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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
WEDNESDAY, THE 19TH DAY OF AUGUST 2015/28TH SRAVANA, 1937
WP(C).No. 10608 of 2011 (A)
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PETITIONER(S):
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1. VINOD GEORGE, S/O.A.M.GEORGE, AZHAKATHU HOUSE,
NEAR THIRUVALLA RAILWAY STATION
THIRUVALLA-689 111.
2. JOY THOMAS, S/O.K.K.THOMAS, KODIATTU HOUSE,
EAST OF THIRUVALLA RAILWAY STATION
THIRUVALLA-689 101.
3. SUSAMMA THOMAS, D/O.E.M.ZACHARIA,
MANAYIL HOUSE, OPPOSITE THIRUVALLA RAILWAY,
THIRUVALLA-689111.
4. JAMES THOMAS, S/O.E.T.THOMAS
EDATHUMPARAYIL, PENSION KUNNU, THIRUVALLA-689111.
5. RENJI VARKEY, S/O.M.P.VARKEY, NEAR
THIRUVALLA RAILWAY STATION, THIRUVALLA-689111.
6. GEORGE JOSHUA,S/O.JOSHUA VARGHESE,
MOOLAYIL HOUSE, EAST OF THIRUVALLA RAILWAY STATION
THIRUVALLA-689 105.
7. K.V.GEORGE,S/O.P.V.VARGHESE,PANDENPADAVIL
NEAR THIRUVALLA RAILWAY STATION, THIRUVALLA
PIN-689101.
8. P.A.ABRAHAM, S/O.P.V.ABRAHAM,
PAYYAMPALLIL HOUSE, PENSION KUNNU, THIRUVALLA
PIN-689111.
9. STANLY P.MATHEW,S/O.P.M.MATHEW,
PEEDIKACHIRAYIL, EAST OF THIRUVALLA RAILWAY STATION
THIRUVALLA-689101.
10. M.C.JOSEPH, S/O.M.C.CLITUS,
SANTHI BHAVAN, EAST OF THIRUVALLA RAILWAY STATION
THIRUVALLA-689101.
BY ADVS.SRI.N.SUBRAMANIAM
SRI.M.S.NARAYANAN
SRI.P.T.GIRIJAN
SMT.USHA NARAYANAN
W.P (C) No.10608 of 2011
: 2 :
RESPONDENT(S):
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1. UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF RAILWAYS,
RAIL BHAVAN
NEW DELHI - 110 001.
2. THE GENERAL MANAGER SOUTHERN RAILWAY,
PARK TOWN P.O., CHENNAI - 600 001.
3. THE DIVISIONAL MANAGER,SOUTHERN RAILWAY,
THIRUVANANTHAPURAM-695001.
4. THE KERALA STATE POLLUTION CONTROL BOARD
PARYAVARAN BHAVAN, THIRUVANANTHAPURAM-695001.
5. THE ENVIRONMENTAL ENGINEER,KERALA STATE
POLLUTION CONTROL BOARD, DISTRICT OFFICE
MAKKAMKKUNNU, PATHANAMTHITTA DISTRICT-689645.
6. THE DISTRICT COLLECTOR,PATHANAMTHITTA,
COLLECTORATE, PATHANAMTHITTA-689645.
R,R1 TO 3 BY ADV. SRI.C.S.DIAS, SC, RAILWAYS
R4 & 5 BY ADV. SRI. M.AJAY, SC, KERALA STATE POLLUTION
CONTROL BOARD
R6 BY SENIOR GOVERNMENT PLEADER SRI.C.S.MANILAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19-08-2015 ALONG WITH WP(C) NOS.12995/2011 & 29211/2009, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN W.P. (C) NO.10608 OF 2011
PETITIONER'S EXTS:
EXT.P1 TRUE COPY OF THE COMPLAINT FILED BY THE PASSENGER BEFORE
THE STATION MASTER, THIRUVALLA.
EXT.P2 TRUE COPY OF THE COMPLAINT MADE BY THE ACTION COUNCIL
OF PATHANAMTHITTA DISTRICT RAILWAY PASSENGERS.
EXT.P3 TRUE COPY OF THE COMPLAINT MADE BY THE ACTION COUNCIL
PATHANAMTHITTA DISTRICT RAILWAY PASSENGERS.
EXT.P4 TRUE COPY OF THE COMPLAINT MADE BY THE ACTION COUNCIL
OF PATHANAMTHITTA DISTRICT RAILWAY PASSENGERS.
EXT.P5 TRUE COPY OF THE MASS MEMORANDUM SUBMITTED BEFORE THE
MINISTER IN CHARGE OF STATE POLLUTION CONTROL BOARD,
TRIVANDRUM.
EXT.P6 TRUE COPY OF THE MASS REPRESENTATION SUBMITTED BEFORE THE
CHAIRMAN OF CENTRAL POLLUTION CONTROL BOARD, NEW DELHI.
EXT.P7 TRUE COPY OF THE COMPLAINT FILED BY THE DISTRICT RAILWAY
PASSENGERS ACTION COUNCIL BEFORE THE HUMAN RIGHTS
COMMISSION, KERALA STATE.
EXT.P8 TRUE COPY OF THE REPORT FILED BY THE ENGINEER OF
POLLUTION CONTROL BOARD BEFORE THE KERALA STATE HUMAN
RIGHTS COMMISSION.
EXT.P9 TRUE COPY OF THE INTERIM ORDER PASSED BY THE KERALA
STATE HUMAN RIGHTS COMMISSION.
EXT.P10 TRUE COPY OF PHOTOGRAPH.
EXT.P11 TRUE COPY OF PHOTOGRAPH.
EXT.P12 TRUE COPY OF PHOTOGRAPH.
EXT.P13 TRUE COPY OF THE LETTER PREFERRED BY THE RAILWAY
RESIDENTS ASSOCIATION.
EXT.P14 TRUE COPY OF THE ORDER PASSED BY THE KERALA STATE HUMAN
RIGHTS COMISSION.
EXT.P15. TRUE COPY OF THE NOTICE ISSUED BY THE ENVIRONMENT ENGINEER,
OFFICE OF KERALA STATE POLLUTION CONTROL BOARD,
PATHANAMTHITTA.
EXT.P16 TRUE COPY OF LETTER WROTE BY THE THIRUVALLA MEDICAL
MISSION HOSPITAL BEFORE THE MANAGER OF SOUTHERN
RAILWAY.
W.P(C) No.10608/2011
: 2 :
EXT.P17 TRUE COPY OF THE LETTER SUDARSHAN NETHRA CHIKILSALAYAM.
EXT.P18 TRUE COPY OF THE RESOLUTION ISSUED BY THE SECRETARY OF
THIRUVALLA MUNICIPALITY ALONG WITH COVERING LETTER.
EXT.P19 TRUE COPY OF THE COMMUNICATION OF AUGMENTATION OF GOODS
HANDLING FROM 32 BCN WAGONS TO 41 BCN WAGONS.
EXT.P20 TRUE COPY OF THE LETTER WROTE BY MR.P.J.KURIAN, M.P. TO THE
MINISTER FOR RAILWAY.
EXT.P21 TRUE COPY OF THE LETTER WROTE BY MR.P.J.KURIAN, M.P. TO THE
G.M. SOUTHERN RAILWAY, CHENNAI.
EXT.P22 TRUE COPY OF THE REPRESENTATION FILED BY MR.P.J.KURIAN,
M.P. BEFORE THE MINISTER FOR RAILWAYS.
EXT.P23 TRUE COPY OF THE REPORT OF THE POLLUTION CONTROL BOARD,
DISTRICT OFFICE, PATHANAMTHITTA IN W.P.(C) NO.15219/09
EXT.P24 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.15219/09.
RESPONDENT'S EXTS:
EXT.R1(a) TRUE COPY OF LETTER DATED 28.6.2010 OF THE TRANSPORTATION
BRANCH, HEADQUARTERS, SOUTHERN RAILWAY, CHENNAI ALONG
WITH THE LETTERDATED 11.6.2010 OF RAILWAY BOARD.
EXT.R1(b) TRUE COPY OF REPRESENTATION DATED 12.8.2009 SENT BY THE C.I.
T.U. TALUK COMMITTEE, PATHANAMTHITTA.
EXT.R1(c) TRUE COPY OF REPRESENTATION DATED 21.10.2009 OF KERALA
STATE MERCHANTS ASSOCIATION, AREA COMMITTEE, THIRUVALLA.
EXT.R1(d) TRUE COPY OF REPRESENTATION DATED 21.10.2009 OF ALL KERALA
RAILWAY C & F AGENTS ASSOCIATION, THIRUVALLA UNIT TO THE
THIRD RESPONDENT.
EXT.R1(e) TRUE COPY OF INSTRUCTION DATED 10.7.2009.
//TRUE COPY//
P.S. TO JUDGE.
V.CHITAMBARESH, J.
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W.P (C) Nos. 10608/2011, 12995/2011 &
29211 of 2009
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Dated this the day 19th of August, 2015
J U D G M E N T
All these writ petitions are connected and I shall refer to the exhibits in W.P.(C) No.10608/2011 for the sake of convenience.
2. The Pathanamthitta District Railway Passenger Action Council had preferred Ext.P4 representation to the fifth respondent complaining of high risk pollution and environmental degradation in and around Thiruvalla Railway Station. The complaint highlighted the loading and unloading of cement bags on the platform causing serious health hazards to the passengers. The relevant part of Ext.P4 representation is extracted hereunder:-
"As you may be aware about 7000 passengers are travelling or making use of Tiruvalla Railway station every day.
Recently a goods siding is constructed just adjacent to the passenger platform. Presently in the siding a rake of cement wagons are unloaded on daily basis. Cement is the only commodity handled almost every day under the nose of the waiting passengers. Passengers are experiencing WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 2 serious health hazard as the cement- filled smoky air heavily pollutes the platforms and the entire nearby areas. This dangerous pollution is a silent killer and the passengers regularly using the Railway station are the worst affected."
The failure to take remedial steps by respondents 1 to 3 prompted the Action Council to move the Kerala State Human Rights Commission. The Commission by Ext.P14 order directed the fifth respondent to take steps under Section 22 (A) and 41 of the Air (Prevention and Control of Pollution) Act, 1981 against respondents 1 to 3. The fifth respondent even issued Ext.P15 notice to the third respondent indicating that the present activity causing pollution is a culpable offence punishable with imprisonment and fine. Every thing proved futile necessitating the Action Council and two other passengers to file WP (C) No.15219/2009 on the file of this Court. One of the reliefs in the writ petition pertained to the proposed construction of a cement yard at Thiruvalla Railway Station for the purpose of unloading of cement bags from the goods wagon. Relief (a) therein is extracted hereunder: WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 3 "(a) Issue a writ of prohibition or appropriate writ, order or direction commanding the railway authorities to restrain from going ahead with the proposed construction of the cement yard at Thiruvalla railway station for the purpose of unloading of cement bags from the goods wagons and transportation of the same into the lorries/other transportation vehicles."
3. The fifth respondent herein who was the fourth respondent in the said writ petition filed a report supporting the writ petition and confirming the pollution due to unloading of cement bags. The relevant part of Ext.P23 report is extracted hereunder:
"The Goods unloading platform at the Thiruvalla Railway Station is located adjacent to the main passenger platform (No.2). Several goods wagons carrying cement bags are regularly unloaded and loaded to trucks in this platform. Also, the cement from broken bags and refilled in open. This results in emanation of dust causing nuisance to the passengers and nearby residents.
There are a number of residential buildings within 100m radius of the cement handling area. No protective/control measures are taken WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 4 by the railway authorities to abate the air pollution/nuisance. Doors on both sides of the wagons are kept open during unloading to facilitate better working environment. Hence cross winds spreads cement dust to larger area. Continuous inhalation of cement dust may lead to serious bronchile problems."
There was every likelihood of the reliefs in the said writ petition being granted in the wake of the material then available on record. Respondents 1 to 3 thereupon undertook before this Court that they have no intention to construct a cement yard at Thiruvalla Railway Station and that the apprehension of the petitioners was misplaced. It is in view of the said stand taken by respondents 1 to 3 was the writ petition disposed of by Ext.P24 judgment and the operative part is extracted hereunder:-
5. ........ Having carefully perused the entire materials available on record, we are satisfied that no relief can be granted to the petitioners at this stage, since the respondents have categorically stated that they do not intend to construct a cement yard at Thiruvalla Railway Station. In that WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 5 view of the matter, especially in the light of the stand taken by the Railway authorities, the Writ Petition is closed."
4. The Government of Kerala in the meanwhile issued a notification dated 22.4.2009 (produced as Ext.P1 in WP(C) No. 29211/2009) under Section 4(1) of the Land Acquisition Act, 1894. The purpose stated therein was the doubling of railway track between Chengannur and Chingavanam for the southern railway. There can be no dispute that the same is a public purpose if it is solely for the purpose of doubling of track without expanding the goods platform (used also for unloading cement bags). The present exercise includes the augmentation of the goods platform increasing its capacity from 32 BCN wagons to 41 BCN wagons. This is evident from Ext.P19 communication issued by the second respondent to the President of the Vigilance Council formed. The relevant part of Ext.P19 communication reads as follows:
"VII) Cement Yard:
The Railway Goods shed at
Thiruvalla has been serving the public requirement since long. It deals with WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 6 inward traffic of all commodities including cement. An average of 3 rakes of Cement per month is dealt with at the goods shed. The present capacity of the goods shed dealing with 32 BCN wagons is planned to be augmented to 41 BCN wagons."
5. An Advocate Commissioner was deputed in these three writ petitions who has filed a detailed report dated 10.8.2015 along with photographs and mahazar. The same reflects that a new goods platform of breadth 20 meters and length 650 meters is proposed to be constructed in the place of the old goods platform of breadth 10-13.25 meters and length 260 meters. The relevant part of the report of the Advocate Commissioner is extracted hereunder.
"The proposed goods platform is having a breadth of 20 meters in breadth and a length of 650 meters as against the old platform having a breadth of 10-13.25 meters in breadth and 260 meters in length. When the new platform is constructed the distance between the eastern end of the goods platform to the residential houses will be further reduced. The environmental engineer to the pollution control board opined that WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 7 if the new platform is constructed the distance between the goods platform and the houses will be considerably reduced and the risk of health hazard will also increase considerably."
The report of the Advocate Commissioner also throws light on the fact that houses are situated within a distance of 25 meters from the old goods platform and the respondents may have to land on the new goods platform (if constructed) when they step out of their house. It is not disputed before me that the exercise of unloading goods in the goods platform very much includes cement bags also as conceded in Ext.P19 communication.
6. The Thiruvalla Municipal Council has already passed Ext.P18 resolution condemning the move of respondents 1 to 3 to augment and shift the goods platform. That pollution still subsists due to the unloading of cement bags is conceded even in the counter affidavit filed by the sixth respondent District Collector . The relevant part of the counter affidavit filed by the District Collector is extracted hereunder:
WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 8 "It is hereby submitted that the functioning of the cement yard at the Thiruvalla Railway Station is causing nuisance, air pollution and inconveniences to the passengers as well as nearby residents. The cement yard is situated adjacent to the passenger plat form No.2 of Thiruvalla Railway Station. Cement bag are being unloaded and then loaded into the Lorries directly from the wagons. At the time of the above mentioned unloading and loading, cement dust emanates. Pollution/disturbance is very high while handling of broken bags and at the time of cleaning the wagons after unloading the cement bags. Pollution control Board found that cement dust was spreading around area including the passenger plat form Nos. 1 & 2. There are large number of residential houses within a radius of 100 m from the cement yard. The cement yard is an open area and no preventive measures have been taken by the Railway Authorities to prevent air pollution at the time of cement handling. At the time of unloading cement bags from the railway wagons, both sides of the wagon are kept open and the cross winds spreads the dust to the nearby areas leading to respiratory ailments to the nearby residents." WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 9 Thus all the authorities namely the District collector, Thiruvalla Municipality, Pollution Control Board and the passengers are disgusted with the loading and unloading activity of cement bags in the goods platform.
7. No doubt the fifth respondent has been repeatedly suggesting methods to abate even the existing nuisance and pollution in the old goods platform. Ext.P8 report, Ext.P23 report as well as the two reports filed in this writ petition suggest the construction of another pucca building with roof and dust extraction system. Respondents 1 to 3 in the counter affidavit dated 20.7.2012 filed in the writ petition have already declared that all these remedial measures are incapable of being executed. The relevant part of the counter affidavit of respondents 1 to 3 is extracted hereunder:
"Regarding the recommendations of Pollution Control Board and Human Rights Commission, it is humbly submitted that, due to the forthcoming doubling works and the resultant provision of overhead Electrical equipment, it will not be feasible to WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 10 fully cover up the goods area (about 600 Mts length) by way of complete roofing of the same. Besides, it is respectfully submitted that, nowhere in Indian Railways the air pollution control facilities such as dust extraction facility with water scrubber and chimney are available. The ground areas will be asphalted as in vogue in the Goods Shed areas elsewhere. It is further submitted that almost all goods sheds available in the country are in thickly populated areas, and the shifting of these goods shed to some remote places is not practical and it is neither the interest of the public nor the interest of the country."
A goods shed is entirely different from a goods platform which can only be constructed far away from the passenger platform. The dimension of the goods platform (particularly when goods include cement bags also) cannot be altered or changed in view of the specific stand taken in Ext.P24 judgment. Respondents 1 to 3 cannot approbate and reprobate and take inconsistent stands depending on the case or the court. Taking inconsistent pleas by a party makes its conduct far from satisfactory and the parties cannot blow hot WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 11 and cold by taking by taking such inconsistent stand. It has been so held in Air Line Pilots' Association of India v. DG of Civil Aviation [2011 (5) SCC 435] which has been followed by a Division Bench of this Court in Kerala Transport Development Finance Corporation Ltd. and another v. Basil T.K. and others [2012 (2) KHC 33]. To the same effect are the decisions in Karam Kapahi and others v. Lal Chand Public Charitable Trust and another [(2010) 4 SCC 753] and Mumbai International Airport Private Limited and another v. Golden Chariot Airport and another [(2010) 10 SCC 422]. Having undertaken in unequivocal terms that there is no proposal to construct a cement yard in Ext.P24 judgment, respondents 1 to 3 cannot thereafter indulge in the same under the guise of line doubling.
8. Even the storing, loading and unloading of cement in a shopping complex has been held to be abnoxious and violative of the right to life in Antony v. Commissioner, Corporation of Cochin [1994 (1) KLT 169]. The following observations therein are apposite.
"10. As regards the contention of the petitioner based on the right to life guaranteed under Art. 21 of the WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 12 Constitution of India it has to be noted that by a catena of decisions of the Supreme Court and High Courts, the expression "life" occurring in Art.21 is given an expanded meaning and under the expanded meaning, the right to pure drinking water, pollution free air, and right to good roads, etc. have all been held to be the facet of right to life guaranteed under Art.21 of the Constitution of India. The expression "life" no longer means mere animal existence or continued drudgery, but includes the finer graces of human civilisation: vide - AIR 1984 SC 74/79 Dr. P. Nalla Thampy Thera V. Union of India and others) and courts have residual power not only to enforce the fundamental purpose of law but also the moral welfare of the State and its subject. (see supra). Compelling citizens to inhale obnoxious dust (fine powder of asbastos which can lead to a serious form of lung disease 'asbestosis' amounts to deprivation of his life though the process of deprivation may not be quick yet it is slow but certain. Forcing a person to live in sub-human conditions also amounts to the taking away of their life, not by execution of death WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 13 sentence, but by slow and gradual process by robbing him of his human qualities and graces, a process which is more cruel than sending a man to the gallows. To convert human existence into animal existence no doubt amounts to taking away human life, because a man lives only by this mere physical existence or by bread alone, but by his human existence. (See in this connection the observation of the Supreme Court in Olga Tellis's case - AIR 1986 SC 180 followed in Sankar v. Durgapur Projects (AIR 1988 Cal.136) where it was held that to force a man to live with his family in only a small room of a two rooms quarter and to share bath, toilet and kitchen with another family is violative of his fundamental right guaranteed under Art.21 of the Constitution of India. In Santhilal & Company v. Bombay (AIR 1989 Bom.226) the Bombay High Court upheld the validity of Bombay Metropolitan Regions Specified Commodities Markets (Regulations and Location) Act, 1983 which is an environmental legislation providing for shifting of iron and steel trade from Bombay to a new market yard."
WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 14 Passengers are expected to enjoy a pollution free travel and the residents nearby cannot also be tormented by open use of the goods platform. It is now brought out that the notification under Section 4(1) of the Land Acquisition Act dated 17.7.2009 has been followed by a declaration under Section 6 thereof on 22.4.2010. But no document has been produced before me by anybody to show that an Award under Section 11 of the Land Acquisition Act, 1894 has hitherto been passed. I quash Ext.P1 notification in W.P.(C) No.29211/2009 and all further proceedings pursuant thereto in so far as it relates to the expansion of the existing goods platform at Thiruvalla Railway Station. In other words, the doubling of railway track can go on and the present goods platform can also be shifted to another spot provided its dimension is not changed or its activity augmented. Respondents 4 and 5 are also directed to see to it that even the existing activity does not cause any pollution or other health hazards to the passengers or the residents nearby. The respondents are also free to limit the area of acquisition when the dimension of the existing goods WP(C) Nos.10608/2011, 12995/2011 & 29211 of 2009 15 platform is not to be altered even if shifted.
The Writ Petitions are allowed. No costs.
Sd/-
V.CHITAMBARESH, Judge.
nj.