The Kerala High Court held that the petitioner could not challenge the environmental consent to operate bypassing the statutory appeal under the Water Act. The court directed the Appellate Authority to decide the pending appeal expeditiously.
Writ petition dismissed; appeal before Appellate Authority to be decided within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941 WP(C).No.14487 OF 2019(I)
PETITIONER :
NICHOLAS P DIAS, AGED 71 YEARS S/O. LATE PASCAL DIAS, 4A/985,MERCY VILLA, CLUB JUNCTION, EDAPPALLY P.O., VAZHAKKALA VILLAGE, THRIKKAKARA MUNICIPALITY ,KOCHI-682 024
BY ADVS. SRI.K.MADHUSOODANAN SRI.T.G.PAUL SRI.MATHEW JACOB (KUNNATHU) SRI.SYRIAC JOSEPH
RESPONDENTS:
1 KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY THE CHIEF ENVIRONMENTAL ENGINEER, REGIONAL OFFICE GANDHINAGAR, COCHIN-682 020
2 THE SECRETARY, THRIKKAKARA MUNICIPALITY, MUNICIPALITY BUILDINGS, THRIKKAKARA-682 024
3 M/S INSTACURE SURGICAL AND MEDICAL CENTRE (PVT) LIMITED, M.K.COMPLEX,THRIKKAKARA ROAD, EDAPPALLY TOLL, COCHIN,PIN-682 024
*ADDL. R4 THE APPELLATE AUTHORITY, CONSTITUTED UNDER THE WATER (PREVENTION & CONTROL OF POLLUTION) ACT, 1974, 4TH FLOOR, KSRTC BUILDING, THAMPANOOR, THIRUVANANTHAPURAM- 695 001 IS IMPLEADED VIDE ORDER DATED 13/8/19 IN I.A.NO.3/2019.
R2 BY SRI.G.G.MANOJ, SC, THRIKKAKARA MUNICIPALITY R3 BY ADV. SRI.N.KRISHNA PRASAD R3 BY ADV. SRI.IMAM GRIGORIOS KARAT
SRI MANU RAJ K.J- GOVERNMENT PLEADER ; SRI T.NAVEEN-STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner is a resident of House No.4, Mercy Villa, Club Junction at Edappllay in Vazhakkala Village of Thrikkakkara Municipality. The 3rd respondent is conducting a hospital just opposite to petitioner's residence in Building No.IV/978C3, which was constructed under permit No.BA-291/11-12 dated 03.01.2012. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P10 consent to operate issued to the 3rd respondent by the 1st respondent Kerala State Pollution Control Board, on 26.03.2019. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent Secretary of Thrikkakkara Municipality to take immediate action against the 3rd respondent, as the Hospital is functioning without complying with the statutory requirements for a hospital prescribed under Law and
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also to take steps to close down the hospital till the statutory formalities are complied with, within a time limit to be fixed by this Court.
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proposes to challenge the consent granted by the Pollution Control Board in appropriate proceedings.
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operate granted in favour of the 3rd respondent is appealable before the additional 4th respondent Appellate Authority constituted under the Water (Prevention and Control of Pollution) Act, 1974.
Das Agarwal [(2014) 1 SCC 603] , the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case
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warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226.
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which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419] and Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433] the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
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writ jurisdiction of this Court under Article 226 of the Constitution of India.
Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the additional 4th respondent Appellate Authority to consider Ext.P12 appeal filed by the petitioner and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and also to the 3rd respondent, and after
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affording them an opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified
copy of this judgment.
Sd/-
ANIL K.NARENDRAN, JUDGE
AV/17/8
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 LETTER DT.25.04.2019 OF THRIKKAKARA MUNICIPALITY EXHIBIT P2 CONSENT OF ESTABLISH DT.19.12.2014 EXHIBIT P3 INSPECTION REPORT DATED 04.05.2017 EXHIBIT P4 TEST RESULT OF WELL WATER ISSUED BY DEPT.OF CHEMICAL OCEANOGRAPHY EXHIBIT P5 TEST RESULT OF WELL WATER ISSUED BY DEPT.OF CHEMICAL OCEANOGRAPHY EXHIBIT P6 ORDER NO.C1/9632/2016 DATED 2.03.2019 OF THE CHIEF TOWN PLANNER.TVM EXHIBIT P7 DECREE IN OS 232 OF 2015 OF THE HON'BLE MUNSIFF COURT,ERNAKULAM EXHIBIT P8 LETTER DATED 28.02.2019 ADDRESSED TO THE CHIEF ENVIRONMENTAL ENGINEER,PCB EXHIBIT P9 ORDER NO.D/2002/2018 DDS DATED 29.10.2018 OF DIST.COMMITTEE, LOCAL SELF GOVT. DEPT EXHIBIT P10 "CONSENT TO OPERATE" ISSUED BY PCB ON 26.03.2019 EXHIBIT P11 JUDGMENT IN WPC NO.3223/2019 DATED 29.03.2019 EXHIBIT P12 COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE APPELLATE AUTHORITY CONSTITUTED UNDER THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974, THIRUVANANTHAPURAM EXHIBIT P13 TRUE COPY OF THE LETTER NO.128/RBI/2019/LSGD DATED 29.05.2019
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RESPONDENT'S/S EXHIBITS:
EXHIBIT R3(A): TRUE COPY OF THE JUDGMENT DATED 20/01/2017 IN WRIT PETITION NO.2184/2017 EXHIBIT R3(B): TRUE COPY OF THE CERTIFICATE DATED 11/07/2019 EXHIBIT R3(C): TRUE COPY OF THE REPLY OF THE RESPONDENT DATED 10/05/2017 EXHIBIT R3(D): TRUE COPY OF THE JUDGMENT OF THIS HONOURALE COURT IN WRIT APPEAL NO.804/2019 DATED 03/04/2019 EXHIBIT R3(E): TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE KERALA PRIVATE HOSPITALS AND PRIVATE PARAMEDICAL INSTITUTIONS REGISTRATION, RULES FOR THE YEAR 2014-2015 DATED 13/03/2015.
2 issues framed by the court
Whether the court can issue certiorari to quash the consent to operate when an efficacious alternative remedy is available under the Water Act.
Whether the petitioner is entitled to invoke the extraordinary jurisdiction under Article 226 of the Constitution despite the existence of an appeal under the Water Act.
Colour shows how this judgement treated each authority
Commissioner of Income Tax v. Chhabil Das AgarwalExplained¶35
Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] · Who else cites this
Authorised Officer, State Bank of Travancore v. Mathew K.C.Explained¶40
Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] · Who else cites this
Thansingh Nathmal v. Superintendent of TaxesReferred¶42
Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419] · Who else cites this
Titaghur Paper Mills Company Ltd. v. State of OrissaReferred¶42
Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433] · Who else cites this
2 provisions across 2 enactments
Nicholas P Dias
Kerala State Pollution Control Board
Secretary, Thrikkakkara Municipality
M/s Instacure Surgical and Medical Centre (Pvt) Limited
Appellate Authority constituted under the Water (Prevention & Control of Pollution) Act, 1974
Anil K.Narendran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
