All Kerala River Protection ... vs The District Collector
2021 Latest Caselaw 23912 Ker

                       IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                          PRESENT

                   THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                             &

                        THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

            MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943

                                  WP(C) NO. 21256 OF 2018

PETITIONER:
        ALL KERALA RIVER PROTECTION COUNCIL, (REG.NO.1052/98/EKM) HIGH ROAD, ALUVA-683031,
        REPRESENTED BY ITS GENERAL SECRETARY, T.V.RAJAN, S/O.APPUTTI, AGED 63 YEARS,
        "SAMSKRITHI", KUTHIRAVATTOM.P.O., KOZHIKODE DISTRICT, PIN-673 016

        BY ADVS.SMT.DAISY A.PHILIPOSE
        SRI.JAI GEORGE


RESPONDENTS:
   1   THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-695001.

   2    THRIKKAKKARA MUNICIPALITY, REPRESENTED BY ITS SECRETARY.

   3    THE ENVIRONMENTAL ENGINEER, THE DISTRICT OFFICE OF THE KERALA STATE POLLUTION
        CONTROL BOARD, GANDHINAGAR, ERNAKULAM, PIN-680 020.

   4    OLIVE COURTYARD APARTMENT OWNERS ASSOCIATION
        OLICE COURTYARD, NEAR INFOPARK, EDACHIRA.P.O., KAKKANAD, ERNAKULAM, PIN-680 021
        REPRESENTED BY ITS SECRETARY.

   5    MS OLIVE HOTEL, EDACHIRA P.O., PIN-682021, REPRESENTED BY ITS MANAGER. (Impleaded as
        per order dated 28.6.2018)

   6    CORPORATION OF COCHIN, REPRESENTED BY SECRETARY, PARK AVENUE ROAD, MARINE
        DRIVE, KOCHI, KERALA-682 011
        (ADDL. R6 IMPLEADED AS PER ORDER DATED 15/09/2021 IN WPC 21256/2018)

   7    SECRETARY TO GOVERNMENT, IRRIGATION DEPARTMENT,
        GOVERNMENT OF KERALA, THIRUVANANTHAPURAM
        (Addl.R7 IS IMPLEADED AS ADDL R7 AS PER ORDER DATED 30/11/2021 IN WPC.)

        BY ADVS.SHRI.N.MANOJ KUMAR, STATE ATTORNEY
        SRI.S.JAMAL, SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD,
        SRI.C.N.PRABHAKARAN, ADV.ACHU SUBHA ABRAHAM, ADV.BLAZE K.JOSE, V.T.LITHA
        SHRI.G.G.MANOJ, SC, THRIKKAKARA MUNICIPALITY
        GOVERNMENT PLEADER SRI.S.RENJITH, SPL GP
        SRI.K.R.RANJITH, G.P.; SRI.PHILIP T.VARGHESE;

       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)NO.21256 OF 2018
                                    :: 2 ::




                                 JUDGMENT

Dated this the 13th day of December, 2021

S.MANIKUMAR, C.J.

The petitioner is a voluntary organization registered under the

Travancore-Cochin Scientific, Literary and Charitable Societies Act for

discharging the fundamental duties of citizens of India as envisaged

under the Constitution of India. Writ petition is filed against the

pollution of river Kadambrayar pointing out that the river is polluted due

to the discharge of untreated sewage from the nearby residential

complexes, hotels and other multistoried buildings situated on either side

of the river.

2. Main reliefs sought for in this writ petition are as follows:

i. Issue a writ of mandamus directing the respondent No.2 to take immediate action to clean "Kadambrayar" in Ernakulam District by removing the African river moss and other solid waste and to prohibit the discharge of waste water and sewage into Kadambrayar from the residential complexes, hotels and other multistoried buildings situated on either side of the river, in accordance with law.

ii. Issue a writ of mandamus directing the respondent No.1 and 2 to take immediate and effective action, including prosecution against the 4th respondent for ensuring that the sewage treatment plants are installed and operated in accordance with the directions issued by the respondents no.2 and 3."

WP(C)NO.21256 OF 2018 :: 3 ::

3. Short facts leading to filing of the writ petition are as under:

Petitioner society is seriously concerned about the severe environmental

pollution caused by the illegal discharge of sewage from septic tank and

waste water from the residential complexes, hotels and other

multistoried buildings into Kadambrayar in Ernakulam District, thereby,

causing severe water pollution.

4. In 2016, when the sewage from Septic tank and waste water were

discharged into Kadambrayar by the 4 th respondent/Olive Courtyard

Apartment Owners' Association, the petitioner along with a resident of

Olive Courtyard, submitted a complaint before the Kerala State Human

Rights Commission. As per the directions issued by the Kerala State

Human Rights Commission, enquiry was conducted by the District

Collector, Ernakulam/1st respondent and submitted a report dated

22/6/2016 stating that the Sewage treatment plant installed in the

premises of Olive Courtyard is not sufficient and that they are not

functional.

5. Thereafter, on 1/3/2018, Thrikkakkara Municipality/2 nd

respondent issued a notice to the Olive Courtyard Apartment Owners'

Association/4th respondent, directing to install the Sewage Treatment WP(C)NO.21256 OF 2018 :: 4 ::

Plant, within 15 days of the receipt of the notice, failing which, action

under Section 440 of the Kerala Municipalities Act, 1994, will be taken.

However, no further action was taken pursuant to the notice, till date. As

a result, the river is still being polluted and filled with African River

Moss, which reveals the highest level of contamination and water is

stagnant. Hence this writ petition has been filed for the relief stated

supra.

6. Mr. Blaze. K. Jose, learned counsel appearing for the 4 th

respondent, Olive Courtyard Apartment Owners' Association, submitted

that after the filing of the writ petition, Pollution Control Board has

issued an order directing the 4th respondent to upgrade the Sewage

Treatment Plant. Accordingly, the 4th respondent has spent Rs.55 Lakhs

and that the plant has been upgraded. He further submitted that Cochin

Corporation has installed a treatment plant on the banks of Kadambrayar

River and that discharge from the said plant is the sole cause for

pollution of the river. National Green Tribunal has also passed an order

dealing with the pollution of the said river. He further added that the

Brahmapuram Dump yard managed by Kochi Municipal Corporation is

situated on the banks of Kadamprayar river. Several cases are pending

before the Hon'ble National Green Tribunal, Southern Zone, Chennai for WP(C)NO.21256 OF 2018 :: 5 ::

the last several years, at the instance of various persons and suo motu

proceedings. Several orders are passed by NGT over the years after

monitoring the dumb yard. Apart from the Corporation, waste from

neighbouring panchayats are also dumbed, which led to the serious

environmental problems in the locality, including polluting the river. In

spite of repeated directions issued, Kochi Corporation has not done any

work. The National Green Tribunal has directed the Chief Secretary as

per its latest order dated 21.6.2021 to look into the issue seriously as this

issue is pending since long time without getting proper attention from

the higher authorities as a result of which such gross violations are

taking place.

7. Pollution of a water body is certainly a cause for the residents of

the area, but it is also a public cause. On the contention of learned

counsel for the petitioner as to whether the river can be navigable or not,

it is a matter to be considered depending upon removal of African River

Moss and steps taken by all concerned. However, before adverting to

prayer No.1, it is necessary that discharge of water waste in sewages

should be prohibited to avoid pollution.

8. Sri.C.N.Prabhakaran, learned Standing Counsel appearing for the

6th respondent, Corporation of Kochi, submitted that the entire activities WP(C)NO.21256 OF 2018 :: 6 ::

at Brahmapuram are being directly monitored by the National Green

Tribunal (NGT), State Level Monitoring Committee of NGT, and District

Level Monitoring Committee of NGT chaired by the District Collector. A

detailed statement has been filed on behalf of the 6 th respondent, relevant

portion of which reads thus:

"8. there are drains constructed around the windrow compost plant of Kochi Municipal Corporation in Brahmapuram. The leachate (liquid from food wastes) from the plant is drained through the drains and is collected in the leachate tank constructed with baffles similar to a septic tank for effecting a first level of treatment. The entire compound of Kochi Municipal Corporation is having compound walls constructed with sheet piles and so no leachate would pass into the Kadmbrayar from the compound of Kochi Municipal Corporation.

9. Further, to clean up the legacy waste (waste lying in Brahmapuram for a prolonged period of time) in Brahmapuram, work for biomining/rehabilitation the wastes has already been awarded and agreement was executed on 7.8.2021 with M/S Zonta Infratech Private Limited. Work will be commencing in December, 2021.

10. To improve the solid waste treatment into a waste to energy plant is also proposed in Brahmapuram. Work has been awarded to M/S Zonta Infratech Private Limited. Vide G.O. (Rt)No.1754/2021/LSGD dated 14-9-2021 Government has approved the tipping fee at Rs.3550 per ton of waste for the waste to energy project.

11. A new compost plant has also been proposed at Brahmapuram to treat the waste to energy plant comes up. Preparation of structural design is being carried out by M/S Esteem Developers and the draft has been submitted by them. It is expected that the civil work could be tendered in November, 2021.

12. For constructing a standalone leachate treatment plant work for preparing the detailed project report has been tendered on 23-09-2021.

13. The entire activities at Brahmapuram are being directly monitored by the National Green Tribunal (NGT), State Level Monitoring Committee of NGT, and District Level Monitoring Committee of NGT chaired by the District Collector.

WP(C)NO.21256 OF 2018 :: 7 ::

14. It is to avert the attention of the Honourable Court, the respondents are unnecessarily blaming the Kochi Municipal Corporation which cannot be accepted. All the apartments keep the sewage treatment plants for name sake and even many apartments do not have even one and they just empty it into the river directly or through the septage emptying trucks which ultimately end up in any water body. The Industrial establishments also keep their Effluent Treatment Plant for name sake and directly discharge the waste into kadambrayar, many pipes that drain effluents directly into the kadambrayar can be seen in many places upstream to the solid waste treatment plant of Kochi Municipal Corporation."

9. Mr.T.Naveen, learned Standing Counsel appearing for the third

respondent/Kerala State Pollution Control Board has produced the

second additional report filed by the Environmental Engineer, pursuant

to the direction of this court dated 12.10.2021 wherein it is stated that the

third respondent will take all measures for the rejuvenation of the

Kadambrayar river to improve the water quality. It is also submitted that

rejuvenation of the river will be completely successful only with co-

operation of the other departments.

10. Pursuant to the direction of this court dated 30.11.2021,

Mr.Ranjith.K.R. learned Senior Government Pleader has produced a copy

of the report from the Executive Engineer, Irrigation Division,

Ernakulam, which reads thus:

REPORT As per the National Green Tribunal OA No.673/2018 dated 20.9.2018 & 8.4.2019, Separate Action Plant prepared for "Kadambrayar" and "Chitrapuzha". Based on the Action Plan;

WP(C)NO.21256 OF 2018 :: 8 ::

Irrigation Department proposed 4 works of total amount 49.38 lakhs for Kadambrayar and 5 works of total amount 223.05 lakhs for Chithrapuzha. Out of these 9 works only three works coming under Chithrapuzha Action Plan got the Financial Sanction and these works are in progress. Total amount for these 3 works comes to Rs.73,56,122.55.

Name of ongoing work is given below:

1.NGT-1WT works - Desilting of Chithrapuzha River near Kochi Refinery from Mamala Bridge to Chithrapuzha bridge in Ernakulam District - Reach I - Rs.3188699.75

2. NGT-IWT works - Desilting of Chithrapuzh River bridge to Railway bridge in Ernakulam District - Reach II - Rs.3757704.00

3. NGT-IWT works - Soil investigation works for the construction of Walk way along Chithrapuzha River from Mamala to Champakkara canal - Rs.409718.80/-

In Kadambrayar Action Plan, for the "Development package" construction of Walk way along Kadambrayar is included. This proposal can be submitted only after completion the soil investigation and demarcation of Kadambrayar. Therefore, as the preliminary step the proposal for soil investigation including the demarcation of Kadambrayar was submitted.

For Desilting and development, three proposals each for removal of water hyacinth from Kadambrayar, Edachirathodu and Padathikara thodu, near Infopark Phase II was also submitted for sanction.

The financial sanction is not approved for the above 4 works in kadambrayar.

After Flood in 2018 Desilting work of Kadambrayar, from upstream of manakkakadavu to Kozhichira bund has completed in 2019 using SDRF. Also desilting of Edachira thodu and Mundampalam thodu have been completed. The total amount used is Rs.27,28,341.00.

EXECUTIVE ENGINEER WP(C)NO.21256 OF 2018 :: 9 ::

11. From the above, it could be deduced that the proposal for

removal of water hyacinth from Kadambrayar has been submitted for

sanction. National Green Tribunal has already issued directions in the

matter of cleaning of Kadambrayar. Prayer No.1 seeking for a direction

to the respondent No.2 to take immediate action to clean "Kadambrayar"

in Ernakulam District by removing the African river moss and other solid

waste and to prohibit the discharge of waste water and sewage into

Kadambrayar from the residential complexes, hotels and other

multistoried buildings situated on either side of the river, has already

been answered, as above. Moreover, on the directions of the Kerala

Pollution Control Board, steps have already been taken not to discharge

the sewage into the river Kadambrayar.

12. What remains to be considered in the light of the pleadings is

only prayer no.2 seeking direction to the respondent Nos.1 and 2 to take

immediate and effective action, including prosecution against the 4 th

respondent for ensuring that the sewage treatment plants are installed

and operated in accordance with the directions issued by the respondents

no.2 and 3. From the materials on record, it could be deduced that the

proposal for desilting and development of Kadabrayar has already been

submitted before the authorities concerned. The competent authority, WP(C)NO.21256 OF 2018 :: 10 ::

before whom proposals have been submitted for the abovesaid purpose,

is directed to take appropriate decision in the matter within a period of

three months from the date of receipt of a copy of this judgment and

thereafter to proceed further. In as much as series of directions have

already been issued by the National Green Tribunal, Principal Bench, New

Delhi, in the matter, and in as much as O.A.No.673/2018 is pending

consideration before the NGT, we are not inclined to interfere with the

matter at this stage.

With the abovesaid directions, writ petition is disposed of.

SD/-

S.MANIKUMAR CHIEF JUSTICE

SD/-

SHAJI P. CHALY JUDGE jes WP(C)NO.21256 OF 2018 :: 11 ::

APPENDIX OF WP(C) 21256/2018

PETITIONER'S EXHIBITS EXHIBIT P1 A TRUE COPY OF THE REPORT DATED 22/06/2016 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, WITH ITS TRANSLATION.

EXHIBIT P2 A TRUE COPY OF THE REPORT DATED 09/05/2017 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, WITH ITS TRANSLATION.

EXHIBIT P3 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 16/06/2017 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION DATED 03/08/2017 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE REPORT DATED 25/10/2017 SUBMITTED BY THE DISTRICT CO-ORDINATOR, SUCHITWA MISSION, BEFORE THE 1ST RESPONDENT WITH ITS TRANSALTION.

EXHIBIT P6 A TRUE COPY OF THE REPORT DATED 04/11/2017, SUBMITTED BY THE DISTRICT CO-ORDINATOR, SUCHITWA MISSION, BETWEEN HE 1ST RESPONDENT.

EXHIBIT P7 A TRUE COPY OF THE NOTICE DATED 01/03/2018 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT, WITH ITS TRANSLATION. EXHIBIT P8 TRUE PHOTOGRAPHS OF KADAMBRAYAR NEAR OLIVE COURTYARD AT EACHIRA.

RESPONDENT EXHIBITS Exhibit R4(A) TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE RENEWAL DATED 28/10/2020 ISSUED BY THE KERALA STATE CONTROL BOARD Exhibit R4(B) TRUE COPY OF THE ORDER IN O.A 442/2013 AND CONNECTED CASES DATED 21/06/2021 OF THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI ANNEXURE R3(f) TRUE COPY OF THE CONSENT TO OPERATE ISSUED TO THE APARTMENT ANNEXURE R3(g) TRUE COPY OF THE CONSENT TO OPERATE ISSUED TO THE HOTEL UNIT.

ANNEXURE R3(h) TRUE COPY OF THE ACTION PLAN PREPARED FOR REJUVENATION OF RIVER KADAMBRAYAR.

ANNEXURE R1(a) TRUE COPY OF THE MINUTES OF THE MEETING DATED 26.8.2021 ANNEXURE R1(b) TRUE COPY OF THE ACTION TAKEN REPORT SUBMITTED BY THE EXECUTIVE ENGINEER, POLLUTION CONTROL BOARD. ANNEXURE R3(i) TRUE COPY OF THE RELEVANT PAGES OF CPCB REPORT "MONITORING OF INDIAN NATIONL AQATIC RESOURCES, MINARS/37/2014-2015" ANNEXURE R3(j) TRUE COPY OF THE GOVT. ORDER, G.O.(RT)NO.135/2018/ENVT. DATED 12.12.2018.

WP(C)NO.21256 OF 2018 :: 12 ::

ANNEXURE R3(k) TRUE COPY OF THE GOVT. ORDER, G.O.(RT)NO.62/2020/ENVT. DATED 20.7.2020.

ANNEXURE R3(l) TRUE COPY OF THE GOVT, ORDER, G.O.(MS)NO.12/2019/WRD DATED 30.4.2019.

ANNEXURE R3(m) TRUE COPY OF THE GOVT. ORDER, G.O.(RT)NO.223/2020/WRD DATED 12.3.2020.

ANNEXURE R3(n) TRUE COPY OF THE ANALYSIS REPORTS OF KADAMBRAYAR RIVER OF PREVIOUS 6 MONTHS.

ANNEXURE R3(o) TRUE COPY OF THE REPORT SUBMITTED TO THE DISTRICT COLLECTOR ON 27.9.2021.

ANNEXURE R3(p) TRUE COPY OF THE ANALYSIS REPORTS OF THE TREATED SAMPLES COLLECTED FROM M/S OLIVE COURTYARD COLLECTED ON 25.11.2020. ANNEXURE R3(q) TRUE COPY OF THE STATUS REPORT ON IMPLEMENTATION OF KADAMBRAYAR RIVER ACTION PLAN SUBMITTED BY KOCHI CORPORATION ANNEXURE R3(r) TRUE COPY OF THE BOARD CHAIRMAN PROCEEDINGS NO.PCB/HO/SEE2/KOCHICORPN/2019 DATED 13.1.2021. ANNEXURER3(s) TRUE COPY OF THE HON'BLE NGT ORDER IN O.A.442/2013 DATED 31.5.2016.

ANNEXURE R3(t) TRUE COPY OF THE BOARD CHAIRMAN PROCEEDINGS NO.PCB/HO/SEE2/KOCHICORPN/2019 DATED 31.7.2020. ANNEXURE R3(u) TRUE COPY OF THE NOTICE NO.PCB/RO-EKM/GEN-258/19 DATED 16.3.2021.

ANNEXURE R3(v) TRUE COPY OF LETTER NO.MOE2-10948/17 DATED 9.4.2021 FROM SECRETARY, KOCHI CORPORATION.

ANNEXURE R3(w) TRUE COPY OF THE CHIEF ENVIRONMENTAL ENGINEER LETTER NO.PCB/RO-EKM GEN-258/19 DATED 1-5-2021. ANNEXURE R3(x) PHOTOGRAPHS SHOWING THE PRESENT SCENARIO OF BRAHMAPURAM WASTE PROCESSING PLANT.

// TRUE COPY //

P.A. TO JUDGE