S.Mahadevan Pillai Vs. the State Ofkerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1136904
CourtKerala High Court
Decided OnApr-01-2014
JudgeHONOURABLE MR.JUSTICE K.M.JOSEPH
AppellantS.Mahadevan Pillai
RespondentThe State Ofkerala
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice k.m.joseph & the honourable mr. justice a.k.jayasankaran nambiar tuesday, the1t day of april201411th chaithra, 1936 wa.no. 470 of 2014 () in wp(c).20030/2013 ------------------------------------------- against the judgment dated2402-2014 in wp(c) 20030/2013 of the learned single judge appellant/petitioner: ---------------------------------------------- s.mahadevan pillai, aged65years s/o. sivasankara panicker residing at revathy nilayam, pathiyoorkala muri pathiyoor village. by advs.sri.r.rajasekharan pillai sri r sreedharan nair respondents/respondents: ---------------------------------------------------- 1. the state ofkerala, represented by the chief secretary government secretariat,thiruvananthapuram-695001.2. the kerala pollution control board, represented by its chairman, pollution control board thiruvananthapuram-695001.3. the environmental engineer, office of environmental engineer thondakulangara, alappuzha-688001.4. the pathiyoor grama panchayat, represented by its secretary, grama panchayat office pathiyoor, kayamkulam-690502.5. k.k.hashim, residint at kuttisseril, karappuzha, kottayam proprietor, shemy timber mart, pathiyoor kayamkulam-690502. r5 by adv. sri.babu cherukara r5 by adv. sri.anzar basheer r1 bysr. government pleader sri.syam kumar r2 & r3 by sri. m.ajay, sc, kerala state pollution control board this writ appeal having been finally heard on0104-2014, the court on the same day delivered the following: wa.no. 470 of 2014 () in wp(c).20030/2013 appendix petitioner's annexures: annexure1true copy of the judgment dated192.2014 in rsa no.785/2013 of this hon'ble court annexure ii:true copy of the commission report dated226.2013 submitted in ia no.54/2013 annexure iii:true copy of the application of the5h respondent dated31.2014 obtained under the right to information act annexure1:true copy of the representation dated33.2014 submitted by the petitioner before the4h respondent respondents' annexures: nil //true copy// p a to judge k.m.joseph & a.k.jayasankaran nambiar, jj.~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ w.a.no.470 of 2014 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ dated this the 1st day of april, 2014 judgment k.m.joseph, j.appellant is the writ petitioner. the writ petition is filed challenging exts.p2 and p7.2. briefly put, the case of the appellant is as follows: "the appellant had sought the indulgence of this hon'ble court in interdicting the respondents from permitting the 5th respondent operating a packing case unit right under his nose without obtaining any valid permit or license from any authority. the learned single judge directed him to approach the statutory authority for appropriate remedy than deciding the matter on merit. the learned single judge with humility it is submitted did not comprehend the nature and scope of the writ petition wherein the appellant specifically alleged that with license issued under entry 120 cannot be utilised or made use of for manufacturing the packing case unit or a sawmill which comes specifically under the entry 183 and the operation is squarely hit by rule 12 and 13 of the rules kerala panchayuat raj (licensing of dangerous and offensive trade factories) rules 1996 and the provisions of travancore cochin public health act. it is not the illegality of the license that is highlighted but the illegality of the consent issued by the pollution control board in the absence of those matters which are required under rule 12. hence the appellant prefers this writ w.a.no.470 of 2014 2 appeal." 3. the learned single judge took note of the stand of the appellant as plaintiff in o.s.no.312 of 2013, to the effect that he had no objection to the 5th respondent running the sawmill, but his only objection was that the 5th respondent shall not engage in the manufacture of packing cases, for which he had no licence, and which caused inconvenience and nuisance to the petitioner. the judgment of the lower appellate court was challenged before this court in r.s.a.no.785 of 2013 and it was also taken up for consideration. the learned single judge found that in the second appeal, this court did not interfere with the judgment and decree of the lower appellate court. it is further found that the question, as to whether nuisance and other inconveniences is caused to the petitioner as a result of the running of the factory, is a pure question of fact. evidence needs to be taken to come to the conclusion whether there is any nuisance caused or not. being a revisional jurisdiction, the panchayath raj act provides for an alternate remedy. the appellant has failed to show that the alternate remedy available to the petitioner is either not efficacious or that any w.a.no.470 of 2014 3 other inconvenience is caused to him and reserving the liberty of the petitioner to approach the appropriate forum for redressal of his grievances, the learned single judge dismissed the writ petition.4. we heard the learned counsel for the appellant, the learned counsel for respondents 2 and 3 and the learned counsel for the 5th respondent. there is no representation for the panchayat.5. the learned counsel for the appellant would point out that appellant is aggrieved by the functioning of the packing unit by the 5th respondent. the case of the 5th respondent is that he is not running a packing unit. whatever that be, we notice that the subject matter of the civil suit and the appellant's stand is appropriately protected by the judgment of the first appellate court and it is for him to work out his remedies in terms thereof.6. as far as the contention of the appellant regarding w.a.no.470 of 2014 4 ext.p7, that issuance of ext.p7 is illegal and procedures for issuance of ext.p7 have not been complied with, we notice that actually ext.p7 permits the 5th respondent to run a sawmill.7. the learned counsel for the 5th respondent would point out that an application for renewal has been made and renewal of ext.p7 is pending consideration and the amount has been paid. in the circumstances of the case, we dispose of the writ appeal as follows: if the appellant files objections, to the grant of renewal, before the 4th respondent within a period of one week from today, the 4th respondent will consider the same also before grant of renewal. k.m.joseph judge a.k.jayasankaran nambiar judge mns/ w.a.no.470 of 2014 5
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE1T DAY OF APRIL201411TH CHAITHRA, 1936 WA.No. 470 of 2014 () IN WP(C).20030/2013 ------------------------------------------- AGAINST THE JUDGMENT

DATED2402-2014 IN WP(C) 20030/2013 of THE LEARNED SINGLE JUDGE APPELLANT/PETITIONER: ---------------------------------------------- S.MAHADEVAN PILLAI, AGED65YEARS S/O. SIVASANKARA PANICKER RESIDING AT REVATHY NILAYAM, PATHIYOORKALA MURI PATHIYOOR VILLAGE. BY ADVS.SRI.R.RAJASEKHARAN PILLAI SRI R SREEDHARAN NAIR RESPONDENTS/RESPONDENTS: ---------------------------------------------------- 1. THE STATE OFKERALA, REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.

2. THE KERALA POLLUTION CONTROL BOARD, REPRESENTED BY ITS CHAIRMAN, POLLUTION CONTROL BOARD THIRUVANANTHAPURAM-695001.

3. THE ENVIRONMENTAL ENGINEER, OFFICE OF ENVIRONMENTAL ENGINEER THONDAKULANGARA, ALAPPUZHA-688001.

4. THE PATHIYOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, GRAMA PANCHAYAT OFFICE PATHIYOOR, KAYAMKULAM-690502.

5. K.K.HASHIM, RESIDINT AT KUTTISSERIL, KARAPPUZHA, KOTTAYAM PROPRIETOR, SHEMY TIMBER MART, PATHIYOOR KAYAMKULAM-690502. R5 BY ADV. SRI.BABU CHERUKARA R5 BY ADV. SRI.ANZAR BASHEER R1 BYSR. GOVERNMENT PLEADER SRI.SYAM KUMAR R2 & R3 BY SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON0104-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 470 of 2014 () IN WP(C).20030/2013 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE1TRUE COPY OF THE JUDGMENT

DATED192.2014 IN RSA NO.785/2013 OF THIS HON'BLE COURT ANNEXURE II:TRUE COPY OF THE COMMISSION REPORT DATED226.2013 SUBMITTED IN IA NO.54/2013 ANNEXURE III:TRUE COPY OF THE APPLICATION OF THE5H RESPONDENT DATED31.2014 OBTAINED UNDER THE RIGHT TO INFORMATION ACT ANNEXURE1:TRUE COPY OF THE REPRESENTATION DATED33.2014 SUBMITTED BY THE PETITIONER BEFORE THE4H RESPONDENT RESPONDENTS' ANNEXURES: NIL //TRUE COPY// P A TO JUDGE K.M.JOSEPH & A.K.JAYASANKARAN NAMBIAR, JJ.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.A.No.470 of 2014 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 1st day of April, 2014 JUDGMENT

K.M.JOSEPH, J.

Appellant is the writ petitioner. The writ petition is filed challenging Exts.P2 and P7.

2. Briefly put, the case of the appellant is as follows: "The appellant had sought the indulgence of this Hon'ble Court in interdicting the respondents from permitting the 5th respondent operating a packing case unit right under his nose without obtaining any valid permit or license from any authority. The learned Single Judge directed him to approach the statutory authority for appropriate remedy than deciding the matter on merit. The learned Single Judge with humility it is submitted did not comprehend the nature and scope of the Writ Petition wherein the appellant specifically alleged that with license issued under Entry 120 cannot be utilised or made use of for manufacturing the packing case unit or a sawmill which comes specifically under the entry 183 and the operation is squarely hit by Rule 12 and 13 of the Rules Kerala Panchayuat Raj (Licensing of Dangerous and Offensive Trade Factories) Rules 1996 and the provisions of Travancore Cochin Public Health Act. It is not the illegality of the license that is highlighted but the illegality of the consent issued by the Pollution Control Board in the absence of those matters which are required under Rule 12. Hence the appellant prefers this Writ W.A.No.470 of 2014 2 Appeal." 3. The learned Single Judge took note of the stand of the appellant as plaintiff in O.S.No.312 of 2013, to the effect that he had no objection to the 5th respondent running the sawmill, but his only objection was that the 5th respondent shall not engage in the manufacture of packing cases, for which he had no licence, and which caused inconvenience and nuisance to the petitioner. The judgment of the lower appellate court was challenged before this Court in R.S.A.No.785 of 2013 and it was also taken up for consideration. The learned Single Judge found that in the Second Appeal, this Court did not interfere with the judgment and decree of the lower appellate court. It is further found that the question, as to whether nuisance and other inconveniences is caused to the petitioner as a result of the running of the factory, is a pure question of fact. Evidence needs to be taken to come to the conclusion whether there is any nuisance caused or not. Being a revisional jurisdiction, the Panchayath Raj Act provides for an alternate remedy. The Appellant has failed to show that the alternate remedy available to the petitioner is either not efficacious or that any W.A.No.470 of 2014 3 other inconvenience is caused to him and reserving the liberty of the petitioner to approach the appropriate forum for redressal of his grievances, the learned Single Judge dismissed the writ petition.

4. We heard the learned counsel for the appellant, the learned counsel for respondents 2 and 3 and the learned counsel for the 5th respondent. There is no representation for the Panchayat.

5. The learned counsel for the appellant would point out that appellant is aggrieved by the functioning of the packing unit by the 5th respondent. The case of the 5th respondent is that he is not running a packing unit. Whatever that be, we notice that the subject matter of the civil suit and the appellant's stand is appropriately protected by the judgment of the first appellate court and it is for him to work out his remedies in terms thereof.

6. As far as the contention of the appellant regarding W.A.No.470 of 2014 4 Ext.P7, that issuance of Ext.P7 is illegal and procedures for issuance of Ext.P7 have not been complied with, we notice that actually Ext.P7 permits the 5th respondent to run a sawmill.

7. The learned counsel for the 5th respondent would point out that an application for renewal has been made and renewal of Ext.P7 is pending consideration and the amount has been paid. In the circumstances of the case, we dispose of the writ appeal as follows: If the appellant files objections, to the grant of renewal, before the 4th respondent within a period of one week from today, the 4th respondent will consider the same also before grant of renewal. K.M.JOSEPH JUDGE A.K.JAYASANKARAN NAMBIAR JUDGE mns/ W.A.No.470 of 2014 5