Writ Appeal No. 1652 of 2016 & Writ Petition No. 25120 of 2016 (Biju K.G. & Others v. Prasad Mathew & Koipuram Grama Panchayat, etc.)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 16TH DAY OF DECEMBER, 2016/25[TH] AGRAHAYANA** **WA.NO. 1652 OF 2016 () IN WP(C)NO.17441/2016 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 17441/2016 OF HIGH COURT OF KERALA DATED 08-08-2016** **APPELLANT(S)/3-5 ADDITIONAL RESPONDENTS: ---------------------------------------** ## **1. BIJU K.G.** **S/O. LATE GANGADHARAN, CHAIRMAN, BITUMEN PLANT VIRUDHA ACTION, COMMITTEE, AGED 43, KUZHIUZHATHIL HOUSE, KUMBANAD MURI & VILLAGE, THIRUVALLA TALUK, KADAPRA P.O., PATHANAMTHITTA DISTRICT.** ## **2. T.RAJKUMAR** **S/O. LATE THANKAPPAN NAIR, PUTHUPARAMBIL HOUSE, KUMBANAD MURI & VILLAGE, KADAPRA P.O., THIRUVALLA TALUK, PATHANAMTHITTA.** ## **3. K.M.VARGHESE** **AGED 61 YEARS, KOCHUPURACKAMURIYIL HOUSE, KUMBANAD MURI & VILLAGE, KADAPRA P.O., THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON** ## **RESPONDENT(S)/PETITIONER/RESPONDENTS 1, 4 & 5:** **----------------------------------------------** ## **1. PRASAD MATHEW** **KUTTIKKATTU, KADAPRA P.O., KOIPURAM, PATHANAMTHITTA.** **2. THE SECRETARY KOIPURAM GRAMA PANCHAYAT, PULLAD P.O., PATHANAMTHITTA - 689 548.** **3. KOIPURAM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, PULLAD P.O., PATHANAMTHITTA.** **R2,R3 BY ADV. SRI.R.GIREESH VARMA R BY SRI.S.JAYAKRISHNAN R BY SRI.JACOB P.ALEX** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2016 ALONG WITH W.P(C) NO.25120 OF 2016, THE COURT ON 16.12.2016 DELIVERED THE FOLLOWING:** ## **MOHAN M.SHANTANAGOUDAR, C.J. & SATHISH NINAN, J.** **=================================== W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016 =================================== Dated this the 16[th] day of December, 2016** **J U D G M E N T** ## **SATHISH NINAN, J.** The theory of “give and take” and “live and let live” as enunciated in **Bamford v. Turnley** (122 ER 27) has practically reached a vanishing point. We are in an era where the people have become self centred and do not bother about fellow beings of the community. The case at hand is a classical example of the same. 2. The subject matter in issue in the Writ Appeal and Writ Petition relates to the functioning of a bitumin hot mixing plant. Writ Petition No.25120 of 2016 is a public interest litigation filed by the residents of the locality where the ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 2 :- Bitumin Hot Mixing Plant (for short, “the Unit”) is situated. The residents challenge the functioning of the Unit on the ground that it causes pollution resulting in various health hazards. Writ Petition No.17441 of 2016 from which Writ Appeal 1652 of 2016 arises, was filed by the owner of the Unit in question. The said Writ Petition was filed by the owner when the Panchayat failed to pass any orders on his application for renewal of the licence under the “Issue of Licence to Dangerous and Offensive Trades and Factories Rules, 1996' (hereinafter referred to as “licence”) for the Unit. The owner prayed for a declaration in terms of Section 236(3) of the Kerala Panchayat Raj Act, 1994 (for short, “the Act”) that he is possessing a deemed licence for operating the Unit in question. 3. The Unit was commissioned in the year 2012 and had been in operation ever since. On the report ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 3 :- of the Medical Officer, Primary Health Centre, Koipuram, bearing number 202/2016, marked as Exhibit P3, the Panchayat did not renew the licence. That led to the filing of Writ Petition No.17441 of 2016. Writ Petition No.25120 of 2016 is filed for restraining the functioning of the Unit at the present location raising various health hazards on the allegation that necessary steps are not being taken by the Kerala State Pollution Control Board (for short, “the PCB”) in the said regard. 4. It is the allegation of the residents that the emission of noxious substances from the Unit is causing infections of various diseases inherently dangerous to life and malignantly spreading diseases into the locality. The inhalation of the end products of the Unit is highly carcinogenic and several complaints were made by the inhabitants of the locality to the Panchayat and various ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 4 :- authorities in the said regard. According to the residents, it was on their complaint, that in 2015, the Medical Officer of the Primary Health Centre, Koipuram conducted an inspection and submitted a report to the Secretary of the Panchayat pointing out that consequent to the inhalation of the smoke and other emissions from the Unit, several of the local inhabitants suffer vomiting, allergy related diseases, disorientation, respiratory diseases, etc. He suggested that permission shall be given for the functioning of the Unit only after ascertaining and confirming as to whether the prescribed norms for the functioning of the Unit is being strictly adhered to. A true copy of the said report has been produced and marked as Ext.P3. It is taking into consideration Ext.P3 and other complaints from the inhabitants of the locality that the Panchayat has refrained from issuing licence for the Unit. It is ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 5 :- the allegation of the residents that necessary conditions to be complied with for the grant of permanent sanction for the functioning of the Unit have not been complied with by the owner of the Unit, and the said classification and grant of sanction as a permanent one is illegal and is liable to be interfered with. 5. The owner of the Unit has filed a counter affidavit denying the allegations levelled against the functioning of the Unit by the residents. He alleges that the residents did not have any cause of action or genuine grievance. Several litigations were initiated at the instance of the residents and it was found that the allegations are baseless. The Unit is functioning with all the required licences, permissions and sanctions from all the statutory and competent authorities. The allegation of pollution and health hazards were also denied. It was further ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 6 :- contended that all the necessary norms as prescribed by the PCB and as directed by it have been strictly adhered to and complied with in the functioning of the Unit. 6. Heard Shri Abraham Samson, learned counsel appearing on behalf of the residents, Shri Jacob P.Alex, appearing on behalf of the owner and Shri T.Naveen, learned Standing Counsel for the PCB. 7. Learned counsel appearing for the residents, taking us through the entire materials on record, argued at length contending that functioning of the Unit is carried on flouting all the prescribed standards and that it is causing serious health hazards to the inhabitants of the locality. By breathing smoke and other substances emanating from the Unit, the residents of the locality are suffering from various diseases. He relied on Ext.P3 report of the Medical Officer of the Primary Health **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 7 :- Centre, Koipuram, in the said regard. He argued that the residents are not against the functioning of the Unit as such, but all that they require is a shifting of the Unit from the premises wherein the same is presently established to some other place. The grant of permanent sanction for establishment of the Unit in the said place is highly harmful to the life of the local inhabitants. He also drew the attention of the court to the norms fixed by the PCB of other States and also the norms prescribed by the Environmental Department of other States to contend that the distance rule and other criterion as formulated by the PCB are evidently insufficient and does not achieve or conform to the standards as prescribed by the other States. He contends that permission granted by the PCB for functioning of the Unit is liable to be interfered with. It is further contended that licence from the Panchayat as sought ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 8 :- ## for by the owner is not liable to be granted. 8. As is revealed from the affidavit filed by the owner, the Unit in question is established in the middle of approximately 10 acres of property. Exhibit P7 is the Circular dated 01.10.2015 issued by the PCB fixing the norms for grant of permanent sanction for establishing the Unit. The conditions prescribed are: (1) Chimney of a height of 20 metres; (2) storing of raw materials in closed sheds; (3) provide facilities to prevent emanating of dust and other particles while unloading raw materials and (4) maintain a distance of 50 metres from the residential buildings or other institutions. It is seen that all the requirements as stipulated in Ext.P7 have been complied with by the owner. Exhibit P8 dated 16.02.2016 is the copy of the proceedings of the PCB whereby orders has been passed pursuant to the judgment dated ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 9 :- 04.11.2015 in W.P(C) No.4078 of 2014 and connected cases, against the Unit. There, specific reference is made to Ext.P7 Circular to find out if the Unit satisfies necessary requirements as prescribed in Ext.P7 and it is considered whether the Unit could be granted the status of a permanent one. Finally, it was directed that the Unit shall be considered as a permanent one. The Environmental Engineer of the PCB was directed to ensure implementation and proper functioning of all the pollution control measures as specified in the Circular dated 01.10.2015 referred to herein before as Ext.P7. There was a further direction to the Environmental Engineer to conduct ambient air quality monitoring in the premises of the Unit with respect to the parameters specified in the National Ambient Air Quality Standards. A detailed report in the above regard was sought for. Pursuant thereto Ext.P12 dated 11.04.2016 was issued ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 10 :- by the PCB pointing out that monitoring of the ambient air quality in the Unit was conducted on 01.03.2016 through the National Accreditation Board for testing and Calibration of Laboratories approved external laboratory, M/s.Envirodesigns and Eco Lab, Kochi. Monitoring was conducted in the presence of the Officers of the Pollution Control Board, District Office, Pathanamthitta. The monitoring was conducted at three locations around the Chimney of the Unit. It commenced at 10.00 a.m and ended at 4.30 p.m. It was reported that all the parameters are within the limits of the national ambient air quality standards. It was further reported that the Unit has provided adequate facilities as per the guidelines issued by PCB for permanent hot mix plants. A copy of the report of M/s.Envirodesigns Eco Labs is produced along with Ext.P12. It further reveals that it also conforms to the necessary ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 11 :- distance rule as fixed by the PCB. As regards the prescription of larger distance by other States for establishment of the Unit, as is evident from Ext.P8, proceedings of the PCB dated 16.02.2016, the fact that other States prescribed a larger distance rule was brought to the notice of the PCB and the same have been considered by them. When the experts in the field have considered the said issue, it is not for this Court to step into such matters. It falls within the domain of the concerned specialists in the field. Hence the argument of the learned counsel for the residents with reference to the PCB norms of other States cannot be accepted. 9. At this stage, it is necessary to refer to the affidavit filed by the Environmental Engineer of the PCB in W.P(C) No.25120 of 2016. It is pointed out that to control the emissions from the Unit, necessary water scrubbing system, Chimney heights, ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 12 :- etc.,have been provided and is found to be adequate. There are no residents within 100 metres of the Unit, when the siting criteria stipulates only a 50 metres distance rule. The Circular in the said regard dated 09.08.2004 has been produced as Ext.R2(a). The affidavit also refers to Ext.P7 Circular dated 01.10.2015, already referred to supra, which provides for a distance rule of 50 metres from the permanent plant. It is stated that though the Unit is located in a low lying area and the residential building of the writ petitioners in W.P(C) No.25120 of 2016 and other residents are located at a higher level, the Chimney provided for the Unit has a height of 35 metres from the ground level. The PCB had given consent for functioning of the Unit and it is valid upto 30.06.2017. The Unit was granted the status of a permanent unit after taking into consideration of the relevant rules and ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 13 :- prescriptions and on being satisfied that the necessary standards are maintained. The affidavit also refers to Ext.R2(c) letter dated 22.03.2016 issued by the Environmental Engineer to the member Secretary PCB referring to the report of M/s.Envirodesigns Eco Lab above mentioned. It is specifically stated that inspection of the Unit was conducted on 01.03.2006 through the National Accreditation Board for testing and Calibration of Laboratories approved lab and it was found that the Unit has provided adequate facilities as per the guidelines for permanent hot mix plant. It was also stated that monitoring was conducted from 7.30 a.m to 4.35 p.m and that if the monitoring is done for 24 hours, then the resultant value of concentration of the parameters is likely to reduce considerably. 10. Learned counsel for the residents would rely on Ext.P34 communication of the PCB dated ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 14 :- 15.11.2014 to contend that as is evident from the said document, yellow coloured smoke harmful for health is being emitted through the Chimny and that necessary scrubbing system has not been provided. Here, it is pertinent to note that the said letter is of the year 2014. Thereafter directions were given to implement the modifications to prevent chances of air pollution. It is pursuant thereto that subsequent inspections were conducted by the PCB and has been found that the Unit is functioning in conformity with the prescribed norms and standards. Hence the allegations levelled against the Unit on the ground of pollution, prima facie cannot be sustained on the materials presently available on record. 11. At this stage it would be relevant to take into consideration the contention of the owner of the Unit to the effect that since the establishment ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 15 :- of the Unit, various litigations have been commenced by the residents or at their instance in different Forums and that the only motive is to harass him. He referred to W.P(C) Nos.4078 of 2014, W.P (C) 9247 of 2014 and W.P (C) 15520 of 2015 before this Court, and O.S. No.205 of 2016 and O.S. No.129 of 2016 before the Munsiff's Court Thiruvalla in respect of the vary same Unit in question and levelling the same or similar set of allegations. He would point out that though restraining orders were sought for in the suits against the functioning of the Unit, the same were not granted. He would also point out that directions given in the Writ Petitions referred to above were looked into by the concerned appropriate authorities and found that the Unit in question is functioning on complying with the prescribed norms and standards. 12. As is revealed from the materials presently ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 16 :- available on record, the Unit in question is functioning complying with the required and prescribed standards and norms fixed by the PCB. There is no material on record to come to a different conclusion. The Panchayat has refused to renew the licence for the Unit on the basis of Exhibit P3 report of the Medical Officer, Primary Health Centre, Koipuram. On a reading of the said report, it is evident that the conclusions arrived at therein are not based on any material. The concerned Officer has reached his conclusion on mere assumptions. Without sufficient materials and study, it could not be concluded that the functioning of the Unit which is being run in compliance with the required norms and standards prescribed by the PCB, is causing health hazards. 13. In this connection it is apposite to refer to the decision reported in **N.D. Jayal v. Union of** **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 17 :- **India** ([2004] 9 SCC 362 – paragraph 20) wherein the Apex Court has observed thus: “20. This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking decisions on matters related to the safety and allied aspects. The opposing view points of the experts will also have to be given due consideration after full application of mind. When the Government or the authorities concerned after due consideration of all view points and full application of mind took a decision, then it is not appropriate for the court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte. In such cases, if the situation demands, the courts should take only a detached decision based on the pattern of the well-settled principles of administrative law. If any such decision is based on irrelevant consideration or non-consideration of material or is thoroughly arbitrary, then the court will get in the way. Here the only point to consider is whether the decision making agency took a well-informed decision or not. If the answer is “yes”, then there is no need to interfere. The consideration in such cases is in the process of decision and not in its merits.” ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 18 :- In the instant case, statutory authority, namely, the PCB has taken into consideration relevant materials, has conducted inspections and has reached a conclusion. It is not for this Court to overstep into the wisdom of the said authority unless such conclusion arrived at by the authority is found to be ex-facie arbitrary or mala fide. So also, as observed by the Apex Court in **Federation of Railway Officers Association and Others v. Union of India** ([2003] 4 SCC 289) and **Victoria Memorial Hall v. Horah Ganatantrik Nagrik Samity and Others** ([2010] 3 SCC 732), on matters of scientific and technical reports, the court should be very slow to interfere. It would be worthwhile to refer to the observations of the Apex Court in **University of Mysore v. C.D.Govinda Rao** (AIR 1965 SC 491) that “normally the court should be slow to interfere with the opinions expressed by the experts”. The said ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 19 :- observation has been consistently approved by the Apex Court as is evident from **State of Bihar v. Dr.Asis Kumar Mukherjee** ([1975] 3 SCC 602), **Alpat Abasaheb Solunke v. Dr. B.S.Mahajan** ([1990] 1 SCC 305, **Central Areca Nut & Coicoa Mktg. & Processing Coop. Ltd. v. State of Karnataka** ([1997] 8 SCC 31) and **Dental Council of India v. Subharti** **K.K.B.Charitable Trust** ([2001] 5 SCC 486). 14. On the discussions as above, since the Unit in question has consent for functioning from the PCB, necessarily, the owner can continue with the functioning of the Unit. Though the Panchayat has not rejected the application for licence, the said authority has not passed any orders thereon. In terms of Section 236(3) of the Act, if orders are not passed on the application within a period of thirty days, it shall be deemed that license has been granted. The law in the said regard has been ## **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 20 :- stated by this Court in **Sudhakaran v. Pallichal Grama Panchayat** (2016 [2] KLT 175) interpreting the provisions of Section 236(3) of the Act. Hence, in the case on hand, the owner is entitled for deemed licence. Necessary steps shall be taken by the Koipuram Grama Panchayat to issue license in favour of the owner with respect to the Bitumin Hot Mixing Plant in question. The same shall be done within three weeks from this date. 15. However, before parting with the case, it would be necessary to observe that it will be open to the residents to bring to the notice of the statutory authorities with due and sufficient materials the violation of the norms or health hazards, if any, caused at the instance of the Unit in question. In such event, the statutory authorities, including the Kerala State Pollution Control Board and the Panchayat shall look into the **W.A. No.1652 of 2016 & W.P(C) No.25120 of 2016** -: 21 :- matter, take necessary steps and issue appropriate directions for abatement of the same, if found to be genuine. The Writ Appeal and the Writ Petition stand dismissed with the above observations. **MOHAN M.SHANTANAGOUDAR,** **CHIEF JUSTICE.** **SATHISH NINAN, JUDGE.** vsv