IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 5359 of 2009(L) ------------------------------------- PETITIONER: ------------------- PRAKASH.R,KIZHAKKEDATH HOUSE, GOVINDAMUTTOM, KAYAMKULAM. BY ADV. MR.S.CHANDRASENAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY DIST.COLLECTOR, ALLEPPEY DISTRICT,ALLEPPEY. 2. DEVIKULANGARA PANCHAYAT, REP.BY SECRETARY, DEVIKULANGARA, PUTHUPPALLY,KAYAMKULAM. 3. STATE POLLUTION CONTROL BOARD, REP. BY ENVIRONMENTAL ENGINEER, ALLEPPEY. 4. DISTRICT MEDICAL OFFICER, ALLEPPEY. 5. THANKACHAN, CHAKKALATHARAYAYIL, GOVINDAMUTTOM.P.O,PUTHUPPALLY,DEVIKULANGARA, KAYAMKULAM, ALLAPPUZHA. R1 & R4 BY GOVT. PLEADER MR. V. MANU, R2 BY MR.S.SHANAVAS KHAN, S.C, R3 BY .M.K.CHANDRA MOHANDAS,S.C, R5 BY ADV. MR.S.MOHANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5359/2009-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION GIVEN BY THE R.5. TO THE PANCHAYAT. EXT.P.2: COPY OF THE LICENCE DT. 15/05/2008. EXT.P.3: COPY OF THE MASS REPRESENTATION DT. 11/08/2008. EXT.P.4: COPY OF THE REPRESENTATION COMPLAINT DT. 21/08/2008. EXT.P.5: COPY OF THE RELEVANT PAGES OF THE APPLICATION FOR SANCTION TO OPERATE GIVEN BEFORE THE R.3. EXT.P.6: COPY OF THE CONSENT TO OPERATE ISSUED ON 17/09/2008 ISSUED BY THE R.2. EXT.P.7: COPY OF THE LETTER TO THE PUBLIC INFORMATION OFFICER, ELECTRICAL SECTION, KRISHNAPURAM DT. 04/12/2008. EXT.P.8: COPY OF THE STOP MEMO DT. 25/10/2008. EXT.P.9: COPY OF THE LETTER DT. 06/11/2008. EXT.P.10: COPY OF THE PETITION FILED BEFORE THE DISTRICT COLLECTOR DT. 29/01/2009. EXT.P.11: COPY OF THE COVERING LETTER DT. 02/02/2009. EXT.P.11.A: COPY OF THE ENQUIRY REPORT. EXT.P.12: COPY OF THE CATEGORISATION OF INDUSTRIES FOR CONSENT MANAGEMENT. EXT.P.13: COPY OF THE NOTICE DT. 20/04/2009 ISSUED BY THE R.2. EXT.P.14: COPY OF THE ORDER NO. D387/08 DT. 15/06/2009 ISSUED BY THE R.2. EXT.P.15: COPY OF THE LETTER FROM PANCHAYAT DTD. 22/08/2009. EXT.P.16: COPY OF THE PHOTOGRAPHS TAKEN ON 12/08/2009 AND 12/09/2009. RESPONDENTS' ANNEXURE: ANNEXURE R3.A: COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE CONSTITUTED FOR CATEGORIZATION DTD. 07/07/2003. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.5359/2009-L & I.A.13739/2009 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of November, 2009. JUDGMENT 1.The captioned I.A. is filed by the fifth respondent, who is hereinafter referred to as the "operator". He commenced a hollow brick manufacturing unit. The PCB treated it as an establishment which would fall within the green category. The reason for this, going by the PCB's statement, is that the DIC has classified such units as micro units. The operator was prevented by an interlocutory order in this writ petition from carrying on any activity employing motor more than 1.5 HP. That interim order stands as of now and it is also stated that the parties are facing certain proceedings under the Contempt of Courts Act. The status, as of now, is that the Panchayat has recalled the licence issued by it. While the PCB stands to say that the unit is a micro unit, going by the PCB's statement, the operator himself admits that the unit has an 8 HP WPC5359/09 & IA13739/09 -: 2 :- motor. In fact, he wants this Court to issue an order to the PCB to verify the pollution level by operating the 8 HP motor. This is the relief sought for by him in I.A.13739/09. Therefore, it goes without saying that as of now, the operator utilises or intends to utilise machinery with 8 HP. As of now, he cannot run the unit because the Panchayat has recalled the licence and he does not have the permit obtained from the PCB to run the unit on the basis of any clearance granted based on the power of the motors put to use. Though the classification made by the PCB as per Annexure-R3(a) to the Statement filed by the third respondent would show that cement and concrete products (where crusher is not used) falls under the green category industries. It also needs to be noticed that the use of crusher does not necessarily depend upon the utility of machinery with high power in the establishment. When the operator himself stands to say that he wants to employ machinery of 8 HP, he cannot have the activity done except with the clearance of WPC5359/09 & IA13739/09 -: 3 :- the DIC and the PCB looking into the matter taking that the operator would employ machinery of 8 HP. 2.Under the aforesaid circumstances, this writ petition is only to be allowed ordering that the operator shall not be permitted to carry on any activity using any machinery beyond 1.5 HP but he shall be at liberty to move appropriate authorities for sanction in accordance with law, for activity which he may need to carry out in excess of 1.5 HP. It is ordered accordingly. Based on such clearance, the Panchayat would consider the operator's application for permit in accordance with law and after hearing the necessary parties. All other issues left open. In view of what is stated above, I.A. will stand dismissed. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/2411