IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 31770 of 2008(F) -------------------------------------- PETITIONER: ------------------- T.S.SAJI MON MANAGING PARTNER, HINDUSTAN BLOCK RUBBER FACTORY, THIRUVANVANDOOR GRAMA PANCHAYAT, KALLISSERY P.O. BY ADVS. MR.T.M.ABDUL LATHEEF, MR.A.MUHAMMED HASHIM. RESPONDENTS: ------------------------ 1. THIRUVANVANDOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THIRUVANVANDOOR P.O.,CHENGANNUR, ALAPPUZHA- 689 109. 2. SECRETARY, THIRUVANVANDOOR GRAMA PANCHAYATH, THIRUVANVANDOOR P.O.,CHENGANNUR, ALAPPUZHA- 689 109. 3. KERALA POLLUTION CONTROL BOARD, DISTRICT OFFICE, ALAPPUZHA. *ADDL.R4. IMPLEADED: 4. UTHUPPAN JOSEPH, AGED 54 YEARS, S/O. JOSEPH, NOW RESIDING AT CHARUVUPARAMBIL, KALLISSERY, CHENGANNOOR. *ADDL.R4 IS IMPLEADED AS PER ORDER DTD.05/11/08 IN I.A. 14020/08. R1 & R2 BY ADVS. MR.P.K.SURESH KUMAR, MR.T.P.RAMACHANDRAN (THACHETH), R3 BY MR. M.K. CHANDRA MOHAN DAS,S.C. ADDL.R4 BY ADV. MR.S.SUBHASH CHAND. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.31770/2008-F: APPENDIX PETITIONERS' EXHIBITS & ANNEXURES: EXT.P.1: COPY OF THE LICENSE NO. A3-06/07-08 DTD. 18/04/2007 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P.2: COPY OF THE LICENSE NO. 14238 DTD. 17/07/2006 ISSUED BY THE RUBBER BOARD. EXT.P.3: COPY OF THE CONSENT LETTER NO. W/04/007/93 DTD. 04/01/2006. EXT.P.4: COPY OF THE LETTER NO. PCB/ALP/UCO-143/07 DTD. 01/01/2008 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.P.5: COPY OF THE CONSENT LETTER FILE NO. PCB/ALP/UCO-143/07 DTD. 25/03/2008 ISSUED BY THE POLLUTION CONTROL BOARD. EXT.P.6: COPY OF THE LETTER NO. PCB/ALP/UCO-143/07 DTD. 26/12/2007 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.P.7: COPY OF THE LETTER NO. PCB/ALP/UCO-143/07 DD. 18/02/2008 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.P.8: COPY OF THE PROPOSAL DTD. NIL. SUBMITTED BY THE PETITIONER. EXT.P.9: COPY OF THE NOTICE NO. A3/1436/07 DTD. 27/12/2007 ISSUED BY THE RESPONDENT. EXT.P.10: COPY OF THE REPLY DTD. 02/01/2008 SUBMITTED BEFORE THE RESPONDENT. EXT.P.11: COPY OF THE NOTICE NO. PCB/ALP/CG/115/07 DTD. 21/01/2008 ISSUED BY THE RESPONDENT. EXT.P.12: COPY OF THE INTERIM ORDER PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.8154/2008 DTD. 11/03/2008. EXT.P.13: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN W.P.(C). NO.8154/2008 DTD. 10/04/2008. EXT.P.14: COPY OF THE COMPLIANCE REPORT SUBMITTED BY THE PETITIONER BEFORE THE PANCHAYAT DTD. 09/05/2008. EXT.P.15: COPY OF THE LETTER DTD 03/09/2008 ISSUED BY THE PETITIONER TO THE R.3. EXT.P.16: COPY OF THE NOTICE ISSUED BY THE PANCHAYAT TO THE PETITIONER DTD. 25/10/2008. EXT.P.17: COPY OF THE PHOTOGRAPH. EXT.P.17.A: COPY OF THE PHOTOGRAPH. EXT.P.17.B: COPY OF THE PHOTOGRAPH. EXT.P.18: COPY OF THE LETTER NO. HTB 12/1247/336 DTD. 15/10/2008 ISSUED BY THE KERALA STATE ELECTRICITY BOARD. W.P.(C). NO.31770/2008-F: EXT.P.19: COPY OF THE CERTIFICATE ISSUED BY DR. K. BALACHANDRAN.M.SC., PH.D., PRINCIPAL, KESARI SCIENCE COLLEGE DTD. 23/08/2008. EXT.P.20: COPY OF THE ANALYSIS REPORT PREPARED BY GREEN EARTH LABORATORIES. EXT.P.21: COPY OF THE RECEIPT NO. 90 DTD. 14/06/2007. EXT.P.22: COPY OF THE POSTAL RECEIPT NO. 1849 DTD. 10/05/2008. EXT.P.23: COPY OF THE POSTAL ACKNOWLEDGEMENT CARD. EXT.P.24: COPY OF THE LETTER NO. PCB/ALP/UCO-143/07 DTD. 26/12/2007 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.P.25: COPY OF THE LETTER NO. PCB/ALP/UCO-143/07 DTD. 18/02/2008 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.P.26: COPY OF THE CONSENT LETTER NO. PCB/ALP/UCO-143/07 DTD. 13/11/2008 ISSUED BY THE POLLUTION CONTROL BOARD. EXT.P.27: COPY OF THE CONSENT VARIATION ORDER NO. PCB/ALP/UCO-143/07 DTD. 13/11/2008 ISSUED BY THE POLLUTION CONTROL BOARD. EXT.P.28: COPY OF THE PETITION DTD. 01/12/2008 THE PETITIONER BEFORE THE R.2. EXT.P.29: COPY OF THE LETTER NO. A3-21/08 DTD. 24/12/2008 ISSUED BY THE R.2. EXT.P.30: COPY OF THE PHOTOGRAPH. EXT.P.31: COPY OF THE PHOTOGRAPH. EXT.P.32: COPY OF THE PHOTOGRAPH. EXT.P.33: COPY OF THE PHOTOGRAPH. ANNEXURE A-1: COPY OF THE JUDGMENT DTD. 09/01/2009 PASSED BY THE DIVISION BENCH OF THIS HONOURABLE COURT IN W.A. NO. 70/2009. ANNEXURE A-2: COPY OF THE ORDER DTD. 03/02/2009 PASSED BY THE DIVISION BENCH OF THIS HONOURABLE COURT IN I.A. NO. 91/2009 IN W.A. NO. 70/2009. ANNEXURE A-3: COPY OF THE INSPECTON REPORT DTD. 19/02/2009. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE REPORT FILED BY THE CHIEF ENVIRONMENTAL ENGINEER, REGIONAL OFFICE, KOCHI. EXT.R4.A: COPY OF THE MASS PETITION DTD. 25/10/2007 SUBMITTED BEFORE THE DISTRICT ENVIRONMENTAL ENGINEER, KSPCB, ALAPPUZHA. EXT.R4.B: COPY OF THE REPRESENTATION DTD. 07/12/2007 SUBMITTED BEFORE THE CHAIRMAN, RUBBER BOARD, KOTTAYAM. EXT.R4.C: COPY OF THE REPRESENTATION DTD. 17/12/2007 SUBMITTED BEFORE THE SECRETARY OF THIRUVANVANDOOR GRAMA PANCHAYAT. EXT.R4.D: COPY OF THE REPRESENTATION DTD. 20/10/2008 SUBMITTED BEFORE THE PRESIDENT OF THIRUVANVANDOOR GRAMA PANCHAYAT. W.P.(C). NO.31770/2008-F: EXT.R4.E: COPY OF THE ORDER DTD. 26/12/2007 ISSUED BY THE DISTRICT ENVIRONMENTAL ENGINEER, KSPCB, ALAPPUZHA. EXT.R4.F: COPY OF THE PROCEEDINGS DTD. 18/02/2008 OF THE DISTRICT ENVIRONMENTAL ENGINEER, KSPCB, ALAPPUZHA. EXT.R4.G: COPY OF THE NOTICE DTD. 27/12/2007 ISSUED BY THE SECRETARY, THIRUVANVANDOOR GRAMA PANCHAYAT TO THE PETITIONERS. EXT.R4.H: COPY OF THE NOTICE DTD. 26/02/2008 ISSUED BY THE SECRETARY, THIRUVANVANDOOR GRAMA PANCHAYAT TO THE PETITIONER. EXT.R4.I: COPY OF THE COMPLAINT DTD. 10/11/2008 SUBMITTED BY THE SECRETARY, ST. MARY'S KHNANAYA VALIYAPALLI BEFORE THE ENVIRONMENTAL ENGINEER, POLLUTION CONTROL BOARD, ALAPPUZHA. EXT.R4.J: COPY OF THE COMPLAINT SUBMITTED BY THE ANGANVADI WORKER OF ANGANVADI NO.142, WARD NO. VIII, THIRUVANVANDOOR GRAMA PANCHAYAT DTD. 10/11/2008 BEFORE THE SECRETARY, THIRUVANVANDOOR GRAMA PANCHAYAT. EXT.R4.K: COPY OF THE COMPLAINT DTD. 13/11/2008 SUBMITTED BY THE HEADMASTER OF GOVERNMENT U.P. SCHOOL, KALLISSERY BEFORE THE SECRETARY, THIRUVANVANDOOR GRAMA PANCHAYAT. EXT.R4.L: COPY OF THE COMPLAINT SUBMITTED BY THE PRINCIPAL VOCATIONAL HIGHER SECONDARY SCHOOL, KALLISSERY, CHENGANNOOR BEFORE THE SECRETARY, THIRUVANVANDOOR GRAMA PANCHAYAT. EXT.R4.M: COPY OF THE COMPLAINT DTD. 13/10/08 SUBMITTED BY THE HEADMISTRESS, ST. MARY'S LPS, KALLISSERY BEFORE THE SECRETARY, THIRUVANVANDOOR GRAMA PANCHAYAT. EXT.R.N: COPY OF THE COMMUNICATION DTD. 20/11/2008 ISSUED BY THE SECRETARY, THIRUVANVANDOOR GRAMA PANCHAYAT. EXT.R4.O: COPY OF THE CERTIFICATE DTD. 21/11/2008 THUS ISSUED BY THE PRESIDENT, THIRUVANVANDOOR GRAMA PANCHAYAT. EXT.R4.P: COPY OF THE JUDGMENT DTD. 26/11/2008 IN W.P.(C). NO. 32227/08 OF THIS HONOURABLE COURT. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J ------------------- W.P.(C).31770/2008 -------------------- Dated this the 6th day of April, 2009 JUDGMENT Petitioner and three others constitute a partnership. The Firm is running a Factory called 'Thamara Rubbers' within the limit of Thiruvanvandoor Grama Panchayat, the first respondent herein. Ext.P1 licence issued on 18.4.2007, under the provisions of the Dangerous and Offensive Trades and Factories Rules, framed under the Panchayat Raj Act authorizes running of the factory for the licensing period from 1.4.2007 to 31.3.2008. One contention taken up by the petitioner is that the licence was sought for a period of five years and a five year licence fee was also remitted and accepted by the Panchayat. Nevertheless, the licence has been issued only for one year. Reference is made to Ext.P28 being a representation before the Panchayat, to issue licence in the prescribed form for a period of five years. This was met with Ext.P29 issued by the Secretary on W.P.(C).31770/2008 2 24.12.2008, stating that a request for a five year licence can be considered only after the disposal of the present writ petition. I will deal with the said aspect at a later stage. 2. What is of concern to the Panchayat, according to the learned counsel for the Panchayat as also the additional respondents, the neighbouring residents who have got themselves impleaded, is what they call as severe pollution resultant upon the functioning of the factory. Ext.P27 will show that there is a consent issued by the Pollution Control Board. It is currently in operation. There has been a variation of the conditions as well. It is also relevant to refer to the fact that on a earlier occasion, the Chief Environmental Engineer of the Pollution Control Board inspected the premises and reported that there is no pollution by reason of the conduct of the factory. But subsequently, the factory was again inspected and as is evidenced by Ext.R3 (a), the inspection report filed by the Chief Environmental Engineer, (produced along with a W.P.(C).31770/2008 3 memo filed by the counsel for the Pollution Control Board), several drawbacks were observed in the course of the inspection of the factory with particular reference to the functioning of the Effluent treatment Plant. 3. Pursuant thereto, the interim stay granted earlier by this Court against Ext.P16 communication issued by the Panchayat (which had required the factory to stop functioning essentially on the basis of pollution) was vacated. Writ Appeal No.70/2009 was preferred by the petitioner and this resulted in order dated 9.1.2009 wherein the Bench declared that the petitioner can continue to run factory, if the Chief Environmental Engineer certifies that there is no discharge of effluents to the river. To enable the Chief Environmental Engineer to assess the pollution resultant upon the functioning of the factory, by a specific order dated 3.2.2009, the petitioner was allowed to run the factory only for a period of two weeks, with advance notice to the Board. W.P.(C).31770/2008 4 4. It seems that the Board Officers then inspected the factory on 13.2.2009 and 16.2.2009 and going by Annexure-A3 certificate issued by the Chief Environmental Engineer on 19.2.2009, there was no effluent discharge into the nearby river detected during the time of inspection. Annexure-A3 has further certified that the Effluent Treatment Plant and the factory were found to be in operation at the time of inspection and the rectification measures as suggested in the earlier memo, Ext.R3(a), are reported to have been carried out. 5. In these circumstances, learned counsel for the petitioner prays that there is no substance in the continued objection of the Panchayat against the running of the factory. He contends that after all, the main objection was based on the complaint of pollution raised by the neighbouring residents and if absence of pollution has been certified by the Chief Environmental Engineer, then, going by the directions issued by a Bench of this Court, factory W.P.(C).31770/2008 5 must be permitted to continue to function, without there being any hindrance by the Panchayat. 6. Learned counsel for the Panchayat and the learned counsel for the additional respondents oppose this prayer. Reference is also made to the judgment of a Division Bench of this Court, Ext.R4 (p), wherein the Bench of this Court had made it clear that the petitioner will not be entitled to police protection merely on the basis of a certificate issued by the Pollution Control Board and that his remedy, in the event of there being any obstruction on the ground of pollution, is to approach the Civil Court. 7. Having regard to the entirety of the facts stated above, I am of the view that the Panchayat should first pass an order on the petitioner’s application for licence for a period of five years, as sought for in Ext.P28. Apparently orders have been deferred on account of the pendency of this writ petition. I am of the further view that going by the nature of the W.P.(C).31770/2008 6 manufacturing activity carried on in the factory, the Pollution Control Board should conduct an inspection of the functioning of the factory and should monitor the same both for air and water pollution. The neighbouring residents in particular and the general public as such should not suffer by the functioning of the factory and the interests of the public would be paramount in this regard. In the result, writ petition is disposed of with the following directions. (i). First respondent, Panchayat, shall consider Ext.P28 application for renewal/extension of the licensing period, submitted by the petitioner in accordance with law and take a decision thereon, within six weeks from the date of receipt of a copy of this judgment. (ii). If the Panchayat refuses to renew the licence, then, subject to any order that the appellate Tribunal deems fit to grant him in that regard, petitioner shall stop functioning of the factory and shall resume operation only after W.P.(C).31770/2008 7 licence is issued in that behalf. (iii). The Chief Environmental Engineer of the Pollution Control Board shall conduct fresh inspection of the factory premises and ascertain the status of the factory for both air and the water pollution. He shall forward an intimation to the Panchayat specifically affirming whether the continued functioning of the factory results in pollution and also whether the Panchayat should refrain from renewing the licence on account of any pollution that is being caused. His opinion will not be conclusively binding on the Panchayat but shall nevertheless be taken into account. (iv). Any report given by the Chief Environmental Engineer in this regard, shall also include suggestion as to any steps which the petitioner should take to abate pollution and if on completion of the steps, the petitioner requests to the Chief Environmental Engineer to again conduct an inspection and certify absence of pollution, then the Chief Environmental Engineer shall without W.P.(C).31770/2008 8 any delay conduct a re-verification and issue a suitable verification report. (v). Status quo obtaining today shall continue till orders are passed by the Panchayat, as directed above, and further continuation of the factory will be subject to renewal of the licence, if any, as decided by the Panchayat. V.GIRI, Judge mrcs