IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 WP(C).No. 8246 of 2011(E) ------------------------- PETITIONER(S): --------------- 1. SIXTUS LOUIS, S/O.A.LOUIS, LALI BHAVAN, KADAPPAKKADA PO, KOLLAM-691 008. 2. B.OMANAKUTTAN, PANAVILA HOUSE, KOTTANKKARA VILLAGE, KOLLAM. BY ADV. SRI.K.JAJU BABU RESPONDENT(S): --------------- 1. KOTTANKARA GRAMA PANCHAYATH, TKMC PO, KOLLAM-691 005 REPRESENTED BY ITS SECRETARY. 2. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM-695 001. 3. THE TOWN PLANNER, DISTRICT PLANNING UNIT, KOLLAM-691 001. 4. KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY THE ENVIRONMENTAL ENGINEER, DISTRICT OFFICE, KADAPPAKKADA, KOLLAM-691 008. 5. THE DISTRICT MEDICAL OFFICER OF HEALTH, KOLLAM-691 013. 6. THE JOINT DIRECTOR, FACTORIES AND BOILERS DEPARTMENT, KOLLAM-691 001. 7. SRI.A.NAZARUDEEN, A.K.HOUSE, CHATHINAMKULAM, CHANDANATHOPPU PO, KOLLAM-691 014. ADV. SRI.M.K.CHANDRAMOHAN DAS,SC,POLL.C.BOAR FOR R4 SR GP SMT.M.J.RAJASHREE ADV.COMMR. SHEEBA JOSEPH SRI.N.D.PREMACHANDRAN FOR R7 SRI.P.PRATHEESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2011, ALONG WITH W.P.(C).16146/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8246 of 2011 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF PROCEEDINGS DATED 18.9.2006 ISSUED BY THE 3RD RESPONDENT EXT.P2- TRUE COPY OF CONSENT LETTER DATED 4.9.2008 GIVEN BY THE 4TH RESPONDENT EXT.P3- TRUE COPY OF BUILDING PERMIT DATED 30.3.2010 EXT.P4- TRUE COPY OF COMPLAINT SUBMITTED BY THE 1ST PETITIONER AND OTHERS BEFORE THE 1ST RESPONDENT EXT.P4(a)- TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 1ST PETITIONER AND OTHERS BEFORE THE 2ND RESPONDENT EXT.P4(b)- TRUE COPY OF COMPLAINT SUBMITTED BY THE 1ST PETITIONER AND OTHERS BEFORE THE 3RD RESPONDENT EXT.P4(c)- TRUE COPY OF COMPLAINT SUBMITTED BY THE 1ST PETITIONER AND OTHERS BEFORE THE 4TH RESPONDENT EXT.P4(d)- TRUE COPY OF COMPLAINT SUBMITTED BY THE 1ST PETITIONER AND OTHERS BEFORE THE 5TH RESPONDENT EXT.P4(e)- TRUE COPY OF COMPLAINT SUBMITTED BY THE 1ST PETITIONER AND OTHERS BEFORE THE 6TH RESPONDENT EXT.P5- A COPY OF THE NO OBJECTION CERTIFICATE OBTAINED FROM THE NEIGHBOURS EXT.R4(a)- TRUE COPY OF THE CIRCULAR NO.PCB/T4/115/1997 DATED 3.4.2009 EXT.R4(b)- TRUE COPY OF THE NOTICE NO. PCB/KO/NOC/119/05 DATED 31.12.2005 EXT.R7(a)- A COPY OF THE RENEWED PERMIT GRANTED BY THE COMPETENT AUTHORITY DATED 16.2.10 EXT.R7(b)- A COPY OF THE NO OBJECTION CERTIFICATE OBTAINED FROM THE NEIGHBOURS EXT.R7(c)- A COPY OF THE CONSENT OF THE KERALA STATE POLLUTION CONTROL BOARD DATED 6.1.2006 EXT.R7(d)- A COPY OF THE SITE PLAN EXT.R7(e)- A COPY OF THE APPROVAL OF PLAN AND PERMIT DATED 11.12.2006 EXT.R7(f)- A COPY OF THE REVISED PLAN (True copy) P.A. To Judge ANTONY DOMINIC, J .......................................... W.P.(C)s.8246 & 16146/2011 .......................................... Dated this the 26th day of August, 2011 JUDGMENT Issues raised in these writ petitions are connected and therefore, these cases were heard together and are disposed of by this common judgment. 2. First petitioner in W.P.(C).8246/2011 is a Property Developer and the second petitioner is a resident of Kadappakkada. The common grievance of the petitioners is regarding Exts.P1, P2 and P3 issued in favour of the seventh respondent, who is the petitioner in W.P.(C).16146/2011. 3. Ext.P1 is an order issued by the Town Planner approving location of the Cashew Factory proposed to be set up by the seventh respondent in his property in Survey No.78/19 of Kottankara Village in Kollam Taluk. Among the various conditions imposed, one of the conditions is that, sanction from the nearby house owners residing within 100 meters radius must be obtained by the seventh respondent. Ext.P2 is the consent to establish obtained by the seventh respondent for establishing W.P.(C)s.8246 & 16146/11 2 the Cashew Factory and Ext.P3 is a building permit issued in favour of the seventh respondent on 30.3.2010. 4. The main contention raised in this writ petition is that as against the specific requirements in Ext.P1, that the seventh respondent should obtain consent from the residents of 100 meters radius, he has not complied with the same and has not obtained such sanction. It is stated that without obtaining the consent, he approached the Pollution Control Board and the Panchayat and has obtained Ext.P2 consent to establish the Factory and Ext.P3 building permit. 5. In the counter affidavit filed by the seventh respondent, he has denied this allegation of the petitioners and has also produced Ext.R7(b) consent obtained from the neighbours residing within 100 metres radius of his Factory site. Therefore, he contends that there is no substance in the contention raised in the writ petition. 6. In order to ascertain the correctness of the allegation of the W.P.(C)s.8246 & 16146/11 3 petitioners, pursuant to an application made by the petitioners, an Advocate Commissioner was appointed by this Court to ascertain the distance between the site of the Factory and the site of the Housing project developed by the first petitioner and also the stage of construction of the first petitioner's housing project. The Advocate Commissioner was also required to measure the distance between the Factory site and the residence of the second petitioner. Accordingly, a report has been submitted which shows that the project site of the first petitioner is within 100 meters whereas the second petitioner resides about 123 meters away from the Factory site. 7. The petitioner in W.P.(C).16146/2011, who is the seventh respondent in W.P.(C).8246/2011, submits that after having obtained all statutory clearances, he has completed construction of his Factory and has also obtained necessary licences including consent to operate from the Pollution Control Board. It is stated that thereafter, the petitioner made Exts.P10 to P12 applications to the Joint Director of Factories and Boilers, Kollam, the second respondent in W.P.(C).16146/2011 who has also been impleaded W.P.(C)s.8246 & 16146/11 4 as the sixth respondent in W.P.(C).8246/2011 and that orders are not passed on the applications on account of the pendency of W.P.(C).8246/2011. Therefore, directions are sought for granting of licences from the Factories and Boilers Department. 8. As already noticed, the contention in W.P.(C).8246/2011 is that the seventh respondent therein has not complied with the conditions in Ext.P1 by not obtaining consent from the nearby house owners residing within 100 metres radius from the Factory site. Ext.R7(b) has been produced by the seventh respondent which is the consent obtained from persons who, according to him, were residents of the area specified in Ext.P1 at the time when Ext.P1 was issued. Petitioner has not established with any satisfactory material that any person, who was a resident of the area at the relevant time, has not signed Ext.R7(b). No individual has also came and filed any affidavit complaining of this. On his own showing, the first petitioner in W.P.(C).8246/2011 got the building permit enabling him to commence construction work at his project site only on 3.12.2009. Even now, the first petitioner is not residing at the project site. Therefore, even if it is accepted W.P.(C)s.8246 & 16146/11 5 that the first petitioner is not a party to Ext.R7(b) consent, in my view, that will not invalidate the consent obtained by the seventh respondent. Further, if the argument that in view of the conditions of Ext.P1, the seventh respondent was obliged to obtained consent of all subsequent residents of the area, at the time of issuing Ext.P1, is accepted, the seventh respondent will not able to take advantage of Ext.P1 at any point of time. Hence this contention cannot be accepted. Therefore with the available materials, the only view possible is that Ext.R7(b) satisfies the requirements of condition No.2 of Ext.P1 issued by the Town Planner. If that be so, there is no subsistence in W.P.(C). 8246/2011 and the writ petition deserves only to be dismissed. 9. The grievance of the petitioner in W.P.(C).16146/2011 is that, despite having obtained all necessary licences, orders have not been passed by the Joint Director of Factories and Boilers, Kollam on Exts.P10 to P12 applications made by him. It is also the case of the petitioner that further materials evidenced by Exts.P16 to P23 were also produced and that even then, there was no response from the aforesaid Officer. W.P.(C)s.8246 & 16146/11 6 10. As at present, even according to the petitioner herein, the applications are pending and therefore, at this stage, the only order that is to be passed is that the Joint Director of Factories and Boilers, Kollam, should consider Exts.P10 to P12 applications made by the petitioner in the light of the other documents produced by him and orders on the applications shall be passed. This shall be done as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment. In the result W.P.(C).8246/2011 is dismissed and W.P.(C). 16146/2011 is disposed of with the aforesaid direction. ANTONY DOMINIC, Judge mrcs