Kerala High Court
M/S.G.J.Eco Power Pvt.Ltd vs The Cochin Municipal Corporation on 24 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 24TH DAY OF JULY 2024 / 2ND SRAVANA, 1946
WP(C) NO. 22210 OF 2023
PETITIONER:
M/S.G.J.ECO POWER PVT.LTD.,
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
2013 ,HAVING ITS REGISTERED OFFICE AT DOOR NO.X/63,
SARAYU COMPLEX, SEAPORT - AIRPORT ROAD,
KAKKANAD, COCHIN,
REPRESENTED BY ITS LAW OFFICER, PIN - 682030
BY ADVS.
SABU GEORGE
P.B.KRISHNAN (SR.)
P.B.SUBRAMANYAN
MANU VYASAN PETER
RESPONDENTS:
1 THE COCHIN MUNICIPAL CORPORATION,
REPRESENTED BY ITS SECRETARY,
PARK AVENUE ROAD, COCHIN, PIN - 682011
2 THE SECRETARY,
COCHIN MUNICIPAL CORPORATION,
PARK AVENUE ROAD, COCHIN, PIN - 682011
3 STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
LOCAL SELF GOVERNMENT (DC) DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN - 695001
BY SHRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL
CORPORATION
SRI.UNNIKRISHNAN, SPL.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.07.2024, THE COURT ON 24.07.2024 DELIVERED THE FOLLOWING:
-2-
WP(C)No.22210 of 2023
MOHAMMED NIAS C.P., J.
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WP(C)No.22210 of 2023
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Dated this the 24th day of July, 2024
JUDGMENT
The petitioner, stated to be a Special Purpose Vehicle formed by M/s. G.J. Nature Care and Energy Pvt. Ltd. (GJNCE) incorporated as a company is a service provider that can generate clean energy from Municipal Solid Waste (MSW). Cochin Corporation invited qualification and request for proposal to Design, Build, Finance, Operate and Transfer Municipal Solid Waste to Energy for Cochin City, under which the GJNCE as the lead company along with Biomass Power Ltd and London Investment Consultancy Ltd., formed a consortium and submitted a bid on 30.6.2015 The Corporation accepted the bid submitted by the consortium and issued a letter of Award dated 8.1.2016 to GJNCE Ltd. The petitioner also executed a Concession Agreement on 17.2.2016 with the Corporation. The -3- WP(C)No.22210 of 2023 petitioner further submits that it had obtained all the permissions required and had made a request to the Secretary of the Corporation to execute a land lease agreement instead of a licence agreement as the financial institutions and investors were reluctant to advance money. The petitioner had obtained the Environmental clearance from the State Environment Impact Assessment Authority, Thiruvananthapuram, the Consent to Establish from the Kerala State Pollution Control Board, Permit from the Director of Factories and Boileries, NOC for height clearance from the Airport Authority of India, layout approval of Chief Town Planner, Thiruvananthapuram, the fire and Safety clearance for site from the Fire and Rescue Services, the consent from the Assistant Forest Conservator, Ernakulam., NOC from the District Medical Officer (health) Ernakulam and also the development permit and building permit from the Panchayat concerned.
2. The third respondent, Principal Secretary, Local Self Government Department issued an order on 30.4.2020 cancelling -4- WP(C)No.22210 of 2023 the approval granted to the Project and directed the Corporation to terminate the Concession Agreement and further directed the Managing Director, KSIDC to float a Request for Proposal for the Brahmapuram project by Ext.P13 order. The Corporation alleged that the petitioner failed to submit the financial closure with the financial plan within 180 days from the date of the Concession Agreement as provided in Article 3.1. (a)(vii) of the Concession Agreement and that even after a lapse of 1400 days, the petitioner failed to submit the same and thus the Concession Agreement stood automatically cancelled by virtue of Article 3.6 of the Concession Agreement. A notice so issued by the Corporation is Ext.P14.
3. The petitioner had challenged the same by filing WP(C)No.9872/2020, which was disposed of by judgment dated 13.5.2020 directing the Corporation to consider the representation submitted by the petitioner and till such time to keep in abeyance the directions issued. The petitioner submits that the third respondent again without considering any of the -5- WP(C)No.22210 of 2023 contentions of the petitioner issued a fresh order dated 5.6.2020, Ext.P16 reiterating the earlier decision of cancellation. The order so passed as Ext.P16 was again challenged in WP(C)No.11850/2020. The learned single Judge found that the petitioner despite being granted sufficient opportunity to achieve the financial closure, did not achieve the same and accordingly upheld the decision of the Government by Ext.P17 judgment. The petitioner unsuccessfully challenged Ext.P17 in Writ Appeal as well as in the Special Leave Petition, the judgments of which are produced and marked as Exts.P18 and P19 respectively.
4. The petitioner essentially contended that it had obtained all the permissions and that it was awaiting a favourable response on the execution of a lease deed instead of the licence agreement and it was at that point of time the cancellation came into effect. It also submits that the Corporation has not been able to entrust the waste-to-energy project so far to any company or consortium and that the contract of bio-mining entrusted with -6- WP(C)No.22210 of 2023 one Zonta Infratech Private Ltd. was also cancelled later. The petitioner submits that on 2.3.2023 a fire broke out at Brahmapuram which choked the city with noxious smoke for several days. The petitioner therefore submits that if he is allowed to continue the work after leasing the land to it by the Corporation, it can revive all the permits, clearances and licences which stood expired. The petitioner will be able to furnish the financial closure documents within three months from the date of execution of the lease agreement and waste can be processed within 9 to 12 months thereafter. Stating all the above, the petitioner had submitted Ext.P24 representation to the Government dated 29.5.2023 which has been acknowledged by Ext.P25. In the aforesaid circumstances, the petitioner prays for a direction to the first respondent to revive and award the contract of work of the Waste to Energy project at Brahmapuram to the petitioner, and for a direction to the first respondent to execute a lease agreement concerning the land where the -7- WP(C)No.22210 of 2023 operations are to be carried out and also to take a decision on the representation submitted by him.
5. A counter affidavit has been filed on behalf of the Corporation contending that there was an inordinate delay on the part of the petitioner to achieve the financial closure and commencing the construction of the project which led to the cancellation of the approval granted for implementation of the Waste to Energy project in Brahmapuram. The challenge against the cancellation was taken up to the Honourable Supreme Court and has failed. It also submitted that the Government has accorded sanction for setting up of a plant and also had approved the proposal submitted by the BPCL for setting up of a bio-methanation Plant by converting Biodegradable waste into compressed bio-gas. It is also submitted that the Corporation executed an agreement with M/s.Bhumi Green Energy for a bio-mining at Brahmapuram on 4.11.2023 and the contractor has got the vehicle and started the installation of the machinery. Under such circumstances, it -8- WP(C)No.22210 of 2023 submits that no action can be taken on Ext.P24 representation and the fact that the petitioner had incurred operating expenses cannot be a reason to consider Ext.P24 representation.
6. This Court had passed an order on 9.4.2024 directing the State Government to state whether the project of BPCL setting up the bio-methanation plant will cover the entire waste management operations in Cochin or only a part of it.
7. Pursuant to the above order, the State has filed an affidavit, the relevant portion of which is extracted hereunder:-
"3.The Kochi Municipal Corporation has a population of 6,74,000 (projected) and 1,67,000 households. 233 TPD of organic waste, 54 TPD of organic waste, 54 TPD of inorganic waste and 15 TPD of other waste (E-Waste, Battery Waste, Hazardous Waste, Construction and Demolition Waste, Bio-medical Waste etc.) are generated in the Corporation.
4.Inorganic waste is collected door to door by Haritha Karma Sena once a week and transported to 57 MCFs, from where authorized agencies transport it to 4 RPFs for bailing and onward transfer to recycling plants. The reject waste is sent to cement factories for co-incineration. Instutional Biodmedical waste is processed and disposed of by IMAGE and Napkins and Diaper by KEIL. The Construction and Demolition waste -9- WP(C)No.22210 of 2023 collected by the Corporation from public areas is stored at Brahmapuram and used by the Corporation for its works.
5. It is respectfully submitted that 2 Black Soldier Fly (BSF) bio- waste processing plants with a cumulative processing capacity of 100 TPD were commissioned on March 8 2024, and are operating successfully. Additionally, four 2 TPD Thumbur Muzhis have been established in four divisions (Division No. 13,36,48,61) and a 1 TPD Organic waste Converter (OWC) is operational in the 16th circle. Furthermore, 1450 three-layer bio-bins distributed to households enable decentralized processing of 2 TPD bio-waste. 15 TPD of bio-waste is being processed through 227 Bio-bins installed in residential flats and apartments, which are bulk waste generators. The upcoming CBG plant of BPCL has a capacity of 150 TPD and groundwork at the site is underway. Kochi Muncipal Corporation has also resolved to establish a 50 TPD Windrow Composty Plant to manage organic waste.
6.It may be seen therefore that arrangements have already been made to process up to 311 TPD of bio waste. With regard to the non-bio waste, which is of multiple categories, gap assessment has been done under the aegis of the KSWMP (Kerala Solid Waste Mangement Project) and action plan is formulated to cover the gap in non-bio waste management. This includes increase in storage and processing facilities, tie up with existing recycling facilities, road tarring works and with cement factories. It is to be noted that as per the Rule 21 of the Solid Waste Management (SWM) Rules 2016, which discusses the criteria for waste to energy process, it is stipulated that -10- WP(C)No.22210 of 2023 Non-recyclable waste having calorific value of 1500K/cal/kg or more shall not be disposed of on landfills and shall only be utilized for generating energy through refuse derived fuel (RDF) or by giving away as feed stock for preparing refuse derived fuel."
7. This waste is expected to be at the most 10% of the MSW generated, and is currently being sent as RDF to cement kilns. In the circumstances, there is no extant requirement of setting up a large waste to energy Project in Kochi, since alternative mechanisms of waste management have been put in place, which will be sufficient to meet the needs."
8. A reply affidavit has been filed on behalf of the petitioner reiterating the benefits if the petitioner is entrusted with the task for which was originally entrusted and further stating that the proposal of BPCL is only for processing 150 tonnes of organic waste every day and the project falls short of the requirement with reference to the total waste generated in the district. It is further stated that the project is intended to treat only organic waste and does not include any proposal for the treatment of inorganic waste.
9. Heard Sri. P.B. Krishnan learned Senior counsel for the petitioner instructed by Sri. Sabu George, Sri C.E . Unnikrishnan, -11- WP(C)No.22210 of 2023 the learned Special Government Pleader for the State and Sri.Janardhana Shenoy, the learned Standing Counsel for the Cochin Corporation.
10. Learned senior counsel Sri.P.B.Krishnan apart from reiterating the contentions in the pleadings submits that even if the figures given by the respondents are accepted, the same would only cover the details of dealing with the organic waste and not the non-organic waste for which there is no proposal as on date. Even when the counter of the respondents concede that the inorganic waste is only going to be 10% of the solid waste, no concrete proposal has been set out in their pleadings regarding its management.
11. The above submission of the learned counsel for the petitioner is opposed by the learned counsel appearing for the respondents submitting that there is a system in place that is working efficiently. It is also submitted that the working of the plant has been found to be satisfactory by the Division Bench of this Court which considered the issue regarding the -12- WP(C)No.22210 of 2023 Brahmapuram fire incident. Though the petitioner was given a chance earlier, they fell short despite being granted sufficient time and opportunity, and therefore they cannot be entrusted with the task any more.
12. After considering the rival submissions it has been noticed that the petitioner was initially given the award of work but for the reasons stated, the same was cancelled and cancellation was upheld by this Court and not interfered with by the Honourable Supreme Court. Under such circumstances, the petitioner cannot claim any right/benefit based on the permissions they obtained in their attempt to carry out the work awarded to them. True, the petitioner must have expended time, money and energy for obtaining permissions and also for taking all the steps to start the work awarded to them. However, the cancellation was based on the terms of the contract agreed upon by the petitioner which was found to be valid by this Court. For this reason, the first prayer sought by the petitioner to revive and award the contract of the work of the Waste to Energy -13- WP(C)No.22210 of 2023 project at Brahmapuram to the petitioner cannot be considered and the same is rejected.
13. Under normal circumstances, the request of the petitioner to consider their representation could have been allowed by this Court, but in the instant case, the respondents have filed a counter affidavit specifically showing reasons as to why it cannot be considered and therefore no useful purpose be served by giving a direction to consider the representation. Needless to say, in case the respondents decide to entrust the management of the inorganic waste to any other person/body, the petitioner shall also be given due consideration.
Subject to the above, the writ petition is dismissed.
Sd/-
MOHAMMED NIAS C.P. JUDGE dlk/22.7.2024 -14- WP(C)No.22210 of 2023 APPENDIX OF WP(C) 22210/2023 PETITIONER'S EXHIBITS EXHIBIT-P1 A TRUE COPY OF G.O.(MS).NO.1/2016/LSGD DATED 04-01-2016 EXHIBIT-P2 A TRUE COPY OF THE CONCESSION AGREEMENT DATED 17-02-2016 EXHIBIT-P3 TRUE COPY OF ENVIRONMENTAL CLEARANCE FROM THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, THIRUVANANTHAPURAM DATED 05-10-2019 EXHIBIT-P4 TRUE COPY OF CONSENT TO ESTABLISH FROM THE KERALA STATE POLLUTION CONTROL BOARD DATED 30-08-2018 WHICH WAS VALID UP TO 30-04-2023 EXHIBIT-P5 TRUE COPY OF RENEWED PERMIT NO.314 OF 2019 FROM THE DIRECTOR OF FACTORIES AND BOILERS, THIRUVANATHAPURAM DATED 26-09-2019 EXHIBIT-P6 TRUE COPY OF NO OBJECTION CERTIFICATE FOR HEIGHT CLEARANCE FROM THE AIRPORT AUTHORITY OF INDIA DATED 13-08-2018, WHICH IS VALID UPTO 12-08-2026 EXHIBIT-P7 TRUE COPY OF LAY OUT APPROVAL OF CHIEF TOWN PLANNER, THIRUVANANTHAPURAM DATED 02-07-2018 EXHIBIT-P8 TRUE COPY OF FIRE SAFETY CLEARANCE FOR SITE OF DEPARTMENT OF FIRE AND RESCUE SERVICES DATED 29-12-2018 EXHIBIT-P9 TRUE COPY OF CONSENT FROM THE ASSISTANT FOREST CONSERVATOR , ERNAKULAM SOCIAL FORESTRY DATED 16-05- 2018 -15- WP(C)No.22210 of 2023 EXHIBIT-P10 TRUE COPY OF NO OBJECTION CERTIFICATED DATED 15-03-2018 FROM THE DISTRICT MEDICAL OFFICER (HEALTH) ERNAKULAM EXHIBIT-P11 TRUE COPY OF DEVELOPMENT PERMIT DATED 07-01-2019 ISSUED BY THE VADAVUCODE PUTHENCRUZ GRAMA PANCHAYAT, EXHIBIT-P12 TRUE COPY OF BUILDING PERMIT DATED 11- 09-2018 FROM VADAVUCODE PUTHENCRUZ GRAMA PANCHAYAT, EXHIBIT-P13 A TRUE COPY OF THE ORDER DATED 30-04- 2020 OF THE 3RD RESPONDENT EXHIBIT-P14 A TRUE COPY OF THE NOTICE DATED 04-05- 2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT-P15 A TRUE COPY OF THE JUDGMENT DATED 13- 05-2020 OF THIS HON'BLE COURT IN W.P. (C).NO.9872 OF 2020 EXHIBIT-P16 TRUE COPY OF THE ORDER DATED 05-06- 2020 ISSUED BY THE 3RD RESPONDENT EXHIBIT-P17 A TRUE COPY OF THE JUDGMENT DATED 10- 11-2020 IN WP(C) NO: 11850 OF 2020 EXHIBIT-P18 A TRUE COPY OF JUDGMENT DATED 03-02- 2022 IN W.A NO.1685 OF 2020 AND W.A NO.1579 OF 2020 EXHIBIT-P19 A TRUE COPY OF ORDER DATED 15-07-2022 IN PETITION FOR SPECIAL LEAVE(C) NO.9039-9040/2022 BEFORE THE HON'BLE SUPREME COURT EXHIBIT-P20 A TRUE COPY OF INDEPENDENT AUDITORS REPORT DATED 02-09-2017 ALONG WITH THE BALANCE SHEET OF THE PETITIONER COMPANY AS AT 31-03-2017 -16- WP(C)No.22210 of 2023 EXHIBIT-P21 A TRUE COPY OF AUDITED FINANCIAL STATEMENT OF THE PETITIONER COMPANY FOR THE YEAR 2017-18 EXHIBIT-P22 A TRUE COPY OF BALANCE SHEET OF THE PETITIONER COMPANY AS AT 31-03-2019 EXHIBIT-P23 A TRUE COPY OF BALANCE SHEET OF THE PETITIONER COMPANY AS AT 31-03-202 EXHIBIT-P24 A TRUE COPY OF THE REPRESENTATION DATED 29-05-2023 EXHIBIT-P25 A TRUE COPY OF THE POSTAL RECEIPT DATED 12-06-2023 ALONG WITH THE ACKNOWLEDGMENT CARD DATED 14-06-2023 EXHIBIT-P26 A TRUE COPY OF RECEIPT ISSUED FROM THE OFFICE OF RESPONDENT NO.1 ON 12-06- 2023 EXHIBIT-P27 55. A TRUE COPY OF THE DETAILS OF INVESTMENT MADE BY THE PETITIONER FROM 2012 TO 2020 FOR THE PROJECT EXHIBIT-P28 A TRUE COPY OF THE RELEVANT PORTION OF THE INTERNATIONAL JOURNAL OF ENGINEERING RESEARCH AND TECHNOLOGY REGARDING THE ASSESSMENT OF MUNICIPAL SOLID WASTE MANAGEMENT IN KOCHI CITY RESPONDENTS EXHIBITS EXHIBIT R3(A) A TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO.150/2023/LSGD DATED 29.07.2023 EXHIBIT R3(B) A TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO.206/2023/LSGD DATED 23.11.2023 EXHIBIT R3(C) TRUE COPY OF THE LETTER NO. MOE2A 22977/2023 DATED 30.05.2024 OF THE -17- WP(C)No.22210 of 2023 SECRETARY OF KOCHI MUNICIPAL CORPORATION.