Mohanan K. and Others v. Sasidharan and Others

W. A. No. 1351 of 2022 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 14[TH] DAY OF SEPTEMBER 2022 / 23RD BHADRA,** **1944** **WA NO. 1351 OF 2022** **AGAINST THE ORDER IN WP(C) 26182/2022 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/S:** **1 MOHANAN K. AGED 47 YEARS** **S/O KOCHUCHERUKKAN.M, AGE D 47 YEARS RESIDING AT KIZHAKKEVEETTIL THARAYIL, ANAYADI.P.O, SOORANAD NORTH, KOLLAM-690561.** - **2 HAREENDRAKUMAR.K, AGED 45 YEARS** **S/O LATE KUNJUPANICKER K, RESIDING AT NIYATHI, ANAYADI.P.O, SOORANAD NORTH, KOLLAM-690561.** - **3 JAYARAJAN,** **AGED 54 YEARS** **S/O SIVARAJAN, JAYA BHAVANAM, SOORANAD NORTH, KOLLAM-690561.** **BY ADVS.** **THOMAS ABRAHAM MERCIAMMA MATHEW ASWIN.P.JOHN PAUL BABY** **RESPONDENT/S:** - **1 SASIDHARAN** **S/O KUTTAN PILLAI, KALEECKAL HOUSE, THEKKEKARA VILLAGE, MAVELIKARA, ALAPPUZHA-690101.** W. A. No. 1351 of 2022 -2- - **2 THE KERALA STATE POLLUTION CONTROL BOARD PLAMOODU-THEKKAMOODU ROAD, PATTOM, THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS CHAIRMAN** - **3 THE ENVIRONMENT ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, KOLLAM-691001.** - **4 THE SOORANAD NORTH GRAMA PANCHAYAT, SOORANAD NORTH.P.O, KUNNATHUR VILLAGE, KUNNATHOOR TALUK, KOLLAM DISTRICT-690561, REPRESENTED BY ITS SECRETARY.** - **5 THE SECRETARY, SOORANAD NORTH GRAMA PANCHAYAT, SOORANAD NORTH.P.O, KUNNATHUR VILLAGE, KUNNATHOOR TALUK, KOLLAM DISTRICT-690561.** **OTHER PRESENT:** **SRI. S SHANAVAS KHAN-R1 SRI. T NAVEEN-SC-R2,R3 SMT. ROJA, SC-R4,R5** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. No. 1351 of 2022 -3- ## **J U D G M E N T** ## S. Manikumar, C. J. Being aggrieved by the interim order dated 30.08.2022 in W.P. ## (C) No. 26182 of 2022, instant writ appeal is filed. ## 2. Short order impugned in the writ appeal is reproduced:- “There will be a direction to the 2[nd] respondent to consider Ext.P9 application forthwith, untrammelled by any observation in Ext.P14. But, I make it clear that If there is any interim order from the 2[nd] respondent against the consideration of Ext.P9 application, the 2[nd] respondent will obey the same. Any order passed by the 2[nd] respondent will be subject to the final orders passed by the appellate authority.” 3. Short facts leading to the filing of the writ appeal are as hereunder:- a) Appellants are respondents 5 to 7 in the writ petition. According to the appellants, Mr. Sasidharan, the 1[st] respondent herein, obtained Ext. P2 consent to establish, for setting up a hot mix plant, near the residence of the appellants. The deliberate omissions and misrepresentation in the application submitted by the 1[st] respondent W. A. No. 1351 of 2022 -4- has led to the Kerala State Pollution Control Board, the 2[nd] respondent, in issuing Ext. P2 consent to establish. Crucial facts like existence of a river adjacent to the property, the proximity of residential buildings etc., were not revealed in the application. Against Ext. P2, the appellants have preferred Annexures A5 and A6 appeals before the Appellate Authority constituted under the Air and Water (Prevention and Control of Pollution) Acts, and the same are pending. b) Appellants have submitted that when Mr. Sasidharan, the 1[st] respondent herein, submitted Ext. P9 application for issuance of consent to operate, the Environmental Engineer, Kerala State Pollution Control Board, Kollam, the 3[rd] respondent, informed the 1[st] respondent that consent to operate, being consequential to consent to establish, can be further processed only after disposal of the appeals. It is assailing Ext. P14 and seeking a direction to the Kerala State Pollution Control Board, the 2[nd] respondent, to consider Ext. P9 application, writ petition was filed. The interim order granted by the learned Single Judge to consider Ext. P9 forthwith, untrammelled by any observation in Ext. P14, virtually amounts to granting the main relief sought for in the writ petition at the initial stage itself. W. A. No. 1351 of 2022 -5- c) Appellants have further submitted that this Court in W. P.(C) No. 27956 of 2022 filed by the appellants, has already directed the appellate authority to consider the appeals within 2 months. Though the next posting of the appeals was on 03.09.2022, by notification, the same have now been adjourned to 06.10.2022. On the strength of the interim order now issued, if the consent to operate is issued to the 1[st] respondent, and if he commences operation of the hot mix unit, the same would virtually render the appeals infructuous. 4. By inviting the attention of this Court to the relief sought for in the W. P. (C) No. 26182 of 2022, Mr. Thomas Abraham, learned counsel for the appellants, submitted that the interim order dated 30.08.2022, is in the nature of granting the main relief itself. 5. By inviting the attention of this Court to Ext. P14, the observations of the Environmental Engineer, Kerala State Pollution Control Board, the 3[rd] respondent, in returning the application for consent to operate, Mr. Thomas Abraham, learned counsel for the appellants, further submitted that if Ext. P9 application has to be considered, untrammeled by any observation in Ext. P14, then nothing remains in the statutory appeals filed before the competent authority W. A. No. 1351 of 2022 -6- under the Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981. 6. Added further, he submitted that when the statutory appeals were pending before the authorities under the abovesaid Acts, with an application of stay for consent to establish, the appeals were not disposed of, and therefore, the appellants were constrained to file W. P. (C) No. 27956 of 2022, for disposal of the appeals. 7. He further contended that on the day when the interim order was passed in W. P. (C) No. 26182 of 2022, i.e. on 30.08.2022, writ petition filed for disposal of the appeals with stay petitions was considered by another learned Single Judge in W. P. (C) No. 27956 of 2022, and on the same day, directions were issued to dispose of the appeals within a reasonable time and further to take up the stay petitions and pass appropriate orders, within a period of two months. 8. On the abovesaid grounds, Mr. Thomas Abraham, learned counsel for the appellants, seeks for interference of the impugned order in W. P. (C) No. 26182 of 2022 dated 30.08.2022. 9. Per contra, Mr. S. Shanavas Khan, learned counsel appearing W. A. No. 1351 of 2022 -7- for the 1[st] respondent, submitted that no sooner the consent to establish was issued, machineries have been installed, and that therefore, to get consent to operate, Ext. P9 application was filed, however, the Environmental Engineer, Kerala State Pollution Control Board, the 3[rd] respondent, by referring to appeal No. 14 of 2022 filed by the appellants, declined to issue the consent to operate, on the grounds of pendency of the appeal, as stated supra. 10. He further contended that thus Mr. Sasidharan, the 1[st] respondent, was constrained to challenge Ext. P14, the observations made by the competent authority for granting consent to operate. He further submitted that there are previous orders granting consent to establish, which is cancelled. 11. Learned counsel for the 1[st] respondent further submitted that the grant of consent to operate would be subject to the result of writ petition, or it could be even challenged before the competent authority, and therefore, there is nothing wrong in the interim order in W. P. (C) No. 26182 of 2022 dated 30.08.2022, warranting interference. 12. Heard learned counsel for the parties and perused the pleadings and material on record. W. A. No. 1351 of 2022 -8- 13. Prayers sought for in W. P. (C) No. 26182 of 2022 is to quash Ext. P14, the observations of the concerned authority for not granting the consent to operate the hot mix plant. ## 14. Observations made in Ext. P14 are reproduced:- “Appeal No.14/2022 is filed by the complainants against grant of Consent to Establish by the Board to the hot mix plant. Since the appeal is pending before the Appellate Authority and the Consent to Operate is only consequential to the Consent to Establish apart from the same being in fulfillment of all other requirements, the application for Consent to Operate can be processed further only after the disposal of the above Appeal.” 15. Ext. P9 is the application filed by the 1[st] respondent for consent to operate. As stated supra, as against the consent to establish, appellants have already filed Annexures A5 and A6 appeals with stay petitions before the Water (Prevention and Control of Pollution) Appellate Authority and Air (Prevention and Control of Pollution) Appellate Authority. 16. When the appeals were pending consideration, appellants have filed W. P. (C) No. 27956 of 2022, with a prayer for disposal of the appeals. W. A. No. 1351 of 2022 -9- 17. Taking note of the submissions of learned counsel for the appellants (petitioners in W. P. (C) No. 27956 of 2022), learned Standing Counsel for the Kerala Station Pollution Control Board, Thiruvananthapuram and Environmental Engineer, Kerala State Pollution Control Board, Kollam, respondents 1 and 2 therein, learned Single Judge, by judgment dated 30.08.2022, directed disposal of the appeals and stay petitions, within a limited time. 18. For brevity, operative portion of the judgment made in W. P. (C) No. 27956 of 2022, is reproduced hereunder: “7. Since the petitioners have preferred appeal against Ext.P1 order invoking the provisions of Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981, the appeals being statutory in nature, those will have to be considered and disposed of in accordance with law within a reasonable time. Taking into consideration the gravity of the situation alleged by the petitioners in the writ petition, this Court is of the view that the stay petitions of the petitioners shall be considered at least within a period of two months. In the facts and circumstances of the case, the writ petition is disposed of directing the Appellate Authority to consider and pass appropriate orders on the appeals filed by the petitioners with notice to the 5[th] respondent. The Appellate W. A. No. 1351 of 2022 -10- Authority is directed to consider and pass orders on Exts.P3 and P5 stay petitions, within a period of two months.” 19. Thus, when the statutory appeals filed by the appellants were directed to be disposed of by one learned Single Judge, by judgment in W.P.(C) No.27956 of 2022 dated 30.08.2022, on the same day, another learned Single Judge, by way of an interim order in W.P.(C) No.26182 of 2022, has directed disposal of Ext. P9 application for consent to operate forthwith, untrammeled by the observations in Ext. P14. 20. The interim order made in W.P.(C) No. 26182 of 2022 dated 30.08.2022, runs contrary to the judgment made in W.P.(C) No. 27956 of 2022 dated 30.08.2022, where there is a direction to dispose of the statutory appeals and also to take up the stay petitions. 21. As rightly contended by Mr. Thomas Abraham, learned counsel for the appellants, interim order made in W.P.(C) No.26182 of 2022 dated 30.08.2022, is in the nature of a final order, which is not permissible. 22. Reference can be made to a few decisions of the Hon'ble Supreme Court:- W. A. No. 1351 of 2022 -11- (i) In **The State of Orissa v. Madan Gopal Rungta** [AIR 1952 SC 12], a Constitution Bench of the Hon'ble Apex Court clearly spelt out the countours within which interim relief can be granted, and held as under:- "..........An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution such suit, issue directions in the nature of temporary injunctions, under Art.226 of the Constitution. In our opinion, the language of Art.226 does not permit such an action. On that short ground, that judgement of the Orissa High Court under appeal cannot be upheld." ## (ii) In **Deoraj v. State of Maharashtra** reported in AIR 2004 ## SC 1975, the Hon'ble Supreme Court, at para 12, held as under:- "Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as W. A. No. 1351 of 2022 -12- relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent." (iii) In **State of U.P v. Ram Sukhi Devi** , [(2005) 9 SCC 733] the Hon'ble Apex Court observed that final relief cannot be granted by way of interim relief. Paragraph 8 of the said decision is extracted hereunder: "To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with W. A. No. 1351 of 2022 -13- stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See _Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. (1985 (1) SCC 260 at p. 265), State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC 217 at p.224), State of U.P. and Ors. v. Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214_ ).] No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment." 23. For the reasons stated supra, we are inclined to interference with the interim order in W.P.(C) No.26182 of 2022 dated 30.08.2022. ## 24. Before parting with this case, we make it clear that appeals and stay petitions filed before the Water (Prevention and Control of W. A. No. 1351 of 2022 -14- Pollution) Appellate Authority and the Air (Prevention and Control of Pollution) Appellate Authority, have to be disposed of, as directed by the learned Single Judge in the judgment in W.P.(C) No. 27956 of 2022 dated 30.08.2022, without any delay. Accordingly, instant writ appeal is allowed. Parties may bring the notice of the judgment rendered in W.A.No. 1351 of 2022 before the writ court, for appropriate disposal of W.P.(C) No. 26182 of 2022. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. A. No. 1351 of 2022 -15- ## **APPENDIX OF WA 1351/2022** ## **PETITIONER ANNEXURES** - **Annexure A1** **THE ROUGH SKETCH SHOWING THE LIE OF THE PLANT, RESIDENTIAL HOUSES AND THE PALLICKAL RIVER** - **Annexure A2 THE TRUE COPY OF THE REPORT OF THE SUBCOMMITTEE RECOMMENDING NOT TO PERMIT THE ESTABLISHMENT OF THE HOT MIX PLANT OF THE 1ST RESPONDENT IN THE AREA WITH TRANSLATION.** - **Annexure A2(A) THE TRUE COPY OF THE DECISION NO.8/2 OF THE PANCHAYAT COMMITTEE AT ITS MEETING HELD ON 19.7.2021 WITH TRANSLATION** - **Annexure A3 THE TRUE COPY OF THE INTERIM DATED 13.01.2022 IN W.P(C)NO.1001 OF 2022.** - **Annexure A4 THE TRUE COPY OF THE INTERIM ORDER DATED 26.5.2022 IN W.P.(C)NO.14908 OF 2022** - **Annexure A5 THE TRUE COPY OF THE APPEAL NO.14 OF 2022 ALONG WITH THE STAY PETITION PREFERRED BY THE APPELLANTS BEFORE THE WATER (PREVENTION AND CONTROL OF POLLUTION), APPELLATE AUTHORITY** - **Annexure A6** **THE TRUE COPY OF THE APPEAL NO.17 OF 2022 ALONG WITH THE STAY PETITION PREFERRED BY THE APPELLANTS BEFORE THE AIR (PREVENTION AND CONTROL OF POLLUTION), APPELLATE AUTHORITY.**