IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 WP(C).No. 10792 of 2009(T) -------------------------- PETITIONER(S): --------------- 1. DR.MAMMEN ALEXANDER, AGED 54 YEARS, S/O.ALEXANDER, ARWIN ROSEDALE APARTMENTS, SHIPYARD QUARTERS ROAD, CHERIYA KADAVANTHARA, PANAMPILLY NAGAR, ERNAKULAM, COCHIN 682036. 2. DR.BABU JOHN MATHEWS, AGED 54 YEARS, S/O.JOHN MATHEW, C.C.28/1000, KADAMAN KOVIL, INDIRA NAGAR, KADAVANTHARA, COCHIN 682020. BY ADV. SRI.M.L.SAJEEVAN SRI.M.N.SANJITH RESPONDENT(S): --------------- 1. KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY THE CHIEF ENVIRONMENTAL ENGINEER, REGIONAL OFFICE, GANDHI NAGAR, ERNAKULAM, COCHIN 682020. 2. CHIEF ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, REGIONAL OFFICE, GANDHI NAGAR, ERNAKULAM COCHIN 682020. 3. SANDY JOSEPH, S/O.AMBOOKAN KOCHU OUSEP, AMBOOKEN HOUSE, 27/1567, CHERIYA KADAVANTHRA PANAMPILLY NAGAR, ERNAKULAM, COCHIN 682036. 4. CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, CORPORATION OF COCHIN, ERNAKULAM. 5. TOWN PLANNING OFFICER, TOWN PLANNING DEPARTMENT, CORPORATION OF COCHIN. 6. PODUVAL INDUSTRIES, M.G.ROAD, ERNAKULAM, COCHIN 682035, REPRESENTED BY ITS MANAGING PARTNER,PODUVAL INDUSTRIES, M.G.ROAD, ERNAKULAM, COCHIN 682035. ADV. SRI.PREMJIT NAGENDRAN FOR R6 SRI.ABRAHAM K.JOHN FOR R3 SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2011, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: W.P.C.NO. 10792/2009. ------------------------------------------------------------------- EXT.P1 TRUE COPY OF CONSENT GIVEN BY POLLUTION CONTROL BOARD DT. 16.11.2007. EXT.P2 PRINT OUT FROM THE WEBSITE OF CENTRAL CONTROL BOARD. EXT.P3 OCCUPANCY CERTIFICATE ISSUED BY CORPORATION OF COCHIN DT. 10.12.2007. EXT.P4 SANCTION ORDER NO. T 1 9260/2006 DT. 30.5.2008 SANCTIONING ENERGISATION OF THE D.G SET ISSUED BY THE ELECTRICAL INSPECTOR. EXT.P5 PETITION FILED BY R3 BEFORE OMBUDSMAN AS O.P.467/2008. EXT.P6 ORDER PASSED BY THE OMBUDSMAN IN O.P.NO. 467/2008 DT. 17.7.2008. EXT.P7 COUNTER AFFIDAVIT FILED BY 1ST PETITIONER IN O.P.467/2008 EXT.P8 ORDER OF THE CHIEF ENVIRONMENTAL ENGINEER DT. 5.8.2008. EXT.P9 REPLY ISSUED BY 1ST PETITIONER TO CHIEF ENVIRONMENTAL ENGINEER DT. 19.8.2008. EXT.P10 REPORT FILED BY CHIEF ENVIRONMENTAL ENGINEER BEFORE OMBUDSMAN. EXT.P11 STATEMENT FILED BY R1 IN W.P.C. 29145/08 DT. 23.10.2008. EXT.P11(a) DO. DO. DT. 28.10.2008. EXT.P12 JUDGMENT IN W.P.C.NO.29145/2008 DT. 29.10.2008. EXT.P13 ORDER DT. 3.3.2008 ISSUED BY CORPORATION OF KOCHI. EXT.P14 ORDER PASSED BY OMBUDSMAN IN O.P.NO.467/2008 DT. 6.3.2009. RESPONDENTS EXHIBITS: EXT.R3(a) TRUE COPY OF COMPLAINT DT. 25.10.07 SUBMITTED BEFORE R.D.O., FORT KOCHI. EXT.R3(b) COMPLAINT DT. 2.2.08 FILED BEFORE SECRETARY, HEALTH DEPARTMENT, CORPORATION OF KOCHI. EXT.R3(c) COMPLAINT DT. 10.4.08 FILED BEFORE PUBLIC GRIEVANCE REDRESSEL CELL OF THE CHIEF MINISTER. EXT.R3(d) REPLY DT. 30.6.08 ALONG WITH REPORT DT. 12.5.08 OF R4. EXT.R3(e) NOTICE DT. 23.7.08 ISSUED BY R4. EXT.R3(f) LETTER DT. 13.5.09 ISSUED BY ASST. ENGINEER, POLLUTION CONTROL BOARD. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 10792 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 1st day of April, 2011. J U D G M E N T The petitioners are medical practitioners. The 2nd petitioner and 16 other persons, most of whom are also medical practitioners, have together constructed a multi-storeyed residential apartment building named “Arwin Rosedale Apartments” in the plot comprised in Survey Nos. 908/7 and 909/11 of Elamkulam village. There are 8 floors in the building and 17 apartments. The 1st petitioner is acting as the agent and power holder of the owners of the flat. For the purpose of providing alternate electricity supply, when there is power failure, the petitioners have installed a diesel generator set for operating the lift provided for the building and for other emergency purposes. The 3rd respondent raised objections in respect thereof on the ground that the diesel generator causes sound pollution. He filed a complaint before the Ombudsman for Local Self Government Institutions, who issued orders prohibiting the operation of the diesel generator. The petitioners have challenged that order of the Ombudsman before this Court which ended in Ext. P12 judgment, whereby, this Court permitted operation of the diesel generator on condition that the petitioners enclose the same within masonry walls constructed as per the design of the Pollution Control Board, so as to reduce the noise pollution and directed the Ombudsman to consider the jurisdiction of the Ombudsman in the matter. For construction of the said masonry wall, the petitioners prepared a plan and obtained reports from the Pollution Control Board along with Ext. P12 judgment for submitting the same before the 4th respondent Corporation of Cochin for approval. Since the Corporation did not issue any orders on the same, the petitioners constructed the masonry W.P(C) No. 10792 of 2009 -: 2 :- walls. But, thereafter, the Corporation issued Ext. P13 order stating that they cannot approve the construction since the set back of 30 cms. is not sufficient as per the building rules, insofar as minimum 1 meter is mandatory. According to the petitioners, Section 409 of the Kerala Municipality Act exempts plant houses, sheds etc., from application of Chapter XVIII of the Act including Kerala Building Rules. But, the Corporation served Ext. P13 order on the petitioners on 5.3.2009, refusing permission for the construction, which, according to the petitioners, was without considering the directions of the Pollution Control Board and that of this Court in Ext. P12 judgment. They would further submit that the petitioners were also not heard in the matter. That order was issued on 5.3.2009. Immediately on the next day, namely, 6.3.2009, the Ombudsman issued orders prohibiting operation of the generator set and directed to re-locate it. It is under the above circumstances, the petitioners have filed this writ petition seeking the following relief: “Issue a writ of certiorari calling for the records leading to Exts. P13 and P14 orders and quash the same.” 2. At the time of admission, this Court has passed an interim order staying Exts.P13 and P14. 3. The 3rd respondent has filed a counter affidavit. He stoutly opposes the prayer in the writ petition. According to him, he is greatly inconvenienced by the noise emanating from the diesel generator, which causes sound pollution. He would submit that there is another room available in the apartment W.P(C) No. 10792 of 2009 -: 3 :- complex to re-locate the diesel generator and the petitioners should be directed to re-locate the same there till the Corporation grants permission. He further points out that the present location, although it is covered by masonry walls on four sides, is not covered on the top and therefore there is no mitigation of the sound pollution caused from the generator as such. 3. I have considered the rival contentions in detail. 4. I am of opinion that just like the 3rd respondent, the petitioners are also entitled to their own legal rights under the Kerala Municipality Act. Action against an alleged illegal construction has to be taken in accordance with law prescribed in the Kerala Municipality Act. Section 406 prescribes first issue of a provisional order, then a hearing to the petitioners on the same and passing a final order regarding the same. The counsel for the Corporation has not chosen to be present to controvert the contentions of the petitioners. They have also not filed any counter affidavit. Therefore, the averment of the petitioners that the procedure prescribed under Section 406 of the Kerala Municipality Act has not been complied with remains undisputed. In the above circumstances, this writ petition is disposed of with the following directions: Exts.P13 and P14 are quashed. The 4th respondent is directed to re-consider the issue by issuing a provisional order under Section 406, giving an opportunity to the petitioners to file objections and hearing the petitioners on the same before passing final orders in the matter. In the meantime, the W.P(C) No. 10792 of 2009 -: 4 :- petitioners can continue to operate the diesel generator as such, but after providing a temporary roof for the masonry walls constructed enclosing the generator, so that the sound emanating therefrom can be minimised as far as possible. But, I direct the Corporation to insisted on a concrete roof also for the masonry walls enclosing the diesel generator set, so that the sound emanating from the diesel generator can be minimised to the extent possible. It would also be open to the Pollution Control Board to monitor the sound level of the generator to ensure that the same is within the parameters prescribed by law. Sd/- S. Siri Jagan, Judge. Tds/