Disposed

Mathunni E.I. v. State of Kerala

Kerala HC7 Sept 2021WP(C)/5112/2021

Case brief

AI extract

What is this about?

The High Court directed the petitioner to file an appeal against the Pollution Control Board's consent under the relevant Acts within one week with a stay petition. The Court directed the District Magistrate to consider a supplementary complaint. It declined to consider the merits as a statutory remedy existed and no stay petition was filed purtutuant to direction.

What did the court decide?

Directing the petitioner to file an appeal with a stay petition within one week; directing the Additional District Magistrate to consider the supplementary complaint within two weeks.

Mathunni E.I. Vs State of Kerala — Environment and Pollution | Kerala HC (2021)

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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 P.V.KUNHIKRISHNAN

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TUESDAY, THE 7^TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943

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WP(C) NO. 5112 OF 2021

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PETITIONERS:

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1 MATHUNNI E.I. AGED 71 YEARS S/O. ITTY MATHEW, EDATTUKKARAN HOUSE, KURUVILASERRY VILLAGE, CHALAKKUDY TALUK, THRISSUR680 732

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2 STELLA MATHEW, AGED 62 YEARS W/O. MATHUNNI, EDATTUKKARAN HOUSE, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR-680 732

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BY ADV SINDHU SANTHALINGAM

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 DISTRICT COLLECTOR, CIVIL STATION, AYYANTHOLE, THRISSUR- 680 003

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3 ADDITIONAL DISTRICT MAGISTRATE , CIVIL STATION, AYYANTHOLE, THRISSUR-680 003

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4 ASSISTANT ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, PATTOM P.O, THIRUVANANTHAPURAM 695 004.

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5 CHEIF ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, PATTOM P.O,THIRUVANANTHAPURAM-695 004.

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6 SECRETARY MALA GRAMA PANCHAYATH, MALA, THRISSUR-680 732

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7 EXECUTIVE ENGINEER, PWD ROADS AND BRIDGES, THRISSUR 680 020.

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8 DISTRICT TOWN PLANNER, PALANNING BHAVAN, CIVIL STATION, AYYANTHOLE, THRISSUR-680 003

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9 DEPUTY GENERAL MANAGER, INDIAN OIL CORPORATION LTD., COCHIN DIVISIONAL OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O, KOCHI 682 036.

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W.P.(C).No.5112/2021

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10 TOMY GEORGE AGED 67 YEARS S/O. GEORGE JOSEPH, MALIYEKKAL HOUSE, KURUVILASERRY VILLAGE, CHALAKKUDY TALUK, THRISSUR-680 732 11 STELLA TOMMY, AGED 60 YEARS W/O. TOMMY, MALIYEKKAL HOUSE, KURUVILASSERRY VILLAGE, CHALAKKUDY TALUK, THRISSUR-680 732 BY ADVS. SRI.PHILIP T.VARGHESE SRI.M.GOPIKRISHNAN NAMBIAR SMT.A.SALINI LAL SRI.K.JOHN MATHAI SRI.R.SUNIL KUMAR SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SMT.K.M.RASHMI, SR.GOVT PLEADER SRI.T.NAVEEN, SC, PCB

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No.5112/2021

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.5112 of 2021

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Dated this the 07^th day of September, 2021

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JUDGMENT

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This writ petition is filed with following prayers:

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(i) To issue a writ of certiorari, or other appropriate writ, order or direction to quash Exhibit P6 NOC issued by 3^rd respondent and Exhibit P1 consent issued by 4^th respondent for establishment of fuel station.

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(ii) To issue a writ of mandamus, or other appropriate writ, order or direction, directing respondent no.2,5,6 and 7 to consider the complaint filed by the petitioners before them against the proposed fuel station after hearing the petitioners in accordance with law within a stipulated time as this Honourable court deem think fit.

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(iii) To Grant such other reliefs in accordance with law and fact of the case as this Honourable Court deem think fit.

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Ext.P6 is a No Objection Certificate issued by the

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Additional District Magistrate, Thrissur and Ext.P1 is a consent to establish, issued by the Kerala State Pollution

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W.P.(C).No.5112/2021

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Control Board. Admittedly against Ext.P1 there is a statutory remedy as per Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31 of the Air (Prevention and Control of Pollution) Act, 1981. Admittedly no appeal is filed. The counsel for the petitioner raised several contentions in the writ petition against Exts.P1 and P6. The counsel narrated the same in detail in the writ petition. I don't want to make any observation about the merit of the case. When there is a statutory remedy available against Ext.P1 order, the petitioner is free to approach the appellate authority by filing an appeal. The counsel for the petitioner submitted that the construction work of the fuel station is going on and an interim order may be issued till the appeal is considered. This Court cannot consider that, when there is a statutory remedy available to the petitioner against Ext.P1. The petitioner is free to file a stay petition also along with the appeal and if such a petition is filed, there can be a direction to the appellate authority to consider the same in accordance to law.

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The counsel also submitted that no appeal is there against Ext.P6 No Objection Certificate and it is issued

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W.P.(C).No.5112/2021

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without giving notice to the petitioner. This is disputed by the contesting respondent. The counsel for the contesting respondents submitted that the order is passed by the Additional District Magistrate after hearing the petitioner. Whatever that may be, the counsel for the petitioner submitted that, after Ext.P6, the petitioner submitted Ext.P4 before the Additional District Magistrate, Thrissur. There can be a direction to the Additional District Magistrate to consider Ext.P4 also.

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Therefore, this writ petition is disposed in the following manner:

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The petitioner is free to file an appeal along with a stay petition against Ext.P1 before the appellate authority as per Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31 of the Air (Prevention and Control of Pollution) Act, 1981, within one week from today.

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If such an appeal along with the stay petition is received, the appellate authority will consider the stay petition immediately, if the same is

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W.P.(C).No.5112/2021

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filed after giving notice to respondents 5, 6 and 8 to 11. If the stay petition is filed after giving notice to respondents 5, 6 and 8 to 11, the appellate authority will consider the same within one week from the date of receipt of the same.

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The 3^rd respondent is directed to consider Ext.P4 and pass appropriate orders in it within two weeks from the date of receipt of a copy of this judgment.

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I make it clear that I have not considered the matter on merit and the appellate authority and the 3^rd respondent are free to pass appropriate orders in accordance to law.

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Sd/- P.V.KUNHIKRISHNAN JUDGE

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W.P.(C).No.5112/2021

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APPENDIX OF WP(C) 5112/2021

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PETITIONER EXHIBITS

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EXHIBIT	P1 THE TRUE COPY OF THE CONSENT GIVEN BY
	THE 4TH RESPONDENT AND SITE PLAN SUBMITTED ALONG WITH THE APPLICATION DATED 07.10.2020.
EXHIBIT	P2 THE SITE PLAN/KEY PLAN OF PROPOSED FUEL STATION SUBMITTED BY THE 11TH RESPONDENT BEFORE 6TH RESPONDENT PANCHAYATH.
EXHIBIT	P3 THE TRUE COPY OF COMPLAINT DATED 09.10.2020 FILED BEFORE THE 2ND RESPONDENT.
EXHIBIT	P4 THE TRUE COPY OF COMPLAINT 25.1.2021 FILED BY PETITIONERS BEFORE 3RD RESPONDENT.
EXHIBIT	P5 THE TRUE COPY OF THE LETTER NO. A6 4277/2020 DATED 16.9.2020 OF 7TH RESPONDENT TO 2ND RESPONDENT.
EXHIBIT	P6 THE TRUE COPY OF NOC DATED 22.1.2021 GIVEN BY THE 3RD RESPONDENT TO THE 9TH RESPONDENT.
EXHIBIT	P7 THE TRUE COPY OF COMMISSION REPORT ALONG WITH LOCATION SKETCH FILE BY THE ADVOCATE COMMISSIONER IN OS 25/2021 OF HON'BLE SUB COURT IRINJALAKUDA DATED 18.2.2021.
EXHIBIT	P8 THE TRUE COPY OF CIRCULAR NO. PCB/HO/HOW/RULES 9/7/2019 OF KERALA STATE POLLUTION CONTROL BOARD DATED 24.2.2020.
EXHIBIT	P9 THE TRUE COPY OF PLAINT IN OS 25/2021 PENDING BEFORE SUB COURT, IRINJALAKUDA DATED 3.2.2021.
EXHIBIT	P10 THE TRUE COPY OF THE RELEVANT PAGE SHOWING SI.NO. IV (11) OF NEW GUIDELINES FOR ACCESS PERMISSION TO FUEL STATION ALONG STATE HIGHWAYS AND MAJOR DISTRICT ROADS ISSUED BY THE GOVERNMENT OF KERALA AS FILE NO. PWD H1/32/2020-PWD ALONG WITH THE G.O(MS) NO. 67/20220/PWD DATED 16.10.2020

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W.P.(C).No.5112/2021

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EXHIBIT P11	THE TRUE PHOTOS OF THE BUS STOP SHED
	AND BUS STOP COME WITHIN THE 21 METER RADIUS OF PROPOSED FUEL STATION.
EXHIBIT P12	THE TRUE COPY OF THE RELEVANT PAGE SHOWING SI. NO. IV(8) OF NEW GUIDELINES FOR ACCESS PERMISSION TO FUEL STATION ALONG STATE HIGHWAYS AND MAJOR DISTRICT ROADS ISSUED BY THE GOVERNMENT OF KERALA AS FILE NO. PWD- H1/32/2020-PWD.
EXHIBIT P13	THE TRUE COPY OF THE RELEVANT PAGE SHOWING SI.NO. IV94) OF THE NEW GUIDELINES FOR ACCESS PERMISSION TO FUEL STATION ALONG STATE HIGHWAYS AND MAJOR DISTRICT ROADS ISSUED BY THE GOVERNMENT OF KERALA AS FILE NO. PWD- H1/32/2020-PWD.
EXHIBIT P14	THE TRUE COPY OF LIST OF ACCIDENT OCCURED NEAR TO KOTTAMURRY JUNCTION ISSUED BY THE SHO, MALA POLICE STATION, THROUGH RIGHT TO INFORMATION ACT DATED 26.12.2020.
EXHIBIT P15	THE TRUE PHOTOS OF THE WORK DONE IN THE PROPOSED SITE FOR FUEL STATION BY THE RESPONDENT NO. 9 TO 11.
EXHIBIT P16	THE TRUE COPY OF THE COMPLAINTS DATED 10.02.2021 FILED BY THE PETITIONER BEFORE 5TH RESPONDENT.
EXHIBIT P17	THE TRUE COPY OF THE COMPLAINTS DATED 10.02.2021 FILED BY THE PETITIONER BEFORE 6TH RESPONDENT.
EXHIBIT P18	THE TRUE COPY OF THE COMPLAINTS DATED 10.02.2021 FILED BY THE PETITIONER BEFORE 7TH RESPONDENT.
EXHIBIT P19	THE TRUE COPY OF LETTER DATED 29/4/2021 ISSUED BY THE RESPONDENT NO.6 PANCHAYAT CONFIRMING THAT THE AFORESAID AREA IN WHICH PETITIONERS HOUSE SITUATED IS A RESIDENTIAL AREA AS PER LOCAL LAWS
EXHIBIT P20	THE TRUE PHOTOS SHOWING THE FILLING OF PETROLEUM IN THE FUEL TANK CONSTRUCTED WITHOUT FOLLOWING ANY GUIDELINES
Exhibit P21	PHOTOCOPY OF THE CIRCULAR NO. PCB/HO/HOW/RULES9/7/2019 DATED

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W.P.(C).No.5112/2021

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18.8.2020 OF THE KERALA STATE POLLUTION CONTROL BOARD. Exhibit P22 PHOTOCOPY OF THE STOP MEMO DATED 28.4.2021 ISSUED BY THE 6TH RESPONDENT.

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RESPONDENTS' EXHIBITS

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EXHIBIT R11(A) COPY OF THE STOP MEMO DATED 18.02.2021 ISSUED BY THE PANCHAYATH SECRETARY EXHIBIT R11(B) COPY OF HTE INTERIM ORDER IN WPC 9132/2021 EXHIBIT R11(C) COPY OF THE JUDGMENT IN WPC 6373/2021 EXHIBIT R11(D) COPY OF HTE LETTER ISSUED BY TEH 6TH RESPONDENT DATED 28.06.2021 EXHIBIT R11(E) COPY OF HTE EXPLOSIVE LICENSE DATED 24.2.2021 EXHIBIT R11(F) COPY OF THE BUILDING PERMIT DATED 7.5.2021

Mathunni E.I. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mathunni E.I. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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