Allowed

Binitha v. State of Kerala

Kerala HC15 Nov 2016WP(C)/26366/2012

Case brief

AI extract

What is this about?

The High Court allowed a writ petition complaining of pollution from an unauthorized automobile body building unit. The court quashed a local committee decision granting a license and directed authorities to stop the unit's functioning due to violations of environmental consent conditions.

What did the court decide?

Writ petition allowed; Committee license decision set aside; Unit directed to stop functioning immediately; Petitioners to be heard before consent/license renewal if applied for.

Binitha 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 MR.JUSTICE K.VINOD CHANDRAN

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TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938

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WP(C).No. 26366 of 2012 (U)

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PETITIONER(S):

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1. BINITHA, AGED 41 YEARS, W/O LATE ANIL KUMAR, EDAT HOUSE, KANDAANASSERY, ARIYANNOOR P.O, GURUVAYOOR, TRISSUR DISTRICT 680102

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2. SHERLY, W/O HENRY P.V., PULIKKOTTIL HOUSE, KANDAANASSERY, ARIYANNOOR P.O, GIRUVAYOOR, TRISSUR DISTRICT 680102

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BY ADV. SRI.A.KRISHNAN

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT,SECRETARIAT, THIRUVANANTHAPRUAM 695 001.

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2. KANDANASSERI GRAMA PANCHAYATH, MATTOM P.O., THRISSUR DISTRICT 680 602, REPRESENTED BY ITS SECRETARY.

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3. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, 6TH FLOOR, SUB TOWER, EAST FORT P.O, TRISSUR 680005.

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4. JOSHY, S/O KOCHU MATHEW, MYTHREE BUS BODY BUILDING GARAGE, 6/670-C, KANDANASSERI GRAMA PANCHAYATH, ARIYANNOOR P.O., THRISSUR DISTRICT - 680102.

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5. APPUNNI, S/O RAMAN, KOTTEPARAMBIL, KANDANASSERI GRAMA PANCHAYATH, ARIYANNOOR P.O., TRISSUR DISTIRCT 680102.

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6. CIRCLE INSPECTOR OF POLICE, GURUVAYOOR, TRISSUR DISTRICT-680 101.

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R1 & R6 BY GOVERNMENT PLEADER SMT.VINEETHA HARIRAJ R2 BY ADVS. SRI.M.ANIL KUMAR

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SMT.PREETHI K.PURUSHOTHAMAN

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R3 BY ADV. SRI. M.AJAY, SC R4 & R5 BY ADV. SRI.K.G.BALASUBRAMANIAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-11-2016 ALONG WITH WPC.14519/2016 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 26366 of 2012 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.	P1	TRUE COPY OF THE 2ND RESPONDENT BY	REPRESENTATION FILED BEFORE THE THE 1ST PETITIONER DATED 19-08-2011
EXT.	P1(A)	TRUE COPY OF THE 3RD RESPONDENT BY	REPRESENTATION FILED BEFORE THE THE IST PETITIONER DATED 31-07-2012
EXT.	P2	TRUE COPY OF THE 3RD RESPONDENT BY	REPRESENTATION FILED BEFORE THE THE IST PETITIONER DATED 19-08-2011
EXT.	P2(A)	TRUE COPY OF THE 2ND RESPONDENT BY	REPRESENTATION FILED BEFORE THE THE 2ND PETITIONER DATED 14-08-2012
EXT.	P3	TRUE COPY OF THE 6TH RESPONDENT BY	COMPLAINT FILED BEFORE THE IST PETITIONER DATED 03-03-2012
EXT.	P4	TRUE COPY OF THE 2ND RESPONDENT BY	REPORT FILED BEFORE THE COMMITTEE DATED -03-2012
EXT.	P5	TRUE COPY OF THE 2ND RESPONDENT TO	INTIMATION SENT BY THE 1ST PETITIONER DATED 17-05-2012
EXT.	P6	TRUE COPY OF THE TO 1ST PETITIONER	REPLY SENT BY THE 3RD RESPONDENT DATED 17-08-2012
EXT.	P7	TRUE COPY OF THE 2ND RESPONDENT BY	REPRESENTATION FILED BEFORE THE PETITIONERS DATED 09-08-2012
EXT.	P8	TRUE COPY OF THE 3RD RESPONDENT BY	REPRESENTATION FILED BEFORE THE PETITIONERS DATED 09-08-2012
EXT.	P9	TRUE COPY OF THE BEFORE 2ND RESPON	ADDITIONAL REPRESENTATION FILED DENT BY PETITIONERS DATED 21-08-2012
EXT.	P10	TRUE COPY OF THE 2ND RESPONDENT BY	REPRESENTATION FILED BEFORE PETITIONERS DATED 22-08-2012
EXT.	P11	TRUE COPY OF THE DATED 23-8-2012	REPLY SENT BY THE 3^RDRESPONDENT
EXT.	P12	TRUE COPY OF THE 2ND RESPONDENT BY	REPRESENTATION FILED BEFORE PETITIONERS DATED 18-10-2012
EXT.	P13	TRUE COPY OF THE 3RD RESPONDENT BY	REPRESENTATION FILED BEFORE PETITIONERS DATED 18-10-2012
EXT.	P14	MINUTES OF THE GR DISTRICT DTD.14.3 COMMITTEE WITH NO	EEN CHANNEL COMMITTEE, TRISSUR .2013, WHEREIN THE DECISION OF THE .B1/9409/12 IS RECORDED.

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WP(C).No. 26366 of 2012 (U)

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IA.7144/2013 IN WPC.26366/2012

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------------------------------EXT.P14 COMPACT DISC IN WHICH THE ACTIVITIES CONDUCTED BY THE 4TH RESPONDENT IN THE SHED IS RECORDED.

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IA.15014/2013 IN WPC.26366/2012

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EXT.P15 COMPACT DISC IN WHICH THE ACTIVITIES CONDUCTED BY THE 4TH RESPONDENT IN THE SHED IS RECORDED.

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IA.17429/2013 IN WPC.26366/2012

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EXT.P16	TRUE COPY OF THE COMPLAINT WITH PHOTOGRAPH
	DTD.31.10.2014, FILED BY THE PETITIONER BEFORE THE
	CIRCLE INSPECTOR OF POLICE, GURUVAYOOR.

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EXT.P17	TRUE COPY OF RECEIPT INSPECTOR OF POLICE, OF EXT.P16 COMPLAINT	DTD.31.10.2014, ISSUED BY CIRCLE GURUVAYOOR ACKNOWLEDGING RECEIPT

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EXT.P18	TRUE COPY OF THE PARTNERSHIP DEED DTD.15.9.2011, BETWEEN THE PETITIONER AND ONE JOSHY.
EXT.P19	TRUE COPY OF THE SALE DEED NO.2201/11 DTD.7.10.2011.
EXT.P20	TRUE COPY OF THE TAX RECEIPT DTD.21.10.2011, ISSUED BY VILLAGE OFFICE, KANDANASSERY, TRISSUR DISTRICT, IN FAVOUR OF JOSHY.

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RESPONDENT(S)' EXHIBITS

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ANNEX.R3(a): TRUE COPY OF THE CONSENT TO OPERATE DTD.9.7.2012.

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ANNEX.R3(a): TRUE COPY OF THE SHOW CAUSE NOTICE DTD.25.3.2013. &

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ANNEX.R3(a): TRUE COPY OF THE CONSENT WITHDRAWAL ORDER DTD.27.1.2014. &

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ANNEX.R3(a): LETTER NO.PCB/RO-EKM/COMP-TSR/GEN-10/11 DTD.25.6.2014.

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ANNEX.R3(b): TRUE COPY OF THE SHOW CAUSE NOTICE DTD.16.8.2012. ANNEX.R3(c): TRUE COPY OF THE REPLY DTD.4.9.2012. ANNEX.R3(d): TRUE COPY OF THE ORDER DTD.20.9.2012. Msv/

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WP(C).No. 26366 of 2012 (U)

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EXT.R5(a): TRUE COPY OF LICENSE NO.A3/232/2002 DTD.5.12.2002 ISSUED BY THE PANCHAYATH.

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EXT.R5(b); TRUE COPY OF LICENSE NO.A2/8/2011-12 DTD.NIL ISSUED BY THE PANCHAYATH.

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EXT.R5(c): TRUE COPY OF COMPLAINT DTD.21.8.2012 MADE BY THE 1ST PETITIONER TO THE PANCHAYATH.

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EXT.R5(d): TRUE COPY OF NOTICE NO.B5-3533/12 DTD.22.8.2002 ISSUED BY THE PANCHAYATH.

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EXT.R5(e): TRUE COPY OF MY EXPLANATION DTD.4.9.2012 TO THE PCB.

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EXT.R5(f): TRUE COPY OF APPEAL PETITION DTD.17.10.2012 TO THE PANCHAYATH COMMITTEE.

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EXT.R5(g): TRUE COPY OF LETTER NO.PCB/TSR/GEN/59/06 DTD.31.12.2012 FROM THE PUBLIC INFORMATION OFFICER, PCB.

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EXT.R5(h): TRUE COPY OF REPORT NO.A3-183/12 DTD.4.12.2012 OF THE PERFORMANCE AUDIT UNIT.

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EXT.R5(i): TRUE COPY OF LETTER A212 DTD.25.8.2012 OF THE PANCHAYATH SECRETARY.

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EXT.R5(j): TRUE COPY OF APPEAL PETITION TO THE CHIEF ENVIRONMENTAL ENGINEER DTD.15.1.2013.

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EXT.R5(k): TRUE COPY OF APPEAL PETITION TO THE MEMBER SECRETARY DTD.21.1.2013.

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EXT.R5(l): TRUE COPY OF APPEAL PETITION TO THE CHIEF ENVIRONMENTAL ENGINEER DTD.21.1.2013.

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EXT.R5(m): TRUE COPY OF CIRCULAR NO. ISSUED BY KERALA STATE POLLUTION CONTROL BOARD TO LOCAL SELF GOVERNMENT INSTITUTIONS (GO) NO.7923/G-98/HFD DTD.24.10.1998.

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IA.7598/2014 IN WPC.26366/2012

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REFERENCER A: PHOTOGRAPHS SHOWING THE SITE OF THE WORKSHOP RUN BY THE 4TH RESPONDENT.

//TRUE COPY//

P.S.TO JUDGE

msv/

K. VINOD CHANDRAN, J.

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

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W.P.(C) Nos.26366 of 2012 – U and

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14519 of 2016 - L

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====================== Dated this the 15^th day of November, 2016

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J U D G M E N T

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W.P.(C) No. 26366 of 2012 is filed against an

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automobile body building Unit carried on allegedly, by the 4^th respondent in the name of the 5^th respondent, in an adjacent property of the petitioners. W.P.(C) No.14519 of 2016 has been filed by the 5^th respondent for facilitating the smooth functioning of the Unit; without interference by the authorities.

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W.P.(C) No.26366/2012, filed long back, is first considered and the parties are referred to, through out, from their status therein. The petitioners are aggrieved with the pollution caused by the Unit carried on without any valid license or consent. It is also alleged to be carrying on activities,

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not permitted by the D & O license earlier issued by the Panchayath and not consented to, by the Kerala State Pollution Control Board (PCB). Exts.P1, P1(a) and P2 complaints were filed before the Panchayath and the PCB alleging nuisance and pollution caused from the functioning of the Unit followed up with a further representation produced at Ext. P3 before the jurisdictional Police. An enquiry was conducted by the Panchayat and as per Ext.P4 it was found that the complaint was genuine. The enquiry report also indicated that if a wall is built on the north, west and south of the property, enclosing the unit, there could be mitigation of the grievance raised by petitioners 1 and 2. Based on the report, the application for license for the year 2012-2013 was declined as per Ext.P5. Ext. P5 referred to the complaint filed by the 1^st petitioner and also the fact that the Unit was not carrying on any auto-body building and was involved in fabrication works; which was not

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a permitted activity.

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The Unit continued functioning, upon which the 1^st petitioner approached the PCB with a query as to any consent issued to the 4^th respondent. By Ext.P6 the PCB replied that there was a consent issued to the 5^th respondent, to carry on a bus body building unit and there was no consent issued to the 4^th respondent. The petitioners again addressed the Secretary of the Panchayath and the PCB alleging that the unit was carried on by the 4^th respondent on the basis of a consent to operate issued to the 5^th respondent and the notices issued on the strength of the complaints filed, were issued to the 5^th respondent, making the exercise futile.

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The consent to establish obtained by the Unit, as applied for by the 5^th respondent in his status as Managing Partner, is produced at Ext.P11. The consent is dated 09.07.2012 and is valid up to 31.12.2014. Based on the

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complaints and the inspection conducted, the PCB had issued Ext.P12 consent withdrawal notice dated 16.08.2012 . Ext.P12 noticed that the Unit is situated within the objectionable distance from the 1^st petitioners residence and that there was no consent obtained to carry on metal fabrication works. It was opined that the space available is insufficient to carry on both the activities of body building and fabrication. The functioning of the unit was also found to be causing noise pollution beyond the permitted limits. The writ petition was filed seeking implementation of the consent withdrawal and the stoppage of the functioning of the unit. Subsequently, the Green Channel Committee had taken Ext.P14 decisions, one of which was the sanctioning of the license to the bus body building unit. In such circumstance, the writ petition was amended by challenging the decision at Ext.P14, seen at Sl.No.1.

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The learned Counsel for the petitioners submits

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that though there was a license issued by the Panchayath for a body building unit earlier, when the 1^st petitioner purchased the property, there was no such unit operating in the neighbouring land. The 2^nd petitioner in any event was residing there from 1993 onwards and though a consent was obtained from her at the inception it was only for a small workshop. The Unit now is carrying on spray painting and metal fabrication works, which is not permitted to be carried on by the PCB, even as per the consent to operate issued, which also has been later withdrawn. The consent to operate obtained under Ext.P11 is said to be one issued for the first time, on an application made by the 5^th respondent, after the sale of the property was effected by Ext.P19. The partnership executed by respondents 5 and 4, which is evidenced by Ext.P18, it is argued, is a sham document for more than one reasons. It is

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submitted that the 5^th respondent has only a marginal share of 5%, making it clear that the partnership is entered into only for the purpose of raising a claim of the Unit having been continued for long and thus get the benefit of the consent issued to the 5^th respondent. It is also submitted that the partnership executed prior to the sale can no more be relied on for reason of the 5^th respondent having sold the entire rights over the property and the Unit as per Ext.P19, which in effect, determines the partnership itself. The petitioner hence, seeks for closure of the unit carried on by the 4^th and 5^th respondents, which is without license and without the permission from the PCB.

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The learned Counsel for respondents 4 and 5 submits that the partnership survives the sale deed and it is hence the 5^th respondent in his capacity as Managing Partner applied for the consent to operate before the PCB. The 5^th

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respondent is the petitioner in the other writ petition, who contends that the unit was carried on from 2002-2003 continuously till 2012, when the 5^th respondent had obtained consent to operate from the PCB. It is also submitted that with respect to an automobile body building unit, there is no requirement for a Consent to Operate, as can be seen from Ext. P20 produced in W.P.(C) No.1419 of 2016.

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The learned Counsel would also contend that the 2^nd petitioner had issued a consent at the time of establishment and the 1^st petitioner had purchased the adjacent property after the establishment of the unit in the year 2002-2003. The writ petition filed by the 5^th respondent seek for a declaration that the consent of the PCB is unnecessary to run an automobile body building unit going by Ext.P20 circular produced in his writ petition and for a direction to respondents 3 and 4, the Secretary and Committee of the

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Panchayath to renew the license so as to carry on the bus building unit. The decision of the Panchayath not to renew the license and that of the PCB to withdraw consent are challenged before the respective appellate authorities, argue learned Counsel.

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The learned Standing Counsel for the PCB asserts that Ext.P20 produced in W.P.(C) No.14519/2016 is no more applicable. It is submitted that there were various inspections conducted, based on which reports have been filed before this Court, which clearly indicate the party respondents having violated the conditions of consent, based on which the withdrawal of consent was effected. It is also submitted that the Government has issued further circulars, which prescribes that the bus body building unit also have to be granted consent to establish and operate, categorising them as Orange category industries, as is clear from Ext.R5(f) & (h) produced

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along with the counter affidavit in W.P.(C) No.14519 of 2016. Ext.R5(f)notification was further amended by Ext.R5(g), in which also the categorisation with respect to the subject unit was Orange Category. The learned Counsel for the respondent Panchayath too submits that there is no license issued by the Panchayath, for reason of the pollution complained of by the petitioners having been found to be correct on various inspections conducted.

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As of now there is no license issued to the Unit by the Panchayath and there is also no valid consent to operate issued by the PCB; but the Unit is said to be functioning. The inspections conducted by the P.C.B have revealed the gross pollution occasioned by the functioning of the Unit. A report filed on 12.12.2012 in W.P.(C) No. 26336 of 2012 indicates that the Unit was established with a consent to operate from the PCB dated 09.07.2012 for body building of 5 numbers of buses

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per month and also fabrication of metal products on job work basis. On complaints received from the petitioners, it was found that the simultaneous bus body building work and the work of metal fabrication causes hardship to the complainants. The Unit was issued with notice on 16.08.2012 to show cause as to why the consent for fabrication shall not be withdrawn. The same is produced as Annexure R3(b) (Ext.P11/8&9) along with the report. A show cause notice was again issued on 04.09.2012, after consideration of which, the consent to operate for metal fabrication was withdrawn vide order dated 20.09.2012, produced as Annexure R3(d).

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A further report has been filed on 25.03.2013, that the fabrication work was continued in the Unit and in addition spray painting work was carried on both of which were not consented to by the PCB. Again an inspection was conducted on 13.03.2013 and it was found that the consent

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conditions at 4.4 and 5.4 of the original consent were not complied with. A reading of the consent issued on 09.07.2012, indicates that as per clause 4.4, there was a specific restriction against spray painting work being carried out. Clause 5.4 also had a further condition that the sides of the work shed would be enclosed with solid brick walls before 31.08.2012. Based on the said findings a withdrawal order was issued as per Ext.R3(a) dated 25.03.2013, which is produced in the report filed by the 3^rd respondent on 25.03.2013. Yet again a report dated 29.01.2014 has been placed on record from which, it is revealed that the inspection conduced by the Board official on 07.01.2014 again detected carrying on of gate grill and tress works and that there was no enclosure with the brick walls of 7m. as has been stipulated in the original consent to operate. Again a further withdrawal was made as per Ext.R3(a) dated 27.01.2014.

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In the writ petition filed by the 5^th respondent (W.P.(C) No.14519 of 2016), the 5^th respondent has produced Ext.P1, a license issued for the year 2002-03. The further license produced is Ext.P2 for the year 2011-12 and there is no license produced for the intervening years. The 5^th respondent being a party in W.P.(C) No.26366 of 2012 was quite aware of the allegations raised as to the unit having been discontinued in the year 2002-03 and then having been commenced only in the year 2011-12 after the unit was transferred in the name of the 4^th respondent. In such circumstance, it was incumbent upon the 5^th respondent to establish that the unit was continuously functioning from the issuance of the first license

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to claim for a mandamus for renewal of the same by the Panchayath.

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The further contention taken by the 5^th

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respondent, relying on Ext.P20 produced in his writ petition is

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that there is no requirement for an automobile body building unit to get a consent to operate from the PCB. An automobile repair shop and body building unit has been exempted as included in Item No.3 of Ext.P20 circular. However that does not absolve the unit totally from getting a consent to establish or operate, since the exemption granted is subject to three conditions as noticed in the circular itself. The first condition is the gross pollution being occasioned or an apprehension of such occurrence or even a complaint being filed on the pollution being occasioned by the carrying on of any industry. The second condition also refers to the occurrence or the possibility of sound pollution on the functioning of the unit. Both these conditions stare at the face of the 5^th respondent and the contention that there need not be any consent to operate for an automobile work shop cannot be countenanced. Even accepting for arguments sake; that at the

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time of issuance of the first license for the period 2002-03 there was an exemption available to auto-body building Units, the pollution caused on the functioning or a complaint in that respect will clothe the PCB with powers to provide for sufficient measures to avert the pollution caused or apprehended.

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In any event, it has also been shown by the PCB in its counter affidavit filed in W.P.(C) No.14519 of 2016 that there is substantial change in the regulations as per Ext.R5(f) dated 21.10.2002 and Ext.R5(g) dated 31.08.2016 on the categorisation made of an automobile body building unit as an Orange Category industry. The counter affidavit of the PCB in W.P.(C) No.14519 of 2016 has produced the consent to operate dated 09.07.2012 issued to the petitioner as Ext.R5(a) and the various withdrawal notices above referred being that of 16.08.2012 as Ext.R5(b) and 20.09.2012 as Ext.R5(d) and one

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dated 27.01.2014 as Ext.R5(e). It is pertinent to observe that some of the consent withdrawal orders, are said to be pending in appeal before the Chief Environmental Engineer as evidenced by Ext.'s P10, P11 and P12 {in W.P.(C) No.14519 of 2016} in which obviously the 5^th respondent has not received any favourable orders. The 5^th respondent's contention with respect to exemption has to be negatived by this Court, going by the terms of Ext.P20 Circular itself and on the substantial modification brought in by Exts. R5 (f) & (g).

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The 5^th respondent cannot contend that there was a license issued in the year 2002-03, which was continued in all the intervening years, before the consent to operate was obtained in the year 2012 or that the change in law brought about by Ext. R5 (f) {in W.P.(C) No.14519 of 2016} will not affect the Unit. Primarily there is nothing to substantiate that the Unit was carried on in the intervening years with valid license from

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the Panchayath. From the documents produced by the 5^th respondent itself no license was issued after 2002-03 till 201112. True that there was a licence issued for the year 2011-12 as is seen from Ext.P2 produced along with W.P.(C) No.14519 of 2016. Ext.R5(f) produced along with counter affidavit of the PCB in W.P.(C) No.14519 of 2016 is dated 21.10.2002 and hence as on date of issue of Ext.P2, there had to be a consent to operate by the PCB; when the Unit was attempted to be restarted. Such consent from P.C.B was obtained only on 09.07.2012 (Ext.P11), which also was later withdrawn.

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The 5^th respondent contends that he did not make an application for renewal of the license issued at Ext.P2, based on the order of the Green Channel Committee produced at Ext.P14, which is dated 14.03.2013. A further application before the Panchayath was made by Ext.P13 for the year 201617, which was rejected by Ext.R3(b) produced by the

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Panchayath in its counter affidavit in W.P.(C) No.14519 of 2016. It is also significant that though the 5^th respondent claims that an automobile body building unit is exempted, all the same application was made for a consent to operate, which was granted as indicated by the consent to operate on 09.07.2012, which was on specific conditions, many of which were not complied with by the 5^th respondent. Inspections were conducted and nuisance and pollution having been detected orders withdrawing the consent granted were issued, which are existing as of now. Though appeals are filed there are no orders forthcoming. More importantly the conditions of consent issued were also not complied with. 1988 (2) KLT 73 Madhavi Vs. Thilakan highlighted the importance of public health even over the right to livelihood; when the activity resorted to for livelihood, invades another home with toxic fumes and tormenting sounds resulting in harmful pollution

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and sheer nuisance. Apt is the dictum in the present case.

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There cannot be any dispute that the industry carried on by the petitioner being an automobile body building Unit requires consent to operate from the PCB, as found herein above. There can be no exemption claimed on the basis of Ext.P20 produced in W.P.(C) No.14519 of 2016. The consent to operate issued by the PCB to the 5^th respondent dated 09.07.2012 was withdrawn and in any event had only a validity period till December 2014. Even during the validity period, the consent to operate was withdrawn by the PCB for various reasons being the carrying on of metal fabrication works; not permitted by the consent to operate, for carrying on spray painting work; which was specifically prohibited in the consent issued by the PCB and also for not complying with the conditions of having three sides of the Unit enclosed with walls.

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The 5^th respondent has a contention that while a wall was sought to be constructed, the same was objected to by the 1^st petitioner and in such circumstance, the Panchayath issued a stop memo. The objection raised, it is to be noticed was on construction of the wall made by the 5^th respondent over that on the eastern boundary of the first petitioner, which customarily belongs to the first petitioner. The schedule as seen from Ext.P19 sale deed indicates that the first petitioner has her property on the northern and western side of the 4^th respondents property. There is a Panchayath road on the eastern boundary of the 4^th respondent's property. The 4^th respondent would be entitled to construct a wall on his northern and eastern boundary going by Rule 10 of the Kerala Panchayath Building Rules, 2011 (for brevity 'the Building Rules), even without a permission from the Panchayath. However, a wall constructed even within the boundary of the

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4^th respondent's property on the western side would have to

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be with sanction from the Panchayath. So would a boundary wall abutting the Panchayath road on the eastern side of the 4^th respondent's property require sanction.

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Be that as it may, the construction of the wall on the three sides was not the only objection on which consent to operate was withdrawn. The consent to operate was withdrawn for nuisance and pollution detected on inspection and for violation of conditions of consent as also for carrying on prohibited activities. The respondents 4 and 5 are hence carrying on the unit without license and without a consent to operate as is required under the various enactments and circulars referred above. In such circumstance, the contention with respect to whether the 5^th respondent has locus standi need not be looked into at this point. The partnership as seen from Ext.P18 document, evidently is to ensure the continuance

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of the industry; as pleaded by the 5^th respondent in their counter affidavit in W.P.(C) No.26366 of 2012 and also in the memorandum of writ petition in W.P.(C) No.14519 of 2016. This Court has also found that there is nothing to substantiate the functioning of the industry with valid license after 2002-03. till 2011-12.

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The permission issued under Ext.P13, is by a Green Channel Committee, the authority for which is not forthcoming either from the respondents 4 & 5 or the 1^st respondent, the State of Kerala. In such circumstance, Ext.P14 insofar as the decision bearing No.B1/9409 of 2012 relating to M/s. Mythree Bus Body Building would have to be set aside. I do so and W.P.(C) No.26366 of 2012 is allowed, directing the respondent Panchayath and the 3^rd respondent Officer of the PCB to immediately ensure that the Unit carried on by the respondents 4 and 5 is stopped. However, this would not

¶153

¶154

W.P.(C) Nos.26366 of 2012 – U and 14519 of 2016 - L

¶155

preclude the right of the respondents 4 and 5 to apply for a fresh consent to operate from the PCB and then approach the Panchayath for issuance of a license. If the respondents 4 and 5 make an application for consent to operate, then necessarily the petitioners also would have to be heard. If consent to operate is issued, when the Panchayath considers the issuance of D& O licence, then also the petitioners would have to be heard.

¶156

The prayers in W.P.(C) No.14519 of 2016 for declaration of exemption and for direction to renew the license cannot be allowed. W.P.(C) No.14519 of 2016 would stand dismissed, reserving the right to approach the PCB and also the Panchayath. It is made clear that the respondents 4 and 5 shall not at any cost be permitted to carry on any metal fabrication work or spray painting work in the Unit; if at all body building is permitted. The 4^th and 5^th respondents shall

¶157

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W.P.(C) Nos.26366 of 2012 – U and 14519 of 2016 - L

¶159

also be entitled to make an application for construction of wall within their western boundary and on their eastern boundary. The Panchayath shall also expeditiously consider the same on an application being filed.

¶160

In the result, W.P.(C) No.26366 of 2012 would stand allowed and W.P.(C) No.14519 of 2016 would stand dismissed with the above directions. No costs.

¶161

Sd/-

¶162

K. VINOD CHANDRAN,

JUDGE

jjj/SB/16 /11/2016

// true copy //

P.A to Judge

Binitha v. State of Kerala

Case brief

What is this about?

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Binitha v. State of Kerala

Case brief

What is this about?

What did the court decide?

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