Sivaprasad vs. Amrita Raju

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10078 OF 2011 (Arising from SLP(C) No.30140/2011)

Sivaprasad ..Appellant

versus

Amrita Raju & Others ..Respondents

O R D E R

Leave granted.

This is an appeal for setting aside order dated 25.10.2011 of the Division Bench of the Kerala High Court, whereby the Writ Appeal preferred by respondent No.1 against the order passed by the learned Single Judge was allowed. The relevant portion of the order of the Division Bench is extracted below:

"After hearing counsel appearing for all sides including standing counsel for the Corporation, Standing Counsel for Pollution Control Board and the contesting respondents we find that allegation of the pollution is certainly exaggerative because the petitioner installed two chimneys for escapement of smoke and the clay ovens are so fixed that there is no chance of smoke escaping, except though the outlet of the chimney. However, we find force in the suggestion made by the Pollution Control Board that the chimney should have a total height of 10 meters as against 7 meters arranged by the petitioner. it is seen from the photographs that at least 3 meters of the chimney is made of brick property to absorb the heat of the smoke and beyond that chimney is P V C 2

pipe. The petition can extend the length of P V C pipe by another 3 meters making the total height at 10 meters further, since there is a complaint by the neighbouring owners. Whether it is genuine or not that the heating of Jaggery, though to a very limited extend, spread smoke of Jaggery in the area, we direct the petitioner a hood system and a chimney for the oven in which the Jaggery is heated before mixing with the peanuts. As and when petitioner completes the above two items of work, the Pollution Control Board will conduct an inspection and grant approval based on which there will be a direction to the Corporation to issue license to the petitioner to continue the business. The Pollution Control Board should in spite the site during processing by the petitioner and if the petitioner is unnecessary harassed by any authority, the petitioner can approach this Court again. Since the petitioner was in operation for the last 14 years without any break, the petitioner is allowed to manufacture by using one oven and chimney while work is on for the other chimney and after completion of one set he can switch over and modify the 2nd chimney as well. The petitioner is granted one months time to complete all work. It is for the petitioner to provide covering to the manufacturing shed at least upto roof level so that even sound and smoke will not escape from the building. The writ appeal and writ petition are allowed as above."

The appellant has questioned the impugned order mainly on the ground that in the absence of a valid license, respondent No.1 cannot operate an industry in a residential area. Another plea taken by him is that the High Court committed an error by directing the official respondents to allow respondent No.1 to operate the unit without obtaining consent from the Kerala Pollution Control Board (for short, 'the Board').

We have heard learned counsel for the parties and perused the record.

3

In our view, the Division Bench of the High Court committed an error by allowing respondent No.1 to operate the industry without requiring him to obtain appropriate license from the competent authority for running a sweat manufacturing unit. In the absence of a valid permission from the Corporation of Cochin (for short, 'the Corporation'), respondent No.1 cannot undertake any industrial activity and that too in a residential area.

In the premise aforesaid, the appeal is allowed, the impugned order is modified and the following directions are given:

1. Respondent	No.1	may,	if<br>he	so	chooses,	make	an
application	to	the	competent		authority	of	the

Corporation for grant of license to operate the sweat manufacturing unit in the residential area.

• 2. The Corporation shall decide the said application within a period of two months after giving opportunity of hearing to the appellant, respondent No.1 and other interested persons.
• 3. If respondent No.1 succeeds in getting permission from the Corporation to set up an industrial unit in the residential area, then he shall make an appropriate application to the Board for grant of consent under the Water(Prevention of Pollution and Control) Act, 1974 and Air (Prevention of Pollution and Control) Act, 1981. He shall operate the unit only after the requisite consent is granted by the competent 4

authority of the Board.

If the Corporation grants permission to respondent No.1 and the Board grants consent, then the appellant shall be free to avail appropriate legal remedy.

It is needless to say that in view of the order passed today, respondent No.1 shall not be entitled to undertake industrial activity in the residential area till he gets license from the competent authority of the Corporation and consent from the Board.

...........................J. [G.S. SINGHVI]

NEW DELHI; ...........................J. NOVEMBER 21, 2011 [SUDHANSU JYOTI MUKHOPADHAYA] 5 ITEM NO.12 COURT NO.6 SECTION XIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil) No(s).30140/2011

(From the judgement and order dated 25/10/2011 in WA No. 1564/2011

SIVAPRASAD	Petitioner(s)
VERSUS
AMRITA RAJU & ORS.	Respondent(s)
(With office report )
Date: 21/11/2011	This Petition was called on for hearing today.
CORAM :<br>HON'BLE MR. JUSTICE G.S. SINGHVI<br>HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA
For Petitioner(s)	Mr. P.S. Narsimha, Sr. Adv.<br>Mr. D.K. Devesh, Adv.<br>Mr. R. Gopalakrishnan,Adv.(Not present)
For Respondent(s)	Mr. Shambhu Prasad Singh, Sr.Adv.<br>Mr. Abhinav Ramkrishna, Adv.<br>Mr. Amarjit Singh Bedi, Adv.(Not present)
	Mr. P.S. Biju, Adv.<br>Mr. Milind Kumar, Adv.(Not present)
UPON hearing counsel the Court made the following<br>O R D E R
Leave granted.
	The appeal is allowed in terms of the signed order.
(Parveen Kr. Chawla)<br>Court Master<br>6	(Phoolan Wati Arora)<br>Court Master

[signed order is placed on the file]