Mini Sunny vs Thuravoor Grama Panchayat & Ors.

The petitioner is stated to be a resident of Ward No.9 of Thuravoor Grama Panchayat at Kidangoor. She is stated to be a cancer patient continuing with the treatment. The petitioner complains that the 5^th respondent herein, who is none other than her immediate neighbour is operating a ‘smoke house’ in the nearby property having an extent of hardly 20 cents for the purpose of drying latex obtained from the 5^th respondent’s rubber plantation at Illithode near Malayattoor. According to the petitioner, the 5^th respondent is operating the smoke house without obtaining the relevant licence from the 1^st respondent Panchayat. It is also submitted that the 5^th respondent is also using ’sulphur’ in the smoke house for the activities of drying rubber sheets and this is causing pollution in the form of dust and smoke. Therefore, the petitioner has filed the captioned writ petition seeking for a direction to the 1^st and 2^nd respondents to take appropriate steps for stopping the illegal functioning of the smoke house run by the 5^th respondent.

I have heard Sri.Abraham P. George, the learned counsel for the petitioner, Sri.Wilson Urumese, the learned Standing Counsel for respondents 1 and 2, Sri. T.Naveen, the learned Standing Counsel for respondents 3 and 4 as well as Smt.Nayana Varghese for the 5^th respondent.

The learned counsel for the petitioner would invite the attention of this Court to the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and other Services) Rules, 1996 (for short, ‘1996 Rules’), more particularly the requirement with reference to obtaining a licence with reference to the contents of Schedule - I, Entry 134 to point out that insofar as rubber and rubber products are specifically listed thereunder, the 5^th respondent ought to have obtained licence from the Panchayat. He would also point out that as contended in the writ petition the use of sulphur is creating pollution.

Sri.Wilson Urumese, the learned Standing Counsel for the Panchayath, would however point out that with reference to the provisions of the 1996 Rules, the 5^th respondent does not require to obtain any licence thereunder.

Sri.T.Naveen, the learned Standing Counsel for the Kerala State Pollution Control Board would point out that Ext.P5 has already been issued to the 5^th respondent herein with reference to certain compliances to be carried out by him and if the 5^th respondent is still operating the smoke house without complying with the afore, appropriate steps require to be taken.

I have considered the rival submissions as well as the connected records.

The learned counsel for the petitioner, apart from, relying on the provisions of the 1996 Rules, also relied on the judgment of this Court W.P.(C) No.33072 of 2006 dated 27.08.2008. True, with reference to an almost similar situation where a smoke house was run by a rubber dealer, this Court found that a licence from the Panchayat requires to be obtained. But, in my opinion, the issue requires to be addressed with reference to the provisions of the 1996 Rules. The provisions of Rule 3 of the 1996 Rules states that for the purpose of Section 232, what all activities comes under the factories, trades and entrepreneurship activities etc., as laid down in the Schedule - I. The Schedule – I under Entry 134 provides as under:

A reading of Entry 134 would show that the rubber as well as rubber products are specifically covered thereunder. However, the petitioner has only a contention that the 5^th respondent is using the smoke house for drying latex. The latex is nothing but rubber. The rubber with reference to Entry 134 referred above requires to have been “stored or sold”, so as to attract the rigour of Entry 134, to Schedule - I, of the 1996 Rules. As already noticed, the allegation in the writ petition is to the effect that the 5^th respondent is drying rubber sheets. This, in my opinion, would not be covered with reference to contents of Entry 134 of Schedule – I of the 1996 Rules.

However, Sri.Abraham P. George, the learned counsel for the petitioner states that the activity carried on by the 5^th respondent amounts to ‘manufacture’, and therefore, the rigour thereunder is attracted. In my opinion, the above submission cannot be accepted since the mere drying of rubber sheets does not amount any manufacture at all. For a particular item to be said to have been manufactured, a new and different commodity should emerge out of the activity. Here, what is dried and what is taken out of the smoke house is one and the same – rubber sheets. Therefore, the provisions of the 1996 Rules would not get attracted to the facts of the afore case. The judgment relied on by the learned counsel referred to above has not addressed the issue with respect to the applicability of the provisions of the 1996 Rules. Therefore, the above judgment, in my opinion, would be of no assistance to the petitioner herein.

Though the learned counsel for the 5^th respondent sought to rely on the Government Order dated 21.01.2020 to contend that there is no requirement for any licence on account of the contents of the afore Government Order, in my opinion, the afore issue does not require to be considered, in view of the interpretation to the provisions of the 1996 Rules, as above. Therefore, I am of the opinion that the petitioner is not justified in contending that the 5^th respondent should obtain a licence from the Panchayat. As already noticed, even the Panchayat does not have a case that the 5^th respondent requires to obtain a licence.

Even on the face of the afore finding, I find much force in the contention of the learned counsel for the petitioner that sulphur is being used and if there is such use, that requires to be interdicted. This Court notices that in Ext.P5 the Pollution Control Board had already interdicted the use of sulphur in the smoke house operated by the 5^th respondent herein. The counter affidavit filed by the 5^th respondent also states that sulphur is not being used by him.

In such circumstances, while dismissing this writ petition, I direct the Pollution Control Board Officials to periodically inspect the smoke house of the 5^th respondent to see that the 5^th respondent is not using any sulphur in his smoke house. Accordingly, this writ petition would stand dismissed.

Exhibit P1 THE MEDICAL CERTIFICATE DATED 01.11.2022 ISSUED BY CONSULTANT PHYSICIAN, M.A.G HOSPITAL, MOOKKANNUR

Exhibit P2 THE MEDICAL CERTIFICATE GIVEN BY DR. RAJESH. V OF RAJAGIRI HOSPITAL DATED 24.09.2022

Exhibit P3 THE TRUE PHOTOCOPY OF THE COMPLAINT LODGED BY THE PETITIONER DATED 20.08.2022 BEFORE THE DISTRICT COLLECTOR

Exhibit P4 THE TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT RECEIPT NO. M2-551726/2022/TDCEKM DATED 20.08.2022 ISSUED FROM THE COLLECTORATE, ERNAKULAM ON RECEIPT OF EXHIBIT P3

Exhibit P5 THE TRUE PHOTOCOPY OF THE DIRECTIONS ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT – PCB/EKM/DO-1/GENERAL-51/21 DATED 21.10.2022

Exhibit P6 THE TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER SUBMITTED ON 30.11.2022 BEFORE THE 3RD RESPONDENT

Exhibit P7 THE TRUE PHOTOCOPY OF THE PROOF OF DELIVERY CARD SHOWING THE RECEIPT OF THE EXHIBIT P6 BY THE 3RD RESPONDENT ON 01.12.2022

Exhibit R5(a) TRUE COPY OF THE PROPERTY TAX RECEIPT WITH RESPECT TO THE PROPERTY COMPRISED IN SY.NO.152/15 ISSUED FROM MALAYATTOR VILLAGE OFFICE DATED 18.06.2021

Exhibit R5(b) TRUE COPY OF COMMUNICATION ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT DATED 25.11.2022

Exhibit R5(c) TRUE PHOTOGRAPH OF THE DRYER INSTALLED BY THE 5TH RESPONDENT

Exhibit R5(d) TRUE COPY OF COMMUNICATION ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT DATED 10.02.2023

Annexure R1(a) TRUE COPY OF THE INSPECTION REPORT DATED 05.04.2023 PREPARED BY THE 2ND RESPONDENT SECRETARY, THURAVOOR GRAMA PANCHAYAT

Annexure R1(b) TRUE COPY OF THE SITE INSPECTION REPORT DATED 02.04.2025 PREPARED BY THE 2ND RESPONDENT