L. Thankamma v Rubber Board and others (W.P.(C) No. 14311 of 2008)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 13TH DAY OF JUNE 2014/23RD JYAISHTA, 1936 ## **WP(C).No. 14311 of 2008 (S)** ---------------------------- PETITIONER(S): -------------- L.THANKAMMA, MYCOLOGIST(RETD)., RUBBER RESEARCH INSTITUE OF INDIA T.C.226/VI, PRASANTH NAGAR, THIRUVANANTHAPURAM-695011. BY ADV. L.THANKAMMA (PARTY-IN-PERSON) RESPONDENTS: --------------- 1. THE CHAIRMAN, RUBBER BOARD, RUBBER BOARD HEAD OFFICE, SUBJAIL ROAD KOTTAYAM-686002. 2. THE HEALTH SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT TRIVANDRUM. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVT. SECRETARIAT, TRIVANDRUM. *ADDL.R4 DR. M.C. GEORGE, S/O. LATE SRI M.C.CHACKO, MANAYATH HOUSE, AYAVANA P.O. MUVATTUPUZHA (*ADDL.R4 IS IMPLEADED AS PER ORDER IN I.A.No.7417/2008 DATED 16.06.2008) R1 BY ADV. SRI.JOSEPH KODIANTHARA, SC. BY ADV. SRI.TERRY V.JAMES R2-R3 BY GOVERNMENT PLEADER MR. P.I. DAVIS ADDL.R4 BY ADV. SMT.ASHA CHERIAN ADDL.R4 BY ADV. SRI.M.A.THOMAS KUTTY ADDL.R4 BY ADV. SMT.SARAMMA CHERIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.05.2014, THE COURT ON 13-06-2014 DELIVERED THE FOLLOWING: **WP(C).No. 14311 of 2008 (S)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |EXT.P1||COPY OF RESEARCH PAPER BY DR. LEELA ITLY AMMA| |---|---|---| |EXT.P2|:|ACTION PLAN FOR PREVENTION AND CONTROL OF CHIKUNGUNYA| |||IN KERALA, GOVT. OF KERALA| |EXT.P3|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.14.06.2007| |EXT.P4|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P5|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P6|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P7|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P8|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P9|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P10|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P11|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P12|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P13|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P14|:|NEWSPAPER REPORT IN MATHRUBHUMI DAILY ON CHIKUNGUNYA| |||DISEASE AND EPIDEMIC FEVER DTD.13.06.2007| |EXT.P15|:|TRUE COPY OF “LETTER TO THE READERS” BY SAJAN PETER| |||CHAIRMAN, RUBBER BOARD WITH TRANSLATION IN ENGLISH| |EXT.P16|:|REPORT ON LOSS OF TAPPING DAYS IN THE MATHRUBHUMI| |||DAILY DTD.23.07.2007| |EXT.P17|:|REPORT ON LOSS OF TAPPING DAYS IN THE MATHRUBHUMI| |||DAILY DTD.25.06.2007| |EXT.P18|:|REPORT ON LOSS OF TAPPING DAYS IN THE MATHRUBHUMI| |||DAILY DTD.18.07.2007| |EXT.P19|:|REPORT ON LOSS OF TAPPING DAYS IN THE MATHRUBHUMI| |||DAILY DTD.19.07.2007| |EXT.P20|:|TRUE COPY OF NOTICE SENT TO THE CHAIRMAN, RUBBER| |||BOARD/REPONDENT NO.1| ## **WP(C).No. 14311 of 2008 (S)** EXT.P21 : TRUE COPY OF LETTER TO THE SECRETARY FOR HEALTH, GOVT. OF KERALA EXT.P22 : TRUE COPY OF LETTER TO THE CHIEF SECRETARY , GOVT. OF KERALA EXT.P23 : COPY OF LETTER SENT TO DISTRICT COLLECTOR, KOTTAYAM. EXT.P24 : COPY OF LETTER SENT TO DISTRICT COLLECTOR, PATHANAMTHITTA EXT.P25 : TRUE COPY OF NEWSPAPER REPORT ON HIGH COURT ORDER DURING 2007 EXT.P26 : TRUE COPY OF STATEMENT MADE BY CENTRAL MINISTER OF COMMERCE. EXT.P27 : TRUE COPY OF INFORMATION SUPPLIED BY RESPONDENT 1 ON DATA ON YIELD OF RUBBER DURING THREE YEARS. EXT.P27 : TRUE COPY OF CERTIFICATE OF AWARD. (produced a/w. Reply affidavit dated 10.01.2014) EXT.P28 : TRUE COPY OF LETTER OF APPRECIATION. EXT.P29 : TABLE 1 SHOWING TAPPING FREQUENCY RECOMMENDED EXT.P30 : TABLE 2 SHOWING LIST OF BENEFITS OFFERED BY THE NEW IUT RUBBER TAPPING TECHNOLOGY. EXT.P31 : CERTIFICATE OF 1ST PRIZE AWARDED IN THE SASTHRA JALAKAM NATIONAL SCIENCE EXPO OF KSESTE EXT.P32 : TABLE SHOWING DISTRICT WISE AREA RUBBER ESTATES AND INCIDENCE OF CANCER CASES. **RESPONDENTS ANNEXURES/EXHIBITS:** EXHIBIT R4(A) TRUE COPY OF THE TABLE 4 OF VOL.35/2012 OF THE INDIAN RUBBER STATISTICS PUBLISHED BY RUBBER BOARD. EXHIBIT R4(B) TRUE COPY OF RELEVANT PORTION OF THE TEXT BOOK. “MANUAL OF ZOOLOGY WRITTEN BY SRI M.EKAMBARANATHA IYER, RETIRED PROFESSOR OF ZOOLOGY, PRESIDENCY COLLEGE, MADRAS. ANNEXURE 1 : TRUE COPY OF TABLE 4 OF VOLUME 30/2007 OF INDIAN RUBBER STATISTICS PUBLISHED BY RUBBER BOARD. ANNEXURE II : TRUE COPY OF RELEVANT PORTION OF THE TEXT BOOK - “MANURAL OF ZOOLOGY WRITTEN BY SRI M.EKAMBARANATHA IYER, RETIRED PROFESSOR OF ZOOLOGY, PRESIDENCY COLLEGE, MADRAS. ANNEXURE III(a): TRUE PHOTOGRAPH OF PLASTIC SHEET RAIN GUARD. ANNEXURE III(b): TRUE PHOTOGRAPH OF PLASTIC PAPER RAIN GUARD. /TRUE COPY/ P.S. TO JUDGE. ## **MANJULA CHELLUR, CJ & P.R. RAMACHANDRA MENON, J.** .............................................................................. **W.P.( C) 14311 OF 2008** ......................................................................... **Dated this the 13[th] June, 2014** ## **J U D G M E N T** ## **P.R. Ramachandra Menon, J.** Outbreak of the disease 'Chikungunya' in Kerala during 2007-08 made the petitioner to approach this Court by way of this writ petition styled as 'PIL', seeking to bring forth a ban on 'rainy season rubber tapping' contending that rubber plantations are the most fertile breeding grounds for mosquitoes which spread the disease. 2. The petitioner is a Mycologist, retired from the service of the Rubber Research Institute of India, who claims to have a research experience for nearly 44 years as Scientist and is stated as having several innovative ideas and inventions to her credit while in service and even after retirement. It is with intent to curb the menace of vector borne disease like 'Chikungunya', that the petitioner has volunteered to bring about the relevant facts and figures suggesting a solution to solve the crisis. **2** ## **W.P.( C) 14311 OF 2008** ## 3. The prayers raised in the writ petition are in the ## following terms : _“1. to issue a writ of mandamus or other appropriate writ order or direction commanding the 3[rd] respondent to issue orders to put an end to rainy season rubber tapping commencing from 2[nd] week of May, June and July on a permanent basis from 2008 season onwards as a preventive measure against Chikungunya and other infectious diseases by effecting mosquito control and also to issue strict instructions to remove all latex collection cups, all varieties of rain guards containers and plastic sheets on the ground from the estate/holdings positively before the middle of May so that the areas are totally free from all facilities for water stagnation favouring mosquito multiplication._ _2. To direct the 2[nd] and 3[rd] respondents to take adequate preventive measures against the spread of Chikungunya and other epidemic fevers in the State._ _3. To direct 1[st] respondent to ensure that rainy season tapping is not carried out from 2[nd] week of May 2008 onwards in the Rubber Plantation of Kerala State . Since the epidemic threat is expected by the middle of May 2008 positively a most immediate_ **W.P.( C) 14311 OF 2008** **3** _action is earnestly prayed for so as to avert the most disastrous impending danger in time.”_ 4. Separate counter affidavits have been filed by the respondents 1-3 and the additional respondent 4 pointing out that the idea and understanding of the petitioner with the proposition mooted to ban 'rainy season rubber tapping' so as to oust the disease 'Chikungunya', is throughly wrong and misconceived. 5. The first respondent/Rubber Board in fact is a statutory Body constituted under the Rubber Act, 1947 to promote development of rubber industry in the country. Section 8 of the Act mandates it as the duty of the Board, to promote by such measures as it thinks fit, for development of the Rubber Industry. It is asserted by the first respondent/Rubber Board that the contentions of the petitioner are not based on any scientific investigation or proven scientific results, but are more based on media reports/hear-say/conjectures/surmises, without any regard to the rights and interests of large number of small and marginal farmers. It is also asserted that the Board does not **W.P.( C) 14311 OF 2008** **4** have any statutory power under Law, to prohibit rubber tapping during rainy season; however pointing out that regular tapping during Monsoon is much desirable, as it will ensure that rain water does not accumulate in the Latex cups and that there is no chance for mosquitoes to breed in the cups. It is stated that Latex production is more during Monsoon time and further that instructions/advices have been given to the Tappers/growers with regard to the threat of 'Chikungunya' and the precautionary measures to be adopted in the Plantations; particularly by keeping the collection cups upside down, after taking the Latex. It is also pointed out that, a close analysis of epidemiology of 'Chikungunya' would reflect that incidence of the disease is not associated with rubber plantations and that the disease has occurred in many places outside and even within Kerala where no rubber is grown. 6. In the counter affidavit filed on behalf of the respondents 2 and 3, maintainability of the writ petition itself is questioned, wherein preventive measures to meet the threat of 'Chikungunya' have been described as well. Though it is stated that, rubber plantations also contribute to the breeding of 'Aedes **W.P.( C) 14311 OF 2008** **5** mosquitoes' which spread the disease 'Chikungunya', special efforts and preventive measures being taken are emphasised; simultaneously adding that Monsoon time is the season when rubber yield is at the maximum and that the Rubber Board encourages rubber growers to do tapping even during Monsoon season after rain guarding the rubber tress. According to the said respondents, the regular tapping during Monsoon will ensure that rain water does not accumulate in the latex cups and as such, there is no chance for mosquitoes to breed in the cups; more so when the growers are advised to keep the cups upside down after collecting the latex. 7. The measures taken by the Health Services Department with the help of the other departments and the Rubber Board to prevent breeding of mosquitoes in plantations, including in rubber estates, have been described in paragraph 4 of the said counter affidavit, which reads as follows : 4. The Health Services Department with the help of other Departments and Rubber Board had taken the following steps to prevent breeding in all plantations including rubber estates. i. To motivate the rubber estate/plantation **6** ## **W.P.( C) 14311 OF 2008** owners to keep the cup upside down after latex collection during rainy season. ii. To facilitate the use of good rain guards during rainy season to prevent collection of water and breeding. iii. To remove all discarded cups, remnants of old rain guards coconut shells and other articles remaining in the estates which are likely to collect water. iv. To fill tree holes with sand or seal it with mortar. v. To release fishes in the pools and other natural water collection in the plantation areas to control breeding of mosquitoes. vi. To carry out fogging/spraying activities periodically to reduce vector density. 8. It is pointed out in paragraph 7 that the petitioner has missed out other important causes, also found in the same estate, like _water inside broken rubber nuts, natural holes in trees, in leaf axils of the pineapple (inter-crop in many plantations), broken coconut shells (old discarded latex holding cups) and risk factors present in and around the houses inside and on the boarders of the estates_ , thus contributing in different proportions. The primary need is to prevent water collection of **W.P.( C) 14311 OF 2008** **7** more than 5 to 7 days continuously in the different possible breeding sites. It is stated that the current strategy followed by the Department is to promote full compliance, with no financial loss, simultaneously pointing out that the remedy suggested by the petitioner i.e. by putting an end to 'rainy season rubber tapping' would not give the benefit as projected by her. 9. In the counter affidavit filed by the additional 4[th] respondent, the life cycle of mosquitoes has been sought to be explained with reference to text book by experts. It is stated that, it will take a minimum of '10 - 15' days for completion of the life cycle of mosquitoes, to develop from eggs stage to mosquitoes stage. As such, there must be stagnant water for more than 10 days in the latex cups or plastic rain guards/foldings, which is not possible, because there will not normally be more than 4 or 5 days continuous non-tapping, even during rainy season. Tapping is being done, except on days of continuous torrential rain, which will not normally last more than 3 - 4 days in the State and as such, there is no chance to have collected stagnated rain water in the latex cups for more than 3 to 4 days. Producing copies of photographs of rain guards, it is **8** ## **W.P.( C) 14311 OF 2008** stated that the theory of water lying stagnated in the foldings of rain guards is also not probable or possible. 10. Rubber tapping season in Kerala is from April to January, depending upon the climatic conditions. There will not be viable production of latex during hot summer season. It seems, yield is maximum, during Monsoon tapping. During rainy season, to facilitate rubber tapping, rain guards are being fixed on each tree, providing continuous and uninterrupted tapping. . 11. The particulars as to the extent of cultivation and the workers/growers engaged in the field are discernible from paragraph 5 of the counter affidavit, which reads as follows : 5. There are about 12 lakhs (Twelve lakhs) of Rubber Cultivators in the State, owing half a Hector of rubber cultivation. This will be self evident from the details of the Rubber Holdings in the State published by the Rubber Board, in its publication Indian Rubber Statistics (Vol. 35) published in 2012. True copy of Table 4 of the said publication at page 5, is produced hereinwith and may be marked as **Exhibit R4(A).** It can be seen from it that the number of Small holders are on the increase every year and it is 11,71,170/- in 2010 - 2011. It will be around 12 lakhs now. This would indicate that at least 12 lakhs families, with more than 50 lakhs people are depending on this **W.P.( C) 14311 OF 2008** **9** sector for their livelihood. At least half of them will be doing their rubber tapping by themselves. Apart from that there will be at least 5 lakhs of Rubber tapping labourers earning their livelihood by way of tapping works. The family members depending such rubber tappers will be at least about 25 lakhs. Thus on the whole about 75 lakhs of people in the State, are mainly depending on rubber cultivation and rubber tapping for their livelihood. With reference to the facts and figures brought on record, the additional 4[th] respondent submits that the idea and understanding of the petitioner as to the necessity to have total ban of 'rainy season tapping of rubber' is thoroughly wrong and misconceived and that it is non-productive as well. 12. During the course of hearing, the petitioner who argued the matter as 'party-in-person' sought to highlight various aspects with regard to the vector borne diseases and the preventive measures to be taken, also pointing out that she has invented a new tapping technology, which is stated as more innovative, alleging that the existing one is rather unscientific and obsolete. The version of the petitioner is vehemently opposed by all the respondents, seeking to assert the facts and figures, as specifically pleaded in their counter affidavits and **W.P.( C) 14311 OF 2008** **10** brought to the notice of this Court, during the course of hearing. 13. After hearing both the sides, this Court finds that, even though rubber plantation may be a possible breeding ground of mosquitoes, it is only one among other similar platforms. The basic/fundamental aspect to be ensured is that, no chance is given to have stagnated water for more than 7 to 10 days anywhere, enabling mosquitoes to complete their life cycle, once the eggs are laid by mosquitoes. For this, much sensitization programs are necessary at all levels, including among the Tappers, Growers of rubber plantations and the General Public in dealing with the households and leaving the un-usable containers in the open ground, facilitating collection and stagnation of rain water. If the yield of rubber is maximum during rainy season, it has definitely to be tapped, to intensify production and generate more income in the concerned sector, of course, taking sufficient measures to curb the menace of mosquitoes and to prevent spreading of diseases like 'Chickungunya' and such other vector borne diseases. The efforts being taken by the Rubber Board, Departments of Health and Family Welfare and such other Departments of the State, to advise and instruct rubber **W.P.( C) 14311 OF 2008** **11** growers/tappers as to the extensive disaster/threat of the diseases like 'Chickungunya' and measures to avoid the same are very important. Keeping of latex collection cup up-side down, after collecting the latex, will be of much help. The version of the petitioner that, if 'rainy season rubber tapping' is prevented, it can reach the goal, does not appear to be practical or palatable. 14. The petitioner contends that growers/tappers will not/may not keep the collection cups upside down, after collection of rubber latex and because of continuous rains, there is chance for stagnation of water in such cups, providing breeding ground for mosquitoes. But this cannot be prevented, even if ban is imposed for 'rainy season rubber tapping', as the collection cups fixed on the rubber trees may remain for ever and the growers/tappers cannot be compelled by issuance of a writ of mandamus or otherwise, to remove such cups before the onset of Monsoon, to be taken away or destroyed completely. Even if they are removed, but happen to be thrown down, it may lead to collection of stagnated water during rainy season. This being the position, the proposition mooted by the petitioner and the relief **12** ## **W.P.( C) 14311 OF 2008** sought for to ban 'rainy season rubber tapping' is not liable to be entertained by this Court. As such, interference is declined and the writ petition is dismissed. This however will not bar the way of the petitioner in approaching the concerned respondent with the alleged innovative/alternate technology, if any, and substantiate the facts and figures to get it approved, accepted and followed, if it is better and in the larger interest of the general public. **MANJULA CHELLUR, CHIEF JUSTICE.** **P.R. RAMACHANDRA MENON, JUDGE.** lk/kmd