P.G.Sathyabhama Vs. the Secretary - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE10H DAY OF DECEMBER201319TH AGRAHAYANA, 1935 WP(C).No. 30436 of 2013 (D) ---------------------------- PETITIONER: ----------- P.G.SATHYABHAMA PROPRIETORIX, DHANYA HOLLOW BRICKS, VANDHANA VIHAR, UDAYAMPEROOR, ERNAKULAM-682 307. BY ADVS.SRI.K.I.MAYANKUTTY MATHER SRI.VINEETH KOMALACHANDRAN RESPONDENT(S): -------------- 1. THE SECRETARY UDAYAMPEROOR GRAMA PANCHAYATH, UDAYAMPEROOR P.O. ERNAKULAM-682 307.

2. THE DISTRICT MEDICAL OFFICER OF HEALTH GENERAL HOSPITAL COMPOUND, ERNAKULAM-682 011.

3. VIJAYAM MURALEEDHARAN W/O. MURALEEDHARAN, PANCHAJANYAM HOUSE HOUSE NO.19/270, UDAYAMPEROOR P.O., ERNAKULAM-682 307.

4. THE CHIEF ENVIRONMENTAL ENGINEER KERALA STATE POLLUTION CONTROL BOARD, GANDHI NAGAR, ERNAKULAM-682 020.

5. UDAYAMPEROOR GRAMA PANCHAYATH REPRESENTED BY ITS PRESIDENT, UDAYAMPEROOR P.O. ERNAKULAM-682 307. R BY ADV.SRI. M.AJAY, SC,KERALA STATE POLLUTION CONTROL BOARD R3 BY ADV.SRI GEORGE SEBASTIAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON1012-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30436 of 2013 (D) ---------------------------- A P P E N D I X PETITIONER(S)' EXHIBITS ------------------------ P1 : COPY OF THE BUILDING PERMIT ISSUED BY THE1T RESPONDENT UDAYAMPEROOR GRAMA PANCHAYATH DTD.11.3.2008. P2 : COPY OF THE LICENCE ISSUED BY THE1T RESPONDENT DTD.2.9.2013. P3 : COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE DEPARTMENT, ERNAKULAM, DTD.7.3.2008. P4 : COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY DISTRICT MEDICAL OFFICER, DTD.6.7.2009. P5 : COPY OF THE CERTIFICATE ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ERNAKULAM, DTD.7.1.2008. P6 : COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD, DTD.10.2.2012. P7 : COPY OF THE REPLY/EXPLANATION SUBMITTED BY THE PETITIONER DTD.4.1.2013. P8 : COPY OF THE REPLY SUBMITTED BY THE PETITIONER DTD.4.6.2013. P9 : COPY OF THE STAY ORDER

S PASSED BY THE HON'BLE APPELLATE AUTHORITY (WATER/AIR/BIOMEDICAL WASTE), KERALA (APPEAL NOS.16/2013 AND172013 DTD.1.8.2013. P10: COPY OF THE STOP MEMO/NOTICE ISSUED BY1T RESPONDENT DTD.23.9.2013. P11: COPY OF THE REPLY GIVEN TO THE1T RESPONDENT BY THE PETITIONER DTD.7.10.2013. P12: COPY OF THE STOP MEMO NOTICE ISSUED BY THE1T RESPONDENT DTD.25.11.2013. P13: COPY OF THE JUDGMENT

IN WPC NO.26645 OF2010OF THIS HON'BLE COURT DTD.7.12.2010. P14: COPY OF THE NO OBJECTION STATEMENT TO RUN THE UNIT GIVEN BY THE NEIGHBOURS OF THE UNIT DATED NIL. RESPONDENT(S)' EXHIBITS ------------------------ NIL /TRUE COPY/ P.S TO JUDGE K.SURENDRA MOHAN, J.

----------------------------------------------------- W.P(c) No.30436 of 2013-D ---------------------------------------------------- Dated this the 10th December, 2013

JUDGMENT

The petitioner has filed this Writ Petition challenging Ext.P12 proceedings passed by the 1st respondent by which, the petitioner has been directed to close down her establishment within a period of 7 days of the date of the said order. The petitioner is conducing a Hollow Bricks manufacturing unit. The petitioner has been issued with Ext.P1 building permit, on the strength of which she has effected necessary constructions in the property. Ext.P2 is a licence issued to the petitioner under Sections 232, 233, 234 and 254 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as `the Act' for short). She has obtained Ext.P3 No Objection Certificate from the Assistant Divisional Officer, Fire and Rescue Services, as well as Ext.P4 certificate from the District Medical Officer. The General Manager, District Industries Centre has issued an intent for the manufacturing unit, which is Ext.P5. As per Ext.P6, the 4th W.P(c) No.30436 of 2013-D2respondent has issued a consent to operate the unit. Therefore, according to the learned counsel for the petitioner, the petitioner has been granted all the necessary licences and permissions for the purpose of carrying on the industrial activity. While so, it is alleged that at the instance of the 3rd respondent, a complaint has been made against the manner of functioning of the petitioner's establishment. On the complaint, enquiries were made and initially, the 4th respondent issued an order directing the unit to be stopped. The petitioner has challenged the said order before the appellate authority concerned. In the appeal, the order of the 4th respondent has been stayed. The unit was being conducted by the petitioner, in view of the order of stay granted by the appellate authority under the Kerala Building Rules, 1984.

2. According to Sri Mayankutty Mather, who appears for the petitioner, in order to circumvent the interim order of stay and to see that the industrial unit of the petitioner was stopped, under the influence of the 3rd respondent, the 1st respondent initiated action directing the petitioner to show cause why the unit should not be closed down, alleging that the District Medical Officer has on an inspection found the unit to be functioning in a W.P(c) No.30436 of 2013-D3manner causing nuisance and health hazards to the people living in the locality. Though the petitioner had replied to the show cause notice by Exts.P7 and P8, a provisional order was issued, which is Ext.P10 and thereafter, Ext.P12, the final order has also been issued. It is contended that the order Ext.P12 is absolutely without jurisdiction and has been issued on extraneous consideration. It is further contended that, the unit is functioning under proper, hygienic conditions. The order issued by the Pollution Control Board has been found to be prima facie unsustainable and therefore stayed by the appellate authority. The Pollution Control Board being the statutorily empowered authority in matters of pollution, the Panchayat authorities have no jurisdiction to issue an order in the nature of Ext.P12, without waiting for the final orders of the appellate authority, in the matter. It is therefore contended that, malafides is writ large on the entire proceedings. The counsel therefore seeks the issue of appropriate orders setting aside Ext.P12 and permitting the industrial unit to function.

3. Advocate M.Ajay appears for the 4th respondent. Advocate George Sebastian appears for the 3rd respondent. According to the learned counsel for the 3rd respondent, Ext.P2 W.P(c) No.30436 of 2013-D4licence has been issued subject to the conditions appended thereto. It is contended that condition Nos.2, 5 and 8 in Ext.P2 have been violated. An inspection conducted by the District Medical Officer found that the unit was functioning in absolutely unhygienic conditions posing health hazards to the people residing nearby. It was in such circumstances that the petitioner was directed to show cause why the unit should not be closed down. Ext.P12, which has been issued after considering the objections of the petitioner also, does not call for any interference at the hands of this Court, it is contended. It is further pointed out that the proper remedy of the petitioner is to file an appeal under Section 276 of the Act. This Writ Petition filed without exhausting the said alternative remedy is therefore not maintainable. The learned Government Pleader appears for the 2nd respondent.

4. Heard. The contention of the learned counsel for the petitioner is that, the industrial unit of the petitioner is being conducted strictly in compliance with the provisions of law and the licences and permissions issued to her. However, her neighbours with the sole object of harassing the petitioner had made complaints making baseless allegations and had influenced W.P(c) No.30436 of 2013-D5the Panchayat in passing Ext.P12. According to the learned counsel, the allegations against the industrial unit are without any basis and therefore cannot support the impugned proceedings Ext.P12. Per contra, the learned counsel for the 3rd respondent contends that the unit is functioning in absolutely unhygienic conditions. No provisions for the safety of the workers of the establishment have been provided. It is also alleged that effluents and pollutants are permitted to contaminate the surrounding areas.

5. A consideration of the assertions made by the learned counsel for th petitioner as well as the learned counsel for the 3rd respondent shows that the issues are essentially factual in nature, the correctness of which, I am not in a position to determine, within the limits of the summary jurisdiction available to me under Article 226 of the Constitution. At the same time, the petitioner has a statutory remedy that is provided by Section 276 of the Act, to challenge Ext.P12. Under Section 276, the President of the Panchayat is empowered to issue necessary interim orders also, to be in force until the appeal is finally disposed of. The Panchayat Council is in a much better position to verify and ascertain the factual situation. Therefore, apart W.P(c) No.30436 of 2013-D6from the fact that the petitioner has not exhausted the alternative remedy that is available to her, the nature of the contentions put forward also justifies that the petitioner be relegated to her statutory alternative remedy.

6. The learned counsel for the petitioner has placed reliance on Ext.P13 judgment rendered by a learned Single Judge of this Court, where despite the availability of an alternative remedy, the matter has been considered on the merits and reliefs granted. However, Ext.P13 shows that the reason for entertaining the said Writ Petition was because, the same had been kept pending for a period of five months by the Court during which period, the prescribed time limit for invoking his alternative remedy had expired. Such a situation does not exist in the present case. As already noticed above, the nature of the contentions also necessitate that the appellate authority goes into the contentions raised, in the first instance. For the above reasons, I am not satisfied that this Writ Petition should be entertained. This Writ Petition is therefore disposed of relegating the petitioner to her statutory remedy under Section 276 of the Act. In order to permit the petitioner to invoke the statutory remedy under Section 276 of the Act, it is W.P(c) No.30436 of 2013-D7ordered that, all further action to implement Ext.P12 shall be kept in abeyance for a period of two weeks. Sd/- (K.SURENDRA MOHAN, JUDGE) rtr/