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IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32451 of 2010(F)
1. DAVIS, S/O.KOCHUVAREED,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE CORPORATION OF THRISSUR,
3. KERALA STATE POLLUTION CONTROL BAORD,
4. THE SUPERINTENDENT OF POLICE,
5. THE ACCOUNTANT GENERAL,
For Petitioner :SRI.M.UNNIKRISHNA MENON
For Respondent :SRI.ASOK M.CHERIAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :11/02/2011
O R D E R
C.T. RAVIKUMAR, J.
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WP (C) Nos. 32451 of 2010
& 3827 of 2011
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Dated this the 11th day of February, 2011
JUDGMENT
Common issue based on common factual matrix posed for consideration in these writ petitions. Therefore, they were heard jointly and are being disposed of by this common judgment.
2. The 2nd respondent Municipal Corporation prepared a detailed project report for the Integrated Solid Waste Management System in Thrissur. The initial project under the system is the Kerala Sustainable Urban Development Project (KSUD project). While steps for its implementation was underway one Dr. Pathiyoor Gopinth who is a faculty of Kerala Agricultural University submitted another project report. After much deliberations it was decided to accept and implement the project proposed by Dr. Pathiyoor Gopinath and accordingly, Government directed the Corporation to execute an agreement with the Agricultural University after accepting the University as its implementing agency and appointing said Dr. Pathiyoor Gopinath as its implementing officer. In the meanwhile WP(C) No.21217/09 was instituted as a Public Interest Litigation for WP (C) Nos. 32451 of 2010 & 3827 of 2011 2 providing basic amenities and emergent medical relief to the pollution ridden people of Laloor area within the Thrissur Corporation. In the said writ petition, this court appointed a mediator/conciliator to resolve apprehension of the local public. The mediator/conciliator after due deliberation filed a report before this court on 27.02.2010. The said writ petition was heard and disposed of by a Division Bench of this Court as per judgment dated 17.01.2011. I will deal with the same a little later.
3. WP(C) No. 32451/2010 has been filed by one of the members of the Merchant Association in Thrissur, who is conducting a dry fish shop in stall No.109 of non-vegetarian market situated in the Sakthan Thampuran Nagar. It is prayed in the said writ petition for issuance of writ of mandamus commanding the 2nd respondent Corporation not to proceed with the construction of the waste treatment plant in the proposed area, viz. in Sakthan Thampuran Nagar, and also for a declaration to the effect that the 2nd respondent is not entitled to change the nature of the land notified as parking place for the vehicle coming to the Municipal market and further, that the 2nd respondent, Corporation is not entitled to construct any building or treatment plant in the heart of the city without obtaining WP (C) Nos. 32451 of 2010 & 3827 of 2011 3 proper authority and consent from the Pollution Control Board in a manner causing nuisance and posing health hazards to the general public and for such other reliefs. The latter writ petition has been filed by a resident of the Thrissur Corporation alleging illegality in the manner in which respondents are planing implementation of garbage disposal under the scheme proposed by the aforesaid Dr.R. Pathiyoor Gopinath who is the co- ordinator of the Laloor Model Waste Disposal Scheme. In the said writ petition it is mainly prayed for issuance of a writ of mandamus commanding the respondents 1 to 3 namely the Secretary of the Thrissur Corporation, the Thrissur Corporation and the Kerala State Pollution Control Board not to implement Exhibit P1 scheme without sanction or consent from the 4th respondent under the Water(Prevention and Control of Pollution) Act and Air(Prevention and Control of Pollution)Act. It is further prayed for issuance of writ of mandamus commanding the 3rd respondent not to use the six places mentioned in Exhibit P1 scheme for disposal of waste without a notification under Section 331 of the Municipality Act and to direct the Corporation to conduct a public hearing, i.e., affording an opportunity to the residents including the petitioner to object to the issuance of such notification before actually issuing such a notification. It is WP (C) Nos. 32451 of 2010 & 3827 of 2011 4 also prayed thereunder for issuance of a writ of mandamus commanding the 3rd respondent Corporation not to notify under Section 331 of Municipalities Act the places mentioned in Exhibit P1 as places for disposal of solid waste without taking into consideration the health and environmental impact of such notification.
4. In the former writ petition a counter affidavit has been filed by the second respondent, Thrissur Municipal Corporation. Along with the same a copy of the project namely Laloor Model for Solid Waste Management (for short LAMPS) was also produced. Exhibit R2(f) mentions the six places proposed for setting up the project. It includes Sakthan Thampuran Nagar as well. In fact the former writ petition is concerned only with the proposal to setting up project in Sakthan Thampuran Nagar. In the latter writ petition, in fact, the challenge is against setting up of plants, in terms of the projects in question, at in all the six places mentioned in Exhibit P1 scheme.
5. I may now deal with the contentions in WP(C) No. 32451/02. It is contended that as per Exhibit P1 notification dated 03.03.1983 the proposed place in Sakthan Thampuran Nagar has been notified as a parking place for the motor vehicles coming to the market. That apart, it is contended, in the light of WP (C) Nos. 32451 of 2010 & 3827 of 2011 5 Ext.P1 and the provisions under Section 331 of the Kerala Municipalities Act (for short 'the Act'), that every Municipality shall have to identify and notify suitable lands within or outside the municipal area for the purpose of final disposal of waste and, in the absence of a re-notification the place earmarked for parking in terms of Exhibit P1 cannot be made use for the purpose of setting up the project. It is further submitted, relying on the submission made in the affidavit filed by the 3rd respondent, the Environmental Engineer of the Kerala State Pollution Control Board, that the permission/consent from the Pollution Control Board has not so far been obtained for the purpose of setting up of the plant in question. The sum and substance of the contentions in the said writ petition is that setting up a Plant in terms of schemes would, ultimately, work out detrimental to the people as it is without considering the viability of setting up such a plant in Sakthan Thampuran Nagar which situates in the heart of the city, that the respondents are taking steps to set up a plant there. In short the contention is that Sakthan Thampuran Nagar shall not be permitted as a place to set up any plant under any of the three projects available to the Thrissur Corporation. According to the petitioner already there is a bio-gas plant in the place in question and on account of WP (C) Nos. 32451 of 2010 & 3827 of 2011 6 the improper attention on the part of the respondents, it is not functioning, now.
6. The main contention in the latter writ petition is that in the absence of a notification, in terms of the provisions under Section 331 of the Municipalities Act, the respondents are not entitled to set up any plant in any of the six places. In fact, such a contention has been made without any special reference to any of the above places mentioned in Exhibit P1. However, it is contended that the places proposed by Corporation for setting up of plants are not suitable for the same.
7. In the context of the rival contentions raised in these writ petitions it is relevant to refer to the decision of a Division Bench of this Court in WP(C) No. 21217/09. As already noticed herein before the said writ petition filed as public interest litigation mainly with the prayers for providing basic amenities and emergent medical relief to the pollution ridden people of Laloor area within the Thrissur Corporation. That writ petition was filed in the backdrop of an incident that took place in July, 2009. During the said period torrential rain resulted in accidental outflow of water from the existing Laloor water dumping yard and it awashed the nearby residences. The nearby wells were got contaminated. Evidently, after considering the rival WP (C) Nos. 32451 of 2010 & 3827 of 2011 7 contentions the Division Bench as per the judgment dated 17.1.2011 directed respondents 1 to 3 therein to ensure implementation of all the projects namely LAMPS, KSUD project and the proposals made by the conciliator. In fact, the project namely LAMPS got the approval from the Government and virtually as per order dated 14.05.2010 the Government ordered to execute an agreement with the University, recognizing the University as its implementing agency and appointing the aforesaid Pathiyoor Gopinath as its implementing officer. As per order dated 26.08.2010 Government accorded sanction to the Corporation to transfer 10% of the allotted amount viz.9.40 crores to Agricultural University as first installment to implement the project. Later in terms of the directions of the Government, the Corporation had signed an agreement with the Kerala Agricultural University, accepting the University as implementing agency of Laloor Model Project for Solid Waste Management (LAMPS) and appointing Dr.Pathiyoor Gopinath as its implementing officer on 28.8.2010. It is the said project that is produced by the respondents as Exhibit R2(f). Further, it is evident from the said judgment that Thrissur Corporation has already transferred 94 lakhs from the ADB Fund received by them for implementing KSUD project to the Kerala Agricultural WP (C) Nos. 32451 of 2010 & 3827 of 2011 8 University as the first installment on 28.08.2010. In paragraph 11 of the judgment dated 17.1.2011 it is stated thus: "Having scanned the materials placed on record and considered the submissions addressed at the Bar, we are convinced that the Thrissur Corporation and the State Government are acting in earnestness to contain the serious problem which have arisen over decades in Laloor and other parts of the Thrissur Corporation resulting from absence of scientific method for disposal of waste and garbage. The said writ petition was disposed of by the Division Bench as per judgment dated 17.1.2011 with certain specific directions. Respondents 1, 2, and 3 therein viz., Secretary of Thrissur Corporation, District Collector and the Secretary of Local Self Government Department were directed to ensure that Annexure VI project (Exhibit R2(f) herein) produced by the Corporation of Thrissur along with their action taken report dated 09.11.2010 is implemented without fail in the manner proposed therein subject to orders already passed by the Government in the context of that report. Further, they were directed to ensure that KSUD project of additional 7th respondent Suchithwa Mission is also implemented to the extent it did not conflict with the Laloor project. They are also directed to implement the proposals made WP (C) Nos. 32451 of 2010 & 3827 of 2011 9 by the conciliator appointed by this Court to the extent necessary in the light of Laloor Project and KSUD project". It is thus obvious that for the purpose of solid waste disposal, 3 projects have been prepared namely KSUD, LAMPS and the proposals of the mediator/conciliator. As per the judgment dated 17.1.2011 the Division Bench directed respondents 1 to 3 therein to ensure their implementation in terms of the judgment. Thus it is evident that after considering all aspects of the matter the Division Bench issued directions to the three authorities referred above to ensure implementation of R2(f) project which is produced in the former writ petition as Exhibit R2(f) without fail and in the manner proposed therein and subject to the orders already passed by the Government. When that be the case, I have no hesitation to hold that the petitioners cannot be heard to contend against the implementation of the said projects. In short, the prayer to restrain the Corporation from setting up of or taking steps for implementation of the scheme under Exhibit R2(f) is unsustainable. In fact, going by the said judgment, the Corporation is bound to implement the same. In the light of the said judgment, the respondents are bound to ensure implementation of all the three projects in the manner it is directed as per the said judgment. However, the question to WP (C) Nos. 32451 of 2010 & 3827 of 2011 10 be decided in these writ petitions is whether as part of implementation of the said projects Plants could be permitted to be set up at the six places including at Sakthan Thampuran Nagar, as identified by the 2nd respondent Corporation.
8. The learned counsel for the petitioner in WP(C) No. 32451/10 submitted that in troth, the petitioner is not against the implementation of the three projects whilst his grievance is against the choice of the places especially, Sakthan Thampuran Nagar, for setting up the plants as part of the implementation of the projects, that too, in total disregard to the prescribed procedures. According to the petitioner, in view of the fact that as per Exhibit P1 notification dt.03.03.1983 Sakthan Thampuran Nagar, was already been notified as a parking place in the absence of a re-notification, in terms of the provisions under Section 331 of the Kerala Municipalities Act, the said place cannot be used for the purpose of setting up of a plant as part of implementation of the projects. It is in that context, that a contention has been taken up in WP(C) 3827/11, that without issuing a notification in terms of Section 331 of the Kerala Municipalities Act, no place could be identified or used for final disposal of waste. According to the petitioners in these writ petitions, in respect of the six places referred to in Exhibit R2(f) WP (C) Nos. 32451 of 2010 & 3827 of 2011 11 no notification has been hither to, issued in terms of Section 331 of the Kerala Municipalities Act. The learned counsel for the petitioner, further submitted that in the light of the statements made in the counter affidavit filed by the 3rd respondent Sakthan Thampuran Nagar cannot be said to be suitable for setting up of such a plant. The 3rd respondent filed a counter affidavit on 11.11.2010 in the former writ petition. Respondents 7 and 8 have also filed a joint counter affidavit on 13.12.2010 in the said writ petition. In the counter affidavit filed by the respondents 7 and 8 it is stated thus:
" It is further submitted that the Pollution Control Board has already granted Authorization (as reported by the Corporation of Thrissur) to establish the Integrated Solid Waste Management System, including a processing plant at the project site at Laloor. Further, once the plant to be set up at the Sakthan Thampuran Nagar market is designed and finalized, the Thrissur Corporation will move the Pollution Control Board for Authorization for the amended plan".
It would definitely suggest that as regards the plant to be set up at Sakthan Thampuran Nagar market, the Thrissur Corporation is yet to receive authorization from the Pollution Control Board. In that context, it is relevant to refer to Rule 6 of the Municipal Solid Wastes (Management and handling) Rules, 2000. A scanning of the provision thereunder would reveal that the WP (C) Nos. 32451 of 2010 & 3827 of 2011 12 Central Pollution Control Board and the State Board or the Committees are having certain responsibilities for the purpose of setting up waste processing and disposal facility. The municipal authority or an operator of a facility is bound to submit an application to the State Board or the Committee and on its receipt the Board or the Committee is bound to examine the proposal before the issuing authorization. Sub rule (4) thereunder would reveal that an authorization issued would be valid only for a given period and after expiry of its validity a fresh authorization it to be obtain. Thus, a perusal of Rule 6 of the Municipal Solid Waste (Management and Handling) Rules, 2000 would reveal that an authorization from the State Board or the Committee of the Pollution Control Board is required for setting up of waste project process/disposal facility by Management Authority. That apart, as already noticed in terms of Section 331 of the Act place for final disposal of waste has not only to be identified but also to be notified. In the counter affidavit by respondents 7 and 8 it is further stated:-
"It is submitted that the waste water treatment plant is the proposal stage and the Municipal Corporation will have to seek consent from the Kerala State Pollution Control Board as per rule and without which it cannot be established"
9. In view of the position obtained as above, I am of the WP (C) Nos. 32451 of 2010 & 3827 of 2011 13 view that the contentions of the petitioners that an authorization from the Pollution Control Board and a notification identifying the places are required for the purpose of setting up of the plant cannot be said to be bereft of basis. In that context it is also relevant to refer to the stand taken by the respondents. In categorical terms, the respondents have stated that it would be implemented only after getting all the requisite permits and consent, as required under the relevant rules. In other words, going by the stand taken by the respondents it is evident that they would establish the Integral Solid Waste Management System including process plant at the project site, only after obtaining the requisite consent, permits and license, therefor. In fact, it is so specifically stated in the counter affidavit filed by the 2nd respondent Thrissur Corporation and also in the counter affidavit filed by the additional respondents 7 and 8. In the light of the said specific statements made in the said counter affidavits filed by the respondents, I am of the view that there is no reason for nursing any apprehension that the plants would be established without adhering to the provisions of law and procedures. It is also to be noted, in the context of the contentions, that in the light of the judgment of the Division Bench referred above in WP(C) No.21217/2009 the respondents WP (C) Nos. 32451 of 2010 & 3827 of 2011 14 are bound to implement the project referred therein, namely KSUD project, LAMPS and the proposals made by the mediator/conciliator in accordance with the directions therein. The petitioners cannot be heard to contend that they shall not be implemented. Therefore, the only question is whether plants in implementation of such projects could be established without obtaining the requisite consent, permits or license and without issuing the requisite notifications in terms of the provisions under the Municipalities Act. Nobody has a case that the said judgment gave any such right or liberty to the respondents. Therefore, there can be no doubt that all the mandatory provisions and procedures have to be complied with while implementing the projects and for that purpose while establishing the plants. As already stated, the respondents in their respective counter affidavits, have stated in unambiguous terms that the projects would be implemented only after obtaining the requisite consent, license and only after complying with all the formalities required under law. When that be the position, I think that the respondents cannot be restrained from pursuing further for the implementation of the three projects named above, in terms of the direction in WP(C) No. 21217/09 dated 17.01.2011 and in accordance with the relevant provisions WP (C) Nos. 32451 of 2010 & 3827 of 2011 15 of law and procedures.
10. In view of the directions of the Division Bench in the said Writ Petition and also considering the importance and inevitable requirement the respondents are bound to take appropriate steps, in furtherance of the said directions in tune with the provisions and procedures, expeditiously.
Writ petitions are accordingly, disposed of.
C.T. RAVIKUMAR, JUDGE.
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