IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 WP(C).No. 8123 of 2009(I) -------------------------------------- PETITIONER(S): ----------------------- SIVAPRASAD, VATTAMTHITTAYIL HOUSE,VENNALA.P.O.,KOCHI-682028. BY ADV. SRI.P.S.BIJU RESPONDENT(S): -------------------------- 1. CORPORATION OF KOCHI, REP. BY ITS SECRETARY, ERNAKULAM. 2. THE CHIEF ENVIRONMENTAL ENGINEER, POLLUTION CONTROL BOARD,GANDHI NAGAR, KADAVANTHRA.P.O.,KOCHI-682020. 3. THE DISTRICT FOOD INSPECTOR, KAKKANAD, KOCHI-682030. 4. THE JOINT DIRECTOR, FACTORIES AND BOILER DEPARTMENT, CIVIL STATION, KAKKANAD. 5. THE ASST. EXECUTIVE ENGINEER, KERALA WATER AUTHORITY,KALOOR.P.O.,KOCHI-682017. 6. THE ASST. EXECUTIVE ENGINEER, KERALA STATE ELECTRICIYTY BOARD,PALARIVATTOM, KOCHI-682025. 7. THE COMMANDED GENERAL, FIRE AND RESCUE SERVICE, GOVERNMENT OF KERALA, HOUSING BOARD JUNCTION, THIRUVANANTHAPURAM-695001. 8. THE SALES TAX OFFICER, CIRCLE-II, PALARIVATTOM.P.O.,KOCHI-682025 tss W.P.(C)NO.8123/2009 9. AMRITHA RAJU, PROPRIETOR, ARV SWEETS, VATTAMTHITTA COLONY, VENNALA.P.O., KOCHI-682028. *ADDL. R10 & R11 IMPLEADED. 10. ASSISTANT COMMISSIONER OF POLICE (LAW & ORDER), ERNAKULAM. 11. STATION HOUSE OFFICER, PALARIVATTOM POLICE STATION, KOCHI 25. *ADDL. 10TH & 11TH RESPONDENTS AS PER ORDER DTD. 120.6.2010 IN IA.7464/2010. R1 BY ADV. SRI.K.ANAND, SC, COCHIN CORPORATION R6 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B R5 BY ADV. SRI.M.K.CHANDRAMOHAN DAS R9 BY ADVS. SRI.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, SRI.JAGAN GEORGE, SRI.P.G.PRAMOD, SRI.KANDAMPULLY RAHUL. R3,4,7,8,10 & 11 BY BY GOVT. PLEADER SRI.MUHAMMED SHAFI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2011, ALONG WITH WPC. NO.6908/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.8123/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION DTD. 22.12.2008 PREFERRED BY THE PETITIONER TO THE IST RESPONDENT. P2:- COPY OF THE REPRESENTATION DTD. 22.12.2009 PREFERRED BY THE PETITIONER TO THE 2ND RESPONDENT. P3:- COPY OF THE REPRESENTATION DTD. 30.12.2009 PREFERRED BY THE PETITIONER TO THE 3RD RESPONDENT. P4:- COPY OF THE REPRESENTATION DTD. 30.12.2009 PREFERRED BY THE PETITIONER TO THE 4TH RESPONDENT. P5:- COPY OF THE REPRESENTATION DTD. 22.12.2009 PREFERRED BY THE PETITIONER TO THE 5TH RESPONDENT. P6:- COPY OF THE REPRESENTATION DTD. 22.12.2009 PREFERRED BY THE PETITIONER TO THE 6TH RESPONDENT. P7:- COPY OF THE REPRESENTATION DTD. 22.12.2009 PREFERRED BY THE PETITIONER TO THE 7TH RESPONDENT. P8:- COPY OF THE REPRESENTATION DT.D 22.12.009 PREFERRED BY THE PETITIONER TO THE 8TH RESPONDENT. RESPONDENT'S EXHIBITS ANNEXURE R2(a):- COPY OF THE NOTICE DTD. 28.1.2009 ISSUED TO THE 9TH RESPONDENT. R9(a):- COPY OF THE SALE DEED DTD. 8.3.1996 BY WHICH, I PURCHASED THE PROPERTY FROM THE GRAND MOTHER OF THE PETITIONER. R9(b):- COPY OF THE REVISED SPOT BILL DUE TO TARIFF REVISION DT. 4.6.2009 ISSUED TO ME BY THE BOARD. R9(c):- COPY OF THE BILL DTD. 16.6.2009 FOR AN AMOUNT OF RS. 15318/P IMPOSING PENAL CHARGES ON ME, ISSUED BY THE BOARD. R9(d):- COPY OF THE RECEIPT DTD. 11.2.2011, ISSUED BY THE CORPORATION OF COCHIN, COLLECTING D&O LICENCE FEE FOR SWEETS MAKING AND PFA FEE. TRUE COPY P.A. TO JUDGE tss C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)Nos.8123 of 2009 & 6908 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2011 J U D G M E N T The petitioner in the former writ petition is the 3rd respondent in the latter writ petition and the petitioner in the latter writ petition is the 9th respondent in the former writ petition. For the sake of convenience parties and documents are referred to hereafter based on the former writ petition unless otherwise specifically stated. The former writ petition has been filed raising allegations that the 9th respondent is conducting a sweet manufacturing unit without obtaining the requisite licence and permits from the competent authorities in terms of the relevant rules. It is specifically alleged that the 9th respondent has not obtained the consent from the first respondent for establishing and also operating the said unit. When the nuisance and pollution crossed the tolerant limits the petitioner therein raised grievances before the appropriate authorities as is obvious from Exts.P3, P4, P5, P6, P7 and P8. According to him despite the receipt of such WPC.Nos.8123/2009 & 6908/2011 : 2 : representations the authorities did not take appropriate steps to abate the pollution and nuisance. It was in the said circumstances that the petitioner filed this writ petition mainly with a prayer to issue a writ of mandamus commanding the respondents 1 to 8 to conduct adequate enquiries and to take appropriate action against the 9th respondent after affording an opportunity to himself and the 9th respondent. As already noticed hereinbefore, the 9th respondent herein is the petitioner in the latter writ petition. He filed the said writ petition challenging Ext.P1 notice issued by the second respondent, Health Officer attached to the Corporation of Kochi, the first respondent therein. As per Ext.P1 notice issued under Section 440 and 447 of the Kerala Municipality Act(for short 'the Act') 9th respondent viz., the petitioner therein was required to stop the functioning of the said unit. It is stated therein that on account of the ill functioning of the said unit the local residents are experiencing inconvenience and considerable nuisance. It is further stated that he is engaged in the said business without obtaining proper license under the Act. In short, it is taking into account the degree of nuisance and pollution as also the fact that for running the said WPC.Nos.8123/2009 & 6908/2011 : 3 : commercial unit he had not taken proper license that Ext.P1 notice was issued to the 9th respondent. The 9th respondent assails Ext.P1 in the latter writ petition on two grounds. Firstly, it is contended that no license is required for conducting the said sweet manufacturing unit going by the nature of the said business in terms of Section 450 of the Act. Secondly, it is contended that the second respondent is incompetent to issue Ext.P1. I do not propose to consider the first contention raised on account of the admitted fact that during the pendency of the said writ petition, the 9th respondent herein approached the first respondent Corporation and obtained Ext.P3 Dangerous and Offensive Trade License. In view of the said subsequent development the contention regarding the non-requirement of D&O license for the purpose of running the aforesaid business fadeout into insignificances. 2. With respect to the question regarding the incompetency of the second respondent to issue Ext.P1, it is relevant to refer to Section 50(2) of the Municipality Act. Undoubtedly, it empowers the Secretary to delegate any of his power in the manner provided thereunder. Separate counter WPC.Nos.8123/2009 & 6908/2011 : 4 : affidavits have been filed by 4th and 9th respondent(the petitioner in the latter writ petition) and the 2nd and additional 10th respondent have filed separate statements, in the former writ petition. A counter affidavit has been filed by the first respondent Corporation in the latter writ petition. Along with the counter affidavit the first respondent has produced Ext.R1(a). Ext.R1(a) is an order issued by the Secretary of the first respondent Corporation in writing. Obviously, it is issued invoking the power under Section 50(2) and Section 228 of the Kerala Municipality Act. As per Ext.R1(a) certain powers have been delegated to the Health Officer. The contention of the petitioner is that Ext.R1(a) does not speak specifically of delegation of power under Section 440 or 447. Ext.R1(a) reads thus:- “The Corporation Health Officer being the Head of the Department is responsible for the Co-ordination and monitoring of all Health staff coming under him. The Health Officer will be responsible for disallowance objections and irregularities if any raised by the Auditors and will take timely action to clear the objections. He/she shall see that the provisions in the K.M Act 1994 Public Health Act and other relevant Act and rules and order shall be carried out property and speedly. He/she shall inspect all the places during the permitted time and issue necessary directions to the concerned for the proper conduct of business. He/she shall supervise all the works of subordinates under him and report lapses of omission if any to the WPC.Nos.8123/2009 & 6908/2011 : 5 : undersigned. He/she shall be responsible for the solid and liquid waste management. He/she shall attend the duties in respect of Vital Statistics and PFA to the extent that is assigned to Health Officer as per notifications. He/she shall be responsible for the proper use repairs and maintenance of vehicles allotted to him/her from time to time and payment of fuel charges. He/she shall be exercise the various powers incorporated in the K.M.Act and other relevant acts in respect of Health and allied matters in consultation with the undersigned whenever necessary. The Corporation Health Officer is authorized to issue or to refund the license under D&O and P.F.A. He/she will sanction registration of belated Births and Deaths as per rules. The Corporation Health Officer is authorised to act as Registrar of Hindu Marriage Act 1957, in the Kochi Corporation area and to issue certificates to applicants as per rules. He/she is authorised to issue PPR License. He is responsible for the registration of Private Hospitals and Para Medical Institutions.” However, Ext.R1(a) specifically authorises the health officer to exercise various powers under the Kerala Municipality Act and other relevant Act in respect of health and allied matters whenever necessary. As already noticed the specific grievance of the petitioner in the former writ petition is that the functioning of the manufacturing unit belonging to the 9th respondent is causing health problems. In the context of the said contention, it is relevant to refer ground A in the former WPC.Nos.8123/2009 & 6908/2011 : 6 : writ petition. It reads thus:- “Ground A: The constitutional mandate of right to life under Article 21 postulates and ensures a decent living environment and a breach of this by anybody must be visited by harsh sanctions.” As already noticed the petitioner in the former writ petition is having a contention that on account of the ill functioning of the manufacturing unit of the 9th respondent the residents of the locality are being deprived of a decent environment to live in. When such grievances are raised before a competent authority that authority is legally bound to consider the issue and to take appropriate remedial action. In this case, it is evident that as per Ext.R1(a) the Secretary of the first respondent Corporation delegated the powers to take appropriate action in respect of health and allied matters and therefore, the action on the part of the Health Inspector to conduct an enquiry and thereafter, issuing Ext.P1 notice in the latter writ petition cannot be considered as an unauthorised or arbitrary action. So also, it cannot be considered as an action beyond his power especially in the light of Ext.R1(a). At the same time it is evident that Ext.P1 is a notice issued by invoking power under section 440 and 447 of the Act. It is contended by the 9th respondent that WPC.Nos.8123/2009 & 6908/2011 : 7 : even if it is taken the Health Inspector, second respondent in the latter writ petition is competent to invoke the power under section 440 the manner in which he has exercised the said power and issued Ext.P1 calls for interference by this Court. According to the learned counsel for the 9th respondent the second respondent has exceeded the power conferred as per Section 440. Section 440 empowers the competent authority viz., the Secretary only to take such action to call for the concerned party to take appropriate action to abate the nuisance and when that be the power conferred on Secretary, the person who was delegated with that power can only act within the power. In other words, the contention of the 9th respondent is that requiring the petitioner to close down the manufacturing unit is beyond the scope of power under Section 440 of the Municipality Act. I am of the view that there is substance in the said contentions. When a power is delegated to an authority, that authority cannot exercise the power beyond its scope. As already noticed hereinbefore, section 440 empowers the Secretary only to issue such a direction to the persons concerned to abate the nuisance within such time as may be specified in the notice. A perusal of Ext.P1 would WPC.Nos.8123/2009 & 6908/2011 : 8 : reveal that, in fact, the direction issued is to close down the manufacturing unit in the question. Therefore, issuance of Ext.P1 notice by the second respondent Health Officer, by invoking the power under section 440 to the extent it orders closure of the unit cannot be considered as a proper exercise of power under section 440. In fact, it has exceeded the power conferred thereunder. On that ground Ext.P1 is liable to be interfered with. At the same time, it is to be noted that the authority has acted at the instance of the petitioner in the former writ petition and, in fact, it is his relentless effort that made that authority to issue Ext.P1 notice. Therefore, this Court while interfering Ext.P1 notice, is bound to issue appropriate directions to the competent authorities to take appropriate action to abate the pollution or nuisance if any, on account of the functioning of the commercial unit belonging to the 9th respondent. A statement was filed by the Environmental Engineer attached to the Pollution Control Board in the former writ petition as early as on 7.9.2009. According to the 2nd respondent, on inspection conducted on 22.1.2009 it was found that there is smoke pollution problem and accordingly, Ext.R2(a) carrying the instruction to increase the height of WPC.Nos.8123/2009 & 6908/2011 : 9 : Chimney of hearth or to install smokeless hearth and also to cover all sides of kitchen was issued. Further, it is stated therein that inspection held on 16.5.2009 revealed compliance with such instructions by the 9th respondent. The additional 10th respondent has filed a statement in the former writ petition on 6.12.2010. Going by the said statement dated 6.12.2010 on receipt of notice from this Court the additional 10th respondent conducted an inspection of the unit and at that time, it was seen that smoke emulating (sic. emanating) from the unit in such a manner to cause hardship and nuisance to the families residing nearby. In fact, notice was ordered to the additional 10th respondent subsequent to the inspection of the Environmental Engineer of the pollution Control Board reveals smoke pollution on account of the functioning of the unit. In the matter of a complaint regarding pollution it is inevitable to ascertain whether it is true and if so, whether it exceeds the tolerance limits and also the remedial measures to be adopted to abate the same. To ascertain what exactly is the true state of affairs as on today, no material is available before this Court. Taking into account all the above mentioned circumstances, I am inclined to dispose of these writ petitions as here under:- WPC.Nos.8123/2009 & 6908/2011 : 10 : In view of my finding that second respondent in the latter writ petition viz., the Health Officer, exceeded his power in asking the petitioner in the latter writ petition viz., the 9th respondent in the former writ petition to close down the unit and also taking into account the fact that subsequently the 9th respondent has obtained Ext.P3 license it is only appropriate to allow the 9th respondent/petitioner in the latter writ petition to continue to run the manufacturing unit in question. However, the grievance raised by the petitioner in the former writ petition also cannot go unnoticed. In the said circumstances, the Environmental Engineer attached to the Pollution Control Board as also the Health Officer, the second respondent in the latter writ petition shall conduct inspection of the premises wherein the 9th respondent runs the manufacturing unit in question ascertain the degree of nuisance or pollution if any. The contention of the 9th respondent is that earlier, the Environmental Engineer attached to the Pollution Control Board inspected the premises and issued certain directions and the statement filed in the former writ petition would reveal that all such directions have been complied with. While conducting inspection in terms of this judgment the Environmental WPC.Nos.8123/2009 & 6908/2011 : 11 : Engineer attached to the Pollution Control Board has to ascertain whether any further remedial action is to be taken by the 9th respondent for continuing with the functioning of the manufacturing unit. If it is necessary, the said authority shall issue appropriate instructions to the 9th respondent calling him to comply with all such instructions within a specified time. Thereafter, to ensure such instructions issued to the 9th respondent are complied with that authority shall also conduct a further inspection. So also, the Health Officer, the 2nd respondent in the latter writ petition shall also conduct such inspection to the unit and its premises to ascertain whether functioning of the Commercial unit belonging to the 9th respondent causes any health problems to the residents of the locality if it causes such health problems the said respondent shall issue appropriate instructions to abate the same. These writ petitions are disposed of accordingly. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge