Nazarudeen M. v. Environmental Engineer, Kerala State Pollution Control Board, Nedumpana Grama Panchayat, Nedumpana Grama Panchayat Secretary

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** ## **WP(C).No.22405 OF 2019(A)** ## **PETITIONER:** **NAZARUDEEN M., AGED 58 YEARS, S/O.MOHAMMED KUNJU, MEVARATH HOUSE, THATTAMALA P.O., THAZHUTHALA VILLAGE, KOLLAM DISTRICT, PIN-691 020.** **BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENTS:** |**1**|**THE ENVIRONMENTAL ENGINEER,**| |---|---| ||**KERALA STATE POLLUTION CONTROL BOARD,**| ||**BIG BAZAR, KOLLAM, PIN-691 001.**| |**2**|**NEDUMPANA GRAMA PANCHAYAT,**| ||**NEDUMPANA P.O., KOLLAM, PIN-691 576,**| ||**REPRESENTED BY ITS SECRETARY.**| |**3**|**THE SECRETARY,**| ||**NEDUMPANA GRAMA PANCHAYAT,**| ||**NEDUMPANA P.O.,**| ||**KOLLAM, PIN-691 576.**| |**R1**|**SRI.T.NAVEEN, STANDING COUNSEL,**| ||**KERALA STATE POLLUTION CONTROL BOARD**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22405 OF 2019(A)** -2- ## **JUDGMENT** The petitioner, who is the proprietor of 'A.N. Cashew Industries' at Muttakavu in Nedumpana in Kollam District, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to allow him three months' time for installing ladder, port hole and platform, etc. in his establishment by name, 'A.N. Cashew Industries'. 2. Going by the averments in the writ petition, the Kerala State Pollution Control Board, by Ext.P2 notice of intention of refusal to renew the consent to operate, pointed out certain deficiencies in the petitioner's unit. On receipt of Ext.P2, the petitioner submitted Ext.P3 reply dated 27.05.2019. Thereafter, the petitioner is issued with Ext.P4 notice dated 06.07.2019 of the 3[rd] respondent, who is the Secretary of the 2[nd] respondent Grama Panchayat, whereby he is required to stop the functioning of the unit. 3. A reading of Ext.P4 notice would show that the 1[st] respondent Environmental Engineer issued an order dated 10.06.2019 refusing renewal of the consent to operate. On **WP(C).No.22405 OF 2019(A)** -3- noticing that the functioning of the petitioner's unit is causing pollution and that the petitioner has not complied with the conditions stipulated by the Pollution Control Board, the 3[rd] respondent issued Ext.P4 notice, whereby the petitioner has been directed to close down the unit within a period of seven days. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the Pollution Control Board, representing the 1[st] respondent. 5. Having considered the submissions made by the learned counsel for the petitioner and also the learned Standing Counsel for the Pollution Control Board, this Court finds that the 1[st] respondent has already issued an order dated 10.06.2019 refusing renewal of the consent to operate for the petitioner's unit, by name, A.N. Cashew Industries. The said order was followed by Ext.P4 notice dated 06.07.2019 of the 3[rd] respondent Secretary, whereby the petitioner is required to stop the functioning of the unit, since the 1[st] respondent has already refused renewal of consent to operate. Now, without challenging the order **WP(C).No.22405 OF 2019(A)** -4- refusing renewal of the consent to operate or Ext.P4 notice, the petitioner is seeking an order directing the respondents to allow three months' time for installing ladder, port hole and platform, etc. in the petitioner's unit. 6. In **Vinod Kumar v. District Geologist and others [2019 (3) KHC 79]** in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of **WP(C).No.22405 OF 2019(A)** -5- Rule 14, this Court cannot direct the District Geologist to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. Paragraphs 9 to 16 of the said decision read thus; “9. A reading of the provisions under sub-rules (2) and (3) of Rule 14 of the Kerala Minor Mineral Concession Rules make it explicitly clear that an application for mineral transit passes for transportation of ordinary earth shall be accompanied by a valid building permit for construction of building, obtained from the Local Self Government authority concerned; land development permit obtained from the Local Self Government authority concerned, in cases where the levelling of the land and extraction of earth is involved; and possession and enjoyment certificate of the land issued by the Village Officer concerned. As per the second proviso to sub-rule (2), in cases where the levelling of the land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authority concerned, which shall contain the area of the land to be developed for the construction of the building and quantity of ordinary earth to be extracted for such construction. 10. As per sub-rule (3) of Rule 14, a person who applies for mineral transit passes for transportation of **WP(C).No.22405 OF 2019(A)** -6- ordinary earth under Rule 14 shall also submit along with the application, a sworn affidavit in stamped paper to the effect that he will carry out the proposed construction as per the building plan and building permit and shall complete at least the construction of basement of the building within one year from the date of issuance of mineral transit passes and intimate the same to the competent authority. 11. In the instant case, the fact that Ext.P3 application made by the petitioner before the 1[st] respondent for issuance of mineral transit passes is not supported by any of the documents as per the mandate of the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14 of the Kerala Minor Mineral Concession Rules is not in dispute. Though Ext.P3 application is one dated 04.02.2019, the same was sent by speed post to the office of the 1[st] respondent only on 20.02.2019, as evidenced by Ext.R1(a) envelop, which was received in the office of the said respondent only on 23.02.2019. The said fact is also not in dispute. During the course of arguments, the submission made by the learned counsel for the petitioner is that the petitioner is prepared to produce Ext.P1 building permit, Ext.P2 development permit and also an affidavit as per the mandate of sub-rule (3) of Rule 14 before the 1[st] respondent, within a time limit to be fixed by this Court. 12. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4** **WP(C).No.22405 OF 2019(A)** -7- **SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; " **15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC **WP(C).No.22405 OF 2019(A)** -8- 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied) 13. In **Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. **WP(C).No.22405 OF 2019(A)** -9- G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. : **Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. **Note 192** .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, **WP(C).No.22405 OF 2019(A)** -10- specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. **Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court **WP(C).No.22405 OF 2019(A)** -11- should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows in paragraph 15 of the reports: "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to **WP(C).No.22405 OF 2019(A)** -12- discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, in order that a writ of mandamus may be **WP(C).No.22405 OF 2019(A)** -13- issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to their case." 14. **In State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; " **10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing **WP(C).No.22405 OF 2019(A)** -14- the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......." 15. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or **WP(C).No.22405 OF 2019(A)** -15- directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]. 16. In the instant case, as borne out from the pleadings and materials on record, the petitioner filed this writ petition before this Court on 22.02.2019, even before the receipt of Ext.P3 application for mineral transit passes by the 1[st] respondent. Moreover, the said application is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14. In such circumstances, it cannot be said that there is any failure on the part of the 1[st] respondent in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of mandamus for consideration of Ext.P3 application. When Ext.P3 application made by the petitioner is not one supported by the mandatory documents as per the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the 1[st] respondent to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law.” **WP(C).No.22405 OF 2019(A)** -16- 7. In view of the law laid down in the decision referred to _supra_ , no writ of mandamus can be issued directing the respondents to grant time to install the machineries referred to hereinbefore, thereby permitting the petitioner to run his unit without complying with the statutory requirements and without a valid consent to operate, i.e., in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. In such circumstances, the petitioner is not entitled for the relief sought for in this writ petition and the same is, accordingly, dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No.22405 OF 2019(A)** -17- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER DATED 21.03.2019 ISSUED BY THE RESPONDENT NO.1 TO THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE LETTER DATED 14.05.2019 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD, KOLLAM TO THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE REPORT DATED 27.05.2019 SUBMITTED BY THE PETITIONER TO THE RESPONDENT NO.1. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 06.07.2019 ISSUED BY THE RESPONDENT NO.2 TO THE PETITIONER.** **RESPONDENTS' EXHIBITS: NIL**