Partly allowed

Jose v. Kumbalam Grama Panchayath

Kerala HC15 Nov 2019WP(C)/13179/2018

Case brief

AI extract

What is this about?

Petitioner John sought to quash an order closing his plastic business and direct regularization of his construction. Joseph, a complainant, alleged environmental harm. The Court set aside an order rejecting regularization due to pendency, directed reconsideration with parties heard, and ordered the business stop until valid Pollution Clearance and Licence are obtained.

What did the court decide?

Set aside Ext.P3 order refusing regularization application; direct Secretary to reconsider application in terms of law after hearing; direct business stop until valid Consent to Operate and Trade Lice

Jose Vs Kumbalam Grama Panchayath — Kerala HC (2019) — LawSathi Research

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941

¶5

WP(C).No.14571 OF 2017(V)

¶6

PETITIONER:

¶7

P.L. JOHN @ SUNI AGED 40 YEARS,S/O LONAN,POTTAMTHAZHATH HOUSE,CHEPPANAM,ERNAKULAM.

¶8

BY ADVS. SRI.K.R.VINOD MS.JENCY SUSAN JOSE SRI.V.SRI NATH KUM.K.S.SREEREKHA

¶9

RESPONDENTS:

¶10

1 THE KUMBALAM GRAMA PANCHAYATH OFFICE OF THE KUMBALAM GRAMA PANCHAYATH,PANANGADU.P.O,PIN-682506,REPRESENTED BY ITS SECRETARY.

¶11

2 THE SECRETARY THE KUMBALAM GRAMA PANCHAYATH,OFFICE OF THE KUMBALAM GRAMA PANCHAYATH,PANANGADU.P.O,PIN-682506.

¶12

3* ADDL.R3 JOSE AGED 56 YEARS S/O. ANTONY, KUNNIKATTU HOUSE, CHEPPANAM, PANANGAD P.O., ERNAKULAM , DIST-682 506. *(ADDL.R3 IMPLEADED VIDE ORDER DATED 08/02/2019 IN IA.NO.03/2019)

¶13

R3 BY ADV. P.R.SREEJITH R3 BY ADV. P.R. SREEJITH

¶14

GP SUNIL NATH M.B

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2019, ALONG WITH WP(C).13179/2018(V), WP(C).21701/2019(K), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

WP(C).No.14571/17 & Con.Cases

¶17

¶18

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶19

PRESENT

¶20

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶21

FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941

¶22

WP(C).No.13179 OF 2018

PETITIONER:

JOSE

AGED 56 YEARS

S/O.ANTONY, KANNIKATTU HOUSE, CHEPPANAM, PANANGAD P.O., ERNAKULAM DISTRICT, PIN-682506.

¶27

BY ADVS. SRI.P.R.SREEJITH SMT.MAYA CHANDRAN SRI.M.PROMODH KUMAR

¶28

RESPONDENTS:

¶29

1 KUMBALAM GRAMA PANCHAYATH PANANGAD, ERNAKULAM DISTRICT, PIN682506,REPRESENTED BY ITS SECRETARY.

¶30

2 THE SECRETARY KUMBALAM GRAMA PANCHAYATH PANANGAD, ERNAKULAM DISTRICT, PIN-682506.

¶31

3 THE HEALTH INSPECTOR PUBLIC HEALTH CENTRE PANANGAD, ERNAKULAM DISTRICT.

¶32

4 THE DISTRICT COLLECTOR ERNAKULAM-682030.

¶33

5 EXECUTIVE ENGINEER DISTRICT OFFICE POLLUTION CONTROL BOARD ERNAKULAM-682030.

¶34

6 SUB INSPECTOR OF POLICE PANANGAD POLICE STATION.

¶35

7 SUNI P.L.JOHN S/O.POTTAMTHAZHATH LONAN, AGED 42 YEARS, POTTAMTHAZHATH HOUSE, CHEPPANAM, PANANGAD P.O., ERNAKULAM DISTRICT, PIN-682506.

¶36

WP(C).No.14571/17 & Con.Cases

¶37

¶38

R1 BY ADV. SRI. T.NAVEEN , SC, KERALA STATE POLLUTION CONTROL BOARD R1, R7 BY ADV. SRI.K.R.VINOD R3 BY GOVERNMENT PLEADER R5 BY ADV. SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD,

¶39

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2019, ALONG WITH WP(C).14571/2017(V), WP(C).21701/2019(K), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶40

WP(C).No.14571/17 & Con.Cases

¶41

¶42

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶43

PRESENT

¶44

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶45

FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941

¶46

WP(C).No.21701 OF 2019(K)

¶47

PETITIONER:

¶48

P.L.JOHN @ SUNI AGED 42 YEARS S/O LONAN, POTTAMTHAZHATH HOUSE, CHEPPANAM, ERNAKULAM

¶49

BY ADVS. SRI.K.R.VINOD SMT.M.S.LETHA KUM.K.S.SREEREKHA SRI.NABIL KHADER

¶50

RESPONDENTS:

¶51

1 THE KUMBALAM GRAMA PANCHAYAT OFFICE OF THE KUMBALAM GRAMA PANCHAYAT, PANANGADU P.O.PIN-682506, REPRESENTED BY ITS SECRETARY

¶52

2 THE SECRETARY, THE KUMBALAM GRAMA PANCHAYAT, OFFICE OF THE KUMBALAM GRAMA PANCHAYAT, PANANGADU P.O.PIN-682 506.

¶53

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2019, ALONG WITH WP(C).14571/2017(V), WP(C).13179/2018(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶54

WP(C).No.14571/17 & Con.Cases

¶55

¶56

JUDGMENT

¶57

I am considering these three writ

¶58

petitions together, since the factual circumstances presented therein are similar and that the reliefs sought for are interdepended on each other.

¶59

W.P(C)No.21701 of 2019 have been filed by a certain Shri.P.L.John, while WP(C)No. 13179

¶60

of 2018 has been filed by a certain Shri.Jose.

¶61

While Shri.P.L.John has approached this Court by filing WP(C)No.14571 of 2017 seeking to quash Ext.P2 order of the Secretary of Kumbalam Grama Panchayat, asking him to stop the 'plastic business'; WP(C)No. 21701 of 2019 has been filed by him impugning Ext.P3 communication of the said Secretary refusing to consider his application for regularization of a construction made for the purpose of continuing the afore business, solely for the reason that the former writ

¶62

WP(C).No.14571/17 & Con.Cases

¶63

¶64

petition is still pending before this Court.

¶65

Shri.P.L.John asserts that he has been running the business of 'selling plastics' on the strength of valid Trade Licence for the last several years and he has produced a copy of the same as Ext.P1, along with WP(C)No.14571 of 2017. He says, therefore, that the action of the Secretary in having issued Ext.P2 order therein to close down his business is illegal. He further says that, since he has made the construction for the purpose of conducting this business in his property without a licence, he had approached the Panchayat for regularization of the same under the applicable Rules, but that same was rejected merely because WP(C)No.14571 of 2017 is pending; and thus prays that both these orders of the Secretary be set aside and he be allowed to continue with the business.

¶66

While W.P(C)No.14571 of 2017 was pending, WP(C)No.13179 of 2018 was filed by

¶67

WP(C).No.14571/17 & Con.Cases

¶68

¶69

Shri.Jose asserting that he is the neighbour of the property in which Shri.P.L.John is running the business, alleging that under the guise of 'selling plastic' the latter is involved in illegal trade of reusable plastic and is indulging in burning of waste and dumbing of toxic effluence as well as organic waste into the nearby properties as also the drinking water sources; and that this has caused severe health problems, leading to increase of incidents of Cancer in the locality. He, therefore, prays that the Secretary of the Panchayat be directed to implement Ext.P6 order produced in this writ petition (which is same as Ext.P2 in WP(C)No.14571 of 2017) and seeks a direction to the said Authority to immediately close down the business being carried on by the 7^th respondent allegedly without any license.

¶70

The Learned Standing Counsel for the Pollution Control Board, Shri.T.Naveen affirms that Shri.P.L.John has not approached

¶71

WP(C).No.14571/17 & Con.Cases

¶72

¶73

them nor has he obtained any Consent to Operate to run the business and he says that this is possibly because he asserts to be 'selling plastic' but appears to be doing much more than what is authorized to do. Shri.T.Naveen further submits that going by the averments on record, the activity of Shri.P.L.John appears to be highly offensive and that this cannot be done without a proper Consent to Operate being obtained from his client.

¶74

I have assessed the afore

¶75

submissions of the learned counsel for the parties and have carefully evaluated the materials available on record.

¶76

It is ineluctable from the narrative

¶77

above that Shri.P.L.John asserts to be 'selling plastic' on the strength of Ext.P1 licence produced along with W.P(C)No.14571 of 2017, but is alleged to be dealing in second hand and used plastic, stacking the same in his business premises and then selling it to

¶78

WP(C).No.14571/17 & Con.Cases

¶79

¶80

other persons or agencies.

¶81

Obviously, therefore, even if he is

¶82

authorized by Ext.P1 in W.P(C)No.14571 of 2017 to sell plastic, he cannot engage in the activities which he is now doing, without necessary clearance from the Pollution Control Board. In any event of the matter, even going by the said licence, the same has expired on 31/03/2017 and it is informed by the learned Standing Counsel for the Panchayat that it has not been renewed, even though Shri.P.L.John had made an application for the same.

¶83

That said, I find some force in the submissions made on behalf of Shri.P.L.John with respect to Ext.P3 order produced in W.P(C)No.21701 of 2019, since the Secretary has refused to consider his application for regularization, solely because W.P(C)No.14571 of 2017 is pending.

¶84

I am certain that if Shri.P.L.John is entitled to regularization of his

¶85

WP(C).No.14571/17 & Con.Cases

¶86

¶87

construction in any manner, then the Secretary must consider the same in terms of law, rather than reject it solely because of the pendancy of a writ petition. This does not, however, mean that Shri.P.L.John is entitled to any relief but only that the Secretary ought to have considered his application in terms of law and to have issued an appropriate order thereon.

¶88

In the afore circumstances:

¶89

however, leaving liberty to the petitionerShri.P.L.John to approach the Panchayat for a fresh licence or renewal of his earlier

¶90

licence in terms of law, which shall then be considered by its Secretary after affording an opportunity of being heard to Shri.Josepetitioner in W.P(C)No.13179 of 2018 also.

¶91

setting aside Ext.P3 therein and directing

¶92

the Secretary of the Panchayat to reconsider the petitioner's application for

¶93

WP(C).No.14571/17 & Con.Cases

¶94

¶95

regularization of the construction, however, strictly in terms of law and after affording an opportunity of being heard to the petitioner as well as Shri.Jose-petitioner in W.P(C)No.13179 of 2018.

¶96

and the Secretary is directed to ensure that

¶97

Shri.P.L.John, who is the 7^th respondent therein, is not allowed to conduct the business except after obtaining the necessary Consent to Operate from the Pollution Control Board as also the Trade Licence from the Panchayat; and the said Authority will implicitly comply with these directions, if required, seeking the assistance of the Police Authorities for such purpose.

¶98

Sd/-

¶99

DEVAN RAMACHANDRAN

¶100

JUDGE

¶101

MC/20.11.19

¶102

WP(C).No.14571/17 & Con.Cases

¶103

¶104

APPENDIX OF WP(C) 14571/2017

¶105

PETITIONER'S/S EXHIBITS:

¶106

EXHIBIT P1 THE COPY OF THE D & O LICENSE ISSUED IN FAVOUR OF THE PETITIONER BY THE 1ST RESPONDENT

¶107

EXHIBIT P2 THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 03.04.2017.

¶108

EXHIBIT P3 THE COPY OF THE D AND O LICENCE APPLICATION AND ITS RECEIPT OF THE YEAR 2018

¶109

EXHIBIT P4 THE COPY OF THE D & O LICENSE APPLICATION AND ITS RECEIPT OF THE YEAR 2019

¶110

RESPONDENT'S/S EXHIBITS:

¶111

EXHIBIT R3(A) TRUE COPY OF THE WRIT PETTIONERS REPRESENTATION DATED 11/6/2018 SUBMITTED TO THE PRESIDENT OF THE 1ST RESPONDENT

¶112

EXHIBIT R3(b) TRUE COPY OF THE WRIT PETITIONERS REPRESENTATION DATED 11/6/2018 SUBMITTED TO THE 2ND RESPONDENT

¶113

WP(C).No.14571/17 & Con.Cases

¶114

¶115

APPENDIX OF WP(C) 13179/2018

¶116

PETITIONER'S/S EXHIBITS:

¶117

EXHIBIT P1 THE TRUE PHOTOGRAPHS SHOWING THE ILLEGAL PLASTIC AND SOLID WASTE COLLECTING TRADE OF THE 7TH RESPONDENT. EXHIBIT P2 A TRUE COPY OF THE MEDICAL CERTIFICATE OF THE PETITIONER'S WIFE DATED 14-11-2015 FROM LISIE HOSPITAL, ERNAKULAM. EXHIBIT P3 A TRUE COPY OF THE COMPLAINT DATED 20-62016 SUBMITTED TO THE 4TH RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 1-7-2016 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT FOR INSPECTION AND REPORT ALONG WITH THE NOTE. EXHIBIT P5 A TRUE COPY OF THE 3RD RESPONDENT'S RESTRAINT NOTICE/ORDER DATED 17-08-2016 REQUIRING THE 7TH RESPONDENT TO STOP BURNING OF PLASTIC. EXHIBIT P6 A TRUE COPY OF THE 2ND RESPONDENT'S ORDER DATED 03-04-2017 REQUIRING THE 7TH RESPONDENT TO CLOSE DOWN HIS PLASTIC WASTE COLLECTION UNIT AND REPORT THE CLOSURE. EXHIBIT P7 A TRUE COPY OF THE 4TH RESPONDENT'S ORDER DATED 31-07-2017 DIRECTING THE 2ND RESPONDENT TO TAKE ACTION AS PER EXHIBIT P6 AND REPORT COMPLIANCE. EXHIBIT P8 A TRUE COPY OF THE PETITIONER'S REPRESENTATION DATED 25-01-2018 TO THE 3RD RESPONDENT. EXHIBIT P9 THE TRUE PHOTOGRAPHS DATED 29.09.2018 TAKEN BY THE PETITIONER SHOWING DISCHARGE OF TOXIC EFFLUENTS FROM THE 7TH RESPONDENTS DUMPING SHED TO THE NEIGHBORING WET LAND EXHIBIT P10 A TRUE COPY OF THE RESOLUTION NO.9/1 DATED 28.05.2018 OF THE 1ST RESPONDENT. RESPONDENT'S/S EXHIBITS:

¶118

NIL

¶119

WP(C).No.14571/17 & Con.Cases

¶120

¶121

APPENDIX OF WP(C) 21701/2019

¶122

PETITIONER'S/S EXHIBITS:

¶123

EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT REGULARIZATION DATED 14.6.2019

¶124

EXHIBIT P2 TRUE COPY OF THE CASH RECEIPT DATED 20.6.2019 ISSUED BY THE 1ST RESPONDENT

¶125

EXHIBIT P3 THE ORDER DATED 27.6.2019 PASSED BY THE 2ND RESPONDENT

¶126

RESPONDENT'S/S EXHIBITS:

¶127

NIL

¶128

(TRUE COPY) PA TO JUDGE

Jose v. Kumbalam Grama Panchayath

Case brief

What is this about?

What did the court decide?

Jose v. Kumbalam Grama Panchayath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

V.K.Gowreeshan, Vs State of Kerala

Vijayamma Vs Secretary to Local Self Government Department

P.R.Shahan Vs the Secretary, Aroor Grama Panchayath

Leelamma Thomas Vs State of Kerala

P.L.John @ Suni Vs the Kumbalam Grama Panchayat

Reju Mon C Vs Oorakam Grama Panchayath