Nittagelatin India Limited vs The District Chief Of Police on 26 July, 2013

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Kerala High Court

Nittagelatin India Limited vs The District Chief Of Police on 26 July, 2013

1. This writ petition is filed by a company which has established a factory at Kathikoodam in Kadukutty Grama Panchayat. The company is engaged in the manufacture of Ossein. The company started commercial production in 1979 and is stated to be employing 150 persons and is providing indirect employment to another 150 persons.

2.It is averred in the writ petition that the Kerala State Pollution Control Board has issued to the company a valid consent to operate its plants and this averment of the company is confirmed by the Kerala State Pollution Control Board in the report filed by it. It is stated that for several years in the past, a section of the people, not only from the locality but also from distant places, were agitating against the company alleging that it is discharging untreated effluents to the neighbouring properties and also to the Chalakkudy river, where the WPC.15795/13 2 company has put up a discharge outlet from its Effluent Treatment Plant.

3.It is stated that recently, for some reasons which are not attributable to the company, there occurred a massive fish death in the river. According to the petitioner, an enquiry was conducted into the aforesaid incident and the Pollution Control Board issued Ext.P2, confirming that the effluents discharged from the company could not have resulted in the fish death. In spite of it, the 5th respondent, which is led by a dismissed employee of the company, published Ext.P3 notice threatening of violent agitation, to damage the discharge pipes and to put fire to the company's installation. Ext.P4 is a news report, which also indicates that the 5th respondent is proposing to resort to agitation against the pollution allegedly caused by the company in the Chalakkudy river.

4.It was in such circumstances that apprehending threat to its installations and its employees and in order to prevent any WPC.15795/13 3 untoward incident, the company filed this writ petition with prayers to direct respondents 1 to 4 to take necessary steps to maintain law and order for the smooth functioning of the factory and to prevent the 5th respondent and their men from causing any damage to the pipelines laid by the company through the properties of its own and others.

5.On the filing of the writ petition, this court passed interim order dated 21/6/13 directing respondents 1 to 4 to ensure that none of the installations of the company is put to any harm and to take adequate action for the same.

6.It is stated that subsequently on 24.6.13, one of the land owners, through whose property also the discharge pipe of the company is laid, filed O.S.No.41/2013 before the Munsiff's Court, Chalakkudy seeking an injunction against the company and its officials from trespassing into his property. In that suit, the plaintiff had also filed I.A.No.54/2013 seeking an interim order of injunction. In that I.A., based on the submission made WPC.15795/13 4 by the company that it had no intention to trespass into the plaint schedule property or to commit waste therein, the Court passed an order dated 24.6.13, restraining the respondents therein from trespassing into the plaint schedule property or committing waste therein.

7. According to the petitioner, immediately after the order was passed on 24/6/13, the discharge pipeline laid in the plaint schedule property were damaged by anti-social elements led by respondents 5 to 7. Thereupon, the petitioner filed I.A No.13019/13 seeking a direction to respondents 1 to 4 to afford police protection to them to repair and maintain the pipeline, without any obstruction by the 5th respondent or its members.

8. According to the petitioner, the allegation that it is causing pollution of any nature is incorrect and that in so far as the fish death that occurred in the river is concerned, the Pollution Control Board issued Ext.P2 report dated 7.6.2013, confirming WPC.15795/13 5 that on enquiry, it was found that there is no chance for the presence of nitrates in the effluents discharged from the company and the high concentration of nitrates in the river water mentioned in the analysis report of the Fisheries Department may not be due to the effluent discharged from the petitioner's factory. They also stated that the effluents are treated at the Effluent Treatment Plant and the discharged effluents satisfied the parameters laid down by the Pollution Control Board.

9. Later, the company filed I.A.No.13414/13 seeking to implead National Environmental Engineering Research Institute (NEERI for short), Nagpur, to have a study conducted by that organisation at its expense. It has also expressed his willingness to implement any recommendation that may be made by NEERI.

10. In the counter affidavit filed by respondents 5 to 7 they have disowned Ext.P3 and have stated that it was not issued by WPC.15795/13 6 them. They alleged that it was published by the company itself to mislead this Court and to obtain an order in their favour. According to them, the Company has been violating all environmental laws and was causing pollution to the entire area and the Chalakkudy river. They have also filed I.A.No.15439/13 alleging that the company has laid pipes, underground cables and put up installations unauthorizedly and without even applying or obtaining statutory clearances.

11. Respondents 11 and 12, the Panchayat and its President, contended that the prayer of the Company for protection to repair the pipes cannot be allowed for the reason that owners of the property through which the pipes are laid, are not parties to the writ petition. It was also their contention that any such order will only nullify Ext.P24 order passed by the Munsiff's Court, Chalakkudy and that too, when the company did not succeed in getting the aforesaid order vacated either by the Munsiff Court itself or in the CMA filed by it, which is pending before the Sub Court, Irinjalakuda. It was also their WPC.15795/13 7 case that the company has not obtained any sanction from any authority for laying the pipes and that the company is causing extensive pollution and therefore, should not be allowed to continue their operation.

12. The 10th respondent is a resident in the neighbourhood of the company. The grievance of the 10th respondent is mainly regarding the air and water pollution allegedly caused by the company. According to the 10th respondent, Exts.R7(b) and R10(b) are the reports of water analysis by the Kerala Water Authority and the consolidated report submitted by the Pollution Control Board and that these documents show not only that the water is polluted but also that the effluents discharged did not achieve the parameters specified by the Pollution Control Board in the consent order issued by it. They also submitted that Commission Report dated 30.6.2013 also demonstrated magnitude of the air pollution caused by the company. It was stated that the pipes which are sought to be repaired are passing through properties of atleast 6 persons WPC.15795/13 8 who are neither parties to the writ petition and that they are not members of the 5th respondent. They were also making reference to Exts.R10(e), (f) and (g) to contend that the company has laid unauthorized pipes and cables, apart from occupying puramboke land.

13.The 16th respondent is a person residing in the neighbourhood of the company and the grievance raised by him was regarding the general pollution caused on account of the functioning of the company. According to him, the Company is guilty of causing environmental pollution and therefore, cannot seek discretionary relief from this Court. In support of the said contention, the learned counsel relied on the judgment of the Apex Court in P.R.Muralidharan and Others v. Swami Dharmananda Theertha Padar and Others (2006(4) SCC 501), Suseela v. State of Kerala (2008 KHC 4976) and M/s. Gem Granites v. Deputy Supdt. Of Police, Neyyattinkara and others (2008(1) KHC 909). WPC.15795/13 9

14. The 13th respondent is the Secretary of a Trade Union of the workers of the company and according to him, the actions of the 5th respondent are vitiated by mala fides. According to him, the 5th respondent is led by a person who is a dismissed employee of the company and he is trying to settle his vengeance against the Company.

15.We heard counsel for the parties and have considered the submissions made.

16.Admittedly, the petitioner's factory has been continuing commercial production since 1979. It is also a fact that the company has obtained a consent to operate from the Pollution Control Board which specifies the parameters that are to be achieved by the company in the discharge of treated effluents from its Effluent Treatment Plant. It is true that the jurisdiction under Article 226 of the Constitution of India cannot be invoked by the authorities of a factory which is disregarding the pollution control measures imposed by the WPC.15795/13 10 concerned statutory authority. However, when it is alleged that a company is guilty of causing environmental pollution, those who raise such allegations are bound to substantiate such allegations also. In so far a this case is concerned, a counter affidavit has been filed by the Kerala State Pollution Control Board. In that affidavit, it is stated that the petitioner has been issued a consent to operate which is valid till 30/6/2013. In the affidavit the Board has further stated thus:

"4. Based on the complaints filed by the Action Council against air & water pollution from the company, Government had appointed an Expert Committee, to study and report the alleged pollution from the company. The Government as per G.O.(Rt)/29/2011/1D, dated 27.01.2011 had appointed eight member Export Committee headed by Smt.B. Lakshmikutty, Head of Department (Chemical Engineering), Government Engineering College, Thrissur to submit its report within three months.

5. The Expert Committee had submitted report to Government and the Government as per G.O.(Rt) No.1376/2011/1D, dated 03.11.2011 had approved the study report and ordered to implement the following thirteen recommendations by the company.

WPC.15795/13 11

1) Reduce water consumption by using appropriate technology and water recycling method.

2) Construction of new biogas plant.

3) Improve the efficiency of DCP bag filters by installing additional bag filters.

4) Stoppage of semi-dried solid waste transportation to outside.

5) Execution of the directives from the PCB and complete adherence to pollution control norms.

6) Prevention of order from the company using modern technology.

7) Take sincere steps for the benefit and upbringing of local people and there by achieve their goodwill.

8) Formation of green belt along the company boundary.

9) Prevention of odour related pollution in the area.

10) Consider continuous monitoring system for assessing the smell in the surrounding.

11) Formation of monitoring committee comprising local body members, trade union members, management and health department.

12) Take steps to remove the apprehensions regarding outlet water discharge system.

13) Cleaning of Chalakudy river to remove the sediments from the river bed.

6. The company's new biogas plant which was under

trial run had been collapsed on 01.11.2011 and the WPC.15795/13 12 sludge was partially spilled over the surroundings. Then the company was ordered to close down on 03.11.2011. The Honourable Chief Minister convened a meeting on

07.12.2011 to discuss the issues of the company in presence of local MLAs, Local Body Authorities, Company Authorities, NGIL Action Council members and other Government Departments. It was decided to strictly implement the 13 directions of the Expert Committee as approved by the Government. In addition to the above 13 recommendations, 3 more items were included in this meeting as follows:

1) Provide delay pond for treated effluent.

2) Provide bag filters to reduce suspended matter.

3) Enclose the crushed bone unloading area for reducing the smell.

As per the decision in the meeting convened by the Chief Minister on 07.12.2011, the closure order was revoked with effect from 13.12.2011.

7. The Action Plan submitted by the Company to implement the above 16 recommendations were approved by the Board. A copy of the same is produced herewith and marked as Exhibit.R9(b). The Kerala State Pollution Control Board, District Office, Thrissur had closely monitored the progress in implementing the Action Plan and submitted monthly reports to Head office of the Board. A copy each of the monthly reports from January 2012 to July 2013 are produced herewith and marked as Exhibit.R9(c). The company has implemented all the recommendations within the stipulated time as per the Action Plan except the cleaning of Chalakudy River (13th WPC.15795/13 13 recommendation). The compiled analysis report of the treated effluent sample collected from the outlet of the company from 01.02.2012 onwards is produced herewith and marked as Exhibit.R9(d). The Chairman of the Board had also reviewed the progress in implementing the Action Plan in a quarterly basis and submitted a report to Government. It is respectfully submitted that the Effluent Treatment Plant consisting of equalization tank, coagulation tank, flocculation tank, primary clarifier, aeration tank, secondary clarifier, tertiary clarifier, pressure sand filter, delay pond, rotary vaccum filter and filter presses were found to be working continuously and no water is let into the river without treatment. The unit had installed 4 bag filters for the DCP plant and chimney of hot air generators are having a height of 30m from ground level to control particulate matter emissions. The unit had provided a bio filter for the meat meal plant and crushed bone charging area for reducing odour problem. The stack monitoring and ambient air quality monitoring were conducted in the factory premises on 27.11.2012 and the concentration of particulate matter and suspended particulate matter were within the limit. Copy of analysis report dated 28.11.2012 are produced herewith and marked as Exhibit.R9(e).

8. It is respectfully submitted that this respondent had submitted report dated 30.05.2013 and 07.06.2013 as per Exhibit P1 and P2 to District Collector, Thrissur, following the fish death at Pulikkakadavu in Chalakudy River on 29.05.2013. Copy WPC.15795/13 14 of Analysis Report No.55356 dated 04.06.2013, and Analysis Report No.K049519/2013 dated 12.06.2013 of the samples collected from the Vanpuzhakkad Temple Kadavu on 29.05.2013 are produced herewith and marked as Exhibit.R9(f). As per the above analysis reports, it is seen that the pH is slightly low (standard is 6.5 - 8.5) where as all other parameters are within the river water standards. The above analysis reports show that the first death is not due to the effluent from the factory."

17. The only contra evidence that was relied on before us was Ext.R10(b) which is a tabulated statement of analysis report of waste water collected by the Pollution Control Board on 23.09.2013 from the adjacent paddy field of the petitioner. According to the 10th respondent, this report shows that the permissible limits specified by the Board are not achieved in respect of BOD and COD. However, a close perusal of the tabulated statement would show that the samples drawn from the treated water coming through broken pipe at the first breakage point and the 2nd breakage point satisfied the permissible limits specified by the Board. This report also shows that it is in respect of samples of water drawn from the WPC.15795/13 15 paddy field that the permissible limits are not satisfied. Reason for such variation is not explained and therefore, relying on this document alone, it cannot be concluded that the treated effluents discharged from the Effluent Treatment Plant of the Company do not satisfy the parameters prescribed the Pollution Control Board.

18. It is true that in the affidavits filed by the party respondents, particularly respondents 5 to 7, raised allegations agianst the company that it is causing environmental pollution. However, they have not produced any dependable materials substantiating their contentions. In such circumstances and especially in view of the report filed by the Pollution Control Board, on the material available before us, we are not in a position to conclude that the petitioner is not complying with the parameters specified by the Board for discharging its treated effluents from the Effluent Treatment Plant. WPC.15795/13 16

19. It is true that the respondents 5 to 7, the 10th respondent and respondents 11 and 12 have uniformly contended that the petitioner has laid pipes and underground cables and have also put up installation without obtaining sanctions from the concerned competent authority. This averment has been denied by the company. In our view, for the disposal of this writ petition, it is not necessary to decide on this contention and we clarify that if authority has any such complaint, it is for the authority concerned to take action in the matter in accordance with law.

20. It was contended before us that the discharge pipes laid are damaged and that as a result the pumping capacity of the treated effluents was considerably reduced. According to the petitioner, due to obstruction offered by the agitating crowd, it is prevented from repairing the pipes, and therefore, it had to reduce the production capacity to 10%. It was in these circumstances, protection was sought for repairing the pipes. However, the request of the petitioner for an order enabling WPC.15795/13 17 them to repair the pipes was resisted by the party respondents contending that such an order will be contrary to Ext.P24 order passed by the Civil Court and that an order to that effect should not be passed in the absence of the concerned land owners also in the party array before us.

21. However, the argument raised by the Senior Counsel for the petitioner was that repair of these pipes is possible without even entering into the property of the individuals concerned or in any manner disobeying Ext.P24 order. As far as the necessity to hear the land owners is concerned, nobody has a case that the pipes were laid through the properties of the private parties unauthorisedly and therefore, we can justifiably presume that the pipes were thus laid by the company authorisedly only. If the pipes were laid with due authorization, the company which has laid the pipes should also be entitled to maintain such pipes. In any case, since petitioner is confident of repairing the damaged pipes without entering into the properties, this issue may not be of much WPC.15795/13 18 relevance and hence we leave it at that. However, we should not be understood as authorizing the petitioner to disobey Ext.P24 order passed by the Civil Court, which restrains it from trespassing into the plaint schedule property.

22. Therefore, while we do accept that the people in the locality are entitled to live in an unpolluted environment, there is nothing before us to enter a finding that the petitioner is discharging untreated or unsatisfactorily treated effluents from its Effluent Treatment Plant. When a company is thus functioning, it is entitled to do so without any obstruction either from respondents 5 to 7 or from their sympathizers. If such obstruction is allowed to continue, that will not only defeat the rights of the petitioner to carry on its trade, but will also violate the rights of a large number of its workers to continue their employment and earn their livelihood. Any failure of the police to respond to the request of the petitioner for adequate protection will only be their failure to discharge WPC.15795/13 19 statutory duties, entitling the petitioner for relief from this case.

23. Although respondents 5 to 7 have disowned Ext.P3, if what is stated therein has any truth, it contains a real threat. Even otherwise, it is a fact that due to the agitations under the leadership of respondents 5 to 7, the situation prevailing in and around the company is tense and can turn violent any time. Such incidents have happened on many occasions in the recent past and it is the case of the petitioner that inspite of requests made, police did not render protection. In this context, we again state that it is the duty and responsibility of the law enforcement agencies to maintain law and order and to afford adequate protection, when a citizen faces threat and when his assets are in peril.

24. Be that as it may, fact remains that there is an apprehension prevailing in the neighbourhood that the company is causing pollution to the environment. The company cannot remain WPC.15795/13 20 insensitive to such apprehensions of the people in the neighbourhood and it is its responsibility to take such steps as are necessary to remove such apprehensions. In our view, this can be achieved if a study is conducted by NEERI and its recommendations should be implemented by the company.

25.On receipt of notices impleading it in this writ petition, the Director of NEERI has responded by his letter dated 01.11.2013, informing the Registry that the period required to complete the study and to submit the report would be 90 days and that the fee should be borne by the petitioner. Therefore, NEERI should conduct a detailed study on the pollution status with respect to the Air, Water and Solid waste generated by the petitioner, apart from examining the adequacy and efficacy of the pollution control facilities installed by the petitioner. The report should contain necessary recommendations to improve the situation.

WPC.15795/13 21

26.For the aforesaid reasons, we dispose of the writ petition with the following directions:

i. We direct respondents 1 to 4 to afford adequate and effective police protection to the petitioner, to maintain law and order, for the smooth functioning of the petitioner's factory and for repairing the damaged pipes. They will also ensure that the 5th respondent, its men and sympathizers do not cause any obstruction to the functioning of the company or damage to its installations, pipes and other properties.

ii.We direct NEERI to conduct a detailed study into the pollution status with respect to the Air, Water and Solid waste generated from the petitioner's factory and the adequacy and efficacy of the pollution control measures installed by the company. On completion of the study, NEERI will submit its report to the Company, Pollution Control Board and to the District WPC.15795/13 22 Collector, Trichur with its recommendations and also specifying the time required for the implementation of the recommendations.

iii.The company shall thereupon implement the recommendations of NEREI within the time specified in the report.

iv.We direct the District Collector, Trichur and the Pollution Control Board that they shall ensure that the recommendations of NEERI are implementd by the company.

v. If it is noticed that the company has committed any default in this respect, it shall be the duty of the District Collector and the Pollution Control Board to bring it to the notice of this Court for passing appropriate directions in the matter.

WPC.15795/13 23

vi.The entire expenses of the study to be undertaken by NEERI shall be borne by the petitioner.

Sd/-

ANTONY DOMINIC, Judge.

Sd/-

P.D.RAJAN, Judge.

kkb.

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