Kerala High Court
Subash vs The District Collector
Author: Devan Ramachandran
Bench: P.R.Ramachandra Menon, Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940
WP(C).No. 11480 of 2013
PETITIONER:
SUBASH,S/O.CHINNAN,AGED 28,
ILLICKALVELI, KADAKKARAPPALLY POST,
CHERTHALA.
BY ADVS.SRI.B.KRISHNA MANI
SRI.RAHUL VENUGOPAL
SRI.D.KESAVAN NAIR
SMT.N.V.SANDHYA
RESPONDENT(S):
1. THE DISTRICT COLLECTOR,
ERNAKULAM-682 030.
2. THE SECRETARY,
COCHIN DEVASWOM BOARD,
OFFICE OF THE COCHIN DEVASWOM BOARD,
TRICHUR-680 001.
3. THE SECRETARY,
CHOTTANIKKARA GRAMA PANCHAYAT,
CHOTTANIKKARA,
ERNAKULAM DISTRICT-682 312.
4. THE DISTRICT MEDICAL OFFICER (HEALTH),
GENERAL HOSPITAL,
OPPOSITE SUBHASH BOSE PARK,
HOSPITAL ROAD, ERNAKULAM-682 016.
5. THE SUB COLLECTOR (REVENUE DIVISIONAL OFFICER),
FORT KOCHI, ERNAKULAM DISTRICT-682 001.
2/-
-2-
WP(C).No. 11480 of 2013
6. THE EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT (ROADS) KAKKANAD,
ERNAKULAM-682 030.
R1,R4 TO R6 BY SR GOVERNMENT PLEADER SRI.T.K.ANANTHAKRISHNAN
R2 BY SRI.K.P.SUDHEER, SC,
SRI.KRISHNA MENON, SC,
R3 BY SRI.S.SREEKUMAR,SENIOR ADVOCATE
SRI.P.PRIJITH
SRI.P.B.SAHASRANAMAN (AMICUS CURIAE)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 10-04-2018,ALONG WITH DBA.NO.56 OF 2011 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
20/4/2018
WP(C).No. 11480 of 2013 (H)
APPENDIX
PETITIONER(S)' EXHIBITS
EXT.P1 TRUE COPY OF THE NEWS ITEM IN THE NEWS PAPER INDIA MIRROR IN
ITS WEEKLY EDITION DATED 19/25 APRIL 2013.
EXT.P2 TRUE COPY OF THE NEWS PAPER DECCAN CHRONICLE DATED 22-4-13.
EXT.P3 TRUE COPY OF THE RELEVANT PORTION OF WPC NO. 33842/2011 FILED
BY SOME OF THE HOTEL OWNERS BEFORE THE HON'BLE HIGH COURT OF
KERALA, AT ERNAKULAM DATED 15-12-11.
EXT.P4 TRUE COPY OF THE WRIT PETITION WPC NO.13517/12 DATED 8-6-12
BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXT.P5 TRUE COPY OF THE COMMON JUDGMENT DATED 23-12-11 IN
WPC NO.33842/2011 AND WPC NO.13517/12 BEFORE THE HON'BLE HIGH
COURT OF KERALA, ERNAKULAM.
EXT.P6 TRUE COPY OF THE RELEVANT PORTION OF THE ORIGINAL PETITION
DATED 23-6-12 FILED BEFORE THE REVENUE DIVISIONAL OFFICER,
FORTKOCHI.
EXT.P7 TRUE COPY OF THE REPRESENTATION DATED 23-04-13.
EXT.P8 TRUE COPY OF THE PHOTOGRAPH.
EXT.P9 TRUE COPY OF THE PHOTOGRAPH.
EXT.P10 TRUE COPY OF THE PHOTOGRAPH.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.S.TO JUDGE
sts
20/4/2018
P.R.Ramachandra Menon &
Devan Ramachandran, JJ.
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W.P.(C)Nos.11480, 11903, 11916
& 12257 of 2013 & 24830 of 2015,
DBP No.56 of 2011 &
Crl.M.C.No.1886 of 2013
-------------------------------------------------------
Dated this the 10th day of April, 2018
JUDGMENT
Devan Ramachandran, J.
All these cases essentially concern the storm water drainage system maintained by the Chottanikkara Grama Panchayat. All these proceedings began when complaints were raised by the residents of the locality, staying nearby this drainage system, that various hotels owned by the private individuals and the establishments owned by the Cochin Devaswom Board under the aegis of the Chottanikkara Temple, were draining and dumping waste water, solid waste and even septage, to these drains in violation of the provisions of the Kerala Panchayat Raj Act.
2. We have heard Smt.Pushpalatha, Sri.B.Krishna Mani and Sri.C.S.Ajith Prakash, the learned counsel appearing for WPC 11480/13 & con. cases 2 the various petitioners; Sri.P.B.Sahasranaman, learned Amicus Curiae; Sri.P.Ramachandran, learned Advocate Commissioner; Sri.S.Sreekumar, learned Senior Counsel assisted by Sri.Martin, appearing for the Chottanikkara Grama Panchayat; Sri.M.Ajay, learned Standing Counsel for the Pollution Control Board; Sri.Viju Abraham, learned counsel appearing for the party respondents and Sri.K.P.Sudheer, learned Standing Counsel for the Cochin Devaswom Board.
3. We notice that, initially such complaints caused the Secretary of the Grama Panchayat to issue a memo dated 14.11.2011 to the Executive Officer of the Devaswom Board asking him to shut down all the drain pipes alleged to have been created by the Devaswom Board into the PWD drainage system maintained by the Grama Panchayat, so as to abate the nuisance of waste water and solid waste discharge into it. A copy of the said letter has been appended as Annexure I in DBA No.56/2011.
4. We further see that prior to this, the learned Ombudsman had passed an order on 03.06.2008 directing the Executive Engineer, PWD to close down all pipe lines of more WPC 11480/13 & con. cases 3 than 6 inches in diametre opening towards the public drain, so as to stop discharge of waste water from wash basin, bathrooms, etc. It was specifically directed therein that the effluent from latrines will not be allowed to be discharged into the drainage system and the order further left it to the Health Officer or other subordinate staff to take action against those who violate this order. A copy of the said order is produced as Annexure II in DBA No.56/2011.
5. The above two orders impelled the Devaswom to file DBA No.56/2011 seeking stay of its operation on the ground that under Section 219-A of the Act, it is for the Panchayat to remove rubbish, solid waste and filth and that the order prohibiting the expulsion of the waste into the public canal is illegal and untenable in law. These orders of the learned Ombudsman and of the authorities of the Grama Panchayat were also challenged by individuals who own and conduct hotels and such other establishments on the side of the canal by filing the writ petitions, being considered by us herein.
6. Crl.M.C. has been filed challenged the preliminary order issued by the Revenue Divisional Officer, Fort Kochi, WPC 11480/13 & con. cases 4 under Section 133 of the Code of Criminal Procedure directing the Executive Engineer of the Grama Panchayat to reduce the depth of the drain to a maximum of 30 cms so as to abate the nuisance of discharge of water and solid waste into the public drain.
7. When these proceedings were considered by this Court on various occasions in the past, orders were issued directing the competent authorities under the applicable statutes to take action in terms of law and thus to ensure that the life and health of the citizens of the area are not prejudiced by the deleterious activities in discharging waste, including septage, into the public drains. Several orders were thus issued and we are told that follow action was also initiated and pursued by the authorities and finally, it is now reported by Sri.P.B.Sahasranaman, the learned Amicus Curiae appointed to assist this Court and Sri.P.Ramachandran, the learned Advocate Commissioner that the situation is much better than it was when these proceedings began. According to them, action had been initiated by the Grama Panchayat as well as by the District Collector, through various proceedings, WPC 11480/13 & con. cases 5 to ensure that the nuisance is abated and their efforts have now borne fruit to a substantial extent.
8. Sri.P.B.Sahasranaman, the learned Amicus Curiae submits that, at the instance of the Engineering Wing of the Grama Panchayat, various outlets illegally maintained by the hoteliers to the drainage system have been closed and that many of them have been asked and compelled to install sufficient sewage treatment mechanisms, including Sewage Treatment Plants, in their premises, from which alone the water has been allowed to discharge into the public drainage system.
9. As regards as Chottanikkara Temple is concerned, the learned Standing Counsel for the Cochin Devaswom Board submits that action is now afoot to ensure that a proper Sewage Treatment Plant (STP) is put in place so that there will be no untreated waste water drained into the public drainage system in future.
10. The learned Standing Counsel appearing for the Pollution Control Board (PCB) affirms that the Devaswom Board has already approached them with a proposal to have a WPC 11480/13 & con. cases 6 suitable STP established and that action in this regard has already begun with collaterative effort from both sides. However, according to the learned Standing Counsel, the establishment and operation of the STP will take a minimum of one year and that until such time as it becomes operational, as an interim measure, the waste and sewage are being now discharged by the Devaswom Board into the soak pits and septic tanks constructed in the lands belonging to it and he says that necessary directions had been issued by the PCB to ensure that such waste water is not directly pumped into the public drainage system.
11. On an examination of all the issues involved in these cases, we find that the statutory duty to ensure maintenance of health and sanitation of the citizens of the locality is vested with the Grama Panchayat. Sri.S.Sreekumar, the learned Senior Counsel appearing for the Chottanikkara Grama Panchayat submits that every effort has been taken by the Grama Panchayat to ensure that this is done but he says that the Devaswom has not installed any STP yet and it is, therefore, that the public sewage system is flooded with waste WPC 11480/13 & con. cases 7 water, primarily from the institutions being run by the Board. Even though we hear these submissions from the learned Senior Counsel we are unable to accept it fully because, we are aware, as is discernible from the pleadings and materials on record that several other institutions, including hotels and other commercial establishments, are still suspected to pump sewage and untreated waste water into the public drainage system. Nothing has been placed before this Court by the Grama Panchayat to show the nature of the work taken by them to ensure that this is completely or substantially abated. In the absence of any such information being placed before this Court by the Grama Panchayat, we can only assume that the nuisance still continues and that further action is required to be taken on a continuing basis against all such establishments, including that of the petitioners in the above writ petitions in future also.
12. As regard as the Devaswom Board is concerned and as recorded above, action has already been initiated by them to establish the STP and that they have approached the PCB for necessary infrastructural and logistical support, we WPC 11480/13 & con. cases 8 are also told that the Devaswom Board will be paying the requisite fees for the installation of STP to the Pollution Control Board within a period of two weeks from today and that once that is done, a proper proposal and plan for establishment of the STP will be got approved by the Pollution Control Board and that they will, thereafter, approach the learned Ombudsman for Travancore and Cochin Devaswom Boards appropriately with a petition seeking sanction for construction of the same.
13. On a conspectus of our observations above, it is now more or less clear that the up keep of the public drains have not been satisfactorily done by the Grama Panchayat, in the manner as is it is enjoined upon them under the statutory provisions. It is certainly their obligation, both statutorily and constitutionally, to ensure that the citizens of the locality are not prejudiced on account of the illegal flushing of septage and such other toxic and hazardous materials into the public drainage system and they are obligated in law to ensure that such pernicious activities are completely stopped and done away with. For this purpose they will have to constantly WPC 11480/13 & con. cases 9 monitor the public drainage system and take action against any offending person/persons/entitles, including the petitioners in the writ petitions, to make sure that no untreated waste water, septage or solid waste are directly flushed into the public drainage system. It shall be their bounden duty to ensure so and any failure on their part, we caution them, will visit with necessary consequences with its full impact, as is warranted in law.
14. Coming to the STP to be installed by the Devaswom Board, we record the submissions of the learned Standing Counsel that they have already approached the Pollution Control Board with an application for permission to install the same and that necessary fees will be paid soon. Once such application and fees are made and remitted, the Pollution Control Board will consider the same expeditiously and grant approval in terms of law, after which the Board will make a suitable proposal for establishment of the STP and place it for the sanction and approval of the learned Ombudsman for Travancore and Cochin Devaswom Boards, in the form of an appropriate petition. This shall be done by the WPC 11480/13 & con. cases 10 Devaswom Board not later than six months from the date of receipt of a copy of this judgment and further action will be pursued by the Devaswom Board depending upon the report of the learned Ombudsman which will be placed before this Court for approval in due course. It is needless to say that the Devaswom Board shall not dispose or drain untreated waste water and sold waste into the public drain and that it shall be done only using the soak pits and septic tanks now established for that purpose as has been stated earlier by the learned Standing Counsel for the PCB.
15. Quad hoc Crl.M.C.No.1886/2013, we are of the view that by lapse of time, no purpose will now be served in pursuing the proceedings by the Revenue Divisional Officer. The Revenue Divisional Officer had issued the preliminary order under Section 133 of the Cr.P.C. in the year 2013, noticing the horrendous situation of the public drain and we are of the view that such order was apposite at that time. However, on account of our directions above, we are sure that the Secretary of the Grama Panchayat will rise to the occasion and take all necessary action so as to ensure that public WPC 11480/13 & con. cases 11 drainage system is kept, as far as practicable, in the best condition possible and therefore, we deem it appropriate to close this Crl.M.C. directing that the proceedings before the Revenue Divisional Officer will hereinafter be treated as terminated without any further orders. It is ordered accordingly.
16. We leave it open to any person, including the petitioners or the competent authority of the Devaswom Board, to approach this Court appropriately if our directions are found to be violated in future by any of the statutory authorities.
17. We are at this time told by Sri.Viju Abraham, the learned counsel appearing for the residents of the locality, who had raised complaints before the competent Authorities, that the District Collector, Ernakulam had, in fact, passed an order dated 17.01.2018, under the Disaster Management Act directing certain individuals and establishments to immediately seize all illegal activities of drainage of water and solid waste into the public drain and that he had authorised the competent authorities under the Act to ensure that these WPC 11480/13 & con. cases 12 orders are complied with and adhered to without fail. We are certain that this is a step in the right direction by the District Collector and we command him to ensure that his orders are complied with and obeyed by the authorities and by all persons/entities without fail in future.
18. We further notice that by an interim order issued on 14.02.2017 Chottanikkara Grama Panchayath was directed to collect and dispose of the sold waste from the premises of the Chottanikkara Devi Temple and we order that such arrangement shall continue until such time a proper STP is put in place.
With the above directions the above writ petitions and DBP are thus ordered.
P.R.Ramachandra Menon, Judge Devan Ramachandran, Judge tkv