Disposed

Kaipully Muhammed Alias Kunhapa Haji v. District Officer, Pollution Control Board

Kerala HC28 Jun 2016WP(C)/21150/2005

Case brief

AI extract

What is this about?

WP challenging a new canteen and toilet complex by KSRTC adjoining petitioner's property. Court held that since construction is new and no actual pollution exists, petitioner is only alleging apprehension. Dismissed based on PCB reports showing no leakage and tender clauses mandating waste treatment and consent.

What did the court decide?

Writ petition disposed of noting canteen needs PCB consent and waste disposal system; boundary wall maintenance permitted via ATO.

Kaipully Muhammed Alias Kunhapa Haji Vs District… — 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 MR.JUSTICE K.VINOD CHANDRAN

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TUESDAY, THE 28TH DAY OF JUNE 2016/7TH ASHADHA, 1938

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WP(C).No. 21150 of 2005 (P)

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PETITIONER(S):

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1. KAIPULLY MUHAMMED ALIAS KUNHAPA HAJI S/O. ASSA HAJI, AGED 73 YEARS,, KARYAVATTOM AMSOM, MANNARMALA DESOM, PERINTHALMANNA, MALAPPURAM DISTRICT. (DECEASED)

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Addl. 2. K.A.ABOOBACKER

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S/O.KUNHAPPA HAJI, KAIPALLY HOUSE, P.O.MANNARMALA, (VIA.) PATTIKKAD, MALAPPURAM DISTRICT.

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(ADDL. P2 (LEGAL HEIR OF P1) IS IMPLEADED AS PER ORDER DATED 23.1.12 IN I.A NO.1001/12)

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BY ADV. SRI.K.M.SATHYANATHA MENON

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RESPONDENT(S):

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1. THE DISTRICT OFFICER, POLLUTION CONTROL BOARD, DISTRICT OFFICE,DOWNHILL, MALAPPURAM-676505.

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2. THE DISTRICT MEDICAL OFFICER, MANJERRY-676121.

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3. THE PERINTHALMANNA MUNICIPALITY REPRESENTED BY ITS SECRETARY, PERINTHALMANNA, MUNICIPALITY, PERINTHALMANNA,, MALAPPURAM DISTRICT679322.

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4 . THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS, MANAGING DIRECTOR, TRANSPORT BHAVAN,, TRIVANDRUM-695003.

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5. THE CONVENOR, YATHRA SREE CANTEEN, K.S.R.T.C. BUS STAND, PERINTHALMANNA.[DELETED] [R5 IS DELETED AS PER ORDER DATED 09.02.2016 IN IA 1617/16.]

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R1 BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA,SC, SMT.K.K.THULASY BHAI,SC,POLLUTION C.BOARD SRI.JOICE GEORGE, SC, KERALA STATE POLLUTION CONTROL BOARD

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CONTD..2..

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.. 2 ..

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WP(C).No. 21150 of 2005 (P)

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M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD R2 BY GOVERNMENT PLEADER SRI P M SANEER R3 BY ADVs.SRI.P.K.VIJAYAMOHANAN

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SRI.GILBERT GEORGE CORREYA SRI.A.VELAPPAN NAIR SRI.P.C.SASIDHARAN, SC, PERINTHALMANNA MUNICIPALITY

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R4 BY ADVS. SRI.N.V.HARIDAS,SC,k SRI.P.PARAMESWARAN NAIR, SC, KSRTC SRI.JOY GEORGE, SC, K.S.R.T.C. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. ADVOCATE COMMISSIONER BY ADV. SRI.T.J.SEEMA R5 BY ADVS. SRI.C.KHALID SMT.K.S.HASEENA SMT.K.REEHA KHADER SMT.K.K.NESNA SRI.M.GOPIKRISHNAN NAMBIAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 21150 of 2005 (P)

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APPENDIX

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PETITIONERS EXHIBITS:

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EXT.P1:	COPY OF THE COMMUNICATION SENT BY THE MUNICIPALITY, PERINTHALMANNA DATED 12.06.2002.
EXT.P2:	COPY OF THE COMMUNICATION SENT BY THE MUNICIPALITY, PERINTHALMANNA DATED 12.06.2002.
EXT.P3:	COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE RESPONDENTS DATED 28.03.2005.
EXT.P4:	COPY OF THE COMPLAINT FILED BEFORE THE 3RD RESPONDENT MUNICIPALITY DATED 13.01.2010.
EXT.P5:	COPY OF THE NOTICE ISSUED TO THE 5TH RESPONDENT DATED 30.01.2010.
EXT.P6:	COPY OF THE INTIMATION ISSUED BY THE 4TH RESPONDENT DATED 9.2.2010 TO THE 2ND PETITIONER.
EXT.P7:	COPY OF THE APPLICATION FOR RENEWAL OF LICENSE DATED 25.2.2012 FILED BY THE 5TH RESPONDENT.
EXT.P8:	COPY OF THE COMPLAINT SUBMITTED BEFORE THE PERINTHALMANNA MUNICIPAL HEALTH INSPECTOR DATED 26.4.2012 BY THE APPLICANT.
EXT.P9:	COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT MUNICIPALITY DATED 1.6.2012 TO THE 5TH RESPONDENT.
EXT.P10:	COPY OF THE COMPLAINT SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT MUNICIPALITY/HEALTH INSPECTOR DATED 22.06.2012.
EXT.P11:	COPY OF THE COMMUNICATION ISSUED BY THE ENVIRONMENTAL ENGINEER OF THE KERALA STATE POLLUTION CONTROL BOARD TO THE ASSISTANT TRANSPORT OFFICER, KSRTC, PERINTHALMANNA DATED 26.06.2012.
EXT.P12: 3	COPY OF THE COMPLAINT DATED 5.7.2012 SUBMITTED BEFORE THE RD RESPONDENT.
EXT.P13:	COPY OF THE LICENSE ISSUED TO THE 5TH RESPONDENT BY THE 3RD RESPONDENT DATED 7.7.2012.
EXT.P14:	COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT TO THE ASSISTANT TRANSPORT OFFICER, KSRTC, PERINTHALMANNA DATED 10.7.2012.
EXT.P15:	COPY OF THE COMPLAINT DATED 10.7.2012 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT.

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CONTD..2..

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..2..

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WP(C).No. 21150 of 2005 (P)

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EXT.P16:	COPY OF THE PAPER REPORT DATED 11.7.2012 APPEARED IN MALAYALA MANORAMA.
EXT.P17:	COPY OF THE COMPLAINT SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT DATED 13.7.2012.
EXT.P18:	COPY OF THE DEATH CERTIFICATE OF 1ST PETITIONER ISSUED BY THE CORPORATION OF KOZHIKODE DATED 26.10.2005.
EXT.P19:	COPY OF THE RELEVANT PORTION OF THE TENDER FROM ISSUED BY THE KSRTC.
EXT.P20:	COPY OF THE TENDER FROM ISSUED BY THE 4TH RESPONDENT DATED 3.10.2015.
EXT.P21:	COPY OF THE PHOTOGRAPH.
EXT.P22:	COPY OF THE SKETCH SHOWING THE LIE AND LOCATION OF THE KSRTC, BUS STAND, PERINTHALMANNA.
RESPONDN	ETS EXHIBITS:

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ANNX.R1(A):	COPY OF THE DIRECTION DATED 11.10.2011.
ANNX.R1(B):	COPY OF THE LETTER DATED 18.11.2011.
ANNX.R1(C):	COPY OF THE DIRECTION DATED 9.01.2012.
ANNX.R1(D):	COPY OF THE LETTER RECEIVED FROM ATO DATED 6.2.2012.
ANNX.R1(E):	COPY OF THE DIRECTION DATED 28.06.2012.
ANNX.R1(F):	COPY OF THE LETTER RECEIVED FROM DTO DATED 11.09.2012.
ANX.R1(G):	COPY OF ANALYSIS REPORT DATED 31.03.2014.
EXT.R5(A):	COPY OF THE COMMUNICATION BEARING NO.P.H.357/12 DATED 21.07.2014 ISSUED BY THE THIRD RESPONDENT.
EXT.R5(B):	COPY OF THE LICENSE BEARING NO.001354 ISSUED BY THE DESIGNATED OFFICER UNDER FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA.
ANNX.C1:	PHOTOGRAPH OF THE PVC PIPES USED FOR DRAINAGE.
ANNX.C2:	PHOTOGRAPH OF THE WASTER ON THE NORTHERN SIDE OF THE CANTEEN.
ANNX.C3(a):	PHOTOGRAPH OF TWO CHIMNEYS OUTSIDE THE KITCHEN.
ANNX.C3(b):	PHOTOGRAPH OF TWO CHIMNEYS OUTSIDE THE KITCHEN.

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CONTD..3..

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.. 3 ..

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WP(C).No. 21150 of 2005 (P)

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ANNX.C4: PHOTOGRAPH OF THE LODGE. ANNX.C5: PHOTOGRAPH OF THE URINAL WASTE WAS FLOWING FROM THE BROKEN PIPE. ANNX.C6: PHOTOGRAPH OF THE WASTE WATER FLOWING OUT FROM URINALS. ANNX.C7: PHOTOGRAPH OF THE WASTE WATER FLOWING OUT FROM THE KITCHEN. ANNX.C8: PHOTOGRAPH OF THE DRAINAGE. ANNX.C9: PHOTOGRAPH OF THE SEWAGE PIT. ANNX.C10: PHOTOGRAPH OF THE WASTE BURNED IN THE PREMISES OF CANTEEN.

/TRUE COPY/

P.A TO JUDGE

LSN

K. VINOD CHANDRAN, J.

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===================== W.P.(C) No.21150 of 2005 - P

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

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Dated this the 28^th day of June, 2016

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J U D G M E N T

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The second petitioner impleaded herein is the son of

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the original petitioner (now deceased) in the writ petition, who

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will be referred to as the petitioner herein.

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The father of the petitioner had a Tourist Home by name KMH Tourist Home at Perinthalmanna. The respondent Corporation (K.S.R.T.C) purchased about 2 Acres of property adjacent to the said Tourist Home. The Tourist Home is said to be constructed adjoining the boundary of the adjacent property, which is now purchased by the K.S.R.T.C. This was so since, the building was constructed long back and there was no prescription of any set back as per the rules that existed then. The father of the petitioner is alleged to have closed down the

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W.P.(C) No.21150 of 2005 - P

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Tourist Home, for reason of a canteen and toilet complex erected by the K.S.R.T.C very near to the petitioner's building.

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The petitioner had been before this Court in the year 2005 and the records show that the petitioner had taken out a Commission and many a time, the Pollution Control Board had also filed reports after inspection; all of which advanced the case of the petitioner. The Municipality too had inspected the site on the complaints made by the petitioner. There was found gross pollution, causing constant nuisance to the petitioner particularly and the public in general. The said contentions no longer survive, since the objectionable construction has, while the matter was pending here, been demolished. The canteen too was closed down.

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Now a new construction has came up; again with provision for a canteen and toilet stalls. The toilet stalls though opened to the commuter-public, the canteen has not yet been commenced in the said premises. The petitioner contends that

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W.P.(C) No.21150 of 2005 - P

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even now the construction has been made in an objectionable location, which would cause nuisance in the enjoyment of the petitioner's property. The petitioner also relies on the report dated 17.09.2014 filed by the Pollution Control Board. In the said report, according to the petitioner, it has been stated that the location of the canteen and nearby comfort station would result in nuisance to the public including the petitioner. After the erection of the new building with the canteen and the toilet complex, there is no canteen commenced in the building and the reference made in the cited report is to the earlier building.

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The petitioner has amended the writ petition and

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has challenged the construction carried out at the new location as also the proposal to have a canteen and toilet complex in the said location. As of now, since the canteen has not started, there can be no ground of pollution raised and the petitioner only apprehends that there would be pollution, if such canteen is commenced in the building now constructed.

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W.P.(C) No.21150 of 2005 - P

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The learned Standing Counsel for the K.S.R.T.C

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however, would refer to the terms and conditions of the agreement at Ext.P20, which specifically speaks of the following two conditions:

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3..åµÞaàÈßW ÈßKá¢ Éáù¢ÄUáK ÎÜßÈ¼Ü¢ ÉøßØø ÎÜßÈàµøÃ¢ §ÜïÞæÄ Ø¢ ØíAøßAáKÄßÈáU Ø¢ÕßÇÞÈ¢ ØbL¢ ÈßÜÏßW Ø¼í¼àµøßçAIÄÞÃí

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Based on this, it is contended that the contractor,

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who has now been awarded the contract is specifically interdicted from using fire wood in the building and has also to install a waste disposal treatment plant before the operation of the canteen is commenced.

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As to the toilet complex causing pollution to the petitioner's property, this Court had specifically directed the Pollution Control Board to inspect the same and file report. Initially, the Pollution Control Board filed a report dated 02.03.2016, paragraph 1, which reads as under:-

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W.P.(C) No.21150 of 2005 - P

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In compliance to the Order dated 14.12.2015 in W.P.(C) No.21150/2005(p) if Hon'ble High Court of Kerala, an inspection was conducted on 03.02.2016 at K.S.R.T.C Canteen premises in the above writ petition. During inspection it is seen that the old Yatra Sree Canteen is demolished at present and a new canteen is under construction. The old latrine and urinal toilets are not in use. Maintenance works have been done for solving the leakage from existing septic tank. Hence at the time of inspection, no leakage from septic tank was noticed.

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Again on the insistence of the petitioner, a further report was directed to be filed. The report dated 21.06.2016, reads as under:-

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The court has directed this respondent to file a report regarding the matters alleged in WPC in the order dated 16.06.2016. Hence an inspection was conducted in the premises of the bus stand on 18.06.2016, the measurement was conducted by the measuring tap. It was seen that the distance from the diesel storage tank to the Canteen is 12.40 m and distance from diesel storage tank to the petitioners Tourist Home is 28.20 m. The septic tank of the comfort station and staff toilets were seen clean and no sign of overflow was seen at that time.

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In such circumstance, as of now, the contention

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of the petitioner against the carrying on of the canteen and

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toilet complex cannot be countenanced. The petitioner's allegation of pollution is only based on an apprehension. The canteen and toilet complex constructed earlier, which was objected to by the petitioner's father, is no more continued. The said building has been demolished and a new building has been constructed. However, if any pollution is caused, definitely, the petitioner would be entitled to bring it to the notice of the Municipality or the Pollution Control Board, who shall take immediate action and ensure that the pollution caused is abated, failing which the canteen or the toilet complex directed be shut down. The KSRTC shall also ensure that the canteen is commenced only after installation of the waste disposal system and obtaining consent of operation from the PCB.

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One other contention raised by the petitioner is

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that the petitioner's building abuts the property of the K.S.R.T.C and any maintenance to be carried on to the building on the wall which abuts the K.S.R.T.C property can be done only

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W.P.(C) No.21150 of 2005 - P

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through the property of the K.S.R.T.C.If the petitioner files an application for carrying out such periodic maintenance, the Assistant Transport Officer shall permit the same and the petitioner shall carry out such maintenance, without any hindrance to the activities carried on by the K.S.R.T.C.

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The writ petition would stand disposed of. No costs.

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Sd/-

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K. VINOD CHANDRAN,

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JUDGE

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SB/28/06/2016

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// true copy //