Kerala High Court
A.A. Poulose vs State Of Kerala on 3 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
WP(C).No.7151 OF 2014(S)
PETITIONER:
A.A. POULOSE
ANTHIKKAD HOUSE, ELOOR SOUTH,
UDYOGAMANDAL,ERNAKULAM DISTRICT.
BY ADV. SRI.M.V.LALU MATHEWS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT,THIRUVANANTHAPURAM.
2 DISTRICT COLLECTOR
ERNAKULAM DISTRICT, COLLECTORATE, CIVIL
STATION,KAKKANADU, ERNAKULAM.
3 MEMBER SECRETARY
KERALA STATE POLLUTION CONTROL BOARD, PATTOM
P.O.THIRUVANANTHAPURAM - 695 004.
4 CHIEF ENVIRONMENTAL ENGINEER
KERALA STATE POLLUTION CONTROL BOARD,REGIONAL
OFFICE, GANDHINAGAR, KOCHI -682 020.
5 ENVIRONMENTAL ENGINEER
KERALA STATE POLLUTION CONTROL BOARD,
UDYOGAMANDALELOOR, ERNAKULAM DISTRICT.
6 CHIEF ENGINEER
KERALA WATER AUTHORITY, CENTRAL REGION,
ERNAKULAMDISTRICT.
7 CHIEF ENGINEER
(TECHNICAL SERVICES) UC, FACT, UDYOGAMANDAL, ELOOR.
8 SECRETARY
ELOOR MUNICIPALITY, ERNAKULAM DISTRICT.
9 ADDL. R9. M/S.INDIAN RARE EARTHS LTD.,
REPRESENTED BY ITS GENERAL MANAGER, UDYOGAMANDAL,
ELOOR, KOCHI, PIN-683 501.
10 ADDL. R10. M/S.HINDUSTAN INSECTICIDES LTD.,
REPRESENTED BY ITS GENERAL MANAGER, UDYOGAMANDAL,
ELOOR, KOCHI, PIN-683 501.
11 ADDL. R11. M/S.MERCHEM LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR, UDYOGAMANDAL,
ELOOR, KOCHI, PIN-683 501.
ADDL. R9 TO R11 ARE SUO MOTU IMPLEADED VIDE ORDER
DATED 13/03/2014 IN WPC.7151/2014.
SRI SURIN GEORGE IPE SENIOR GOVERNMENT PLEADER FOR
R1 AND R2,
SRI.T.NAVEEN, STADING COUNSEL FOR R3 TO R5,
SRI.BENJAMIN PAUL, STADING COUNSEL FOR R6,
(REPRESENTED BY SRI.SAJI VARGHESE
KAKKATTUMATTATHIL)
SRI.K.S.ARUNKUMAR STADING COUNSEL FOR R8,
SRI. G UNNIKRISHNAN FOR R11
SRI.PRATAP ABRAHAM VARGHESE FOR R7 & R10.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-
01-2021, THE COURT ON 03-02-2021 DELIVERED THE FOLLOWING:
WP(C).No.7151 OF 2014(S) 3
JUDGMENT
Dated this the 3rd day of February 2021
SHAJI P.CHALY,J
This is a Public Interest Litigation filed by the writ petitioner espousing a
public cause in regard to the supply of drinking water to 2144 families residing
within the limits of Eloor Municipality under "Eloor Water Supply Scheme" and
seeks a writ of mandamus not to stop supply of drinking water; a direction to
recover the due amount from the defaulter company by freezing their account
or to seize the assets of the company, sell out the same and to recover the
amounts in terms of Exhibit P3 directions issued by the State Government in
accordance with the imperative orders issued by the Apex Court dated
4.10.2003 in W.P.(Civil) No.657 of 1995.
2. Originally the Chief Engineer (Technical Services) Fertilizers and
Chemicals Travancore Limited, Udyogamandal, Eloor, alone was made a party
along with the State Government and its officials and other departments.
However, as per an interim order dated 13.3.2014, a Hon'ble Division Bench
of this Court impleaded M/s.Indian Rare Earths Limited, M/s. Hindustan
Insecticides Limited,and M/s.Merchem Limited, as additional respondents 9 to
11. It is evident from Exhibit P3 that a Committee namely Supreme Court
Monitoring Committee was constituted apparently on the basis of the
directions issued by the Apex Court in regard to the decontamination of River
Periyar and its tributaries which includes 'Kuzhikandam thodu' and nearby
areas of hazardous waste. It is also evident that since effluents from FACT,
IRE, HIL and MERCHEM were found to be involved, the cost of clean up was
decided to be recovered from the said establishments. Therefore, the Kerala
Board, presumably constituted in compliance with the directives of the Apex
Court to effectively deal with the situation, was required to estimate the full
costs of the clean-up and to issue necessary orders under rule 16(2) of the
Hazardous Waste (Management and Handling) Rules,1989 as mandated, for
recovering the amounts in advance within a stipulated period of time. It was
also decided that the decontamination of Kuzhikandam thodu will be carried
out by the Kerala Board and completed within six months i.e., 31.12.2005 and
the work to be done with active involvement of an organisation constituted for
the purpose viz., L.A.E.C.(Local Area Environment Committee), Kochi. It is
also observed in Exhibit.P3 proceedings that residents of Ward Nos.1 to 4 &
17 of Eloor Municipality are seriously affected by the dumping of hazardous
wastes in the area and due to the contamination of the said stream. It is also
discernible from Exhibit P3 that as the water bodies are severally
contaminated due to the discharge of the waste materials by the companies
listed above,they were required to provide pipe water for the affected
communities in line with earlier recommendations of the committee and to be
complied with by December 31st, 2005 . Accordingly the LAEC, Kochi was
directed to conduct the survey and provide the list of those affected and
submit a compliance report to the Supreme Court Monitoring Committee and
suggest remedial measures. The Supreme Court Monitoring Committee
directed the Kerala Board to suggest the ways and means to the Committee
regarding a permanent mechanism for effective monitoring, which will involve
local citizens and communities in the post LAEC period in terms of paragraph
55 of the Apex Court order dated 14.10.2003. The Kerala Board was also
directed to suggest the ways and means for imposing fines or bank
guarantees from the industrial establishments in order to control and regulate
the contamination of the water body in question. It is also seen that based on
the final environment audit report of the LAEC to be submitted by July 31 st,
2005, Board will complete allocation of new shares towards the collective fine
of Rs.2.5 Crores imposed on the industrial estates by the Supreme Court
Monitoring Committee for remediation of Periyar river on the basis of polluter
pays principles as those units were responsible for polluting the Periyar river
for the past several years.
3. Kerala Board was also given the liberty to issue necessary and further
directions either under rule 16(2) or rule 16(3) of the Hazardous Waste
(Management and Handling) Rules,1989, depending upon the audit report and
the conditions of the Periyar river bed. Board was also given the freedom to
decide as to whether any amount is to be levied under rule 16(3) of the Rules
in consultation with the CPCB, Maharashtra Board. Other directions were also
issued in regard to the discharge of effluents into the Periyar river and
remediation measures including imposing a ban on night time movement of
effluent tankers to prevent illegal discharges and to take other preventive
measures so as to block vehicles from approaching the river bed. Thus, the
contention raised by the petitioner is clearly based on the directives issued by
the honourable Apex Court and the consequential action taken by the
Supreme Court Monitoring Committee and the Kerala Board. It was
accordingly that the reliefs specified above were sought for by the petitioner
for and on behalf of the residence of the Eloor Municipality. It is also clear
that FACT was chosen as the lead company to implement the directions of the
board and supply water to the residents and pay the water charges to KWA,
and the other companies were to pay the water charges when claimed by
KWA and the KWA inturn was to reimburse FACT.
4. Kerala Water Authority has filed a detailed statement also showing the
water consumed by various companies, the amounts received on behalf of the
companies and the amounts remitted by Kerala Water Authority to FACT,
which is as follows:
Sl.No. Name of Quantity of Amount due Amount Balance due
Company water received in in rupees
consumed rupees
upto 2/2014
1 Indian Rare 31000KL 144500.00 694109.00 179500.00
Earths Ltd.
2 Merchem Ltd. 28000KL 873609.00 0.00 873609.00
3 BSES Ltd. 30000KL 106094.00 732515.00 141094.00
4 Hindalco Ltd. 30000KL 620046.00 253563.00
5 HIL 28000KL 467946.00 405663.00 467946.00
6 KWA 2271381.00 2181000.00 90381.00
5. So far as the contention raised by the petitioner that Kerala Water
Authority has disconnected all public taps in that area, it is denied and further
submitted that all public taps existed before the implementation of "Eloor
Water Supply Scheme" remain there without being disconnected. It is also
stated thereunder that, the Kerala Water Authority is doing whatever possible
in the prevailing circumstances to ensure equitable distribution of water to the
concerned area and therefore, there is no merit in the contention raised
against the Kerala Water Authority. It is also pointed out in the statement that
since 1.6MLD of water was found insufficient, Fertilizers and Chemicals
Travancore Limited has agreed in a high level meeting to supply one more MLD
of water, which was to be shared by FACT, IRE, HINDALCO, MERCHEM, BSES
Ltd. and Kerala Water Authority was entrusted with the duty to collect the
cost of water supply on behalf of the companies and to remit the same to the
Fertilizers and Chemicals Travancore Limited. In addition to the same, a
counter affidavit is also filed by the Kerala Water Authority, wherein the
amounts remitted by the companies are delineated in a tabular form, which
reads thus:
Sl.No. Name of Company Total demand Amount Balance due in
received in Rs. Rs.
1 Indian Rare Earths 912359.00 841609.00 70750.00
Ltd.
2 MERCHEM Ltd. 912359.00 nil 912359.00
3 BSES Ltd. 912359.00 837703.00 74656.00
4 HINDALCO Ltd. 912359.00 692546.00 219813.00
5 HIL 912359.00 771609.00 140750.00
6 KWA 2372131.00 2181000.00 191131.00
TOTAL 6933926.00 5324467.00 1609459.00
6. It is also stated in the said counter affidavit that the period of this
scheme was to end on 31.3.2014 and therefore, the District Collector had
convened a meeting of the respective parties and directions have been issued
to continue the supply of water as per the earlier scheme for two more months.
That apart it is stated that the GIDA Deposit Work "Improvements of water
supply scheme to Kadamakkudy and Varapuzha Panchayath'' for supply of
drinking water has reached at the stage of trial run and once the scheme
becomes operational, which is expected in a couple of months, the present
supply to the area can be discontinued and redirected to Eloor area, which is
expected to solve the present impasse.
7. The Fertilizers and Chemicals Travancore Ltd. has also filed a detailed
counter affidavit, wherein the receipt of the amounts in accordance with the
agreement for the supply of water is specified. However, it is clearly stated that
huge dues are remaining due from the companies and the failure on the part of
the Kerala Water Authority to recover the dues from the responsible persons.
8. The Chief Engineer, Kerala State Pollution Control Board has filed an
affidavit/ report explaining the difficulties faced by the residents in question and
the failure on the part of the companies to sign agreement in terms of the
directives issued by the Supreme Court Monitoring Committee as well as the
Kerala Board. It is also specified therein that there is lethargy on the part of
Kerala Water Authority in supplying drinking water through the schemes.
9. Eleventh respondent viz., M/s.Merchem Ltd., has also filed a counter
affidavit disputing the allegations made against it and also stated that it used to
share the expenses equally and it never intended to curtail water supply to the
inhabitants of the area. Other submissions are also made in regard to the total
payment, amounting to Rs.1,73,00,000/-, which was reduced later to
Rs.1,40,00,000/-. Other details are also furnished.
10. Seventh respondent, FACT has filed an additional affidavit dated
13.7.2015, wherein the order of the Apex Court dated 14.10.2003 is produced
as Exhibit R7(a). These are the basic material facts available for consideration
of the reliefs sought for by the petitioner.
11. We have heard learned counsel for petitioner Sri. Lalu Mathews,
Sri.Surin George Ipe, learned Senior Government Pleader, Sri.T.Naveen,
learned Standing Counsel for Kerala State Pollution Control Board,
Sri.P.Benjamin Paul, learned Standing Counsel for Kerala Water Authority,
Sri.K.S.Arun Kumar, learned Standing Counsel for Eloor Municipality,
Sri.Prathap Abraham, learned counsel for respondents 7 & 10, Sri.A.Balagopal
for 11th respondent and perused the pleadings and materials on record.
12. The sum and substance of the discussion made above would make it
clear that consequent to the pollution in the river Periyar and other rivers
throughout the country, a Public Interest Litigation was preferred in the Apex
Court. Apex Court has passed Exhibit R7(a) order in regard to the steps to be
taken to eliminate pollution from the rivers and has constituted a Committee so
as to implement the order passed by it. It was accordingly that the Kerala
Board was constituted to function under the Supreme Court Monitoring
Committee. Necessary measures were suggested by the Supreme Court
Monitoring Committee as well as the Kerala Board in order to eliminate the
pollution caused to the river Periyar at the hands of various companies and its
tributaries, which includes Kuzhikandam thodu (supra). It is an admitted fact
that on the principles of Polluter Pays, Fertilizers and Chemicals Travancore Ltd
was directed to supply water to the area in question and the rest of the
companies were directed to share the cost of water, and accordingly the Kerala
Water Authority was made the Nodal Agency to collect / recover the amounts
from the companies and pay the same to the Fertilizers and Chemicals Limited
against the amount due on water supply.
13. It is evident from the proceedings on record that, on 13.3.2014 an
interim direction was issued by a division bench of this court that there shall
be no manner of hindrance for supply of water to the 2144 families in
question. It is admitted by learned counsel appearing for the petitioner that
the water supply as directed is being continued without fail. However, the
grievance raised by the learned counsel for petitioner is that in the counter
affidavit filed by the Kerala Water Authority it was categorically stated that
consequent to the implementation of GIDA Scheme, water supply now made
from the Eloor Scheme to other nearby areas can be completely diverted to
the area in question and rectify the present impasse. On the other hand, the
Standing Counsel for the Kerala Water Authority submitted that since there
was no sufficient pressure to meet the requirements as was expected by the
Kerala Water Authority, no diversion could be made consequent to the
implementation of the GIDA Scheme. However, it was submitted that the
Kerala Water Authority is sincerely exploring the possibility of making
arrangements for the supply of water on a permanent basis by taking
advantage of any scheme made by the State Government as well as the
Central Government and every endeavour would be made to make permanent
arrangement for supply of water to the area in question. In this regard we
clearly express our opinion that the drinking water being a basic requirement
for human habitation and a fundamental right and a human right protected
under article 21 of the Constitution of India, the State or any responsible
agency / authority is duty bound to take necessary steps to supply it to the
needy citizens uninterruptedly and without fail. This is stated so by the apex
court and this court in a large number of judgments and the legal position is
so well settled in that regard justifying the expression of opinion made by us
above. Therefore the people of the area are entitled to get water supply as of
right, which is a welfare measure, duty bound to be implemented by the State
by virtue of the obligations created under the directive principles of State
policy and fundamental duties contained under parts 1V and 1VA of the
constitution of India .
14. Having appreciated the rival submissions and the facts and
circumstances involved in the case at hand, and adorning the well recognised
Constitutional principles, we are of the considered opinion that the interim
order passed by this Court on 13th March, 2014 directing the uninterrupted
supply of water can be directed to be continued till a permanent arrangement
is made by the Kerala Water Authority for supply of water to the residents of
the area in question. That apart from the pleadings in the writ petition as well
as from the counter affidavit filed by the Fertilizers and Chemicals Travancore
Ltd, It is evident that the Kerala Water Authority has allegedly failed to collect
water charges from other companies in order to reimburse the same to it in
accordance with the directives / instructions of the Supreme Court Monitoring
Committee and the consequential directions issued by the Kerala Board.
15. In that view of the matter, we allow the writ petition partly by making
the interim order passed by this court dated 13.3.2014 as specified above,
absolute , and leaving open the liberty of the Kerala Water Authority to
collect/recover amounts if any legally due from any of the polluter companies
in terms of the instructions of the Supreme Court Monitoring Committee and
the Kerala Board without fail and in accordance with law and to pay the same
to the Fertilizers and Chemicals Travancore Ltd., after ensuring the quantity
of water supply made by it and the amount outstanding to it. Needless to say,
if and when it is found that amounts are due, demand notice shall be issued
to the respective companies and shall take any decision to recover the
amounts only after hearing them. We also make it clear that the Kerala Water
Authority,in consultation with the State, shall take necessary steps to
formulate any scheme for supply of drinking water to the area in question and
implement the same, at the earliest possible time and at any rate within six
months from the date of receipt of a copy of this judgment.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 EXT.P-1: THE TRUE PHOTOCOPY OF THE LETTER
DATED 20.2.2014 BY THE CHIEF ENGINEER
(TECHNICAL SERVICES) UC, FACT TO
CHAIRMAN, ELOOR MUNICIPALITY
EXHIBIT P2 EXT.P-2: THE TRUE PHOTOCOPY OF NEWS
PUBLISHED IN METRO MANORAMA PAGE 3 ON IST
MARCH 2014.
EXHIBIT P3 EXT.P-3: THE TRUE PHOTOCOPY OF DIRECTIONS
BY THE STATE OF KERALA AS PER THE APEX
COURT'S ORDER DATED 14.10.2003 IN THE
MATTER OF WPC NO.657 OF 1995.
