IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 3685 of 2003(L)


1. BINDU, AGED 32 YEARS,
                      ...  Petitioner

                        Vs



1. TRIPUNITHURA MUNICIPALITY,
                       ...       Respondent

2. KERALA STATE POLLUTION CONTROL BOARD,

3. CHIEF ENGINEER,

4. DR.K.K.R. VARRIER, DIRECTOR,

                For Petitioner  :SRI.V.PHILIP MATHEW

                For Respondent  :SRI.BABU JOSEPH KURUVATHAZHA,SC,POLU.C.

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :28/07/2010

 O R D E R
                               S. Siri Jagan, J.
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                         O.P. No. 3685 of 2003
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                Dated this, the 28th day of July, 2010.

                              J U D G M E N T

By sale deed No. 3242/99 of S.R.O, Tripunithura the petitioner purchased 5.4 cents of land in survey no. 1199/2 of of Nadama Desom on 16-12-1999. The said 5.4 cents of land was part of 23 cents. In respect of the balance property, the 4th respondent acquired rights and started a hospital therein. For the purposes of treating waste water from the hospital, the 4th respondent started construction of a waste water treatment plant, for which an underground tank was to be constructed. It is while the 4th respondent was constructing that tank, the petitioner has filed this original petition challenging the same. According to the petitioner, the establishment of the waste water treatment plant very near to the petitioner's house would cause inconvenience to the petitioner, insofar as it is likely to cause pollution. Complaints were filed by the petitioner before the Municipality and other authorities. Initially, there was a stop memo issued by the Municipality. But, ultimately, by Ext. P6, the Tripunithura Municipality granted permission to the 4th respondent to complete the construction on condition that the 4th respondent obtains consent from the Kerala State Pollution Control Board for operating the plant. The petitioner is challenging Ext. P6 order seeking the following reliefs:

"i. Issue a writ of certiorari or other appropriate writ, order or direction quashing Ext. P6.

ii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 3 to take immediate steps to close down the Waste Water Treatment Plant referred to in Exts.P2 to P5 being constructed by the 4th respondent.

iii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to consider and  O.P.. No. 3685/2003 -: 2 :- take appropriate action on Ext. P5 within a time limit to be specified by this Hon'ble Court.

iv. Pass an order of injunction restraining the 4th respondent or any others under him or for him from constructing or using the Waste Water treatment plant mentioned in Exts.P2 to P5 pending disposal of the O.P."

2. According to the petitioner, the waste water treatment plant is constructed against the provisions of the Environment Protection Act, 1986 and Rules, the Water (Prevention and control of Pollution) Act, 1974 and Rules and the Air (Prevention and Control of Pollution) Act, 1981 and Rules. The petitioner also alleges that although ostentatiously the plant is for treating waste water, the real intention of the hospital is to dump all bio-medical waste therein.

3. The respondents have filed two counter affidavits and have now produced documents in support of the contention that the waste water treatment plant would not cause any pollution to anybody and that the same is being constructed after obtaining consent from the Pollution Control Board. The Pollution Control Board has also filed a counter affidavit wherein, they have stated that if the 4th respondent complies with the conditions specified in the consent, no pollution would be caused to the petitioner's well or the environment due to the working of the sewage treatment plant.

4. I have considered the rival contentions in detail.

5. The original petition was filed on 31-3-2003. Much water has flown under the bridge over the past 7 years. In fact, the petitioner herself has leased out the building adjacent to the 4th respondent's hospital, wherein the petitioner alleges likelihood of pollution and they are using the said building including the well as is evident from Ext. R4(d) lease deed executed by the petitioner in favour of the 4th respondent. The contention of the petitioner in the original petition is  O.P.. No. 3685/2003 -: 3 :- that the waste water treatment plant of the 4th respondent would cause pollution to the well of the petitioner. The petitioner has not produced any material before me to show that the water in the well of the petitioner is already contaminated because of the waste water treatment plant established by the 4th respondent. On the other hand, the Pollution Control Board has been renewing the consent issued to the 4th respondent, the latest of which is produced as Ext. R4(c), is valid up to 30-6-2012. In the absence of any evidence to the contrary produced by the petitioner, I cannot enter a finding that the waste water treatment plant established by the 4th respondent would cause pollution to the water of the petitioner's well.

6. The petitioner raises a contention that the 4th respondent has not obtained permission under Section 448 of the Kerala Municipality Act. But, such a contention was not raised in the original petition at all. For the first time, the petitioner is raising that contention at the time of hearing the original petition today. I do not think that the 4th respondent is expected to answer that contention at this late stage, which is not supported by any pleadings in the original petition. Therefore, I am not inclined to consider that contention in this original petition.

In view of my above findings, there is no merit in the original petition and accordingly the same is dismissed.

Sd/- S. Siri Jagan, Judge.

Tds/