M/S Velakode Rubber and Reclaims Private Limited v Kaipparamabu Grama Panchayath and Environmental Engineer, Kerala State Pollution Control Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939** ## **WP(C).No. 31372 of 2011 (V)** **----------------------------** ## **PETITIONER(S):** ## **-----------------------** **M/S.VELAKODE RUBBER AND RECLAIMS PRIVATE LIMITED, A COMPANY REGISTERED UNDER THE COMPANIES ACT, VELAKODE INDUSTRIAL DEVELOPMENT PLOT, MUNDOOR P.O., THRISSUR, PIN-680 541, REP. BY ITS MANAGING DIRECTOR K.I. AFSAL, AGED 28, S/O.K.K. IBRAHIM, KAROTHUKUDY HOUSE, VP-111-3, PALLIPURAM, MUDICKAL P.O., ERNAKULAM DISTRICT, PIN-683 547.** ## **BY ADV. SRI.P.VISWANATHAN.** ## **RESPONDENT(S):** **--------------------------** **1. KAIPARAMABU GRAMA PANCHAYATH, MUNDOOR P.O., TRICHUR, PIN-680 541, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KAIPARAMABU GRAMA PANCHAYATH, MUNDOOR P.O., PIN-680 541.** - **ADDL. R2 IMPLEADED** **2. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, THRISSUR.** - **IS SUO MOTU IMPLEADED, VIDE JUDGMENT DATED 05/07/2017 IN WP(C).** **R1 BY SRI.P.C.SASIDHARAN, SC. ADDL. R2 BY ADV. SRI. T.NAVEEN SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 31372 of 2011 (V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE PROCEEDINGS DATED 12/08/2009, BY THE GENERAL MANAGER, DISTRICT INDUSTRIAL CENTRE. EXT.P2 COPY OF THE AGREEMENT DATED 20/08/2009 EXECUTED IN FAVOUR OF THE PETITIONER.** - **EXT.P3 COPY OF THE GOVERNMENT ORDER (MS) NO.74/2001/1D DATED 30/03/2001.** - **EXT.P4 COPY OF THE COMMUNICATION DATED 24/06/2010 FROM THE TOWN PLANNER.** **EXT.P5 COPY OF THE CONSENT ISSUED BY THE POLLUTION CONTROL BOARD. EXT.P6 COPY OF THE ORDER DATED 10/11/2011, ISSUED BY THE RESPONDENT.** **EXT.P7 COPY OF THE EXPLANATION DATED 11/11/2011, GIVEN BY THE PETITIONER.** **EXT.P8 COPY OF THE JUDGMENT IN WP(C).NO.27736/2004 PEPSICO INDIA HOLDING PRIVATE LTD.** **EXT.P9 COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE FIRE AND RESCUE DEPARTMENT.** - **EXT.P10 COPY OF THE LICENSE ISSUED BY THE DEPARTMENT OF FACTORIES AND BOILERS.** - **EXT.P11 COPY OF THE FITNESS AND SANITARY CERTIFICATE ISSUED BY THE DISTRICT MEDICAL OFFICER.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE REPORT DATED 10/01/2011.** **EXT.R1B COPY OF THE COVERING LETTER DATED 10/11/2011.** **EXT.R1C COPY OF THE REPRESENTATION ADDRESSED TO THE SUB INSPECTOR OF POLICE, PERAMANGALAM.** **....2/-** ## **WP(C).No. 31372 of 2011 (V)** **EXT.R1D COPY OF THE FIR IN CRIME NO.1117/2011 REGISTERED ON 10/11/2011.** **EXT.R1E COPY OF THE RESOLUTION DATED 21/01/2012. EXT.R1F COPY OF THE REPRESENTATION DATED 21/01/2012.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## K. Vinod Chandran, J ---------------------------------------- ## W.P.(C) No.31372 of 2011-V ---------------------------------------- Dated this the 05[th] day of July, 2017 ## **JUDGMENT** The petitioner is aggrieved with Exhibit P6 order issued by the Panchayat. 2. The petitioner is carrying on a rubber recycling unit within an industrial area as notified by the State Government. By Exhibit P6, the petitioner was issued with a stop memo finding violation of Sections 232, 233 and 233A of the Kerala Panchayat Raj Act, 1994 [for brevity “Panchayat Raj Act”]. The grounds raised in the stop memo are that the petitioner had not obtained any permission for establishment of the industry under Sections 232 and 233 and that under Section 233A there is found nuisance caused from the emissions from the factory operated by the petitioner. 3. The learned Counsel appearing for the petitioner would contend that the petitioner's industry is exempted from taking any permission under the Panchayat Raj Act as per Section 1(2) and also Section 233B. Section 1 (2) as it exists now, exempted the areas _inter alia_ categorised as industrial areas of the State. Though an WP(C) No.31372 of 2011 - 2 - amendment was brought about with effect from 2010 specifying the industrial areas to be those declared under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 [for brevity “Single Window Clearance Act”], the petitioner's industry will still be covered under sub-clause (i) of Section 233B, which takes in industrial development areas declared as such by a Government controlled agency. 4. The petitioner obtained allotment of 1 acre of property as per Exhibit P1 and an agreement was entered into with the District Industries Centre as per Exhibit P2. Exhibit P3 is the notification which declared 25 acres of land in Avanoor Village in Thrissur District to be an industrial development plot for allotment to entrepreneurs. The Town Planner's communication at Exhibit P4 also evidences exemption to the petitioner's construction to be made in the property. The petitioner also has obtained Consent to Operate as per Exhibit P5, the validity of which has later been extended. Exhibit P6, hence, cannot be sustained, is the contention. Reliance is also placed on Exhibit P8 judgment to contend that the Panchayat cannot proceed against the petitioner for violation of Sections 232, 233 and 233A of WP(C) No.31372 of 2011 - 3 - the Panchayat Raj Act. 5. The learned Counsel appearing for the Panchayat specifically point out that the stop memo was issued on the basis of complaints received by the Panchayat from the residents of the locality. Reference is made to Exhibit R1(a), the communication of the Medical Officer, which has been issued after inspection of the premises of the petitioner as also the properties in the vicinity. The Medical Officer has reported that there is acute nuisance caused to the residents of 8 houses in the locality by reason of the emissions from the industry. It is also reported that polluted water is released into the public drainage system and is also seen in the nearby property. The Medical Officer apprehends the possibility of seepage of such effluent water into the drinking water sources of the locality. The complaint at Exhibit R1(c) received from the residents of the locality is specifically referred to along with the First Information Report registered by the respondent-Panchayat. It is contended that going by the decision of this Court in _**Chettikulangara Grama Panchayat v. State of Kerala**_ **[2014 (3) KLT 105]** it cannot be said that the Panchayat does not have any power to look into the post operational WP(C) No.31372 of 2011 - 4 - violations of an industry even if they are exempted from the initial requirement of establishment and licence. 6. Admittedly the proceedings were initiated by the Panchayat for reason of the complaint of the neighbouring residents pointing out the pollution caused by the operation of the industry and detrimental effects to the residents of the locality. The contention of the petitioner has to be accepted that the provisions for installation or establishment of machinery as provided under Section 232 of the Panchayat Raj Act would not be applicable to the petitioner's industry for reason of it being an industry within a notified industrial development area. However, as has been found in _**Chettikulangara Grama Panchayat**_ , the Panchayat cannot be said to have been divested of all authority to look into the post operational defects caused by the industries so exempted and the deleterious effect it has on the health of the residents of the locality. 7. Section 233A of the Panchayat Raj Act in fact confers ample power on the Panchayat to proceed for abatement of nuisance caused by a factory, workshop, etc. The instant proceedings are also initiated under Section 233A. However, in providing for mitigating WP(C) No.31372 of 2011 - 5 - measures, the Panchayat would not be the competent authority especially in view of lack of technical know-how in such matters. Sub-section (2) of Section 233A also provides for the Village Panchayat to obtain expert opinion with regard to the determination of the nuisance or its abatement. The Panchayat Raj Act also recognises the expertise of the Kerala State Pollution Control Board [for brevity “PCB”] insofar as providing for a Consent to Establish and Consent to Operate being essential for starting and running of an industry. The PCB is an expert body, which is competent to look into any issues of pollution. Hence, though the Panchayat could very well examine the post operational defects pointed out by the residents of the locality, even of an exempted industry, the mitigating measures has to be laid down by the PCB. 8. In the present case, the consent of the PCB produced has a validity till 2013. The petitioner is said to have obtained extension of the validity period. The Panchayat also is said to have approached the PCB with a complaint. The petitioner had been continuing all these years, since there was a stay of the stop memo issued by the Panchayat. - 6 - WP(C) No.31372 of 2011 9. As of now if there is any pollution caused, it is for the Panchayat to move the PCB and the Environmental Engineer of the area; shall look into the same, if necessary after conducting inspection of the premises and also ensure that proper waste disposal measures are brought in by the petitioner. There is also a complaint raised by the Panchayat that the petitioner is carrying on the operations in the night also; which could also be looked into by the PCB. The PCB would, hence, look into the operational defects pointed out by the Panchayat and provide for mitigating measures and also conditions for continuation of Consent to Operate. Only considering the long passage of time, the Panchayat would have to approach the PCB with a fresh complaint, if the same is warranted at this stage. “The Environmental Engineer, Kerala State Pollution Control Board, Thrissur” is _suo motu_ impleaded as additional 2[nd] respondent in the writ petition. On a complaint filed by the Panchayat, it shall be immediately enquired into and after inspection of the premises, with notice to the petitioner and the Panchayat, if any pollution is detected, provide for mitigating measures and shall also issue urgent orders on that count. WP(C) No.31372 of 2011 - 7 - The writ petition is disposed of as indicated above; but, however, setting aside the stop memo issued by the Panchayat, impugned herein; subject to further proceedings taken by the Panchayat as directed hereinabove. Parties are left to suffer their respective costs. **Sd/-** K.Vinod Chandran Judge vku/- [ true copy ]