Kerala High Court
Janasamparka Samithy vs Chennam Pallippuram Grama Panchayat on 18 February, 2022
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
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 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
WP(C) NO. 171 OF 2022
PETITIONER:
JANASAMPARKA SAMITHY BEARING REG. NO.ER/431/2011
ALAPPUZHA DISTRICT COMMITTEE, THRICHATTUKULAM,
REPRESENTED BY ITS SECRETARY C. P. PADMANABHAN,
S/O. LATE PAPPU, AGED 74, CHALIL, THRICHATTUKULAM,
PANAVALLY, CHERTHALA, THRICHATTUKULAM P. O.,
CHERTHALA - 688 526.
BY ADVS.
AYSHA YOUSEFF
MOLLY JACOB
JOBI.A.THAMPI
SHOUKATH HUSAIN
RESPONDENTS:
1 CHENNAM PALLIPPURAM GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY,
CHENNAM PALLIPPURAM P. O., ALAPPUZHA - 688 541.
2 KERALA STATE SINGLE WINDOW CLEARANCE BOARD
GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF
SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3 KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD.
REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR,
KESTAN ROAD, KOWDIAR, THIRUVANANTHAPURAM - 695 003.
4 DISTRICT MEDICAL OFFICER
ALAPPUZHA, KOTTARAM BUILDING,
GENERAL HOSPITAL, ALAPPUZHA - 688 011.
5 ENVIRONMENTAL ENGINEER
KERALA STATE POLLUTION CONTROL BOARD,
ALAPPUZHA - 688 013.
W.P.(C)No.171 of 2022
2
6 DISTRICT COLLECTOR
COLLECTORATE, ALAPPUZHA, PIN - 688 001.
7 COASTAL ZONE MANAGEMENT AUTHORITY
REPRESENTED BY ITS MEMBER SECRETARY, SASTHRA
BHAVAN,
PATTOM, THIRUVANANTHAPURAM, PIN - 695 004.
8 THE DEPUTY MANAGER
MEGA FOOD PARK, KSIDC I.G.C.,
PALLIPPURAM, PIN - 688 541.
9 THE SUB DIVISIONAL MAGISTRATE
ALAPPUZHA - 688 001.
10 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT OF
KERALA,
INDUSTRIES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
11 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF
ENVIRONMENT,
FOREST AND CLIMATE CHANGE, 3RD FLOOR VAYU
BUILDING,
INDIRA PARYARAN BHAVAN, ALIGANJ, NEW DELHI - 110
003.
BY ADVS.
P.U.SHAILAJAN
SRI.M.P.PRAKASH, SC, KCZMA
SRI.MINI GOPINATH,CGC,
SRI.K.R.RANJITH, GP,
SRI. T.NAVEEN (SC)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 18.02.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)No.171 of 2022
3
JUDGMENT
Dated this the 18th day of February, 2022 S.Manikumar, C.J.
This is a public interest litigation filed by a registered society, seeking for the following reliefs:
"(i) To call for the records leading to the issue of Ext.P4 issued by 2nd respondent directing to issue clearance for laying the pipe line for carrying treated water from CETP of Mega Food Park immediately on receiving the minutes without waiting for clarification from Pollution Control Board and P6 issued by 1 st respondent granting permission to lay pipeline to discharge the treated water to Kaithapuzha kayal through it and quash Ext P4 &P6 by the issue of a writ of certiorari.
(ii) To issue a writ of mandamus commanding the respondents 3 & 8 to remove the pipe laid at a length of about 250 meters from Mega Food Park, Pallippuram to the Kaithppuzhakayal for discharging the treated effluent from its Mega Food park, in violation of the Ext.P10 Notification and other laws and restore the area into its original lie situation and state of affairs.
(iii) To declare that the respondents 3 & 8 have no W.P.(C)No.171 of 2022 4 authority to lay pipe lines in the Kaithappuazhakayal which is a part of the Vembanad lake without obtaining consent from the 7th respondent and approval of the State Government and violating various laws.
(iv) Declare that the 2nd respondent is not entitled to grant permission or clearance for laying pipe from the Mega Food park at Pallipuram to the Kaithapuzha Kayal which is a part of Vembanad lake in violation of Ext.
P10 Notification."
2. According to the petitioner, a pipeline is laid by the 3 rd respondent namely the Kerala State Industrial Development Corporation Limited, to a water body namely Kaithapuzha Kayal, which is a part of Vembanad lake lying in CRZ-III without the consent of the Coastal Zone Management Authority - the 7th respondent. It is the case of the petitioner that in Exhibit P10 notification issued by the Ministry of Environment, Forest and Climate Change dated 18.01.2019, Vembanad lake is included in the critically vulnerable area and activities to be carried out therein are mainly intended for the benefit of the fishermen folk and local communities. That apart, it is submitted that laying of the pipeline, to discharge the treated water to the lake is not included in the notification. But the 2 nd W.P.(C)No.171 of 2022 5 respondent ie., the Kerala State Single Window Clearance Board as per Exhibit P4 minutes of the 26th meeting granted clearance to lay pipes for the purpose of the Kerala Industrial Development Corporation, in order to drain out the treated effluents of the Mega Food Park, constructed by it.
3. According to the petitioner, as per Section 9 of the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999, the power of the Board is only recommendatory and that too, for setting up of industrial undertakings in the State. It is the case of the petitioner that the Chennam-Pallippuram Grama Panchayat - the 1st respondent has already decided not to give consent for the purpose of laying the pipes on the basis that the wastewater has to be recycled and used in the premises. However, it has accorded sanction on the basis of the resolution of the Single Window Clearance Board dated 18.03.2020 to lay the pipeline and which, according to the petitioner, cannot be done without securing permission from the Coastal Zone Management Authority. Other contentions W.P.(C)No.171 of 2022 6 are also raised to make an attempt to substantiate that the action of the 3rd respondent is illegal, arbitrary and liable to be interfered with by this court exercising the powers under Article 226 of the Constitution of India.
4. The Kerala State Industrial Development Corporation, has filed a detailed counter affidavit refuting all the allegations and also submitted that the project of Marine Mega Food Park was completed with a total project cost of Rs.128 crores as per the Mega Food Park Scheme of the Ministry of Food Processing Industries, Government of India, which has sanctioned a grant in aid of Rs.50 crores, and Rs.6 crores availed from the Banks for the project and rest of the amounts are provided by the Government of Kerala. That apart, it is pointed out that the project is in an area of 84 acres of land in Pallippuram, Cherthala, Alappuzha District and focuses on creation of basic infrastructure for sea food processing industries. It is further submitted that at present lands are allotted to 30 units and 9 units started functioning; out of which 7 have started cold storage and packing facilities. W.P.(C)No.171 of 2022 7 It is further submitted that two units are sea food processing units and those units have established their own effluent treatment facilities. As regards the apprehension expressed by the petitioner in the writ petition, with respect to the attempt of the 3rd respondent to discharge treated effluents to the Kaithapuzha kayal; it is dealt with in the counter affidavit in the following manner:
"5. This respondent is establishing a Common Effluent Treatment Plant (CETP) for the industrial units in the Mega Food Park. This respondent has also obtained consent from the Pollution Control Board to establish the CETP with No.PCB/ALP/ICE-1446/2019 dated 8.2.2019, which is valid till 31.3.2023. After completion of the work of CETP the Pollution Control Board issued consent to operate the plant on 22/12/21 with No.PCB/ALP/ICO/7643/16514614/2021. The Kerala State Pollution Control Board is the statutory authority for providing consent to the projects on pollution which includes water pollution, air pollution, bio-medical waste management, manufacture of plastic carry bags and hazardous waste handling and management. The consent so issued by Kerala State Pollution Control Board is done only after overall compliance on all facets of environment. It is also submitted that this respondent will operate the CETP, only after complying all the terms and W.P.(C)No.171 of 2022 8 conditions prescribed by the Pollution Control Board and a portion of the treated water will be used in the area of the Food Park for various activities and the remaining water will be discharged through the pipeline to the Kaithapuzha Kayal. The treated water will be discharged through the pipeline to the Kaithapuzha Kayal only after testing of effluents and assessing that the discharged water is as per the stipulated norms. The Kerala State Pollution Control Board will constantly monitor the operations of CETP through an online monitoring system. Thus, the water will be discharged to the Kaithapuzha Kayal after taking all precautions and there will be no untreated waste or anything harmful for the water and inhabitants in the Kaithapuzha Kayal or to the people depending on the kayal. So, the allegations of the petitioner in this aspect are without any basis.
6. This respondent most humbly submits that, they had approached the Kerala State Single Window Clearance Board (for short the 'State Board') to get permission to draw the pipeline to the Kaithapuzha Kayal to discharge the treated water from the CETP in the Marine Mega Food Park at Alappuzha by crossing the Panchayat road and further through the canal bed belonging to the Panchayat. The 26th meeting of the State Board held on 18.3.2020 discussed the matter in detail and decided to issue clearance for laying the pipeline carrying treated water from CETP of Marine Mega Food Park to cross the Panchayat road and further through the canal bed belonging to the Panchayat. The W.P.(C)No.171 of 2022 9 Ext.p4 decision of the Board was communicated to the 1 st respondent. Accordingly, the 1st respondent granted permission to draw the pipeline as stated in Ext.P4 and issued Ext.P6 permission to discharge the treated water to the Kaithapuzha Kayal. The State Board consists of the Secretaries of various Government Departments including the Secretary of the Local Self Government Dept., Environment Dept. and Chairman of Kerala State Pollution Control Board etc. as stated in S.3 of the Kerala Industrial Single Window Clearance Boards & Industrial Township Area Development Act, 1999 (Act 5 of 2000) (for short 'Act 5 of 2000'), which is amended as per the Kerala Investment Promotion and Facilitation Act, 2018 (Act 14 of 2018). The Single Window Clearance Board is established for the purpose of speedy issuance of various licenses, clearances and certificates and the decision of the State Board Is appealable before the State Government as per S.12 of the Act 5 of 2000. The Ext.P7 and Ext.P8 decisions are taken by the Panchayat Committee before the Ext.P4 decision and Ext.P6 consent letter.
7. This respondent most humbly submits that Chennam Pallippuram Grama Panchayat is included in the CRZ-III Category. In Ext.P10, CRZ Regulations, it is very specifically stated in Regulation 5.3 that the activities permitted in CRZ-IB shall also be permissible in CRZ-III. The Regulation 5.1.2 states about the activities permissible in CRZ-IB and in Sub-clause (ix) it is stated that "treatment facilities for waste and effluence and W.P.(C)No.171 of 2022 10 conveyance of treated effluents." Thus, the conveyance of treated effluents is a permitted activity in CRZ-IB and also in CRZ-III. All the averments to the contrary are not correct and is hereby denied. The averment in the Writ Petition that the laying of pipeline is permissible only under CRZ-IV is not correct and is hereby denied. In Regulation 5.4 (CRZ-IV), in sub-clause (xiii), it is stated that "Pipelines, conveying, systems including transmission lines' is a permitted activity in CRZ-IV. This respondent submits that this clause is not applicable in this case. As per Regulation 5.1.2 (ix) of Ext.P10 CRZ Regulation, the conveyance of treated effluents from the Marine Mega Food Park at Alappuzha to the Kaithapuzha Kayal is a permitted activity. That is, the permission as stated in regulation 7 is required for the conveyance of treated effluents only and not for laying pipeline. This respondent has not started the conveyance of treated effluents and it will be started only after getting permission from the CRZ authorities. All the averments to the contrary are not correct and are hereby denied by this respondent. There is no violation of any Rules or any Laws by this respondent as stated by the petitioner."
5. As directed by this court, a report is filed by the Environmental Engineer, Kerala State Pollution Control Board, District Office, Alappuzha - the 5th respondent. Relevant portions of the same reads thus:
W.P.(C)No.171 of 202211
"3. It is respectfully submitted that the 8th respondent is establishing a Megafood Park, mainly focusing on the seafood processing sector, in landed property admeasuring about 84 Acres of land at Pallippuram Cherthala, Alappuzha district. It is submitted that the above extent of land included in the Industrial Growth Centre belongs to Kerala State Industrial Development Corporation (KSIDC), 7th respondent herein.
4. In order to establish a Megafood Park, it is essential that a Common Effluent Treatment Plant (CETP) is put in place for treating large quantities of effluent generated by each individual Industrial Units in the Industrial Park. For the above purpose, the 8th respondent has submitted an application on 18-4-2018 for obtaining consent to establish CETP having capacity of 2 MLD, along with supporting documents like design, proposals etc. of the detailed Effluent Treatment Plant. After site inspection, the Board has issued Consent to Establish to the Unit on 8-2-2019. As per that, the treated effluent shall be reused to the maximum extent and the remaining shall be disposed off safely.
5. After completing the installation of CETP, the Chief Executive Officer of the 8th respondent Mega Food Park has submitted an application for Consent to Operate on 29-10-2021. An inspection was carried out on 2-11- 2021. In the said inspection it was found that the Unit has installed a full-fledged ETP having various Units, such as coarse Screen, fine screen, oil and grease trap, equalization tank, daf system, mbbr tank, tube settler, aeration tank, W.P.(C)No.171 of 2022 12 secondary clarifier, filter feed tank, dual media filter, activated carbon filter, treated effluent tank, sludge collection tank, filter press, chemical dosing tank and sludge thickener. It may be humbly submitted that the CETP is provided with primary, secondary and tertiary treatment units which are adequate for achieving parameters within desirable limits as per the norms. During the inspection it was found that no industrial unit has started operation and many of the Units were under construction and hence effluent generation has not started. Board has issued Consent to Operate on 22-12- 2021, with validity upto 31-3-2023 for 2 MLD Effluent Treatment Plant.
6. It is submitted that the 8th respondent authority has informed that they have laid a pipeline extending upto 950 meters into the lake for discharging of the treated effluent. As per the Consent to Operate issued by the Board the treated effluent shall be re-used to the maximum extent for irrigation and the remaining shall be disposed of safely via soak pit. In order to discharge finally treated water into the lake via pipeline, the unit has to obtain necessary consent variation orders. A letter dated 14.01.2022 was issued in order to apply for Consent variation Order as and when sufficient volume of effluent starts generating for the proper working of CETP. However, they have not applied for a Consent variation Order yet. It is submitted that the parameters of the treated effluent could be analyzed only when effluent generation from the Units are started.W.P.(C)No.171 of 2022 13
7. It is respectfully submitted that Rule 3 of the Environment (Protection) Rules, 1986 (hereinafter referred to as EP Rules) prescribes the standards for emission or discharge of environmental pollutants. Rule 3 (1) of E.P. Rules reads as follows:
"3. Standards for emissions or discharge of environmental pollutants: (1) For the purposes of protecting and improving the quality of the environment and preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in Schedules I to IV.
SI.No.55 under Schedule I deal with the standards to be achieved in respect of various parameters in connection with the establishment of Common Effluent Treatment Plants. Vide notification dated 1-1-2016 the entries under Sl.No.55 was substituted as per the Environment (Protection) Amendment Rules, 2015. The above provision prescribes, among others, the treated effluent quality standards of various parameters into Inland Surface Water, On land for Irrigation, and to Sea. Notification, S.O. It is submitted that the Kaithapuzha kayal ıs a large water body and the discharge of treated effluent into the lake will not detrimentally affect the environment, if the standards prescribed under Annexure R5(b) in respect of various parameters therein are maintained. However, such discharge of treated effluent can only be after obtaining necessary variation order from the Board. It is only then the Board can monitor the efficacy of the Common Effluent Treatment Plant established by the 8th respondent. It is submitted that the Board is not the W.P.(C)No.171 of 2022 14 authority to examine whether the establishment of CETP and laying of the pipeline into the lake, comes within the CRZ or not."
6. On a reading of the report it is categoric and clear that the Pollution Control Board has issued, consent to establish dated 07.02.2019 and later, the consent to operate dated 22.12.2021, by which, the 3rd respondent has the validity period upto 31.03.2023 for 2 MLD effluent treatment plant. However, it is clear that as per the consent to operate, issued by the Board, the treated effluent shall be reused to the maximum extent for irrigation and the remaining shall be disposed of safely via a soak pit. It is also clear that in order to discharge finally treated water into the lake via pipeline, the unit has to obtain the necessary consent variation order.
7. The Kerala State Industrial Development Corporation, which has carried out the constructions on behalf of the Mega Food Park, has clearly specified in its counter affidavit that it will not discharge the treated effluent without securing necessary clearance from the Coastal Zone Management W.P.(C)No.171 of 2022 15 Authority.
8. Learned standing counsel for the Coastal Zone Management Authority has submitted that if any application is submitted by the industry, it would be considered by the said authority taking into account the existing parameters for granting such permission.
9. Therefore, reading together the report of the Pollution Control Board, the undertaking made by the Kerala State Industrial Development Corporation Limited and the submission made by the Coastal Zone Management Authority, we are of the considered opinion that the writ petition can be disposed of recording the above said aspects.
10. Heard, Mrs.Molly Jacob, learned counsel for the petitioner; Mr.K.R.Ranjith, learned Government Pleader appearing for respondent Nos.2, 4, 6, 9 and 10; Mr.P.U.Shailajan, learned standing counsel appearing for respondent No.3 - Kerala State Industrial Development Corporation Limited; Mr.T.Naveen, learned standing counsel for the Pollution Control Board; Mr.M.P.Prakash, learned W.P.(C)No.171 of 2022 16 standing counsel for the Coastal Zone Management Authority and Mrs.Mini Gopinath, learned Central Government Counsel appearing for the Union of India and perused the pleadings and materials on record.
11. It is an admitted fact that the pipeline is laid by the 3rd respondent to discharge the treated effluent to Kaithapuzha Kayal at a distance of 950 metres. The Pollution Control Board has granted the consent to operate with specific conditions by which at present the treated water has to be used within the premises of the Mega Food Park. It is clear from the report that if any variation is required to discharge the treated effluent to Kaithapuzha Kayal, a variation for consent to operate has to be secured by the industry. In that view of the matter, we are of the considered opinion that without securing adequate consent from the Pollution Control Board and the clearance from the Coastal Zone Management Authority, the Mega Food Park cannot drain out the treated effluent through the pipeline already laid to the Kaithapuzha Kayal, the water body in question. W.P.(C)No.171 of 2022 17
Since the 3rd respondent, the Kerala State Industrial Development Corporation, has undertaken that it will not drain out the treated effluent through the pipeline to the water body without securing appropriate clearance from the respective statutory authorities, we record the same and dispose of the writ petition accordingly.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv W.P.(C)No.171 of 2022 18 APPENDIX OF WP(C) 171/2022 PETITIONER'S EXHIBITS Exhibit P1 PHOTOCOPY OF THE CERTIFICATE OF REGISTRATION OF THE PETITIONER SOCIETY. Exhibit P1(a) TRUE ENGLISH TRANSLATION OF EXT.P1 CERTIFICATE.
Exhibit P2 PHOTOCOPY OF THE LETTER DATED 29.01.2018. Exhibit P2(a) TRUE ENGLISH TRANSLATION OF EXT.P2. Exhibit P3 PHOTOCOPY OF THE LETTER NO.D6-4888/2018 DATED 21.05.2018 BY THE DMO, ALAPPUZHA ALONG WITH REPORT.
Exhibit P3(a) TRUE ENGLISH TRANSLATION OF EXT.P3. Exhibit P4 PHOTOCOPY OF THE EXTRACT OF THE MINUTES OF MEETING HELD ON 18.03.2020.
Exhibit P5 PHOTOCOPY OF THE LETTER NO.KSIDC/TVM/IP-
160/2020 DATED 08.05.2020.
Exhibit P6 PHOTOCOPY OF THE COPY OF THE CONSENT ISSUED BY THE 1ST RESPONDENT PANCHAYAT DATED 12.05.2020.
Exhibit P6(a) TRUE ENGLISH TRANSLATION OF EXT.P6. Exhibit P7 PHOTOCOPY OF THE DECISION OF THE 1ST RESPONDENT PANCHAYAT TAKEN IN THE MEETING HELD ON 23.07.2019.
Exhibit P7(a) TRUE ENGLISH TRANSLATION OF EXT.P7. Exhibit P8 DECISION OF THE 1ST RESPONDENT PANCHAYAT IN THE MEETING HELD ON 26.02.2020.
Exhibit P8(a) TRUE ENGLISH TRANSLATION OF EXT.P8. Exhibit P9 PHOTOCOPY OF THE LETTER DATED 28.10.2020. W.P.(C)No.171 of 2022 19 Exhibit P9(a) TRUE ENGLISH TRANSLATION OF EXT.P9. Exhibit P10 PHOTOCOPY OF THE NOTIFICATION 2011, DATED 6TH JAN 2011.
Exhibit P11 PHOTOCOPY OF THE REPRESENTATION DATED 01.02.2021 SUBMITTED BY THE PETITIONER TO THE CHIEF SECRETARY WHO IS THE CHAIRMAN OF THE KERALA STATE SINGLE WINDOW CLEARANCE BOARD.
Exhibit P12 PHOTOCOPY OF THE REPRESENTATION DATED 06.02.2021 SUBMITTED BY THE PETITIONER TO THE 7TH RESPONDENT.
Exhibit P13 PHOTOCOPY OF THE JUDGMENT IN WPC NO.34799/11 FILED BY PETITIONER REPORTED IN 2013 (3) 677 SC 2ND RESPONDENT.
Exhibit P14 TRUE COPY OF THE RELEVANT PAGE IN THE WEBSITE PSC PRANTHAN, KERALA GEOGRAPHY WITH INFORMATION THAT VEMBANAD LAKE IS KNOWN BY DIFFERENT NAMES AT DIFFERENT PLACES, SUCH AS KOCHI KAYAL, PUNNAMADA KAYALM, VEERAN PUZHA, KAITHAPUZHA ETC.
//true copy// P.A. to Judge