SANTHOSH Vs. CHERPULASSERY MUNICIPALITY, PALAKKAD DISTRICT

JUDGEMENT

(1.) The petitioner in W.P(C).No.34475 of 2015 is the appellant before us. For the sake of convenience, the reference to the parties is as in the writ petition.

(2.) The petitioner had approached this court through the writ petition seeking an implementation of Ext.P7 order, which was a stop memo dated 30.09.2015 issued by the Secretary of the Municipality to the 6th respondent, Smt.Sunitha, who was carrying on a workshop, in the name and style of Krishna Engineering . Ext.P7 stop memo was issued to the 6th respondent based on a complaint received from the petitioner, who alleged that, though the 6th respondent had a consent to operate machinery with a total capacity of 5 HP, she had actually been operating a 6 HP machinery. Taking note of the counter affidavit filed by the respondents, the learned Single Judge found that the 6th respondent had since obtained a consent from the Pollution Control Board for operating machinery of 5.5. HP capacity, and that she was operating only a 4.5 HP motor. It was also found that, the 6th respondent was functioning under cover of a valid Dangerous and Offensive (D & O) License issued by the respondent Municipality. The learned Single Judge, therefore, directed that the 6th respondent could carry on operations, with machinery up to the capacity of 5.5. HP going by the consent obtained from the Pollution Control Board, and if an application was made for enhancement of the capacity of the machines, the Pollution Control Board would have to consider the application and pass orders thereon after hearing the writ petitioner also. By way of abundant caution, it was also made clear that the operations of the 6th respondent would be subject to a license being issued by the local authority. The learned Single Judge also found that the challenge by the petitioner, against the consent granted by the Pollution Control Board, through a representation that was filed before the Board could not be treated as a review petition since the Board did not have a power to review a consent already issued by it in favour of the 6th respondent. The learned Single Judge opined that if the petitioner petitioner was aggrieved by the consent order he would have to approach the appellate authority against the said order. Before us, the writ petitioner, who is the appellant, assails the judgment of the learned Single Judge on various grounds including that, the activity carried on by the 6th respondent in her premises is one, which would bring it under the category of red for the purposes of the consent of the Pollution Control Board. It is stated that it was suppressing the real nature of the activities carried on by the 6th respondent that she had obtained the consent from the Pollution Control Board under an inferior category. The petitioner also alleges that the sound emanating from the premises of the 6th respondent is such that it puts the petitioner and his family to great inconvenience thereby necessitating an intervention from this court.

(3.) When the matter was taken up for admission today, it is brought to our notice through the counter affidavit filed on behalf of the 6th respondent that her husband passed away on 04.04.2018 after a prolonged illness, and consequently, the workshop carried on by her has been closed with effect from January 2018. The affidavit states that the 6th respondent is not in a position to run the workshop, and therefore, she has decided to let out the workshop to a neighbour, Sri Ameer Ali, who will conduct a workshop for making sign boards and flex boards as also for sticker cutting and similar activities for which, in her opinion, a D & License would not be required. It is further stated that the said person undertakes aluminum fabrication work at construction sites, and in connection with such works, he may occasionally have to resort to minimal structural works in the workshop for which, no gas welding would be required. The averments in the counter affidavit suggest that the 6th respondent will no longer be carrying on the business, and the business would now be transferred to another person, who would be commencing a new business, in place of the erstwhile business carried on by the 6th respondent. It is also apparent that, the 6th respondent would not have any role to play in the business carried on by the new person to whom the business is transferred. Under such circumstances, we are of the view that the writ appeal, to the extent it impugns the judgment of the learned Single Judge that found in favour of the 6th respondent with regard to the legality of her activities, cannot be pursued in the wake of the business of the 6th respondent itself having been transferred in favour of another person. Accordingly, we close the writ appeal without prejudice to the right of the writ petitioner/appellant to initiate proceedings, if any, against the person now conducting business in the premises owned by the 6th respondent, if the said person is found to be carrying on the business in a manner contrary to law. We make it clear that the observations in the judgment of the learned Single Judge, to the extent it pertains to the business carried on by the 6th respondent, will not have any bearing on the allegations, if any, raised by the petitioner in connection with the business carried on by the new person. We also take note, in this connection, of the submission of the learned Standing Counsel for the Pollution Control Board that the consent granted in favour of the 6th respondent has since expired on 30.05.2018.