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2013 DIGILAW 482 (KER)

Ansar v. Kerala State Pollution Control Board

2013-06-13

A.M.SHAFFIQUE

body2013
JUDGMENT A.M. Shaffique, J. 1. The petitioner challenges Ext. P1 and P2 orders issued by the Pollution Control Board and the Air Appellate Authority respectively denying the petitioner the consent to operate a metal crusher unit in the property belonging to the petitioner where he is already having a consent to operate and license to conduct a quarry. 2. The reason for rejecting the consent is on account of the fact that there is a building within 150 meters from the place where the unit is to be put up. The construction is apparently made by the 2nd respondent herein in a property belonging to him. The authorities formed an opinion that when such a construction is available at a distance of 130 meters from the proposed crusher unit and there is no mala fides in the action of the 2nd respondent in putting up the said construction, the consent to establish the unit cannot be granted. It is not in dispute that the 2nd respondent is having a building within a distance of 130 meters in the north west direction of the metal crusher unit. But the contention of the petitioner is that the said construction which is more or less a shed has been put up only for purpose of objecting or obstructing the petitioner from putting up the metal crusher unit. According to the petitioner the very act of putting up such a construction is a mala fide act. The request for constructing such a building was made before the Panchayath only after the petitioner approached the Green Channel Committee seeking permission for putting up the metal crushing unit. Therefore the contention of the petitioner is that the appellate authority did not consider the aforesaid factual situations and had just proceeded on the basis that since the structure is put up within a distance of 130 meters, no permission can be granted. The petitioner places on record the fact that the petitioner had submitted an application before the Single Window Clearance Board on 19.10.2009. The 2nd respondent had submitted an application for building permit on 22.10.2009. The building constructed by the 2nd respondent is only a small structure and Ext. P11 photographs and the Commission Report would show that it is only a single room structure which is not plastered and covered with temporary sheets without any bathroom and other facilities. The 2nd respondent had submitted an application for building permit on 22.10.2009. The building constructed by the 2nd respondent is only a small structure and Ext. P11 photographs and the Commission Report would show that it is only a single room structure which is not plastered and covered with temporary sheets without any bathroom and other facilities. The shed is constructed in a property having an extent of 4 acres. There is no evidence to show that the 2nd respondent was having a residential building in the said property and this shed is not intended for any residential purpose but it is put up only to harass the petitioner is the submission of the learned counsel for the petitioner. 3. On a perusal of the photographs at Ext. P11 would indicate that this is not a regular building which is constructed for a regular residential purpose. It is only a shed intended for some temporary residence. That apart the fact that a building permit was applied only on 22.10.2009 after the petitioner had submitted an application for permission before the Single Window Clearance Board itself speak volumes about the mala fide intention of the 2nd respondent in the matter. 4. The learned counsel for the petitioner also relied upon the order passed in I.A. No. 450/2010 of O.S. No. 65/2010 by the Munsiff Court, Thaliparamba. The 2nd respondent had filed a suit for injunction to restrain the petitioner from putting up a metal crusher unit in his property. After considering the matter at length, the Munsiff Court had dismissed the said application on a clear finding that the very action of the 2nd respondent is mala fide. It is said that the 2nd respondent had not taken any further proceedings in the matter. 5. The 2nd respondent had filed a counter affidavit inter alia stating that he had constructed the building for residential purposes and the building had been numbered by the Panchayath. In so far as the crusher unit is situated 130 meters from his residence, there is justification on the part of the Pollution Control Board in rejecting the application. 6. Having regard to the aforesaid factual circumstances the question to be considered is whether there was any justification on the part of the respondents to deny the consent to establish a metal crusher unit in the petitioner's property. 7. 6. Having regard to the aforesaid factual circumstances the question to be considered is whether there was any justification on the part of the respondents to deny the consent to establish a metal crusher unit in the petitioner's property. 7. One fact which is relevant to be noticed is regarding the nature of construction made by the 2nd respondent. As already stated, it is evident from photographs and the Commission Report produced as Ext. P11, that the structure is only of temporary nature and what was the necessity for the 2nd respondent to have put up such a construction in the said property is not known. The petitioner has a case that it is put up only for the purpose of preventing the petitioner in starting the said metal crusher unit. Taking into consideration the fact that the 2nd respondent possesses a larger extent of property and the shed has been within 130 meters from crusher unit, the only impression one can get is that there is some mala fides in the action of the 2nd respondent. Hence there is justification on the part of the petitioner in contending that the manner in which the shed had been constructed is only to prevent the petitioner for putting up the unit in his property. Apparently on a perusal of Ext. P2 order, the Appellate Authority has not considered the said matter in detail. Ext. P8 order of the Munsiff Court also goes to show that there was a deliberate attempt on the part of the 2nd respondent in putting up such a construction. That being the situation, merely for the reason that the said structure is situated within 130 meters the authorities ought to have considered the nature of mala fides in the action of 2nd respondent in putting up such a structure. It is not in dispute that the petitioner's application for putting up the metal crusher unit was given on 19.10.2009 whereas the application of the 2nd respondent for putting up the said shed was given on 22.10.2009. Therefore it is only after knowledge about the petitioner's application that the 2nd respondent attempted to put up a small shed in his property having an extent of 4 acres. Therefore it is only after knowledge about the petitioner's application that the 2nd respondent attempted to put up a small shed in his property having an extent of 4 acres. In fact this by itself would show that as on the date when the petitioner submitted his application before the Single Window Clearance Board the 2nd respondent had not filed an application for building permit as well. On getting the building permit, he immediately constructed the same. There was no necessity to put up the building in the said locality as such. The 2nd respondent could have put up the building in a place little far away from the aforesaid metal crusher unit. 8. In the result I am of the view that there was clear mala fides on the part of the 2nd respondent for having constructed the shed and for the reason that it is constructed 130 meters from the site proposed by the petitioner for putting up the metal crusher unit, it was wrong on the part of the authorities to have rejected the consent to establish the metal crusher unit. 9. In the result this writ petition is allowed as follows:- i) Ext. P1 and P2 are set aside. ii) There will be a direction to the 1st respondent to consider the application of the petitioner for establishing the metal crusher unit without reference to the existence of the building constructed by the 2nd respondent. This may be done within a period of 15 days from the date of receipt of a copy of the judgment.