IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 OP(C).No. 2278 of 2011(O) ------------------------------------- PETITIONER: ------------------- MOHANDAS, S/O.MADHAVAN, KOCHUVETTAM VEEDU, KADAKKAVUR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.ANILKUMAR. RESPONDENTS: ------------------------ 1. KADAKKAVUR GRAMA PANCHAYATH, REPRESENTED BY SECRETARY, KADAKKAVUR P.O., PIN- 695 306. 2. POLLUTION CONTROL BOARD REP.BY ENVIRONMENT ENGINEER, DISTRICT OFFICE, T.C.30/881, PETTAH P.O, THIRUVANANTHAPURAM-695 024. 3. DISTRICT MEDICAL OFFICER (HEALTH), OFFICE OF THE DISTRICT MEDICAL OFFICE, THIRUVANANTHAPURAM, PIN - 695 001. 4. K.RADHAKRISHNAN, K.R.NIVAS, KADAKKAVUR P.O., THIRUVANANTHAPURAM, PIN- 695 306. 5. GURUDASAN, GURUKULAM, KADAKKAVUR, THIRUVANANTHAPURAM, PIN -695 306. 6. DILEEPKUMAR, DILEEP BHAVAN, KADAKKAVUR, THIRUVANANTHAPURAM, PIN- 695 306. 7. USHA, KOVILAKOM LEKSHAM VEEDU, KADAKKAVUR, THIRUVANANTHAPURAM, PIN -695 306. O.P.(C).NO.2278/2011-O: 8. JICKEY, K.R.NIVAS,KADAKKAVUR P.O., THIRUVANANTHAPURAM, PIN- 695 306. 9. STATE OF KERALA, REP.BY SECRETARY, LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. R1 BY SRI.SHAJIN S.HAMEED, R2 BY SRI. M.K.C. DAS, S.C. R3 & R9 BY GOVT. PLEADER SRI. K.C. VINCENT, R4 TO R8 BY ADVS. SRI.VAKKOM N.VIJAYAN, SMT.REEJA HARI, SMT.V.RENJU, SRI.P.ANIYAN, SMT.M.A.RAMITHA. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2278/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE CONSENT LETTER NO.PCB/TVM/DO/CO(A)5076/2007 DT. 21/03/2007. EXT.P.2: COPY OF THE JUDGMENT IN W.P.(C).NO.24751/2007 DT. 18TH SEPT. 2007. EXT.P.3: COPY OF THE ORDER IN APPEAL NO. 568/2007. EXT.P.4: COPY OF THE RESOLUTION DTD. 30/11/2010. EXT.P.5: COPY OF THE CONSENT LETTER ISSUED BY THE POLLUTION CONTROL BOARD NO.PCB/TVM-DO/ICO/R1/HLB/446/2010 DT. 2/2/2010. EXT.P.6: COPY OF THE REPORT FILED BY THE DISTRICT MEDICAL OFFICER NO. C-2- 10381/2008/DMO DTD. 28/09/2010. EXT.P.7: COPY OF THE REPRESENTATION FILED TO THE DISTRICT MEDICAL OFFICER ON 14/03/2011. EXT.P.8: TURE PHOTOGRAPHS OF THE MEASURES TO AVOID POLLUTION IN THE FACTORY PREMISES OF THE PETITIONER. EXT.P.9: COPY OF THE ORDER IN REVISION PETITION NO. 143/2010 DTD. 4TH APRIL 2011. RESPONDENTS' EXHIBIT- EXT.R4.A: COPY OF THE LETTER DTD. 26/02/2011 BY THE R.3. CANCELLING N.O.C. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2278 of 2011 -------------------------------------- Dated this the 27th day of October, 2011. JUDGMENT Petitioner and respondents 4 to 8 are adjacent property owners. Petitioner having obtained the consent from respondents 4 to 8 started a hollow bricks manufacturing unit in his property in the year, 2005. In the year, 2007 when petitioner sought for renewal of the licence, that was objected by respondents 4 to 8 claiming that the hollow bricks manufacturing unit causes nuisance to them, the 4th respondent has undergone a liver transplant surgery with the 8th respondent, his wife, being the donor and that any nuisance caused by the dust emanating from the unit is likely to cause health hazard to respondents 4 to 8 and in particular, respondents 4 and 8. There were various proceedings between the parties at various forums. Parties approached this Court with Writ Petitions at different times. Ultimately the 1st respondent granted renewal of licence to the petitioner as per Ext.P4, order which respondents 4 to 8 challenged before the Tribunal for Local Self Government Institutions (for short, “the Tribunal”) in revision. The Tribunal passed Ext.P9, order whereby the renewal of licence granted by the 1st respondent was cancelled. Petitioner challenges Ext.P9, order in this proceeding. 2. Learned counsel for petitioner contends that though in Ext.P6, the District Medical Officer has issued certain directions including that petitioner has OP(C)No.2278/2011 2 to construct compound wall on the northern side at a height of three metres and put up net/tarpaulin sheet above that, petitioner was not able to comply with the direction to construct compound wall at a height of three metres on account of objection raised by respondents 4 to 8 and hence the 1st respondent not granting permission to construct compound wall. Instead, tin sheet is put up above the compound wall and above that, net also is provided so that, there is no possibility of dust emanating from the unit. It is contended that petitioner has complied with the provisions of the Kerala Panchayat Raj Act (for short, “the Act”) and the conditions which the District Medical Officer and the Pollution Control Board have provided. But, in spite of that, the Tribunal cancelled the order granting renewal of licence. Learned counsel has invited my attention to Ext.P8, photographs showing putting up of tin sheet and net above the existing compound wall. 3. Learned counsel for respondents 4 to 8 referred me to paragraph 12 onwards of Ext.P9, order where the Tribunal has referred to the non- compliance of statutory provisions as also possibility of nuisance due to the dust on account of manufacturing of hollow bricks. It is contended by the learned counsel that the trade or occupation which petitioner intends to carry on in his property is injurious to the health of respondents 4 to 8 so that, the Tribunal is justified in canceling renewal of licence granted in favour of petitioner. 4. Learned counsel for 1st respondent contended that the District Medical Officer has withdrawn the no objection certificate earlier granted OP(C)No.2278/2011 3 consequent to the petitioner not complying with the conditions in Ext.P6, order. It is in the view of that, the 1st respondent had earlier refused to grant renewal of licence to the petitioner. I have heard learned Government Pleader who appeared for respondents 3 and 9 as well. 5. No doubt, going by the submission made by the learned counsel for respondents 4 to 8, the unit appears to be functioning in a residential area. But, no statutory provision prohibiting starting of the unit in such area is brought to my notice. Therefore, the mere fact that the place is a residential area did not prevent petitioner from starting the hollow bricks manufacturing unit in his property. Sec.233 of the Act provides for certain conditions to be complied before the licence/renewal is granted. Ext.P6, order issued by the District Medical Officer (it was later cancelled based on the alleged non-performance of some of the conditions stated therein) states among other things that petitioner has to construct compound wall at a height of three metres and put up net/tarpaulin above that (to prevent dust emanating from the unit spreading into the adjoining areas). It is not disputed that whatever be the reason thereof, petitioner has not constructed compound wall at a height of three metres as stated in Ext.P6, order. Ext.P8, photographs show that instead of wall at a height of three metres, petitioner has put up tin sheet and above that, a net is spread. 6. If tin sheets are put up at a height of three metres above the existing compound wall that can be treated as sufficient compliance with the condition imposed in Ext.P6 to the extent it related to construction of compound OP(C)No.2278/2011 4 wall at a height of three metres. But putting up of net above that is of no use since the net has holes and the dust if any, could escape through the holes and spread in the adjoining areas. Therefore, instead of the net, petitioner shall put up tarpaulin above the tin sheet. The tarpaulin shall be put up at a height of not less than 12 (twelve) feet from the upper level of the tin sheets. The tarpaulin shall be supported by sufficient number of poles installed in the property of petitioner. 7. Certain other conditions are also imposed by the District Medical Officer as per Ext.P6 and on the non-compliance of which the District Medical Officer is said to have withdrawn Ext.P6. In Ext.P6, the District Medical Officer has directed among other things that petitioner shall unload the metal, cement, etc. in the shed (situated in the property of petitioner). It is also directed that the raw materials required for manufacturing the hollow bricks shall be made wet before it is unloaded in the property of petitioner so that dust does not emanating from it. These conditions are to be strictly complied by petitioner. 8. Lawton, L.J. has said in Kennaway v. Thompson ((1980) 3 All.E.R. 329) that parties forget the message: ’live and let live’. I am inclined to think that the parties to this proceeding also shall bear that in mind. 9. At the same time, I make it clear that if running of the manufacturing unit causes any sort of nuisance to respondents 4 to 8 or other nearby dwellers, this judgment or the renewal of licence that may be granted by the 1st respondent will not stand in the way of such person establishing their right and seeking abatement of nuisance through the appropriate forum or the OP(C)No.2278/2011 5 first respondent invoking its statutory duty, if any conferred on it. 10. In the view of the above discussion I am inclined to think that 1st respondent has to reconsider the issue regarding grant of renewal of licence to the petitioner subject to conditions. Resultantly this Original Petition is allowed and Ext.P9, order is set aside. The 1st respondent is directed to consider grant of renewal of licence to the petitioner on his complying with the following conditions: i. Instead of putting up compound wall at a height of three metres, petitioner shall put up tin sheets at a height of three metres above the existing compound wall on the northern side of his property. From the top level of the tin sheets petitioner shall put up tarpaulin at a height of not less than 12 (twelve) feet which shall be properly supported by installing poles in the property of the petitioner. ii. Petitioner shall comply with other conditions the District Medical Officer has imposed by Ext.P6, order. iii. Petitioner shall comply with the provisions of Sec.233 and other provisions if any of the Act (it is made clear that petitioner is not required to produce any fresh no objection certificate from respondents 4 to 8). iv. On compliance of the above conditions the District Medical Officer and the Pollution Control Board shall inspect the unit and decide whether no objection certificates could be issued to the petitioner. v. In case the District Medical Officer and the Pollution Control Board issue no objection certificates and if petitioner has complied with the provisions OP(C)No.2278/2011 6 of Sec.233 or other provision, if any of the Act, 1st respondent shall consider the request of petitioner for the grant of renewal of licence. vi. It is made clear that this judgment or the renewal of licence if granted by the 1st respondent will not prevent respondents 4 to 8 or any other persons establishing their right to abate nuisance if any caused by the unit of petitioner, through the appropriate forum or the 1st respondent exercising its statutory duty if any in the matter. THOMAS P.JOSEPH, Judge. cks