Elamkunnapuzha Panchayath Apex ... vs Union Of India
2021 Latest Caselaw 1190 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

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                     WP(C).No.25496 OF 2012(S)

PETITIONER:
              ELAMKUNNAPUZHA PANCHAYATH APEX COUNCIL
              OF RESIDENTS' ASSOCIATION (EARA)
              MALIPPURAM POST, VYPEEN, KOCHI-682 511,
              REPRESENTED BY ITS SECRETARY, SMT.GEETHA AJITH.

              BY ADVS.SRI.A.X.VARGHESE
                      SRI.DENIZEN KOMATH

RESPONDENTS:
       1     UNION OF INDIA,
             REPRESENTED BY ITS SECRETARY,
             MINISTRY OF ENVIRONMENT AND FORESTS, PARYAVARAN
             BHAVAN, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003.

      2       STATE OF KERALA,
              REPRESENTED BY ITS CHIEF SECRETARY,
              SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

      3       SECRETARY,
              MINISTRY OF ENVIRONMENT AND FOREST, STATE OF KERALA,
              SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

      4       DISTRICT COLLECTOR,
              CIVIL STATION, KAKKANAD, ERNAKULAM- 682 030.

      5       SUB DIVISIONAL MAGISTRATE,
              TALUK OFFICE COMPLEX, FORT KOCHI, KOCHI-1.

      6       ELAMKUNNAPUZHA GRAMA PANCHAYAT
              REPRESENTED BY ITS SECRETARY,
              MALIPPURAM POST, VYPEEN, KOCHI-682 510.

      7       THE KERALA STATE POLLUTION CONTROL BOARD
              PATTOM POST, THIRUVANANTHAPURAM-695 004,
              REPRESENTED BY ITS CHAIRMAN.

      8       KOCHI PORT TRUST
              WELLINGTON ISLAND, KOCHI
              REPRESENTED BY ITS CHAIRMAN-682 001.
 W.P.(C)No.25496 of 2012
                                2



       9       KERALA COASTAL ZONE MANAGEMENT AUTHORITY,
               STATE OF KERALA, REPRESENTED BY ITS MEMBER
               SECRETARY, THIRUVANANTHAPURAM-695 001.

       10      M/S BPCL KOCHI REFINERIES LIMITED (KRL)
               POST BAG-2, AMBALAMUGAL, KOCHI-682 302,
               REPRESENTED BY ITS EXECUTIVE DIRECTOR.

       11      M/S.INDIAN OIL CORPORATION LIMITED (IOCL)
               KERALA STATE OFFICE, PANAMPILLY AVENUE,
               PANAMPILLY NAGAR P.O., KOCHI-682 036
               REPRESENTED BY ITS MANAGER.

       12      PETRONET LNG LTD.
               WORLD TRADE CENTRE, FIRST ROAD, BABAR ROAD,
               BARAKHAMBA LANE, NEW DELHI-110 001,
               REPRESENTED BY ITS GENERAL MANAGER (LNG).

      *ADDL. KERALA LATIN CATHOLIC ASSOCIATION
       13     REPRESENTED BY ITS PRESIDENT V.A.JEROME,
             I.S.PRESS ROAD, ERNAKULAM DISTRICT - KOCHI -18.

               * ADDL.R13 IS IMPLEADED VIDE ORDER DATED
               27.2.2013 IN IA 16222/2012.

     **ADDL. SALI THOMAS
       14    S/O.(LATE) THOMAS, AGED 53 YEARS, RESIDING AT
             KALATHIVEETTIL, ELAMKUNNAPUZHA - 682 511.

               ** ADDL.R14 IS IMPLEADED VIDE ORDER DATED
               27.2.2013 IN IA 2022/2013.

               SRI.P.VIJAYAKUMAR,ASG FOR R1,
               SRI. ARAVIND KUMAR BABU, SR GP FOR R2 TO R5,
               SRI.K.ANAND(SR) FOR R8,
               SRI.M.P.PRAKASH, SC FOR R9,
               SRI.M.GOPIKRISHNAN NAMBIAR, FOR R10-R12
               R1, R10 BY ADV. SRI.P.BENNY THOMAS
               R1 BY ADV. SRI.A.G.BASIL
               R1 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
               R1 BY ADV. SRI.K.JOHN MATHAI
               R1 BY ADV. SRI.K.P.JUSTINE KARIPAT
               R1 BY ADV. SMT.LATHA KRISHNAN
               R1 BY ADV. SRI.SHERRY J. THOMAS

     THIS WRIT PETITION (CIVIL) HAVING COME UP               FOR
ADMISSION ON 13.01.2021, THE COURT ON THE SAME               DAY
DELIVERED THE FOLLOWING:
 W.P.(C)No.25496 of 2012
                                             3


                                      JUDGMENT

Dated this the 13th day of January, 2021

S. Manikumar, CJ

Instant Public Interest Litigation is filed for the following reliefs:

"(i) Call for the entire records pertaining to the facts pleaded in the writ petition.

(ii) Issue a Writ of Mandamus, any other Order, writ or direction, directing respondent Nos. 1 to 4 and 7 to provide necessary information regarding possible Chemical accidents and the steps taken for prevention preparedness and mitigation of the major chemical accident in the on-site and off-site project area of the 12 th respondent as provided under Rules 13 and 14 of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989.

(iii) Issue a Writ of Mandamus, any other Order, writ or direction, directing the respondent Nos. 1 to 5 to provide information regarding Chemical accident prevention, preparedness and mitigation of the possible major chemical accident in the on-site and off-site project area of the 12th respondent as provided under Rule 13 of the Chemical Accidents (Emergency, Planning and Preparedness and Response) Rules 1996.

(iv) Issue a Writ of Mandamus, any other order, writ or direction, directing the respondents to publish in their respective web sites of these respondents, those half yearly compliance reports in respect of stipulated prior environmental clearance terms and conditions that are so far submitted before the respondents as contemplated under Clause 10(ii) of the Environment Impact W.P.(C)No.25496 of 2012

Assessment Notification 2006 by the 12th respondent.

(v) Issue a Writ of Mandamus, any other order, writ or direction, directing the 1st Respondent to ensure that 12th respondent increase additional mitigation measures in accordance with the doubling of the regasification capacity of the Project at Puthuvypeen to 5.0 MMTPA from 2.5 MMTPA capacity before Commissioning of the Project.

(vi) Issue a Writ of Mandamus, any other order, writ or direction, directing the 1st Respondent to ensure that 12th respondent shall commission the Project only after the 12th respondent has complied with the directives of 1 st Respondent to earmark at least 5% of the total cost of the project towards the Corporate Social Responsibility (CSR) and item-wise details along with time bound action plan is prepared and submitted, including its implementation within a time bound manner as stipulated in Exhibit P-11.

(vii) Issue appropriate Writ, order or direction, to declare that the 12th respondent is bound to take full responsibility of any chemical accident that would result from its functioning, in and off- the site, including compensation, full and final liabilities payable to the victims in the event of such possible chemical accidents as per the principles laid down by the Apex Court of our land based on "polluter-pay principle"."

2. Short facts leading to the filing of the writ petition are that

petitioner is an Apex Organization of Residents Association, functioning

within the area of Elamkunnapuzha Grama Panchayat, respondent No.6. W.P.(C)No.25496 of 2012

This Apex body, propagating the grief of majority of citizens in this pro

bono publico litigation, with utmost care, made good this opportunity to

redress the fear psychosis that each and every citizen of the area are

now indulged in due haphazard manner of deals that the respondents

have put in while implementing the project of Petronet LNG Ltd.,

respondent No.12, in the area.

3. Petitioner has further stated that one such drama of multi-level

political gimmick, striving hard to swindle away huge public fund at the

guise of implementing the Project, the suspicious stand adopted by the

respondents herein acting hands in-gloves with each other and with the

politicians / political leaders, without heeding to the statutory

requirements for on-site and off-site disaster remedial measures, and

even evading Corporate Social Responsibility schemes mandated for

implementation in the Project areas, has constrained them to file this writ

petition for the reliefs stated supra.

4. Reliefs (i), (ii), (iii) and (iv) cannot be granted as they come

under the purview of the Right to Information Act, 2005. Relief (v) also

cannot be granted as it is for the authorities to consider as to whether

there is any requirement of additional mitigation measures to be taken.

5. Corporate social responsibility is the obligation of any company,

expected to be discharged. In the event of accident, and if there is

negligence, suitable action can always be taken by the aggrieved and no W.P.(C)No.25496 of 2012

declaration, as sought for, is required to be issued.

In view of the above, this writ petition is dismissed.

Pending interlocutory applications, if any, shall stand closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge

vpv W.P.(C)No.25496 of 2012

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOCOPY OF THE PICTURE OF DESTRUCTED MANGROVE POPULATION AT THE PROJECT ENTRANCE OF THE 12TH RESPONDENT PLL.

EXHIBIT P2 TRUE PHOTOCOPY OF THE 10 KMS AREA ROUGH SKETCH PREPARED BY 10TH RESPONDENT KRL.

EXHIBIT P2(A) TRUE PHOTOCOPY OF THE PROJECT LOCATION AND ITS BOUNDARIES AS CREATED BY THE 12TH RESPONDENT.

EXHIBIT P3 TRUE PHOTOCOPY OF THE ENVIRONMENT IMPACT ASSESSMENT STUDY REPORT OF THE 12TH RESPONDENT PROJECT.

EXHIBIT P4 TRUE PHOTOCOPY OF THE PROCEEDINGS OF PUBLIC HEARING DATED 18.06.1999 FOR THE ENVIRONMENT CLEARANCE FOR THE ESTABLISHMENT OF LIQUEFIED NATURAL GAS TERMINAL OF 12TH RESPONDENT PLL.

EXHIBIT P5 TRUE PHOTOCOPY OF THE ENVIRONMENT CLEARANCE FOR THE CONSTRUCTION OF LNG IMPORT TERMINAL AT PUTHUVYPEEN ISLAND, KOCHI DATED 13.3.2006.

EXHIBIT P6 TRUE PHOTOCOPY OF THE NEWSPAPER ITEM PUBLISHED IN THE TIMES OF INDIA, DATED 27.08.2011 CAPTIONED "PUBLIC HEARING ON LNG PROJECT A SORDID AFFAIR".

EXHIBIT P7 TRUE PHOTOCOPY OF THE NEWS ITEM PUBLISHED IN THE BUSINESS LINE DATED 19.09.2011.

EXHIBIT P8 TRUE PHOTOCOPY OF THE PUBLIC NOTICE ISSUED BY THE 6TH RESPONDENT GRAMA PANCHAYAT PRESIDENT, WHO IS ALSO THE CHAIRMAN OF THE JOINT AGITATION MOVEMENT DATED 18.09.2012 CALLING UPON THE PUBLIC TO ATTEND A CONVENTION AT THE PANCHAYAT AUDITORIUM.

EXHIBIT P8(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P8.

EXHIBIT P9 TRUE PHOTOCOPY OF THE PUBLIC NOTICE ISSUED BY THE 6TH RESPONDENT GRAMA PANCHAYAT PRESIDENT, WHO IS ALSO THE CHAIRMAN OF THE JOINT AGITATION MOVEMENT DATED 22.09.2012. W.P.(C)No.25496 of 2012

EXHIBIT P9(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P9.

EXHIBIT P10 TRUE PHOTOCOPY OF THE EXTRACT OF RELEVANT CLAUSE OF 103RD MEETING OF THE EXPERT APPRAISAL COMMITTEE OF 1ST RESPONDENT RELATING TO THE ISSUED OF 12TH RESPONDENT PLL.

EXHIBIT P11 TRUE PHOTOCOPY OF THE EXTRACT OF RELEVANT CLAUSE OF 106TH MEETING OF THE EXPERT APPRAISAL COMMITTEE OF 1ST RESPONDENT RELATING TO THE ISSUED OF 12TH RESPONDENT PLL.

EXHIBIT P12 TRUE PHOTOCOPY OF THE NEWS ITEM THAT CAME UP IN THE RASHTRA DEEPIKA EVENING DAILY DATED 08.10.2012.

EXHIBIT P12(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P12.

EXHIBIT P13 TRUE PHOTOCOPY OF THE NEWS ITEM PUBLISHED IN THE RASHTRA DEEPIKA EVENING DAILY DATED 09.10.2012.

EXHIBIT P13(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P13.

EXHIBIT P14 TRUE PHOTOCOPY OF THE NEWS ITEM PUBLISHED IN THE INDIAN EXPRESS DAILY DATED 18.10.2012.

EXHIBIT P15 TRUE PHOTOCOPY OF THE DISSENTING NOTE SUBMITTED BY THE PETITIONER ORGANIZATION BEFORE THE 4TH RESPONDENT DISTRICT COLLECTOR, ON 17.10.2012.

EXHIBIT P15(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P15.

EXHIBIT P16 TRUE PHOTOCOPY OF THE CONSENT GIVEN BY THE 7TH RESPONDENT FOR EXPANSION OF THE PROJECT OF 12TH RESPONDENT DATED 06.05.2011.

EXHIBIT P17 TRUE PHOTOCOPY OF THE REQUEST PREFERRED BY THE PETITIONER BEFORE THE RESPONDENT.

EXHIBIT P18 TRUE PHOTOCOPY OF THE MINUTES OF PUBLIC HEARING HELD ON 26.08.2011 CONDUCTED BY DISTRICT ADMINISTRATION - 4TH RESPONDENT.

EXHIBIT P19 TRUE PHOTOCOPY OF THE LAND LEASE AGREEMENT W.P.(C)No.25496 of 2012

MADE ON THE 12.03.2009 IN BETWEEN 8TH AND 12TH RESPONDENT.

EXHIBIT P20 TRUE PHOTOCOPY OF THE PUBLIC NOTICE ISSUED JOINTLY ON THE OCCASION OF A SUMMER CAMP FOR CHILDREN HOISTED BY THE PETITIONER AND 6TH RESPONDENT.

EXHIBIT P21 TRUE PHOTOCOPY OF THE INVITATION ISSUED FROM THE OFFICE OF THE 6TH RESPONDENT TO THE PETITIONER ORGANIZATION DATED 26.08.2011.

EXHIBIT P22 TRUE PHOTOCOPY OF THE STUDY REPORT OF SCIENTISTS AND ENGINEERS DEVOTED TO PUBLIC INTEREST CAPTIONED "LIQUID NATURAL GAS LIKE A H-BOMB TO HANUNT SOUTHERN CALIFORNIA".

EXHIBIT P23 TRUE PHOTOCOPY OF THE AGREEMENT ENTERED INTO IN-BETWEEN, 2ND RESPONDENT'S MINISTER 4TH RESPONDENT DISTRICT COLLECTOR, 6TH RESPONDENT'S GRAMA PANCHAYAT AND 12TH RESPONDENT.

EXHIBIT P24 TRUE PHOTOCOPY OF THE NEWS ITEM PUBLISHED IN THE DECCAN CHRONIC KOCHI EDITION DATED 27.12.2011.

RESPONDENT'S EXHIBITS:

EXHIBIT R13A THE TRUE COPY OF THE MINUTES OF THE EXPERT APPRAISAL COMMITTEE MEETING DATED 18.10.2011.

EXHIBIT R13B THE TRUE COPY OF THE MINUTES OF THE MEETING WITH ELANKUNNAPPUZHA PANCHAYAT DATED 08.10.2012.

EXHIBIT R13C THE TRUE COPY OF THE WARNING LETTER ISSUED TO THE FISHERMEN COMMUNITY IN CONNECTION WITH THE DECLARATION OF FISHING BAN DATED 10.02.2009.

/TRUE COPY/

P.A. TO JUDGE