRECTED[*] *5 JEAN JAMES KAPPAN, KAPPIL HOUSE, PALA, KOTTAYAM DISTRICT-686 575.** - **THE ADDRESS OF 4TH AND 5TH RESPONDENT IS CORRECTED AS FOLLOWING AS PER ORDER DATED 24-07-2019 IN IA 1/2019.** **ADDRESS OF THE 4TH RESPONDENT** **JAMES C.KAPPEN, PROPRIETOR, KAPPENS HONDA POWER PRODUCTS(KAPPEN SANIWARES) WARD NO.7, DOMINIC THOMAN RD, KUNNUMBHAGAM, KANJIRAPALLY P.O, KERALA 686 507.** **ADDRESS OF THE 5TH RESPONDENT** **JEAN JAMES KAPPEN, S/O.JAMES KAPPEN, (AGE UNKNOWN TO THE PETITIONER) KAPPENS BUILDING, WARD NO.7, DOMINIC THOMAN ROAD, KUNNUMBHAGAM, KANJIRAPALLY P.O, KERALA 686 507.** **ADV. SRI.MATHEW JOHN (K) FOR R1 & R2 ADV. SRI.MATHEW DEVASSI FOR R1 & R2 ADV. SRI.ABY J AUGUSTINE FOR R1 & R2 SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, FOR R3 ADV. SRI.UNNI SEBASTIAN KAPPEN, FOR R4 & R5** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No. 20213 of 2019 ..3.. ## ALEXANDER THOMAS, J. ------------------------------------W.P.(C) No. 20213 of 2019 ------------------------------------Dated this the 11[th] day of February, 2020 ## J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows: “ - i. _Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent and 3[rd] respondent to implement Ext.P7 and Ext.P8 order and stop functioning of the present service station run by the 4[th] respondent._ - _ii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4[th] respondent to shift the operation of the service from the current place._ - _iii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to demolish the present compound wall and regulate its height by duly following the mandate as prescribed by law._ - _iv. Issue any such other or further relief as this Hon'ble Court deems fit to grant in the particular facts and circumstances of this case_ - _v. Award cost.”_ 2. Heard Sri.Millu Dandapani, learned counsel appearing for the petitioners and Sri.Mathew John (K), learned counsel appearing for R-1 & R-2 (Chirakkadavu Grama Panchayath), Sri.T.Naveen, learned Standing Counsel for the Kearla State Pollution Control Board, appearing for R-3 and Sri.Unni Sebastian Kappen, learned counsel appearing for R-4 & R-5. 3. It appears that the 3[rd] respondent Kearla State Pollution Control Board had received a complaint preferred by nearby WP(C) No. 20213 of 2019 ..4.. residents including the petitioners in respect of the functioning of the Honda Generator Sales and Service Unit, run by respondents 4 & 5. Thereupon, an inspection was conducted by the 3[rd] respondent Pollution Control Board, and it was found that the unit run by respondents 4 & 5 is without a statutory consent of the respondent Pollution Control Board. Thereupon the 3[rd] respondent had issued Ext.P-7 stop memo dated 28.12.2017 to the 4[th] respondent directing that the further functioning of the unit may be stopped. Later the 4[th] respondent had submitted an application for grant of statutory consent before the 3[rd] respondent Pollution Control Board. According to the 3[rd] respondent, after conducting an enquiry it was found that the functioning of the service unit of Honda Generators were been done by the 4[th] respondent by observing the minimum distance rule of 11 meters from the nearby residences. Thereupon, the 3[rd] respondent had granted Ext.R-3(a) consent dated 26.2.2018 for the functioning of the said unit. Later again complaints were received by the 3[rd] respondent stating that the 4[th] respondent had again relocated the service unit of generators in such a manner that it had reached the abovesaid minimum distance rule. Pursuant to the said complaints, the 3[rd] respondent has conducted an enquiry and has WP(C) No. 20213 of 2019 ..5.. now issued Ext.R-3(c) proceedings dated 27.8.2019 directing the 4[th ] respondent to show cause as to why the unit should be ordered to be closed, and Ext.R-3(c) has been thus styled “CLOSURE INTENTION NOTICE” as per the provisions of the governing statutes. 4. The counsel for the respondents 4 & 5 would submit that, later the 4[th] respondent has submitted a detailed representation dated 20.1.2020 to the 3[rd] respondent stating that they have complied all the requisite norms for the functioning of the unit, and that the unit now comprises all the requirements, and even the service unit carrying out the service of Honda Generators will also be functioning by strictly observing the minimum distance rule, etc, and that if an enquiry is conducted by the 3[rd] respondent, it would reveal that the present action of respondents 4 & 5 is in full compliance of applicable norms, etc. 5. Per contra, the counsel for the petitioners would point out that the aforesaid allegations made by respondents 4 & 5 are blatantly wrong and false, and that they keep relocating service units, in such a manner that whenever the 3[rd] respondent takes action for closure of the unit, they would plead that the actual functioning is by observing the minimum distance rule, and thereafter they again WP(C) No. 20213 of 2019 ..6.. relocate in breach of the minimum distance rule, which causes great amount of sound and air pollution to the nearby residents like the petitioner, etc. 6. Having regard to the facts and circumstances of the case, this Court is of the considered view that a matter of this nature need not to be kept pending before this Court. These are all matters which are essentially done within the province of the statutory authority like the 3[rd] respondent Kerala State Pollution Control Board. Accordingly it is ordered that, in case the petitioners have any serious objections to the running of the unit of respondents 4 & 5, then they should give their written objections in the matter to the 3[rd] respondent without any further delay. The copy of the representation/petition stated to have been given by the 4[th] respondent to the 3[rd] respondent on 20.1.2020 should be immediately furnished by the 3[rd] respondent to the petitioners. Thereafter, the petitioners may make a comprehensive written objection before the 3[rd] respondent without any further delay, at any rate within one week after the 3[rd] respondent receiving a copy of the abovesaid petition said to have been submitted by respondents 4 & 5. Thereafter the 3[rd] respondent will issue notice of hearing to the WP(C) No. 20213 of 2019 ..7.. petitioners as well as respondents 4 & 5, and after affording reasonable opportunity of being heard to the petitioner, respondents 4 & 5 etc through their authorised representative/counsel if any, will render a considered decision on the matters in Ext.R-3(c) notice dated 27.8.2019 and then make a considered decision as to whether the direction should be given give for closure of unit, or whether appropriate decision is to be taken in the matter, etc. Decision in this regard should be duly taken by the 3[rd] respondent without much delay, preferably within a period of 4 to 6 weeks from the date of production of a certified copy of this judgment. Until orders are so passed by the 3[rd] respondent, it shall be ensured that respondents 4 & 5 does not function the service unit of Honda Generators in breach of the minimum distance rule. With these observations and directions, the above writ Petition (Civil) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG WP(C) No. 20213 of 2019 ..8.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT BEARING NO. D438/11 DATED 19.3.2012.** **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DTD 1.4.2017.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT ALONG WITH ACKNOWLEDGEMENT DTD. 15.9.2017.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DTD. 13.11.2017 GIVEN TO THE DEPUTY DIRECTOR OF PANCHAYATH DTD. 13.11.2017.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE HTE 3RD RESPONDENT DTD. 12.12.2017. EXHIBIT P6 TRUE COPY OF THE NOTICE BEARING NO. E/7107/17 DTD. 27.12.2017. EXHIBIT P7 TRUE COPY OF THE STOP MEMO BEARING NO. PCB/KTM/CO/1580/2011 DTD. 28.12.2017. EXHIBIT P8 TRUE COPY OF THE NOTICE DTD. 4.1.2018 ISSUED BY 2ND RESPONDENT BEARING NO. E/7107/17 DTD. 4.1.2018. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION GIVEN TO THE DY. DIRECTOR OF PANCHAYATS DTD. 1.1.2018. EXHIBIT P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DTD. 13.6.2019.** WP(C) No. 20213 of 2019 ..9.. - **EXHIBIT P11 A COPY OF THE RELEVANT PAGE OF THAT MAHAZAR DATED 20.12.2017 PREPARED BY THE ASSISTANT ENVIRONMENTAL ENGINEER** - **EXHIBIT P12 A COPY OF THE SITE PLAN SUBMITTED BEFORE THE 3RD RESPONDENT BOARD.** - **EXHIBIT P13 A COPY OF THE RELEVANT PAGES OF SITTING CRITERIA OF THE KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P14 TRUE COPY OF THE NOTE HISTORY OF THE POLLUTION CONTROL BOARD IN THE APPLICATION SUBMITTED BY THE 5TH RESPONDENT.** - **EXHIBIT P15 TRUE PHOTOSTAT COPIES OF CERTAIN PHOTOGRAPHS OF SERVICE STATION** - **RESPONDENTS' EXHIBITS:** - **ANNEXURE R3(A) TRUE COPY OF THE CONSENT TO OPERATE DATED 26-2-2018 ISSUED BY THE PCB TO THE 4TH RESPONDENT.** - **ANNEXURE R3(B) TRUE COPY OF THE LETTER DATED 17-10-2018 ISSUED BY THE PCB TO THE 2ND RESPONDENT.** - **ANNEXURE R3(C) TRUE COPY OF THE NOTICE DATED 27-8-2019 ISSUED BY THE PCB TO THE 4TH RESPONDENT.** - **EXHIBIT R4(A) TRUE COPY OF THE 'CONSENT TO OPERATE' IN CONSENT NO.PCB/KTM/TOC/4938/2018 ISSUED BY THE 3RD RESPONDENT DATED 26.02.2018.** **EXHIBIT R4(B) TRUE COPY OF THE CASH RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 30.07.2019. EXHIBIT R4(C) TRUE COPY OF THE D&O LICENSE NO.E/286/2019.20 ISSUED BY THE 2ND RESPONDENT DATED 01.08.2019.**