Quashed

Viji Dias v. State of Kerala

Kerala HC25 Feb 2016WP(C)/18532/2014

Case brief

AI extract

What is this about?

Hon'ble Justice Anu Sivaraman quashed the Government's communication (Exhibit P26) and the Corporation's notice (Exhibit P25) seeking closure of a cement godown, holding the Government lacked jurisdiction to direct licence cancellation absent Pollution Control Board findings and proper executive order format.

What did the court decide?

Exhibits P25 and P26 are quashed. Second respondent is directed to take appropriate action in accordance with law if valid grounds for exercising power are found in future.

Viji Dias Vs State of Kerala — Environment and Pollution | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937

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WP(C).No. 18532 of 2014 (N)

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PETITIONER:

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VIJI DIAS W/O.DIAS, AGED 38, 1/275 EDAKALATHUR HOUSE, AYYANTHOLE, THRISSUR-680 003.

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BY ADVS.SRI.P.B.KRISHNAN

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SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN

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SRI.SABU GEORGE

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RESPONDENTS:

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1.STATE OF KERALA

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REPRESENTED BY THE SECRETARY DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2.THE CORPORATION OF THRISSUR, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE THRISSUR-680 001.

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3.THE SECRETARY, CORPORATION OF THRISSUR, CORPORATION OFFICE THRISSUR-680 001.

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4.THE DIRECTOR, URBAN AFFAIRS, THIRUVANANTHAPURAM-695 001.

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5.THE ENVIRONMENT ENGINEER, KERALA STATE POLLUTION CONTROL BOARD DISTRICT OFFICE, THRISSUR-680 001.

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6.C.A.FRANCIS,

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S/O.LATE C.P.ANTONY, CHETUPUZHAKKARAN HOUSE, 1/272 AYYANTHOLE P.O., THRISSUR-680 003.

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WP(C).No. 18532 of 2014 (N)

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Addl.R7.THRESIAMMA FRANCIS

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AGED 78 YEARS, W/O.LATE C.A.FRANCIS CHETUPUZHAKKARAL HOUSE, 1/272, AYYANTHOLE.P.O. THRISSUR -680 003.

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ADDL. R7 IS IMPLEADED AS PER ORDER DATED 07.10.2014 IN IA 13093/2014.

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ADDLR7 BY ADV. SRI.JIMMY JOHN VELLANIKARAN ADDLR7 BY ADV. SRI.V.L.THOMAS

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R5 BY ADV. SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD R1 BY SENIOR GOVERNMENT PLEADER SRI.VIJU ABRAHAM R2,R3 BY ADV. SRI.K.P.VIJAYAN R2,R3 BY ADV. SRI.V.N.HARIDAS BY SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BO

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-02-2016, THE COURT ON 25.02.2016 DELIVERED THE FOLLOWING:

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WP(C).No. 18532 of 2014 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT-P1- TRUE COPY OF THE LICENCE NO. 21/2003 BY THE THRISSUR CORPORATION

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EXHIBIT-P2- TRUE COPY OF THE COMMUNICATION DATED 28/12/2005 NO. PCB/TSR/COM/TSR/2001, ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER.

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EXHIBIT-P3-TRUE COPY OF THE COMMUNICATION DATED 22/02/2006 NO. PCB/TSR/COM/TSR/2001, ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER.

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EXHIBIT-P4-TRUE COPY OF THE NOTICE DATED 13/07/2006 NO. HRMP 209/06/P1 FROM HUMAN RIGHTS COMMISSION

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EXHIBIT-P5-TRUE COPY OF THE ORDER PASSED BY THE OMBUDSMAN FOR LSG INSTITUTIONS, THIRUVANANTHAPURAM IN O.P 1041/2006.

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EXHIBIT-P6-TRUE COPY OF THE REPORT OF RESPONDENT NO. 5 DATED 01/08/2007.

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EXHIBIT-P7-TRUE COPY OF THE JUDGMENT DATED 17/10/2007 IN W.P(C) 15390 OF 2007

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EXHIBIT-P8-TRUE COPY OF THE ORDER IN I.A 2326 OF 2008 IN O.S 648/2008, II ADDL. MUNSIFF COURT, THRISSUR.

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EXHIBIT-P9-TRUE COPY OF THE JUDGMENT IN O.S 648/2008, II. ADDL. MUNSIFF COURT, THRISSUR.

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EXHIBIT-P10-TRUE COPY OF THE ORDER IN C.M.P 97/2007 AND 105/2007 IN O.P 1041 OF 2006 PASSED BY THE OMBUDSMAN FOR LSG INSTITUTIONS.

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EXHIBIT-P11-TRUE COPY OF THE PROCEEDINGS DATED 10/03/2010 NO. A210142/K.DIS OF THE R.D.O, THRISSUR.

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EXHIBIT-P12-TRUE COPY OF THE NOTICE DATED 06/02/2009 NO PH1-G7-3329/2006 ISSUED BY THE THRISSUR CORPORATION.

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EXHIBIT-P13-TRUE COPY OF THE JUDGMENT IN W.P(C) 11588/2009 DATED 12/03/2010.

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EXHIBIT-P14-TRUE COPY OF THE ORDER IN R.P 36/2010 IN W.P(C) 11588/2009 DATED 09/04/2010.

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EXHIBIT-P15-TRUE COPY OF THE JUDGMENT IN W.P(C) 573/2011 DATED 08/07/2011.

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EXHIBIT-P16-TRUE COPY OF THE LETTER NO. PH1 (G7)/332906 DATED 06/12/2011 ISSUED BY THE THRISSUR CORPORATION TO THE PETITIONER.

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WP(C).No. 18532 of 2014 (N)

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EXHIBIT-P17-TRUE COPY OF THE RCEIPT NO. 069513 DATED 01/07/2013 ISSUED FROM THRISSUR CORPORATION TO THE PETITIONER.

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EXHIBIT-P18-TRUE COPY OF TH JUDGMENT IN W.P(C) 7092/2012 DATED 02/08/2013.

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EXHIBIT-P19-TRUE COPY OF THE JUDGMENT IN W.A NO. 1372/2012 DATED 05/12/2012.

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EXHIBIT-P20-TRUE COPY OF TH JUDGMENT IN W.P(C) 429/2012 DATED 04/01/2013.

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EXHIBIT-P21-TRUE COPY OF THE RECEIPT NO. 0064730 DATED 09/02/2013 ISSUED BY THE THRISSUR CORPORATION TO THE PETITIONER.

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EXHIBIT-P22-TRUE COPY OF THE ORDER DATED 26/03/2014 ISSUED BY THE OMBUDSMAN FOR LSG INSTITUTIONS IN O.P 43/2013.

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EXHIBIT-P23-TRUE COPY OF THE RECEIPT NO. 0271193 DATED 28/02/2014 ISSUED BY THE THRISSUR CORPORATION TO THE PETITIONER.

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EXHIBIT-P24-TRUE COPY OF THE LETTER NO. 28014/RB2/14/LSG DATED 21/05/2014 ISSUED BY THE GOVERNMENT TO THE PETITIONER.

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EXHIBIT-P25-TRUE COPY OF THE NOTICE NO. DW5-AYL/PW-4990/2010 DATED 11/07/2014 ISSUED BY THE THRISSUR CORPORATION TO THE PETITIONER.

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EXHIBIT-P26-TRUE COPY OF THE ORDER NO. 28014/RB2/14/LSG DATED 27/06/2014 ISSUED BY THE GOVERNMENT.

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RESPONDENTS' EXHIBITS

NIL

TRUE COPY

P.A.TO JUDGE

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = = = = = = = = = = = =

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W.P.(C).No.18532 of 2014

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= = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 25^th day of February, 2016

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JUDGMENT

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1.This writ petition is preferred challenging Exhibit P26 order

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issued by the Government directing the 2^nd respondent Corporation to take immediate steps for closure of the petitioner's cement go-down as also Exhibit P25 order issued by the Secretary of the Corporation in pursuance of the same. It is on the basis of the complaint preferred by the 6^th respondent, who has hence passed away, that Exhibit P26 is issued. The case has a checkered history. Several litigations between the same parties with regard to the pollution allegedly caused by the petitioner's cement go-down had been considered by different authorities having jurisdiction in the matter.

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Heard Sri.P.B.Krishnan, learned counsel for the petitioner, Sri.Viju Abraham, learned Government Pleader appearing for respondents 1 and 4 and Sri.K.P.Vijayan, learned standing counsel for the Corporation, Sri.Jimmy John Vellanikaran, learned counsel appearing for the additional 7^th respondent and Sri.M.Ajay, learned standing counsel for the Pollution Control Board.

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W.P.(C).No.18532 of 2014

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3.The challenge raised against Exhibit P26 is primarily that it is

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an order issued without jurisdiction. Learned counsel for the petitioner would submit that the petitioner has all valid licences necessary for the conduct of the go-down and that no NOC from the Pollution Control Board is contemplated for the functioning of a cement go-down. Exhibit P26 refers only to a letter of the same number dated 30.05.2014, a letter from the Secretary, Thrissur Corporation dated 05.06.2014 and a complaint received from the 6^th respondent. Referring to those letters, the Government direct the Secretary, Thrissur Corporation to cancel the licence issued to the petitioner, since the petitioner does not have NOC from the Pollution Control Board. Referring to Exhibit P26, Exhibit P25 notice dated 11.7.2014 was issued to the petitioner by the 3^rd respondent directing closure of the go-down within seven days. The petitioner has produced Exhibit P1 licence which was issued on 17.6.2003. She also relies on Exhibit P3 report of the Pollution Control Board stating that all requirements made by the Board in Exhibit P2 notice had been complied with by the petitioner. The petitioner states that the 6^th respondent

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W.P.(C).No.18532 of 2014

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has raised the allegation of pollution before the Ombudsman for Local Self Government Insitutions, Human Rights Commission, Lok Ayukta as well as the Government, competent civil court and this Court. The petitioner relies on Exhibits P7 and P18 judgments of this Court in support of her contention that all authorities had considered the contentions raised by the 6^th respondent and this Court had held that there is no pollution warranting cancellation of licence granted to the petitioner. In the above circumstances, the direction issued by the Government is totally without jurisdiction and is liable to be set aside, it is contended.

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4.Learned counsel appearing for the additional 7^th respondent, who is the widow of the 6^th respondent, would contend that her valuable right to life is being infringed upon due to the pollution caused by the writ petitioner's cement go-down. It is stated that she is suffering from serious ailments due to the cement dust generated from the go-down, which is within a distance of 1.5 metres from her residence. The learned counsel submits that Exhibit P3 report submitted by the Pollution Control Board would itself show that the steps taken by the

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W.P.(C).No.18532 of 2014

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writ petitioner had only reduced the pollution and clear indication of the fact is that still there is considerable pollution which is making her life miserable and impossible. It is further submitted that Exhibit R7(j) report of the Town Planner would clearly indicate the high level of pollution caused by the writ petitioner's activities and that it was only due to the considerable influence exerted by the petitioner that Exhibit R7(f), decision of the Corporation dated 27.09.2011, came to be issued without hearing and without placing the same before the Standing Committee. The learned counsel also places reliance on Exhibit R7(J) to contend that the area is purely a residential area and go-downs can be permitted in the area only with permission from the Chief Town Planner. Rule 3A of the Kerala Municipal Building Rules is relied upon to contend that town planning schemes shall have precedence in the matter of grant of licences. It is urged that in Rule 30 of the Kerala Municipal Building Rules the use of the premises comes within hazardous use and therefore no licence could be granted in the residential zone. Rule 53(2) specifically states that no hazardous use shall be permitted in residential buildings, it is submitted. It is also contended that the

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W.P.(C).No.18532 of 2014

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contention of the writ petitioner that no notice preceded Exhibit P26 is absolutely incorrect and that the writ petitioner was put on notice by Exhibit P24 and was heard in person before orders were passed by the Government.

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5.Learned Government Pleader would attempt to trace the source of power for issuance of a communication in the nature of Exhibit P26 to Sections 58, 61 and 449 of the Kerala Municipalities Act. It is submitted that where pollution is alleged and the Municipal authority does not take steps in accordance with law, the State Government has ample powers to step in and issue necessary orders and instructions. It is further submitted that it was on the basis of the complaint preferred by the 6^th respondent that no NOC from the Pollution Control Board was available for the conduct of the cement godown that Exhibit P26 was issued. It is stated that in the report dated 6.11.2015 submitted before this Court, the Pollution Control Board had stated as follows.

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“Though they have provided an enclosure for the unit at a height of about 4 mtrs at the side of the nearest house, it can control spreading of dust to a certain extent only. Also it is not a fool-proof control measure. As the godown has to be kept in dry condition, no water

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W.P.(C).No.18532 of 2014

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sprinkling or similar control measures can be practiced there. Also there is no buffer space around the unit. Hence there is chance of environmental pollution due to cement dust in and around the godown.”

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6.I have considered the rival contentions and the pleadings and the materials on record. What is to be considered in this writ petition is the legality or otherwise of Exhibit P26 order. Exhibit P26 proceeds on the solitary grounds that no NOC from Pollution Control Board is available for the cement godown run by the petitioner. It does not refer to any report of the Pollution Control Board, Town Planning Officer or of any other authority.

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7.The petitioner is a person who has admittedly been issued with a licence by the Corporation. Any action for cancellation of the licence has to be taken by the competent authority in accordance with law and with due notice to him. Exhibit P24, which the Government as well as the contesting respondents alleged to be a notice for hearing which preceded Exhibit P26, refers to Ext.P15 judgment and a complaint dated 12.12.2013 preferred by the 5^th respondent. It is stated in the notice that since action in pursuance of Exhibit P15 judgment has not

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W.P.(C).No.18532 of 2014

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been taken by the Corporation, a hearing was proposed to be conducted on 27.5.2014. However, Exhibit P16 is the order dated 16.12.2011 which specifically refers to the directions contained in Exhibit P15 and communicates the decision of the Corporation to renew the licence issued to the petitioner. In the above circumstances, Exhibit P24 cannot be taken to be a notice which preceded Exhibit P26. Exhibit P26 also does not refer to any notice or hearing.

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8.The specific contention of the petitioner is that the petitioner is only stocking and selling cement and no NOC from the Pollution Control Board is required for the said activity. The Pollution Control Board had also no case that the petitioner's go-down was creating pollution to such an extent as to warrant a cancellation of licence. In any view of the matter, no such material was before the Government when it issued the impugned order. This Court in Exhibits P7 and P18 judgments had also considered the contentions raised with regard to the existence of pollution, but had held that such allegations are unsustainable. From a plain reading of the provisions of Sections 58, 61 and 449 of the Kerala Municipalities Act, 1924

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I am not persuaded to hold that the Government has jurisdiction to issue a direction in the nature of Exhibit P26 directing a local authority to cancel license and order closure of premises.

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9.If at all the contention based on Sections 58 and 61 is to be taken into account, the minimum requirement would be the existence of an order of the Government in exercise of its executive power. Article 166(1) of the Constitution of India provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Exhibit P26 is only in the nature of a letter or communication and cannot be considered to be an order of the Government for the purpose of Sections 58 and 61 of the Act. An examination of the nature of power under the said Sections need not therefore be gone into for deciding the issue raised in this case.

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Section 449 specifically confers discretion on the council of the local authority. It is only on being satisfied of the existence of situations warranting its exercise that the power

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W.P.(C).No.18532 of 2014

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for revocation of licence can be invoked. It is trite law that where an authority is conferred with discretionary power, such discretion cannot be exercised at the dictates of any other authority. No valid reasons are also stated in the impugned orders for the revocation of the licence. I therefore find that Exhibit P26 is totally devoid of jurisdiction. Exhibit P25 which is based only on the letter issued by the Government is also liable to be set aside. Accordingly, Exhibits P25 and P26 are quashed. However, it is made clear that the 2^nd respondent will be free to take appropriate action, in accordance with law, if it is found in future that situations exist that warrant the exercise of such power.

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Writ petition is ordered accordingly. No costs.

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sd/- Anu Sivaraman, Judge

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Viji Dias v. State of Kerala

Case brief

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Viji Dias v. State of Kerala

Case brief

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