T. J. Titus v State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 ``` ## **`WP(C) NO. 13844 OF 2018`** ## **`PETITIONER:`** ``` T.J. TITUS S/O.JOSEPH,AGED 55 YEARS,THOTTAKATTU HOUSE, EDAYAR,BINANIPURAM.P.O,ERNAKULAM-683502. ``` ``` BY ADVS. SRI.D.G.VIPIN ``` ``` SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY SRI.P.P.KURIEN ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695005.` - `2 KERALA STATE POLLUTION CONTROL BOARD PATTOM.P.O,THIRUVANANTHAPURAM,PIN695004,REPRESENTED BY ITS MEMBER SECRETARY.` - `3 CHIEF ENVIRONMENTAL ENGINEER KERALA STATE POLLUTION CONTROL BOARD,ERNAKULAM REGIONAL OFFICE,GANDHI NAGAR,ERNAKULAM-682020.` - `4 ENVIRONMENTAL ENGINEER ENVIRONMENTAL SURVEILLANCE CENTRE,KERALA STATE POLLUTION CONTROL BAORD,FACTO QR.NO.S-5,ELOOR EAST,UDYOGAMANDAL.P.O, ERNAKULAM-683501.` - `5 THE DISTRICT COLLECTOR COLLECTORATE,ERNAKULAM,KAKKANAD-30.` - `6 KERALA WATER AUTHORITY JALABHAVAN,VELLAYAMBALAM,THIRUVANANTHAPURAM,PIN695033,REPRESENTED BY ITS MANAGING DIRECTOR.` - `7 KADUNGALLOOR GRAMA PANCHAYAT MUPPATHADOM.P.O,ALUVA-683110M,REPRESENTED BY ITS SECRETARY.` - `8 THE SECRETARY KADUNGALLOOR GRAMA PANCHAYAT,MUPPATHADOM.P.O,ALUVA-683110.` - `9 BINANI ZINC LTD BINANIPURAM,KOCHI-683502,REPRESENTED BY ITS PRESIDENT.` **2** ## **W.P.(C).No.13844/2018** ``` ADDL.R10SECRETARY TO THE GOVERNMENT, ENVIRONMENT AND FOREST DEPARTMENT, GOVERNMENT OF KERALA ``` ``` IS SUO MOTU IMPLEADED AS ADDITIONAL 10TH RESPONDENT. BY ADVS.SMT.DEEPA NARAYANAN, SR.GOVT. PLEADER SRI. T.NAVEEN SC, KERALA PCB SRI.DINESH MATHEW J. MURIKKAN, SC, KADUNGALLOOR GRAMA PANCHAYAT ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).No.13844/2018** **3** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.13844 of 2018** **---------------------------------------------Dated this the 09[th] day of March, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ of mandarmus or any other appropriate writ, order or direction directing the respondents to ensure that the amount demanded as per Exhibit P-6 is deposited by the 9[th] respondent company for the uninterrupted supply of 10 KL of piped water to the 550 residents of Ward No. 18 of the Kadungallur Grama Panchayath. - ii. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to ensure that the benefits of free piped water scheme as per Exhibit P-3 agreement is extended to all the 550 residents including the new 34 residents of Ward No.18 of Kadungallur Grama Panchayat. - iii. To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to ensure that the 9[th] respondent company is not shifting or transferring the machineries, equipment and all the other **W.P.(C).No.13844/2018** **4** installation from the factory premises without paying water consumption charges of all the 550 families residing in Ward No.18 of 6[th] respondent Panchayat. - iv. To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 and 5 to dispose of Exhibits P-7 & P-8 representations within a specific time frame as fixed by this Hon'ble Court. - v. Pass any other appropriate writ, order or direction which this Honourable Court may deems fit and proper in the facts and circumstances of the case. (SIC) 2. When this writ petition came up for consideration on 13.04.2018, this Court passed the following order: “Admit. Learned Government Pleader and the learned Standing Counsel for the respective respondents up to 1 to 8 takes notice. Urgent notice by speed post to respondent No.9, returnable in three weeks. Post immediately after vacation. 2. The Kerala Water Authority will be at liberty to proceed against the 9[th] respondent and recover the water charges on account of the supply made to Ward No.18 of the 7[th] respondent viz., Kadungalloor Grama Panchayat. However, the supply shall not be disrupted to the aforesaid Ward. This order will be operative for a period of two months.” 3. Today, when this writ petition came up for **5** ## **W.P.(C).No.13844/2018** consideration, the learned counsel on both sides submitted that a similar issue was considered by a Division Bench of this Court in W.P.(C). No.23218 of 2018 and certain directions were issued. The judgment of the Division Bench is made available. It will be better to extract the relevant portion of that judgment: “16. Mr.T.Naveen, learned Standing Counsel appearing for the Kerala State Pollution Control Board asserts that the matter is pending consideration before the Government. Submission of the learned Standing Counsel is placed on record. 17. Though Kadungalloor Grama Panchayat, petitioner in the writ petition has filed instant writ petition seeking for various reliefs, as stated supra, after going through the report filed by the Senior Environmental Engineer, Kerala State Pollution Control Board, Environmental Surveillance Centre, Eloor, the fourth respondent and the submission of Mr.T.Naveen, learned Standing Counsel appearing for the Kerala State Pollution Control Board, Mr.Dinesh Mathew J. Murikan, learned counsel for the writ petitioner submitted that the petitioner would submit a detailed representation to the Secretary to the Government, Environment and Forest Department, Government of Kerala vindicating the grievances of the writ petitioner. He further prayed that all the issues raised in the writ **W.P.(C).No.13844/2018** **6** petition by the parties may be left open. 18. Thus placing on record the submission of the learned counsel for the petitioner, we are not inclined to delve into the reliefs sought for. However, giving due consideration to the materials on record, we make it clear that the reliefs sought for in the writ petition are not maintainable. In the interim order dated 9th November, 2021 itself, we made it clear that the prayer sought for in the writ petition in the nature of mandamus is for enforcement of contractual obligations. 19. Considering the entire facts and circumstances of the case, this writ petition is disposed of granting liberty to the writ petitioner to make a representation vindicating the grievance before the Secretary to the Government, Environment and Forest Department, Government of Kerala. 20. In view of the above, by exercising the powers vested under Article 226 of the Constitution of India we deem it fit to implead the Secretary to the Government, Environment and Forest Department, Government of Kerala as additional 9th respondent in this writ petition. 21. Hence the Secretary to the Government, Environment and Forest Department, Government of Kerala is impleaded as additional respondent No.9. Registry is directed to carry out necessary amendments in the cause title. 22. Petitioner is at liberty to make a **W.P.(C).No.13844/2018** **7** representation before the additional respondent No.9 within a period of two weeks from the date of receipt of a copy of this judgment. 23. On receipt of the representation, the Secretary to the Government, Environment and Forest Department, Government of Kerala shall consider the same as early as possible, at any rate, within a period of two months thereafter. Writ petition is disposed of accordingly.” 4. In the light of the above directions issued by the Division Bench, this Court is of the view that this writ petition also can be disposed of with liberty to the petitioner to approach the Government with a representation and if such a representation is received, there can be a time limit also to dispose the same. Therefore, this writ petition is disposed of in the following manner: 1. The petitioner is free to file a representation before the additional 10[th] respondent narrating his grievance, within three weeks from the date of receipt of a copy of this judgment. 2. Once such a representation is received, the additional 10[th] respondent will consider the **8** ## **W.P.(C).No.13844/2018** same and pass appropriate orders in it, as expeditiously as possible, at any rate, within two months from the date of receipt of the representation. 3. All the contentions of the petitioner in this writ petition are left open. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** **W.P.(C).No.13844/2018** **9** ## **`APPENDIX OF WP(C) 13844/2018`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF THE ORDER NO.PCB/HD/HWM/SCMC/498/04 DATED 02.09.2004 ISSUED BY THE 2ND RESPONDENT` - `EXHIBIT P2 TRUE COPY OF THE REPORT DATED 23.11.2004 BY THE LOCAL AREA ENVIRONMENTAL PROTECTION COMMITTEE.` - `EXHIBIT P3 TRUE COPY OF THE AGREEMENT DATED 9.3.2005 BETWEEN 9TH RESPONDENT AND 6TH RESPONDENT` - `EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 02.08.2017 T0 THE PRESIDENT,BINANZI ZINC LILMITED BY THE PETTIIONER` - `EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 28.12.2017 UNDER THE CHAIRMANSHIP OF PRESIDENT OF 7TH RESPONDENT,PANCHAYAT` - `EXHIBIT P6 TRUE COPY OF THE DETAILS SHOWING THE PAYMENTS DUE AS PER EXHIBI T P-3 AGREEMENT ISSUED BY THE KERALA WATER AUTHORITY ON 6.4.2018` - `EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 05.04.2018,THUS SUBMITTED BY THE PETITIONER BEFORE THE CHIEF SECRETARY,KERALA` - `EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 05.04.2018,SUBMITTED TO THE DISTRICT COLLECTOR,ERNAKULAM.` ``` EXHIBIT P9COPY OF THE MEMORANDUM OF ASSURAQNCE MADE BY THE 9TH RESPONDENT DATED 02.11.2020 Exhibit P10COPY OF THE DEMAND NOTICE OF WATER CHARGES GIVEN TO PLAMENA BY KERALA WATER AUTHORITY DATED 23.12.2020 Exhibit P10(A)COPY OF THE DEMAND NOTICE OF WATER CHARGES GIVEN TO RAPHEAL BY KERALA WATER AUTHORITY DATED 23.12.2020 Exhibit P10(B)COPY OF THE DEMAND NOTICE OF WATER CHARGES GIVEN TO BENNI BY KERALA WATER ``` **10** ## **W.P.(C).No.13844/2018** ``` AUTHORITY DATED 23.12.2020 ``` ``` Exhibit P10(C) ``` ``` COPY OF THE DEMAND NOTICE OF WATER CHARGES GIVEN TO JOY BY KERALA WATER AUTHORITY DATED 23.12.2020 ``` ``` Exhibit P10(D)COPY OF THE DEMAND NOTICE OF WATER CHARGES GIVEN TO VARGHESE ALBERT BY KERALA WATER AUTHORITY DATED 23.12.2020 ``` ``` Exhibit P10(E) ``` ``` Exhibit P11 ``` ``` COPY OF THE DEMAND NOTICE OF WATER CHARGES GIVEN TO M.P.JAMES BY KERALA WATER AUTHORITY DATED 23.12.2020 ``` ``` TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 08/07/2021 BY THE 7TH RESPONDENT PANCHAYAT. ```