Sunitha Sahajan v. Adat Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938** ## **W.P(C).No.23091 of 2016 (J)** **--------------------------------------** **PETITIONER(S):-** ## **----------------** **SMT.SUNITHA SAHAJAN, W/O.N.M.SAHAJAN, PROPRIERIX, M/S.TRICHUR TYRES, DOOR NO.2/512-B,CHITTILAPPILLY, TRICHUR-680551.** **BY ADVS.SRI.JOHN VARGHESE SRI.A.C.DEVY.** **RESPONDENT(S):-** - **---------------** **1. THE ADAT GRAMA PANCHAYATH, PURANATTUKARA P.O., TRICHUR DISTRICT, PIN-680 551, REPRESENTED BY THE SECRETARY.** **2. THE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, ADAT, TRICHUR DISTRICT, PIN-680 551.** **3. THE KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, NEAR ASWANI HOSPITAL, TRICHUR, PIN-680022.** **4. THE ASSISTANT ENGINEER, ELECTRICAL SECTION,KERALA STATE ELECTRICITY BOARD LTD., MUTHUVARA, TRICHUR DISTRICT - 680 551.** **5. STATE OF KERALA, REPRESENTED BY THE SECRETARY,LOCAL ADMINISTRATION, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN-695 001.** **R1 BY STANDING COUNSEL SRI.K.B.GANGESH.** **R2 & R5 BY SR.GOVERNMENT PLEADER RENIL ANTO KANDAMKULATHY. R3 BY STANDING COUNSEL SRI. T.NAVEEN R4 BY STANDING COUNSEL SMT.NAZEEBA.O.H. R4 BY STANDING COUNSEL SRI.SAJEEVKUMAR K.GOPAL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-10-2016, ALONG WITH WP(C).NO.24625/2016-C, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.23091 of 2016 (J)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:-** **-------------------------** **EXT.P1 TRUE COPY OF THE MINUTES OF THE MEETING DT.18-6-2016 BY THE PANCHAYAT.** **EXT.P2 TRUE COPY OF THE RENEWAL APPLICATION DT.8-4-2016 FILED BEFORE THE 1ST RESPONDENT. EXT.P3 TRUE COPY OF THE CERTIFICATE 1-1-2015 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER. EXT.P4 TRUE COPY OF THE LETTER DT.22-4-2016 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXT.P5 TRUE COPY OF THE APPLICATION DT.8-3-2016 FILED BEFORE THE SECOND RESPONDENT. EXT.P6 TRUE COPY OF THE LETTER DT.6-05-2016 ISSUED BY THE SECOND RESPONDENT. EXT.P7 TRUE COPY OF THE SANITARY CERTIFICATE DT.19-3-2015 ISSUED BY THE SECOND RESPONDENT. EXT.P8 TRUE COPY OF THE LETTER DT.26-05-2016 ISSUED BY THE FIRST RESPONDENT. EXT.P9 TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 25-5-2016 BY THE PANCHAYATH COMMITTEE. EXT.P10 TRUE COPY OF THE NOTICE DT.28-6-2016 ISSUED BY THE FOURTH RESPONDENT TO THE PETITIONER. EXT.P11 TRUE COPY OF THE NOTICE DT.15-3-2016 ISSUED BY THE FIRST RESPONDENT. EXT.P12 TRUE COPY OF THE REPLY DT.19.3.2016 FILED BY THE PETITIONER. EXT.P13 TRUE COPY OF THE JUDGMENT DT.4-12-2014 OF THIS HON'BLE COURT. EXT.P14 TRUE COPY OF THE REPORT ISSUED BY THE 3RD RESPONDENT DT.2.7.2016. EXT.P15 TRUE COPY OF THE LICENCE ISSUED BY THE 1ST RESPONDENT DATED 31.10.2015.** **- 2 -** **WP(C).No.23091 of 2016 (J)** **EXT.P16 TRUE COPY OF THE LETTER DT.19.3.2009 ISSUED BY THE FIRST RESPONDENT GRAMA PANCHAYAT PRESCRIBING THE CONTENTION FOR LICENSE. EXT.P17 TRUE COPY OF THE NOTICE ISSUED BY THE LOCAL CONGRESS COMMITTEE AGAINST THE PETITIONER. EXT.P18 TRUE COPY OF THE MINUTES DT.18.11.2014 PREPARED BY THE ENVIRONMENTAL ENGINEERS, KERALA STATE POLLUTION CONTROL BOARD. EXT.P19 TRUE COPY OF THE CERTIFICATE DATED 23.8.2014 ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, TRICHUR. EXT.P20 TRUE COPY OF THE LETTER DT.2.7.2016 ISSUED BY THE ENVIRONMENTAL ENGINEER OF THE THIRD RESPONDENT POLLUTION CONTROL BOARD.** **RESPONDENT(S)' EXHIBITS:-------------------------** **EXT.R4(a) TRUE COPY OF THE LETTER OF THE 1ST RESPONDENT PANCHAYAT.** **vku/-** **[ true copy ]** ## K. Vinod Chandran, J ---------------------------------------------------------------W.P.(C) No.23091 of 2016-J & 24625 of 2016-C ---------------------------------------------------------------Dated this the 20[th] day of October, 2016 ## **JUDGMENT** Both the writ petitions are concerned with an industry which was carried on with a valid D&O Licence till 31.03.2016. W.P. (C) No.23091 of 2016 is filed by the owner of the industry and W.P. (C) No.24625 of 2016 is filed by the nearby residents, who are the objectors. The parties are referred to as “owner” and “objectors”. The documents are referred to from the writ petitions as separately noticed. 2. In W.P.(C) No.23091 of 2016 the D&O Licence, which is valid till 31.03.2016, is produced as Exhibit P15. While the unit was functioning, there were some complaints received by the Kerala State Pollution Control Board [for brevity “PCB”] as to the pollution caused; upon which notice was issued to the owner to obtain a Consent to Operate. The owner applied for the same and Consent to Operate was obtained as per Exhibit P3 dated 01.01.2015. Subsequently, the owner was issued with a notice at Exhibit P6 dated WP(C) Nos.23091 of 2016 - 2 - 24625 of 2016 06.05.2016, directing the owner to produce a No Objection Certificate [for brevity “NOC”] from the District Medical Officer [for brevity “DMO”] under Section 233 of the Kerala Panchayat Raj Act, 1994 [for brevity “KPR Act”]. The owner, however, did not comply with the same, since the owner already had a Consent to Operate issued by the PCB. 3. The owner's D&O licence expired on 31.03.2016. The further renewal was not allowed by the Panchayat for reason of the owner having not obtained a NOC from the DMO(Health) as is evidenced from Exhibits P4 & P8 respectively dated 22.04.2016 and 26.05.2016. The owner was directed to stop functioning of the unit by Exhibit P8. Later when the owner applied for a NOC to apply before the DMO, the Panchayath took a resolution on 18.06.2016 not to grant the same for reason of the allegations of pollution and also the working of the unit during night time, which was communicated by Exhibit P1 dated 23.06.2016.. The owner challenged Exhibit P1 & P4 decisions of the Panchayat Committee as also Exhibit P8 stop memo. The learned Counsel for the owner contends that having obtained a Consent to Operate from the PCB, there is no requirement for a consent from the DMO(Health). WP(C) Nos.23091 of 2016 - 3 - 24625 of 2016 4. Section 233 of the KPR Act is a provision which is to be invoked at the time of establishment of a unit. Admittedly the owner's unit was established earlier and the owner was also granted consent for such establishment as per Section 233. It is also evident that such consent of the Council of the Panchayat was not granted after a report from the PCB; but presumably, after getting a NOC from the DMO(Health), since the owner was operating the unit on valid license (Exhibit P15). The proceedings initiated by the Panchayat and the PCB, when the unit was functioning, was on ground of complaints of pollution received from the residents of the locality. Hence, though a Consent to Establish from the PCB will not be required, the petitioner had obtained a Consent to Operate. The proviso to Section 233(4) specifically provides that no report under clause (b) would be required if a declaration is produced by the applicant, recommended by an officer of the Industries Department or by the PCB. In the present case, the Consent to Operate, subsequent to establishment of the unit, on complaints raised addresses effective the allegations of pollution. That having been achieved, there could be no requirement for a further NOC obtained from the DMO(Health); as has been held WP(C) Nos.23091 of 2016 - 4 - 24625 of 2016 ## in _**Soorya Retreats & Holidays India v. Elamadu Grama Panchayath**_ **[2016 (3) KHC 838].** 5. The objectors have filed W.P(C) No.24625 of 2016, seeking for implementation of the stop memo; but, however, later amended the writ petition challenging the Consent to Operate; which was produced in the said writ petition as Exhibit P1. As of now the stop memo cannot be directed to be implemented especially since the ground on which the stop memo was issued by the Panchayat was that the owner had not obtained NOC from the DMO (Health). This Court has already found that there is no requirement, as per Section 233 of the Act of 1994, to obtain such a NOC when the owner has a Consent to Operate issued by the PCB. 6. In the above circumstance, what survives for consideration in the writ petition filed by the objectors is, the contention regarding competency to grant Consent to Operate by the PCB. Though the same has to be challenged before the Tribunal as provided under the Environment (Protection) Act, 1986 considering the fact that the writ petitions were admitted and there is no dispute on the facts; this Court would look at the contentions of the objectors. WP(C) Nos.23091 of 2016 - 5 - 24625 of 2016 7. On the question of challenge to Exhibit P1 consent to operate, the learned Counsel for the objectors would take me to the Circular issued by the PCB itself, produced at Exhibit P11, which regulates grant of consent to small, medium and large scale industries under different categorisation of Red, Orange and Green; which categorisation is on the descending order with reference to the deleterious impact on environment; Red having the maximum impact and the Green the minimum. The owner’s unit is one categorised as Orange as per Exhibit P1. The Circular issued at Exhibit P11 requires a minimum distance of 10 metres for Orange category industries established; from any other residences. 8. The PCB’s report produced at Exhibit P10 is specifically referred to, wherein it is found that the residence of one of the objectors, viz., Jagannivasan, is situated within 6 metres of the unit. The rough sketch prepared therein also indicates the residence of Jagannivasan to be within the prohibited distance as per the Circular. The learned Standing Counsel for the PCB would refer to the relaxation in Exhibit P11, in case of small scale industries, to sustain Exhibit P1 Consent to Operate **.** This Court is not convinced that the WP(C) Nos.23091 of 2016 - 6 - 24625 of 2016 relaxation is for the minimum distance from the residences. In addition to the minimum distances stipulated from residences and public facilities, it is further provided that a minimum set back of 3 metres is also desirable for the factory building from the boundary of the subject property; which could be relaxed for green/orange categories. The relaxation in minimum set back provided for the factory building cannot lead to any reduction of minimum distance to be maintained from residences and public facilities as provided in the Circular. On the clear findings on facts recorded by the PCB itself Exhibit P1 Consent to Operate would have to be interfered with. 9. However, the learned Counsel appearing for the owner, on instructions, submits that the unit itself was established long prior to the construction of the residential building of Jagannivasan; which is denied by the other Counsel. This is a matter which has to be verified by the Panchayat from its own records. The Panchayat shall, hence, issue notice to the owner and the objectors; all of whom are the petitioners in the writ petitions, and decide the matter after looking into the records and ensure that the industry was commenced before the construction of Jagannivasan’s residence. If the commencement WP(C) Nos.23091 of 2016 - 7 - 24625 of 2016 of the industry is found to be prior to the construction of the residence of Jagannivasan, then, of course, there could be no interdiction of the further carrying on of the industry, on the ground of violation of distance rule stipulated in the Circular. In that event, the Panchayat shall issue D&O Licence on such conditions as has already been reccommended in Exhibit P3. However, if the construction of the residence of Jagannivasan or other residents fall within 10 metres of the owner’s unit even prior to the date of establishment of the industry, then necessarily the Panchayat shall refuse licence and in such event, Exhibit P1 Consent to Operate issued by the PCB will be of no consequence and the PCB will have to necessarily withdraw such Consent to Operate. 10. The further objection of the objectors is, the excess sound pollution caused in the night. The PCB in its counter affidavit filed in W.P.(C) No.24625 of 2016 contends that an examination of sound emissions were made and it was found that between 6.00 a.m. and 10.00 p.m. the sound emission was within the prescribed parameters of the Noise Pollution Rules, 2000. When an inspection was conducted after 10.35 p.m. and the sound pollution was WP(C) Nos.23091 of 2016 - 8 - 24625 of 2016 measured, it was found that it exceeds the emission limits prescribed as 6.8 dB(A). It is also averred that a complaint could be filed only if the sound emissions exceed 10dB(A). Despite that, the PCB has issued Exhibit R6(b), directing the owner to provide for a compound wall to ensure the sound levels to be within that prescribed limit during the night also. However, this need not be looked at, since Exhibit P3 directs the owner to carry on the industry only between 6.00 a.m. and 10.00 p.m. Hence, if the Panchayath eventually grants license it would have to be as reccommended in Exhibit P3 produced in W.P.(C) No.24625 of 2016. The owner then would have to to comply with such condition and the owner would not be permitted to carry on the industry in the night. If such activity is carried on in the night as against the conditions of D&O Licence, any person aggrieved can take up the matter with the Panchayat and the PCB and necessary action taken thereat. 11. The owner shall not start the unit until the Panchayat complete the proceedings and issues D&O Licence as directed herein. The Panchayat shall issue notice to the respective petitioners, the owner and the objectors, and finalise the proceedings within a WP(C) Nos.23091 of 2016 - 9 - 24625 of 2016 period of two months from the date of receipt of a certified copy of this judgment. With the above directions, both the writ petitions are disposed of. There will be no order as to costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]