Disposed

Saneesh Kumar, v. the Kerala State Pollution Control Board

Kerala HC5 Nov 2019WP(C)/3315/2019

Case brief

AI extract

What is this about?

The Court set aside notices threatening disconnection of electricity and trade licence suspension, directing the Pollution Control Board and Corporation to process expiry applications expeditiously after hearing parties, while prohibiting workshop operations until compliance.

What did the court decide?

Directing PCB to dispose of Consent application within one month; Corporation to consider Trade Licence renewal after Consent obtained; petitioner prohibited from operating until compliance.

Saneesh Kumar, Vs the Kerala State Pollution… — 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 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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WP(C).No.3315 OF 2019(L)

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PETITIONER/S:

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SANEESH KUMAR, AGED 40 YEARS S/O.KUMARAN, RESIDING AT UPPUKANDATHIL, MAYOORA BHAVAN, ELAMAKKARA P.O., KOCHI-682026, MOTOR CARE WORKSHOP, BUILDING NO.71/943B, KEERTHI NAGAR, ELAMAKKARA, ERNAKULAM-682026.

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BY ADV. SRI.JOBY JACOB PULICKEKUDY

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RESPONDENT/S:

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1 THE KERALA STATE POLLUTION CONTROL BOARD, REP. BY ITS ENVIRONMENTAL ENGINEER, KADAVANTHARA, MIG AND HIG COLONY, GANDHI NAGAR, ELAMKULAM, ERNAKULAM, KERALA-682020.

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2 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE-I, GANDHI NAGAR , ERNAKULAM-682020.

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3 THE KERALA STATE ELECTRICITY BOARD LTD., REP. BY ITS ASSISTANT ENGINEER (ELECTRICAL SECTION), EDAPPALLY, KOCHI-24.

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4 BINDU JOSEPH, W/O.SABU VARGHESE, CHIRAKKAL HOUSE, KUSUMAGIRI P.O., KAKKANAD, NOW RESIDING AT PENTA QUEEN, PADIVATTOM, EDAPALLY, ERNAKULAM-682024.

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BY SRI. T.NAVEEN - SC BY ADV. SRI.P.MOHAMED SABAH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2019, ALONG WITH WP(C).29312/2019(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).Nos.3315 & 29312 OF 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 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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WP(C).No.29312 OF 2019(L)

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PETITIONER/S:

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SANEESH KUMAR AGED 40 YEARS S/O. KUMARAN, RESIDING AT UPPUKANDATHIL, MAYOORA BHAVAN, ELAMAKKARA P.O KOCHI 682 026, MOTOR CARE WORKSHOP, BUILDING NO. 71/943B, KEERTHI NAGAR, ELAMAKKARA, ERNAKULAM 682 026.

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BY ADVS. SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.T.ANCY SMT.N.B.FATHIMA SULFATH SMT.K.BINCYMOL SHRI.DAJISH JOHN

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RESPONDENT/S:

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1 THE CORPORATION OF KOCHI COCHIN CORPORATION OFFICE, ERNAKULAM 682 011, REPRESENTER BY ITS SECRETARY.

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2 THE SECRETARY, CORPORATION OF KOCHI COCHIN CORPORATION OFFICE ERNAKULAM 682 011.

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3 THE KERALA STATE POLLUTION CONTROL BOARD, REP. BY ITS ENVIRONMENTAL ENGINEER KADAVANTHARA, MIG AND HIG COLONY, GANDHI NAGAR, ELAMKULAM, ERNAKULAM, KERALA 682 020.

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4 BINDU JOSEPH, W/O. SABU VARGHESE, CHIRAKKAL HOUSE, KUSUMAGIRI P.O. KAKAKANAD, NOW RESIDING AT PENTA QUEEN, PADIVATTOM EDAPALLY, ERNAKULAM 682 024.

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OTHER PRESENT:

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SRI. T.NAVEEN-SC, SRI. SUDEESH KUMAR- SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2019, ALONG WITH WP(C).3315/2019(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).Nos.3315 & 29312 OF 2019

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J U D G M E N T

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These two writ petitions are being considered together since the factual circumstances involved therein are interlayered and the reliefs sought for in one would certainly impact the reliefs to be granted in the other.

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W.P.(C)No.3315/2019 has been filed by the petitioner - Sri.Saneesh Kumar, impugning Exts.P7 and P8 notices issued by the Kerala State Electricity Board (KSEB for short), as per which the electric connection to his automobile workshop has been threatened to be disconnected. The petitioner says that, as is clear from Exts.P7 and P8, they have been issued based on a requisition made by the Pollution Control Board, which stated that the petitioner has not applied for or obtained a Consent to Operate to run the workshop and therefore, that the same will have to be shut down. The petitioner says that the action now taken by the KSEB at the behest of the Pollution Control Board is illegal and unlawful and therefore, that the said notices be set aside.

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As an alternative plea, the petitioner argues that since an automobile workshop is a 'White Category' activity, no

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WP(C).Nos.3315 & 29312 OF 2019

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Consent to Operate is necessary to be applied for or obtained but that only an intimation needs to be given to the Pollution Control Board, which he asserts he has done; and therefore, that the Pollution Control Board be directed not to interdict his operations, which he says are being done as per law. He thereafter, adds that, by way of abundant caution, he has also preferred Ext.P11 application before the Pollution Control Board seeking a Consent to Operate and prays that if this Court is so inclined, the said Authority be directed to take up and dispose it of at the earliest.

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While so, Sri.Saneesh Kumar filed W.P.

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(C)No.29312/2019 asserting that he has a Deemed Licence under the provisions of the Kerala Municipality Act, since the application for renewal of his earlier Trade Licence namely Ext.P2, has not been considered or rejected by the Corporation until now. The petitioner, therefore, prays that this Court allow him to conduct the workshop under Section 447 of the Kerala Municipality Act, since he asserts to be holding a Deemed Licence.

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The learned Standing Counsel appearing for the Pollution Control Board submits that assertion of the petitioner,

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WP(C).Nos.3315 & 29312 OF 2019

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that an automobile workshop is a 'White Category' activity is not correct, since he appears to be relying on Ext.P4 - produced along with W.P.(C)No.3315/2019 - which is a circular earlier issued by the Board which has now been substituted by Ext.R2(e) circular, where-under, all such activities have been brought under the 'Orange Category'. He says, therefore, that the petitioner must obtain a Consent to Operate before running his automobile workshop - with or without spray painting facility - and that therefore, there is no impediment in considering Ext.P11 application, provided he rectifies all deficiencies, as have been notified through Ext.P12. The learned Standing Counsel prays, that, therefore, W.P.(C)No.3315/2019 be ordered, allowing the Pollution Control Board to complete such processes within a time frame.

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Sri.Mohamed Sabah , learned counsel appearing for the party respondent in both these cases, submits that his client is the land lady of the building being used by the petitioner as his workshop and that she has objected to the running of the same by the petitioner before the various competent Authorities; and alleges that the said activity is causing unbearable nuisance not merely to his client but also to all the

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WP(C).Nos.3315 & 29312 OF 2019

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other residents in the locality. He prays therefore, that if any action is being taken by the Pollution Control Board or by the Corporation to grant Consent to Operate or Trade Licence to the petitioner, then his client may also be given an opportunity of being heard, so that she can bring the true facts to their

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notice, as also the necessary factual circumstances.

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When I consider the afore submissions, it becomes obvious that the petitioner's singular assertion is that he is running a workshop, which is a 'White Category' activity and that he does not require a Consent to Operate to be obtained from the Pollution Control Board. However, Ext.R2(e) circular of the Pollution Control Board belies this and affirmatively states to the contrary. Interestingly, the assertion of the petitioner is based solely on Ext.P4, which is an earlier circular, which has now been substituted by Ext.R4(e); and therefore, it is without any doubt that the petitioner can no longer maintain that running of an automobile workshop is a 'White Category' activity and not an 'Orange Category' one.

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I am, consequently, of the certain view that the petitioner cannot operate his workshop unless he is able to obtain necessary Consent to Operate from the Pollution Control

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WP(C).Nos.3315 & 29312 OF 2019

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Board and the Trade Licence from the Corporation.

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On the question of the deemed licence, I am afraid that I cannot accede to the contentions of the petitioner impelled by his learned counsel - Sri.Joby Jacob Pulickekudy, since the provisions of the Kerala Municipality Act make it clear that only if a valid application is made before the Corporation and the statutory period for its consideration expires, can the applicant seek the benefit of a deemed licence. In the case at hand, it is virtually conceded that the application made before the Corporation was without the support of a Consent to Operate from the Pollution Control Board, which is a necessary pre-requisite; and therefore, I cannot find that the petitioner is entitled to any benefit under Section 447 of the Kerala Municipality Act. I, therefore, repel such contentions and proceed to dispose of this writ petition in the following manner:

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a) W.P.(C)No.3315/2019 is ordered, directing the Pollution Control Board to take up Ext.P11 application of the petitioner and dispose of the same, after affording an opportunity of being heard to him as well as to the 4^th respondent, adverting to Ext.P12, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. The

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WP(C).Nos.3315 & 29312 OF 2019

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Pollution Control Board will consider the application without insisting on a current year lease agreement and the Property/land Tax Receipts (the same being available only with the 4^th respondent), provided the petitioner is able to produce before them a copy of the last lease agreement, as has been required through Ext.P12, because the counter pleadings on record clearly indicate that the 4^th respondent concedes to the tenancy arrangement between her and the petitioner over the property/building in question.

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b) W.P.(C)No.29312/2019 is ordered, directing the competent Authority of the Corporation to consider the applications of the petitioner for renewal of the Trade Licence of the petitioner, provided he is able to obtain the necessary Consent to Operate from the Pollution Control Board in terms of the afore directions; but only after affording him and the 4^th respondent necessary opportunity of being heard. This exercise shall be completed by the Secretary of the Corporation, as expeditiously as is possible, but not later than one month after the Consent to Operate from the Pollution Control Board is presented before him by the petitioner.

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Needless to say, until such time as the petitioner is able to

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WP(C).Nos.3315 & 29312 OF 2019

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obtain both the Consent to Operate and the Trade Licence from the competent Authorities, he shall not run his automobile workshop in any manner and the Secretary of the Corporation will ensure that these directions are implicitly complied with.

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After I dictated this judgment, the learned Standing Counsel for the Pollution Control Board, submits that Ext.P11 application has, in fact, been returned to the petitioner and that he may be directed to resubmit the same. In such circumstances, I further direct the petitioner to resubmit Ext.P11, along with a copy of the lease agreement and after complying with the requisites in Ext.P12, within a period of seven days from the date of receipt of a copy of this judgment, so as to enable the said Authority to complete the exercise as ordered herein.

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SD/-

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DEVAN RAMACHANDRAN

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JUDGE

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WP(C).Nos.3315 & 29312 OF 2019

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APPENDIX OF WP(C) 3315/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	THE TRUE PHOTOCOPY ORDER DATED 19.12.2017 IN I.A.NO.8207/2017 IN O.S.NO.133/2017.
EXHIBIT P2	THE NOTICE ISSUED BY THE ASSISTANT DIRECTOR ESI COOPERATION DATED 24.07.2018.
EXHIBIT P3	TRUE PHOTOCOPY OF THE JUDGMENT DATED 25.01.2019 IN W.P.(C) NO.40171/2018.
EXHIBIT P4	THE TRUE PHOTOCOPY F LIST OF INDUSTRIES.
EXHIBIT P5	TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE DISTRICT INDUSTRIES CENTRE DATED 12.11.2010.
EXHIBIT P6	THE TRUE PHOTOCOPY OF ONLINE APPLICATION DATED 08.01.2019.
EXHIBIT P7	THE TRUE PHOTOCOPY OF THE NOTICE DATED 24.01.2019 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P8	THE TRUE PHOTOCOPY OF DIRECTION NOTICE DATED 15.01.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9	THE TRUE PHOTOCOPY OF CLARIFICATION SUBMITTED BY THE PETITIONER DATED 30.01.2019.
EXHIBIT P10	TRUE PHOTOCOPY OF ACKNOWLEDGMENT FOR MONEY ISSUED BY THE 1ST RESPONDENT DATED 22.03.2019
EXHIBIT P11	THE TRUE PHOTOCOPY OF APPLICATION DATED 12/6/2019
EXHIBIT P12	TRUE PHOTOCOPY OF LETTER DATED 6.8.2019 ISSUED BY THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE

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RESPONDENT'S/S EXH	IBITS:
EXHIBIT-R2(A)	TRUE	COPY OF THE	SHOW CAUSE NOTICE DATED 14-11-
	2017	ISSUED BY TH	E PCB.
EXHIBIT-R2(B)	TRUE	COPY OF THE	REPLY SUBMITTED BY THE
	PETIT	IONER DATED	23.11.2017.
EXHIBIT-R2(C)	TRUE	COPY OF THE	COMMUNICATION DATED 1-1-2018

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WP(C).Nos.3315 & 29312 OF 2019

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	SUBMITTED BY THE PETITIONER.
EXHIBIT-R2(D)	TRUE COPY F THE REPLY DATED 21-3-2018 SUBMITTED BY THE PETITIONER.
EXHIBIT-R2(E)	TRUE COPY OF THE RELEVANT PAGES OF THE CIRCULAR DATED 31-8-2016 CATEGORIZING AUTOMOBILE WORKSHOPS IN THE ORANGE CATEGORY.
EXHIBIT R4(A)	TRUE COPY OF THE MASS REPRESENTATION DATED 11.12.2014 SUBMITTED BY THE PEOPLE RESIDING ADJACENT TO THE WORKSHOP OF THE PETITIONER.

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WP(C).Nos.3315 & 29312 OF 2019

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APPENDIX OF WP(C) 29312/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	THE TRUE PHOTOCOPY ORDER DATED 19.12.2017 IN I.A. NO. 8207/2017 IN O.S. NO. 1300/2017.
EXHIBIT P2	TRUE PHOTOCOPY OF LICENCE APPLICATION DATED 29.12.2018 SUBMITTED BY THE PETITIONER.
EXHIBIT P3	TRUE PHOTOCOPY OF THE JUDGMENT DATED 25.01.2019 IN WPC NO. 40171/2018.
EXHIBIT P4	THE TRUE PHOTOCOPY OF APPLICATION DATED 12.06.2019 SUBMITTED BY THE PETITIONER.
EXHIBIT P5	TRUE PHOTOCOPY OF NOTICE DATED 06.08.2019 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P6	THE TRUE PHOTOCOPY OF INTERIM ORDER DATED 05.02.2019 IN WPC NO. 3315/2019.
EXHIBIT P7	THE TRUE PHOTOCOPY OF LETTER DATED 30.10.2019 ADDRESSED TO THE 2ND RESPONDENT.

Saneesh Kumar, v. the Kerala State Pollution Control Board

Case brief

What is this about?

What did the court decide?

Saneesh Kumar, v. the Kerala State Pollution Control Board

Case brief

What is this about?

What did the court decide?

What the court decided

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