Kerala High Court
Vinod R vs The District Police Chief &
Author: K.T.Sankaran
Bench: K.T.Sankaran, K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
MONDAY, THE 1ST DAY OF AUGUST 2016/10TH SRAVANA, 1938
WP(C).No. 2548 of 2016 (P)
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PETITIONER:
-----------
VINOD R., AGED 57 YEARS,
S/O.RADHAKRISHNAN, RARATH HOUSE,
THIVUVALATHOOR PO, KODUMBU,
PALAKKAD, PIN - 678551.
BY ADVS.SRI.K.J.MOHAMMED ANZAR
SMT.P.K.MINIMOLE
SRI.DILEEP D BHAT
RESPONDENT(S):
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1.THE DISTRICT POLICE CHIEF &
SUPERINTENDENT OF POLICE,
PALAKKAD DISTRICT, PIN - 678001.
2.CIRCLE INSPECTOR OF POLICE,
KOLLENGODE, PALAKKAD DISTRICT,PIN-678506.
3.SUB INSPECTOR OF POLICE,KOLLENGODE,
PALAKKAD DISTRICT, PIN - 678506.
4.VIAJAYAN, AGED 35 YEARS, S/O.CHANDRAN,
MUTHALAMADA VILLAGE, KALLIYAMPARA DESOM,
PALAKKAD DISTRICT, PIN - 678506.
5.SANTHOSH, AGED 29 YEARS, S/O.VASU,
MUTHALAMADA VILLAGE, KALLIYAMPARA DESOM,
PALAKKAD DISTRICT, PIN - 678506.
6.KRISHNA SWAMI, AGED 35 YEARS,
S/O.KILLIAN CHETTIAR,
MUTHALAMADA VILLAGE, KALLIYAMPARA DESOM,
PALAKKAD DISTRICT, PIN - 678506.
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WP(C).No. 2548 of 2016 (P)
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7.SURESH @ BIJU, AGED 33 YEARS,
S/O.RAJAN, MUTHALAMADA VILLAGE,
KALLIYAMPARA DESOM,
PALAKKAD DISTRICT, PIN - 678506.
8.JAYAKUMAR, AGED 37 YEARS,
S/O.JAYAKUMAR, MUTHALAMADA VILLAGE,
KALLIYAMPARA DESOM,
PALAKKAD DISTRICT, PIN - 678506.
*ADDL. R9 IMPLEADED
9. DR.VINCENT PANIKULANGARA,
LAWYER, HIGH COURT OF KERALA,
JYOTHIRGAMAYA, PO ATHANI - 683 585,
ALUVA, ERNAKULAM DISTRICT, KERALA STATE,
EMAIL [email protected], PH.NO.0484/2477178,
MOB.NO.9447858612.
ADDL. R9 IS IMPLEADED AS PER ORDER
DATED 23.02.2016 IN IA.2408/2016.
**ADDL. R10 IMPLEADED
10. THE MUTHALAMADA GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY,
MUTHALAMADA GRAMA PANCHAYAT,
MUTHALAMADA, PALAKKADU.
ADDL. R10 IS IMPLEADED AS PER ORDER
DATED 13.07.2016 IN IA.11182/2016
R1 TO R3 BY ENIOR GOVT. PLEADER SRI.P.P.THAJUDEEN
R6 TO R8 BY ADV. SMT.KRISHNA RAJENDRAN
ADDL.R9 BY ADV.DR.VINCENT PANIKULANGARA
(PARTY IN PERSON)
R10 BY ADV. SRI.SYAM J SAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01-08-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C).No. 2548 of 2016 (P)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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P1: TRUE COPY OF THE LETTER DATED 09.02.2010 ISSUED BY THE
CHAIRMAN, KERALA STATE POLLUTION CONTROL BOARD, TO THE
MANAGING DIRECTOR, NITTA GELATIN INDIA LTD., KORATTY.
P2: TRUE COPY OF THE LETTER DATED 23.9.2009 ISSUED BY
THE DIRECTOR OF RESEARCH, TO M/S.KERALA CHEMICALS' AND
PROTEINS LTD., PANAMPILLY NAGAR, COCHIN.
P3: TRUE COPY OF THE INTERM ORDER DATED 22.10.2009 IN
WPC.NO.29365/2009 OF THE HON'BLE HIGH COURT OF KERALA.
P4: TRUE COPY OF THE JUDGMENT DATED 16.11.2009 IN
WPC.NO.29365/2009 OF THE HON'BLE HIGH COURT OF KERALA.
P5: TRUE COPY OF THE COMPLAINT DATED 11.01.2016 SUBMITTED
BY THE PETITIONER TO THE 1ST RESPONDENT WITH COPIES TO
RESPONDENTS 2 TO 4.
P6: TRUE COPY OF THE RECEIPT OF ACKNOWLEDGEMENT
DATED 11.01.2016 ISSUED FROM THE OFFICE OF THE 1ST
RESPONDENT TO THE PETITIONER ON SUBMISSION OF THE P5
COMPLAINT.
P7: TRUE COPY OF THE PETITION DATED 13.01.2016 SUBMITTED
BY THE PETITIONER TO THE 3RD RESPONDENT.
P8: TRUE COPY OF THE RECEIPT OF ACKNOWLEDGEMENT
DATED 13.01.2016 ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
P9: TRUE COPY OF THE LETTER DATED 5.2.2016 ISSUED BY
THE SENIOR ENVIRONMENTAL ENGINEER, KERALA STATE
POLLUTION CONTROL BOARD, DISTRICT OFFICE, PALAKKAD TO
THE DY.SP ALATHUR WITH TRANSLATION.
RESPONDENT(S)' EXHIBITS:
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EXT.AR9(A):TRUE COPY OF LETTER NO.23-24/2007-HSMD DATED 3.1.2008
MINISTRY OF ENVIRONMENT AND FOREST, GOVERNMENT OF
INDIA.
EXT.AR9(B):TRUE COPY OF NGIL'S DECLARATION DATED 7.8.2009 FOR
TRANSPORTATION OF SLUDGE FROM FACTORY.
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WP(C).No. 2548 of 2016 (P)
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EXT.AR9(C):TRUE COPY OF THE ENGLISH RENDERING OF GOVERNMENT OF
KERALA GO(RT)NO.1376/2011.IND DATED 3.11.2011.
EXT.AR9(D):TRUE COPY OF THE STATEMENT DATED 8.3.2016 FILED BY THE
DISTRICT COLLECTOR IN WP(C)NO.28913/2015(L).
EXT.AR9(E):TRUE COPY OF TEST RESULT OF SLUDGE SAMPLE
DATED 9.2.2016 FROM COLLEGE OF HORTICULTURE, KERALA
AGRICULTURAL UNIVERSITY.
EXT.AR9(F):NGIL'S LETTER DATED 23.2.2016 TO CIRCLE INSPECTOR OF
POLICE, CHALAKUDY.
EXT.AR9(G):NGIL'S LETTER DATED 5.3.2016 ADDRESSED TO THE CHIEF
EXECUTIVE OFFICER, KERALA ENVIRO INFRASTURCTURE,
AMBALAMEDU.
EXT.R10(A): THE TRUE COPY OF NEWS CLIPPING IN MATHRUBHUMI DAILY
DATED 18.1.2016.
EXT.R10(B): THE TRUE COPY OF NEWS CLIPPING IN MALAYALA MANORAMA
DAILY DATED 21.1.2016.
EXT.R10(C): THE TRUE COPY OF NEWS CLIPPING IN MATHRUBHUMI DAILY
DATED 12.1.2016.
EXT.R10(D): THE TRUE PHOTO GRAPHS PICTURING THE REAL SITUATION AT
KALLIAMPARA COLONY.
EXT.R10(E): THE TRUE COPY OF THE CONDITIONAL ORDER PASSED BY SDM,
PALAKKAD.
EXT.R10(F): THE TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER
PANCHAYAT.
//TRUE COPY//
P.S. TO JUDGE
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K.T.SANKARAN & K.ABRAHAM MATHEW, JJ.
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W.P.(C) No.2548 of 2016
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Dated this the 1st day of August, 2016
JUDGMENT
K.T.Sankaran, J The writ petition is filed praying for the following reliefs:
"i) Issue a writ in the nature of mandamus or any other appropriate writ order or direction commanding the respondents 1 to 3 police officers to provide effective and adequate police protection to the life of the petitioner, his family members, workers in the plantation and to the vehicles being brought organic manure to the plantation of the petitioner at Kalliyampara in Muthalamada village in Palakkad District.
ii) Issue such other and further writs, orders or directions as this Hon'ble Court may deems fit and proper in the facts and circumstances of the case.
iii) Allow the cost of these proceedings."
2. The petitioner is an agriculturist, who owns an extent of 70 acres of land in Muthalamada Village in Palakkad District, W.P.(C) No.2548 of 2016 Page numbers which lies as a single plot. It is stated that the main crops in the plantation are coconut, mango, arecanut, nut mug etc. The petitioner says that only organic manure is used for agriculture in the plantation and that organic manure is being brought from Nitta Gelatin India Ltd. The case of the petitioner is that the sludge available at the Nitta Gelatin factory is subjected to a process by which sludge is made, an organic waste, which is being dealt with under the name Nutrisoil. It is stated that in 2009 some people in the locality obstructed bringing of organic manure to the property of the petitioner, which necessitated the filing of W.P.(C) No.29365 of 2009 for police protection. Ext P3 interim order dated 22.10.2009 was passed in W.P.(C) No.29365 of 2009 and the writ petition was finally disposed of as per Ext P4 judgment dated 16.11.2009 making absolute the interim order. According to the petitioner, Ext P4 judgment is still in force. There was no threat or obstruction for the last several years in bringing organic manure to the plantation, after Ext P4 judgment. However, some miscreants in the locality again started to create problems and they prevented vehicles carrying organic manure W.P.(C) No.2548 of 2016 Page numbers being brought to the plantation. When the threat and obstruction continued, the petitioner filed a petition dated 11.01.2016 to the District Police Chief, Palakkad with copies to the Circle Inspector of Police, Kollengode and the Sub Inspector of Police, Kollengode. In spite of these petitions having been filed, the police did not afford necessary police protection. It is stated that on 16.01.2016, respondents 4 to 8 and some other persons assembled outside the plantation gate and took a decision to cause continuous obstruction to vehicles being brought to the plantation. It is also alleged that respondents 4 to 8 along with others trespassed into the compound and attacked the petitioner, his wife and son and some of the workers. The police men who intervened were also attacked.
3. The petitioner states that Nutrisoil does not contain any hazardous material and to show the same, he relies on Ext P2 letter dated 23.09.2009 from the Director of Research, Kerala Agriculture University and Ext P9 proceedings dated 05.02.2016 issued by the Senior Environmental Engineer of the Kerala State Pollution Control Board.
W.P.(C) No.2548 of 2016
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4. Dr. Vincent Panikulangara, an advocate practicing in this Court got himself impleaded as additional 9th respondent in an attempt to bring to the notice of this Court the miseries of the tribals and residents in the area where the plantation of the petitioner is situate. He has done so in public interest. In the counter affidavit filed by the 9th respondent, it is stated that Nitta Gelatin India Ltd. (NGIL for short) runs a bone processing factory at Kathikudam in Kadukutty Grama Panchayat in Thrissur District. It is stated that NGIL consumes 62,90,200 litres of water per day from Chalakudi river and discharges 62,70,000 litres of effluents into the river. A portion of the sludge discharge to NGIL's field was kept dried. Some farmers were led to think that the dried sludge can be used as a manure which would give higher yield for agricultural crops. It is stated that since 2008 local people under the banner of NGIL Action Council are agitating against the drawing of huge quantity of water from the Chalakudiyar, discharge of effluents and sludge to the Chalakudiyar and objecting to the intolerable foul smell emanated from the factory. Dr. Vincent Panikulangara submitted that several writ petitions are W.P.(C) No.2548 of 2016 Page numbers pending before this Court and other proceedings are pending before the National Green Tribunal with respect to the activities of NGIL.
5. With respect to the activities in the petitioner's property, it is stated by the 9th respondent that NGIL took out hundreds of truck loads of sludge to various destinations under the guise of the interim order granted in W.P.(C) No.29365 of 2009, including the petitioner's property. In paragraph 10 of the counter affidavit filed by the 9th respondent, it is stated thus:
"District Collector, Palakkad visited Kalliampara on 20/01/2016, because of the complaints of the helpless local people, who are mostly tribal, inspected the site where the sludge is dumped/stored, sealed the site and banned the entry of the material into Palakkad District. True copy of the Statement dt:08/03/2016 filed by the District Collector in W.P.(C) No:28913/2015(L) is produced herewith marked Ext:AR9-(d). True copy of the test result of the sludge sample dt:09/02/2016 from College of Horticulture, Kerala Agricultural University is produced herewith marked Ext:AR9-(e). It is seen that Mercury(Hg) content in the sludge from NGIL is 3.2 ppm which is more than 1000 times the tolerable level of 0.002 as per the accepted norms for drinking. In Japan, Mercury (Hg) poisoning of Minamata Bay by Chisso Corporation resulted W.P.(C) No.2548 of 2016 Page numbers in Minamata Disease (1956) and of Agano River in Niigata by Showa Corporation resulted in Second Minamata Disease (1965) leaving thousands brain impaired. The material that is being transported by petitioner to Kalliampara is not any manure but only toxic chemical industrial waste from NGIL. Table comparing Specifications of Organic Fertilizers as per Fertilizer (Control) Order, 1995 and Result of sludge sample tested in KAU on 09/02/2016 is shown below:-
Parameters Specifications of Result of sludge sample Organic Fertilizers as tested in KAU on per Fertilizer (Control) 09/02/2016 Order, 1995 Moisture (% by wt) 15.0 - 25 4 Colour Dark Brown Creamy White Odour Absence of foul odour Presence of foul odour Organic Carbon (%) 12 0.92 Total Nitrogen (% by wt) 0.8 0.31 Total Phosphates (% by wt) 0.4 minimum 0.92 Total Potash (% by wt) 0.4 minimum 0.076 pH 6.5 - 7.5 7.88 Conductivity not more than (dSm ) -1 4.0 .02 Arsenic 10.0 Trace Cadmium 5.0 Trace Chromium 50.0 26 Copper 300.0 18 Mercury 0.15 3.2 Nickel 50.0 10.4 Lead 100.0 Trace W.P.(C) No.2548 of 2016 Page numbers Parameters Specifications of Result of sludge sample Organic Fertilizers as tested in KAU on per Fertilizer (Control) 09/02/2016 Order, 1995 Zink 1000.0 3.52 Iron Nil 506.0 Calcium Nil 2320.0 Magnesium Nil 115.0 Aluminium Nil 1276.0 Vanadium Nil 200.0 Cobalt Nil 0.6 Thus it is evident that the sludge cannot and should not be used as manure because of the presence of Iron, Calcium, Magnesium, Aluminium, Vanadium and Cobalt and very high level of Mercury(Hg). Petitioner's claim that he transports organic manure is false, untrue. Therefore to grant protection of police now means to offer protection of police to violate GO (Rt) dt: 03/11/2011 and to violate the ban order of District Collector Palakkad so as to destroy the environment and eco system. In order to prevent further causing more damage to environment abusing the orders for protection police granted by this honourable court, it is highly in the interest of justice to recall those orders and declare them as non est."
6. According to the 9th respondent, the materials transported by the petitioner as Nutrisoil is not manure but, only industrial chemical waste containing heavy metals like W.P.(C) No.2548 of 2016 Page numbers mercury (Hg). It is further stated in the counter affidavit of the 9th respondent that NGIL disposes of the waste paying `50,000/- per each truck load. It is submitted that the petitioner is also a beneficiary of the payment made by the NGIL. It is stated in the counter of the 9th respondent that the District Collector, Palakkad has banned the Nutrisoil in Palakkad District. The contention that the sludge brought from NGIL is organic manure is untrue. The averments in the counter affidavit of the 9th respondent are not controverted by the petitioner by filing any reply affidavit.
7. Though respondents 4 to 8 were served with notice, they have not entered appearance.
8. The Muthalamada Grama Panchayat got themselves impleaded as additional 10th respondent. In the counter affidavit filed by the additional 10th respondent, it is stated that the petitioner has suppressed material facts in the Writ Petition. Various news paper reports containing the agitations made by the general public are highlighted in the counter affidavit and those news paper reports have been produced as Exts R10(a) to R10(c). The 10th respondent has produced Ext R10(e) conditional order W.P.(C) No.2548 of 2016 Page numbers dated14.01.2016 passed by the Sub Divisional Magistrate, Palakkad under Section 133(1)(d) of the Code of Criminal Procedure. Ext R10(e) order directs the petitioner to refrain from collecting and storing waste in his property. Ext R10(e) order was passed on the basis of the information supplied by the inhabitants of the area that the petitioner is causing serious pollution of surroundings and water sources and also causing serious health hazards to the local population especially to the Scheduled Tribe colony by dumping and collecting hospital wastes and wastes from slaughter house. No mention is made in Ext R10(e) about the industrial waste. It is not known whether any final order was passed in Ext R10(e) proceedings.
9. Ext P2 relied upon by the petitioner shows that the sludge could be considered as a good source of Phosphorous and Calcium for agriculture. It does not say that chemical analysis was done and whether materials like Mercury was available in the sludge or in the Nutrisoil made therefrom.
10. On the other hand, Ext R9(a) letter dated 03.01.2008 issued by the Additional Director, Government of India, Ministry W.P.(C) No.2548 of 2016 Page numbers of Environment and Forests (H.S.M Division) to M/s Kerala Chemicals and Proteins Limited (Predecessor of Nitta Gelatin India Ltd.) states that the use of compost mixed with sludge should be restricted to crops other than food crops.
11. The petitioner heavily relies on Ext P3 interim order and Ext P4 final judgment in W.P.(C) 29365 of 2009. A reading of Ext P3 shows that the prayer is to grant adequate protection to the life of the petitioner and his family and also to transport organic manure to the petitioner's property. With respect to that prayer, Ext P3 interim order was passed, which reads as follows:
"Respondents seek time to file counter. Post on 16.11.2009. Interim order as prayed for. It is made clear that the manure shall be transported without causing any nuisance to the people, and with the required safeguards to prevent pollution."
12. Ext P4 final judgment in W.P.(C) No.29365 of 2009 reads as follows:
"In the matter of police protection, learned counsel for the petitioner submits that in view of the interim orders dated 16.10.2009 and 22.10.2009, no further orders are required in this writ petition. It is accordingly closed in terms of those orders."W.P.(C) No.2548 of 2016
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13. It is not stated in Ext P4 judgment that Ext P3 interim order was confirmed or made absolute as contended by the petitioner. A reading of Ext P4 would show that the petitioner stated that no further orders are required in the matter. That means Ext P4 judgment is not one after hearing both parties and after analysing the facts and circumstances of the case. By Ext P4 judgment the writ petition was only closed. Ext P4 judgment cannot be treated as one granting the reliefs prayed for in W.P(C) No.29365 of 2009. Moreover, in Ext P3 interim order itself, it was made clear that the manure shall be transported without causing any nuisance to the people and with the required safeguards to prevent pollution. In the light of the facts pleaded in the counter affidavit of the 9th respondent, it cannot be said that the Nutrisoil transported by the petitioner does not cause any nuisance to the people and does not cause pollution. On the other hand, various subsequent events would prove that due to the indiscriminate dumping of the industrial waste in the property of the petitioner, the life of the people in the locality has become miserable and they are subjected to serious health hazards. W.P.(C) No.2548 of 2016
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14. An order for police protection cannot be granted to deny the constitutional rights and civil rights of citizens. Such an order cannot be granted to take away the vested rights of neighbouring inhabitants and agriculturists. An order for police protection cannot be granted to enable a person to cause pollution to the atmosphere, water or soil. An order for police protection cannot be granted to oppress the general public and to make their life miserable. If the prayer made in the Writ Petition is granted, all the aforesaid transgressions would be the result. Therefore, we are clear in our mind that this is not a case where any relief can be granted to the petitioner in this Writ Petition. The writ petition lacks merits and it is accordingly dismissed.
Sd/-
K.T.SANKARAN, JUDGE K.ABRAHAMSd/-MATHEW, JUDGE vdv/03/08/16