Kerala High Court
B.G.Karthikeyan vs State Of Kerala on 20 August, 2020
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
WP(C).No.37665 OF 2017(G) & 40595 OF 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942
WP(C).No.37665 OF 2017(G)
PETITIONER/S:
B.G.KARTHIKEYAN
AGED 72, S/O.GOVINDAN, RESIDING AT
BRAHMINIPPARAMBIL, UDAYAMPEROOR, NADAKKAVU.P.O.-682
307.
BY ADVS.
SRI.P.G.JAYASHANKAR
KUM.AMMU MANOHARAN NARAYANAN
SMT.K.J.KARTHIKA
SMT.P.SREELAKSHMI
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,DEPARTMENT OF
IRRIGATION, GOVERNMENT OF KERALA,GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM.695 001.
2 DISTRICT COLLECTOR
ERNAKULAM, CIVIL STATION,
KAKKANADU.P.O.,ERNAKULAM.682 030.
3 ADDITIONAL DISTRICT MAGISTRATE
ERNAKULAM, CIVIL STATION, KAKKANADU
P.O.,ERNAKULAM.682 030.
4 EXECUTIVE ENGINEER
MINOR IRRIGATION DIVISION, KAKKANADU
P.O.,ERNAKULAM.682 030.
5 AGRICULTURE OFFICER
KRISHI BHAVAN, UDAYAMPEROOR,ERNAKULAM.682 307.
6 UDAYAMPEROOR GRAMA PANCHAYATH
WP(C).No.37665 OF 2017(G) & 40595 OF 2017
UDAYAMPEROOR, ERNAKULAM.682 307,REPRESENTED BY ITS
SECRETARY.
7 AMBALLOOR GRAMA PANCHAYATH
KUNNUMPURAM, KANJIRAMATTOM, ERNAKULAM.682
315,REPRESENTED BY ITS SECRETARY.
8 MULANTHURUTHY GRAMA PANCHAYATH
MULANTHURUTHY, ERNAKULAM.682 314,REPRESENTED BY ITS
SECRETARY.
R1, R6 BY ADV. SMT.C.G.AJITHA
R1 BY ADV. SRI.T.K.AJITHKUMAR VALATH
R1 BY ADV. SMT.C.G.BINDU
R1, R4 BY SRI.RANJITH THAMPAN, ADDL.AG.
SR.GOVERNMENT PLEADER SURIN GEORGE IPE
R1, R8 BY ADV. SRI.P.MARTIN JOSE
R1 BY ADV. SRI.P.PRIJITH
R1 BY ADV. SRI.S.SREEKUMAR SR.
R1 BY ADV. SRI.T.U.THOMAS
R1 BY ADV. SRI.THOMAS P.KURUVILLA
R7 BY ADV. SRI.T.K.AJITHKUMAR (VALATH)
R8 BY SRI.THOMAS KURUVILA
R6 BY SMT.C.K.BINDHU.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.08.2020, ALONG WITH WP(C).40595/2017(S), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.37665 OF 2017(G) & 40595 OF 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942
WP(C).No.40595 OF 2017
PETITIONER/S:
SATHEESAN M.R
AGED 35 YEARS, S/O.RAMAN,MATTALIPARAMBIL HOUSE,
EROOR WEST P.O.,THRIPUNITHURA, ERNAKULAM DISTRICT.
BY ADVS.
SRI.SHIRAZ ABDULLA
SRI.SHAJAHAN P.M.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT COLLECTOR
ERNAKULAM, CIVIL STATION - 682 030.
3 THE DAM SAFETY AUTHORITY
LEGISLATIVE COMPLEX,THIRUVANANTHAPURAM - 695 033.
4 THE ENVIRONMENT DEPARTMENT
SOUTH SANDWICH BLOCK ROOM,SSBT II, 4TH
FLOOR,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM -
695 001,REPRESENTED BY ITS SECRETARY.
5 THE UDAYAMPEROOR GRAMA PANCHAYAT
PANCHAYAT BUILDING, PIN - 682 307,REPRESENTED BY
ITS SECRETARY.
6 THE AGRICULTURE DEPARTMENT
SECRETARIAT BUILDING,THIRUVANANTHAPURAM - 695 001.
7 B.G.KARTHIKEYAN
WP(C).No.37665 OF 2017(G) & 40595 OF 2017
AGED 72 YEARS
S/O GOVINDAN, RESIDING AT BRAHMINIPPARAMBIL,
UDAYAMPEROOR, NADAKKAVU PO-682307.
IS IMPLEADED AS ADDITIONAL RESPONDENT NO.7 VIDE
ORDER DATED 5.1.18 IN I.A NO. 20872/17 IN WPC.
NO.40595/2017.
R1 BY ADV. SMT.C.G.AJITHA
R1 BY ADV. KUM.AMMU MANOHARAN NARAYANAN
R1 BY ADV. SRI.RANJITH THAMPANADDL.ADVOCATE GENER
R5 BY ADV. SMT.C.G.BINDU
R1-4, R6 BY SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER
GOVERNMENT PLEADER SRI.SURIN GEORGE IPE
R5 BY ADV. SMT.AJITHA C.G.
R5 BY ADV. BINDU.C.G
R5 BY ADV. T.U.THOMAS
R7 BY ADV. SRI.P.G.JAYASHANKAR
R7 BY ADV. SMT.P.SREELAKSHMI
R7 BY ADV. SMT.K.J.KARTHIKA
R7 BY ADV. AMMU MANOHARAN
OTHER PRESENT:
SRI.RANJITH THAMPAN, ADDL. AG AND SRI.SURIN GEORGE
IPE, SR GP FOR R1 TO R4 AND R6
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.08.2020, ALONG WITH WP(C).37665/2017(G), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.37665 OF 2017(G) & 40595 OF 2017
5
JUDGMENT
Dated this the 20th day of August 2020 Shaji P.Chaly, J.
The captioned writ petitions are in respect of construction of a bund across Konath river in Ernakulam District. W.P.(C)No.37665/2017 is filed on account of the failure to construct bund to prevent salinity of fresh water body and the failure of the respondents in taking steps to prevent ecological and environmental balances, whereas the other connected writ petition is filed against the construction of temporary bunds, which according to the petitioner therein, is affecting the water quality adversely, and aquatic echo system and that the constructions are carried out without permission regarding safety satisfaction from the Dams Safety Authority constituted under the Kerala Irrigation and Water Conservation Act, 2003. Therefore, we heard them together in agreement.
2. Various contentions and rival contentions are raised by the parties pointing out the merits and demerits on construction of temporary bund and non- construction of the bund respectively, also relying upon the history of a permanent bund, which was in existence from the year 1958, to regulate the water percolation from the back waters to the fresh water resources.
3. We are not proposing to go in to the merits of the matter, since we were informed that with regard to the very same issue original application No.237/2017 is pending before the National Green Tribunal, Southern Zone, WP(C).No.37665 OF 2017(G) & 40595 OF 2017 Chennai and the learned Tribunal is functional through video conferencing. An order passed by the National Green Tribunal on 10.8.2020 is produced before us from where we are satisfied that the subject issue is under the consideration of the National Green Tribunal. Paragraph 3 of the said order would speak in eloquence, the subject issue raised before the National Green Tribunal by an organisation called 'Manakkunnam Village Padasekhara Samrakshana Samithi', in which all the appropriate local bodies are parties. For convenience, it would be worthwhile to extract paragraph 3 of the order of the National Green Tribunal dated 10.08.2020.
3. We have received a report dated 5.8.2020 submitted by Justice A. V.Ramakrishna Pillai, Former Judge, High Court of Kerala, Chairman of State Level Monitoring Committee, Kerala which reads as follows:
"The river Konothupuzh starts from Champakkara Canal at Thripunithura. It passes through the local limits of the Thrippunithura Municipality as well as Chottanikkaran, Udayamperoor, Mulamthuruthy and Amballoor Grama Panchayaths covering a distance of about 17 Kilometers and ultimately joins the Vembanad Lake at Poothotta region within the limits of Amballoor Grama Panchayath. The main stream joining the river within the limits of the Thrippunithura Municipality is Andharakarathodu. This Hon'ble Tribunal on 241.2020 had directed to take immediate steps to prevent the aforesaid river from being polluted with solid waste as well as septage waste through unauthorised outlets. There was a further direction to prepare an action plan for the aforesaid purpose with the involvement of the different government departments concerned and the local bodies through the limits of which the river flows.
The government as per G.O.(Rt) No.817/2020/LSGD dt. WP(C).No.37665 OF 2017(G) & 40595 OF 2017 3.5.2020 constituted a committee with the District Collector as the Chairman and the District Level Officers of the key department as well as the local bodies concerned for preparation of the action plan and for its implementation.
An inspection was caused to be conducted by the District Office, Ernakulam of KSPCB on 25.6.2020 along with the official of the Thrippunithura Municipality It is informed that the banks of the river as well as the stream joining the same were inspected Reportedly, inspections were conducted in the major establishment on the banks of the river on 30.6.2020, 2.7.2020 and 3.7.2020 and water samples were collected for analysis. The analysis reports are yet to be received.' Reportedly, the following were noted during the inspection. Near Nadakkavu - Mulanthuruthy bridge: solid/sewage wastes were seen dumped on either side of the road.
Kaniyavalli bridge: Nets were seen installed on either side of the bridge to prevent throwing of waste into the river. Puthiyakavu - Kureekad bridge: Nets were installed on either side of the bridge. However, solid wastes were seen dumped at that point. Skyline Ranch Villas: It is at this point Andharakathodu joins Konothupuzha river. Inspection revealed that each villa is provided with individual septic tank and soak pit systems. Anthakarathoda Bridge: At the time of the inspection, cleaning of the Anthukarathodu by the Irrigation Department was going on. Solid wastes were seen dumped on the banks of the Anthakarathodu. No net was seen installed on the sides of the bridge. It is reported that the officials of the 5 Thrippunithura Municipality informed that they would install the nets after the cleaning operations are over. Karingachira Bridge: Nets were seen installed either side of the bridge.
Star Homes and Annex Apartment: Ths is an apartment complex with several towers. No sewage treatment plant was seen installed. WP(C).No.37665 OF 2017(G) & 40595 OF 2017 Reportedly, septic tanks of some of the towers are close to the river side.
Aliyar Bridge: Reportedly, the water near this area was found to polluted and black coloured. Here sewage contamination is suspected.
The status of clearing work of Konothupuzha arranged by Irrigation Department near Aliyar Bridge and Star Homes, Thrippunithura can be seen from Annexures - A1 and A2 respectively.
It was also reported that the STPs of some of the flats on the banks of Konothupuzha and the drains joining river were not functioning.
The KSPCB reports that letters have been issued to the local bodies concerned for identifying and locking all the unauthorised sewage outlets leading to the river and show causes notices were served on the following apartment complexes and establishments on the banks of the river were the STPs are not proper functioning. Choice Paradise Apartments, Thripunithura SFS Kingdom Apartments, Thripunithura Star Homes and Annex Apartments, Thripunithura Heera Life Style Apartments, Thripunithura Valy Heights Apartments, Thripunithura Service Station at Thripunithura owned by Karthikeyan M.N Conclusion The pollution of river Konothupuzha cannot be considered as an isolated issue. It is closely ad intrinsically connected with the Waste Management Systems in the local bodies involved.
As per the directions of the National Green Tribunal, Principal Bench, New Delhi in O.A.606/2018 instructions have been issued by the State Level Monitoring Committee to all the local bodies in the State to be fully compliant in waste management within one year from April, 2019. With a view to make the process effective, district Level Monitoring Committees were formed all districts in the State WP(C).No.37665 OF 2017(G) & 40595 OF 2017 with the District Collector as the chairman, General, as well as special directions pertaining to leach district were given in the first meeting of these committees chaired by the chairman of the State Level Monitoring Committee. However, all those directions went into deaf ears. Unless there is proper coordination between the District Administration, different government departments, local bodies as well as the Kerala State Pollution Control Board, nothing can e achieved.
It is crucial to note that Thripunithura Municipality through whic river Konothupuzha passes is lagging behind in achieving the target fixed by the Principal Bench of the National Green Tribunal in Solid Waste Management.
The details of segregation and collection of solid waste in Thripunithura Municipality as in March, l2020 is as follows. The data was prepared on the basis information supplied by the Municipality to the State Level Monitoring Committee through KSPCB.Number of Wards .. 49
Number of Household units 29495
Number of Establishments 3400
Number of Houses having segregation at source- Dry 25690
-do- Wet 26730
Number of establishment having segregation
at source- Dry 2920
-do- Wet 2860
Number of households under door to
door collection - dry 25690
-do- -wet 26730
Percentage of households under door to
door collection -dry 87.1
-do-- wet 90.7
Number of establishments under door to door
collection -dry 2020
WP(C).No.37665 OF 2017(G) & 40595 OF 2017
-do- -wet 2860
Percentage of establishments under door
to door collection -dry 85.9
-do- wet 84.2
Number of collectors 64 Number of vehicles used 2 The data regarding segregation and door to door collection of solid waste in the Thripunithura Municipality appears to slightly inflated. Had it been fully correct, most of the road sides and river sides in the Municipality would have been waste free. Even if, 1% of the solid waste generated in the households and other establishment is unattended by the local body, it would be sufficient to pollute the river and road stretches in it's locality.
The details of door to door collection as in March, 2020 in the panchayaths through which the river Konothupuzha passes are given in Annexure - 3. To overcome the present situation, the following suggestions are made.
All the local bodies above mentioned should achieve 100% compliance in door to door collection of segregated wastes and should ensure its safe and proper 8 disposal. Source level treatment of wet solid waste under the supervision of Suchitwa Mission, Haritha Kerala Mission and Pollution Control Board can be promoted as far as practicable. Major commercial establishments, if possible, can establish its own plastic shredding units so that littering of plastics on the roads ad in the river can be controlled.
The local bodies above may be advised to install surveillance camera units on major points of waste disposal. They may also be directed install nets on either side of the bridges over the river Konothupuzha wherever necessary. These local bodies should also undertake the responsibility of conducting awareness programmes to the public regarding proper waste management. This can be done with the help of Sucitwa Mission, Haritha Kerala Mission and State Pollution Control Board. Awareness programmes can be conducted in educations WP(C).No.37665 OF 2017(G) & 40595 OF 2017 institutions also with the assistance of District Legal Services Authority.
The KSPC shall be burdened with the responsibility of proceeding against individuals, establishments and local bodies violating environmental laws and recovering compensation for environmental degradation.
The State Irrigation Department shall be directed to clean the river Konothupuha and the streams connecting the same periodically to ensure free flow of water. It is learned that the Irrigation Department constructs temporary mud bunds at Champakkara Canal side (it is here the river starts) and ast Poothotta (it is here the river ends) to prevent the entry of salt water during summer season. Strict instruction should be given to the irrigation department to remove these bunds before the onset of monsoon every year, so that clogging at that points can be avoided."
The suggestions given by the Chairman of the State Level Monitoring Committee, which the local bodies are bound to follow and compliance of the same has to be monitored by the State Pollution Control Board and if there is any violation, they are directed to impose environment compensation, as directed by the Principal Bench of the National Green Tribunal, New Delhi in O.A.No.606 of 2018. The Irrigation Department is also directed to implement suggestions given by the State Level Monitoring Committee. The respective local bodies are directed to submit their status report regarding the steps taken by them for remedying the situation caused to the disputed water body in question to avoid pollution being caused to the same. The regulating authority viz., Pollution Control Board is also directed to submit independent report regarding the steps taken by them for strict compliance of the Solid Waste Management Rules, 2016 in the local bodies whose failure are affecting the river in question. The District Collector is also directed to submit an independent report, apart from filing a report along with WP(C).No.37665 OF 2017(G) & 40595 OF 2017 the committee, as the Chairman of the committee, regarding the steps taken by him as District Magistrate, under the provisions of the Solid Waste Management Rules, 2016 against the erring local bodies and also the steps taken by him to make those erring local bodies to implement the Rules strictly in their area of jurisdiction.
4. National Green Tribunal is a body constituted under the National Green Tribunal Act, 2010 with the specific object of dealing with the cases concerning the environmental issues among others and it is conferred with sufficient powers to deal and tackle with situations arising under the environmental protection laws. The act was enacted for the effective and expeditous disposal of cases relating to environmental protection and conservation of Forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected and incidental thereto. Going through the provisions of the Act, we are of the view, it is well equipped and it has got the power to call for necessary reports from all the agencies of the State and Central Government to finally decide upon the issues raised before it.
5.Taking into account the said aspects, we have no hesitation to hold that the writ of mandamus sought for in the writ petitions would not be the efficacious remedy, since petitioners are left with clear alternative and efficacious remedy as per the provisions of the National Green Tribunal Act, 2010, especially due to the fact that the subject issue was pending before the Tribunal from the WP(C).No.37665 OF 2017(G) & 40595 OF 2017 year 2017, on which year also, the writ petitions were filed. That apart, section 2(c) of the Act, 2010 defines 'environment', to include water, air and land and the inter-relationship, which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property. Likewise, injury is defined under Section 2(g) to be permanent, partial or total disablement or sickness resulting out of an accident and section 2(m) defines 'substantial question relating to environment' to include an instance where (i) there is a direct violation of a specific statutory environmental obligation by a person by which, -- (A) the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or (B) the gravity of damage to the environment or property is substantial; or (C) the damage to public health is broadly measurable; (ii) the environmental consequences relate to a specific activity or a point source of pollution.
6. Therefore, the aspects that are raised in the writ petitions according to us, are clearly subject matters to be considered by the National Green Tribunal. That apart, going through the provisions of Act, 2010 and Rules thereto, the provisions are by themselves a code and scheme for consideration of such environmental issues specifically. So also, we are of the opinion that no exceptional circumstances are made out by the petitioners to entertain the writ petitions exercising the power of discretion conferred under Article 226 of the Constitution of India.
WP(C).No.37665 OF 2017(G) & 40595 OF 2017 Therefore, the writ petitions are dismissed, leaving open the liberty of the parties to approach the National Green Tribunal, seeking appropriate reliefs, if and when advised so and we make it clear that all the issues raised by the respective parties are left open to be addressed before the Tribunal under the Act, 2010.
Sd/ S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE jm/ WP(C).No.37665 OF 2017(G) & 40595 OF 2017 APPENDIX OF WP(C) 37665/2017 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 28.02.2017 FILED BY THE PETITIONER.
EXHIBIT P1(A) TRUE TYPED COPY OF EXHIBIT P1.
EXHIBIT P2 TRUE COPY OF THE REPLY DATED 08.03.2017
GIVEN BY THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE NEWSPAPER REPORT DATED
13.03.2017 IN PUBLISHED IN MALAYALA
MANORAMA.
EXHIBIT P4 TRUE COPY OF THE PAPER REPORT DATED
15.11.2017, PUBLISHED IN MALAYALA MANORAMA.
WP(C).No.37665 OF 2017(G) & 40595 OF 2017 APPENDIX OF WP(C) 40595/2017 PETITIONER'S/S EXHIBITS:
EXHIBIT P1. TRUE COPY OF THE REPRESENTATION MADE BEFORE THE 1ST RESPONDENT DATED 05.12.2017.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R7 A TRUE COPY OF THE REPRESENTATION DATED 28.02.2017 FILED BY THE PETITIONER EXHIBIT R7 A1 TRUE COPY OF EXHIBIT R7(A) WITH TRANSLATED COPY EXHIBIT R7 B TRUE COPY OF THE REPLY DATED 08.03.2017 GIVEN BY THE EXECUTIVE ENGINEER,MINOR IRRIGATION DIVISION EXHIBIT R7 B1 TRUETRANSLATED COPY OF EXHIBIT R7(B) EXHIBIT R7 C TRUE COPY OF THE NEWSPAPER ARTICLE IN MALAYALA MANORAMA DATED 13.3.2017 EXHIBIT R7 C1 TRUE TRANSLATED COPY OF EXHIBIT R7(C) EXHIBIT R7 D TRUE COPY OF THE PAPER REPORT DATED 15.11.2017,PUBLISHED IN MALAYALA MANORAMA.
EXHIBIT R7 D1 TRUE TRANSLATED COPY OF EXHIBIT R7(D)