Dismissed

Kathikkudom Action Council v. State of Kerala

Kerala HC12 Oct 2021WP(C)/24074/2018

Case brief

AI extract

What is this about?

The Single Bench of the Kerala High Court dismissed a public interest litigation filed by Kathikkudom Action Council seeking a writ to restrain Nitta Gelatin India Limited from discharging effluents into the Chalakudiyar river, noting that the Tribunal had already adjudicated the same dispute.

What did the court decide?

The writ petition filed by the petitioners restraining respondents from discharging effluents is dismissed.

Kathikkudom Action Council 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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TUESDAY, THE 12^TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943

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WP(C) NO. 24074 OF 2018

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PETITIONERS:

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1 KATHIKKUDOM ACTION COUNCIL JAISON PANIKULANGARA, P.O. PARAKADAVU 683 579, ALUVA, ERNAKULAM DISRICT.

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2 KATHIKKUDOM ACTION COUNCIL REPRESENTED BY ITS SECRETARY K.M.ANILKUMAR, KUNJUVALAPPIL HOUSE, P.O. KATHIKKUDAM-680308THRISSUR DISTRICT

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BY ADV DR.VINCENT PANIKULANGARA SRI.P.MURALEEDHARAN,

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RESPONDENTS:

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1 STATE OF KERALA, GOVERNMENT OF KERALA, ADMINISTRATIVE SECRETARIAT,THIRUVANANTHAPURAM - 695 001.

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2 NITTA GELATIN INDIA LIMITED, REP. BY ITS MANAGING DIRECTOR 27/472, SBT AVENUE, PANAMPILLY NAGAR, COCHIN-682 036.

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3 KADUKUTTY GRAMA PANCHAYAT, REP. BY ITS SECRETARY P.O., KADUKUTTY 680 309, THRISSUR DISTRICT, KERALA STATE

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BY ADVS.SHRI.N.MANOJ KUMAR, STATE ATTORNEY SHRI.V.PREMCHAND, SC, KADUKUTTY GRAMA PANCHAYAT

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SURYA MOHAN P. SRI.R.RENJITH, G.P. SRI.K.ANAND (SR.) SMT.SHEEJO CHACKO

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)NO.24074 OF 2018

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JUDGMENT

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Dated this the 12^th day of October 2021

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S.MANIKUMAR, C.J.

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Instant public interest litigation is filed seeking for a writ of mandamus or any other writ, direction or order directing 1^st respondent/State of Kerala, represented by Chief Secretary to restrain 2^nd respondent/Nitta Gelatin (India) Limited, represented by its Managing Director from discharging any effluents into the Chalakudiyar and to initiate proceedings against 2^nd respondent/Nitta Gelatin (India) Limited.

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On 7.10.21, we passed the following order:

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“Kathikkudom Action Council, represented by its President Mr.Jaison Panikulangara and Secretary Mr.K.M.Anilkumar, have filed the instant public interest litigation for the following reliefs:

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“i) a writ in the nature of mandamus or any other writ, direction or order directing 1^st Respondent to restrain 2^nd Respondent from discharging any effluents into the Chalakudiyar and to initiate proceedings against 2^nd Respondent.

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ii) a writ in the nature of mandamus or any other writ, direction or order restraining 2^nd Respondent from discharging effluents into the Chalakudiyar.”

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Though no counter affidavit has been filed, Mr.K.Anand, learned Senior Counsel appearing for Nitta Gelatin (India) Limited, 2^nd respondent, submitted that for the very same prayer

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W.P.(C)NO.24074 OF 2018

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ie., to restrain the 2^nd respondent from discharging any effluent into Chalakudiyar, Mr.Jaison Panikulangara and Mr.K.M.Anilkumar, representing themselves, as President and Secretary of NGI Action Council with registration No.R 742/2009, have filed Application No.412 of 2016 before the National Green Tribunal, Southern Zonal Bench, Chennai and after considering the rival contentions therein, the said Tribunal, vide judgment dated 27.02.2017 in Application No.412 of 2016, has passed a detailed order.

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Learned Senior Counsel for the Nitta Gelatin (India) Limited, respondent No.2, further submitted that though reference to the filing of the Application No.412 of 2016 has been made in paragraph No.8 of the statement of facts filed along with the writ petition, final decision of the said Application has not been furnished, when the writ petition was filed on 16.7.2018.

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Inviting the attention of this court to section 14 of the National Green Tribunal Act, 2010, learned Senior Counsel further submitted that the instant writ petition is not maintainable, as the issue raised has to be dealt with by the National Green Tribunal and on facts also done.

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Section 14 of the National Green Tribunal Act, 2010, reads thus:

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“14 Tribunal to settle disputes. - (1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.

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(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.

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(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed

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W.P.(C)NO.24074 OF 2018

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within a further period not exceeding sixty days.”

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As rightly contended by the learned Senior Counsel for respondent No.2, going through the order in Application No.412 of 2016, we are of the prima facie opinion that on the same issue, Mr.Jaison Panikulangara and Mr.K.M.Anilkumar, joining themselves as President and Secretary of NGI Action Council, have filed Application No.412 of 2016 against respondent No.2 and others before the National Green Tribunal, Southern Zone, Chennai, for the following reliefs:

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“i. to direct 5^th respondent to study the pollution caused by the factory to air, water and land in terms of the parameters fixed in Annexure 1 and 2 and the smell from the factory.

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ii. to prohibit the factory to draw such huge quantity of water every day from the Chalukudiyar for industrial purpose without permission from 4^th respondent.

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iii. to prohibit the factory to discharge its effluents and sludge into the Chalakudiyar unless the discharge satisfies the conditions in Annexure 1 and 2 and respondents 1 and 2 get permission from

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4 th respondent to draw and to discharge the treated effluents and sludge which satisfy the conditions in Annexure 1 and 2 into the Chalakudiyar.

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iv. to direct 2^nd respondent to compensate the dead and the living victims of pollution.

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v. to direct 2^nd respondent to compensate the uncultivable agricultural land.

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vi. to direct respondents 1 and 2 to clean the river bed of the downstream of the Chalukudiyar from Kathikudam of heavy metals and chemical industrial wastes.

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vii. to direct 2^nd respondent to take away and clean the sludge stored in Kalliyamapara

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viii. to direct 2^nd respondent to clean the river bed of the Gayathripuzha.

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ix. to grant any other relief this Hon’ble Tribunal deems fit and proper in the batch of the case including a direction to 2^nd respondent to pay cost of this litigation to Applicant.”

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W.P.(C)NO.24074 OF 2018

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After considering the rival contentions, the Tribunal vide judgment dated 27.02.2017, has disposed of Application No.412 of 2016 as hereunder:

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“2. The applicant contended that the 2^nd respondent Nitta Gelatin India Ltd. obtained the integrated consent dated 17.06.2009 from the 6^th respondent KSPCB under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 for manufacture of Ossein, Limed Ossein, Dry Calcium Phosphate, Meat meal, Sterilised Bone Meal and compost with a total production of 106.17 Tonnes per day and the raw materials permitted to use in the factory are bone chips, HCI and lime. It is contended that HCI purchased by the company contains huge amount of mercury and other heavy metals and the entire waste water and the effluents along with the sludge are discharged into the river through common ground pipes and polluting the water and environment. It is contended that the industry releases everyday 25.08 tonnes of chlorides and 43.89 tonnes of total dissolved solids (TDS) into the river along with other chemical and industrial effluents. The applicants have raised the same ground which have been taken by the applicants in the Original Application Nos.305 and 309 of 2013. In addition, they have contended that the actions of respondent Nos. 1 and 2 are violating the right of the applicants under Article 300 A of the Constitution of India and they have caused miseries to seven lakh people who have been living for generations on the banks of Chalakkudy river and the environmental hazard caused by respondent Nos. 1 and 2 made the banks of this river unfit and unsafe for living as well as agricultural activities.

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The respondents have resisted the application raising the same contentions which have been raised by them in the Original Application Nos.305 and 309 of 2013.

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The Central Pollution Control Board (CPCB), respondent No.5 was directed to inspect the industry and submit a detailed report including on the sludge and Ambient Air Quality in the industry of the respondent

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W.P.(C)NO.24074 OF 2018

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No.2. Accordingly, the CPCB, after inspection and analysis of the samples collected, submitted a report.

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Learned counsel appearing for the applicant submitted that they agreed to the findings of the CPCB and the application be disposed based on that report. The respondent industry filed detailed objection to the report.

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The entire aspects raised by the applicant have been elaborately considered in Original Application Nos.305 and 309 of 2013. The report submitted by CPCB in this application as well as the objections raised against the findings by the industry were also considered in those applications. In such circumstances, we find it not necessary to consider the same in this application separately.

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Though the applicant sought compensation to the deceased and living victims of the pollution as well as for making the agricultural land uncultivable, no evidence to support the claim is adduced. In the light of the findings in Original Application Nos. 305 and 309 of 2013, as the applicant has not produced any material to substantiate the claim, the applicant is not entitled to the said reliefs.

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The application is disposed of in accordance with the common judgment made in Original Application Nos.305 and 309 of 2013, with no order as to costs. The said judgment shall form part of the judgment in this application also.”

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Said judgment in Application No.412 of 2016 has been rendered on 27.02.2017, giving directions as stated supra. As rightly contended by the learned counsel for respondent No.2 though the instant writ petition has been filed on 16.7.2018, absolutely there is no reference to the final judgment in Application No.412 of 2016.

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That apart, going through the averments made in the statement of facts, we could find that Mr.Jaison Panikulangara and Mr.K.M.Anilkumar, claiming themselves to be the President and Secretary of the Kathikkudom Action Council have filed the instant writ petition and that the petitioners have referred to

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W.P.(C)NO.24074 OF 2018

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the said Kathikkudom Action Council, as Action Council, a registered society consisting of the victims of pollution of air, water, etc.

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Before the National Green Tribunal, both claimed to be the President and Secretary of NGI Action Council, a registered body. There are no materials to indicate as to whether Kathikkudom Action Council is a registered body, though claimed.

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Non-disclosure of the final orders passed by the National Green Tribunal is apparent on the face of record. Whether Mr.Jaison Panikulangara and Mr.K.M.Anilkumar can approach the National Green Tribunal, Southern Zone, Chennai and file writ petition before this court in different capacities - NGI Action Council before the National Green Tribunal, Chennai, and Kathikkudom Action Council before this court, is a matter to be dealt with.

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Adv.P.Muraleedharan, representing the learned counsel for the petitioner, seeks adjournment.

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Post on 11.10.2021. ”

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On this day, when the matter came up for hearing, our attention

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was drawn to an e-mail communication handed over by a junior advocate of Mr.Vincent Panikulangara/learned counsel for the petitioner, to the Court Officer, which reads thus:

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“Respected Sir,

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Let me introduce myself as Dr.Vincent Panikulangara, Advocate (V-164) of petitioner in WPC 24074/2018, posted for disposal in hon’ble Chief Justice Court. Petitioner is a Registered Society and the WPC had come up only for Admission earlier. NGIL, R1 here filed the 1^st WPC 37729/2017 on 22/11/2017 against NGT judgment dt, 27/02/2017. After notice was ordered on it, petitioner filed WPC 24074/2018 on 17.7.2018 & it was posted for admission on 18/7/2018. Six WPCs shown as connected to WPC 37729/2017 are :

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W.P.(C)NO.24074 OF 2018

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32281/2019 2. 31349/2019 3. 30943/2019

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9174/2018 5. 5753/2018 6. 6288/2017 NGIL is petitioner in 5 WPCs, including against NGT.

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As I am unable to appear in person and to file any petition, I request you to kindly do the needful to help me for admission notice for the WPC & to get all the connected WPCs posted together, in terms of the orders of the hon’ble court earlier. Post along with connected Cases(p/a w/c). Cases Orders of Hon’ble Justice Devan Ramachandran in WPC 32281/2019 on 12/12/2019, 13/01/2020, in WPC 9174/2018 on 8/1/2020 & 11/2/2020

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Hon’ble Justice Shaji P Chaly in WPC 37729/17 on 7/9/18, 4/11/18, 18/12/18 & 23/01/19 In WPC 9174/18 on 7/9/18, 14/11/18, 18/12/18, 12/12/19, 8/1/20, 13/1/20, 1102/20 etc examples for consideration.

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Yours faithfully, Vincent Panikulangara sd/- 10/10/2021.”

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First of all, it is not a request addressed to the Registrar General or any authorised or competent officer of this court. Secondly, Mr.P.Muraleedharan, counsel representing the learned counsel for the petitioner, submitted that he is unwell and cannot appear in person. However, he requested that since there are other writ petitions connected to the instant Writ Appeal 24074/2018, all the writ petitions may be clubbed and heard together.

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Mr.R.Renjith, learned Government Pleader by inviting attention of this court to a common judgment dated 29^th November 2019

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W.P.(C)NO.24074 OF 2018

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in W.P.(C)No.4783/2017 and connected cases, submitted that by the said common judgment, writ court has closed all the writ petitions namely, W.P.(C)Nos.4783/2017, 11111/2017, 9196/2017, 10600/2018, 2544/2018,

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5151/2018, without passing any further orders.

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Material on record discloses that among the grounds urged in the writ petition, in ground No.C petitioner has contended thus:

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“W.P.(C)Nos.37729/2017, 5753/2018 and 9174/2018 filed by 2^nd respondent and W.P.(C)Nos.2544/2018 and 5151/2018 filed by petitioners regarding the pollution caused by 2^nd respondent and W.P.(C)Nos.9196/2017 and 10600/2018 filed by 2^nd respondent regarding the denial of D&O license by 3^rd respondent are pending consideration of this honourable court. It is on the basis of the ex parte interim orders in W.P.(C)Nos.37729/2017 and 10600/2018 that 2^nd respondent is functioning and discharging toxic effluents into the source of drinking water.”

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Having considered the materials available on record, we find that several connected writ petitions have already been disposed of. Therefore, we find no reason to entertain ground no.C in the writ petition.

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From the reading of the common judgment dated 29^th November 2019 in W.P.(C)Nos.4783/2017, 11111/2017, 9196/2017, 10600/2018, 2544/2018, 5151/2018, it could be deduced that final orders

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W.P.(C)NO.24074 OF 2018

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were passed by the National Green Tribunal, Southern Bench in Application No.305/2013 and connected matters, which has been challenged by Nitta Gelatin India Limited in W.P.(C)No.37729/17, 5753/18 and 9174/2018. For the implementation of the abovesaid final order passed by the National Green Tribunal, Southern Bench, petitioners in this writ petition namely Mr.Jaison Panikulangara and Mr.K.M.Anilkumar representing themselves as President and Secretary of NGIL Action Council, Thrissur have filed W.P.(C)No.4783/2017. Mr.K.M.Anilkumar represented as Secretary of NGIL Action Council, Thrissur has also filed W.P.(C)No.31349/2019 for the same relief.

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As pointed out in our order dated 7^th October, 2021 there is a suppression of the fact of filing of Application No.412 of 2016 before the National Green Tribunal, Southern Zone, Chennai and the final orders passed thereon, in terms of the order in Original Application Nos.305 and 309 of 2013, which appears to have been challenged by Nitta Gelatin (India) Limited, 2^nd respondent, in the abovesaid writ petitions.

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Instant writ petition has been filed with a prayer mainly for a writ of mandamus or any other writ, direction or order directing 1^st

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W.P.(C)NO.24074 OF 2018

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respondent/State of Kerala, represented by Chief Secretary to restrain 2^nd respondent/Nitta Gelatin (India) Limited, represented by its Managing Director from discharging any effluents into the Chalakudiyar and to initiate proceedings against 2^nd respondent. As stated supra, petitioner had already approached National Green Tribunal, Southern Zone, Chennai to obtain necessary orders.

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