IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 31594 of 2008(J) ---------------------------------------- PETITIONER(S): ------------------------ 1. DR.K.K.BHASKARAN, AGED 69 YEARS, S/O.KIZHAKKEPURAKKAL KUTTAN, V/215, 'SUDHARMA', KATTOOR ROAD, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK. 2. BINOY K.B., AGED 33 YEARS, S/O.DR.BHASKARAN, V/215, 'SUDHARMA', KATTOOR ROAD, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. MR.P.SANTHOSH (PODUVAL), SMT.R.RAJITHA. RESPONDENT(S): --------------------------- 1. SECRETARY, MUNICIPAL OFFICE, IRINJALAKUDA MUNICIPALITY. 2. MUNICIPAL ENGINEER, IRINJALAKUDA MUNICIPALITY. 3. ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, THRISSUR. 4. DISTRICT COLLECTOR, THRISSUR. 5. C.D.DAVIS, M/S.DAVIS SCOOTER & ENGINEERING WORKS, KATTOOR ROAD, IRINJALAKUDA. 6. C.V.JOSHY, CHANGARATH HOUSE, KATTOOR ROAD, IRINJALAKUDA. R1 BY ADVS.MR.K.K.CHANDRAN PILLAI, SC, IRINJALAKUDA MUNICIPALITY, MR.A.S.SAJUSH PAUL. R3 BY ADV.MR.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOARD R4 BY GOVERNMENT PLEADER R5 & R6 BY ADV. MR.RAJESH CHAKYAT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31594/2008 J APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF REPRESENTATION DTD. 29/11/2007 SUBMITTED BEFORE FIRST RESPONDENT BY PETITIONERS AND OTHER RESIDENTS OF THE LOCALITY ON 7/12/2007. P2: COPY OF LETTER DTD. 29/12/2007 SENT BY THE FIRST RESPONDENT TO THE THIRD RESPONDENT. P3: COPY OF LETTER DTD. 21/04/2008 ISSUED BY THE THIRD RESPONDENT. P4: COPY OF NOTICE DTD.22/03/2008 ISSUED BY FIRST RESPONDENT TO THE SIXTH RESPONDENT. P5: COPY OF REPRESENTATION DTD. 10/07/2008 SUBMITTED ON 22/07/2008 BEFORE SECOND RESPONDENT. P6: COPY OF SHOW CAUSE NOTICE DTD. 6/08/2008 ISSUED BY THE THIRD RESPONDENT. P7: COPY OF REPRESENTATION DTD.22/08/2008 SUBMITTED BEFORE THE SECOND RESPONDENT BY PETITIONERS ON 25/08/2008. P8: COPY OF LETTER DTD. 30/09/2008 SENT BY THIRD RESPONDENT TO THE FIRST RESPONDENT. P9: PHOTOGRAPHS SHOWING THE CONDITIOIN OF THE WORKSHOP AS ON 16/03/09. P10: COPY OF THE CONSENT ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. RESPONDENT'S EXHIBITS: R3(A): COPY OF THE LETTER NO.PCB/TSR/IC/645/08 DTD. 21/04/2008. R3(B): COPY OF THE REFUSAL OF CONSENT VIDE LETTER DTD. 6/08/2008. R3(C): COPY OF THE COMPLIANCE REPORT. R3(D): COPY OF THE LETTER NO.PCB/TSR/IC/645/08 DTD. 30/09/2008. R3(E): COPY OF THE LETTER DTD. 20/11/2008. R3(F): COPY OF THE CONSENT TO OPERATE DTD. 16/12/2008. Kss ..2/- ...2..... WPC.NO.31594/2008 J R5(A): COPY OF THE BUILDING TAX RECEIPT DTD. 14/08/2008. R5(B): COPY OF THE PROFESSIONAL TAX RECEIPT DTD. 14/08/2008. R5(C): A RECEIPT EVIDENCING THE PAYMENT OF LICENSE FEE DTD.16/02/2008 AND 12/2/09. R5(D): COPY OF THE REPLY DTD. 18/08/2008. R5(E): COPY OF THE INTIMATION DTD. 30/09/2008. R5(F): COPY OF THE CONSENT ISSUED BY THE 3RD RESPONDENT DTD.16/12/2008. R5(G): COPY OF THE PHOTOGRAPH. /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 31594 of 2008 and I.A.No. 10630 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 8th day of September, 2009 JUDGMENT Respondents 5 and 6 have an establishment dealing in fabrication by the side of a public road. The petitioners reside on the opposite side of that road. What could have been is a case for consideration by a District Magistrate or a Civil Court has been coagulated to be a writ matter and has been placed for consideration of this Court on the allegation that the Pollution Control Board has refused to take due action. Environmental Law, Public Health Law and statutory provisions governing local authorities stand to show that the different authorities have wide range of powers. The presence of power in the statute book is insufficient. Exercise of power, in accordance with law, is among the mandates of the Constitution. The complaint often raised, is either of a violation to exercise power or of excessive exercise of power. Either way, allegations against a statutory authority bring, what are otherwise ordinary litigations, for consideration to the constitutional courts. W.P.(C) No. 31594/08 2 2. Existence of efficacious alternate remedy is considered a ground on which the discretionary remedy of writ jurisdiction would be withheld. Alternate remedy can be easily shown, but efficacy is the reflection of those alternative mechanisms, in action. Inefficiency of officers and inability to function owing to superior extra-constitutional grazing as also unlawful scoutings by extra-legal and extra-constitutional power points create the embargo to the flow of justice through the statutory authorities. 3. In the case in hand, while the neighbours who are the parties are sore at each other, the Pollution Control Board gave consent to operate the establishment of respondents 5 and 6. “Consent to establish” and “consent to operate” are two different concepts in Environmental Law. “Consent to establish” is granted imposing conditions, the compliance of which, are mandatory to commence operation. The “consent to operate” should itself become operational only on satisfaction of the conditions imposed in the “consent to operate”, except those conditions which have to be repeatedly or perennially ensured; or those, like providing a green patta or belt, which may require a larger time frame. 4. The petitioners are justifiable in criticizing the officers of the Pollution Control Board with the materials on record. Initially, the Pollution Control Board authorities took the stand that the entire establishment of W.P.(C) No. 31594/08 3 respondents 5 and 6 ought to have brick wall on all sides. Such direction for enclosure by brick wall is justified by the Pollution Control Board on the ground that it is to reduce sound pollution. Later, the Pollution Control Board said that the said condition has not been complied with. The petitioners/respondents 5 and 6 of having lied in court about the construction of such a wall. They showed that respondents 5 and 6 had only placed tin sheets to enclose the establishment. Pursuant to that, this Court again directed the Pollution Control Board to inspect. By that time, respondents 5 and 6 obtained sanction from the Municipal authority and put up concrete slabs – wall to the required height. May be, that is not objected. But, the petitioners point out that respondents 5 and 6 have done that exercise only on one side i.e., the side abutting the road and not the other three sides. The petitioners may be right. Respondents 5 and 6 may also be right in showing that it is of no consequence of the private interest of the petitioners, whose land lies on the other side of the road. 5. I also note that the Environmental Engineer reports that the sound level on account of the vehicles moving in the public road makes no difference of the sound level on both sides to the street. 6. Therefore, if the parties have any subsisting grievance of a personal nature, relating to nuisance, public or private, jurisdiction lies W.P.(C) No. 31594/08 4 before the competent District Magistrate under the Code of Criminal Procedure and the Civil Court under the Code of Civil Procedure Code. 7. For the aforesaid reasons, refusing further relief, this writ petition is dismissed without prejudice to the right of the parties to seek appropriate relief from any other authority. THOTTATHIL B.RADHAKRISHNAN, JUDGE. mn.