IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 32460 of 2003(L) -------------------------- PETITIONER(S): ------------------ M/S.MATHA MATCH INDUSTRIES, NEAR KOCHUPALLY, PIRAVOM, ERNAKULAM DISTRICT REPRESENTED BY ITS MANAGING PARTNER, SRI.C.M.JOSE, AGED 52 YEARS, S/O. LATE MATHEW. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE RESPONDENT(S): ------------------- 1. THE CHIEF ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, GANDHI NAGAR, COCHIN-20. 2. K.M.GEORGE KARULLIL HOUSE, PIRAVOM P.O., ERNAKULAM DISTRICT. 3. THE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, RAMAMANGALAM, ERNAKULAAM DISTRICT. ADV. SRI.SAJEEV KUMAR K.GOPAL FOR R2 SRI.K.N.SWAMIDASAN FOR R2 SMT.K.K.THULASY BHAI,SC,POLLUTION C.BOA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.32460/03 APPENDIX PETITIONER'S EXHIBITS EXT.P1: PHOTOCOPY OF THE LETTER DATED 2/6/2003 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P2: PHOTOCOPY OF THE LETTER DATED 26/6/2003 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P3: PHOTOCPY OF THE LETTER DT 10.7.2003 SENT BY THE PETITIOENR TOT HE 1ST RESPONDENT. EXT.P4: PHOTOCOPY OF THE LETTER DT 30.6.2003 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P5: PHOTOCOPY OF THE LETTER DT 14.7.2003 SENT BY THE PETTIONER to THE 1ST RESPONDENT. EXT.P6: PHOTOCOPY OF THE SHOW CAUSE NOTICE DT 24.7.2003 ISSUED BY THE 1ST RESPONDENT. EXT.P7: PHOTOCOPY OF THE LETTER DT 1.8.2003 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P8: PHOTOCOPY OF THE LETTER DT 29.8.2003 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P9: PHOTOCOPY OF THE LETTER DT 11.9.2003 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P10: PHOTOCOPY OF THE LETTER DT 26.9.2003 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P11: PHOTOCOPY OF THE LETTER DT 17.9.2003 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P12: PHOTOCOPY OF THE CIRCULAR NO.PCB/GEN/C/1/2002 DT 25.6.2003 ISSUED BY THE 1ST RESPONDENT. EXT.P13: PHOTOCOPY OF THE LETTER DT 25.6.2003 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. EXTS.OF R1 ANNEXURE R1(a): TRUE COPY OF THE CIRCULAR NO.PCB/GEN/C/1/2002 DT 25/6/2003 ISSUED BY THE BOARD. WPC NO.32460/03 -2- ANNEXURE R1(b): TRUE COPY OF THE PROCEEDING NO.PCB/CHN/GEN/AE2/2003 DT 29.8.2003 ISSUED BY THE BOARD. ANNEXURE R1(c): TRUE COPY OF THE LETTER NO.PCB/CHN/GEN/AE2/2003 DT 26.9.2003 ISSUED BY THE BOARD. //TRUE COPY// P.S. TO JUDGE ANTONY DOMINIC,J. --------------------- W.P.(C).No.32460 OF 2003 ------------------------ Dated this the 5th day of June, 2009. JUDGMENT Challenge in this writ petition is against Exts.P8 and P10 and the petitioner seeks a declaration that the petitioner's establishment do not come within the purview of the Air(Prevention and Control of Pollution)Act 1981, as is outside the definition of “Industrial Plant”. A further direction to the first respondent to reconsider the coverage of the petitioner's factory under the purview of the Act is also sought for. 2. Petitioner submits that it is manufacturing match sticks which are being supplied to the match factories. According to the petitioner, the unit has been functioning since 1978 without any complaint from any corner. It is seen that the petitioner was issued Ext.P1 letter directing him to inform whether they are using sulpher in the WP(c).No.32460/03 2 factory. Reply was given and finally Ext.P6 show cause notice was issued. On its receipt petitioner gave Ext.P7 reply disputing its liability to comply with the requirements of Air Act and also sought for an opportunity of hearing to explain his contentions. The objections raised by the petitioner disputing coverage of the Act were rejected and by the impugned proceedings, the petitioner was asked to apply for consent and also to increase the height of the Chimney. It is in these circumstances the writ petition is filed with the aforesaid prayers. 3. As already noticed, it is the case of the petitioner that their unit has been functioning since 1978 and that it is not an industrial plant as defined in Section 2K of the Air Act, due to absence of air pollutants. It was raising this contention that the petitioner filed his reply to the show cause notice. Petitioner wanted to substantiate his contentions and therefore he sought an opportunity of hearing. However, it was denied by the respondents for the reason that consequent on the notification issued by the Government of Kerala, entire industries in the State have been brought within the coverage WP(c).No.32460/03 3 of the Air Act and therefore it was not necessary to give an opportunity of hearing. 4. Having considered the justification thus offered by the respondents I must confess my inability to accept the same. As already stated, it is the case of the petitioner that his establishment is not an industrial plant due to absence of air pollutants. If it is factually correct, his industry will be outside the purview of the Act. When the petitioner wanted to substantiate this contention and sought an opportunity of hearing, the first respondent should certainly have given that opportunity to the petitioner. Having not done so, I am inclined to hold that, Exts.P8 and P10 orders impugned in this writ petition are passed for violation of the principles of natural justice. For that reason and without expressing anything on merits, Exts.P8 and P10 are set aside and the first respondent is directed to reconsider Ext.P6 in the light of Ext.P7, with notice and opportunity of hearing to the petitioner and as expeditiously as possible. In the meanwhile, the petitioner will be permitted to run the unit without any penal action WP(c).No.32460/03 4 against him. Writ petition is disposed of as above. (ANTONY DOMINIC) vi JUDGE