IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE30H DAY OF JULY20158TH SRAVANA, 1937 WP(C).No. 2211 of 2015 (B) --------------------------- PETITIONER: ------------------- P.R.PAUL, S/O RAPPAI, AGED64YEARS, PORATHOORKARAN HOUSE, CHENGAL, KALADY P.O, ERNAKULAM. BY ADV. SRI.S.NIDHEESH RESPONDENT(S): -------------------------- 1. THE KANJOOR GRAMA PANCHAYATH, REPRESENTED BY THE SECRETARY, KANJOOR, CHENGAL, ERNAKULAM DISTRICT - 683 574.
2. ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, ERNAKULAM-682020.
3. THE HEALTH INSPECTOR, PUBLIC HEALTH CENTRE, KNAJOOR, ERNAKULAM DISTRICT - 683 575.
4. THE SUB INSPECTOR OF POLICE ,KALADY - 683574.
5. LUCY JOSE, PONTHEMPILLY HOUSE, CHENGAL, KALADY P.O, ERNAKULAM - 683 574.
6. SHYJU, S/O LUCY, PONTHENPILLY HOUSE, CHENGAL, KALADY P.O., ERNAKULAM - 685 574. *ADDLD. R7 TO R9 IMPLEADED7 KUNJEESHO, S/O.OUSEPH, THEKKANATH HOUSE, CHENGAL, KALADY.P.O., ERNAKULAM.
8. BAIJU, S/O. OUSEPH, PONTHEMPILLY HOUSE, CHENGAL, KALADY.P.O., ERNAKULAM. --2-- --2-- 9. VARGHESE, S/O.OUSEPH, PONTHEMPILLY HOUSE, CHENGAL, KALADY.P.O., ERNAKULAM. ADDL. R7 TO R9 ARE IMPLEADED AS PER ORDER
DATED3007.2015 IN IA.10427/2015. R1 BY ADVS. SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.K.VARGHESE KUTTY THOMAS R2 BY SRI. M.AJAY, SC R3 & R4 BY GOVERNMENT PLEADER SRI.MANOJ P.KUNJACHAN R5 & R6 BY ADV. SRI.T.K.VENUGOPALAN ADDL. R7 TO R9 BY ADV. SRI.SAJU J.VALLYARA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON3007-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/ WP(C).No. 2211 of 2015 (B) -------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS: ------------------------------------- EXHIBIT P1: TRUE COPY OF THE LOCATION SKETCH. EXHIBIT P2: TRUE COPY OF THE COMPLAINT DATED267.2013 OF THE PETITIONER. EXHIBIT P3: TRUE COPY OF THE COMPLAINT OF THE PETITIONER DATED1310.2014. EXHIBIT P4: TRUE COPY OF THE REPORT OF THE3D RESPONDENT DATED111.2014. EXHIBIT P5: TRUE COPY OF THE NOTICE DATED1710.2014. EXHIBIT P6: TRUE COPY OF THE COMPLAINT DATED1212.2014. EXHIBIT P7: TRUE COPY OF THE INFORMATION OBTAINED ON DATED2012.2014 FROM PUBLIC INFORMATION OFFICER. EXHIBIT P8: TRUE COPY OF STOP MEMO DATED71.2015. EXHIBIT P9: TRUE COPY OF THE PETITION FILED BEFORE THE4H RESPONDENT DATED2212.2014. EXHIBIT P10: TRUE COPY OF THE ACKNOWLEDGMENT FOR THE PETITION FILED BEFORE THE4HE RESPONDENT DATED61.2015. RESPONDENT(S)' EXHIBITS: --------------------------------------- EXT. R6(A) : TRUE COPY OF CONSENT AUTHORIZATION GRANTED BY THE2D RESPONDENT. EXT. R6(B) : TRUE COPY OF THE ORDER
PASSED BY THE1T RESPONDENT ON273.2015. //TRUE COPY// P.S.TO JUDGE mbr/ K. VINOD CHANDRAN, J.
===================== W.P.(C) No.2211 of 2015 - B ====================== Dated this the 30th day of July, 2015
JUDGMENT
The petitioner is aggrieved with the fact that the respondents 5 and 6 are carrying on a nutmeg processing unit, which does not have a consent from the Pollution Control Board nor a licence from the Panchayat. The additional respondents impleaded herein are the residents of the locality, who support the petitioner.
2. I have heard the learned Counsel for the petitioner, learned Standing Counsel for the Pollution Control Board, the learned Counsel appearing for the respondents 5 and 6 as also the additional respondents and the learned Counsel for the Panchayat.
3. The controversy is in a narrow compass as to whether the respondents 5 and 6 have a valid licence from all the statutory authorities as prescribed under the various enactments. 2 W.P.(C) No.2211 of 2015 - B The respondents 5 and 6 have now produced Ext.R6(a) consent, which has been obtained from the Kerala State Pollution Control Board. True, earlier, the Pollution Control Board and the Health Inspector of the Panchayat had inspected the property and found pollution, with respect to the operations conducted therein. The reports are produced at Exts.P4 and P8. However, now the Pollution Control Board has granted the consent after imposing stringent conditions is the submission of the learned Counsel for the respondents 5 and 6. The learned Counsel also points out Ext.R6(b), which is a communication of the Panchayat, indicating that the licence by the Panchayat is not considered due to the pendency of the writ petition.
4. The petitioner and the additional respondents contend that sulphur is used for fumigation in the unit of the respondents 5 and 6 and in such circumstance, respondents 5 and 6 have to obtain a licence under the Explosives Act, 1884 read with the Explosives Rules, 2008.
5. The learned Counsel appearing for the respondents 3 W.P.(C) No.2211 of 2015 - B5and 6 however would refute such submission made across the bar contending that there are no pleadings to that effect. In any event, the question now revolves around the operation of the unit without a licence from the Panchayat, which admittedly cannot be carried out. As to the licence to be issued from the Panchayat, there is a dispute with respect to whether the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules 1996 (for brevity, the Rules of 1996) applies.
6. Though the respondents 5 and 6 denied that they are using sulphur, the learned Counsel would submit that, in any event, the same would not come under the Rules of 1996, since, sulphur is not used for any of the activities specifically noticed in Schedule 1 of Item No.113 of the Rules of 1996, which reads as under:- 113. Sulphur- Storing, processing, cleansing, preparing or selling.
7. Rule 3 of the Rules of 1996 describes the 4 W.P.(C) No.2211 of 2015 - B dangerous and offensive trades as has been laid down in the first schedule and the purposes for which such materials are put to use have also been enumerated thereunder. A reading of Item No.113 as extracted herein above would show that even storing or processing would require a licence under the rules of 1996.
8. Hence if sulphur is used in fumigation, necessarily, respondents 5 and 6 would have stored such material in the unit and use in fumigation would definitely fall under the definition of 'processing'. Hence, there can be no dispute that the Panchayat has to consider the issuance of the licence under the Rules of 1996.
9. The Pollution Control Board have issued a consent to operate, produced at Ext.R6(a), which has again substituted by another order making stringent the conditions stipulated for operation of the unit. In such circumstance, it is for the Panchayat to consider the application made by the respondents 5 and 6 as indicated herein above. The Panchayat before consideration of such application, shall also hear the 5 W.P.(C) No.2211 of 2015 - B representatives of the petitioner and the additional respondents before issuance of a licence. The question of whether the respondents 5 and 6 would require an explosive licence is left open. If a licence is granted by the Panchayat and when the respondents 5 and 6 commence operation, necessarily the Pollution Control Board would have to examine whether conditions in the consent to operate has been scrupulously followed and also conduct a physical inspection with notice to the respondents 5 and 6 as also the other residents of the locality, as to whether any pollution is caused on the actual operation of the unit. It is made clear that the respondents 5 and 6 shall not operate the unit until and unless all statutory permissions and licences are obtained. In such circumstance, the writ petition would stand disposed of. Sd/- K. VINOD CHANDRAN, JUDGE SB // true copy // P.A to Judge.