Platinum Tower Apartment Owners Association represented by its Secretary, John Joseph v Thrikkakara Municipality; Platinum Heights Residents Association; Environmental Engineer, Kerala State Pollution Control Board (WP(C) No.14350 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944** ## **WP(C) NO. 14350 OF 2022** ## **PETITIONER:** **PLATINUM TOWER APARTMENT OWNERS ASSOCIATION REPRESENTED BY ITS SECRETARY, JOHN JOSEPH, AGED 43, SON OF JOY THOMAS, 2B, PLATINUM TOWER, KOCHI-682 030** **BY ADVS. ANIL S.RAJ,K.N.RAJANI ANILA PETER,RADHIKA RAJASEKHARAN P. MUHAMMED HARIS K.K.,SIMI S. ALI** ## **RESPONDENTS:** **1 THE THRIKKAKARA MUNICIPALITY KAKKANAD-682 030, REPRESENTED BY ITS SECRETARY 2 THE SECRETARY, THRIKKAKARA MUNICIPALITY, KAKKANAD-682 030** **ADDL.R3 PLATINUM HEIGHTS RESIDENT'S ASSOCIATION, PLATINUM HEIGHTS, PALACHUVADU, KAKKANAD, REPRESENTED BY ITS SECRETARY .** **ADDL.R4 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, GANDHINAGAR, KOCHI 682020 ADDITIONAL R3 AND ADDL. R4 IMPLEADED AS PER THE ORDER DATED 25.08.2022 IN I.A.1/2022.** **BY ADVS. S.JAMAL, SC, THRIKKAKARA MUNICIPALITY VISHAK JOHNSON K S.NITHIN (ANCHAL)(K/1007/2012) ADV. NAVEEN T, SC FOR POLLUTION CONTROL BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.14350 of 2022 2 ## **“C.R.”** ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.14350 of 2022 .................................................................** Dated this the 8[th] day of March, 2023 ## **JUDGMENT** Petitioner has approached this Court aggrieved by Ext.P7 order issued by the 2[nd] respondent whereby action was initiated against the petitioner for flowing the waste water from the various flats in the apartment complex to the public drain. Petitioner is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Act, 1955, and is represented by its Secretary. The members of the petitioner society are the owners of apartments in the building by name Platinum Tower situated at Kakkanad and it is a multi-storied apartment building with 41 units. On 03.08.2011, the petitioner submitted Ext.P1 application before the 2[nd] respondent, the Secretary of the Thrikkakara Municipality for cutting the road in front of its building for taking connection **t** o the drain at the opposite side of the road. After Ext.P1 application in this regard was allowed, the petitioner WP(C) No.14350 of 2022 3 deposited an amount of Rs.4,000/- towards the charges for road cutting as is evident from Ext.P2 receipt. For treating the septic waste generated in the apartment, the petitioner has a sewage treatment plant (STP) with a valid consent to operate, issued by the Kerala State Pollution Control Board and the discharge is through the soak pit as stipulated in the consent. Ext.P3 is the consent granted by the Pollution Control Board in this regard. While so, it was noticed that the neighbouring apartment complex by name Platinum Heights which has 27 apartment units was also connected to this STP, and the issues which cropped up between the two associations were resolved by convening a joint meeting by the Kerala State Pollution Control Board and as per Ext.P4 minutes it was decided to permit the Platinum Heights to continue with the connection to the STP of the petitioner. While so, on 18.03.2022 the petitioner was issued with Ext.P5 notice by the 2[nd] respondent invoking the provisions of the Kerala Municipality Act alleging that the petitioner has illegally connected a pipe to the public drain for discharge of waste water from its premises and called upon the petitioner to dismantle the same within seven days and to pay an amount of Rs.20,000/- as fine. Petitioner submitted Ext.P6 reply stating the true and relevant facts and pointed out that the WP(C) No.14350 of 2022 4 invocation of Section 337 of the Kerala Municipality Act was misplaced since it deals with a situation where the water flows to any portion of a street except a drain and that even from Ext.P5 notice it is clear that the water was only flowing into the drain by the side of the road and not causing any unavoidable nuisance by soaking into the walls or ground at the side of the drain. Thereafter, petitioner was issued with Ext.P7 notice on 19.04.2022 whereby action was initiated against them. It is aggrieved by Ext.P7 the present writ petition has been filed. 2. The specific contention of the petitioner is that the connection to the drain on the opposite side of the road was made after making an application and after paying the cutting charges as is evident from Ext.P2. After sanctioning the application and collecting the charges, the 2[nd] respondent has absolutely no authority or jurisdiction to direct the petitioner to dismantle it. The said connection was taken more than a decade ago. The 2[nd] respondent did not consider any of the contentions taken by the petitioner in Ext.P6 reply while issuing the Ext.P7 notice and therefore issuance of Ext.P7 notice is vitiated by total non-application of mind and arbitrariness. Though Ext.P5 notice specifically invoked Section 337 of the Kerala Municipality Act, 1994 for propping up a case of nuisance, the WP(C) No.14350 of 2022 5 contentions urged in Ext.P6 reply would clearly demonstrate that the said Section is not attracted even remotely. 3. A detailed counter affidavit was filed by the 2[nd] respondent mainly contending that Exts.P5 and P7 notices are issued strictly in accordance with the law. The said notices were issued after conducting a site inspection and finding that the petitioner has intentionally erected huge pipes from their apartments to the public drain on the side of the main road and was flowing sewage from the apartments to the public drain whereby resulting in danger and nuisance to the public. It is admitted that the petitioner had obtained consent from the Municipality in the year 2011 to cut the municipal road to lay out pipes for the purpose of draining rainwater from the vicinity of the apartments to the public drain but it was not for flowing sewage to the public drain as was done by the petitioner. No permission can be legally granted by the Municipality to permit anyone to drain out sewage and filth to the public drain. It is also contended that from a perusal of Ext.P4 it is seen that the sewage treatment plant is no longer operational and the petitioner has not produced any document to show that the sewage treatment plant is in a working condition. Ext.P4 would clearly indicate that the Pollution Control WP(C) No.14350 of 2022 6 Board authorities intervened to resolve a dispute between the petitioner and another apartment owners' association by the name Platinum Heights regarding the sharing of expenditure to repair and operate a sewage treatment plant that was not operational as of that date. On inspection conducted by the municipal officials consequent to complaints of nuisance to the public on account of draining out sewage and filthy water from the apartments to the public drain, it is noticed that the illegal acts are in fact being done by the petitioner causing nuisance and health hazards to the public. Therefore, Exts.P5 and P7 notices were issued strictly in accordance with the law and are not liable to be interfered with. 4. The additional 3[rd] respondent Platinum Heights Residents Association, which is an association of owners of apartments in the neighbouring tower by the name “Platinum Heights” has also filed a counter affidavit mainly contending that the above writ petition has been filed without any bonafide. The additional 3[rd] respondent is also a registered apartment owners association which was registered in the year 2008. A multi-storied building apartment was constructed by Platinum Builders with 27 units and after the completion of the project, the additional 3[rd] respondent had an STP with valid consent to operate WP(C) No.14350 of 2022 7 issued by the Kerala State Pollution Control Board. While so the builder of the additional 3[rd] respondent constructed another multistoried apartment building in the same premises in the name and style “Platinum Tower”. The owners' association of the said “Platinum Tower” is the petitioner herein. While the construction of the said “Platinum Tower” was nearing its completion, the builder demolished the existing STP of the additional 3[rd] respondent with an understanding that both the apartments will have a common STP which will be constructed in the premises of the petitioner herein. Based on the said understanding the existing STP of the additional 3[rd] respondent was demolished and a common STP, and rainwater harvesting unit were constructed in the premises of the petitioner on certain conditions. One of the conditions was that the petitioner herein is solely responsible for the management and proper maintenance of the STP and rainwater harvesting unit. In the year 2021, the petitioner renovated the STP unit under their supervision. After the renovation, it is seen that the STP unit was overflowing as the petitioner connected the rainwater harvesting pipe to the drainage channel. 5. On the issue of applicability of Section 337 of the Kerala Municipality Act, a further statement was filed by the learned counsel WP(C) No.14350 of 2022 8 for respondents 1 and 2 wherein it is stated that Section 337 comes in Chapter XVI of the Kerala Municipality Act, 1994, and included in the part under the head “management of waste” which is intended to prohibit owner or occupier from allowing filthy water of any kind to flow out of the premises owned or occupied by them to any portion of the street, so as to prevent public nuisance and health hazards, that is likely to be caused thereby. The exemption provided therein is only as regards a cesspool or a drain specifically provided for the purpose and it never refers to an open drain provided along the sides of the street but pipes laid down beneath the ground under any sewage management system and therefore contended that no owner or occupier can be allowed or permitted to flow out filthy or latrine water to open drain. 6. When the matter came up for consideration on 23.01.2023 this Court directed the Pollution Control Board, additional 4[th] respondent in the above writ petition, to inspect the premises and submit a report. Consequently, a report has been submitted by the Environmental Engineer mainly stating that the petitioner is still discharging their sullage to the public drain directly without treatment, whereas the additional 3[rd] respondent is discharging their waste to the WP(C) No.14350 of 2022 9 common STP. Both apartments are operating the STP without any valid consent issued by the Pollution Control Board. The analysis report shows that the present STP installed in the apartment is not capable of achieving the prevailing discharge standards. The act of the petitioner in discharging untreated sullage to the public drain is in violation of Section 24 of the Water (Prevention and Control of Pollution) Act, 1974. Thus the Pollution Control Board in its counter affidavit and report has specifically taken a stand that the act of the petitioner in discharging the waste water to the public drain is in violation of Section 24 of the Water (Prevention and Control of Pollution) Act, which specifically prohibits the use of stream or well for disposal of polluting water, etc. The said Section mandates that no person shall be allowed to permit any poisonous, noxious or polluting matter to enter whether directly or indirectly into any stream or well or sewer or on land. 7. I have considered the rival contentions of both sides. 8. The specific case of the petitioner is that Section 337 of the Kerala Municipality Act, 1994 does not in fact prevent an occupier of a building from allowing filthy water of any kind to flow out of the premises to a drain. To properly appreciate the contentions of the WP(C) No.14350 of 2022 10 ## petitioner it is profitable to extract Section 337 of the Kerala Municipality Act, 1994 which reads as follows: _“_ _**337. Prohibition of allowing outflow of filth** .— No owner or occupier of any premises shall allow the water from any sink, drain, latrine or stable, or any other filth to flow out of such premises to any portion of a street_ _**except a drain** or a cess-pool or to flow out of such premises in such a manner as to cause an avoidable nuisance by the soakage of the said water or filth into the walls or ground at the side of drain forming a portion of a street._ _(underline supplied)_ It is true that a bare reading of the above Section would give an impression that an owner or occupier of any premises shall allow the water from any sink, drain, latrine or stable, or any other filth to flow out of such premises to a _**drain**_ or a cess-pool. Based on this, the learned counsel for the petitioner would contend that it is well within their right to allow the water from their premises to be flown out to the drain in question. The petitioner further submits that the word “drain” has not been defined in the Kerala Municipality Act, 1994 whereas the Kerala Municipality Building Rules, 2019 defines the word “drain” in Chapter I, Rule 2(ah) as follows: _“(ah) 'drain’ means a sewer, pipe, ditch, channel and any other device for carrying of sewage, offensive matter, polluted water, sullage, waste water, rain water or sub-soil water and any ejectors, compressed air mains, sealed sewage mains and_ WP(C) No.14350 of 2022 11 _special machinery or apparatus for raising, collecting, expelling or removing sewage or offensive matter to the sewage outfall”_ Based on the exhaustive definition of drain as given in the Kerala Municipality Building Rules, 2019 it is submitted that a “drain” would include all those provisions for carrying even polluted water, waste water or even rain water. In view of the said definition of the word “drain” given in the Kerala Municipality Building Rules, 2019 and Section 337 of the Kerala Muncipality Act, 1994, the petitioner would contend that the act of the petitioner in connecting the pipes carrying waste water from the petitioner's premises to the public drain on the side of the road is well within their authority. The Kerala Municipality Act, 1994 was originally promulgated in Malayalam and the English translation of the said Act was published as per notification No.10816/LEG.CI/95/LAW in the Kerala Gazette (extraordinary) No.1263 dated 14.12.1995. A comparison of the Kerala Municipality Act, 1994 published in Malayalam and the translated version published as per gazette notification dated 14.12.1995 would reveal that there is a marked difference in the wordings in Section 337 of the Kerala Municipality Act, 1994. Section 337 of the Kerala Municipality Act, 1994 in Malayalam reads as follows: WP(C) No.14350 of 2022 12 “337. മ�ല�ന�� ബഹ�ർഗമ�ക�നന�വദ�ക�നത�നനത�ന�യ�ള ന�ര��ധന� **:** - ഏനതങ�ല�� പ��സ�ത�ന�ന� ഏനതങ�ല�� ഉടമസരന� ക$വശക��രന�, അങനനയ�ള പ��സ�ങ ള�ൽന�ന� ഏനതങ�ല�� നത�ട�യ�രല� ഓടയ�രല� $ക,സ�രല� നത�ഴ�ത�രല� ന�ന�ള നവളമ� മര.നതങ�ല�� മ�ല�ന�രമ� ഒ�� അഴ�ക�ച�ല�രല� അഴ�ക�നത�ട�യ�രല� _._ ഒഴ�ന$ ഒ�� നത��വ�ന�ന� ഏനതങ�ല�� ഭ�ഗരതക� പ��രതക� ഒഴ�ക�വ�രന� അഥവ� ഒ�� നത��വ�ന�ന� ഭ�ഗമ�യ ഒ�� അഴ�ക�ച�ല�ന�ന� വശത�ള ഭ�ത�രയ� ത�രയ� പപസ5�ത ജലരമ� മ�ല�ന�രമ� $��ണ� $�ത�ർന ഒഴ�വ�ക�മ�യ���ന ശല�� ഉണ�$തകവ�ധത�ൽ ആ ജലരമ� മ�ല�ന�രമ� ആ പ��സ� " ത�ൽന�ന�� പ��രതക� ഒഴ�ക�വ�രന� പ�ട�ളതല A reading of Section 337 in Malayalam would clearly reveal that the discharge of waste water can only to be a waste water drain specifically provided for discharge of waste water and not to a public drain as was done in the present case. It is not in dispute that when there is a conflict between the enactment in the official language of a State and in the English version, it is the translation published under Article 348(3) of the Constitution of India, of the law, in English which would prevail. In the present case, it is not a question of any conflict between the two versions, but it is an effect of ambiguity or doubt that exists between the two versions. When a law is made in the official language of a State other than English language and a discrepancy occurs when the translation takes place, it is well within the power and WP(C) No.14350 of 2022 13 duty of the court to give effect to the intention of the legislature and both the version in the official language as well as English can be looked into and the court would be acting within its powers to adopt the version, which best accords with the intention of the legislature, applying various rules of interpretation and in particular, the purpose rule as held in **Shahjahan Baigam v. District Magistrate, Udham Singh Nagar and Others, 2017 SCC OnLine Utt 1281** , the relevant portion of which reads as follows: 26. _“Having thus referred to the various provisions of law, we must consider the effect of any ambiguity, which may exist between the two versions, namely, (i) English language and (ii) any other language, which may be the official language of the State concerned. There can be broadly two situations to our mind. As in the case of Nityanand Sharma (supra) and Prabhat Kumar Sharma (supra), the original version of a law may be published in the English language. It may be followed by the Hindi version of the same. The second possibility is where the law may be made in the official language of the State concerned, as in the case of State of Uttar Pradesh where Hindi is the official language. A law may be made in Hindi language; it must be followed by an English translation within the meaning of Article 348(3), which is to be treated as authoritative text under Article 348(1).In a case where a law is made in English language and a confusion arises on account of the translation found in the Hindi version, quite clearly, dominance would be accorded to the English version. When a law is made, however, in the official language, other than English language as say the Hindi language as in the facts of this case and a discrepancy occurs when the translation takes place, it can_ WP(C) No.14350 of 2022 14 _give rise to two broad situations again. The first situation would be on account of the inadequacy or ineptitude of the translator, a doubt or ambiguity may be created by virtue of the translation made under Article 348(3) of the Constitution. While, it is true that Article 348(1) declares that the translation published under Article 348(3) will be the authoritative text within the meaning of Article 348(1), as the duty of the Court is to give effect to the intention of the Legislature, every effort must be made to reconcile the differences. An attempt must be made to find out the intention of the law-giver. Both the Hindi version and the English version can be looked into and the Court would be acting within its powers in adopting the version, which best accords with the intention of the Legislature, applying various Rules of interpretation and in particular, the purpose Rule.”_ The purpose of Section 337 of the Kerala Municipality Act, 1994 is to prohibit the owner or occupier from allowing filthy water to be drained out of the premises owned and occupied by them to any portion of the street or to a drain, so as to prevent public nuisance and health hazards. So when there is an apparent ambiguity created in the translated English version of the Act, this court is well within its powers to look into the Act published in the official language of the State, i.e., in Malayalam to understand the real intention of the legislature. So a comparison of the two versions makes it explicitly clear that the intention of the legislature was not to permit any filth/waste water into any drain as is understood from a reading of Section 337 in the WP(C) No.14350 of 2022 15 translated English version. Therefore, I have no doubt in my mind that the public drain provided by the side of the road as in the present case is not intended to drain the waste water from the petitioner's premises. It is also pertinent to note that even going by the averments of the petitioner in paragraph 3 of the reply affidavit filed in reply to the statement filed by respondents 1 and 2 dated 18.01.2023, it is specifically stated that the drain in question starts from a by-lane of Ambalappara road and joins the _**Thukalan Kuthia thodu**_ after passing Palachuvad Junction. Even going by the contention of the petitioner, the drain in question is ultimately connected to a thodu. Therefore, any effluent if discharged into the drain, would ultimately reach a thodu and the same is in clear violation of Section 24 of the Water (Prevention and Control of Pollution) Act, 1974. The petitioner is a residents’ association of various apartment owners and the additional 3[rd] respondent is another association of apartment owners. It is their duty to provide a proper STP to treat the effluent that is being created by them, after obtaining the necessary consent from the Pollution Control Board. Without providing an STP with the requisite capacity to treat the effluent, the action of the petitioner in discharging waste water to a public drain causing serious health hazards to the public in general, WP(C) No.14350 of 2022 16 cannot be accepted. In view of the same, I find no reason to interfere with Exts.P5 and P7 notices issued by the 2[nd] respondent. 9. Since the petitioner, as well as the additional 3rd respondent, are associations of various apartment owners, I am inclined to take a lenient view in the matter and grant them some time to provide a proper STP for treating the effluent discharged from the two apartment complexes. The petitioner as well as the additional 3[rd] respondent is granted two months time from the date of receipt of the copy of the judgment to rectify the defects and to provide an STP with the requisite capacity so that the waste generated from both apartment complexes is treated effectively. It is also ordered that Exts.P5 and P7 notices shall not be implemented by the 2[nd] respondent for the said period of two months. After the expiry of the said period, the respondent Municipality is fully empowered and well within its powers to take stringent action for implementing Exts.P5 and P7 notices. With the abovesaid direction, the writ petition is disposed of. Sd/- **VIJU ABRAHAM** **JUDGE** cks WP(C) No.14350 of 2022 17 ## **APPENDIX OF WP(C) 14350/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE APPLICATION DATED 3.8.2011 Exhibit P2 TRUE COPY OF THE RECEIPT DATED 12.4.2012 Exhibit P3 TRUE COPY OF THE PCB/RO-EKM/MFB/IACO - 34/10 DATED 27.7.2010 Exhibit P4 TRUE COPY OF THE MINUTES DATED 17.1.2018 OF THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD Exhibit P5 TRUE COPY OF THE NOTICE DATED 18.3.2022 Exhibit P6 TRUE COPY OF THE REPLY DATED 26.3.2022 Exhibit P7 TRUE COPY OF THE NOTICE DATED 12.4.2022 Exhibit P8 TRUE COPY OF THE APPLICATION DATED 22/6/2016 - Exhibit P9 TRUE COPY OF THE REPLY DATED 21/7/2016 ISSUED ON BEHALF OF THE 2ND RESPONDENT - Exhibit P10 TRUE COPY OF THE NOTICE DATED 30/7/2016 Exhibit P11 TRUE COPY OF THE COMPLAINT RECEIVED BY THE 2ND RESPONDENT ON 23/2/2022 - RESPONDENT ANNEXURES - Annexure R4(a) True copy of the Consent to Operate, File No. PCB/RO-EKM/MFB/IACO-34/10 dated 27-7-2010 issued by the Pollution Control Board. - Annexure R4(b) True copy of the Consent to OperateRenewal, File No.PCB/EKM/DO-1/flat/COR/49/12 dated 7-1-2013 issued by the Pollution Control Board. - Annexure R4(c) True copy of the Consent to Operate, File No. PCB/RO-EKM/MFB/IACO-35/10 dated 1-2-2011 issued by the Pollution Control Board. - Annexure R4(d) True copy of the Consent to OperateRenewal, File No. PCB/EKM/DO-1/flat/COR/60/12 dated 14-1-2013 issued by the WP(C) No.14350 of 2022 18 Pollution Control Board. - Annexure R4(e) True copy of the Notice No. PCB/EKM/DO1/GEN-37/21 dated 16-9-2022 issued by the Pollution Control Board. - Annexure R4(f) True copy of the Notice No. PCB/EKM/DO1/GEN-37/21 dated 29-10-2022 issued by the Pollution Control Board. - Annexure R4(g) True copy of the reply to the notice, submitted by the Platinum Tower Apartment Owners Association dated 23-92022. - Annexure R4(h) True copy of the Analysis report of the samples collected on 4-2-2023 issued by the Pollution Control Board. - Annexure R4(i) True copy of the Circular No. PCB/T4/115/97 dated 29-6-2016 issued by the Pollution Control Board. PETITIONER EXHIBITS - Exhibit P12 True copy of the categorization of industries for consent management issued by the additional 4th respondent under the RTI Act on 31.7.2010 - Exhibit P13 Tru copy of the application dated 1.4.2016 submitted by us Exhibit P14 - True copy of the demand draft 453271 dated 30.3.2016 accompanying Exhibit P13 and recieved by the additional 4th repondent on 4.4.2016