Disposed

Santhosh v. Cherpulassery Municipality

Kerala HC6 Jul 2018WA/1323/2017

Case brief

AI extract

What is this about?

This court closed a writ appeal challenging a Single Judge's order that permitted a respondent's workshop operations. The court held that the appeal could not be pursued because the respondent's workshop had closed following her husband's death and was transferred to a new operator, rendering the original judgment regarding her activities inapplicable.

What did the court decide?

Written appeal closed without prejudice to the right to initiate proceedings against the new business operator.

Santhosh Vs Cherpulassery Municipality — Environment and Pollution | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT: THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940

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WA.No. 1323 of 2017 IN WPC. 34475/2015

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AGAINST THE ORDER/JUDGMENT IN WP(C) 34475/2015 of HIGH COURT OF KERALA DATED 11-11-2016

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APPELLANT(S)/PETITIONER

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SANTHOSH, S/O.NEELAKANDAN, MANGALATH ILLAM, KARALMANNA PO., OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN:679506

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BY ADVS.SRI.M.P.RAMNATH SRI.BEPIN PAUL SRI.P.RAJESH (KOTTAKKAL) SRI.K.J.SEBASTIAN SRI.SHALU VARGHESE SMT.S.SANDHYA SMT.UMA R.KAMATH SEI.M.VARGHESE VARGHESE

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RESPONDENT(S)/RESPONDENTS:

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1. CHERPULASSERY MUNICIPALITY, P.O.CHERPULASSERY - PALAKKAD DISTRICT, PIN- 679 503.

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2. THE SECRETARY,

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CHERPULASSERY MUNICIPALITY, P.O.CHERPULASSERY - PALAKKAD DISTRICT, 679 503.

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3. KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY DISTRICT ENVIRONMENTAL ENGINEER, P.O.PALAKKAD, PIN - 678 001.

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4. THE DISTRICT COLLECTOR,

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PALAKKAD DISTRICT,PIN - 678 001.

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5. STATE OF KERALA,

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REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT

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DEPARTMENT, GOVERNMENT SECRETARIAT,

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THIRUVANANTHAPURAM PIN- 695 001.

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*6. SUNITHA, W/O. GOPALAKRISHNAN, PERUMBIL HOUSE, KARALMANNA PO., OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679506

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WA.No. 1323 of 2017 IN WPC. 34475/2015

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*7. GOPALAKRISHNAN, S/O.SAROJINI AMMA, PERUMBIL HOUSE, KARALMANNA PO., OTTAPALAM TALUK, PALAKKAD DISTRICT. PIN-679506 [DECEASED]

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Addl.8. GEETHU

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D/O LATE GOPALAKRISHNAN, AGED 17 YEARS, STUDENT, REPRESENTED BY MOTHER & GUARDIAN SUNITHA, PERUMBIL HOUSE, KARALMANNA P.O., OTTAPALLAM TALUK, PALAKKAD DISTRICT, PIN-679506

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Addl.9. GREESHMA

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D/O LATE GOPALAKRISHNAN, AGED 15 YEARS, STUDENT, REPRESENTED BY MOTHER & GUARDIAN SUNITHA, PERUMBIL HOUSE, KARALMANNA P.O., OTTAPALLAM TALUK, PALAKKAD DISTRICT, PIN-679506.

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(R6 AND THE ABOVE ADDITIONAL RESPONDENTS R8 AND R9 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED 7TH RESPONDENT AS PER ORDER DATED 19.06.2018 IN IA.NO.637/18)

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R6 BY ADV. SRI.P.B.KRISHNAN R6 BY ADV. SRI.P.M.NEELAKANDAN R6 BY ADV. SRI.P.B.SUBRAMANYAN R6 BY ADV. SRI.SABU GEORGE R6 BY ADV. SRI. MANU VYASAN PETER R BY GOVERNMENT PLEADER SRI.TECKCHAND R BY SRI.T.C.SURESH MENON R BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA.No. 1323 of 2017 IN WPC. 34475/2015

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APPENDIX

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PETITIONERS ANNEXURES

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ANNEXURE -A THE TRUE PHOTOSTAT COPY OF THE EXTRAORDINARY GAZETTE DATED 23.10.2002 PUBLISHING, THE NOTIFICATION DATED 21.10.2002 BEARING NO.GO(RT)NO.2536/2002/H&FWD OF THE HEALTH AND FAMILY WELFARE (G) DEPARTMENT OF THE GOVERNMENT OF KERALA

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ANNEXURE B- THE TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES (PAGES 1 TO 3, 18 TO 26) OF THE FINAL DOCUMENT ON REVISED CLASSIFICATION OF INDUSTRIAL SECTORS UNDER RED, ORANGE, GREEN AND WHITE CATEGORIES, AS ISSUED BY THE CENTRAL POLLUTION CONTROL BOARD DATED 29.02.2016

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ANNEXURE C- THE TRUE PHOTOSTAT COPY OF THE CIRCULAR DATED 09.08.2004 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD FIXING THE DISTANCE CRITERIA FOR RED,ORANGE, GREEN CATEGORIES

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ANNEXURE D- THE TRUE PHOTOSTAT COPY OF THE MEDICAL CERTIFICATE DATED 09.12.2016 WITH ACCOMPANYING MEDICAL RECORDS ISSUED BY DR.VINOD (E.N.T SPECIALIST) TREATING THE PETITIONER'S FATHER -NEELAKANDAN

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ANNEXURE E THE TRUE PHOTOSTAT COPY OF THE REPORT DATED 25.02.2017 BEARING NO.B35899/16, WITH THE TRUE ENGLISH TRANSLATION

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RESPONDENTS ANNEXURES:NIL

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//TRUE COPY//

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P.A TO JUDGE

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HRISHIKESH ROY, Ag.C.J. & A.K.JAYASANKARAN NAMBIAR, J.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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W.A. No.1323 of 2017

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6^th day of July, 2018

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J U D G M E N T

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A.K.Jayasankaran Nambiar, J.

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The petitioner in W.P(C).No.34475 of 2015 is the appellant before us. For the sake of convenience, the reference to the parties is as in the writ petition.

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The petitioner had approached this court through the writ petition seeking an implementation of Ext.P7 order, which was a stop memo dated 30.09.2015 issued by the Secretary of the Municipality to the 6^th respondent, Smt.Sunitha, who was carrying on a workshop, in the name and style of “Krishna Engineering”. Ext.P7 stop memo was issued to the 6^th respondent based on a complaint received from the petitioner, who alleged that, though the 6^th respondent had a consent to operate machinery with a total capacity of 5 HP, she had actually been operating a 6 HP machinery. Taking note of the counter affidavit filed by the respondents, the learned Single Judge found that the 6^th respondent had since obtained a consent from the Pollution Control Board for operating machinery of 5.5. HP capacity, and that she was operating only a 4.5 HP motor. It was also found that, the 6^th respondent was functioning under cover of a valid Dangerous and Offensive (D & O) License issued by the respondent Municipality. The learned Single Judge, therefore, directed that the 6^th respondent could carry on operations, with machinery up to the capacity of 5.5. HP going by the consent obtained from the Pollution Control Board, and if an

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W.A. No.1323 of 2017

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application was made for enhancement of the capacity of the machines, the Pollution Control Board would have to consider the application and pass orders thereon after hearing the writ petitioner also. By way of abundant caution, it was also made clear that the operations of the 6^th respondent would be subject to a license being issued by the local authority. The learned Single Judge also found that the challenge by the petitioner, against the consent granted by the Pollution Control Board, through a representation that was filed before the Board could not be treated as a review petition since the Board did not have a power to review a consent already issued by it in favour of the 6^th respondent. The learned Single Judge opined that if the petitioner petitioner was aggrieved by the consent order he would have to approach the appellate authority against the said order. Before us, the writ petitioner, who is the appellant, assails the judgment of the learned Single Judge on various grounds including that, the activity carried on by the 6^th respondent in her premises is one, which would bring it under the category of “red” for the purposes of the consent of the Pollution Control Board. It is stated that it was suppressing the real nature of the activities carried on by the 6^th respondent that she had obtained the consent from the Pollution Control Board under an inferior category. The petitioner also alleges that the sound emanating from the premises of the 6^th respondent is such that it puts the petitioner and his family to great inconvenience thereby necessitating an intervention from this court.

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W.A. No.1323 of 2017

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When the matter was taken up for admission today, it is brought to our notice through the counter affidavit filed on behalf of the 6^th respondent that her husband passed away on 04.04.2018 after a prolonged illness, and consequently, the workshop carried on by her has been closed with effect from January 2018. The affidavit states that the 6^th respondent is not in a position to run the workshop, and therefore, she has decided to let out the workshop to a neighbour, Sri Ameer Ali, who will conduct a workshop for making sign boards and flex boards as also for sticker cutting and similar activities for which, in her opinion, a D & License would not be required. It is further stated that the said person undertakes aluminum fabrication work at construction sites, and in connection with such works, he may occasionally have to resort to minimal structural works in the workshop for which, no gas welding would be required. The averments in the counter affidavit suggest that the 6^th respondent will no longer be carrying on the business, and the business would now be transferred to another person, who would be commencing a new business, in place of the erstwhile business carried on by the 6^th respondent. It is also apparent that, the 6^th respondent would not have any role to play in the business carried on by the new person to whom the business is transferred. Under such circumstances, we are of the view that the writ appeal, to the extent it impugns the judgment of the learned Single Judge that found in favour of the 6^th respondent with regard to the legality of her activities, cannot be pursued in the wake of the business of the 6^th respondent itself having been transferred in favour

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W.A. No.1323 of 2017

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of another person. Accordingly, we close the writ appeal without prejudice to the right of the writ petitioner/appellant to initiate proceedings, if any, against the person now conducting business in the premises owned by the 6^th respondent, if the said person is found to be carrying on the business in a manner contrary to law. We make it clear that the observations in the judgment of the learned Single Judge, to the extent it pertains to the business carried on by the 6^th respondent, will not have any bearing on the allegations, if any, raised by the petitioner in connection with the business carried on by the new person. We also take note, in this connection, of the submission of the learned Standing Counsel for the Pollution Control Board that the consent granted in favour of the 6^th respondent has since expired on 30.05.2018.

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Sd/-

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ACTING CHIEF JUSTICE

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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mns

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W.A. No.1323 of 2017 5

Santhosh v. Cherpulassery Municipality

Case brief

What is this about?

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Santhosh v. Cherpulassery Municipality

Case brief

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