Full Judgment
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 4TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 WP(C) NO. 20169 OF 2017 PETITIONER: SADIQUE AGED 36 YEARS, S/O KUNHAMU, RESIDING AT NITHA HOUSE, MELADI AMSOM, KEEZHUR DESOM, KEEZHUR P.O. KOYILANDY TALUK, KOZHIKODE DIST- 673 522 BY ADV SRI.R.BINDU (SASTHAMANGALAM) RESPONDENTS:
1 SUHARA AGED 50, W/O KHADER, KUNNATHUKANDI HOUSE, MELADI AMSOM, KEEZHUR DESOM, KEEZHUR PO, KOYILANDY TALUK, KOZHIKODE DIST- 673 522 2 PAYYOLI MUNICIPALITY PAYYOLI, KOZHIKODE DIST, PIN- 673 522 REP. BY ITS SECRETARY 3 THE SECRETARY PAYYOLI MUNICIPALITY, PAYYOLI, KOZHIKODE DIST- 673 522 4 THE ENVIRONMENTAL ENGINEER KERALA STATE POLLUTION CONTROL BOARD, 3RD FLOOR, ZAMORINES SQUARE BUILDING, LINK ROAD, PALAYAM, KOZHIKODE- 673 002 5 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT INSTITUTIONS, GOVT. SECRETARIAT, THIRUVANANTHAPURAM- 695001 BY ADVS. SRI.P.A.HARISH FOR R1 SRI.T. NAVEEN, STANDING COUNSEL FOR R4 SRI.JOBY JOSEPH, SENIOR GOVERNMENT PLEADER FOR R5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.© No.20169/2017 2
JUDGMENT
Dated this the 4th day of November,2022 This writ petition is filed by the petitioner seeking the following reliefs:
(I) issue a writ of mandamus or any other appropriate writ, direction or orders, directing the respondents 2 and 3 to take effective steps to stop the illegal fish vending by the 1st respondent near the house of the petitioner.
(ii) issue a writ of mandamus or any other appropriate writ, direction
or orders, directing the respondents 3 and 4 to consider Exhibits P2 and P3 representations submitted by the petitioner and to take necessary effective steps to prevent the illegal fish vending by the 1st respondent near the house of the petitioner, within a time frame to be fixed by this Hon'ble Court.
(iii) issue any other writ, order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
2. According to the petitioner, his father - Kunhammu, was the absolute
owner in possession of 42.8 cents of land comprised in Re-Survey No.19/10 of Keezhur Village, Koyilandy Taluk, Kozhikode District, which is inherited by him and his ailing mother and sister.
3. The grievance of the petitioner is that the 1 st respondent viz., Suhara, is
conducting fish vending at the vacant portion of the petitioner's property without obtaining adequate clearances from the Payyoli Municipality as well as the Pollution W.P.© No.20169/2017 3 Control Board. In order to ventilate the grievances, according to the petitioner, even though Exhibits P2 and P3 were submitted before the Payyoli Municipality, no action was initiated, which persuaded the petitioner to approach this Court by filing this writ petition.
4. The Pollution Control Board has filed a report stating as follows:
“2. It is humbly submitted that as pr circular no. Pollution Control Board/T4/115/97 dated 17.03.17 of the Chairman of the board regarding categorisation of industries, the fish stall comes under green category. True copy of the Circular No PCB/T4/115/97 dated 17.03.17 is produced herewith and marked as Annexure R4 (b) As per Circular No.PCB/TAC/18/2004 dated scale units, the minimum distance to be satisfied from the unit to nearest residence is 3 meter and that to public buildings is 5 meter. True copy of the Circular No.PCB/TAC/18/2004 dated 09/08/2004 is produced herewith and marked as Annexure R4 (c). The distance criteria is satisfied from the fish stall. But they have not yet applied and obtained Integrated Consent to Operate of the Board.
3. It is humbly submitted that the alleged fish stall was again inspected on
22.08.2017. The petitioner Sri.Sadique who was present at the time of inspection complained regarding foul odour from the fish stall during loading and unloading activity and regarding the absence of adequate effluent treatment facilities. It was found that the fish stall has been dismantled from the plot of Smt. Suhara and is now functioning in a rented shop building just opposite to the plot of Smt.Suhra. The shop room is on rented basis and the fish stall is functioning in the veranda of this rented room. It was understood that the fish stall is now run by Sri. Basheer, Neyyarakandihouse, Keezhur,
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Sri SreejeshNadatharaParambil House, Payyoll and Sri. Kunhabdulla, Makkad House, Payyoll. Sri Basheer, who was present at the time of inspection, informed that licence is issued by the Panchayat for the rented building including the veranda for carrying out fish vending activity for the three of them. The rented building is 3.3meter x 6.5 meter and the veranda is of 3meter X 3.3 meter. He further informed that septic tank & soak pit is provided for disposal of effluent. These tanks could not be verified at the time of inspection as these tanks were below ground level. As the unit is operating without Integrated Consent to Operate of the Board, direction has been issued by this respondent on 30.08.2017 to provide adequate effluent treatment facilities and to apply and obtain Boards Integrated Consent to Operate True copy of the letter is produced herewith and marked as Annexure R4(d)”
5. Therefore, according to the Pollution Control Board, no consent is issued to conduct the fish vending.
6. I have heard learned counsel for petitioner Sri.R.Bindu Sasthamangalamm,
learned Senior Government Pleader Sri.Joby Joseph, learned Standing Counsel for the Pollution Control Board Sri.T.Naveen and perused the pleadings and materials on record.
7. From the report filed by the Pollution Control Board, it is categoric and
clear that no consent was issued by the Pollution Control Board in order to conduct the fish vending. In my considered opinion, in order to conduct fish vending, a licence from the Municipality is required. There is no case for the 1 st respondent that any licence is secured from the Municipality. W.P.© No.20169/2017 5
8. In that view of the matter and since various factual circumstances are
involved in the matter, it is only appropriate that the Municipality as well as the Pollution Control Board are directed to consider Exhibits P2 and P3 representations and take a decision in accordance with law.
9. In that view of the matter, this writ petition is disposed of, directing the
Payyoli Municipality to consider Exhibit P2 representation and Pollution Control Board, District Unit, Kozhikode to consider Exhibit P3 representation, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment. If the 1st respondent is still carrying on the fish vending in the property in question without securing adequate clearances from the respective statutory authority, the parties will be guided by the decision so taken by the respective statutory authority. Sd/- SHAJI P.CHALY smv JUDGE W.P.© No.20169/2017 6 APPENDIX OF WP(C) 20169/2017 PETITIONER EXHIBITS EXHIBITP1 TRUE COPY OF ORDER OF INJUNCTION PASSED BY THE COURT OF THE MUNSIFF, PAYYOLI IN I.A NO.710/2016 IN O.S NO.111/2016 DATED 21-10-2016 EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 17-05-2017 EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 17-05-2017 Annexure R4 (a) True copy of the complaint dated 17 05 2017 filed by Smt Vettayadi Mariyumma Annexure R4 (b)- True copy of the Circular No PCB/T4/115/97 dated 17.03.17 of the Chairman of the Kerala State Pollution Control Board Annexure R4(c) True copy of the Circular No PCB/TAC/18/2004 dated Pollution Control Board Annexure R4 (d) True copy of the letter issued on 30.08.2017 by Environmental Engineer, Kerala State Pollution Control Board,Kozhikode