IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 WP(C).No. 35959 of 2005(E) ----------------------- PETITIONER : --------------------- NICKOLOSE, AGED 50, S/O.LAZAR, CHRISTUVILASOM BUNGLOW, KANCHAMPZHINJI DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA TALUK. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): ------------------------- 1. THE SECRETARY, POOVAR GRAMA PANCHAYAT, POOVAR P.O., NEYYATTINKARA. 2. THE KERALA STATE POLLUTION CONTROL BOARD, REP. BY ITS SECRETARY, OFFICE OF KERALA STATE POLLUTION CONTROL BOARD, PLAMMOODU, PATTOM P.O., THIRUVANANTHAPURAM. 3. THE ENVIRONMENTAL ENGINEER, OFFICE OF KERALA STATE POLLUTION CONTROL BOARD, PLAMMOODU, PATTOM P.O., THIRUVANANTHAPURAM. 4. CHRISTUDAS @ CHINNAYYAN, AGED 44, S/O.JANAPRAKASAN, THATTATHILPOTTA VEEDU, NO.P.P-II/101, KANCHANPAZHANJI DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK. R1 BY ADV. SRI.G.SUDHEER R2 & R3 BY ADVS. SRI. M.K. CHANDRAMOHAN DAS, SC SRI.JAMES KURIAN, SC, POLLUTION C. BOARD R4 BY ADVS. SRI.R.S.KALKURA SRI. G. SUDHEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2011, ALONG WITH WPC NO. 24422 OF 2006 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 35959 of 2005(E) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PROVISIONAL REGISTRATION CERTIFICATE DATED 26.11.92. EXT.P2 : COPY OF THE LICENCE ISSUED TO THE PETITIONER DATED 27.6.95. EXT.P3 : COPY OF THE LICENCE ISSUED TO THE PETITIONER DATED 24.6.96. EXT.P4 : COPY OF THE JUDGMENT DATED 16.12.2003 IN O.S. NO. 507/95 OF THE ADDL. MUNSSIFF,II, NEYYATTINKARA. EXT.P5 : COPY OF THE CONSENT DATED 27.5.2003 ISSUED BY RESPONDENT NO.2. EXT.P6 : COPY OF ORDER DATED 30.1.2006 ISSUED BY 2ND RESPONDENT. EXT.P7 : COPY OF THE ORDER DATED 14.1.2004 IN O.P. NO. 472/2003 BY OMBUDSMAN. RESPONDENT'S EXHIBITS: EXT.R1(a) : COPY OF ORDER DATED 14.1.2004 ISSUD BY THE HONOURABLE OMBUDSMAN TO ISSUE LICENCE ON PRODUCTION OF THE RELEVANT DOCUMENTS FROM CONCERNED DEPARTMENTS. EXT.R1(b) : COPY OF LETTER DATED 16.1.2004 ISSUED BY THE 1ST RESPONDENT PANCHAYAT TO THE PETITIONER. EXT.R1(c) : COPY OF ACKNOWLEDGEMENT CARD ISSUED BY THE POSTAL AUTHORITY. EXT.R4(a) COPY OF THE RECEIPT DATED 22.08.1995 INDICATING THAT THE RESPONDENT EFFECTED MUTATION AND PAYING TAX IN THE PROPERTY. EXT.R4(b) COPY OF THE JUDGMENT IN AS NO. 8/97 DATED 22.02.2003. EXT.R4(c) COPY OF THE JUDGMENT DATED 16.12.2003 IN O.S. NO. 507/95. EXT.R4(d) COPY OF LETTER DATED 04.10.1995. EXT.R4(e) COPY OF LETTER DATED 06.10.1995. (Contd...) WP(C).No. 35959 of 2005(E) EXT.R4(f) COPY OF THE LETTER DATED 16.01.1997 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.R4(g) COPY OF THE ORDER DATED 22.06.1997. EXT.R4(h) COPY OF THE JUDGMENT DATED 25.11.1999 IN OP NO. 1175/1997. EXT.R4(i) COPY OF THE CONSENT RENEWAL ORDER ISSUED BY THE 3RD RESPONDENT. EXT.R4(j) COPY OF THE SUIT NOTICE ISSUED BY THE PETITIONER'S COUNSEL TO THE 1ST RSPONDENT. EXT.R4(k) COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S WORKSHOP ADJOINING THE PROPERTY OF THE 4TH RESPONDENT. //TRUE COPY// P.A. TO JUDGE Mn C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)Nos. 35959 of 2005 & 24422 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2011 J U D G M E N T Common issues arise for consideration in these writ petitions based on common facts. Therefore, they were heard jointly and are being disposed of by this common judgment. The petitioner in the former writ petition is the 7th respondent in the latter writ petition and the petitioner in the latter writ petition is the 4th respondent in the former writ petition. For the sake of convenience the parties and documents are referred to hereafter in the order they have been arrayed/marked in the latter writ petition. 2. The petitioner and the 7th respondent are neighbours. The petitioner is having an extent of 5.5 cents of property comprised in old survey No.167/2 of Thirupuram Village in Thiruvananthapuram District. This writ petition has been filed mainly with a prayer to direct the second respondent therein to produce the licence granted to the 7th respondent to commence the factory and to issue a writ of WPC.No.35959/2005 & 24422/2006 : 2 : certiorari to quash Ext.P12 and also the licence issued by the second respondent for running a factory based on Ext.P12 under the name and style Nicholas Match Industries. The further prayer is for issuance of a writ of mandamus commanding respondents 1 to 6 to comply with all the requirements contained in Exts.P1 to P8 prior to the issuance of any fresh licence to the petitioner and also direct the 7th respondent to comply with all the requirement contained in building rules in respect of factory premises before the grant of licence and for such other reliefs. In the former writ petition the prayer is for issuance of writ of mandamus commanding the first respondent therein viz., the Secretary of Poovar Grama Panchayat to issue licence to M/s Nicholas Match Industries for the production of splinters and vineers within such time fixed by this Court. 3. The former writ petition was earlier disposed of as per judgment dated 5.7.2006 with certain directions. The directions thereunder was to the first respondent to issue licence to the petitioner therein viz., the 7th respondent herein, for manufacturing Splinters and Vineers on the basis of the application submitted in that regard. Pursuant to the said directions in the said judgment dated 5.7.2006 Panchayat WPC.No.35959/2005 & 24422/2006 : 3 : considered the application submitted by the 7th respondent and granted licence in terms of the said judgment. It is alleging that the 7th respondent(the petitioner therein) had suppressed certain facts and that suppression led to the issuance of certain directions in WPC No.35959/2005 dated 5.7.2006 and ultimately led to issuance of licence that the latter writ petition was filed. The petitioner has also filed a petition to review the judgment in WPC No.35959/2005 after hearing the parties. Thereupon, after hearing the parties, the judgment in WP(C) No.35959/2005 was recalled. 4. As already noticed hereinbefore, the required licence for the manufacturing unit was issued to the 7th respondent pursuant to the judgment in 35959/2005. The contention of the petitioner is that despite recalling of the judgment dated 5.7.2006, the 7th respondent is continuing to operate the manufacturing unit. It is the further contention of the petitioner is that earlier when the 7th respondent attempted to start a match factory the petitioner filed O.SNo.507/1995. In fact, it was a suit for declaration of title over the property scheduled as A schedule property therein and also for demolishing the structure put up on the eastern and southern boundaries of the A scheduled property and also WPC.No.35959/2005 & 24422/2006 : 4 : for a permanent prohibitory injunction to restrain from starting the match factory on the northern side of the D scheduled property. As per Ext.P3 judgment, the suit was partly decreed and the first respondent therein viz., the 7th respondent herein was restrained by permanent injunction as hereunder:- “1. The 1st defendant is restrained by a permanent injunction from commencing match factory in the plaint D schedule property in the work shed now available therein without complying with the directions contained in Exts.A4 &A5 and without providing maximum set back with the neighbouring plots and road as per the building rules and without taking necessary measures to minimise the chance of sound nuisance and dust escaping from the unit causing nuisance to the plaintiff and family. The factory shall not be commenced without obtaining a compliance certificate from the 4th defendant and the local authority concerned will issue a licence only on production of the said certificate and on compliance of necessary statutory formalities. 2. The prayer for declaration of title, recovery of possession of B schedule property and putting up of boundary are disallowed. 3. The parties are directed to suffer their respective costs of suit.” Subsequently, the 7th respondent herein had approached the Ombudsman for Local Self Government Institution by filing O.P No.472/2003. The petitioner herein was not made a party therein. The grievance raised thereunder was that despite the WPC.No.35959/2005 & 24422/2006 : 5 : submission of relevant documents along with the applications the Secretary of the Panchayat is not considering the application for licence to start the Match Factory. The said Original Petition was disposed of as per Ext.P12 judgment with a direction to the Secretary to issue licence provided the petitioner therein viz., the 7th respondent herein produces all the relevant certificates prescribed under law. It is the contention of the petitioner that the 7th respondent has not brought to the notice of the Tribunal regarding the existence of Ext.P3 judgment. Thus the specific contention of the petitioner is that the 7th respondent had suppressed the relevant facts before the Ombudsman and also before this Court. It is further submitted that in terms of Ext.P3 the application submitted by the 7th respondent should not have been considered by the competent authority unless accompanied by all the requisite permits and satisfied all the requirements under Annexure A4 and A5 referred to in Ext.P3 judgment. It is the assertion of the petitioner that even now the 7th respondent has not complied with all the conditions and, therefore, the 7th respondent he is running the factory in question unauthorizedly. To support the said contention, the petitioner is relying on the counter affidavit filed by the WPC.No.35959/2005 & 24422/2006 : 6 : Panchayat and the statement filed by the Pollution Control Board. Going by the statement filed by the Pollution Control Board, initially, the 7th respondent was granted the consent to establish and later, the consent to operate. However, failure on the part of the 7th respondent in complying with the conditions thereunder consent to operate was revoked. Further, it is stated therein that thereafter the 7th respondent had not approached the Pollution Control Board, to obtain consent to operate. In short, according to the Pollution Control Board, the petitioner is not now, holding a valid consent to operate. A perusal of counter affidavit filed by the Panchayat would reveal that the question whether the 7th respondent complied with all the statutory requirement for the purpose of obtaining the requisite licence for starting a Match Factory was not actually looked into by them. According to the Panchayat, licence was issued only to comply with the directions of the judgment of this Court in WPC No.35959/2005 without actually ascertaining the aforesaid aspects. As already noticed, the said judgment in WP(C) No.35959 of 2005 was subsequently recalled. May be the licence issued on the strength of the judgment dated 5.7.2006 was not cancelled subsequent to the recalling of the said WPC.No.35959/2005 & 24422/2006 : 7 : judgment. In the said circumstances, the statement to the effect that the Panchayat had not considered whether all the requisite permits and licence for starting a match factory was produced by the 7th respondent at the time of issuance of the licence and that it was issued only to comply with the directions in the judgment dated 5.7.2006 assumes relevance. In fact, the learned counsel for the petitioner brought to my attention the counter affidavit filed by the Panchayat in the former writ petition. In the said counter affidavit, the Panchayat had specifically admitted the fact that the relevant licence or permits were not produced along with the application by the 7th respondent. As already noticed hereinbefore, according to the Pollution Control Board there is no valid consent to operate the Match factory belonging to the 7th respondent. As already noticed, the crucial aspect whether the 7th respondent is possessing all the requisite licence or permits from the concerned authority to start a Match Factory and whether such licence or permits were produced along with the application for licence before the Panchayat are not discernible from the pleadings in the writ petition. At the same time, the counter affidavit filed by the Panchayayat in the former writ petition would suggest that at that point of WPC.No.35959/2005 & 24422/2006 : 8 : time the 7th respondent had not produced such documents. Taking into account the facts and circumstances and also the position thus obtained in this case, I am of the view that these writ petition can be disposed of as hereunder:- The respondent Panchayat shall verify whether the 7th respondent had produced all the requisite documents viz., the licences and permits from the competent authorities along with the application based on which the licence in question was issued pursuant to the judgment in WP(c) No.35959/2005 prior to its recalling. If any document is lacking that shall be notified to the 7th respondent and he shall be given sufficient time to produce such document/documents. In other words, the respondent Panchayat shall consider the application submitted by the 7th respondent afresh, in accordance with law, with notice to the petitioner as also the 7th respondent. Such a consideration shall be made expeditiously, at any rate, within three weeks from the date of receipt of copy of this judgment. In the meanwhile, the competent authority under the Pollution Control Board shall conduct an inspection in to the premises belonging to the 7th respondent wherein the Match Factory situates to see whether instructions issued earlier were complied with or not. Subject to the satisfaction WPC.No.35959/2005 & 24422/2006 : 9 : regarding compliance the question as to whether the 7th respondent could be issued with consent to operate shall be considered. Inspection and such consideration shall be made expeditiously, at any rate, within a period of two weeks from the date of receipt of copy of this judgment. In the meanwhile, if the 7th respondent runs the Match Factory the said authorities shall take appropriate action to ensure initiation of appropriate steps to restrain its functioning. Needless to say that the right of the 7th respondent to start operation of the said Match Factory would depend upon the decisions of the aforesaid authorities to be taken in the light of this judgment. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge