Kunhimuhammed v. Environmental Engineer, Kerala State Pollution Control Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** ## **WP(C).No. 10053 of 2019** ## **PETITIONER:** **KUNHIMUHAMMED, AGED 73 YEARS,S/O.ALAVI, AVILTHODI HOUSE, RAMANATTUKARA P.O., KOZHIKODE.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.T.V.NEEMA** ## **RESPONDENTS:** **1 ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, MALAPPURAM-676505. 2 REGIONAL FIRE OFFICER, FIRE AND RESCUE SERVICES, PERINTHALMANNA ROAD, UPHILL P.O., MALAPPURAM-676505. 3 CHELAMBRA GRAMA PANCHAYATH, CHELAMBRA P.O., MALAPPURAM-673634.** **SRI T.NAVEEN-STANDING COUNSEL, KERALA STATE POLLUTION CONTROL BOARD; SRI MANU RAJ K.J., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 10053 of 2019** -2- ## **JUDGMENT** The petitioner, who is stated to be running a small scale industrial unit for packing of used bottles (bottle pressing unit) within the area of the 3[rd] respondent Grama Panchayath, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 stop memo dated 26.03.2019 of the 3[rd] respondent. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to consider the application for consent as evident from Ext.P5; commanding the 3[rd] respondent to consider the application for renewal of licence as evident from Ext.P2; and commanding the 3[rd] respondent to forward the application for Fire NOC as evident from Ext.P6 to the 2[nd] respondent and to consider and pass orders thereon, within a time frame to be fixed by this Court. 2. On 01.04.2019, when this writ petition came up for admission, the learned Standing Counsel took notice on **WP(C).No. 10053 of 2019** -3- admission for the 1[st] respondent. The learned Government Pleader took notice on admission for the 2[nd] respondent. Urgent notice on admission by special messenger was ordered to the 3[rd] respondent, returnable by 09.04.2019. The learned Standing Counsel for Pollution Control Board was directed to get instructions. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for Pollution Control Board, representing the 1[st] respondent Environmental Engineer and also the learned Government Pleader appearing for the 2[nd] respondent Regional Fire Officer. Despite service of notice, none appears for the 3[rd] respondent Grama Panchayath. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P7 stop memo dated 26.03.2019 issued by the Secretary of the 3[rd] respondent Grama Panchayath, whereby the petitioner has been asked to stop the **WP(C).No. 10053 of 2019** -4- functioning of its small scale industrial unit, which is allegedly functioning without any safety measures. 5. As can be seen from Ext.P7, such a proceedings have been initiated against the petitioner, based on a complaint made by one Abdul Azeez before the 3[rd] respondent Grama Panchayath and another complaint made by one Semeera before the District Collector, Malappuram. Based on those complaints, the Health Inspector of the 3[rd] respondent Grama Panchayath conducted inspection and submitted a report dated 28.01.2019. If the petitioner is feeling aggrieved by Ext.P7 stop memo, he can invoke the statutory remedy available under Section 276 of the Kerala Panchayat Raj Act, 1994 by approaching the appropriate forum. 6. Admittedly, the validity of Ext.P1 D&O licence granted to the petitioner by the 3[rd] respondent Secretary of the Grama Panchayath expired on 31.03.2019. The learned counsel for the petitioner would submit that the application **WP(C).No. 10053 of 2019** -5- made by the petitioner for consent is pending consideration before the 1[st] respondent Environmental Engineer, as evidenced by Ext.P5. As can be be seen from Ext.P6, the petitioner has already made an application for Fire NOC before the 2[nd] respondent. Ext.P2 is the receipt of the application made by the petitioner on 25.02.2019 for renewal of Ext.P1 D&O licence. Therefore, admittedly, the petitioner is not having the requisite licence, consent, etc. for running the small scale industrial unit, with effect from 01.04.2019. Though the petitioner has sought for a writ of certiorari to quash Ext.P7 stop memo, the complainants referred to in that stop memo are not parties to this writ petition. 7. In **Prabodh Verma v. State of U.P. [(1984) 4 SCC 251]** a Three-Judge Bench of the Apex Court held that a High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being **WP(C).No. 10053 of 2019** -6- before it as respondents or at least some of them before it as respondents in a representative capacity, if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for non-joinder of necessary parties. 8. In such circumstances, the challenge made in this writ petition against Ext.P7 stop memo fails for the aforesaid reasons and the writ petition is accordingly dismissed; however, without prejudice to the right of the petitioner to challenge Ext.P7 stop memo, by availing statutory remedy under Section 276 of the Kerala Panchayat Raj Act before the appropriate forum. It is made clear that it would be open to the petitioner to pursue the application referred to in Ext.P2 for renewal of Ext.P1 D&O licence, by approaching the Secretary of the 3[rd] respondent Grama Panchayath. However, consideration of that application by the Secretary of the 3[rd] respondent Grama Panchayath shall be made only with notice to the **WP(C).No. 10053 of 2019** -7- complainants referred to in Ext.P7. Similarly, subject to the aforesaid conditions, the petitioner would also be entitled to pursue the application for consent filed before the 1[st] respondent, as evidenced by Ext.P5 and also the request for Fire NOC before the 2[nd] respondent, as evidenced by Ext.P6. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 10053 of 2019** -8- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE D & O LICENSE ISSUED**| |---|---| ||**BY THE 3RD RESPONDENT PANCHAYATH**| ||**DATED 1.4.2018.**| |**EXHIBIT P2**|**TRUE COPY OF THE RECEIPT OF RENEWAL**| ||**OF LICENSE DATED 25.2.2019.**| |**EXHIBIT P3**|**TRUE COPY OF THE COMMUNICATION SENT**| ||**BY THE 3RD RESPONDENT DATED 8.3.2019.**| |**EXHIBIT P4**|**TRUE COPY OF THE RECEIPT DATED**| ||**25.3.2019.**| |**EXHIBIT P5**|**TRUE COPY OF THE APPLICATION**| ||**SUBMITTED BEFORE THE 1ST RESPONDENT**| ||**ALONG WITH RECEIPT DATED 27.3.2019.**| |**EXHIBIT P6**|**TRUE COPY OF THE RECEIPT OF FIRE NOC**| ||**APPLICATION DATED 26.3.2019.**| |**EXHIBIT P7**|**TRUE COPY OF STOP MEMO ISSUED BY THE**| ||**3RD RESPONDENT DATED 26.3.2019.**| |**RESPONDENTS' **|**EXHIBITS:**<br> **NIL**|