Abdulla Koya T.V. and Faizal Pallikandy v. The Chief Secretary, Government of Kerala and others

1 **W.P.(C) No. 8986 of 2022** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944** **WP(C) NO. 8986 OF 2022** ## **PETITIONERS:** 1 ABDULLA KOYA. T.V. AGED 56 YEARS,S/O/MUHAMMEDKUTTY, 15/821, FIDA MAHAL, KALLAI.P.O, KOTHY ROAD, NAINAM VALAPPU, KOZHIKODE - 673003., PIN - 673003 2 FAIZAL PALLIKANDY, AGED 49 YEARS, S/O.BEERAN KOYA,BINASHA MANZIL, CHAKKUMKADAVU, POST KALLAI, KOZHIKODE - 673003, PIN - 673003 BY ADVS. R.SUDHISH M.MANJU ## **RESPONDENT/S:** 1 THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001 ERNAKULAM, PIN - 695001 2 THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT. GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001, PIN - 695001 3 THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT CIVIL STATION, MALAPARAMBU, KOZHIKODE - 673020, PIN - 673020 4 KERALA COASTAL ZONE MANAGEMENT AUTHORITY, THAMPANOOR, K.S.R.T.C. BUILDING, 4TH FLOOR, OVERBRIDGE, THAMPANOOR, THIRUVANANTHAPURAM - 695001, PIN - 695001 5 POLLUTION CONTROL BOARD, REPRESENTED BY ITS CHAIRMAN, HEAD OFFICE, PATTOM P.O., THIRUVANANTHAPURAM - 695004, PIN - 695004 6 KOZHIKODE CORPORATION, 2 **W.P.(C) No. 8986 of 2022** REPRESENTED BY ITS SECRETARY, BEACH ROAD, KOZHIKODE - 673032, PIN - 673032 7 SEAMAK HITECH PRODUCTS, REPRESENTED BY THE MANAGING DIRECTOR REPRESENTED BY THE MANAGING DIRECTOR, NO. 797, 1ST FLOOR, 1ST CROSS, 12TH MAIN, HAL SECOND STAGE, INDIRA NAGAR, BENGALURU, KARNATAKA - 560008, PIN - 560008 BY ADV V.KRISHNA MENON ## **OTHER PRESENT:** 0 GP RIYAL DEVASSY; SC FOR KSPCB T.NAVEEN; SC FOR KCZMA M.P.PRAKASH **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON 14/11/2022 DELIVERED THE FOLLOWING:** 3 **W.P.(C) No. 8986 of 2022** **V.G.ARUN (J) ---------------------W.P.(C) No. 8986 of 2022 --------------------------------Dated this the 14[th] day of November, 2022** ## **JUDGMENT** The petitioners are residents of Azheekal-Pallikandi road near Kothi river in Kallai. The first petitioner is the President of the Sangamam Residents Association representing about 138 families residing in the area. The second petitioner is the General Secretary of the Kallaipuzha Samrakshana Samithi, formed for the protection of Kallai river. The Kothi river, which is a branch of the Kallai river, flows through the southern part of Kozhikode city. The petitioners are aggrieved by the proposal to set up a 'Decentralised Sewage Treatment Plant' on the banks of the Kothi river. On coming to know about the proposed project, the petitioners raised objections before the Kozhikode Corporation and also the Hon'ble Chief Minister. Their objections and repeated representations having failed to yield any positive 4 **W.P.(C) No. 8986 of 2022** result, this writ petition is filed seeking the following reliefs; i). Issue a Writ of Prohibition, prohibiting the 6th respondent from establishing the sewage treatment plant in the proposed site adjacent to Kothi river in Pallikandi. ii). Issue a writ of mandamus or any other appropriate writ, order or directing the 4[th] respondent to consider Exhibit P9 representation within a time frame fixed by this Honourable Court. Iii). Issue a writ of mandamus or any other appropriate writ, order or direction directing the 6th respondent to conduct an enquiry and hearing on the basis of Exhibit P1 representation and provide the petitioners an opportunity of being heard, within a time frame fixed by this Honourable Court. iv). Issue a declaration declaring that the river puramboke is a part of a river wherein the construction of sewage treatment plant is not permissible. 2. Adv.R.Sudhish, learned counsel for the petitioners put forth the following contentions to justify the challenge against the proposed Sewage Treatment Plant; The plant is proposed to be set up in a thickly populated residential area. Once the plant becomes functional, it will pose serious health hazard to the residents. Scientific 5 **W.P.(C) No. 8986 of 2022** studies have revealed that sewage treatment facilities generate noxious emissions and liquid effluents, which are hazardous to human health. The workers of the plant will also be exposed to particulate matter and bio aerosols. The proposed construction is in violation of the Coastal Regulation Zone notifications and provisions of the Kerala Municipality Building Rules. It will also have an adverse impact on the ecology, since large number of mangrove trees on the banks of the river will have to be cut down. The river basin, where the plant is proposed to be constructed, is prone to floods. Cutting down of the mangroves trees will worsen the situation. The river puramboke is revenue land and no construction can be effected without the Corporation obtaining permission from the Government. The Principal Bench of the National Green Tribunal, as per order dated 15/12/2020 in 0.A.No.22 of 2020(E2), has prohibited construction activities on river banks until the river plain areas are demarcated. The polluter pays and precautionary principles have to be read into the principle of sustainable development. The public trust doctrine, also require the Government and the Corporation to refrain from indulging in activities detrimental to the ecology and environment. It is so held in **Association for** **Environment Protection v. State of Kerala and Others** 6 **W.P.(C) No. 8986 of 2022** ## **[2013 (7) SCC 226].** 3. Adv.V.Krishna Menon, learned Counsel appearing for the Kozhikode Corporation, submitted that the petitioners' apprehensions are misplaced and enumerated the events leading up to the decision to construct the Sewage Treatment Plant as under : The Principal Bench of the National Green Tribunal, vide its order dated 20/9/2018 in OA No.673/2018,had directed to take action for rejuvenating the polluted rivers across India. The States and Union Territories were directed to prepare action plans for making the polluted rivers fit for at least bathing purposes within six months of finalisation of the action plan. Meanwhile, the Union Government evolved the 'Atal Mission for Rejuvenation and Urban Transformation (AMRUT) Scheme', intended to ensure proper supply of water and sewage connection to every household. The Corporation has envisioned the Sewage Treatment Plant in terms of the AMRUT Scheme and in tune with the NGT order. The fund for this project is shared by the Central Government/State Government/Local body in the ratio 50:30:20. Based on bids invited from interested consultancy firms empanelled by the Suchithwa Mission, M/s. Ram Biologicals was selected and engaged to prepare the 7 **W.P.(C) No. 8986 of 2022** Detailed Project Report(DPR) for the Decentralised Sewage and Septage Treatment Plant. The feasibility report was evolved and submitted by M/s.Ram Biologicals and the project was given administrative sanction for Rs.106.69 Crores. The DPR for sewage network and sewage treatment plants of capacities of 7 MLD and 6 MLD for the Kozhikode Municipal Corporation is intended to cover the main sources that pollute the storm water drains in the core city. The 6 MLD plant is being set up near Kothi river, so that the outflow of treated water from the plant will rejuvenate the Kothi and Kallai rivers. The High powered Steering Committee of AMRUT sanction accorded revised administrative sanction for Rs.116.50 Crores. Thereupon, the Government of Kerala issued Ext.R6(a) Government Order dated 30/3/2019 granting administrative sanction for the project. As per Ext.R6(c) Government Order dated 9/7/2021, the administrative sanction was revised to Rs.140 Crores, subject to the Corporation bearing 50% of the additional cost. Thereafter, the Pollution Control Board issued Ext.R6(d) consent to establish on 29/7/2021. The Coastal Zone Management Authority approved the construction of the 6 MLD Sewage Treatment Plant, subject to the project proponent undertaking to carry out compensatory planting of mangroves. 8 **W.P.(C) No. 8986 of 2022** Accordingly, the Kozhikode Corporation submitted Ext.R6(f) action plan, which envisages uprooting of mangroves from 1024 sq. meters in the proposed site and compensatory planting of mangroves in 3100 sq.meters in the Kootili wet land area. It is submitted that the DPR contains technical proposal for odour and noise control. As per the report, the water pumped out after treatment in the plant will be free of contamination and would aid in rejuvenating the Kallayi river. In view of the stringent measures being implemented, there will be no pollution in any form by the conduct of sewage treatment plant. As such, neither the principle of polluter pays or the Public Trust Doctrine comes into play. If the project is not completed by 31/3/2023, the Central Government aid of 50% will be withdrawn. 4. It is contended that the 2011 CRZ Notification is modified by the CRZ Notification of 2018. Therefore, reliance placed on the earlier notification is of no avail. The river puramboke having vested with the Corporation under Section 208A of the Municipality Act, the contention that the construction cannot be effected without obtaining sanction from Government is liable to be rejected. Reliance placed on the order dated 15/12/2020 of the NGT Principal Bench is misplaced 9 **W.P.(C) No. 8986 of 2022** since that order is with respect to the Mahanadhi river in Orissa and the reference therein is to the Yamuna river. Finally, it is contended that a well meaning project introduced by the Corporation in the larger scuttled interest of the public should not be allowed to be scuttled at the instance of a few individuals. 5. Adv.Prakash M.P., learned counsel appearing for the Kerala Coastal Zone Management Authority, submitted that the CZMA had granted Ext.R6(e) approval after considering all relevant aspects and based on the Corporation's undertaking to to do compensatory planting to compensate for the mangroves uprooted from the site. 6. Adv. T.Naveen, learned Standing Counsel for the Pollution Control Board, submitted that the Board had issued Ext.R6(d) consent letter after detailed inspection at the site , and on being convinced that, with the precautionary measures, no pollution beyond the prescribed limit will be generated from the Sewage Treatment Plant. 7. Adv. Riyal Devassy, the learned Government Pleader, submitted that the Government granted sanction for the project based on the administrative and technical sanction granted by the High Power Committee for implementation of **W.P.(C) No. 8986 of 2022** 10 AMRUT Scheme and in larger public interest. 8. Kallaipuzha is one of the smallest rivers in Kerala. traversing a distance of only 22 kms. It is linked to the Chaliyar by a man-made canal on the south side of the famous timber village called Kallai. Over a period of time, most of the timber units closed down as it became impossible to transport huge timber logs from Nilambur forest through Chaliyar and Kallai rivers. Disposal of hospital wastes and septage into the river has increased the presence of silt and slush manifold. Now movement of even small logs and canoes through Kallai river is impossible. Thus Kallaipuzha, once considered as the lifeline of Kozhikode is now on its death bed. 9. As far as Kerala and particularly Kozhikode is concerned,from the open defacation era, the people progressed to construction of toilets in houses, even them removal of excreta was done by way of manual scavenging. With modernization came closed toilets with seperate septic tank for each house. But, unscientific construction of septic tanks resulted in seepage of waste to the surrounding areas and the nearby wells. This accounts for the large presence of E.coli bacteria in well water. Presently the Corporation has a sewer network for certain areas. The Decentralised Sewage Treatment 11 **W.P.(C) No. 8986 of 2022** Plant and Sewerage network is envisaged to provide sewerage system in the western parts of the city, particularly the areas adjacent to the sea shore. 10. The proposed site for treatment plant is being in their locality, the petitioners are apprehensive that the proposed Plant will pose serious health hazards to them, by reason of water, noise and air pollution. A perusal of the Detailed Project Report (DPR) shows that the project proponent has dealt with all pollution possibilities. The Pollution Control Board granted consent for the plant on being convinced that the plant will not generate pollution beyond permissible limits. The petitioners hae not succeeded in establishing the possibility of pollution even with the pollution control measures suggested in the DPR. In such circumstances, this Court cannot sit in judgment over the Detailed Project Report, which was subjected to scrutiny by the High Power Committee, the Pollution Control Board, the KCZMA and the Government. 11. The contention that cutting of mangrove tress from the site will lead to ecological imbalance cannot also be countenanced since the competent authority, namely the KCZMA, has suggested an acceptable alternative by the Corporation effecting compensatory planting of the mangrove **W.P.(C) No. 8986 of 2022** 12 trees. On its part, the Corporation has submitted Ext.R6(f) plan undertaking to compensate for the mangrove trees being uprooted from 1024 sq.meter area, by planting mangroves trees over an area covering 3100 sq. meters. Ext.R6(e) approval was granted by the KCZMA on finding the Corporation proposal to be viable and acceptable. 12. As regards the contention that the Sewage Treatment Plant cannot be constructed adjacent to the water line, as it falls within the prohibited distance under the extant CRZ notification, I find force in the submission of the Standing Counsel for the Corporation that the rigor of the earlier notification stands relaxed by the notification of 2018. The petitioners have not succeeded in pointing out as to what exactly the violation would be. 13. The challenge on the premise that the construction is in a river bed and flood plane and therefore illegal, is put forth on the strength of the order passed by the NGT, Principal Bench. As rightly pointed out, that order was rendered in the context of erection of concrete structures adjacent to the Mahanadhi river in Orissa. Therein, the reference is to an earlier order dated 13/1/2015 of the NGT rendered in relation to the activities on the banks of river Yamuna. Therefore, the 13 **W.P.(C) No. 8986 of 2022** observation in the NGT order regarding demarcation of flood plains, identification of permissible and non- permissible activities and treating 100 meters distance from the edges of rivers as no development/construction zones is not of univeral application. A perusal of the order shows that the reference therein is to Segment-B of phase-1(Haridwar to Unnao, Kanpur). The contention that, no construction activity is permissible within 100 meters from the edge of Kallai river, cannot therefore be countenanced. 14. The contention that construction of structures,including tanks, without obtaining permission will violate the Kerala Municipality Building Rules, is an anticipatory contention and cannot therefore, be entertained at this stage. If at all any construction is effected without obtaining building permit or in deviation of the permit, the petitioners can bring it to the notice of the Corporation or take up the matter before the Ombudsman for Local Self Government Institutions or the Tribunal for Local Self Government Institutions, as the case may be. 15. The issue ultimately boils down to the drawing of a fine balance between development and ecology. As held by the Apex Court in _**Bombay Dyeing & Mfg. Co.Ltd.v.Bombay**_ 14 **W.P.(C) No. 8986 of 2022** _**Environmental Action Group[(2006) 3 SCC 434]**_ “the development of the doctrine of sustainable development indeed is a welcome feature. But, while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore intergenerational interest it is also not possible to ignore the dire need which the society requires” . I have no doubt that once the Sewage Treatment Plant and Sewerage Network becomes functional that will cater to an urgent need and will also help in rejuvenating the Kallai river. Needless to say that while implementing the project, the Kozhikode Corporation is bound to satisfy all statutory requirements. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN JUDGE** dpk 15 **W.P.(C) No. 8986 of 2022** ## **APPENDIX OF WP(C) 8986/2022** PETITIONER EXHIBITS Exhibit P1 REPRESENTATION MADE BY THE 1ST PETITIONER BEFORE THE MAYOR, KOZHIKODE CORPORATION DATED 21.12.2021 Exhibit P2 COPY OF THE RECEIPT OF THE FILE NO. 90690 SHOWING THE RECEIPT OF EXHIBIT P1 Exhibit P3 COPY OF THE REPRESENTATION MADE BY THE JANAKEEYA PRATHRODHA SAMITHI TO THE HON'BLE CHIEF MINISTER OF KERALA DATED 06.02.2022 Exhibit P4 COPY OF THE APPLICATION FILED UNDER THE RIGHT TO INFORMATION ACT DATED 8.2.2022 Exhibit P5 COPY OF THE THE REPLY DATED 21.2.2022 TO PROVIDED BY THE 6TH RESPONDENT Exhibit P6 COPY OF THE RELEVANT PAGE (PAGE NO.23) OF THE DETAILED PROJECT REPORT (DPR) SUBMITTED BY M/S RAM BIOLOGICALS Exhibit P7 COPY OF THE THE CIRCULAR ISSUED BY THE 5TH RESPONDENT DATED 10.9.2021 Exhibit P8 PHOTOGRAPHS SHOWING THE CURRENT NATURE OF THE AREA PROPOSED TO BE USED FOR THE CONSTRUCTION OF SEWAGE PLANT Exhibit P9 COPY OF THE REPRESENTATION DATED 10/03/2022 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT RESPONDENT EXHIBITS EXT.R6(a)COPY OF THE ORDER GO(RT)NO.769/2019/LSGD DATED 30/3/2019 Exhibit EXT.R6(b) COPY OF THE MINUTES OF THE MEETING OF THE TECHNICAL COMMITTEE HELD ON 28/2/2019 Exhibit EXT.R6(c) COPY OF THE ORDER GO(RT) NO.1297/2021/LSGD DATED 9/7/2021 Exhibit EXT. R6(d)COPY OF THE ORDER NO.PCB/RO/KKD/ICE/R21KOZ582399/14971322 16 **W.P.(C) No. 8986 of 2022** /2021 DATED 29/7/2021 Exhibit EXT. R6(f) COPY OF THE ACTION PLAN FOR COMPENSATORY PLANTATION. Exhibit EXT. R6(g) COPY OF THE TECHNICAL PROPOSAL FOR THE ODOUR CONTROL SYSTEM THAT HAD BEEN SUBMITTED TO THE 5TH RESPONDDENT. Exhibit EXt. R6(h) COPY OF THE MINUTES OF THE MEETING HELD AT THE INSTANCE OF THE MAYOR ON 4/2/2022 Exhibit EXT.R6(e) COPY OF THE MINUTS OF THE MEETING HELD BY THE 4TH RESPONDENT. EXT.R6(i): COPY OF THE CORRECTED CONSENT VARIATION ORDER NO.PCB/RO/KKD/ICE/R21KOZ582399/2021 DATED 31/3/2022 EXT.R6(j)COPY OF THE FINAL DETAILED SITE PLAN ALONG WITH THE SITE SURVEY DDETAILS OBTAINED FROM THE TOWN SURVEYOR. EXT.R6(k):COPY OF THE RELEVANT PAGES OF THE DPR. PETITIONERS EXHIBITS Exhibit Exhibit P11 COPY OF THE TEST REPORT GIVEN BY THE KERALA WATER AUTHORITY DATED 28/6/2021 Exhibit Exhibit P10 PHTOGRAPHS OF THE LOCALITY, THE PROPOSED LAND FOR THE SEWAGE AND SEPTAGE TREATMENT PLANT AND NATURE AND LYE OF THE RIVER AND THE SEA. EXT.P12 PHOTOGRAPHS SHOWING THE PUBLIC PROTEST AGAINST THE PROPOSED PLAN OF THE 6TH RESPONDENT. EXT.P13: PHOTOGRAPHS OF THE PLACE PROPOSED BY THE PUBLIC FOR THE IMPLEMENTATION OF THE SEWAGE TREATMENT PLANT.