IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 26769 of 2007(J) ---------------------------------------- PETITIONER(S): ------------------------- P.V.RADHAMONI, MAVELIL, HOUSE NO.470, WARD NO.12, PODIYATTUVILA, VALAKOM, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV.MR.GOPAKUMAR R.THALIYAL SMT.ANEY PAUL (ADVOCATE COMMISSIONER) RESPONDENT(S): ------------------------- 1. T.S.VENU, ARUNALAYAM, PODIYATTUVILA (PO), VALAKOM, KOTTARAKKARA, KOLLAM DISTRICT. 2. THE SECRETARY, EDAMULACKAL SPECIAL GRADE GRAMA PANCHAYATH, EDAMULACKAL (PO), ANCHAL, KOLLAM DISTRICT. 3. THE PRESIDENT, EDAMULACKAL SPECIAL GRADE GRAMA PANCHAYATH, EDAMULACKAL (PO), ANCHAL, KOLLAM DISTRICT. 4. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. THE ENVIRONMENT ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, KOLLAM. R1 BY ADV. MR.S.ANANTHAKRISHNAN R1 BY ADV.MR.N.K.SUBRAMANIAN R2& R3 BY ADVS. MR.K.JAYAKUMAR, MR.R.SURAJ KUMAR, SMT.GEETHA P.MENON. R4 BY GOVT. PLEADER MR.V.MANU R5 BY MR.CHANDRAMOHANDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON 28/10/2009 DELIVERED THE FOLLOWING: tss W.P.(C) NO.26769/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LICENSE ISSUED BY THE 2ND RESPONDENT TO THE IST RESPONDENT DT. 17.12.05. P2:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 27.2.06. P3:- COPY OF THE RESOLUTION ISSUED BY THE 2ND RESPONDENT TO THE IST RESPONDENT DTD. 28.2.06. P4:- COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN WPC. NO.9000/06 DTD. 27.3.06. P5:- COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DTD. 25.5.06. P6:- COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 31.5.06. P7:- COPY OF THE MEMO ISSUED BY THE 2ND RESPONDENT DTD. 1.6.06. P8:- COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DTD. 20.6.06. P9:- COPY OF THE CONSENT LETTER ISSUED BY THE 5TH RESPONDENT DTD. 10.4.06. P10:- COPY OF THE ORDER PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DTD. 22.9.06. P11:- COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT DTD. 26.5.07. P12:- COPY OF THE ROUGH SKETCH. P12(a):- COPY OF THE CONSENT LETTER ISSUED BY THE 5TH RESPONDENT DTD. 24.2.09. P12(b):- COPY OF THE LICENCE ISSUED BY THE 4TH RESPONDENT. P13:- COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT OFFICER, KERALA STATE POLLUTION CONTROL BOARD, KOLLAM DTD. 3.3.06. P14:- COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE DISTRICT MEDICAL OFFICER, KOLLAM DTD. 3.3.06. P15:- COPY OF THE RATION CARD OF THE PETITIONER. P16:- COPY OF THE ELECTRICITY BILL. P17:- COPY OF THE RECEIPT SHOWING THE GAS CONNECTION TO THE PETITIONER'S HOUSE. tss pto W.P.(C) NO.26769/2007 RESPONDENT'S EXHIBITS R1(a):- COPY OF THE DISABILITY CERTIFICATE DTD. 21.5.04. R1(b):- COPY OF THE LOAN SANCTION TICKET DT. 7.2.06. R1(c):- COPY OF THE LICENSEE DTD. 9.7.07. R1(d):- COPY OF THE SSI REGISTRATION CERTIFICATE DTD. 30.9.06. R1(e):- COPY OF THE CERTIFICATE DTD. 11.10.07 ISSUED BY THE KHADI AND VILLAGE INDUSTRIES COMMISSION. R1(f):- COPY OF THE LETTER DTD. 27.3.06 ISSUED BY THE 5TH RESPONDENT. R1(g):- COPY OF THE NOTICE DTD. 5.4.06 ISSUED BY THE 5TH RESPONDENT. R1(h):- COPY OF THE SKETCH DTD. NIL ISSUED BY THE 5TH RESPONDENT. R1(i):- COPY OF THE VOTERS LIST DT. NIL. 5TH RESPONDENT. R1(j):- COPY OF THE NOTICE DTD. 29.9.07 ISSUED BY THE 5TH RESPONDENT. R1(k):- COPY OF THE COMPLIANCE REPORT FILED BY THE PETITIONER. R1(l):- CONSENT TO OPERATE ISSUED BY THE 5TH RESPONDENT. R1(m):- RENEWED LICENSEE BY THE 2ND RESPONDENT. R2(a):- COPY OF THE MINUTES DTD. 25.5.06. R2(b):- COPY OF THE RELEVANT PORTION OF THE REPORT TO THE PANCHAYATH COMMITTEE. R2(c):- COPY OF THE CONCERNED LETTER DT.D 10.4.06. TRUE COPY P.S. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).26769/2007-J & I.A.10250/2009 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of October, 2009. JUDGMENT 1.The petitioner seeks a direction in relation to a hollow brick manufacturing unit of the first respondent, who states that the entire exercise of the petitioner is nothing but harassment since he is not prepared to concede to the petitioner's request to sell a piece of land of the first respondent to make a way to an item of property lying on the rear portion of the first respondent's holding. Whatever that be, the fact of the matter remains that the first respondent obtained due licence which was challenged by the petitioner before the Tribunal for LSGIs. The Tribunal dismissed that appeal, but by issuing directions to the Pollution Control authorities to ensure that the activity of the hollow brick industry is not, in any way, carried in violation WPC26769/07 -: 2 :- of the relevant laws. 2.With the passage of time, the District Officer of the Pollution Control Board has issued licence to the first respondent. By amendments sought for vide I.A.No.10250/09, the petitioner seeks leave to challenge that consent. It goes without saying that consent to establish or consent to operate issued by the District Officer of the PCB is amenable to an appellate jurisdiction in terms of the relevant statutes. Such appeals are heard with proper, legal and technical support with the presence of the Law Secretary since two members conversant with air pollution and water pollution laws constitute the committee to study such matters. When such an alternate efficacious remedy is available, it is inappropriate that the Court endeavours to sit in judgment on the consent issued by the PCB without an appellate remedy being exhausted. The petitioner has not apparently taken recourse to that, owing to the challenge pending against the decision of the WPC26769/07 -: 3 :- Tribunal as projected in this writ petition and because, PCB's clearance was granted only after the institution of this writ petition. Looking at the grounds on which Ext.P10 order of the Tribunal is challenged, I do not find any error of jurisdiction or legal infirmity in that order of the Tribunal. The issues raised are principally on questions of facts etc. which do not have any bearing on any jurisdictional issue or any legal infirmity that may call for the exercise of visitorial powers under Article 226 of the Constitution. This position notwithstanding, even going by the directions of the Tribunal, the first respondent can operate the establishment only with the appropriate clearance of the PCB. That having been granted, now the petitioner has necessarily to seek relief, if at all, only from the appellate body under the environmental laws. I may also note that there are no interim orders in favour of the petitioner in this matter filed in the year 2007. WPC26769/07 -: 4 :- For the aforesaid reasons, while refusing leave to amend the writ petition and rejecting the challenge to Ext.P10 order of the Tribunal for LSGIs, it is ordered that if the petitioner presents an appeal against the renewal of consent to operate within a period of three weeks from the date of receipt of a copy of this judgment, the appellate authority under the pollution control laws will consider that appeal as if it has been filed within the period of time prescribed. It is clarified that this judgment does not express anything on the merits of the decisions of the District Officer of the PCB which could be subject matter of such appeal. Leaving open all such issues, this writ petition is ordered in terms of what is stated above. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/281009