Anil Kumar Kunnum Mezhukath v. Union of India, State of Kerala, Environmental Engineer, Pollution Control Board, Kollam Corporation, District Collector and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 24[TH] DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945** ## **WP(C) NO. 9512 OF 2021** ## **PETITIONER:** **ANIL KUMAR KUNNUM MEZHUKATH HOUSE, KUREEPUZHA, KAVANAD P.O., KOLLAM - 691 003.** **BY ADVS. SRI.R.KRISHNA RAJ SMT.E.S.SONI SMT.KUMARI SANGEETHA S.NAIR** ## **RESPONDENTS:** |**1**|**THE UNION OF INDIA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**MOEF, NEW DELHI - 110 011.**| |**2**|**THE STATE OF KERALA**| ||**REPRESENTED BY ITS SECRETARY,**| ||**LOCAL SELF GOVERNMENT DEPARTMENT,**| ||**GOVERNMENT OF KERALA,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**3**|**THE ENVIRONMENTAL ENGINEER**| ||**POLLUTION CONTROL BOARD,**| ||**DISTRICT OFFICE, KADAPPAKKADA,**| ||**KOLLAM - 691 013.**| |**4**|**THE CORPORATION OF KOLLAM**| ||**REPRESENTED BY ITS SECRETARY,**| ||**KOLLAM - 691 013.**| |**5**|**DISTRICT COLLECTOR**| ||**KOLLAM - 691 013.**| ||**BY ADVS.**| ||**SMT.K.R.DEEPA Spl. GOVT. PLEADER**| W.P.(C) No.9512/21 **-:2:-** **SMT.VANDANA P., CGC S.SREEKUMAR (KOLLAM), SC SRI.T.NAVEEN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2023, THE COURT ON 24.11.2023 DELIVERED THE FOLLOWING:** **-:3:-** W.P.(C) No.9512/21 ## **BECHU KURIAN THOMAS, J. -------------------------------W.P.(C) No.9512 of 2021** **---------------------------------** Dated this the 24[th] day of November 2023 ## **JUDGMENT** Petitioner's grievance is against the attempt of the State Government and Kollam Corporation to establish a comprehensive solid waste-to-energy plant on a property having an extent of 2.85 hectares (7.05 acres) at Sakthikulangara in Kollam district. He has sought the following relief: “ _a. Direct the 1[st] respondent not to implement the proposal of establishment of Comprehensive Solid Waste to Energy System at 2.58 Hectors (sic) of land of Kollam Corporation, at Sakthikulangara, Kollam West, of Thrikkadavoor Village as mentioned in Ext.P15 which is the subject matter of OA 459/13 and 456/13 till the disposal of the above case by the issue of Writ of mandamus or such other Writ, Order or Direction.”_ 2. As a justification for the above relief claimed, petitioner alleged that the Kollam Corporation owns 16 Acres of land at Kureepuzha in Sakthikulangara, adjacent to the Ashtamudi Lake. When the Corporation attempted to establish a waste treatment W.P.(C) No.9512/21 **-:4:-** plant on that site in the year 2011, the residents objected and filed two writ petitions as W.P.(C) No.26487 of 2011 and W.P.(C) No.36792 of 2018. This Court directed the constitution of a Committee headed by the Principal District Judge as the Chairperson to determine whether the proposal to establish the plant at Kureepuzha was feasible. 3. Petitioner further alleged that the Committee submitted Ext.P1 report dated 05.02.2012, observing that the site had to be shut down and a suitable and ideal plot outside the city will have to be identified. According to the petitioner, after the report was submitted, the aforestated two writ petitions were transferred to the National Green Tribunal, Southern Bench, Chennai, (for short, NGT) where it is pending as O.A. No.439 of 2013 and O.A. No.456 of 2013. Petitioner alleged that, after considering the report of the Committee constituted by this Court, the NGT directed the Corporation to identify a site suitable for establishment of the integrated solid waste treatment plant, in accordance with the siting criteria. Petitioner also alleged that though such a direction was issued, till date, an alternate site has not been found by the Corporation and despite several orders issued by the NGT, the Kerala Government and the **-:5:-** W.P.(C) No.9512/21 Corporation are proceeding to set up a solid waste treatment plant at Kureepuzha. 4. Petitioner also alleged that the site now identified by the Corporation and the State Government to set up the waste treatment plant is the same site, which was found unsuitable by the Committee and hence, the respondents have no authority to set up the plant at the site at Kureepuzha in Sakthikulangara. It has also been pleaded in the reply affidavit and the additional reply affidavit that the initial sanction to set up a plant of 40 MTPD is now seen enhanced to 200 MTPD. It is also alleged that the exact site of the proposed plant has not been revealed since the area falls within the CRZ limits. In the additional reply affidavit, the petitioner has raised a new pleading that the area is apprehended to be part of the Devaswom land. Petitioner alleged that collateral materials would have to be looked into, to ascertain the nature of the property 5. Initially, a statement was filed by the fourth respondent, which was later followed by a counter affidavit. It is averred that the erstwhile Quilon Municipality had acquired 4 Acres of land in 1940 to be used as a soil depot. Since the said area was remote and sparsely populated, the site was used for dumping waste. By W.P.(C) No.9512/21 ## **-:6:-** the year 2007, the Corporation initiated steps to end the open dumping and resolved to purchase 13.82 Acres of land from various persons adjoining the 4 Acres already under its ownership for establishing the waste plant. Finally, except for a portion of 22.38 Ares, the Corporation purchased the remaining land. 6. Elaborating on the steps initiated, the fourth respondent pleaded that, though a scientific treatment plant was proposed to be constructed, it could not be completed due to disputes raised by nearby residents. In Ext.P1 Committee report, it was suggested that a state-of-the-art plant must be constructed with sufficient infrastructure to produce energy from the waste materials. Based on the above report, the Corporation decided to construct a plant by adopting advanced scientific and technical measures and compliance with the Solid Waste Management Rules, 2016. It is stated that already more than Rs.10 Crores have been spent on setting up the treatment plant. 7. The fourth respondent also averred that after a feasibility study by the State Government, seven places in the State were identified for installing waste-to-energy plants, which included the site at Kureepuzha, Kollam. The Government W.P.(C) No.9512/21 **-:7:-** thereafter entrusted the Kerala State Industrial Development Corporation (KSIDC) as the executing agency, and about 7.05 Acres of land at Kureepuzha was handed over under a lease for the construction of the said plant. Pursuant to the above, all permissions were obtained, including NOC from the Department of Fire and Rescue Services, consent to establish from the Pollution Control Board, permit from the Director of Factories and Boilers and even the approval from the Chief Town Planner and the District Town Planner. It was also pleaded that the Kerala Coastal Zone Management Authority had informed that permission from them, for the plant, was unnecessary since the proposed area is 100 metres away from the lake. In the meantime, to create a buffer zone around the proposed plant, the Corporation Council resolved to acquire 22.38 Ares of property from eight landowners and the Government granted sanction for acquisition and notice was issued as per the Statute on 07.03.2022. However, in the meantime, this Court interfered and stayed the acquisition proceedings. 8. Corporation further averred that a modern biomethanation technology is going to be adopted in the proposed organic waste treatment plant having a capacity of 200 **-:8:-** W.P.(C) No.9512/21 TPD, and biogas and organic fertilizers will be produced from the plant through anaerobic digestion without any poisonous gas or wastewater being released. It was stated that the Corporation had already taken steps for removing the legacy waste as per the interim orders of the NGT through bio-mining, and the entire legacy waste have been removed as on date. The fourth respondent further averred that no other suitable plot is available within the limits of Kollam Corporation to establish the project, and an alternate site could not be identified due to the high density of population. Alleging that the petitioner is neither a nearby resident nor an owner of any land near the project area, it was stated that the waste treatment plant is essential for the needs of the public. The present practice of dumping waste by the public carelessly in public places, including the Ashtamudi Lake and other water streams, is polluting the environment and the treatment plant will bring great relief to the city of Kollam. 9. A counter affidavit has been filed by the District Collector pointing out that the policy decision of the Government to establish a comprehensive solid waste system in the State of Kerala is being implemented, and various steps have been initiated to effect the said policy. It is also stated that the **-:9:-** W.P.(C) No.9512/21 acquisition proceedings were ongoing until it was stayed by this Court. 10. I have heard Sri.R.Krishna Raj, the learned counsel for the petitioner, Sri.S.Sreekumar (Kollam), the learned Standing Counsel for the Corporation, Sri.T.Naveen, learned Standing Counsel for the Kerala State Pollution Control Board as well as Smt.K.R.Deepa, the learned Special Government Pleader. 11. The pleadings reveal that the Kollam Corporation owns an extent of more than 17.80 Acres of land at Kureepuzha and a further 22.38 Ares is in the process of acquisition for creating a buffer zone for the proposed waste treatment plant. The site is under the absolute ownership of the Corporation. 12. The legacy waste due to continued open dumping had caused serious pollution issues. As is noticed from Ext.P1 report of the Committee appointed by this Court, a safe distance from the residential properties was not maintained, the roads leading to the plant were through a residential area and huge quantities of unseparated solid waste were dumped around the land to a height of 3 to 4 metres. It was further observed that waste was not even dumped scientifically. The nearby dwelling houses were noted to be at a distance of just 5 metres from the site, with W.P.(C) No.9512/21 ## **-:10:-** leachate from the dumped waste flowing into the Ashtamudi Lake without any filtering process. After referring to the above aspects, the report suggested that the Corporation should find suitable places with little inhabitation for the disposal of waste rather than concentrating in thickly populated areas and that there are several extinct quarries in the outskirts of the city which can be used for landfill and processing of waste. The report further observed that proper and ideal waste disposal sites can be identified and selected. Notwithstanding the above, the report observed that the existing plant should be shut down, provided a state-of-the-art unit with sufficient infrastructure to produce energy or organic fertilizer is set up. 13. Though the above report was filed before the court in 2012, no consequential directions is seen to have been issued. There is nothing to indicate that the report was accepted. However, it is evident from the various orders of the NGT that subsequent to the report of the Committee, the NGT was informed that an alternate site was not available. Neither this Court nor the NGT has issued any order restraining the land at Kureepuzha, from being used for setting up a waste treatment plant. Though the NGT had observed that the site proposed by W.P.(C) No.9512/21 ## **-:11:-** the Government and the Corporation, to set up a new plant is the same, there was no specific interdiction from using the present site at Kureepuzha for setting up a new plant. Thus, there is no embargo on using the land at Kureepuzha, Sakthikulangara, owned by the Kollam Corporation, for setting up a waste-to-energy plant. 14. In fact, it is seen from the various orders of NGT that it focused more on removing the legacy waste from the site at Kureepuzha. As noted earlier, the report had suggested identifying alternate sites unless a modern plant with state-ofthe-art facilities is set up. In fact, there is now no dispute that the entire legacy waste had been removed and as on date, there is zero percent of such open waste kept in the area. The NGT had, in its order dated 11.02.2019 (Ext.P6) noted the submission of the Corporation that no other suitable site could be identified. Still the Corporation was requested to search for an alternate site. Thereafter, in the order dated 25-02-2019, (Ext.P7), NGT has observed “ _In so far the decentralized Solid Waste Treatment Plant is concerned we do not find any difficulty if the Kollam Municipality to continue with the project subject to compliance of Environmental Laws but, the matter pertaining to legacy waste_ W.P.(C) No.9512/21 ## **-:12:-** _is a matter of grave concern considering the serious polluting potential”._ The above observations indicate that the NGT had in fact given the green signal to go ahead with the project to set up the waste treatment plant and was more concerned with the accumulated waste. 15. Even otherwise, Ext.P1 is only a report of a Committee constituted by this Court. There is a distinction between the report of a Committee constituted under the direction of the Court in its adjudicatory powers and an Expert Committee constituted by the Government in exercise of the executive powers under a Statute. The former is only a fact-finding body the report of which may or may not be accepted by Court, while the report of the latter is subject to judicial review. ## 16. In the decision in **Kantha Vibhag Yuva Koli Samaj Parivartan Trust and Others v. State of Gujarat and Others** [2022 SCC Online SC 120], the Supreme Court observed that “ _It is first important to differentiate expert committees which are set by the courts/tribunals from those set up by the Government in exercise of executive powers or under a particular statute. ……………. On the other hand, courts/tribunals themselves set up expert committees on occasion. These committees are set up because the fact-finding_ W.P.(C) No.9512/21 ## **-:13:-** _exercise in many matters can be complex, technical and timeconsuming, and may often require the committees to conduct field visits. …………… Once these committees submit their final reports to the court/tribunal, it is open to the parties to object to them, which is then adjudicated upon. The role of these expert committees does not substitute the adjudicatory role of the court or tribunal. The role of an expert committee appointed by an adjudicatory forum is only to assist it in the exercise of adjudicatory functions by providing them better data and factual clarity, which is also open to challenge by all concerned parties.”_ 17. Thus, in the absence of any consequential order by this Court or the NGT, pursuant to Ext.P1, interdicting the setting up of a waste treatment plant at Kureepuzha, the petitioner's demand cannot be acceded to. 18. In this context, it is fruitful to bear in mind that whenever and wherever a waste treatment plant is proposed to be set up, there will invariably be objections from the locals. Those objections, though not necessarily baseless, will have to be considered in the backdrop of the type of facility proposed to be set up. If the proposal is for an open dump site, the grievances of the locals could be justified. If proper treatment **-:14:-** W.P.(C) No.9512/21 plants are set up in accordance with law, that too with the aid of modern technology, the cause for grievance of the locals could be significantly mitigated. However, only after the plant is set up would any authority be able to identify whether the grievance is justified or not. 19. On a perusal of the counter affidavits, it is evident that the proposal is to set up a state-of-the-art waste-to-energy treatment plant at the site. The Solid Waste Management Rules, 2016 stipulate various methods and processes to be complied with. The respondents have come on record that a modern biomethanation technology will be adopted in the proposed organic waste treatment plant. Biogas and organic fertilizers are proposed to be produced through anaerobic digestion without release of any poisonous gas or wastewater. Through its policy, the State Government also intends to create proper waste management systems under the Haritha Kerala Suchitwa Mission. These proposals, if implemented, ought to allay the apprehensions, if any, of the petitioner. 20. Further, the density of the population of Kollam district, coupled with the assertion of the Government that no other area could be identified as suitable for setting up the plant, **-:15:-** W.P.(C) No.9512/21 impels this Court not to interdict or interfere with the setting up of such a plant at Corporation’s own premises. 21. The allegation regarding the Devaswom land being encroached upon by the Corporation is also baseless since the Government Pleader had submitted that after surveying the properties, it was evident that no property of the Devaswom is seen included or acquired by the Corporation. Petitioner, in fact, has not pleaded such a case in the writ petition and it was only in the additional reply affidavit that he raised this contention. The contention is based only on an apprehension and not on any reliable material. Suffice to say, since the survey of the properties had been conducted, as submitted by the learned Government Pleader, and none of the statutory authorities have identified any Devaswom land in possession of the Corporation, the said contention is rejected. 22. Regarding the enhancement of the plant's capacity, this Court bears in mind that the plant has to cater to the growing needs of society. The quantity of waste generated increases every year. The Corporation has to envisage the future increase in waste generation while setting up a plant. It cannot be confined to what was proposed decades ago. Therefore, the **-:16:-** W.P.(C) No.9512/21 enhancement in the capacity of the waste treatment plant cannot be a reason to interdict the setting up of such a plant. Necessary approvals and permissions will certainly have to be obtained and there is no reason to assume that such permissions will not be obtained. Due to the repeated litigations being filed, the entire process of setting up the plant has come to a standstill. 23. In Ext.P15, the Government had issued an order granting sanction to establish comprehensive solid waste-toenergy (WTE) systems at seven locations in the State of Kerala. It appointed KSIDC as the nodal agency to set up the plant in collaboration with the local bodies and a Concessionaire. 2.85 hectares (7.05 acres) of land in the possession of Kollam Corporation at Kureepuzha in Sakthikulangara was identified as one of the seven locations. Though the said sanction is for a 5 MW Solid Waste-to-Energy plant, as mentioned in the preceding paragraph, nothing restricts the Government from enhancing the plant's capacity, based upon the requirements of the Corporation. 24. Apart from the above, this Court has noticed a judgment of the Division Bench dated 24.06.2022 in W.P.(C) No.17375 of 2021 and W.P.(C) No.702 of 2021, relating to issues **-:17:-** W.P.(C) No.9512/21 raised by other persons against the very same site, which is the subject matter of dispute in this writ petition also. By the above judgment, the Division Bench has rejected the allegations regarding CRZ violations. 25. Bearing in mind the above aspects and taking into reckoning the circumstance that there is no interdiction against setting up the waste treatment plant at Kureepuzha in Sakthikulangara, pursuant to Ext.P1 report, this Court is of the view that this writ petition lacks merit and is liable to be dismissed. Hence, this writ petition is dismissed. ## **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps ## W.P.(C) No.9512/21 **-:18:-** ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS** - **EXHIBIT P1 COPY OF THE REPORT OF THE DISTRICT AND SESSIONS JUDGE, KOLLAM.** - **EXHIBIT P2 COPY OF THE ORDER IN APPLICATION NO.439/2016 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P3 COPY OF THE ORDER IN APPLICATION NO.439/2016 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P4 COPY OF THE ORDER IN O.A.515/18 & 516/18 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P5 COPY OF THE ORDER IN O.A.515/18 & 516/18 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P6 COPY OF THE ORDER IN O.A.515/18 & 516/18 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P7 COPY OF THE ORDER IN O.A.515/18 & 516/18 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P8 COPY OF THE ORDER IN APPLICATION NO.439/13 & 456/13 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P9 COPY OF THE ORDER IN REVIEW APPLICATION NO.7/20 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P10 COPY OF THE ORDER IN ORIGINAL APPLICATION NO.439/13 & 456/13 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P11 COPY OF THE ORDER IN APPLICATION NO.439/13 & 456/13 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P12 COPY OF THE ORDER IN O.A.NO.606/2018 OF THE NATIONAL GREEN TRIBUNAL.** W.P.(C) No.9512/21 ## **-:19:-** **EXHIBIT P13 COPY OF THE ORDER IN APPLICATION NO.439/13 & 456/13 OF THE NATIONAL GREEN TRIBUNAL.** - **EXHIBIT P14 COPY OF THE ORDER OF THE KERALA STATE HUMAN RIGHTS COMMISSION.** - **EXHIBIT P15 COPY OF THE GOVERNMENT ORDER. Exhibit P16 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 07/03/2022.** - **Exhibit P17 TRUE COPY OF THE LOCATION SKETCH DATED NIL** - **Exhibit P18 TRUE COPY OF THE LETTER SENT FROM THE SCIENCE AND TECHNOLOGY DEPARTMENT, GOVERNMENT OF KERALA TO THE PROJECT DIRECTOR, KERALA SUSTAINABLE URBAN DEVELOPMENT PROJECT (KSUDP) DATED 27/4/2011** - **Exhibit P19 TRUE COPY OF THE LETTER SENT BY THE MEMBER SECRETARY, KCZMA TO SRI.MANALIL K.SANTHOSH, SECRETARY, MANUSHYAVAKASA PARISHTITHI SAMRAKSHANA SAMITHI DATED 22/3/2012** - **Exhibit P20 TRUE COPY OF THE REPORT OF THE CHIEF SCIENTISTS DATED NIL** - **Exhibit P21 TRUE COPY OF THE ORDER OF THE GREEN TRIBUNAL DATED 15/07/2016** - **Exhibit P22 TRUE COPY OF THE SITE MAP DATED NIL Exhibit P23 TRUE COPY OF THE SETTLEMENT REGISTER DATED NIL** - **Exhibit P24 TRUE COPY OF THE LETTER OF SPECIAL TAHSILDAR DATED 21/08/2009** - **Exhibit P25 TRUE COPY OF THE ORDER OF THE APEX COURT IN W.P(C) 649/2018 DATED 05/07/2018** W.P.(C) No.9512/21 ## **-:20:-** ## **RESPONDENT'S/S' EXHIBITS** **Exhibit R4(a)** **COPY OF THE NO-OBJECTION CERTIFICATE DATED 23-04-2022 FOR BUILDING PERMIT ISSUED BY THE DEPARTMENT OF FIRE AND RESCUE SERVICES.** **Exhibit R4(b)** **COPY OF THE CONSENT TO ESTABLISH RECEIVED FROM THE POLLUTION CONTROL BOARD DATED 10-01-2022.** **Exhibit R4(c)** **COPY OF THE PERMIT ISSUED BY THE DIRECTOR, FACTORIES & BOILERS DATED 21-02-2022.** - **Exhibit R4(d)** - **COPY OF THE APPROVAL DATED 19-02-2022 ISSUED BY THE CHIEF TOWN PLANNER.** **Exhibit R4(e)** - **COPY OF THE APPROVAL DATED 25-02-2022 ISSUED BY THE DISTRICT TOWN PLANNER.** **Exhibit R4(f)** - **COPY OF GOVERNMENT ORDER OF THE LSGD DEPARTMENT BEARING NO.106/2022/LSGD DATED 14-01-2022 GRANTING ADMINISTRATIVE SANCTION.** **Exhibit R4(g)** - **COPY OF THE GOVERNMENT ORDER OF THE REVENUE DEPARTMENT BEARING NO. 304/2022/RD DATED 18-01-2022 GRANTING SANCTION FOR ACQUISITION OF 22.38 ARES OF LAND.** - **Exhibit R4(h) COPY OF THE LETTER DATED 16-03-2022 ISSUED BY THE SPECIAL TAHSILDAR LA.NO.2 KOLLAM DIRECTING THE CORPORATION TO DEPOSIT 30% OF THE COMPENSATION AMOUNT AS WELL AS 5% OF THE CONTINGENCY CHARGES.**