Dismissed

K.K.Shameer, v. the Secretary

Kerala HC19 Nov 2019WP(C)/4939/2019

Case brief

AI extract

What is this about?

Petitioner challenged a Consent to Operate for a plastic recycling unit alleging unbearable air pollution and noxious smell. The Advocate Commissioner's inspection found no smell during the visit. The Bench declined to enter the factual realm or examine the merit of the consent due to lack of scientific evidence and the petitioner's availability of an efficacious alternative statutory remedy.

What did the court decide?

The petition was closed; liberty was granted to the petitioner to approach the competent authority if pollution is caused in the future.

K.K.Shameer, Vs the Secretary — 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 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941 WP(C).No.4939 OF 2019(N)

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PETITIONER/S:

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K.K.SHAMEER, AGED 32 YEARS S/O ABDUL KAREEM, KEEPURATH HOUSE, ARACKAPPADY VILLAGE, VENGOLA KARA, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN - 683 556.

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BY ADV. SRI.R.PARAMESWARA IYER

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RESPONDENT/S:

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1 THE SECRETARY, VENGOLA GRAMA PANCHAYATH, VENGOLA GRAMA PANCHAYATH OFFICE, VENGOLA P.O., PERUMBAVOOR, PIN - 683 556.

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2 VENGOLA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, VENGOLA GRAMA PANCHAYATH OFFICE, VENGOLA P.O., PERUMBAVOOR, PIN - 683 556.

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3 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, PERUMBAVOOR - 683 542.

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4 THE SECRETARY, KERALA STATE POLLUTION CONTROL BOARD, THIRUVANANTHAPURAM - 690 005.

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5 THE CHAIRMAN, POLLUTION CONTROL BOARD, THIRUVANANTHAPURAM - 690 005.

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6 THE DISTRICT MEDICAL OFFICER, DISTRICT MEDICAL OFFICE, ERNAKULAM.PIN 682011

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7 THE ASSISTANT DISTRICT INDUSTRIES OFFICER, KUNNATHUNADU, PERUMBAVOOR - 683 547.

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8 THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ERNAKULAM.PIN 682011

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WPC 4939/19

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9 THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, CIVIL STATION BUILDING, KAKKANAD, KOCHI - 682 030.

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10 M/S ALIF POLYMERS, MINI INDUSTRIAL ESTATE, MINI KARALA, WEST VENGOLA P.O., PIN - 683 556 REPRESENTED BY SOLE PROPRIETOR ABOOBACKER T.I., THACHARUKUDY HOUSE, NORTH EZHIPURAM, MARAMPILLY P.O., PIN - 683 105.

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*11 M/S UNITED INDUSTRIES, MINI INDUSTRIAL ESTATE, MINI KARALA, WEST VENGOLA P.O., PIN - 683 556 REPRESENTED BY SOLE PROPRIETOR C.M.KOYA., THACHARUKUDY HOUSE, NORTH EZHIPURAM, MARAMPILLY P.O., PIN - 683 105. (CORRECTED )

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(ADDRESS OF R11 IS CORRECTED AS

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'M/S. UNITED INDUSTRIES, MINI INDUSTRIAL ESTATE, MINI KAVALA, WEST VENGOLA P.O., PIN - 683 556 REPRESENTED BY SOLE PROPRIETOR C.M.KOYA., CHATHANATTU HOUSE,MINI KAVALA, WEST VENGOLA P.O., PIN-683556, PERUMBAVOOR.' AS PER ORDER DATED 18/06/2019 IN IA NO.01/2019)

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12 JABBAR MANALI, THACHARUKUDY HOUSE, NORTH EZHIPURAM, MARAMPILLY P.O., PIN - 683 105.

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R1-2 BY ADV. SRI.SIRAJ KAROLY R3 BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, R10, R12 BY ADV. SRI.JOBY JACOB PULICKEKUDY R10, R12 BY ADV. SRI.ANIL GEORGE R11 BY ADV. SRI.M.V.BOSE R11 BY ADV. SRI.VINOD MADHAVAN SR.GP.K.AMMINIKUTTY ADVOCATE COMMISSIONER – SRI.AYYAPPAN SANKAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC 4939/19

JUDGMENT

The petitioner has approached this Court

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alleging that a Plastic Re-cycling Unit, being run by respondents 10 to 12, is causing

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unbearable air pollution in the area where he is residing.

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The petitioner has, in this Writ

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Petition, made several allegations against the competent Authorities of the Pollution Control

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Board with respect to grant of Consent to Operate to respondents 10 to 12 and prays that this Court interdict this Consent, a copy of which has been placed on record as Ext.P9. He

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says that the Consent issued is illegal, particularly to the extent to which it has permitted the use of recycled plastic as a raw material and has allowed respondents 10 to 12 the permission granted to them to operate the Unit 24 hours. He asserts that on account of the continuous working of the Unit, horrible

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WPC 4939/19

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smell is generated and therefore, that this

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Court issue urgent orders setting aside these permissions.

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On hearing the learned counsel for the

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petitioner-Sri.R.Parameswara Iyer on the afore lines on 17.10.2019, I had issued the following order:

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The petitioner alleges that on account of the industrial Unit, being run by respondents 10, 11 and 12, the entire locality is filled with noxious fumes and causes unbearable smell.

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The reports available on record would indicate to some extent that the petitioner is justified in saying so, but I am unable to take a final decision on the same since the necessary inputs as regards the actual situation is not available on record.

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I am, therefore, of the view that an inspection of the area should be done by the concerned Environmental Engineer in the presence of an Advocate Commissioner I propose to appoint in this case.

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The learned counsel for the petitioner submitted that his client would be happy to take out an Advocate Commission but that he is not in a position to pay the requisite remuneration for the same, since he belongs to economically lower strata. I, therefore, asked Sri.Ayyappan Sankar, a learned Counsel of this Court, whether he can assist this Court, and he volunteered to do so graciously, saying that he would not require any remuneration for the same.

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I, therefore, appoint Sri.Ayyappan Sankar,

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WPC 4939/19

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learned counsel of this Court as the Advocate Commissioner, who shall forthwith visit the area in question, along with the Environmental Engineer of the Pollution Control Board and file a report before this Court as to whether the allegations of the petitioner, as stated in this case, particularly with respect to unbearable smell, are correct or otherwise.

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Resultantly, I direct the 3^rd respondent Environmental Engineer to remain present at 2.00 p.m. on 22.10.2019 before the Unit of respondent No.10, at which time the learned Advocate Commissioner will also visit the premises and complete the process as directed above.

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Since the learned Advocate Commissioner has graciously agreed not to accept any remuneration, I direct the petitioner to arrange for the to and fro transport of the Advocate Commissioner.

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Registry is directed to give necessary assistance to the learned Advocate Commissioner, including by providing him all necessary papers and documents.

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List for further consideration on 25.10.2019.

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The learned Advocate Commissioner, Sri.Ayyappan Sankar, has filed a report on

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record, wherein he has stated that at the time

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when he made the inspection, there was no smell at all and that the Unit was functioning in normal circumstances.

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The petitioner has, however, filed an

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WPC 4939/19

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objection to this, asserting that the Unit was being functioned by the party respondents in a carefully manipulated manner, so as to avoid smell at that time, but that it reappeared after the Commissioner left. He, therefore, prays that the Pollution Control Board be directed to make continuous observations in the area, particularly to abate the noxious smell.

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The learned Standing Counsel for the

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Pollution Control Board submits that his client has already made periodic visits to the Unit of the party respondents and that a report has been filed on record, wherein they have stated that the allegation of smell does not appear to be credible. He says that the competent Authority of the Pollution Control Board will, however, monitor the Unit of the party respondents on a regular basis in future and

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that necessary action will be taken as and when there is any air pollution.

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WPC 4939/19

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When I consider the afore submissions,

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it is without doubt that the petitioner has approached this Court solely because he alleges that unbearable smell is caused when the Unit of the party respondents is operated. However,

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at the time of the visit of the learned Advocate Commissioner, no such smell was found by him and the report placed on record by the Pollution Control Board also indicates that these allegations have not been yet substantiated. This does not, however, persuade me to think that the petitioner is lying or making fabricated stories, but only that he is not able to prove it cogently and reliably.

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That said, the challenge of the

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petitioner against the Consent to Operate cannot be considered by this Court on account

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of the fact that he has an efficacious

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aleternative statutory remedy and it will be impossible for this Court to enter into the

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WPC 4939/19

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factual realm and verify the validity of the

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said consent. This is more so because, the petitioner says that the noxious smell is caused on account of the raw material used in the Unit, namely re-cycled plastic, but there is no scientific material available for me to affirmatively conclude so.

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In the afore circumstances, I close this Writ Petition in terms of the reports of the Pollution Control Board and the learned

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Advocate Commissioner; but leave liberty to the petitioner to approach the competent Authority of the Pollution Control Board as and when any pollution is caused by the Unit of the party respondents; and in such event, the said Authority will immediately intervene and take all necessary action as is permitted under the applicable Statutes, Rules and Regulations.

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Before parting, I must commend Sri.Ayyappan Sankar, who responded to the request of this

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WPC 4939/19

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Court to act as an Advocate Commissioner even

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without remuneration taking note of the stated pathetic financial situation of the petitioner.

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This Court thus places on record the appreciation for the efforts taken by

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Sri.Ayyappan Sankar.

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Sd/-

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DEVAN RAMACHANDRAN

JUDGE

WPC 4939/19

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1	TRUE COPY OF THE SALE DEED NO.725/14 OF PERUMBAVOOR SUB REGISTRY.
EXHIBIT	P2	TRUE COPY OF THE LAND REVENUE RECEIPT NO.7445441 DATED 13.6.2018.
EXHIBIT	P3	TRUE COPY OF THE BUILDING TAX RECEIPT NO.44636481 DATED 1.2.2019.
EXHIBIT	P4	TRUE COPY OF THE TITLE DEED IN THE NAME OF THE PETITIONER'S FATHER ABDUL KAREEM.
EXHIBIT	P5	TRUE COPY OF THE LAND TAX PAID RECEIPT NO.9641936 DATED 9.10.2018.
EXHIBIT	P6	TRUE COPY OF THE PROPERTY TAX PAID RECEIPT NO.31842 DATED 19.02.2018.
EXHIBIT	P7	TRUE COPY OF THE REPLY DATED 03.08.2015.
EXHIBIT	P8	TRUE COPY OF THE COMPLAINT DATED 22.08.2015.
EXHIBIT	P9	TRUE COPY OF THE APPLICATION DATED 04.09.2015.
EXHIBIT	P10	TRUE COPY OF THE REPLY RECEIVED FROM THE DISTRICT INDUSTRIES CENTRE.
EXHIBIT	P11	TRUE COPY OF THE COMPLAINT DATED 14.01.2016.
EXHIBIT	P11A	TRUE COPY OF THE LATEST CONSENT DATED 04.08.2018 GIVEN BY THE KERALA STATE POLLUTION CONTROL BOARD
EXHIBIT	P12	TRUE COPY OF THE ACKNOWLEDGMENT DT. 14.01.2016 RECEIVED FROM THE 1ST RESPONDENT FOR EXT. P11.
EXHIBIT	P13	TRUE COPY OF THE COMPLAINT DATED 18.06.2016.

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WPC 4939/19

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EXHIBIT P14	TRUE COPY OF THE COMPLAINT DT. 28.09.2016 WITH ACKNOWLEDGMENT THEREON.
EXHIBIT P15	TRUE COPY OF THE ACKNOWLEDGMENT DT. NIL.
EXHIBIT P16	TRUE COPY OF THE LETTER DT. 24.06.2016 OF CHAIRMAN'S OFFICE OF THE POLLUTION CONTROL BOARD.
EXHIBIT P17	TRUE COPY OF THE LETTER DT. 19.07.2016 OF THE HEALTH INSPECTOR.
EXHIBIT P18	TRUE COPY OF THE COMPLAINT DT. 28.09.2016 WITH ACKNOWLEDGMENT.
EXHIBIT P19	TRUE COPY OF THE APPLICATION DT. 28.09.2016 TO THE RESPONDENT.
EXHIBIT P20	TRUE COPY OF THE COVERING LETTER DATED 28.09.2016.
EXHIBIT P21	THE CONSENT TO OPERATE DT. 26.07.2016 VALID UPTO 30.06.2018 ISSUED TO THE 10TH RESPONDENT.
EXHIBIT P22	TRUE COPY OF LETTER DATED 25.10.2016 SENT BY THE 3RD RESPONDENT TO THE RESPONDENT.
EXHIBIT P23	TRUE COPY OF THE APPLICATION FOR CONSENT DATED 28.06.2016 FROM THE 10TH CONSENT DATED 28.06.2016 FROM THE 10TH RESPONDENT.
EXHIBIT P24	TRUE COPY OF THE INSPECTION REPORT OF AE2.
EXHIBIT P25	TRUE COPY OF THE COMPLAINT SENT TO THE 9TH RESPONDENT UNDER CHIEF MINISTER'S PROGRAM.
EXHIBIT P26	TRUE COPY OF THE ACKNOWLEDGMENT DATED 18.05.2017.
EXHIBIT P27	TRUE COPY OF THE COMPLAINT DATED 19.07.2018 SENT TO THE DISTRICT

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WPC 4939/19

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COLLECTOR AS PER THE SCHEME.

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EXHIBIT	P28 TRUE COPY OF THE 19.07.2018 RECEIV RESPONDENT.	ACKNOWLEDGMENT DATED ED FROM 9TH
EXHIBIT	P30 TRUE COPY OF THE THE LORRY LOADED BAGS	PHOTOGRAPH DEPICTING WITH THE R.P. WASTE
EXHIBIT	P31 TRUE COPY OF THE RESPONDENT AND HI OUTSIDE	PICTURE OF THE 3RD S ASSISTANT STANDING
EXHIBIT	P32 TRUE COPY OF THE RESPONDENT AND HI OUTSIDE	PICTURE OF THE 3RD S ASSISTANT STANDING
EXHIBIT	P33 TRUE COPY OF THE UNPACKED RECYCLED	PHOTOGRAPH OF PASTIC WASTE
EXHIBIT	P34 TRUE COPY OF THE THE PACKED WASTE	PHOTOGRAPH SHOWING STACKED IN BAGS
EXHIBIT	P35 TRUE COPY OF THE THE PACKED WASTE	PHOTOGRAPH SHOWING STACKED IN BAGS

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RESPONDE	NT'S/S E	XHIBITS	:
EXHIBIT	R12 A	TRUE DATED STATE	PHOTOCOPY 11/7/2018 POLLUTION	OF IS CO	CONSENT LETTER SUED BY THE KERALA NTROL BOARD
EXHIBIT	R12 B	TRUE DATED	PHOTOCOPY 26/7/2016	OF	CONSENT LETTER
EXHIBIT	R12 C	TRUE NO.99	PHOTOCOPY 92/2008	OF	JUDGMENT IN WPC
EXHIBIT	12 D	TRUE 26/3/	PHOTOCOPY 2019	OF	APPLICATION DATED

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WPC 4939/19

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EXHIBIT 12 E TRUE PHOTOCOPY OF REPLY DATED 24/4/2019 ANNEXURE R3A TRUE COPY OF THE CONSENT TO OPERATE (RENEWAL) ISSUED ON 11.07.2018 TO M/S.ALIF POLYMERS ANNEXURE R3 B TRUE COPY OF THE CONSENT TO OPERATE (RENEWAL) ISSUED TO M/S UNITED INDUSTRIES ON 04.08.2018

K.K.Shameer, v. the Secretary

Case brief

What is this about?

What did the court decide?

K.K.Shameer, v. the Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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