IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25314 of 2009(H)
1. SRI.ABDU, S/O. UNNIHASSAN,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
2. THE WANDOOR GRAMA PANCHAYATH,
3. THE SECRETARY, WANDOOR GRAMA
4. THE KERALA STATE POLLUTION CONTROL
For Petitioner :SRI.R.SUDHEESH KUMAR
For Respondent :SRI.A.SUDHI VASUDEVAN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :14/09/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).Nos.25314 & 25799 OF 2009
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Dated this the 14th day of September, 2009
JUDGMENT
1.The latter among the captioned matters is listed today for
admission. The petitioner therein is the neighbour of the
petitioner in W.P(C).25314/09, who operates a water service
station for cleaning automobiles.
2.The panchayat had issued licence to the operator. While he
was carrying on that activity, the neighbour objected. On
those objections, the panchayat secretary called upon the
operator to close down the business within 15 days. A search
of the statutory provisions does not appear to show the
existence of an authority for such immediate closure, unless
that was imminently necessary. I say this because fairness in
exercise of jurisdiction and powers is one of the guarantees of
rule of law emanating out of the concept of equality before law
and in protection of the laws enshrined in Article 14 of the
Constitution of India. This Court, taking into consideration the
WPC.25314/09 & 25799/09
Page numbers
application of the operator for consent before the Kerala State
Pollution Control Board, admitted W.P(C).25314/09 on
31.8.2009 and granted an interim order of stay of operation of
the order of the panchayat secretary. In the aforesaid
circumstance, the neighbour seeks a direction to have the
decision of the panchayat enforced.
3.Leaving aside the controversy between the neighbours, if the
operator’s application before the PCB dated 24.2.2009 is still
pending for consideration for issuance of consent to operate, it
reflects a very sorry state of affairs of a department or
authority vested with abundant jurisdiction in relation to
environmental laws. The primary concern is not merely an
operator or a neighbour. The more important consideration of
all such authorities should be the entire environment. If such
a vision is not readily available with the authorities, such
institutions are bound to fail.
WPC.25314/09 & 25799/09
Page numbers
4.As of now, the operator is continuing with his activity on the
strength of the interim order granted provisionally. The
neighbour has other remedies also available to him for abating
nuisance. However, he is also entitled to contest the permit
granted to the operator. He has raised his objections and the
panchayat had commenced its action on it though in an abrupt
manner.
5.Taking the aforesaid fact situation into consideration, these
writ petitions are ordered directing that the operator and the
neighbour would appear before the secretary of the panchayat
and said authority will decide on the controversy between the
parties in accordance with law. But, before concluding such
proceedings, the operator who is continuing as of now with his
operations on the strength of the interim order already issued
in W.P(C).25314/09, will be given a period of 45 days to
produce the decision of the PCB authorities on his application
for consent and the panchayat will conclude the proceedings
on the basis of the decision that the PCB may take. The 4th
WPC.25314/09 & 25799/09
Page numbers
respondent will take up the said application and issue decision
thereon within a period of three weeks unless such decision
has already been taken. These writ petitions are so ordered
preserving the rights of parties to seek statutory reliefs and
remedies if either of them is aggrieved by the decision that the
panchayat secretary may take following the aforesaid
directions. All issues on merits are left open.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.15/9.