IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 WP(C).No. 29145 of 2008(T) -------------------------- PETITIONERS: 1. DR.MAMMEN ALEXANDER, AGED 54 YEARS, S/O ALEXANDER, ARWIN ROSEDALE APARTMENTS, SHIPYARD QUARTERS ROAD, CHERIYA KADAVANTHARA, PANAMPILLY NAGER, ERNAKULAM COCHI 682 036. 2. DR. BABU JOHN MATHEWS, AGED 54 YEARS, S/O JOHN MATHEW, C.C. 28/1000, KADAMAN KOVIL, INDIRA NAGER, KADAVANTHARA, COCHI 682 020 BY ADV. SRI.M.L.SAJEEVAN SRI.M.N.SANJITH SRI.JAISON JOSEPH RESPONDENTS: 1. KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY THE CHIEF ENVIRONMENTAL ENGINEER, REGIONAL OFICE, GANDHI NAGER, ERNAKULAM, COCHIN 682 020. 2. CHIEF ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, REGIONAL OFICE, GANDHI NAGER, ERNAKULAM, COCHIN 682 020. 3. SANDY JOSEPH, AGED S/O AMBOOKAN KOCHU OUSEP, AMBOOKEN HOUSE 27/1567, CHERIYA KADAVANTHARA PANAMPILLY NAGER, ERNAKULAM, COCHIN 682 036. BY GOVT. PLEADER SRI.P.N. SANTHOSH ADV. SRI.P.FAZIL FOR R3 SMT.JAYASREE MANOJ FOR R3 SMT.ANALAKHUSI BHASKAR FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.29145 of 2008 -------------------------- Dated this the 29th October, 2008 J U D G M E N T Petitioners are medical practitioners. They along with 16 other persons constructed a multi storied residential building in Elamkulam village. Third respondent resides in a property adjacent to the building put up by the petitioners along with others. Petitioners installed a DG set. The DG set has been placed in a separate room constructed by the petitioners. It seems that operation of the DG set resulted in noise pollution. Certain other objections were also raised by the 3rd respondent in this regard. What will have to be noticed at this juncture is the fact that the 3rd respondent filed OP. No.467 of 2008 before the Ombudsman for Local Self Government Institutions, as evidenced by Exhibit P5. Exhibit P6 order was passed by the Ombudsman inter alia requiring the petitioners herein not to operate the generator until further orders. Petitioners appeared before the Ombudsman and filed objections. It seems that W.P ( C) No.29145 of 2008 2 the objections as such are yet to be looked into by the Ombudsman. In the meanwhile, taking note of the direction issued by the Ombudsman, the Chief Environmental Engineer of the Pollution Control Board issued Exhibit P8 inter alia requiring the petitioners to place the DG set at a minimum distance of 3.9 meters away from the nearest residence. Apparently, this fact was again reported by the petitioners to the Ombudsman. But nevertheless restraint on the operation of the Generator was not lifted and hence the writ petition inter alia challenging the jurisdiction of the Ombudsman to adjudicate on the dispute relating to the operation of the Generator. This court passed an interim order on 15.10.2008 to the following effect. “The 2nd respondent shall either inspect or cause an inspection of Arwin Rosedale Apartments to be made and verify whether the directions issued by the officials of the Pollution Control Board in the matter of placing of the generator have been complied with by the residents of the apartments . A report shall be filed on or before 21.10.2008. Notice in this regard shall be issued to the representative of the residents association and 3rd respondent. A copy of this order shall be produced by the petitioner before the 2nd respondent directly. W.P ( C) No.29145 of 2008 3 Post on 22.10.2008. Counter affidavit by 3rd respondent in the meanwhile. 2. Pursuant to the interim order passed by this Court, a report was filed by the Chief Environmental Engineer. Paragraph 2 of the said statement reads as follows. It is observed that the alleged D.G Set has been shifted towards the apartment side at distance of 3.2m away from the IIIrd respondent's house. The minimum set back to be provided for a 40 KVA D.G set is found adequate, but the sound level recorded at the 3rd respondent's house was above the permissible limit (The permissible limit at 1 meter away from the boundary is 55 dBA. The recorded level was 6.2.8 dBA). 3. It has to be noted that petitioners have accepted and assured that DG set will be enclosed in a room having the dimensions mentioned in paragraph 3. Steps will be taken in this regard, at the earliest. Submission is recorded. 4. Subsequently, an additional statement has been filed by the Chief Environmental Engineer clarifying certain aspects. It is now reported that the noise level recorded at a distance of one meter from the boundary of the W.P ( C) No.29145 of 2008 4 petitioner's apartment premises was 62.8 dB(A) as against the desired level of 55 dB(A). 5. Taking note of the fact that petitioners seem to be taking earnest steps to comply with the directions issued by the competent authority of the Pollution Control Board and taking note of the report and additional statement filed by the Chief Environmental Engineer, I am of the view that petitioners should be permitted to operate the Generator subject to monitoring by the Chief Environmental Engineer. In so far as the adjudication pending before the Ombudsman as such, it is up to the petitioners to raise their objections on the complaint lodged by the 3rd respondent in that regard and I am certain that the Hon'ble Ombudsman shall take note of the objections including the objections as regards jurisdiction and take appropriate action in this regard. Subject to the above, the writ petition is disposed of. (V.GIRI,JUDGE) ma W.P ( C) No.29145 of 2008 5 W.P ( C) No.29145 of 2008 6