IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 WP(C).No. 14064 of 2011(G) -------------------------------------- PETITIONER: ------------------- P. RAVEENDRAN, PROPRIETOR, WATERLINE PIPES, MULLURKARA, IRUNILAMKODE.P.O, THALAPILLY TALUK, THRISSUR. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENTS: ------------------------ 1. THE KERALA STATE POLLUTION CONTROL BOARD, REP. BY ITS SECRETARY, HEAD OFFICE, PATTOM, THIRUVANANTHAPURAM - 695 004. 2. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, POONKUNNAM.P.O, THRISSUR - 680 001. R1 & R2 BY SRI.M.K.CHANDRAMOHAN DAS,S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14064/2011-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE S.S.I REGISTRATION ACKNOWLEGMENT ISSUED BY THE INDUSTRIES DEPARTMENT. EXT.P.2: COPY OF THE CONSENT ISSUED BY THE RESPONDENT. EXT.P.3: COPY OF THE LETTER ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P.4: COPY OF THE NOTICE ISSUED BY THE R.2. EXT.P.5: COPY OF THE REPLY DTD. 27/01/2010 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.6: COPY OF THE ORDER DTD. 02/03/2010 ISSUED BY THE RESPONDENT. EXT.P.7: COPY OF THE JUDGMENT IN W.P.(C).NO.6755/210 PASSED BY THIS COURT. EXT.P.8: COPY OF THE AFFIDAVIT SUBMITTED BY THE R.2. BEFORE THE APPELLATE TRIBUNAL. EXT.P.9: COPY OF THE RODER PASSED BY THE APPELLATE TRIBUNAL IN APPEAL NO. 2/2010 DTD. 17/12/2010. EXT.P.10: COPY OF THE NOTICE ISSUED BY THE R.2. EXT.P.11: COPY OF THE LETTER SUBMITTED BEFORE THE RESPONDENT BY THE PETITIONER. EXT.P.12: COPY OF THE NOTICE ISSUED BY THE R.2. EXT.P.13: COPY OF THE NO OBJECTION ISSUED BY THE LOCAL PERSONS TO THE PETITIONER. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE CONSENT TO ESTABLISH WAS UPTO 25/12/2008. EXT.R2.B: COPY OF THE COMPLAINT DTD. 19/06/2009. EXT.R2.C: COPY OF THE COMPLAINT DTD. 01/10/2009. EXT.R2.D: COPY OF THE COMPLAINT DTD. 23/10/2009. W.P.(C). NO.14064/2011-G: EXT.R2.E: COPY OF THE COMPLAINT DTD. 30/04/2010. EXT.R2.F: COPY OF THE SHOW CAUSE NOTICE BEING NO.PCB/TSR/IC/1768/2010 DTD. 02/10/2010. EXT.R2.G: COPY OF THE AFFIDAVIT FILED ON 01/11/2010 BEFORE THE APPELLATE AUTHORITY BY THE POLLUTION CONTROL BOARD. EXT.R2.H: COPY OF THE COMPLAINT DULY FORWARDED BY THE COLLECTOR, DTD. 04/02/11. EXT.R2.I: COPY OF THE COMPLAINT BY 14 PERSONS RECEIVED ON 18/02/2011. EXT.R2.J: COPY OF THE NOTICE NO. PCB/TSR/IC/1768/10 ON 19/02/2011 TO THE PETITIONER. EXT.R2.K: COPY OF THE LETTER DTD. 28/02/2011 RECEIVED FROM THE PETITIONER IN REPLY TO EXT.R2.J. EXT.R2.L: COPY OF THE REPLY LETTER SENT BY THE PETITIONER ON 04/05/2011. EXT.R2.M: COPY OF THE STATEMENT ON 12/04/2011. EXT.R2.N: COPY OF THE LETTER NO. B2-4562/20 DTD. 27/04/2011. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. ---------------------------------------------------- W.P.(C) No. 14064 OF 2011 ----------------------------------------------------- Dated this the 6th day of July, 2011 J U D G M E N T Petitioner is the proprietor of a small scale industrial unit engaged in the manufacture of PVC pipes. 2. Petitioner made an application before the respondent for issuance of 'Consent to Establish' of the said unit. Thereupon Ext.P2 consent to establish was issued and the unit was set up. Thereafter the petitioner made an application for the issuance of a 'Consent to Operate'. On receipt of the application, 2nd respondent issued Ext.P3 notice calling upon the petitioner to furnish the details mentioned there. Details were furnished and again Ext.P4 notice was issued stating that on inspection, inadequacies mentioned therein were noticed and the petitioner was called upon to show cause why the consent applied for shall not be refused. W.P.(C) No. 14064 OF 2011 :2 : 3. Petitioner filed Ext.P5 reply contending that the inadequacies mentioned in Ext.P4 were rectified. However by Ext.P6 order, 'Consent to Operate' was rejected. Challenging Ext.P6 order the petitioner approached this court by filing WPC 6755/10 and obtained an order of status quo enabling him to function the industrial unit. During the pendency of the writ petition, petitioner filed a statutory appeal before the Appellate Authority which was numbered as 2/10. In the appeal, the 2nd respondent filed Ext.P8 affidavit dated 1st November, 2010, pointing out the inadequacies that were noticed on inspection of the unit and stating thus; “As the appellant has satisfactorily implemented the necessary pollution control measures, action is being taken for issuing consent to operate to the unit.” W.P.(C) No. 14064 OF 2011 :3 : 4. In the meanwhile WPC 6755/10 was disposed of by Ext.P7 judgment directing disposal of the statutory appeal and to maintain status quo in the meanwhile. Subsequently the appeal filed by the petitioner was disposed of by Ext.P9 order dated 17th December, 2010, recording the undertaking of the 2nd respondent that action is being taken to issue Consent to Operate' the unit. The appellate order reads as follows. “The respondent(Pollution Control Board) has filed an affidavit stating that all the directions and conditions have been complied with and that Pollution Control Board is taking action for granting consent. The appellant states that in view of the affidavit, the appeal can be disposed of directing the Pollution Control Board to grant consent. Considering the affidavit filed by the Pollution Control Board and also their statement that action is being W.P.(C) No. 14064 OF 2011 :4 : taken to grant consent, the said fact is received and this appeal is disposed of accordingly.” 5. Instead of complying with the undertaking contained in Ext.P8 which is incorporated in Ext.P9 order of the Appellate Authority, 2nd respondent again issued Ext.P10 notice calling upon the petitioner to implement the additional measures mentioned therein, which were neither mentioned in Ext.P4 notice nor in any communication issued prior to Ext.P9 order in the appeal. In Ext.P11 reply the petitioner submitted that the measures have already been implemented. Thereafter again the 2nd respondent issued Ext.P12 notice stating that on inspection held on 9.3.2011 he observed that, “1. The operation of the grinder used for crushing waster plastic lump generating immense noise 2. The wooden enclosure provided W.P.(C) No. 14064 OF 2011 :5 : for the grinder is inadequate to contain the noise generated. 3. The unused well in the front of the unit is seen filled with plastic and other solid waste from the unit.” 6. On that basis the following directions were issued. “1. Stop the operation of the grinder. 2. No recycling activity shall be done in the unit. 3. Remove all the waste plastic materials dumped in the well in front of the unit and disposed it off properly within 30 days.” 7. It is on receipt of Ext.P12 this writ petition has been filed. The contention of the petitioner is that Exts.P10 and P12 notices have been issued only to harass him and to avoid issuance of 'Consent to Operate' which W.P.(C) No. 14064 OF 2011 :6 : he is legitimately entitled to. It is contended that in view of Ext.P8 affidavit and Ext.P9 order of the Appellate Authority, the 2nd respondent has no option but to issue the 'Consent to Operate' order. 8. On the other hand, the stand taken, in the counter affidavit filed by the respondents, is that various complaints were received, inspection was conducted and that on finding the inadequacies, Exts.P10 and P12 notices were issued. In so far as Ext.P8 affidavit is concerned it is stated that the statement therein was made acting upon Ext.R2(g) undertaking given by the petitioner that inadequacies mentioned in Ext.P4 would be rectified. 9. I am unable to countenance the stand taken by the respondents. In Ext.P8 affidavit, in categoric terms the 2nd respondent stated that the petitioner has implemented necessary pollution control measures and W.P.(C) No. 14064 OF 2011 :7 : that action is being taken for issuing 'Consent to Operate' to the unit. The affidavit does not contain anything to find that such an averment was made based on any undertaking given by the petitioner. Based on such affidavit the Appellate Authority passed Ext.P9 order. Once the Appellate Authority has passed Ext.P9 order the 2nd respondent, the authority subordinate to the Appellate Authority, is bound to give effect to the Appellate order. On the other hand, by issuing Exts.P10 and P12 virtually the 2nd respondent has flouted and nullified the orders of the Appellate Authority. Such an attitude of the subordinate authority, is intolerable and in fact calls for action against the 2nd respondent. 10. I am also not impressed by the contention of the counsel for the respondents that since the petitioner did not comply with the measures suggested by them prior to the filing of the affidavit, they could not implement Ext.P9 W.P.(C) No. 14064 OF 2011 :8 : order of the Appellate Authority. The only communication issued by the 2nd respondent prior to Ext.P9 order, suggesting to rectify the inadequacies is Ext.P4. Ext.P4 contains six inadequacies. Neither in Ext.P10 nor in Ext.P12, has the 2nd respondent a case that any of those inadequacies mentioned in Ext.P4 are remaining to be rectified. On the other hand, a reading of Exts.P10 and P12 would show that after the Appellate Authority passed Ext.P9 order, fresh inadequacies are invented. From the conduct of the 2nd respondent I am fairly clear in my mind that the endeavour is to overreach Exts.P8 and P9, which is clearly impermissible. As I have already stated, necessarily, these types of attitudes, calls for appropriate action and I leave it open to the first respondent to bestow his attention to the case in hand and to deal with the matter properly. W.P.(C) No. 14064 OF 2011 :9 : 11. Be that as it may, in the reply affidavit, petitioner has even expressed his willingness to comply with the terms of Ext.P12. Taking note of the concession made by the petitioner, it is directed that it will be open to the petitioner to rectify those defects and intimate the 2nd respondent and the 2nd respondent thereupon shall immediately conduct an inspection of the factory. On such inspection, if the inadequacies are found rectified, the 2nd respondent will forthwith issue 'Consent to Operate' to the petitioner's unit. The Writ petition is disposed of as above. Sd/- ANTONY DOMINIC, JUDGE ul/- [true copy] P.S. to Judge