IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 WP(C).NO. 3590 OF 2008(B) ------------------------------------- OS.61/2006 OF MUNSIFF COURT, NADAPURAM .................... PETITIONER(S): PLAINTIFFS -------------------------------------- 1. PUTHALATH NAJUMA, AGED 36 YEARS, W/O. ABDUL SALAM, NARIPPATTA AMSOM, CHEEKKONNUMMAL DESOM, VATAKARA. 2. PUTHALATH SUHARA, D/O. MAMOO, AGED 65, -DO- BY ADV. SRI.V.RAJAGOPAL RESPONDENT(S): DEFENDANTS ------------------------------------------- 1. PUTHALATH AMMA HAJI, S/O. ANDRU, NARIPPATTA AMSOM, CHEEKKONNUMMAL DESOM, VATAKARA. 2. SECRETARY, NARIPATTA GRAMA PANCHAYATH, P.O.NARIPATTA, VATAKARA TALUK. ADV. SRI.C.R.SIVAKUMAR FOR R2 SRI.GEORGE THOMAS (MEVADA) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO. 3590 OF 2008 ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PETITION DATED 17.1.2006. EXHIBIT P2 TRUE COPY OF THE PETITION FILED BY THE SECOND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE PLAINT FILED ON 9.5.2006. EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY A POWER OF ATTORNEY HOLDER ON BEHALF OF THE FIRST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPORT DATED 16.12.2006. EXHIBIT P6 TRUE COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT OF KERALA ON 24.10.1998. EXHIBIT P7 TRUE COPY OF THE NOTIFICATION DATED 16.11.1993. EXHIBIT P8 TRUE COPY OF THE DEPOSITION OF THE CHIEF ENVIRONMENTAL ENGINEER DATED 23.2.2007. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 12.4.2007. EXHIBIT P10 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 19.3.2007. EXHIBIT P12 TRUE COPY OF THE AFFIDAVIT DATED 9.2.2007. EXHIBIT P13 TRUE COPY OF THE OBJECTIONS TO EXHIBIT P12 FILED ON 14.2.2007. EXHIBIT P14 TRUE COPY OF THE AFFIDAVIT DATED 9.4.2007. EXHIBIT P15 TRUE COPY OF THE PETITION DATED 9.4.2007. EXHIBIT P16 TRUE COPY OF THE REPORT DATED 10.12.2007. EXHIBIT P17 TRUE COPY OF THE REPORT DATED 26.7.2007. EXHIBIT P18 TRUE COPY OF THE EXPERT EXAMINATION DATED 28.0.2007. EXHIBIT P19 TRUE COPY OF THE AFFIDAVIT DATED 5.1.2008. EXHIBIT P20 TRUE COPY OF THE PETITION DATED 5.1.2008. EXHIBIT P21 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT ON 8.1.2008. EXHIBIT P22 TRUE COPY OF THE ORDER DATED 15.1.2008 IN I.A. NO.58 OF 2008 IN O.S. NO.61 OF 2006. RESPONDENTS' EXHIBITS: ------------------------------------- EXHIBIT R2(a) TRUE COPY OF THE APPLICATION DATED 21.6.2005. EXHIBIT R2(b) TRUE COPY OF THE CONSENT LETTERS OF THE NEAR RESIDENTS AND THE NO OBJECTION CERTIFICATE FROM THE DIVISIONAL FOREST OFFICER. EXHIBIT R2(c) TRUE COPY OF THE APPLICATION FOR LICENCE SUBMITTED BY THE FIRST RESPONDENT DATED 15.2.2006. THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P(C) No. 3590 of 2008 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 23rd day of October, 2008 J U D G M E N T ---------------------- At a time when first respondent was to start a furniture unit in Door No.NP-VI/264D of Narippatta Grama Panchyat, petitioners who are residing in the adjacent property instituted O.S. No.61 of 2006 in the Court of learned Munsiff, Nadapuram seeking prohibitory injunction against functioning of the furniture unit alleging among other things, dust and sound pollution. First respondent resisted the suit claiming that he obtained necessary permit from the local authority (second respondent) and that allegation of dust/sound pollution is not correct. Second respondent also filed written statement taking up suitable contentions. On the request of the petitioners, Smt. Prabhavathi, who then was the Chief Environmental Engineer was appointed as Expert Commissioner to inspect the furniture unit and report on the alleged sound/dust pollution. She submitted Exhibit P5, report stating that partial functioning of the unit itself cause suspended particulate matter concentration and sound beyond the permissible limit which indicated that the functioning of the unit in full swing in the present condition will W.P(C) No.3590 of 2008 -: 2 :- definitely aggravate the pollution problems. That report was objected by the first respondent. He filed Exhibit P12, application to set aside that report. That move was objected by the petitioners by filing Exhibit P13, counter. Expert Commissioner was examined (Exhibit P8 is her deposition) and as per Exhibit P11 order, petition was dismissed. Learned Munsiff, observed that dismissal of Exhibit P12, application will not disentitle the first respondent to prefer separate petition for remittal of Exhibit P5, report to the same Commissioner with a request to analise the sample by an Analyst of the Pollution Control Board. Pursuant to that, first respondent filed Exhibit P15, application supported by Exhibit P14, affidavit. That move was objected by the petitioners as per Exhibit P10, counter statement. That resulted in Exhibit P9, order. Exhibit P15 was allowed. Learned Munsiff issued directions as to how the Expert Commissioner has to conduct inspection. By that time the Expert Commissioner, Smt.Prabhavathi was transferred and one Viju took charge as the Chief Environmental Engineer. He, after inspection submitted Exhibit P17, report. In Exhibit P17, report he stated that dust and sound pollution are within permissible limit. Petitioners preferred objection to Exhibit P17 and applied for remittal of Exhibit P17. Expert Commissioner W.P(C) No.3590 of 2008 -: 3 :- (Viju) was examined. Learned Munsiff ordered that Exhibit P17 report will be remitted to the Expert Commissioner to report all further particulars. That resulted in Exhibit P16, report dated 10.12.2007. That was objected by the petitioners as per Exhibit P20, application supported by Exhibit P19, affidavit dated 5.1.2008. First respondent opposed Exhibit P20, application as per Exhibit P21, counter statement dated 8.1.2008. Learned Munsiff as per the impugned order dated 15.1.2008 rejected the objection preferred by the petitioners and request for remittal of the report was disallowed. This petition under Article 227 of the Constitution is filed seeking to direct that further investigation may be conducted in the presence of Advocate Commissioner or in the alternative the Chief Environmental Engineer, Pollution Control Board be appointed to inspect the premises and report. 2. Learned counsel for the petitioners submitted that though in Exhibit P9, order dated 12.4.2007 there was a direction (direction No.4) to the Expert Commissioner to take samples properly and get it analised in the laboratory constituted by the State Pollution Control Board and to submit the analysis report along with the report of the Expert Commissioner, that was not complied with. Counsel contends W.P(C) No.3590 of 2008 -: 4 :- that it is not clear how the sample was collected by the Expert Commissioner (Viju) for the purpose of analysis which resulted in Exhibit P16, report. It is also contended by the learned counsel that one ground on which request for further remittal was disallowed was that petitioners did not adduce evidence. According to the learned counsel, after Exhibit P16, report dated 10.12.2007 petitioner filed Exhibit P20, application on 5.1.2008, first respondent filed counter statement on 8.1.2008 and the impugned order was passed on 15.1.2008 so that, petitioners did not get sufficient opportunity to adduce evidence. It is further contended that Exhibit P16 report is prima facie incorrect since going by that report, the percentage of noise pollution at all the locations is higher when the unit is not working when compared to the situation when the unit is working. Learned counsel for the first respondent contended that the said statement in Exhibit P16 can only be a mistake or interchanging of the schedules given in Exhibit P16. It is also contended that as per order dated 22.10.2007 in I.A. No.973 of 2007 dated 10.12.2007, report was remitted. Therefore, there is no justification in the petitioners now contending that inspection was not conducted by the Expert Commissioner as stated in Exhibit P9 order. Learned counsel for the W.P(C) No.3590 of 2008 -: 5 :- second respondent contended that permit has been issued to the first respondent to run a 20 H.P. motor for the purpose of the unit. 3. Going by the records, there were moves and counter moves between petitioners and first respondent. It is seen that various reports were obtained and, parties not being satisfied with those reports, learned Munsiff remitted the reports many a times. The ultimate report now on record is Exhibit P16. Now the point for consideration is whether this Court is required to exercise the power under Article 227 of the Constitution to direct further investigation. Before dealing with that I must also remind myself of the limited scope for exercising power under Article 227 of the Constitution in such matters. So far as matters of this nature are concerned, this Court is not required or called upon to sit in appeal over the findings entered by the court below. This Court is required to consider whether any jurisdictional error or illegality has been committed by the court below or whether the impugned order is manifestly wrong. 4. The main complaint is that learned Munsiff had not appointed an Advocate Commissioner to inspect the premises of course, assisted by an Expert Commissioner. But it is seen that the request of the petitioners to appoint an Advocate Commissioner was W.P(C) No.3590 of 2008 -: 6 :- turned down by the learned Munsiff as per order dated 22.10.2008. Concededly, that order was not challenged. There is thus a finality as regards the request of the petitioners for appointment of Advocate Commissioner by the order dated 22.10.2007. If that be so, Exhibit P16 report dated 10.12.2007 cannot be challenged on the ground that an Advocate Commissioner was not appointed. 5. So far as the complaint that Expert Commissioner (Viju) had not complied with direction No.4 contained in Exhibit P9 order dated 12.4.2007 is concerned, it is not clear from Exhibit P16 in what manner sample was collected. But, as pointed out by the learned counsel for the first respondent, subsequent to Exhibit P9 order dated 12.4.2007 came the order in I.A. No.973 of 2007 dated 22.10.2008 wherein the learned Munsiff issued directions as to how the Expert Commissioner to inspect. That does not contain any direction as seen in the order dated 12.4.2007. Petitioners have not challenged the order dated 22.10.2007 on I.A. No.973 of 2007. Therefore, there is no justification in the petitioners now challenging Exhibit P16 on the ground that direction No.4 in Exhibit P9 order has not been complied with. 6. In considering whether discretion under Article 227 of the W.P(C) No.3590 of 2008 -: 7 :- Constitution is to be exercised, it is apposite to refer to the contention raised on behalf of the first respondent in the light of Exhibit P17. It is seen from Exhibit P17 that unlike the situation was earlier, first respondent has taken steps like construction of high brick wall for preventing dust pollution, etc. In the circumstances, I am not inclined to think that this is a case where the discretionary power under Article 227 of the Constitution has to be exercised. 7. Learned counsel for the petitioners at this stage requested that the right of petitioners to challenge the reports adverse to the petitioners may be reserved. I make it clear that if the petitioners have any such right, it will be open to them to agitate that matter at the appropriate time. It is also made clear that this judgment will not prevent the petitioners from adducing appropriate evidence, if they are entitled to that course. With the above observations, this Writ Petition is dismissed. THOMAS P.JOSEPH, JUDGE. vsv