Kerala High Court
Dr. G. Samuel vs State Of Kerala on 29 January, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
WP(C).No.29394 OF 2013(S) -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
WP(C).No.29394 OF 2013(S)
PETITIONER/S:
DR. G. SAMUEL
S/O.G.GEORGE, SECRETARY, HUMAN RIGHTS PROTECTION
COUNCIL, RADHA BUILDINGS, D C ROAD, ALAPPUZHA.
BY ADVS.
SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL SELF
GOVERNMENT, THIRUVANANTHAPURAM-695001.
2 DIRECTOR
SUCHITWA MISSION, LEKSHMI NIVAS, T.C.24/2054,
PANAVILA JUNCTION, THYCAUD P.O.,
THIRUVANANTHAPURAM-695014.
3 MAVELIKKARA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, MUNICIPAL BUILDING,
MAVELIKKARA-690101.
4 THAZHAKKARA PANCHAYATH,
PANCHAYATH OFFICE, KALLIMEL P.O., MAVELIKKARA.
SRI. SURIN GEORGE IPE SR GP FOR R1 AND R2,
SRI. VINCENT JOSEPH SC FOR R3,
SRI.RASHEED C NOORANAD SC FOR R4
WP(C).No.29394 OF 2013(S) -2-
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29-01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.29394 OF 2013(S) -3-
JUDGMENT
Dated this the 29th day of January, 2021 S. Manikumar, C. J.
Instant writ petition has been filed seeking for the following reliefs:-
"i) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to strictly implement Section 219F of the Kerala Panchayat Raj Act 1994 which makes it mandatory for every Panchayat to identify and notify suitable places for the purpose final disposal of waste.
ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to strictly implement section 15 of the Kerala Panchayat Raj (Construction and maintenance of public latrines, urinals, bathing places and sanitation of private premises) Rules 1998."
2. Short facts leading to filing of the writ petition are as hereunder:-
Petitioner is the Secretary of Human Rights Protection Council, which, according to the petitioner, is engaged in protecting human rights WP(C).No.29394 OF 2013(S) -4- and values. Petitioner submitted that, in Corporation areas like Trivandrum, Ernakulam and Calicut, wherein, waste disposal measures are being carried out, with the aid of local self government, incidents of violence are being reported. According to the petitioner, these incidents happened, because of the failure on the part of the local government authorities, to foresee the vice of garbage, which ought to have generated in that areas. The Kerala Panchayat (Construction and maintenance of public latrines, urinals, bathing places and sanitation of private premises) Rules, 1998, has been enacted for the abovesaid purpose. But the same is not seen implemented, in any of the local self government bodies, across the state. Petitioner has further submitted that, due to the non-implementation of the said rules, practically, the Panchayats have withdrawn from one of the prime duties, cast upon them. Petitioner has also submitted that, Panchayats are implementing other rules, which are revenue generating for them, and are ignoring the beneficial legislations, which are burdensome for the Panchayats. Being aggrieved, instant writ petition is filed.
3. Secretary, Department of Local Self Government Department, Government Secretariat, Thiruvananthapuram, the 1st respondent, has filed a counter affidavit in the writ petition, wherein, the 1 st respondent WP(C).No.29394 OF 2013(S) -5- stated that, as part of the decentralized waste management, approach have been to provide State Plan Funds. The State Government have also taken steps to tap central assistance under the programme, Nirmal Bharat Abhiyan, for providing assistance to the Grama Panchayats, for implementing solid and liquid waste management projects. Public toilets (Community Sanitary Complexes) can also be constructed, under the said programme, as per requirement.
4. It is submitted that, all the urban local bodies are promoting source level treatment of solid waste in a big way, and able to reduce significant quantity of bio-degradable waste, at the source itself. As part of legal support to the local bodies, the Kerala Municipal Act, 1994 and the Kerala Panchayat Raj Act, 1994, were amended during the year 2012, insisting source level treatment in commercial establishments, hotels, flats etc., as the responsibility of owners of those organizations. Considering the non-availability of land for establishing solid waste processing plant, focus is now being given for promoting source level, and decentralized solid waste treatment plants. At the same time, focus is given for supporting the upgrading/modernization of existing plants.
WP(C).No.29394 OF 2013(S) -6-
5. It is also submitted that, with regard to the grounds raised in the writ petition, the urban and rural local bodies are responsible for establishing and operating the solid waste processing plant, as per the Kerala Municipality Act, 1994, Kerala Panchayat Raj Act, 1994 and Municipal Solid Waste Rules (Management and Handling), 2000, the State Government is providing all support, by way of technical and financial, to the local bodies. Encouragement of source level treatment of waste, modification of existing processing plant, and promotion of decentralized solid waste processing plants, are the major focus area taken by the Government, for helping the local bodies. As stated earlier, action has been taken to amend the Kerala Municipality Act, 1994 and the Kerala Panchayat Raj, 1994, for making the owners of waste generators, like commercial establishments, hotels, hospitals, Kalyanamandapams, responsible to provide their own facilities, for the treatment of biodegradable waste. Due to the above mentioned activities, the quantity of waste generated in majority of urban and rural local bodies, including those local bodies pointed out by the petitioner, is able to reduce considerably. Considering the land constraint and the public protest, the action taken by the urban and rural local bodies, with the support of the State Government, WP(C).No.29394 OF 2013(S) -7- significant progress has been made, for promoting source level treatment, and decentralized treatment of solid waste. As per the existing legislations, it is the mandatory responsibility, on the part of urban and rural local bodies, to provide facilities for solid waste treatment and disposal. The State Government is supporting them for discharging their duties effectively.
6. As directed by this Court, Secretary, Mavelikkara Municipality, the 3rd respondent, has filed a counter affidavit, stating that, though the Municipality identified the certain landed properties, for disposing the waste in the Municipality, but due to the public protest against the places, the Municipality could not notify the places for the purpose. Therefore, the Municipality implemented the de-centralized waste management scheme in the Municipality, and which, are successfully functioning, without any complaint from the public. Now the Municipality is taking very serious and earnest efforts, to find out a better place, for disposing the centralized waste, and thereby to implement Section 219F of the Kerala Panchayat Raj Act, 1994.
7. Secretary, Thazhakkara Grama Panchayat, the 4 th respondent, has also filed a counter affidavit in the writ petition, stating that, the WP(C).No.29394 OF 2013(S) -8- Panchayat has identified some properties for waste disposal, but due to the protest from the local public, it could not be materialized. With the financial help of Kerala Sujithuva mission, the Panchayat has already installed, domestic biogas plant. Panchayat has installed 153 units, expending Rs. 18,36,000/-. Therefore, waste disposal at the place of origin itself, is successfully implemented. In addition to that, the Panchayat has started work to install incinerate unit, in Mankankuzhi market, by spending Rs. 9 lakhs, but due to the public protest, the Panchayat could not implement the same. Now, the Panchayt has decided to install aerobic compost units, at Kunnam SHSS, Ervankara HSS, Bishop Moor College, TNVM SH vettiyar, the installation contracts were given to the IRTC, Mundoor, Palakkad, and the work is under progress.
8. It is submitted that, in addition to the above, the Grama Panchayat formed Green Army, in each ward of the Panchayat, with the co-operation of the Kudumba Sree, to collect the solid waste from the sources. The plastic waste collected from there is disposed at the plastic shredding unit of Bharanikkavu Block Panchayat. Therefore, at present, there is no problem in disposal of plastic waste in Thazhakkra Grama Panchayat. The Panchayat is confident that, when the Green Army is WP(C).No.29394 OF 2013(S) -9- working in full fledged manner in the Thazhakkara Grama Panchayat, the waste problem in the Panchayat could be solved.
9. It is further submitted that, the Panchayat has implemented the de-centralized waste management scheme in the Panchayat, and the same are successfully functioning, without any complaint from the public. The Panchayat is seeking a better place for disposing the centralized waste, and thereby, to implement section 219 F of the Panchayat Raj Act, 1994.
10. As directed by this Court on 27.05.2019, an additional affidavit has been filed, on behalf of the Secretary, Local Self Government Department, Thiruvananthapuram, wherein, the 1 st respondent has stated that, various actions have been taken at the State and local Governments level, to comply with the various provisions of Solid Waste Management Rules, 2016. State Government vide G.O. (Rt) No. 3122/2017/LSGD dated 23.09.2017, constituted a State Level Advisory Committee (SLAC) chaired by the Chief Secretary, to co- ordinate the implementation of investible projects, in the waste management sector, and to take key decisions, in that regard. The SLAC in its subsequent meetings resolved that, setting up of integrated waste WP(C).No.29394 OF 2013(S) -10- management projects, with modern waste to energy plants, at identified locations, across the state, through private implementing agencies, identified through global tender process, would be the best strategy, to address the issue. Reports on land available with the Government departments were obtained, and based on the report from District Collectors, 7 sites were shortlisted. A feasibility study of the shortlisted locations found that the locations are feasible for the setting up of waste to energy plants.
11. It is submitted that the State Government, vide G.O. (Rt) No. 82/2018/LSGD dated 11th June 2018, accorded sanction for setting up of 5 MW Waste to Energy (WtE) plants, at the 7 shortlisted sites, on Design, Build, Finance, Operate and Transfer (DBFOT) basis, in public private partnership mode. Kerala State Industrial Development Corporation (KSIDC), was designated as the nodal agency, to set up the waste to energy plants, in collaboration with the concessionaire and local bodies, float the RFP, select the concessionaire, and execute the concession agreement. KSIDC was entrusted to float the RFP, with the broad terms and conditions, for the selection of a suitable concessionaire, to set up WtE plants, at the identified 7 sites. WP(C).No.29394 OF 2013(S) -11-
12. It is further submitted that, accordingly, KSIDC has floated RFP for Kozhikode waste-to-energy project, and selected M/s Zonta Infratech Pvt. Ltd., through global tender, for the establishment of the centralized waste-to-energy project, at Kozhikode. Further action in the matter is going on. KSIDC has also tendered the other waste-to- energy Projects, proposed to be established in Kollam, Kannur and Palakkad District, and the last date for submission of bid is 15 th July, 2019. The procedure for tendering the project, for establishing waste- to-energy plant, in the other selected location, is also in progress.
13. It is also submitted that, in addition to the above, a centralized waste to energy plant at Kochi, with a capacity to treat 300 ton/day of waste, has obtained consent to establish, from the Kerala State Pollution Control Board, and is awaiting environmental clearance. Public hearing, the final stage of the procedure for issuing environmental clearance, was completed successfully on 10.06.2019.
14. It is contended that, sanction has also been accorded for the setting up a Waste to Energy plant at Munnar on Build, Own, Operate and Maintain (BOOM) basis by M/s. AG Dauters Waste Processing Pvt. Ltd., in the land provided by Kannan Devan Hills Plantations WP(C).No.29394 OF 2013(S) -12- Company Pvt. Ltd. Construction of a centralized solid waste treatment plant, is nearing completion, in Sulthan Batheri, Wayanad District, and will be commissioned soon.
15. It is further contended that, the centralized plants are expected to have a total treatment capacity of 3030 TPD. Thus, the State will have the capacity to treat the entire solid waste generated, when the proposed waste-to-energy projects are commissioned.
16. According to the Secretary, Local Self Government Department, the 1st respondent, the State is proactively taking steps, to dispose of / contain, biodegradable and non-degradable waste, within its limited resources, using sustainable and innovative measures, for a clean and greener planet.
17. On this day, when the matter came up for further hearing, Mr. Rasheed C. Nooranad, learned Standing Counsel for the 4th respondent submitted that, due to public objection, a suitable place for disposing the centralized waste, has not been identified.
18. Section 219F of the Kerala Panchayat Raj Act, 1994 reads thus:-
WP(C).No.29394 OF 2013(S) -13-
"Provisions for the final disposal of solid waste.- (1) Every Village Panchayat shall identify and notify suitable places within or outside the Village Panchayat area for the purpose of final disposal of waste.
(2) While notifying the land under sub-section (1) health and environmental aspects shall be taken into consideration by the Village Panchayat.
(3) Every Village Panchayat may make adequate arrangements for the utilisation of solid wastes for the preparation of compost and the disposal of it by sale.
(4) Where composting of waste is not found possible or practicable sanitary landfill methods shall be adopted for the disposal of waste at the landfill sites in the manner specified by the Village Panchayat.
(5) Incineration of waste may be resorted to by the Village Panchayat for the disposal of infectious waste rejected from the hospitals, nursing homes or health care centres and non industrial hazardous waste as specified by the Village Panchayat from time to time."
19. Thus it is mandatory on the part of the Secretary, Mavelikkara Municipality, 3rd respondent, and the Secretary, Thazhakkara Panchayat, 4th respondent, to identify a suitable place, for disposal of waste.
WP(C).No.29394 OF 2013(S) -14-
20. Though contention has been made that there is a public protest, that would not absolve the statutory authorities, from enforcing the provisions. Objections, if any, has to be dealt with, in accordance with law.
In the light of the above, we direct the Secretary, Mavelikkara Municipality, 3rd respondent, and the Secretary, Thazhakkara Panchayat, 4th respondent, to identify a suitable place, for disposal of waste, in accordance with law, within two months from the date of receipt of a copy of this judgment.
With the above directions, writ petition is disposed of.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE WP(C).No.29394 OF 2013(S) -15- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE ORDER PASSED BY THE
MAVELIKKARA LEGAL SERVICE AUTHORITY IN
KSLA NO.446/12.