IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 WP(C).No. 26178 of 2010(Q) ---------------------------------- PETITIONER(S): ------------------- V.A.THOMAS,VARIYATH HOUSE, VALAPPU,MALIPPURAM.P.O,AND DESOM,ELAMKUNNAPUZHA VILLAGE AND PANCHAYATH,ERNAKULAM DISTRICT. BY ADV. SRI.K.RAVEENDRAN RESPONDENT(S): -------------------- 1. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE,ERNAKULAM,KAKKANAD,COCHIN-30. 3. THE SUB DIVISIONAL MAGISTRATE, FORT COCHIN,COCHIN-2. 4. THE CHIEF ENVIRONMENTAL ENGINEER, POLLUTION CONTROL BOARD,GANDHI NAGAR, KADAVANTHRA.P.O,ERNAKULAM,COCHIN-682 020 5. THE SECRETARY,ELAMKUNNAPUZHA PANCHAYATH, VYPIN ISLAND,ERNAKULAM-682 503. 6. THE ASSISTANT ENGINEER,KERALA STATE ELECTRICITY BOARD,MALIPPURAM-682 511. 7. THE DISTRICT MEDICAL OFFICER, ERNAKULAM-682 011. 8. POULOSE.M.V,S/O.VARGHESE,MALIEKKAL VEEDU VALAPPU,MALIPPURAM.P.O & DESOM,ELAMKUNNAPUZHA PANCHAYATH,ERNAKULAM DISTRICT-682 503. .......2/-... ...2... 9. ROSY POULOSE,W/O.M.V.POULOSE, MALIEKKAL VEEDU,VALAPPU,MALIPPURAM.P.O & DESOM, ELAMKUNNAPPUZHA VILLAGE,ERNAKULAM DISTRICT-682 503. 10. DENNY POULOSE,S/O.POULOSE.M.V, MALIEKKAL VEEDU,VALAPPU,P.O. & DESOM, ELAMKUNNAPUZHA VILLAGE,ERNAKULAM DISTRICT-682 503. 11. DAITY DENNY,W/O.DENNY POULOSE, MALIEKKAL VEEDU,VALAPPU,MALIPPURAM.P.O, & DESOM, ELAMKUNNAPPUZHA VILLAGE,ERNAKULAM DISTRICT-682 503. 12. THE VILLAGE OFFICER,ELAMKUNNAPUZHA-682 503. R1,2,3,7 & 12 GOVT. PLEADER SRI.I.V.PRAMOD R4 BY ADV. SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR R5 BY ADV. SRI.S.SHANAVAS KHAN R6 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B R8 TO 11 BY ADV. SRI.S.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ WP(C).No. 26178/2010(Q) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ROUGH SKETCH OF THE TOPOGRAPHY OF THE SITE AND SURROUNDING AREA. P2: COPY OF WRIT PETITION AND AFFIDAVIT FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT. P3: COPY OF REPRESENTATION TO THE 7TH RESPONDENT MEDICAL OFFICER DATED 23/06/2010. P4: COPY OF THE ORDER IN WRIT PETITION NO.21345/2009(K) DATED 10/08/2009. P5: COPY OF THE REPORT OF THE KERALA STATE POLLUTION CONTROL BOARD FILED IN THE ABOVE WRIT PETITION DATED 19/03/2010. P6: COPY OF THE COMMISSION REPORT DATED 02/06/2010 IN I.A.NO.5333/2010 IN WPC.NO.21345/2009. P7: COPY OF THE PETITION BEFORE THE SUB DIVISIONAL MAGISTRATE, FORT KOCHI. P8: COPY OF THE PETITION FILED BEFORE THE MAGISTRATE DATED 28/07/2010. P9: COPY OF THE PETITION BEFORE THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE. P10: COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 27/07/2010. P11: COPY OF THE OBJECTION FILED BEFORE THE SUB DIVISIONAL MAGISTRATE, FORT KOCHI DATED 11/08/2010. P12: COPY OF THE JUDGMENT DATED 09/09/2010 IN WPCNO.28059/2010. P13: COPY OF THE REPRESENTATION DATED 04/10/2010 SUBMITTED BEFORE THE STATE POLLUTION CONTROL BOARD. P14: COPY OF THE LETTER TO THE CHIEF ENVIRONMENTAL ENGINEER, POLLUTION CONTROL BOARD. ...2/-.. ...2... R8(a):COPY OF LICENSE ISSUED BY ELAMKUNNAPUZHA PANCHAYATH IN FAVOUR OF JANATHA SAW MILL. R8(b):COPY OF LICENSE ISSUED BY ELAMKUNNAPUZHA PANCHAYATH IN FAVOUR OF JANATHA WOOD INDUSTRIES. R8(c)::COPY OF LICENSE ISSUED BY ELAMKUNNAPUZHA PANCHAYATH IN FAVOUR OF WOOD MASTER. R8(d)::COPY OF LICENSE ISSUED BY ELAMKUNNAPUZHA PANCHAYATH IN FAVOUR OF INTER TECH. R8(e):COPY OF NO OBJECTION CERTIFICATE ISSUED BY DIVISIONAL FOREST OFFICER, ERNAKULAM IN FAVOUR OF JANATHA SAW MILL. R8(f):COPY OF NO OBJECTION CERTIFICATE ISSUED BY DIVISIONAL FOREST OFFICER, ERNAKULAM IN FAVOUR OF JANATHA WOOD INDUSTRIES. R8(g):COPY OF NO OBJECTION CERTIFICATE ISSUED BY DIVISIONAL FOREST OFFICER, ERNAKULAM IN FAVOUR OF WOOD MASTER. R8(h):COPY OF CONSENT TO OPERATE ISSUED BY KERALA STATE POLLUTION CONTROL BOARD IN FAVOUR OF JANATHA SAW MILL. R8(i):COPY OF CONSENT TO OPERATE ISSUED BY KERALA STATE POLLUTION CONTROL BOARD IN FAVOUR OF JANATHA WOOD INDUSTRIES. R8(j):COPY OF CONSENT TO OPERATE ISSUED BY KERALA STATE POLLUTION CONTROL BOARD IN FAVOUR OF WOOD MASTER. R8(k):COPY OF NO OBJECTION CERTIFICATE ISSUED BY SOCIAL HEALTH CENTRE, MALIPPURAM IN FAVOUR OF JANATHA SAW MILL. R8(l):COPY OF NO OBJECTION CERTIFICATE ISSUED BY SOCIAL HEALTH CENTRE, MALIPPURAM IN FAVOUR OF JANATHA WOOD INDUSTRIES. R8(m):COPY OF NO OBJECTION CERTIFICATE ISSUED BY SOCIAL HEALTH CENTRE, MALIPPURAM IN FAVOUR OF WOOD MASTER. R8(n):COPY OF ACKNOWLEDGMENT OF REGISTRATION ISSUED BY DEPT. OF INDUSTRIES IN FAVOUR OF JANATHA SAW MILL. R8(o):COPY OF ACKNOWLEDGMENT OF REGISTRATION ISSUED BY DEPT. OF INDUSTRIES IN FAVOUR OF JANATHA WOOD INDUSTRIES. .....3/-... ...3... R8(p):COPY OF ACKNOWLEDGMENT OF REGISTRATION ISSUED BY DEPT. OF INDUSTRIES IN FAVOUR OF WOOD MASTER. R8(q):COPY OF LETTER FROM DEPT. OF ELECTRICAL INSPECTORATE, ERNAKULAM IN FAVOUR OF JANATHA WOOD INDUSTRIES. R8(r):COPY OF LETTER FROM DEPT. OF ELECTRICAL INSPECTORATE, ERNAKULAM IN FAVOUR OF JANATHA SAW MILL. R8(s):COPY OF LETTER FROM DEPT. OF ELECTRICAL INSPECTORATE, ERNAKULAM IN FAVOUR OF WOOD MASTER. R8(t):COPY OF LICENSE ISSUED BY FACTORIES & BOILERS DEPT. IN FAVOUR OF JANATHA SAW MILL. R8(u):COPY OF LICENSE ISSUED BY FACTORIES & BOILERS DEPT. IN FAVOUR OF JANATHA WOOD INDUSTRIES. R8(v):COPY OF LICENSE ISSUED BY FACTORIES & BOILERS DEPT. IN FAVOUR OF WOOD MASTER. R8(w):COPY OF RECEIPT DATED 13/05/2010 ENDORSING PAYMENT OF LICENSE FEE BY JANATHA SAW MILL. R8(x):COPY OF RECEIPT DATED 12/03/2010 ENDORSING PAYMENT OF LICENSE FEE BY JANATHA WOOD INDUSTRIES. R8(y):COPY OF RECEIPT DATED 03/03/2010 ENDORSING PAYMENT OF LICENSE FEE BY WOOD MASTER. R8(z):COPY OF ORDER DATED 06/01/2010 PASSED BY THIS HON'BLE HIGH COURT. /TRUE COPY/ P.A. TO JUDGE SVS/ M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C)No. 26178 OF 2010 =========================== Dated this the 27th day of October,2010 JUDGMENT This petition is filed under Article 226 of the Constitution of India seeking the following reliefs:- i)Call for the records leading upto Exts.P7 and P9 by the issue of a writ in the nature of mandamus or any other appropriate writ direction or order commanding respondents 2 and 3 to stop and prohibit the public nuisance and/or the conduct of the wood industry, furniture units of respondents 8,9,10 and 11 as it is injurious to the W.P.(C) 26178/2010 2 health and physical comfort of the community and remove it to a non residential area forthwith (Janatha Intertech Industries). ii) Such other or further reliefs which the petitioner may pray for from time to time and which this Hon'ble Court may deem fit and proper in the interests of justice. iii) costs of the proceedings. 2. Learned counsel appearing for respondents 8 to 11 pointed out that Ext.P7 is pending before Sub Divisional Magistrate, who has to pass orders as provided under section 133 of Code of Criminal Procedure and Ext.P9 petition is pending before the District Collector, who cannot grant the reliefs sought for and therefore the petition may be dismissed. 3. Learned counsel appearing for the petitioner submitted that though Ext.P7 is pending before the Sub Divisional Magistrate, he is not acting impartially and therefore by W.P.(C) 26178/2010 3 Ext.P9 petitioner sought transfer of the case to any other Sub Divisional Magistrate and in such circumstance the Writ Petition is to be disposed. 4. When a petition is pending before the Sub Divisional Magistrate, it is for him to consider the case on merit and pass orders in accordance with law. A District Collector, even in his capacity as District Magistrate, cannot transfer a case pending before the Sub Divisional Magistrate. Therefore when no relief could be granted pursuant to Ext.P9, no direction could be issued to dispose Ext.P9. Learned counsel appearing for the petitioner then submitted that case of the petitioner is that he will not get justice from the Sub Divisional Magistrate. If so, he is at liberty to seek appropriate steps to transfer the case. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006