Shammy A. Sahib v. Kottayam District Single Window Clearance Board and others; K.G. Rajappan v. District Collector, Kerala State Pollution Control Board, Ettumanoor Municipality and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ## THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941 ## WP(C).No. 12366 of 2019 ## PETITIONER: SHAMMY A.SHAHIB, AGED 45 YEARS, S/O.AHAMED, PALACKAL HOUSE, CHERUVANDUR, ETTUMANOOR.P.O. KOTTAYAM-686631. BY ADV. SRI.PRAVEEN K. JOY ## RESPONDENTS: - 1 KOTTAYAM DISTRICT SINGLE WINDOW CLEARANCE BOARD, KOTTAYAM-686001. REP BY ITS CONVENOR. - 2 DISTRICT MEDICAL OFFICER, KOTTAYAM-686002 - 3 DISTRICT INDUSTRIES CENTRE KOTTAYAM-686001 REP BY ITS GENERAL MANAGER. - 4 KERALA STATE POLLUTION CONTROL BOARD TRIVANDRUM-695004 REP BY ITS CHAIRMAN - 5 THE ENVIRONMENTAL ENGINEER KERALA STATE POLLUTION CONTROL BOARD, KOTTAYAM686001 - *6 ADDL.R6 . K.G.RAJAPPAN AGED 67 YEARS KALLETHANATH(H), ETTUMANOOR.P.O, KOTTAYAM 686 562. (*ADDL.R6 IMPLEADED AS PER ORDER DATED 22.05.2019 IN IA 1/19 IN W.P.(C) 12366/19.) BY ADV. SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, ## SRI K.P.HARISH- SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.06.2019, ALONG WITH WP(C).13038/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).Nos. 12366 of 2019 & 13038 of 2019 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941 ## WP(C).No. 13038 of 2019 ## PETITIONER: K.G.RAJAPPAN, AGED 67 YEARS, KALLETHANATH (H), ETTUMANOOR P.O, KOTTAYAM - 686 562. BY ADVS. SRI.ALEX.M.SCARIA SRI.A.J.RIYAS SRI.G.BAIJURAJ KUM.MINU THANKAPPAN ## RESPONDENTS: - 1 THE DISTRICT COLLECTOR KOTTAYAM, CIVIL STATION, KOTTAYAM - 686 002. 2 THE KERALA STATE POLLUTION CONTROL BOARD, V PUBLISHERS BUILDING, SREENIVASA IYYER ROAD, KOTTAYAM - 686 001, REPRESENTED BY ITS ENVIRONMENTAL ENGINEER. 3 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, V PUBLISHERS BUILIDING, SREENIVASA IYYER ROAD, KOTTAYAM - 686 001. - 4 THE ETTUMANOOR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ETTUMANOOR P.O, KOTTAYAM - 686 562. WP(C).Nos. 12366 of 2019 & 13038 of 2019 3 - 5 THE SECRETARY ETTUMANOOR MUNICIPALITY, ETTUMANOOR P.O, KOTTAYAM - 686 562. - 6 THE EXECUTIVE ENGINEER, THE KERALA STATE ELECTRICITY BOARD, ETTUMANOOR - 686 562. - 7 THE DISTRICT LABOUR OFFICER COLLECTORATE BUILDING, 3RD FLOOR, KOTTAYAM - 686 002. - 8 DISTRICT FIRE AND SAFETY OFFICER, OFFICE OF THE DISTRICT FIRE OFFICER, FIRE AND RESCUE SERVICES, KOTTAYAM - 686 001. - 9 THE DISTRICT POLICE CHIEF KOTTYAM - 686 002. - 10 STATION HOUSE OFFICER, ETTUMANOOR POLICE STATION, ETTUMANOOR - 686 562 - 11 DIVISIONAL FOREST OFFICER, PARAMBUZHA P.O, KOTTAYAM - 686004 - 12 SRI. SHAMMY A. SAHIB, - S/O. AHAMMED SAHIB, PALACKAL HOUSE, CHERUVANDUR, ETTUMANOOR P.O, KOTTAYAM - 686 631. BY ADVS. SRI K.P.HARISH- SENIOR GOVERNMENT PLEADER SRI.N.SATHEESH SRI.PRAVEEN K. JOY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.06.2019, ALONG WITH WP(C).12366/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).Nos. 12366 of 2019 & 13038 of 2019 4 ## **JUDGMENT** Since common issue is raised in these writ petitions, they are being disposed of by this common judgment. ## 2. **W.P.(c) No.12366/2019:-** The petitioner, who is stated to be the owner of a plywood industry by name M/s.Palackal Timbers, undertaking wood veneer and plywood manufacturing with two units in building No.XII-18-C and XIX-304-B of Ettumanoor Municipality, one under the name Palackal Industries and the other under the name Palackal Timbers, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P17 show cause notice dated 01.04.2019 issued by the 5[th] respondent Environmental Engineer of the Kerala State Pollution Control Board at Kottayam, whereby he has been asked to show cause within ten days of receipt of that notice, as to why legal proceedings shall not be initiated for WP(C).Nos. 12366 of 2019 & 13038 of 2019 **==> picture [8 x 8] intentionally omitted <==** violating the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981. The petitioner has also sought for a writ of mandamus of commanding the 4[th] respondent to take up Ext.P18 appeal and consider the same in tune with Ext.P13 recommendation and also under Ext.P1 direction by the District Single Window Board and allow the same and grant opportunity to produce the documents, following the dictum in **Shanmugham v. Vandezhy Grama Panchayat [2016 (1) KLT 601]** ; a writ of mandamus commanding the 4[th] respondent to take up the amendment application submitted and also to follow the recommendation, in tune with Ext.P1 to P12, within a time limit to be fixed by this Court; and an order directing to keep in abeyance Ext.P17 notice, till the entire proceedings under Ext.P18 appeal is finalised. 2.1. On 04.06.2019, when this writ petition came WP(C).Nos. 12366 of 2019 & 13038 of 2019 6 up for consideration, the learned Standing Counsel for the Pollution Control Board submitted that a closure notice dated 31.05.2019 has already been issued to the petitioner by the 5[th] respondent Environmental Engineer, whereby the petitioner has been directed to stop all activities of the units and close down all operations with immediate effect, on receipt of that order. The learned Standing Counsel submitted further that a copy of the said order shall be placed on record along with a memo. 2.2. Today, when this writ petition is taken up for consideration, the learned Standing Counsel for Pollution Control Board has placed on record a copy of closure order dated 31.05.2019 issued by the 5[th] respondent Environmental Engineer. 3. **W.P.(c) No.13038/2019:-** This writ petition is one filed by the additional 6[th] respondent in W.P.(c) No.12366 of 2019 seeking a writ of mandamus commanding respondents 2 and 3 to ensure that the WP(C).Nos. 12366 of 2019 & 13038 of 2019 **==> picture [8 x 8] intentionally omitted <==** 12[th] respondent (who is the petitioner in W.P.(C) No.12366 of 2019) is not operating his peeling cum plywood making industry in Exhibit P1 building, otherwise than in accordance with law, and to stop the industry in the light of Exhibit P10 findings; a writ of mandamus commanding the 5[th] respondent Secretary of the Grama Panchayat to take appropriate action to demolish the unauthorised construction of the industrial unit in which peeling and plywood making industry of the 12[th] respondent is functioning; a writ of mandamus commanding the 1[st] respondent to stop the illegal functioning of the plywood making unit of the 12[th] respondent in the building constructed in the land which was converted from Paddy land to garden land in violation of the provisions of law; a writ of mandamus commanding the 7[th] respondent to stop the unauthorised use of electricity, supplied to the industrial unit of the 12[th] respondent for industrial purpose, to the WP(C).Nos. 12366 of 2019 & 13038 of 2019 **==> picture [8 x 8] intentionally omitted <==** lodging purpose of the employees of the 12[th] respondent in Exhibit P1 building; a writ of mandamus commanding the 8[th] respondent to ensure that the fire safety regulations are complied with in respect of the industrial unit of the 12[th] respondent for industrial purpose, and for the employees of the 12[th] respondent in Exhibit P1 building; a writ of mandamus commanding the 7[th] respondent to ensure that the conditions prescribed in the Labour Welfare legislations are complied with in respect of the labourers allowed to work in the plywood unit of the 12[th] respondent in Exhibit P1 building; and a writ of mandamus commanding the 9[th] and 10[th] respondents to ensure that the migrant labourers appointed in the plywood unit of the 12[th] respondent in Exhibit P1 building are not engaged in any anti-social activity. 3.1. On 23.05.2019, when this writ petition came up for admission, the same was ordered to be listed WP(C).Nos. 12366 of 2019 & 13038 of 2019 **==> picture [8 x 8] intentionally omitted <==** along with W.P.(C) No.12366 of 2019 filed by the 12[th] respondent. 3.2. The 12[th] respondent has filed I.A. No.2 of 2019 seeking permission to raise the question of maintainability of this writ petition as a preliminary issue. He has filed I.A.No.3 of 2019 seeking an order to accept Exts.R12(a) and R12(b) as a additional documents. 4. Heard the learned counsel for the petitioner in the respective writ petitions, the learned Government Pleader for the official respondents, the learned Standing Counsel for the Pollution Control Board, the learned Standing Counsel for Ettumanoor Municipality in W.P.(C) No.13038 of 2019 and also the respective counsel for party respondents. 5. During the course of arguments, the learned counsel for the petitioner in W.P.(C) No.12366/2019 would point out that the petitioner has already filed WP(C).Nos. 12366 of 2019 & 13038 of 2019 10 Appeal No.9 of 2019 before the Appellate Authority under Section 31 of the Air (Prevention & Control of Pollution) Act, 1981, challenging the closure order dated 31.05.2019 issued by the Environmental Engineer of the Kerala State Pollution Control Board. The said appeal is accompanied by I.A.No.22 of 2019 seeking interim relief. 6. The learned counsel for the petitioner in W.P.(c) No.13038 of 2019 would point out that despite the issuance of closure notice dated 31.05.2019, the petitioner in W.P.(C) No.12366 of 2019 is still running the industrial units in question. 7. The learned Standing Counsel for Pollution Control Board would submit that the Environmental Engineer of the Board has already issued a closure notice and that the officials of the Board shall take necessary steps to ensure strict compliance of the closure order dated 31.05.2019, until appropriate WP(C).Nos. 12366 of 2019 & 13038 of 2019 **==> picture [14 x 8] intentionally omitted <==** interim orders are passed in the appeal filed before the Appellate authority. 8. Having considered the submissions made by the learned counsel on both sides, these writ petitions are disposed of, leaving open the legal and factual contentions raised by both sides and without prejudice to the right of the petitioner in W.P.(C) No.12366 of 2019 to pursue Appeal No.9 of 2019 filed before the Appellate Authority, challenging the closure order dated 31.05.2019 issued by the Environmental Engineer of the Kerala State Pollution Control Board, and also the interlocutory application filed in that appeal. 9. If the petitioner in W.P.(C) No. 12366 of 2019 is running the industrial units, showing scant regard to the closure notice dated 31.05.2019 issued by the Environmental Engineer, it is for the officials of the Kerala State Pollution Control Board and also the Secretary of Ettumanoor Municipality, the 5[th] respondent WP(C).Nos. 12366 of 2019 & 13038 of 2019 **==> picture [14 x 8] intentionally omitted <==** in W.P.(C) No.13038 of 2019, to take necessary steps to ensure strict compliance of that order. It will be open to the 5[th] respondent Secretary of Ettumanoor Municipality to seek Police assistance, if found necessary by invoking the provisions under clause (b) of sub-section (1) of Section 550 of the Kerala Municipality Act. The legal and factual contentions raised by both sides are left open to be raised before appropriate authority, at appropriate stage. Sd/- ## **ANIL K. NARENDRAN** **JUDGE** bng/11.06.19 WP(C).Nos. 12366 of 2019 & 13038 of 2019 13 ## APPENDIX OF WP(C) 12366/2019 ## PETITIONER'S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE ORDER DATED 24/07/2018 OF THE 1ST RESPONDENT - EXHIBIT P2 THE TRUE COPY OF THE LICENCE FEE RECEIPT NO 10679 ISSUED BY THE ETTUMANOOR MUNICIPALITY DATED 28.3.2019 FOR YEAR 2019-20 - EXHIBIT P3 THE TRUE COPY OF THE LICENCE FEE RECEIPT NO 10678 FOR YEAR 2019-20 ISSUED BY THE ETTUMANOOR MUNICIPALITY DATED 28.3.19 - EXHIBIT P4 THE TRUE COPY OF THE LICENCE NO 17 ISSUED BY THE ETTUMANOOR MUNICIPALITY DATED 12/04/2018 - EXHIBIT P5 THE TRUE COPY OF THE INDUSTRIAL LICENCE NO 18 ISSUED BY THE ETTUMANOOR MUNICIPALITY DATED 12/04/2018. - EXHIBIT P6 THE TRUE PHOTOCOPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, KOTTAYAM DATED 25.04.2018 - EXHIBIT P7 DIRECTOR OF FACTORIES AND BOILERS AT TRIVANDRUM HAS ISSUED ORDER NO T2/7466/2017/F AND B DATED 04/10/2017 - EXHIBIT P8 TRUE PHOTOCOPY OF THE RELEVANT PAGE CONSENT NO PCB/KTM/ICO/R2/4073/2017 ISSUED BY THE POLLUTION CONTROL BOARD DATED 16.11.2017 - EXHIBIT P9 THE TRUE PHOTOCOPY OF THE CONSENT NO PCB/KTM/ICO/4856/2017 ISSUED BY WP(C).Nos. 12366 of 2019 & 13038 of 2019 14 THE POLLUTION CONTROL BOARD DATED 20.12.2017 - EXHIBIT P10 THE TRUE COPY OF THE LICENSES DATED 03.11.2016 OF FOREST DEPARTMENT FOR PALACKAL INDUSTRIES ISSUED BY DIVISIONAL FOREST OFFICER, KOTTAYAM - EXHIBIT P11 - THE TRUE COPY OF THE LICENSES DATED 28.09.2018 OF FOREST DEPARTMENT FOR PALACKAL TIMBERS ISSUED BY DIVISIONAL FOREST OFFICER - EXHIBIT P12 THE TRUE COPY OF THE ORDER DATED 12.07.2017 OF DISTRICT MEDICAL OFFICER - EXHIBIT P13 THE TRUE COPY OF THE MINUTES AND RECOMMENDATION DATED 10.12.2018 OF THE 4TH RESPONDENT - EXHIBIT P14 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 4TH RESPONDENT - EXHIBIT P15 THE TRUE COPY OF THE JUDGMENT DATED 29.01.2019 IN WPC 1934/2019 OF THIS HON'BLE COURT - EXHIBIT P16 THE TRUE COPY OF THE AGREEMENT FOR SALE DATED 08.04.2019 - EXHIBIT P17 - TRUE COPY OF THE NOTICE DATED 01.04.2019 RECEIVED ON 06.04.2019 OF THE 5TH RESPONDENT - EXHIBIT P18 - THE TRUE COPY OF THE APPEAL PETITION DATED 09.04.2019 BEFORE THE 4TH RESPONDENT - EXHIBIT P19 - THE TRUE COPY OF THE OBJECTION DATED 10.04.2019 BEFORE THE 5TH RESPONDENT WP(C).Nos. 12366 of 2019 & 13038 of 2019 15 ## APPENDIX OF WP(C) 13038/2019 ## PETITIONER'S EXHIBITS: - EXHIBIT P1 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE VIOLATION OF THE BUILDING WHEREIN THE PLYWOOD MAKING UNIT OF THE 12 TH RESPONDENT FUNCTIONS. - EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT DATED 04/10/2005 OBTAINED IN THE NAME OF THE RAJAN VARGHESE, WHO IS SAID TO BE THE PREDECESSOR IN INTEREST OF THE 12TH RESPONDENT. - EXHIBIT P3 TRUE COPY OF THE SUBMISSION MADE UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 6TH RESPONDENT. - EXHIBIT P4 TRUE COPY OF THE REPLY TO EXHIBIT P3 APPLICATION - EXHIBIT P5 TRUE COPY OF THE SUBMISSION MADE UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 7TH RESPONDENT. - EXHIBIT P6 TRUE COPY OF THE REPLY OF EXHIBIT P5 APPLICATION. - EXHIBIT P7 TRUE COPY OF THE SUBMISSION MADE UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 8TH RESPONDENT. - EXHIBIT P8 TRUE COPY OF THE REPLY OF EXHIBIT P7 APPLICATION - EXHIBIT P9 TRUE COPY OF THE COMMISSION REPORT IN OS 175 OF 2018 ON THE FILES OF THE MUNSIFF'S COURT, ETTUMANOOR. - EXHIBIT P10 TRUE COPY OF THE REPORT DATED 19/02/2019 PREPARED AFTER HEARING WP(C).Nos. 12366 of 2019 & 13038 of 2019 16 THE ADJACENT LAND OWNERS WHO ARE ALSO RESISTING THE ILLEGAL FUNCTIONING OF THE ABOVE SAID PLYWOOD FACTORY AND BASED ON THE INSPECTION CONDUCTED BY THE SENIOR ENVIRONMENTAL ENGINEER (VIGILANCE AND SURPRISE SQUAD) ## RESPONDENTS' EXHIBITS: EXHIBIT R12(A) THE TRUE COPY OF ORDER DATED 07.11.2018 IN IA NO.1449/2018 IN OS NO.175/2018 OF MUNSIFFS COURT, ETTUMANOOR EXHIBIT R12(B) THE TRUE COPY OF THE CONSENT NO PCB/KTM/ICO/4856/2017 ISSUED BY THE POLLUTION CONTROL BORAD DATED 24.11.2017 EXHIBIT R2(A) TRUE COPY OF THE CLOSURE ORDER DATED 30.05.2019 ISSUED BY THE PCB TO THE UNIT.