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2015 DIGILAW 1498 (KER)

Anilkumar v. Aiswarya Rice Mill

2015-10-28

A.M.SHAFFIQUE, ASHOK BHUSHAN

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JUDGMENT : A.M. SHAFFIQUE, J. 1. The petitioners in the writ petition are the appellants in the writ appeal. The subject matter involved in both the cases are with reference to the functioning of a rice mill by a concern by name Aishwarya Modern Rice Mill. Hence the writ petition and writ appeal are heard and decided together. 2. W.P.C.No. 14575 of 2014 is filed by the petitioners seeking for a direction to the Grama Panchayat not to issue or renew the licence in favour of the 6th respondent to run the rice mill and to issue stop memo against them. 6th respondent is the Managing Partner of the Aishwarya rice mill. 3. W.A.No.1692 of 2015 arises from the judgment in W.P.C.No.15583 of 2015. The said writ petition was filed by Aishwarya Rice Mill seeking to challenge Ext.PlO by which they were asked to operate the rice mill only between 8 a.m to 6 p.m. 4. First, we shall deal with the averments in W.P.C.No.14575/2014. The petitioners in the said case alleges that the unit originally started as a small unit which was later developed into a large scale industrial unit by installing additional machineries. It is alleged that the unit is highly polluted and on account of the effluents being discharged from the unit, the adjacent wells, bore wells and ponds are being contaminated. It is alleged that the licence granted by the Panchayat has expired on 31/03/2014 and hence the petitioners sought for the reliefs aforesaid. 5. Counter affidavit was filed by the 6th respondent inter alia stating that they are in possession of necessary licence/permission from the competent authorities. When allegations are raised regarding pollution, they have engaged M/s.Poluchem Laboratories (P) Ltd which was approved by the Kerala State Pollution Control Board to monitor the quality of effluent. The report indicated that there is no pollution and the parameters of effluent are within the permissible limits. Respondents have denied the allegation of any pollution being caused to the nearby locality. With reference to the licence, it is stated that the petitioners were operating the unit with valid licence since 1996 and an application was submitted on 03/02/2014 for renewal of licence for the period 2014-15. No reply had been received and therefore the petitioners are entitled for a deemed licence. With reference to the licence, it is stated that the petitioners were operating the unit with valid licence since 1996 and an application was submitted on 03/02/2014 for renewal of licence for the period 2014-15. No reply had been received and therefore the petitioners are entitled for a deemed licence. The petitioners had filed a reply affidavit controverting the above stand of the 6th respondent and reiterating their stand. They also denied the fact that the 6th respondent is entitled to operate the unit with deemed licence. 6. W.A.No.1692/2015 is filed by the petitioners in W.P.C.No.15583/2015, after seeking leave of court, aggrieved by the judgment of the learned Single Judge, by which the learned Single Judge had set aside Ext.PIO and permitted the petitioners to operate the rice mill on the basis of the valid consent obtained by the petitioner from the Pollution Control Board. The learned Single Judge found that no counter affidavit has been filed in the case and the materials available on record clearly indicated that the petitioner was to have a continuous process of operating 24 hours in three shifts which is permitted by the Inspector of Factories and Boilers and therefore the restriction imposed by the Panchayat is not valid. The appellants submit that in so far as the permission had been granted by the Panchayat only for operating the unit from 5.30 a.m and 9.30 p.m, the petitioner shall not be permitted to operate the unit beyond the said time. Learned counsel also relied upon Annexure Al, an order dated 07/12/2009 by which permission has been granted to the unit to install machinery having capacity of 300 HP. It is argued that condition No.9 clearly indicates that the unit should not be operated within 9.30 p.m and 5.30 a.m. It is also argued that since the unit is causing large scale pollution by discharging the effluents without any treatment, it causes pollution in the neighbouring locality. 7. Heard the learned counsel for the appellants, learned counsel appearing for the 1st respondent/Aishwarya Rice Mill, the learned Government Pleader and the learned Standing Counsel appearing of the Pollution Control Board. Learned counsel appearing for the 1st respondent in W.A.No.1692 of 2015 submits that Annexure 1, which is relied upon by the petitioner, is only a permission to increase the capacity by installing a machinery having horse power of 300 HP. Learned counsel appearing for the 1st respondent in W.A.No.1692 of 2015 submits that Annexure 1, which is relied upon by the petitioner, is only a permission to increase the capacity by installing a machinery having horse power of 300 HP. Though it is stated that the unit can be functioned between 5.30 a.m and 9.30 p.m, the process requires 24 hours functioning of the unit in three shifts. That apart, the Inspector of Factories and Boilers as well as the Pollution Control Board had granted permission for operating the unit for 24 hours. It is stated that this Court had already held in Kadaplamattom Grama Panchayat v. Johny Roy 2013 (3) KHC 857 (DB)) that permission granted under Sections 233 and Section 232 of the Kerala Panchayat Raj Act are independent and separate provisions had been provided under the Kerala Panchayat Raj Act and the Rules framed thereunder. Under such circumstances, when no restrictions have been imposed while issuing licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996, the restrictions imposed in Annexure 1 relied upon by the appellants have no relevance. It is also pointed out that the sound level emanated from the unit is well within the specified limit and it is evident from the reports available with the Pollution Control Board. 8. Having regard to the aforesaid contentions urged, it is clear that the appellants only contention is with reference to the pollution being caused by the unit in question. If there is pollution, the same has to be identified by the competent authorities and it shall always be open for the Panchayat to call upon the unit to abate the nuisance. There are competent agencies like Pollution Control Board to verify and report on whether the unit is actually causing pollution or not. According to the learned counsel for the 1st respondent unit, it is a zero discharge unit and there is no effluent which is being discharged. Still, if the appellants have a case that there is discharge of effluents which is not within the specified parameters, their remedy is to approach the competent authorities and not to seek a mandamus, as prayed for, in W.P.C.No.14575/2014. 9. Still, if the appellants have a case that there is discharge of effluents which is not within the specified parameters, their remedy is to approach the competent authorities and not to seek a mandamus, as prayed for, in W.P.C.No.14575/2014. 9. At any rate, during the pendency of W.P.C.No.14575/2014, the Panchayat has called upon the 1st respondent to function the unit only between 8 a.m and 8 p.m. As already indicated, when a unit has been established which has to work for 24 hours, restricting the same to function only during day time, is virtually denial of licence/permission. The unit has been functioning since 1996. Of course, its capacity has been increased. The Panchayat has to verify whether it causes any sound pollution while it is functioning during night hours. If there is no sound pollution and no nuisance to any person in the neighboring locality, there is no reason for the Panchayat to restrain the unit from functioning in its full swing. As already indicated by the learned counsel, being a rice mill, it has to function throughout day and night, failing which the process will not be completed. The Panchayat, being the local authority, will have to take into consideration such facts also. Merely for the reason that certain persons in the locality had objected to the functioning of the unit, by itself, should not be a reason for the Panchayat to restrict the unit from functioning day and night They have to verify and get necessary report from the Pollution Control Board as to whether the unit causes any sound pollution during night hours so that appropriate measures could be taken to abate the nuisance. 10. Under such circumstances, we are of the view that the learned Single Judge has correctly exercised jurisdiction to quash Ext.PlO. However, we observe that it shall always be open for the Panchayat to ensure that the unit is functioning without causing any nuisance or pollution. It shall be open for the Panchayat to obtain appropriate report from the competent authorities like Pollution Control Board, District Medical Officer etc. and thereafter take necessary action, in accordance with law. As already indicated, there is no reason why W.P.C.No.14575/2014 is to be entertained especially on account of the fact that the Panchayat has already issued Ext.PIO, which is the subject matter in W.P.C.IMo.15583/2015. and thereafter take necessary action, in accordance with law. As already indicated, there is no reason why W.P.C.No.14575/2014 is to be entertained especially on account of the fact that the Panchayat has already issued Ext.PIO, which is the subject matter in W.P.C.IMo.15583/2015. In the result, W.P.C.No.14575/2014 is dismissed and W.A.No.1692 of 2015 is disposed of permitting the Panchayat to monitor the activities of the 1st respondent after getting appropriate reports from the competent authorities and to take appropriate action, in accordance with law.