Kerala High Court
Shaju K.V vs Engandiyoor Grama Panchayat on 15 July, 2021
W.P.(C) No. 11819/2012 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
WP(C) NO. 11819 OF 2012
PETITIONER/S:
SHAJU K.V
AGED 38 YEARS
S/O.VELAYUDHAN, KALLUNGAL HOUSE, ENGANDIYOOR P.O.,
CHANTHAPPADY, THRISSUR DISTRICT-680 615.
BY ADV SRI.SHOBY K.FRANCIS
RESPONDENT/S:
1 ENGANDIYOOR GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, ENGANDIYOOR GRAMA PANCHAYAT
OFFICE, ENGANDIYOOR P.O., THRISSUR DISTRICT, PIN-680 615.
2 KERALA STATE POLLUTION CONTROLE BOARD
DISTRICT OFFICE, THRISSUR-680 001, REPRESENTED BY ITS
ENVIRONMENTAL ENGINEER.
3 HEALTH INSPECTOR
COMMUNITY HEALTH CENTRE, VADANAPPILLY P.O., THRISSUR
DISTRICT-680 619.
4 SUB INSPECTOR OF POLICE
VADANAPPILLY POLICE STATION, VADANAPPILLY P.O., THRISSUR
DISTRICT-680 619.
5 DIRECTOR (FR.ANTONY CHEMBAKASSERY
M.I.HOSPITAL (MARY IMMAQULATE), CHANDAPPADY, ENGANDIYOOR
P.O., THRISSUR DISTRICT-680 615.
BY ADVS.
SRI.K.H.ABDUL SAMAD (CHAVAKKAD)
SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD
SRI.K.S.BHARATHAN
SRI.S.U.NAZAR
W.P.(C) No. 11819/2012 :2:
R3 AND 4 - SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER
R2 - SRI.NAVEEN.T, STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 11819/2012 :3:
Dated this the 15th day of July, 2021.
JUDGMENT
The petitioner is a resident within the limits of Engandiyoor
Grama Panchayat ie., the first respondent. The house of the
petitioner and the 5th respondent hospital is situated in ward No. XII of
the Engandiyoor Grama Panchayat. The grievance of the petitioner is
that the 5th respondent hospital is creating huge environmental
problems to the nearby residents and the petitioner and his family. It
was also pointed out that the hospital management is dumping waste
in the hospital compound itself and there is no treatment plant to treat
the medical as well as the biological waste after surgery and medical
treatment. Other contentions are also raised.
2. The sum and substance of the contentions advanced by the
petitioner is that inadequacy of the requisite plants for treating the
waste generated in the hospital creates enough and more nuisance to
the petitioner, his family and the residents of the locality wherein the
hospital is functioning. Even though contentions are raised in regard to
alleged illegal constructions, those aspects are not much pressed by
the learned counsel for the petitioner and therefore, a detailed
discussion is not required. Moreover, the contentions advanced by the
petitioner in that regard are absolutely surrounded by intrinsic factual
circumstances, which can only be deciphered by a fact finding body
and it is well settled that a writ court shall not be approached to sort
out such issues. In that view of the matter also, I am not venturing
myself to enter into any findings at all in those matters. Also, sufficient
materials are not on record to establish such contentions, apart from
the fact that the contentions raised in that regard are disputed by the
hospital and thereby, the factual aspects have become complex,
dissuading this Court to lay off its hand from that arena.
The reliefs sought for by the petitioner are as follows:
1. Issue a writ of mandamus directing the first respondent to take
steps to stop the illegal construction of the hospital building
belongs to 5th respondent forthwith.
2. Issue a writ of mandamus directing the 1st respondent to not
permit the 5th respondent to carry with construction activities
without the building permit, plan approval from the Chief Town
Planner, Trivandrum and without the consent letter issued from
the second respondent.
3. Issue a writ of mandamus directing the first respondent to take
steps to demolish the illegal construction being done by the 5 th
respondent and remove all encroachments from the Panchayat
way situated on the western side of the 5th respondent hospital
compound and open the way with 8 feet width.
4. Issue a writ of mandamus directing the 2 nd respondent to inspect
the 5th respondent hospital forthwith and take action to remove
all sorts of pollution (air, water, sound and land) and clean the
entire hospital compound as pollution free zone and also see that
the 5th respondent is properly and scientifically implementing all
pollution control measures suggested by the 2 nd respondent
without fail.
5. Issue a writ of mandamus directing respondents 1 to 3 to
consider and dispose of Exhibits P5 to P7 and take action on the
basis of the same.
3. Respondent No. 5 has filed a detailed counter affidavit, in
which it is submitted that the hospital was being functioned after
securing necessary clearance from the Secretary of the Grama
Panchayat as well as the Pollution Control Board and therefore, the
contentions advanced by the petitioner is not at all true or correct and
the writ petition is to be dismissed.
4. The Pollution Control Board has filed a report before this Court
basically contending that the Pollution Control Board has issued
consent to the hospital on imposing certain conditions. It is also
pointed out by the learned counsel appearing for the Pollution Control
Board that consent granted to the respondent hospital is extended
upto 2022.
5. The learned counsel for the board also submitted that
additional report submitted by the Kerala State Pollution Control Board
would show that the petitioner is having requisite consent from the
Pollution Control Board and the direction contained in the consent are
not violated by the petitioner. The learned counsel has also submitted
that pursuant to the direction issued by this Court to the Secretary of
the Grama Panchayat, the learned counsel for the Grama Panchayat
has produced a report dated 25.01.2018 drawn up by the Secretary,
which shows that the plant and other necessary requisites as is
directed by the Pollution Control Board is in place and it is functioning.
6. The learned Senior Government Pleader Sri. Surin George
Ipe, has invited my attention to Ext. R2(c) letter dated 02.02.2018
issued by the Environmental Engineer of the Pollution Control Board to
the hospital, from where it is clear that an inspection was conducted
by the Environmental Engineer 01.02.2018 and it was noticed that
conditions of consent are violated and the same are delineated in Ext.
R2(c). It is only appropriate that the said communication of the
Environmental Engineer is recorded for convenience and it reads thus:
"No.PCB/TSR/IC/3639/2012 Date: 02.02.2018
From,
Environmental Engineer
To,
M/s Mary Immaculate Mission Hospital,
Engandiyur,
Thrissur.
Sub:- Compliance with Consent conditios - reg.
Ref:-1) Order of the Hon'ble High Court dated 17.01.18 in W.P. (C) No.
11819/2012.
2) Inspection conducted by Board Officer on 01.02.18
3) Consent No. PCB/HO/TSR/ICO-R/03/2017 dated 12.02.17 valid upto
31.12.17
Sir,
It is highly regretted to note that you have not yet applied for renewal of
Integrated Consent to Operate, although the validity of Integrated Consent to
Operate referred (3) above expired on 31.12.17. During inspection on 01.02.18
was noticed that you have not fully complied with the conditions of Consent
referred (3) above. Hence you are hereby directed to
1. apply for renewal of ICO
2. report compliance with conditions No. 1,7,9 and 10 of the Consent
issued vide ref (3)
3. dismantle the country type incinerator.
4. install water meter & energy meter exclusively for the STP.
5. Compliance with the above directions shall be reported to this office
within 15 days of receipt of this letter. Functioning of the unit without
valid Consent of the Board and without adequate pollution control
measures is a culpable offence.
Yours faithfully,
ENVIRONMENTAL ENGINEER
This I say because the report of the Secretary of the Grama Panchayat
is dated 25.01.2018, but immediately after a week, when the
Environmental Engineer visited the hospital several defects were
noticed and therefore, it cannot be said that the report submitted by
the Secretary of the Grama Panchayat is absolutely true and it
contradicts the report of the environmental engineer of the board.
7. I have heard, learned counsel for the petitioner Sri Shoby K
Francis, learned Senior Government Pleader Sri. Surin George Ipe, Sri
K.S Bharathan, learned Counsel for the 5th respondent hospital, Sri.
S.U. Nazar for the Grama Panchayat and Smt. Chithra representing
Sri. T. Naveen for the Pollution Control Board, and perused the
pleadings and materials on record.
8. The discussion of facts made above would make it clear that
the petitioner in the writ petition is concerned with the alleged illegality
on the part of the 5th respondent hospital in not treating the waste
generated in the premises appropriately. The 5th respondent hospital
has filed a counter affidavit before this Court stating that it has
secured all clearances from the respective statutory authorities to run
the hospital and it is having all installations as directed by the Pollution
Control Board and is adhering to the conditions put up in the consent
issued by the Pollution Control Board. However, on the basis of the
direction issued by this Court, a report is submitted by the Secretary
of the Grama Panchayat on 25.01.2018, which reads thus:
"Report Filed by Secretary, Engandiyur Grama Panchayat as directed by
Hon'ble High Court
Myself with Officers inspected the site and conduct an enquiry regarding
allegations WP NO.11819/12 filed by Sri.K.V.Shaji
1. Agreeing
2. The Hospital waste is not seen in the compound, especially in the backside
ie, to the western side of Hospital. A new Incenator is installed and working in
full condition. As per Records, there is no 8 Ft width Panchayat road as stated
by the petitioner.
3. The Generator stated in the Complaint is replaced with new one
4. A sewage treatment plant is working now.
5. The Building construction is according to Kerala Panchayat Building Rule
and Building permit is given by collecting necessary consent from Chief Town
Planner.
6. No plastic waste is not burning as per the enquiry conducted now.
7. On Enquiry, it is noted that Waste treatment plant is installed and all the
hospital waste is treated in this plant
Secretary."
9. As is pointed out by the learned Senior Government Pleader
Sri. Surin George Ipe, from Ext. R2(c) communication issued by the
Environmental Engineer of the Pollution Control Board, which is
extracted above, it is clear that shortly after the inspection of the
Secretary of the Grama Panchayat, many of the conditions imposed by
the Pollution Control Board in its consent are not functional. Therefore
the said issue has to be tackled by issuing appropriate directions in
order to avoid any adverse consequences interfering with the normal
life of citizens and to protect the interests of the residents of the
panchayat area protected under Article 21 of the Constitution of India .
10. In that view of the matter, the situations and the
circumstances would have to be viewed by this Court in a serious
manner, especially taking into account the present situation of the
covid-19 pandemic and in view of the fact that if the biological and
medical waste etc. are not treated properly, there is every likelihood of
epidemics being spread.
11. Therefore, taking into account the entire aspects of the
matter, I dispose of the writ petition directing the Secretary of the
Grama Panchayat and the Environmental Engineer to conduct
periodical joint site inspection in the hospital premises. The first of
such inspection shall be conducted within two weeks from the date of
receipt of a copy of this judgment. Likewise, joint inspection shall be
conducted by the Secretary of the Panchayat as well as the
Environmental Engineer every three weeks up to a period of three
months and submit a report before this court immediately thereafter
as to whether the plants and machineries for treatment of the waste
are functioning, and whether waste is being accumulated in the
premises in an unprecedented manner . The direction as above shall
be complied with scrupulously and without fail failing which it would be
viewed seriously by this court.
With the above observations and directions, this writ petition is
disposed of.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX OF WP(C) 11819/2012
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE
DIFFERENT KINDS OF WASTE THROWN OUT BY THE 5TH
RESPONDENT HOSPITAL IN THE OPEN SPACE OF THE
HOSPITAL IN FRONT OF THE PETITIONERS RESIDENCE.
Exhibit P2 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE
COLLECTION OF LATRINE WASTE AND OVERFLOW
WATER IN OPEN SPACE.
Exhibit P3 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE
ILLEGAL CONSTRUCTION AND ENCROACHMENT INTO
THE PANCHAYATH WAY BY THE 5TH RESPONDENT.
Exhibit P4 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE
PLASTIC BURNING IN OPEN SPACE BY THE 5TH
RESPONDENT.
Exhibit P5 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE 1ST
RESPONDENT DATED 15/05/2012.
Exhibit P6 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE 3RD
RESPONDENT DATED 15/05/2012.
Exhibit P7 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE 2ND
RESPONDENT DATED 18/05/2012.
EXHIBIT P8 TRUE COPY OF THE LOCATION PLAN OF THE NEW
HOSPITAL BUILDING APPROVED BY THE CHIEF TOWN
PLANNER DATED 30.01.2012.
EXHIBIT P9 TRUE COPY OF THE 1ST RESPONDENT COMMITTEE
DECISION DATED 15.06.2012.
RESPONDENT EXHIBITS
Exhibit R5(a) TRUE COPY OF THE COMPLAINT DATED 16/05/2012.
Exhibit R5(b) TRUE COPY OF THE INVOICE DATED 28/04/2012.
Exhibit R5(c) TRUE COPY OF THE CHECK CALL REPORT DATED
16/05/2012.
Exhibit R5(d) TRUE COPY OF THE REPLY DATED 26/06/2012.
Exhibit R5(e) TRUE COPY OF THE PROPOSAL FOR CONSTRUCTION OF
SEWAGE TREATMENT PLANT.
Exhibit R5(f) TRUE COPY OF THE APPLICATION FOR CONSENT DATED
26/06/2012.
Exhibit R5(g) TRUE COPY OF THE AFFIDAVIT.
Exhibit R5(h) TRUE COPY OF THE APPLICATION FOR CONSENT.
Exhibit R5(i) TRUE COPIES OF THE DEMAND DRAFTS DATED
07/05/2012 AND 25/06/2012.
Exhibit R5(j) TRUE COPY OF THE LETTER ISSUED BY THE 2ND
RESPONDENT DATED 26/05/2012.
Exhibit R5(k) TRUE COPY OF THE LETTER ISSUED BY THE 2ND
RESPONDENT DATED 28/06/2012.
Exhibit R5(l) TRUE COPY OF THE CERTIFICATE DATED 02/07/2012.
Exhibit R5(m) TRUE COPY OF THE ORDER DATED 30/01/2012 ISSUED
BY THE DEPUTY TOWN PLANNER,
THIRUVANANTHAPURAM.
Exhibit R5(n) TRUE COPY OF THE BUILDING PERMIT DATED
29/02/2012.
Exhibit R5(o) TRUE COPY OF THE INFORMATION DATED 02/07/2012.
Annexure R2(a) TRUE COPY OF CONSENT TO ESTABLISH DATED
23/08/2013.
Annexure R2(b) TRUE COPY OF THE CONSENT TO OPERATE DATED
12/02/2017.
RESPONDENTS' EXHIBITS: NIL
/True Copy/
PS To Judge.
rv
