Disposed

M.D.Joseph v. North Paravoor Municipality

Kerala HC10 Dec 2019WP(C)/15848/2019

Case brief

AI extract

What is this about?

This judgment closed two connected writ petitions regarding a lime kiln unit. The Court held that since the Pollution Control Board issued a Consent to Operate and the Single Window Clearance Board issued a deemed licence, the unit could continue operating provided conditions are met, leaving parties liberty to challenge these orders.

What did the court decide?

Writ petitions closed; liberty granted to challenge the Consent to Operate and deemed Trade Licence orders.

M.D.Joseph Vs North Paravoor Municipality — Environment and Pollution | Kerala HC (2019)

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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 DEVAN RAMACHANDRAN

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TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941

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WP(C).No.13813 OF 2018(B)

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PETITIONERS:

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1 SHIJU T.K., S/O.KARTHIKEYAN, THURUTHUMMAL HOUSE, CHERIYAPALLAMTHURUTHU, NORTH PARAVUR, ERNAKULAM DISTRICT - 683 513.

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2 T.K.SUGUNAN, S/O.KESAVAN, THURUTHIKKADU HOUSE, C.P.THURUTH, NORTH PARAVUR,ERNAKULAM DISTRICT-683513.

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3 V.A.AJITHKUMAR, S/O.AYYAPPAN, VADAKKEDATH HOUSE, PALACE ROAD, KANNANKULANGARA, NORTH PARAVUR, ERNAKULAM DISTRICT - 683 513.

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4 K.K.BABU, S/O.K.S.KRISHNAN, KATTIPARAMBIL, PALACE ROAD, KANNANKULANGARA, NORTH PARAVUR, ERNAKULAM DISTRICT-683513.

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SRI.ARJUN RAGHAVAN

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SRI.ADITHYA RAJEEV SRI.T.R.HARIKUMAR SRI.JAIBY PAUL

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RESPONDENTS:

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1 THE NORTH PARAVUR MUNICIPALITY REPRESENTED BY ITS SECRETARY, NORTH PARAVUR, ERNAKULAM DISTRICT - 683513.

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2 THE SECRETARY, NORTH PARAVUR MUNICIPALITY, NORTH PARAVUR, ERNAKULAM DISTRICT-683513.

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3 THE MUNICIPAL COUNCIL NORTH PARAVUR MUNICIPALITY, REPRESENTED BY ITS CHAIRMAN, ERNAKULAM DISTRICT-683513.

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4 THE KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS SECRETARY, PATTOM.P.O, THIRUVANANTHAPURAM - 695004.

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5 THE DISTRICT COLLECTOR COLLECTORATE, KAKKANAD, ERNAKULAM-682030.

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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6 STATE OF KERALA REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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7 M.D.JOSEPH, MANAGING DIRECTOR, M/S.JJ LIME PRODUCTS, KANNANKULANGARA, NORTH PARAVUR, ERNAKULAM DISTRICT - 683513.

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SRI.C.S.AJITH PRAKASH,SC. SRI.BALU TOM SMT.K.A.SANJEETHA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2019, ALONG WITH WP(C).15848/2019(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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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 DEVAN RAMACHANDRAN

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TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941

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WP(C).No.15848 OF 2019(E)

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PETITIONER:

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M.D.JOSEPH, AGED 51 YEARS, S/O. M.O.DEVASSY, MANAGING DIRECTOR, M/S. J.J.LIME PRODUCTS, KANNANKULANGARA, NORTH PARAVOOR.

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SRI.M.RAMESH CHANDER (SR.) BALU TOM CHERUVALLY SMT.K.A.SANJEETHA

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RESPONDENTS:

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1 NORTH PARAVOOR MUNICIPALITY NORTH PARAVOOR-683 513 REPRESENTED BY ITS SECRETARY.

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2 THE SECRETARY, NORTH PARAVOOR MUNICIPALITY, NORTH PARAVOOR-683 513, ERNAKULAM DISTRICT.

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ADDL. 3 SHIJU.T.K., S/o.KARTHIKEYAN, THURUTHUMMAL HOUSE, CHERIYAPALLAMTHURUTHU, NORTH PARAVUR, ERNAKULAM DISTRICT - 683 513.

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4 T.K.SUGUNAN, S/o.KESAVAN, THURUTHIKKADU HOUSE, C.P.THURUTH, NORTH PARAVUR, ERNAKULAM DISTRICT - 683 513.

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5 V.A.AJITHKUMAR, S/o.AYYAPPAN, VADAKKEDATH HOUSE, PALACE ROAD, KANNANKULANGARA, NORTH PARAVUR, ERNAKULAM DISTRICT - 683 513.

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SRI.C.S.AJITH PRAKASH SRI.T.R.HARIKUMAR K.J.MANURAJ, GP T.NAVEEN, SC FOR PCB

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2019, ALONG WITH WP(C).13813/2018(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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¶44

WP(C).No.13813 OF 2018(B) & CON.CASES.

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JUDGMENT

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These two writ petitions have been heard together on account of the similarity of the factual circumstances presented and because the prayers sought for in them are inter-dependent.

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While W.P.(C) No.15848/19 has been filed by Sri.M.D.Joseph asserting that Exts.P11 and P11(a) proceedings issued by the Secretary of the North Paravoor Municipality, as per which, his application for Trade Licence to run a lime kiln in his property has been rejected solely for the reason that there are complaints from residents of the neighbourhood, are illegal and unlawful; W.P.(C) No.13813/2018 has been filed by Sri.Shiju.T.K. and others, who are stated to be residents of the locality, against the lime kiln being operated by Sri.M.D.Joseph on the ground that it causes horrendous pollution and detrimentally affects the health of all the persons residing in the locality irreparably.

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Sri.M.Ramesh Chander, the learned senior counsel assisted by Sri.Balu Tom Cheruvally, appearing for Sri.M.D.Joseph began his submissions by saying that, in fact, no further orders may be required in W.P.(C) No.15848/19

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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because, pending this lis, the Single Window Clearance Board has issued Ext.P16 order granting his client a deemed Trade Licence and asserts therefore, that he is now entitled to operate the lime kiln in terms of the conditions therein. The learned senior counsel says that he is, therefore, confining his plea that the respondents in the said writ petition be directed not to cause any illegal interdiction and obstructions to the activities now being carried on by his client legally in his property.

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In response, Sri.T.R.Harikumar, the learned counsel appearing for Sri.Shiju T.K. and others, submitted that all the orders, including Ext.P16 in W.P.(C) No.15848/19, have been obtained by Sri.M.D.Joseph surreptitiously and without any knowledge or intimation being given to his clients or to any other persons in the locality. He says that his clients, therefore, intend to challenge the order of the Single Window Clearance Board and prays that such liberty be left open to his clients; however, further praying that until such time as their clients are able to approach the competent Authority against the said order, the lime kiln being operated by Sri.M.D.Joseph may not be allowed to operate.

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Sri.Ajith Prakash, the learned standing counsel

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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appearing for the North Paravoor Municipality, submitted that they have also serious objections regarding the manner in which the Single Window Clearance Board has issued Ext.P16 order in W.P.(C) No.15848/19 and submits that in any event, Sri.M.D.Joseph can be allowed to operate his lime kiln only in terms of the directions contained in the said order and no other. He says that the Municipality also intends to invoke their appropriate remedies against the order of the Single Window Clearance Board and prays that such liberty be left open to him.

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Sri.T.Naveen, the learned standing counsel for the Pollution Control Board, submits that when complaints were raised against the Unit being run by Sri.M.D.Joseph, inspections were conducted by the competent Authority and that certain remedial measures had also been suggested. He says that, as of now, Sri.M.D.Joseph is seen to have adopted all such measures and therefore, that a Consent to Operate has now been issued by the Pollution Control Board; and adds that as long as Sri.M.D.Joseph complies with all the conditions and stipulations therein, they would have no objection in the lime kiln being operated. He, however, offers that if this Court is so inclined, the competent Authority of the Pollution Control

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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Board will monitor the Unit of Sri.M.D.Joseph periodically and verify whether any further remedial steps are required to be adopted by him in future.

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When I consider the afore submissions, it is without doubt that Sri.Shiju.T.K. and others - petitioners in W.P.(C) No.13813/2018 - have approached this Court on the apprehension that if Sri.M.D.Joseph is allowed to run his Unit, it will cause irreparable prejudice to the residents of the locality in future. However, as is clear from the afore narrated facts, the Pollution Control Board has already issued a Consent to Operate in favour of Sri.M.D.Joseph, wherein certain specific conditions and stipulations have been mentioned. Obviously, therefore, when the competent expert issues such an order, it would not be up to this Court to substitute its wisdom for that of the expert; and therefore, as long as Sri.M.D.Joseph is not found to be violated any of the conditions of the Consent to Operate, it cannot be open, even for the Municipality, to cause any interdiction in the functioning of the Unit, provided it is run on the strength of a valid Trade Licence.

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I am persuaded to the above opinion also because when I examine Exts.P11 and P11(a) orders in W.P.(C) No.15848/19, the only reason stated by the Municipality in declining the

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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renewal of Trade Licence to Sri.M.D.Joseph is on account of alleged public unrest and nothing else; but no study or investigation as regards the allegations of pollution being caused by his Unit appears to have been done by the Secretary of the Municipality at any time. I am, therefore, certain that this cannot find the favour of this Court.

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That said, going by Ext.P16 order in W.P.(C) No.15848/19, the Single Window Clearance Board has, rightly or wrongly, issued a deemed Trade Licence to Sri.M.D.Joseph; and consequently, as long as the said order is in force, I am certain that none of the rival parties in this case can unilaterally assert that the Unit cannot be operated. They, therefore, obviously will have to challenge the said order in terms of law and thus seek relief, if they are so interested.

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Resultantly and for the reasons above, I close W.P.(C) No.13813/2018, leaving liberty to the petitioners therein to challenge the Consent to Operate issued by the Pollution Control Board and the order of the Single Window Clearance Board obtained by Sri.M.D.Joseph, in terms of law; and for such purpose, I leave open all contentions of the rival parties to be pursued by them appropriately. Needless to say, none of my observations in this judgment will operate as a trammel to the

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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right of Sri.Shiju.T.K. and others to pursue and invoke their remedies as may be available to them in law.

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Consequently, W.P.(C) No.15848/19 is closed, without

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issuing any orders as has been prayed for, in the light of Ext.P16 order issued by the Single Window Clearance Board; with a further direction to the Secretary of the Municipality to ensure that the activity being carried on by Sri.M.D.Joseph is allowed only in strict compliance of all the conditions and stipulations in the Consent to Operate issued by the Pollution Control Board and in Ext.P16 order issued by the Single Window Clearance Board. Any violation of these conditions would obviously entitle the said Authority to take necessary action in terms of law, without having to seek any further orders from this Court.

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Sd/- DEVAN RAMACHANDRAN

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JUDGE

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Stu

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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APPENDIX OF WP(C) 13813/2018

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1 A TRUE COPY OF THE QUERY DATED 18/11/2017
EXHIBIT	P2 A TRUE COPY OF THE REPLY ISSUED BY THE INFORMATION OFFICER OF THE 1ST RESPONDENT DATED 18/12/2017
EXHIBIT	P3 A TRUE COPY OF THE APPEAL DATED 29/12/2017 PREFERRED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT
EXHIBIT	P4 A TRUE COPY OF THE REPLY ISSUED BY THE 2ND RESPONDENT DATED 29/01/2018 ALONG WITH THE CONSENT TO OPERATE GRANTED TO THE 7TH RESPONDENT DATED 27.06.2015.
EXHIBIT	P5 A TRUE COPY OF THE REPLY DATED 20/12/2017 ISSUED BY THE INFORMATION OFFICER OF THE 4TH RESPONDENT
EXHIBIT	P6 A TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONERS AND OTHER BEFORE THE HON'BLE CHIEF MINISTER DATED 28/12/2017
EXHIBIT	P7 A TRUE COPY OF THE COMMUNICATION DATED 09/03/2018 ISSUED BY THE 5TH RESPONDENT
EXHIBIT	P8 A TRUE COPY OF THE MEDICAL PRESCRIPTION DATED 28/10/2015 ISSUED TO THE 1ST PETITIONER'S SON.
EXHIBIT	P9 A TRUE COPY OF THE MEDICAL RECORD DATED 12/03/2017 PERTAINING TO THE 1ST PETITIONER'S BROTHER'S DAUGHTER
EXHIBIT	P10 A TRUE COPY OF THE CERTIFICATE DATED 17/03/2018 ISSUED BY THE MEDICAL OFFICER TO A RESIDENT OF THE LOCALITY,WHO IS DIAGNOSED WITH CANCER.
EXHIBIT	P11 A TRUE COPY OF THE REJECTION ORDER DATED 08/03/2018
EXHIBIT	P12 A TRUE COPY OF THE JUDGMENT DATED 03.04.2018 IN WP(C)NO.9516 OF 2018.

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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RESPONDENT'S EXHIBITS:

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EXHIBIT R7(A)	PHOTOSTAT COPY OF THE LICENSE GIVEN TO THIS RESPONDENT'S FATHER NAMELY M.O. DEVASSY IN THE YEAR 1961.
EXHIBIT R7(B)	PHOTOSTAT COPY OF THE LICENSE ISSUED TO THIS RESPONDENT FOR THE YEAR 2017-18.
EXHIBIT R7(C)	PHOTOSTAT COPY OF THE JUDGMENT IN WA NO.108/1993- B DATED 17/02/1993.
EXHIBIT R7(D)	PHOTOSTAT COPY OF THE MINUTES OF THE POLLUTION CONTROL BOARD DATED 12/04/2018.
EXHIBIT R7(E)	PHOTOSTAT COPY OF THE MINUTES OF THE POLLUTION CONTROL BOARD DATED 05/05/2018.
EXHIBIT R7(F)	PHOTOSTAT COPY OF THE ORDER DATED 30/04/2018.
EXHIBIT R7(G)	PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY THE KERALA POLLUTION CONTROL BOARD DATED 27/06/2015.
EXHIBIT R7(H)	PHOTOSTAT COPY OF THE STATEMENT GIVEN BY THIS RESPONDENT IN WRITING TO THE SECRETARY OF PARAVUR MUNICIPALITY.
EXHIBIT R7(I)	PHOTOSTAT COPY OF THE MINUTES WITH RESPECT TO THE HEARING CONDUCTED ON 27/04/2018.
EXHIBIT R7(J)	PHOTOSTAT COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 30/01/2018.

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//TRUE COPY//

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P.A TO JUDGE.

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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APPENDIX OF WP(C) 15848/2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	PHOTOSTAT COPY OF OF THE PETITIONER' 1990.	THE LICENSE ISSUED IN THE NAME S FATHER FOR THE YEAR 1989-
EXHIBIT P2	PHOTOSTAT COPY OF DATED 17.2.1993.	THE JUDGMENT IN W.A.NO.108/93
EXHIBIT P3	PHOTOSTAT COPY OF NORTH PARAVOOR MUN	THE RECEIPT ISSUED FROM THE ICIPALITY.
EXHIBIT P4	PHOTOSTAT COPY OF 1895/18 DATED 8.3. RESPONDENT.	THE ORDER BEARING NO.PH 1- 2018 ISSUED BY THE 2ND
EXHIBIT P5	PHOTOSTAT COPY OF DATED 3.4.2018.	THE JUDGMENT IN WPC 9516/18
EXHIBIT P6	PHOTOSTAT COPY OF MUNICIPALITY DATED	THE ORDER ISSUED BY THE 6.4.2018.
EXHIBIT P7	PHOTOSTAT COPY OF POLLUTION CONTROL	THE COMMUNICATION OF THE BOARD DATED 30.4.2018.
EXHIBIT P8	PHOTOSTAT COPY OF ASSISTANT DISTRICT PARAVOOR DATED 13.	THE CERTIFICATE ISSUED BY THE INDUSTRIES OFFICER, NORTH 12.2018.
EXHIBIT P9	PHOTOSTAT COPY OF POLLUTION CONTROL	THE PERMISSION GRANTED BY THE BOARD DATED 9.12.2018.
EXHIBIT P10	PHOTOSTAT COPY OF ISSUED BY THE POLL 20.3.2019.	THE CONSENT VARIATION ORDER UTION CONTROL BOARD DATED
EXHIBIT P11	PHOTOSTAT COPY OF PARAVOOR MUNICIPAL	THE INFORMATION OF THE NORTH ITY DATED 16.5.2019.
EXHIBIT P11	A PHOTOSTAT COPY OF NORTH PARAVOOR MUN	THE COMMUNICATION ISSUED BY THE ICIPALITY DATED 22.5.2019.
EXHIBIT P12	PHOTOSTAT COPY OF POLLUTION CONTROL	THE COMMUNICATION ISSUED BY THE BOARD DATED 20.5.2019.
EXHIBIT P13	PHOTOSTAT COPY OF PETITIONER DATED 2	THE APPLICATION GIVEN BY THE 7.4.2019.

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WP(C).No.13813 OF 2018(B) & CON.CASES.

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EXHIBIT P14 PHOTOSTAT COPY OF THE PROCEEDINGS OF THE COUNCIL DATED 26.4.2019.

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EXHIBIT P15 PHOTOSTAT COPY OF THE APPLICATION FOR THE RENEWAL OF THE LICENSE FOR THE YEAR 2019-2020.

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EXHIBIT P16 PHOTOSTAT COPY OF THE LICENSE DATED 16.09.2019.

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//TRUE COPY//

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P.A TO JUDGE.

M.D.Joseph v. North Paravoor Municipality

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M.D.Joseph v. North Paravoor Municipality

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