Disposed

Kadungalloor Grama Panchayat v. State of Kerala

Kerala HC22 Nov 2021WP(C)/23218/2018

Case brief

AI extract

What is this about?

A panchayat sought continued free drinking-water supply for residents affected by industrial pollution and safe removal of chemical waste. The court held the reliefs not maintainable as mandamus sought contractual enforcement, but disposed of the petition with liberty to represent grievances to the Government and a time-bound direction for consideration.

What did the court decide?

Liberty to represent grievances to the Environment and Forest Department Secretary within two weeks of receiving the judgment; consideration directed within two months of receiving the representation.

Kadungalloor Grama Panchayat Vs State of Kerala — Environment and Pollution | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 22^ND DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943

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WP(C) NO. 23218 OF 2018

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PETITIONER:

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KADUNGALLOOR GRAMA PANCHAYAT MUPPATHADOM P.O., ALUVA - 683 110 REPRESENTED BY ITS ITS SECRETARY.

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BY ADV SRI.DINESH MATHEW J.MURICKEN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM - 695 005.

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2 KERALA STATE POLLUTION CONTROL BOARD PATTOM P.O. THIRUVANANTHAPURAM PIN-695 004, REPRESENTED BY ITS MEMBER SECRETARY.

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3 CHIEF ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD ERNAKULAM REGIONAL OFFICE, GANDHI NAGAR, ERNAKULAM - 682 020.

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4 ENVIRONMENTAL ENGINEER, ENVIRONMENTAL SURVEILLANCE CENTRE, KERALA STATE POLLUTION CONTROL BOARD, FACT QR.NO.S-5, ELOOR EAST UDYOGAMANDAL P.O., ERANAKULAM - 683 501.

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5 THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD.P.O., ERNAKULAM DISTRICT,PIN682030.

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6 KERALA WATER AUTHORITY JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN-695 033, REPRESENTED BY ITS MANAGING DIRECTOR.

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7 BINANI ZINC LTD. BINANIPURAM.P.O. KOCHI - 683 502 . REPRESENTED BY ITS PRESIDENT.

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8 PUNJAB NATIONAL BANK CIRCLE OFFICE MUMBAI CITY, 7TH FLOOR, MARKET TOWER, F WING, CUFFE PARADE,MUMBAI-400 005, REPRESENTED BY ITS AUTHORISED OFFICER.

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Addl.R SECRETARY TO THE GOVERNMENT, ENVIRONMENT AND FOREST DEPARTMENT, 9 GOVERNMENT OF KERALA (Impleaded as additional respondent no.9 vide judgment dated 22.11.2021 in W.P.(C)No.23218/2018)

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BY ADVS.SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD. SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY

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SRI.SREEJITH S.NAIR SRI.K.R.RANJITH, GOVT. PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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Dated this the 22^nd day of November, 2021

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S.MANIKUMAR, C.J.

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Instant writ petition is filed by Kadungalloor Grama Panchayat having 21 wards. It is submitted by Mr.Dinesh Mathew J Murikan, learned counsel for the petitioner that the 7^th respondent company, Binani Zinc Ltd., Binanipuram, which was manufacturing zinc and other bi products, had contaminated the drinking water sources in Ward No.18 of the petitioner Grama Panchayat.

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The factory of the 7^th respondent, Binani Zinc Limited, is situated

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on the banks of Periyar river and due to the unscientific manner of disposal of hazardous wastes and chemical effluents generated from the operation of the 7^th respondent, the river flowing through Edayar region, has become highly polluted.

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Reliefs sought for in this writ petition are as follows:

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“i. issue a writ of mandamus or any other appropriate writ, order or direction directing the 8 th respondent to deposit the additional amount required by the 6 th respondent to supply water to the residents of ward No.18 of the petitioner grama panchayat from the amount received by the sale of the property of the 7 th respondent company.

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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 petitioner grama panchayat.

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iii. issue a writ of mandamus or any other appropriate writ, order or direction, directing the 8 th respondent to consider Exhibit P6 and pass appropriate orders.

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iv. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 3 to 5 to ensure that the 7 th respondent company is removing the hazards chemical wastes from the company premises without causing any pollution or danger to the residents of petitioner grama panchayat.

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v. issue a writ of mandamus or any other appropriate writ, order or direction, directing 3 rd respondent to consider Exhibit P5 application and pass appropriate orders.”

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On the basis of averments and documents filed along with the writ petition, Mr.Dinesh Mathew J. Murikan, learned counsel for the petitioner submitted that the Hon'ble Apex Court appointed a monitoring committee to study the pollution caused by the chemical factories all over India.

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The monitoring committee appointed by the Hon'ble Supreme Court directed Binani Zinc Ltd., Binanipuram, the 7^th respondent company to supply free potable water to the residents of Ward No.18 of the petitioner Grama Panchayat.

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The 7^th respondent company entered into an agreement with the 6^th respondent, Kerala Water Authority, by providing sufficient amount deposited, so as to meet the water charges from the interest generated from the said deposit by the 6^th respondent, Kerala Water Authority to supply water to the residents of Ward No.18 of the petitioner Grama Panchayat. Due to increase in water charges, the interest factor was not enough and, therefore, the 6^th respondent demanded additional amount. Even though the 7^th respondent company agreed to provide additional fund to the 6^th respondent, it was not complied with.

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Referring to Section 166 of the Kerala Panchayat Raj Act, 1994, learned counsel for the petitioner submitted that it is the duty of the petitioner Grama Panchayat to meet the requirements of the petitioner Grama Panchayat and to ensure that potable water is supplied to the residents of ward No.18. Residents of ward No.18 of the petitioner Grama Panchayat is not liable to pay water charges, since their sources of drinking water were polluted by running of the factory by the 7^th respondent company.

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Hence, the assets of the 7^th respondent has to be utilised first to guarantee the fundamental right of drinking water to the residents of ward No.18 of the petitioner Grama Panchayat.

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The Chief Environmental Engineer and the Environmental Engineer, the 3^rd and 4^th respondents, are bound to ensure that chemical hazards waste stored in the 7^th respondent company have to be removed without further effecting the environment of the petitioner Grama Panchayat. The 7^th respondent company is duty bound to compensate the people who are affected by the activities of the company under the polluter pays principle that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment.

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A detailed counter affidavit has been filed on behalf of the 8^th respondent/Punjab National Bank wherein, it is stated that this writ petition is not maintainable since the petitioner does not have a locus standi to file a writ petition when none of its personal rights are affected and mandamus cannot be sought against a party which does not owe any statutory or legal duty and even further this respondent is not discharging any public duties nor is it a 'state' as defined under Article 12 of the Constitution of India. It is further contended that the matter sought to be adjudicated is purely contractual within the realm of private laws involving questions of facts.

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11. Relevant portion of the counter affidavit reads thus:

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“7. The principles on which a writ of mandamus can be issued have been stated as under in "The Law of Extraordinary Legal Remedies' by F.G. Ferris and F.G. Ferris, jr.:

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Note 187 --Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.

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Note 192 -Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.

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Note 196- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well-settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over-look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case discretion dependent upon all the

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surrounding facts and circumstances.

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Note 206--...The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.

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As already stated the first test that a writ petitioner has to pass to succeed in maintaining a writ petition is that he must establish the infringement of any legal right, which has not been established in the writ petition. The second test, which must follow in consequence to the first condition, is that the party against whom mandamus is sought should have a legal duty to perform an act, the commission or omission of which must infringe the legal right of the petitioner. In this case, neither is any fundamental or other legal right of the petitioner is affected nor is this respondent by any stretch of imagination liable to discharge any legal duty. This respondent is a banking company and does not owe any duty to the petitioner panchayat or the members of ward no. 18.

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Further it is trite law that this Hon'ble Court would not exercise the discretionary remedy of writ jurisdiction in a purely contractual matter which is in the realm of private law. The agreement that is sought to be enforced is a contract entered into between the 7^th and 6^th respondents and involves questions facts. The applicability, enforceability of the contract are purely within the realm of private rights of the parties to the said agreement, in which neither the petitioner nor this respondent has no role, being total strangers.

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In order to substantiate the argument of this respondent that the issue is contractual involving question of fact, the following facts may kindly be considered;

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A perusal of Exhibit P1 shows and the general scheme of the said order appears to be that, if the 7th respondent company, having faced with the allegation of pollution, has to continue its operation, it has to abide by the suggestions/ recommendations of the committee formed under Exhibit P1. Please see point no 4 in the terms of reference, in running page no. 14 of the writ petition, which speaks about the conduct of an environmental audit of the company. Therefore the constitution of the committee with specific terms of reference aims at striking a balance between compensating the victims of pollution and permitting the operations of 7th respondent.

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A perusal of Exhibit P2 at running page no. 18 of the writ petition reveals that the liability to provide 10 KL of water to the residents shall be the obligation of the company as long as it continues its operation at Edayar. Therefore Exhibit P2 order, based on which Exhibit P3 agreement is drawn up, itself limits the liability to provide water by the 7th respondent company only as long as it operates in Edayar.

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Clause no. 9.1 of Exhibit P3 says that variation in the number houses is sealed at a maximum of 525 houses and not beyond that. However the writ petitioner raises a contra allegation in ground that the 7th respondent is liable to provide water to any number of new residents. Therefore there is a contradiction in the allegation in the writ petition and the terms of the agreement.

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Exhibit P3 does not provide for any sanctions or compensation or any recovery measures if the 7^th respondent fails to honor its obligations, which naturally points towards the fact that failure to abide by the conditions of Exhibit P3 would disentitle the company to continue its operations.

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Therefore the above factors are questions of fact and require appreciation of contractual terms and conditions, which are not within the domain of this Hon'ble Court exercising jurisdiction under Article 226 of the Constitution of India. Therefore the remedy of the aggrieved persons or that of the petitioner panchayat, if advised to be having any grievance, lies elsewhere.

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The allegation in the writ petition is that in pursuance to exhibit P1 order constituting a local area environment protection committee, exhibit P2 report was drawn up based on which exhibit P3 agreement is said to have been executed by the 7th respondent company and the 6th respondent. Now in this writ petition the petitioner alleges that the 7th respondent has failed to meet its contractual obligations under exhibit P3 agreement with the 6th respondent, and therefore by issuing a writ of mandamus to this respondent, the contractual obligations of the 7th respondent to the 6th respondent is sought to be enforced. This respondent is neither a party to Exhibit P3 agreement nor has it in any manner guaranteed performances by the 7th respondent.

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It is submitted that under a consortiums agreement in which this respondent is the lead bank, financial assistance was availed by the 7th respondent herein. It is submitted that the 7^th respondent availed the aforesaid credit facilities and have utilized the same. Although this respondent supported the 7^th

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respondent's requirements in accordance with the sanctioned terms and the loan agreements executed from time to time they have failed and neglected to comply with the terms and conditions of the loan agreements and failed to repay the loan amounts. The 7^th respondent committed various defaults of its obligations under the documents executed with regard to the said credit facilities and therefore proceedings have been initiated by this respondent for recovery of the amounts due. The original application filed by this respondent is pending before the Debts Recovery Tribunal Ernakulam as O. A No. 356 of 2017 for recovery of a total amount of Rs. 277,77,82,280.14/- (Rupees Two Hundred and Seventy Seven Crores Seventy Seven Lakhs Eighty Two Thousand Two Hundred and Eighty and Paisa Fourteen only). It is submitted that even if the entire assets mortgaged by the 7^th respondent is proceeded against it will not be sufficient to cover the amount which is due.

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The prayer sought in the writ petition to direct this respondent to pay the additional sums allegedly payable by the 7^th respondent out of the sale proceeds is absolutely unfounded for two simple reasons. One being that this respondent is a total stranger to Exhibit P3 and further a totally unnecessary party to this writ petition and the second reason being that huge arrears are due to this respondent and no auction has taken place and no proceeds have been received by this respondent. This respondent is already under a huge financial loss due to nonpayment legal dues by the 7th respondent, further is now being dragged into unnecessary litigations in which this respondent is not a necessary or essential party at all.

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Therefore, to sum up, this writ petition is not maintainable since the petitioner does not have a locus standi to file a writ petition when none of its personal rights are affected and mandamus cannot be sought against a party which does not owe any statutory or legal duty and even further this respondent is not discharging any public duties nor is it a 'state' as defined under Article 12 of the Constitution of India. The matter sought to be adjudicated is purely contractual within the realm of private laws involving questions of facts.”

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12. It is contended by the 8 th respondent that the petitioner

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Panchayat has filed the writ petition for the grievances allegedly

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suffered by the residents of ward No.18. It is respectfully submitted that the petitioner, being a body corporate with rights to sue could only have filed a writ petition, if only any of its fundamental rights were affected. It is the first principles of mandamus that the person pressing for an order of mandamus must show that he has a legal right to the performance of a legal duty by the party against whom, reliefs are sought for, or alternatively that he has a substantial personal interest in its performance. Therefore, according to this respondent, the petitioner panchayat does not have the locus standi to file this writ petition.

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13. Pursuant to the direction of this court on 9.11.2021, a report has been filed by the Senior Environmental Engineer, Kerala State Pollution Control Board, Environmental Surveillance Centre, Eloor, the fourth respondent wherein it is stated that the claims, if any, by the Panchayath, cannot be considered by the Board, as the matter is already before the state Govt. for appropriate orders.

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It is also submitted that the collected amount from the sale of chemicals, if transferred for other purposes like water charges or any other purposes other than remediation charges, the whole remediation project will be delayed further. The water supply project originally commenced was not as a short-term measure and alternative measures.

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Supply of the water has to be continued at least till the remediation of Edayattuchaal and Chakkarachaal is materialized.

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15. Relevant portion of the report reads thus:

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2. It is respectfully submitted that the Hon'ble Supreme court of India as per the directions contained in the order in WPC No.657/1995 had constituted a Monitoring Committee to look into the pollution caused due to the unscientific function of industrial units in various States in India including the industrial units functioning in Eloor-Edayar region of Kerala. Thereafter the Supreme Court monitoring committee had visited Edayar region in August 2004 and expressed its deep concern over the pollution issues happening there. The contamination of ground water in the vicinity owing to the operation of M/s. Binani Zinc Ltd had also was addressed by the Supreme Court Monitoring Committee and recommended to issue direction to the company to supply drinking water to the affected people and suggested to constitute a committee under the chairmanship of the Head of Regional Office Ernakulam with two representatives from Binani Zinc Company and two from public and to create a register of persons affected and to ensure that M/s. Binani Zinc install piped water supply to the residences of affected persons timely.

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Accordingly, the Member Secretary of KSPCB vide Ext p1 had constituted a committee, as suggested by the SCMC. The Local Area Environment Committee [LAEC] as per its meeting held on 05-112004 taken a decision to supply piped drinking water to the residents in ward No.18 (Earlier Ward No. 15) with a ceiling limit of 10 Kilo liters of water per month per family. It was also decided that the responsible company has to pay the cost for providing water connection which includes the laying of pipes from Muppathadam Pump house of Kerala Water authority and installation of water meters at residences. The monthly water charges of all the houses in ward No. 18(Earlier Ward No. 15) had to be paid by M/s. Binani Zinc Ltd subject to a limit of 10 KI per month for a house. It was also decided that additional charges for consumption beyond 10 kilo litre have to be paid by each consumer. The above aspects are evident from Ext p2. report of the LAEC.

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In the light of this report, M/s Binani Zinc Limited had entered into an Ext P3 agreement with KWA for providing piped water to

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516 residents in ward No 15 (New ward no. 18). It is respectfully submitted that the Board is not a party to Ext p3 agreement. The supply of drinking water to the affected families was commenced in the year 2005. The water supply is still continuing.

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It is respectfully submitted that, according to the Panchayath the Company has stopped functioning without clearing the water charges due to KWA. During the discussion with KWA it is understood that water usage in excess of 10 Kl shall be paid by each family since allotted quantity of water is 10 Kl per month. The further contention of the Panchayath is that the Board has to take appropriate action to remove the chemical waste from the premises of the Company.

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At this juncture, it is humbly submitted that M/s Binani Zinc Ltd. was closed all of a sudden in the year 2014 due to financial crisis, which was attached by Punjab National Bank (PNB), and kept under their custody for auction. It is pertinent to note that the industry closed down the unit without utilizing their complete raw materials and left behind huge quantities of chemicals which include raw materials, intermediates etc. Some chemicals and acidic solutions (Zinc Sulphate) were stored in storage tanks along the bank of river Periyar. The storage tanks were in collapse stage and were found to be leaking. At that stage, in pursuance ofthe orders of this Hon'ble Court in WP(c) 22772/2018, the Board intervened in the matter by invoking powers under Sec. 32 of the Environmental Protection Act 1981 [EP Act]and taken all steps to remove the chemicals which were pausing threat to the Periyar River and Environment at large.

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It is submitted that the shifting of chemicals was started on 22.01.2019, with the two selected Companies, which are awarded the works, pursuant to the auction proceedings. Zinc Sulphate (solutions)are completely shifted and the last load was sent on 12.03.2020. It is also noted that in some storage tanks, Zinc Sulphate solution was seen crystallized and deposited under the tank. Since, these Zinc Crystals are part of Zinc Sulphate solution, it was also disposed. The entire shifting of chemicals was done under the supervision of the Board. One representative of monitoring committee was also present for the supervision. After the removal of chemicals from the storage tanks, it was noted that some thick slurry was left inside the closed tanks. The Technical Committee decided to dispose the slurry in existing Jarosite ponds of the M/s Edayar Zinc which are scientifically designed secured land fill (SLF) approved by KSPCB.

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It is respectfully submitted that the Board had opened a separate account exclusively for depositing the amount obtained from the auction of chemicals from M/s. Edayar Zinc. The total money received from the auction of the chemicals are Rs.3,05,78,340/-,in which the amount remitted towards GST is Rs.46,64,492/-.As per the decision of the meeting of the Board Chairman dated 20.07.2018, the expenditure incurred for the execution of the work need to be met from the money received through the auction of chemicals. The total expenditure of Board for this project is Rs.13,97,011/-, which was recovered from the money received. The balance amount remaining in the account is Rs.2,40,68,222.66. Board had decided to inform the matter to the State Govt. The decision of the utilization of the money received through the auction will be taken based on the direction of State Govt.

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It is submitted that the Central Pollution Control Board (CPCB) has been entrusted as the implementing agency for the Remediation Project which comprises the remediation of 12 priority hazardous waste contaminated areas spread across the country. The hazardous sites which pose risks to human health and the environment were selected to be remediated as part of this initiative. Eloor- Kuzhikandom Thodu at Eloor and Edayattuchaal and Chakkarachaal paddy fields at Edayar in Ernakulam District are included in the remediation project. The remediation projects of above two contaminated sites were taken up under National clean Energy Fund (NCEF) project initiated by MoEF& CC with support from the State pollution control Boards. The funding pattern under NCEF was limited to 40% of the total project cost and the remaining 60% to be borne by the State Governments through polluter pays principle / Public-Private Partnership/ State share etc. The central govt thereafter informed that the NCEF as discontinued in the year 2017. Therefore, the CPCB approved DPR of Eloor - Edayar was handed over to the state Govt for implementation in the year 2019. Now, the whole fund for remediation shall be raised by the State Govt. Being an implementing agency of the project, the Central Pollution Control Board invited proposals from the consultants for the Remediation of contaminated sites. The CPCB had entrusted M/s ERM India pvt Ltd for preparation of Detailed project Report (DPR). The DPR prepared the consultant M/s ERM India Pvt Ltd after conducting sampling, analysis of surface water, ground water, sediments and soil of the affected areas were submitted to CPCB. The prepared DPR consists of two phases, phase 1 EloorKuzhikandamthodu and Phase-2 Edayar-chakkarachaal and Edayattuchaal. The Kuzhikandamthodu was contaminated with

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Pesticides and Heavy metals due to the operation of M/s Hindustan Insecticides Ltd, M/s Fertilizers and Chemicals Travancore Ltd and M/s Merchem and Edayar site (Edayattuchaal, Chakkarachaal) was found to be contaminated with heavy metals due to the operation of M/s Edayar Zinc (formerly M/s. Binani Zinc). It is submitted that many actions are due from the part of the industry towards the remediation of Edayattuchaal and Chakkarachaal paddy fields, two contaminated sites at Edayar.

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The Board, in view of the actions initiated towards the remediation of Eloor-Kuzhikkandomthodu, has informed the 7^th respondent Company and the 8^th respondent Bank about the liability of 47.88 Cr towards the remediation of the mentioned site which was contaminated by the industry. But, neither the industry nor the Punjab National Bank has replied to the Board's letter till date. The Board had also informed District Collector to include the liability of industry of 47.88 Cr towards the remediation of mentioned areas in the revenue recovery procedures. Thereafter, the District collector had informed the Board to submit the liability amount in revenue recovery website of State Govt. and the Board initiated actions in this regard.

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In this regard it is respectfully submitted that a Writ Petition No.19291 of 2020 was filed by M/s. Fine fab Engineering and Constructions wherein the Edayar Zinc Ltd, was made a party as 6th respondent. The above writ petition was filed seeking for a direction to permit the petitioner to dismantle and remove the material sold by it by the 6th respondent therein. This Hon'ble Court vide order dated 01-10-2020 has issued directions, among others permitting the petitioner therein to remove the goods covered under the sale certificate, including the plant and machinery. A true copy of the Order dated 01-10-2020 in W.P.(C) No. 19291 of 2020 is produced herewith and marked as Annexure R- 4(b), It is submitted that the District Magistrate informed the Board vide letter dated 13.10.2020 that there was no mentioning about SPCBS claim for the amount to be paid by the industry towards remediation in the Annexure R4(b) order. It is submitted that the dismantling of the plant is in its final stage.

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It is submitted that the amount collected by the Board from the sale of chemicals stored in the factory premises is now kept in a separate account and informed the matter to the State Govt. vide Annexure R-4(a) seeking Government's opinion as to the manner in which the amount has to be utilized. It is submitted that, claims, if any, by the Panchayath, cannot be considered by the Board as the matter is already before the state Govt. for appropriate orders. It is

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respectfully submitted that the collected amount from the sale of chemicals, if transferred for other purposes like water charges or any other purposes other than remediation charges, the whole remediation project will be delayed further. It may be kindly noted that the water supply project originally commenced was not as a short-term measure and alternative measures. The supply of the water has to be continued at least till the remediation of Edayattuchaal and Chakkarachaal is materialized.

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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.

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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

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prayed that all the issues raised in the writ petition by the parties may be left open.

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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 9^th 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.

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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.

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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 9 th respondent in this writ petition.

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21. Hence the Secretary to the Government, Environment and Forest Department, Government of Kerala is impleaded as additional

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respondent No.9. Registry is directed to carry out necessary amendments in the cause title.

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Petitioner is at liberty to make a representation before the additional respondent No.9 within a period of two weeks from the date of receipt of a copy of this judgment.

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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.

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Writ petition is disposed of accordingly.

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SD/- S.MANIKUMAR CHIEF JUSTICE

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SD/- SHAJI P. CHALY JUDGE

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jes

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT -P-1 TRUE COPY OF THE ORDER NO.PCB/HD/HWM/SCMC/498/04 ISSUED BY THE 2ND RESPONDENT, CONSTITUTING LOCAL AREA ENVIRONMENT PROTECTION COMMITTEE DATED 02.09.2004

¶118

EXHIBIT P-2 TRUE COPY OF THE REPORT OF THE LOCAL AREA ENVIRONMENT PROTECTION COMMITTEE DATED 23.11.2004.

¶119

EXHIBIT P-3	TRUE COPY POF THE AGREEMENT OF THE AGREEMENT EXECUTED BY THE 7TH REPRESENTED DATED 09.03.2005.

¶120

EXHIBIT P-4 TRUE COPY OF THE RESOLUTION PASSED BY THE PETITIONER GRAMA PANCHAYAT DATED 11.06.2018.

¶121

EXHIBIT P-5	TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER GRAMA PANCHAYAT BEFORE THE 3RD RESPONDENT DATED 13.06.2018.
EXHIBIT P-6	TRUE COPY OF THE LETTER SENT BY THE PETITIONER GRAMA PANCHAYAT TO THE 8TH RESPONDENT DATED 25.06.2018.

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RESPONDENTS' EXHIBITS:

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ANNEXURE R4(a) TRUE COPY OF THE LETTER NO.PCB/ESC/BZDC/18 DATED 10.11.2020 ISSUED TO MEMBER SECRETARY.

¶124

ANNEXURE R4(b) TRUE COPY OF THE ORDER DATED 1.10.2020 IN WPC 19291/2020 OF THIS HON'BLR COURT.

¶125

// TRUE COPY //

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P.S. TO JUDGE

Kadungalloor Grama Panchayat v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kadungalloor Grama Panchayat v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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