Siraj Sait vs Corporation Of Kochi
2021 Latest Caselaw 11261 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT

                       THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

               THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                                WP(C).No.40025 OF 2016(C)


PETITIONERS:

        1          SIRAJ SAIT, AGED 50, S/O. SATHAR SAIT, 7/919/"SAADIA", A.K.LANE,
                   PANAYAPPALLY EAST, COCHIN-682002.

        2          ABOOBAKCER JAFFER SAIT, AGED 66 YEARS, S/O. JAFER SAIT, 7/924 B,
                   A.K.LANE, PANAYAPPALLY EAST, COCHIN-682002.

        3          NISAR, AGED 41 YEARS, S/O. ABOOBACKER, 7/924C, A.K.LANE,
                   PANAYAPPALLY EAST, COCHIN-682002.

        4          IMITIAZ, AGED 35 YEARS, S/O. ABOOBACKER, 7/308, A.K.LANE,
                   PANAYAPPALLY EAST, COCHIN-682002.

        5          HAMZA KOYA P.I., AGED 52 YEARS, S/O. IBRAHIM, 7/309,
                   PUTHIYAVETTIL HOUSE, PANAYAPPALLY EAST, COCHIN-682002.

        6          SULAIMAN C.M., AGED 62 YEARS, S/O. MOHAMMED CHERIAPALLY, 7/924-D,
                   A.K.LANE, PANAYAPPALLY EAST, COCHIN-682002.

        7          NAJMA T.A., AGED 58 YEARS, S/O. T.Y.ABDULLA, T/311, A.K.LANE,
                   D.S.ROAD, PANAYAPPALLY EAST, COCHIN-682002.

        8          KUNJUMON, AGED 65 YEARS, S/O. MOHAMMED, 7/19A, A.K.LANE,
                   D.S.ROAD, COCHIN.

                   BY ADV. SMT.JAYASREE MANOJ

RESPONDENTS:

        1          CORPORATION OF KOCHI, CORPORATION OFFICE, PARK AVENUE,
                   P.B.NO.1016, KOCHI-682011, REPRESENTED BY THE SECRETARY.

        2          THE SECRETARY, CORPORATION OF KOCHI, CORPORATION OFFICE,
                   PARK AVENUE, P.B.NO.1016, KOCHI-682011.

        3          ASSISTANT HEALTH OFFICER, CORPORATION OF KOCHI,
                   ZONAL OFFICE MATTANCHERY, KOCHI.

        4          KERALA STATE POLLUTION CONTROL BOARD, HEAD OFFICE,
                   THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY-695001.

        5          SENIOR ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL
                   BOARD, REGIONAL OFFICE, GANDHI NAGAR, KOCHI-682020.
 WP(C).No.40025 OF 2016(C)
                                          :: 2 ::



         6         K.M.SAHMSUDEEN, PROPRIETOR, M/S. SHAMS TRADERS,
                   HOUSE NO.7/921 & 922, PANAYAPPILLY EAST, MATTANCHERY,
                   KOCHI-682002.

                   BY SRI.RAJU SEBASTIAN VADAKKEKARA, SC, KOCHI
                   R6 BY ADV. SRI.M.V.KISHORE KUMAR
                   R1 BY ADV. SRI.RAJU SEBASTIAN VADAKKEKARASCCOCHI
                   R4 & 5 BY ADV. SRI. T.NAVEEN , SC, KERALA STATE POLLUTION
                                                                         CONTROL BOARD
                   R1 TO 3 - SRI.R.HARISHANKAR, SC
                   R6 - SRI.SHAJAHAN.P.M

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.40025 OF 2016(C)
                                           :: 3 ::


                                        JUDGMENT

Dated this the 8th day of April 2021

S.MANIKUMAR, C.J.

This writ petition is filed by the petitioner seeking the following reliefs:

(i) issue a writ in the nature of mandamus directing the respondent Nos.1 to 3 to take action on Ext.P2 representation submitted by the petitioners after hearing them and to issue a stop memo to the 6th respondent refraining him from conducting the drum repairing unit which is causing serious health hazards to the residents in the area within a time frame to be fixed by this Hon'ble Court.

(ii) issue a writ in the nature of mandamus directing the respondent Nos.4 and 5 to take action on Ext.P3 representation submitted by the petitioners after hearing them and to issue a stop memo to the 6th respondent refraining him from conducting the drum repairing unit which is causing serious health hazards to the residents in the residential colony of the petitioners, within a time frame to be fixed by this Hon'ble Court.

2. The contention put forth by the petitioners is that a drum

repairing unit is conducted by the sixth respondent one K.M.Sahmsudeen,

M/S Shams Traders, House No.7/921 & 922, Panayappilly East,

Mattanchery, Kochi without securing any consent from the Pollution

Control Board. Petitioners have also sought for a direction to the

Corporation of Kochi, the Secretary and Assistant Health Officer WP(C).No.40025 OF 2016(C) :: 4 ::

(respondents 1 to 3) to look into the representation submitted by the

petitioners and take appropriate action in accordance with law. The party

respondent has filed a counter affidavit and along with the same, Ext.R6(5)

consent issued by the Pollution Control Board is produced from where it is

clear that consent is granted for the functioning of the unit at building

No.VII/922, Andamkulam Lane, Kochangadi, Kochi-2 and the validity of

the consent was upto the period 20.1.2018. It is also submitted that the

petitioner is functioning in accordance with law in the premises. That

apart, petitioners produced the trade license issued by the Kochi

Municipal Corporation and from where it is clear that the trade license

was granted and it was being renewed upto the period 2017. It is also

evident that the Directorate of Industries and Commerce, Government of

Kerala has issued a certificate to the party respondent to function as a

small scale industrial unit. Therefore, according to the party respondent,

petitioner has not made out a case justifying interference of this court

exercising the power of judicial review. A reply affidavit is filed by the

petitioner reiterating the stand taken in the writ petition.

3. We have heard learned counsel for the petitioner Smt.Jayasree

Manoj, learned Standing Counsel for the Pollution Control Board

Sri.T.Naveen and learned counsel for the party respondent Sri.Shajahan P, WP(C).No.40025 OF 2016(C) :: 5 ::

learned Standing Counsel for the Corporation of Cochin Sri.R.Harishankar

and perused the materials on record.

4. An elaborate discussion of the facts made above would make it

clear, apparently the party respondent has secured necessary

license/consent from the respective statutory authorities in order to

function the unit. I am also informed by learned Standing Counsel for the

Pollution Control Board that after the expiry of Ext.R6(5) consent it is

renewed by the Pollution Control Board and it is valid upto 1.6.2025.

Eventhough the party respondent has not produced any fresh license

issued by the Secretary of the Municipal Corporation, going by the records

it can only be presumed that if at all the unit is functioning it is in

accordance with the trade license secured from the Secretary of the

Municipal Corporation. The writ petition was pending before this court

for the past five years without securing any interim orders. Therefore at

this distance of time, the court can only direct the respective statutory

authorities to look into the matter and take action, if there is any violation

of the statutory conditions/prescriptions. Added to that learned counsel

for the petitioners submitted that the unit is at present not functioning in

the premises. If that is taken into consideration, I need not direct the

Municipal Corporation and the Pollution Control Board to consider the WP(C).No.40025 OF 2016(C) :: 6 ::

respective representations submitted by the petitioners before the said

statutory authorities. However, since various grievances are raised, it is

only appropriate that necessary directions are issued to the respective

statutory authorities.

Therefore, the writ petition is disposed of directing the statutory

authorities to take necessary action if there is any violation of the

conditions contained in the trade license or the consent issued, after

providing an opportunity of hearing to the petitioners as well as any

affected persons.

SD/-

SHAJI P. CHALY JUDGE jes WP(C).No.40025 OF 2016(C) :: 7 ::

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE PHOTOGRAPHS TAKEN FROM THE DRUM MANUFACTURING UNIT OF THE 6TH RESPONDENT AND THE ACTIVITIES BEING CARRIED ON THE SAID UNIT.

EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AS WELL AS OTHER RESIDENTS OF THE COLONY TO THE SECOND RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AS WELL AS OTHER RESIDENTS OF THE COLONY TO THE 4TH RESPONDENT.

EXHIBIT P4 A TRUE COPY OF THE RECEIPT DATED 1-9-2016 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT ACKNOWLEDGING RECEIPT OF EXHIBIT P2.

EXHIBIT P5 A TRUE COPY OF THE RECEIPT DATED 1-9-2016 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT ACKNOWLEDGING RECEIPT OF EXHIBIT P3.

EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE CITY POLICE COMMISSIONER KOCHI.

EXHIBIT P7 A TRUE COPY OF THE RECEIPT DATED 1-9-2016 ISSUED BY THE CITY POLICE COMMISSIONER KOCHI EVIDENCING RECEIPT OF EXHIBIT P5.

RESPONDENTS' EXHIBITS

EXHIBIT R6(1) TRUE COPY OF THE LICENSE ISSUED BY THE CORPORATION OF COCHIN BEARING C-426/2016-

2017.

EXHIBIT R6(2) TRUE COPY OF THE SSI REGISTRATION CERTIFICATE DATED 24.4.1981 BEARING NO.09/03/04732/81/PMT/SSI.

EXHIBIT R6(3) TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 25.11.2014 ISSUED BY THE DEPARTMENT OF FACTORIES AND BOILERS BEARING NO.N/CHN/03/258/88

EXHIBIT R6(4) THE TRUE COPY OF THE DIAGRAM OF SOAK PIT USED FOR WATER FROM WASHING AND FROM THE HYDRAULIC PRESS.

EXHIBIT R6(5) TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD BEARING FILE NO.PCB/EKM/DO-1/OA-307/17 DT.20/07/2017

EXHIBIT R6(6) THE TRUE COPY OF THE ORDER ISSUED BY THIS HON'BLE COURT DATED 6/4/2017 IN WPC NO.11572/2017.

EXHIBIT R6(7) THE PHOTOGRAPHS OF THE DESTROYED COCONUT TREES IN THE 6TH RESPONDENT'S PREMISES.

EXHIBIT R6(8) THE TRUE COPY OF THE COMPLAINT DT.31.7.2017 FILED BY THE 6TH RESPONDENT BEFORE THE SUB INSPECTOR, MATTANCHERRY POLICE.

EXHIBIT R6(9) THE TRUE COPY OF THE RECEIPT ISSUED BY THE MATTANCHERRY POLICE STATION DATED 1.8.2017.

// TRUE COPY // P.S. TO JUDGE