IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).No. 15336 of 2010(N) ----------------------------------------- PETITIONER(S): ------------------------ MAHATMA SELF HELP GROUP,MANNANCHERRY.PO, ALAPPUZHA,REG.NO.GSK/YSS/67/01,REP.BY ITS CONVENOR, P.S.MOHANDAS,AGED 52 YEARS,S/O.SREEDHARAN, KURUVELIL HOUSE,MANNANCHERRY.PO,MANNANCHERRY VILLAGE,MANNANCHERRY MURI,AMBALAPPUZHA TALUK. BY ADVS. SMT.C.G.BINDU, SMT.C.G.AJITHA, SMT.D.SARITHA, SMT.M.K.RAJITHA. RESPONDENT(S): --------------------------- 1. K.R.BAIJU,S/O.RASHEED,FAROOQ CONSTRUCTIONS,FATHIMA MANZIL,POWER HOUSE ROAD, ALAPPUZHA-688 007. 2. BABU ANTONY,S/O.ANTOY,NADAKKEPARAMBIL, PATHIRAPPALLY VILLAGE,CHETTIKADU MURI, ALAPPUZHA. 3. MANNANCHERRY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY,MANNACHERRY, ALAPPUZHA. 4. KERALA STATE POLLUTION CONTROL BOARD, REP.BY ITS ENVIRONMENTAL ENGINEER,ALAPPUZHA. R1 BY ADVS. SRI.E.RAFEEK, SRI.GOKUL DAS V.V.H. R4 BY ADV. SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.15336/2010 N APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMPLAINT FILED BEFORE THE DISTRICT MEDICAL OFFICER DTD. 10/05/2010. P2: COPY OF THE REPORT DTD. 10/05/2010 OF THE MEDICAL OFFICER, P.H. CENTRE, KALAVOOR. P3: COPY OF THE REPORT OF THE VILLAGE OFFICER ALONG WITH THE ATTESTING TESTIMONY OF WITNESS DTD. 10/05/2010. P4: COPY OF THE COMPLAINT DTD. 29/03/2010 SUBMITTED BY PETITIONER BEFORE THE 3RD RESPONDENT. P5: COPY OF THE COMPLAINT SUBMITTED BEFORE THE PRESIDENT OF THE 3RD RESPONDENT DTD. 29/03/2010. P6: COPY OF THE CERTIFICATE ISSUED BY WARD MEMBER SMT.GIRIJA GOPI. P7: COPY OF THE COMPLAINT FILED BEFORE THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 05/05/2010. P8: COPY OF THE COMPLAINT DTD. 05/05/2010 SUBMITTED BEFORE THE 4TH RESPONDENT - POLLUTION CONTROL BOARD. P9: COPY OF THE COMPLAINT FILED BY ONE SELF HELP GROUP VIZ. ANNAPOORNESWARI SELF HELP GROUP BEFORE THE 3RD RESPONDENT DTD. 13/05/2010. P10: COPY OF THE COMPLAINT DTD. 13/05/2010 SUBMITTED BY SELF HELP GROUP VIZ. CHACHAJI SELF HELP GROUP BEFORE THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS & ANNEXURE: R1(A): COPY OF INSPECTION REPORT OF THE ASSISTANT ENGINEER, N.H. DIVISION DTD. 26/04/2010. R1(B): 2 PHOTOGRAPHS OF POLLUTION CONTROL UNIT. R1(C): COPY OF THE BROCHURE SHOWING THE POLUTION CONTROL UNIT. R1(D): COPY OF NEW REPORT PUBLISHED IN MATHRUBHOOMI NEWSPAPER DURING APRIL 2010. Kss ..2/- ..2.... WPC.NO.15336/2010 N R1(E): COPY OF INJUNCTION ORDER IN I.A.NO.1635/2010 IN O.S.NO.330/2010 BEFORE THE MUNSIFF'S COURT, ALAPPUZHA AGAINST THE PETITIONERS AND 6 OTHERS. R1(F): COPY OF CONSENT LETTER SUBMITTED BY LOCAL INHABITANT BEFORE DISTRICT COLLECTOR, ALAPPUZHA. R1(G): COPY OF RECEIPT OF APPLICATION FEE REMITTED BEFORE THE 4TH RESPONDENT ON 13/05/2010. R1(H)(SERIES):COPY OF THE RECEIPTS FOR REMITTING ADDITIONAL FEE BEFORE THE 4TH RESPONDENT. R1(I): COPY OF THE RECEIPT ISSUED BY THE PANCHAYATH FOR SUBMITTING LICENSE THE APPLICATION DTD. 18/05/2010. R1(J): CERTIFIED COPY OF THE INJUNCTION ORDER IN I.A.NO.1635/2010 IN O.S.NO.330/2010 BEFORE THE MUNSIFF'S COURT, ALAPPUZHA. R1(K): CERTIFIED COPY OF THE MAHAZAR & REPORT FILED BY THE ADVOCATE COMMISSIONER IN O.S.NO.330/2010 BEFORE THE MUNSIFF'S COURT, ALAPPUZHA. R1(L): COPY OF THE PARTNERSHIP DEED ENTERED INTO BETWEEN PETITIONER/1ST RESPONDENT & 3 OTHERS. R1(M): COPY OF THE 'A' CLASS LICENSE ISSUED TO M/S. FAROOQ CONSTRUCTIONS BY THE PWD., GOVERNMENT OF KERALA. R1(N): PHOTOGRAPH OF THE MIXING UNIT SHOWING INCREASED HEIGHT OF CHIMNEY. R1(O): PHOTOGRAPH SHOWING THE CONSTRUCTION OF DOUBLE WALLED SOUND BARRIER STRUCTURE AROUND THE MIXING UNIT. ANNEXURE R4(A): COPY OF THE NOTICE NO.PCB/ALP/UCO - 1508/2008 DTD. 17/05/2010. ANNEXURE R4(B): COPY OF MINUTES DTD. 15/06/2010. /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.15336/2010-N ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 2nd day of July, 2010 J U D G M E N T This writ petition is filed by the petitioner, the Mahatma Self Help Group, seeking for a direction to the respondent Nos.3 and 4 to stop the illegal functioning of a tar mixing unit, till it has taken all the safety measures to protect the environment. 2. The allegation raised in the writ petition is that the tar mixing unit is being operated with aid of huge generator using Kerosene and there is no fixed time limit for its functioning. It is functioning on all days, day and night and due to its heavy noise, people are unable to get their sleep also. It is pointed out that while on operation, heavy heat, pungent smell and smoke are spreading all over the atmosphere. It is further pointed out that the mixing of tar with metal pieces generates large volume of dust and, due to the spreading of dust, the nearby inhabitants are suffering from Bronchitis, Fever, Wheezing and skin disorders, and small kids of tender ages are compelled to be removed from the area itself. Ext.P1 is a copy of the complaint filed by the petitioner in the matter which was forwarded to the Medical Officer of the Primary Health Centre pursuant to which he has conducted an W.P.(C). No.15336/2010 -:2:- inspection and filed a report to the third respondent. Ext.P3 is a report submitted by the Village Officer to the Revenue Divisional Officer. Various other representations have been produced as Exts.P4 to P10. 3. Heard the learned counsel for the petitioner, the learned counsel appearing for the first respondent and the learned Standing Counsel appearing for the Pollution Control Board. When the writ petition came up for admission on 19/05/2010, this Court after hearing the petitioner and the learned Standing Counsel for the Pollution Control Board directed that respondent Nos.1 and 2 will operate the tar mixing unit only during day time and it will not operate from 6 p.m. onwards. Interim orders have been passed later on 09/06/2010 and 16/06/2010 after hearing all the parties. 4. The first respondent has filed a detailed counter affidavit in the matter along with various documents. It is explained that he has installed the mixing plant by complying the formalities required by National Highway Mechanical Sub Division Office and the Assistant Executive Engineer. The Assistant Executive Engineer after inspection stipulated proper modification which are being effected and the same has been produced as Ext.R1(a). It is pointed out that the machinery was erected only during W.P.(C). No.15336/2010 -:3:- the month of April as the finishing work of certain roads under various agencies funded by the State Government as well as District Panchayat along with other local bodies are to be completed before rainy season. The first respondent denied the averments in the writ petition. It is pointed out that the system has an integrated highly sophisticated pollution control unit worth lakhs of rupees. It is also pointed out that all the safety measures have been taken to avoid the complaint regarding pollution. 5. The petitioner has filed a reply affidavit denying the averments in the counter affidavit. 6. The first respondent has again filed I.A.Nos.7479/2010 and 9060/2010 producing Exts.R1(j) to R1 (m) and Ext.R1(o) respectively. 7. The Pollution Control Board in their report filed before this Court has stated the following facts:- The functioning of the tar mixing unit came to the notice of the Board when a complaint was filed by the petitioner on 05/05/2010. The first respondent had submitted an application for consent to operate of the Board for operating the tar mixing unit on 13/05/2010 and based on the above, the site inspection was conducted on 17/05/2010. It was observed that there are residences within 100 mts. radius of the unit with the nearest at around 33 mts. in W.P.(C). No.15336/2010 -:4:- North East direction and 20 mts. in North West direction. In the tar mixing unit, metal and bitumen are heated and mixed for producing 45m3 per day maximum of bitumen mix. Around 100 litres of diesel are used every day and the smoke generated is dispensed through a chimney of around 8 mts. height and provided with water scrubbing system to contain the particulate matter in the smoke. The scrubbed water is recirculated after settling in a 3 compartment settling tank. A 125 KVA D.G set is used as the source of power for the unit. It is further pointed out that the functioning of the unit produces nuisance by way of noise, smoke in addition to the dust generated due to the to-and- fro motion of vehicles. The pollution is experienced by the residents on the South East direction and the nearest residence is at a distance of about 44 mts. from the tar mixing unit. Annexure R4(A) is the notice issued to the first respondent in the matter to comply with certain instructions therein. 8. After hearing parties, this Court by interim order dated 16/06/2010 directed the first respondent to comply and adopt the control measures suggested by the Pollution Control Board. 9. Today, the learned Standing Counsel for the Pollution Control Board has filed a further report on W.P.(C). No.15336/2010 -:5:- behalf of the fourth respondent. The report reveals that a fresh inspection was conducted by the Board Officials on 01/07/2010 and the unit was not working at the time of inspection and nobody pertaining to the unit was available. It is pointed out that the height of the chimney has been raised to around 13 mts. from the ground level and no other control measures have been provided. It is further pointed out that air and noise pollution problems experienced by the petitioners due to the functioning of the plant can be brought to control only if genuine control measures are adopted by the unit. It is mentioned that there was a meeting of all concerned including the first respondent on 15/06/2010 at the instance of the Chief Environmental Engineer at the Board's Office at Alappuzha where the Chief Environmental Engineer has suggested stringent measures to control pollution from the unit including the enclosure of the unit in a fully enclosed building with concrete flooring, adequate chimney height, water sprinkler system and noise control measures. Annexure R4(B) is the minutes of the meeting. 10. What emerges from the above is that the first respondent has been directed by the Pollution Control Board to take various measures which are necessary to avoid any pollution by way of noise, spreading of dust and other W.P.(C). No.15336/2010 -:6:- allied irritants. There cannot be any dispute that in the light of the fact that there are nearby residences and the area is thickly populated such measures will have to be mandatorily complied by the first respondent. In that view of the matter, the writ petition is disposed of with the following directions:- The first respondent will comply with the various measures suggested by the Pollution Control Board for operating the unit as well as the decisions recorded in Ext.R4(B). In the meanwhile, the operation of the unit will be limited to the extent for the purpose of providing materials for the emergency gap filling work which is ordered by the Government, but the schedule of the work will have to be regulated as the first respondent is yet to complete the safety measures to avoid pollution. The permission granted by this Court by interim order dated 19/05/2010 will stand withdrawn. The schedules for operating the unit for the limited periods will be informed by the first respondent in advance to the Pollution Control Board i.e. to the fourth respondent herein and the functioning of the unit in that regard will be regulated by the directions issued by the Pollution Control Board. It is made clear that for providing tar mix for the emergency gap filling work now undertaken alone will be permitted. W.P.(C). No.15336/2010 -:7:- Officers of the Pollution Control Board will conduct inspection with regard to the said works and pollution control measures undertaken by the first respondent. With regard to the collection of materials also, the same will be informed by the first respondent to the Pollution Control Board. The raw materials required for the limited functioning alone will be brought in by the first respondent, that too, between 8 a.m to 8 p.m. Only on the satisfaction of the Pollution Control Board that the first respondent has complied with all the conditions, the unit will be allowed to function on a full time basis. No costs. (T.R. Ramachandran Nair, Judge.) ms