Mariyakutty @ Mariyam Thomas vs The District Police Chief
2021 Latest Caselaw 13719 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                  WP(C) NO. 18282 OF 2019
PETITIONER/S:

         MARIYAKUTTY @ MARIYAM THOMAS,AGED 69 YEARS
         D/O.THOMAS,PUTHENPURACKAL HOUSE,
         THURUTHY POST,PUNNAMOODU-CHANGANACHERRY,KOTTAYAM
         DISTRICT-686535.

         BY ADV K.PUSHPAVATHI



RESPONDENT/S:

    1    THE DISTRICT POLICE CHIEF,
         KOTTAYAM DISTRICT,PIN-686002.

    2    THE DEPUTY SUPERINTENDENT OF POLICE,
         CHANGANACHERRY-686101.

    3    THE STATION HOUSE OFFICER,CHANGANACHERRY POLICE
         STATION,CHANGANACHERRY-686101.

    4    BIJU,AGED 44 YEARS,S/O VIDHYADHARAN,VIJAYA BHAVAN,
         THURUTHY POST,PUNNAMOODU,CHANGANACHERRY,KOTTAYAM-
         535.

    5    SAJI VIJAYAN @ ANIL,AGED 42,YEARS, S/O.
         VIDYADHARAN, THURUTHY POST, PUNNAMOODU,
         CHANGANACHERRY,KOTTAYAM-686535.

    6    ENVIRONMENTAL ENGINEER,POLLUTION CONTROL
         BOARD,NAGAMBADAM,KOTTAYAM-686001.

    7    VAZHAPPALLY GRAMA PANCAYAT,KURISSUMMOODU
         POST,CHANGANACHERRY ,KOTTAYAM-686105,REPRESNTED BY
         ITS SECRETARY.
 WP(C) NO. 18282 OF 2019



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              BY ADVS.
              SMT.DEEPTHI S.MENON
              SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL
              BOARD,
              SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)
              SRI.N.RAGHURAJ
              SHRI.ARJUN GOPAL P.

              SHRI SUNIL NATH, GOVERNMENT PLEADER



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 18282 OF 2019



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                    P V KUNHIKRISHNAN, J.
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                     WP(C) NO. 18282 OF 2019
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                Dated this the 2nd day of July, 2021

                               JUDGMENT

The above Writ Petition is filed with the following prayers:-

(i) issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding respondents 1 to 3 to provide adequate protection to the petitioner and her workers and equipments without any illegal obstructions from the respondents 4 and 5 and their henchmen so as to enable the petitioner to install the waste management equipment and operate the same in her property situated in Ward No.IV of Vazhappally Panchayath, Changanacherry.

(ii) to pass such other writ, order or direction which this Hon'ble court would deem just and proper WP(C) NO. 18282 OF 2019

to grant in the facts and circumstances of the case.

(iii) To grant costs of the writ petition to the writ petitioner.

2. The petitioner has filed this writ petition aggrieved by the inaction of respondents 1 to 3 in granting the adequate and effective police protection as required by the petitioner to install and operate a waste management equipment in her property to incinerate domestic garbage in accordance with law on the basis of the permit issued by the local authority. According to the petitioner, respondents 4 and 5 trespassed into the property and dismantled the equipment and threatened the petitioner with dire consequences if the equipment is again installed.

3. The learned counsel for the petitioner submitted that, the petitioner constructed 3 buildings in her property about 20 years back. The total area of the 3 buildings comes nearly 13000 sq.ft. A portion of this building is rented out for residential purpose. About 14 families are residing WP(C) NO. 18282 OF 2019

therein. The incinerator is installed for waste management. When this writ petition came up for consideration on 19.7.2019, this court passed the following order:-

"The learned standing counsel appearing for the Pollution Control Board is present before us.

Though the Pollution Control Board is not concerned with the domestic pollution, we, in the facts of the case, direct the Pollution Control Board to conduct an equiry in the premises of the petitioner and also find out the nature of the waste management equipment which is sought to be installed in the premises. While examining the nature of the waste management equipment, it shall also be ensured that same would be sufficient to contain the waste of the 20 residential\ houses and more than 15 shop rooms in the premises of the petitioner. The Pollution Control Board shall also make sufficient enquiries with the respondents 4 to 5, who are said to have made a complaint before the Pollution Control Board. Petitioner and respondents 4 to 5 shall co-operate with the enquiry carried on by the Pollution Control Board. The WP(C) NO. 18282 OF 2019

officer of the Pollution Control Board shall also be accompanied by the Health Inspector of the Panchayat. The Pollution Control Board shall file an affidavit within ten days. Post on 30.7.2019."

4. Thereafter, the Pollution Control Board filed an affidavit. Again the matter came up for consideration on 9.8.2019. On that day, this court passed the following order:-

'The learned counsel for the Panchayat submits that there is a similar type of incinerator installed in a nearby school, which is functioning properly.

Taking note of the report of the Pollution Control Board that the incinerator now proposed to be installed in the premises of the petitioner would only lead to further pollution, we direct the Health Inspector along with the Environmental Engineer of the Pollution Control Board to visit the School and the Environmental Engineer shall file a fresh report WP(C) NO. 18282 OF 2019

on what is submitted by the Panchayat.

Post on 16.8.2019."

5. Subsequently, when the matter came up for consideration on 28.1.2020, the following order was passed:-

"The learned Standing counsel for the Pollution Control Board shall get instructions as to whether the petitioner can use this burner for waste management other than plastic. The petitioner is permitted to use this burner for waste management except for plastic and the pollution control board shall over see working of the burner and report before this Court. The police shall see that no obstruction is caused to the petitioner from operating the burner.

Post on 11.2.2020."

6. Based on the order dated 28.1.2020, the Pollution Control board filed a report before this court on 11.2.2020. The relevant portion of the above report is WP(C) NO. 18282 OF 2019

extracted hereunder:-

"It is respectfully submitted that this Hon'ble Court vide order dated 28.1.2020 directed the Board to get instructions as to whether the petitioner can use "Burner" for waste management other than plastic. In the light of the above order, an inspection has been conducted to the referred site on 10.2.2020. The installation work of the conventional type solid waste burner was found completed. A chimney of 10m height was seen provided to the unit. As per the norms of the Board, pollution control facilities, like water scrubbing system, adequate chimney height of 30m and twin chambers to achieve a minimum temperature of 9500C in secondary combustion chamber were found not provided. The facility provided is not an incinerator and is only a conventional type solid waste burner which does not meet the standards for the incineration specified in the Solid Waste Management Rules, 2016. Since the "Burner"

installed by the petitioner does not meet the standards of SWM Rules, no consent can be granted WP(C) NO. 18282 OF 2019

to the petitioner to use the same for treatment of solid waste. The Board is of the firm view that the Burner now installed by the petitioner cannot be used for management of waste (solid waste) generates from the building/apartment complex and an Incinerator satisfying the standards prescribed under the Rules alone is capable of abating pollution."

7. In the light of the clear finding by the Pollution Control Board to the effect that the Burner now installed by the petitioner cannot be used for management of the waste (solid waste) generates from the building/ apartment complex and an Incinerator satisfying the standards prescribed under the Rules alone is capable of abating the pollution, this court is not in a position to allow the prayers in this Writ Petition. But I make it clear that all the contentions of the petitioner against the report dated 11.2.2020 of the Pollution Control Board are left open. The petitioner is also free to install the incinerator as per WP(C) NO. 18282 OF 2019

the rules mentioned in paragraph No.5 of the above report. The petitioner is also free to challenge the finding of the Pollution Control Board, if she is advised so. As far as the prayers in this Writ Petition are considered, I am not in a position to allow the same in the light of paragraph No.5 of the report dated 11.2.2020 of the Pollution Control Board.

8. The contesting respondents submitted that there is no intention of any physical attack on the petitioner in connection with this issue. The submission is recorded. If there is any threat to the life of the petitioner, the petitioner is free to approach the Station House Officer concerned and if any representation is received, the Station House officer will do the needful in accordance with law.

With the above said observations, this Writ Petition is dismissed.

Sd/-

P V KUNHIKRISHNAN, JUDGE.

dl/ WP(C) NO. 18282 OF 2019

APPENDIX OF WP(C) 18282/2019

PETITIONER ANNEXURE

DATED 29/8/2018 OF THE WASTE MANAGEMENT EQUIPMENT WITH MODEL PICTURE OF THE EQUIPMENT.

EXHIBIT P2 TRUE COPY OF THE FINAL REPORT AS C.C.NO.2322/19 IN CRIME NO.2400/18 OF CHANGANACHERRY POLICE STATION.

EXHIBIT P3 TRUE COPY OF THE INJUNCTION ORDER DATED 31/10/2018 IN I.A.NO.1997/2018 IN O.S.357/18

EXHIBIT P4 TRUE COPY OF THE ADVOCATE COMMISSION REPORT AND ROUGH SKETCH OF THE PETITIONER'S PROPERTY PRODUCED IN O.S.357/18

EXHIBIT P5 TRUE COPY OF THE PERMIT DATED 19/3/2019 ISSUED BY THE 7TH RESPONDENT PANCHAYAT.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DTAED 29/3/2019 SUBMITTED BY THE PETITIONER DATED THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ACKNOWLEDGMENT DATED 29/3/2019 ISSUED BY THE OFFICE OF THE 3RD RESPONDENT

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 23/6/2019 SUBMITTED BY THE PETITIONER FROM THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE ACKNOWLEDGMENT DATED 23/6/2019 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT.

WP(C) NO. 18282 OF 2019

EXHIBIT R5(a) TRUE COPY OF THE COMPLAINT PREFERRED BY BEFORE DISTRICT MEDICAL OFFICER, KOTTAYAM.

EXHIBIT R5(b) TRUE COPY OF THE PETITION DATED 27-10-

2018 FILED BY THE 4TH RESPONDENT BEFORE THE DYSP CHANGANACHERRY ALONG WITH THE RECEIPT ISSUED.

EXHIBITR5(c) TRUE COPY OF THE PETITION DATED 2-11-

2018 FILED BEFORE THE POLLUTION CONTROL BOARD ALONG WITH THE RECEIPT ISSUED.

EXHIBIT R5(d) TRUE COPY OF THE COMPLAINT DATED 3-11-

2018 PREFERRED BEFORE THE SECRETARY, VAZHAPPALLY DISTRICT GRAMA PANCHAYAT ALONG WITH RECEIPT.

EXHIBIT R5(e) TRUE COPY OF THE PETITION PREFERRED BEFORE THE SUB INSPECTOR OF POLICE, CHANGANACHERRY.

EXHIBIT R5(f) TRUE COPY OF THE PETITION DATED 14-2-

2019 PREFERRED BEFORE THE HON'BLE CHIEF MINISTER OF KERALA.