IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 25746 of 2008(M) --------------------------------------- PETITIONERS: --------------------- 1. M/S. INFRA HOUSING (P) LTD., CLS BULDING, M.G. ROAD, KOCHI-682 011. 2. M/S. KUNNEL ENGINEERS & CONTRACTORS (P) LTD., 3RD, PUTHURAN PLAZA, KPCC JN, KOCHI-682 011. 3. M/S. ABAD BUILDERS (P) LTD., ABAD PLAZA, M.G. ROAD, KOCHI-682 011. 4. M/S. CHACKOLAS HABITAT (P) LTD., WELLINGTON ENCLAVE, PANDIT KARUPPAN ROAD, THEVARA, KOCHI-682 013. 5. M/S. GOKULAM ENGINEERS INDIA (P) LTD., ANJAM APARTMENTS, CHITOOR ROAD, COCHIN-682 011. 6. M/S. JOMER PROPERTIES & INVESTMENTS (P) LTD., II FLOOR, JOMER ARCADE, SOUTH JN, CHITTOOR ROAD, KOCHI-682 016. 7. M/S. SKYLINE BUILDERS, SKYLINE HOUSE, RAJAJI ROAD, KOCHI-35, A PARTNERSHIP FIRM REPRESENTED BY ITS MG. PARTNER ABDUL AZEEZ. 8. M/S. KENT CONSTRUCTIONS (P) LTD., PAVURETH BUILDING, IST FLOOR, OPP CHOICE TOWER, S.A. ROAD, KOCHI-682 036. 9. M/S. MATHER PROJECT & CONSTRUCTIONS LTD., RAJAJI ROAD, KOCHI-682 035. 10. M/S. SKYLINE FOUNDATIONS AND STRUCTURES (P) LTD., MAGNUM, KARIKKAMURI CROSS RD, KOCHI-682 011. 11. M/S/ YESORAM BUILDERS (P) LTD., CONVENT ROAD, KOCHI-682 035. W.P.(C). NO.25746/2008-M: 12. M/S. TRINITY ARCADE (P) LTD., TRINITY HOUSE, OPP. YATRI NIVAS, N.H, MAMANGALAM, KOCHI-682 025. 13. M/S. NOEL VILLAS AND APARTMENTS, NEOL HOUSE, KUNNUMPURAM, KAKKANAD, KOCHI-682 021. A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER JOHN THOMAS. 14. M/S. RDS PROJECTS LTD., ALPHA PLAZA, K.P. VALLON ROAD, KADAVANTHRA, KOCHI-682 020. 15. KERALA BUILDERS FORUM, IST FLOOR, NO.43, JAWAHAR NAGAR, KOCHI-682 020, A REGISTERED SOCIETY, REP. BY ITS EXECUTIVE DIRECTOR, SHRI.RAVEENDRAN.V BY ADV. MR.C.K.KARUNAKARAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE POLUTION CONTROL BOARD, PATTOM.P.O, THIRUVANATHAPURAM - 695 004, REP. BY ITS SECRETARY. 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ENVIRONMENTAL AND FORESTS, NEW DELHI - 110 001. 4. THE CENTRAL POLLUTION CONTROL BOARD, PARIVESH BHAVAN, EAST ARJUN NAGAR, NEW DELHI-110 032, REPRESENTED BY ITS SECRETARY. R1 BY GOVERNMENT PLEADER SMT. R. BINDU, R2 BY MR. M.K. CHANDRAMOHAN DAS, S.C, R3 BY MR.A.D.RAVENDRA PRASAD, CGC, R4 BY MR..N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV. MR.S.SUJIN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009, ALONG WITH W.P.(C). NO. 19166/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.25746/2008-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER NO.PCB/TAC/BLDG-RULES/383/07 DTD. 20/11/2007 OF THE R.2. EXT.P.2: COPY OF THE CONSENT TO ESTABLISH DTD. 13/08/2007 FOR CONSENT TO ESTABLISH SUBMITTED BY THE P.3. EXT.P.3: COPY OF THE CONSENT TO ESTABLISH DTD. 18/09/2007 ISSUED BY THE R.2. IN RESPONSE TO EXT.P.2. EXT.P.4: COPY OF THE CONSENT TO ESTABLISH ISSUED BY THE R.2. TO TO THE P.3. DTD. 16/02/2008. EXT.P.5: COPY OF THE GENERAL STANDARDS FOR DISCHARGE STIPULATED BY THE R.4. EXT.P.6: COPY OF THE STANDARDS FOLLOWED BY THE TAMIL NADU POLLUTION CONTROL BOARD. EXT.P.7: COPY OF THE MEMORANDUM NO. KSPCB/54/CC/2007-08/2814 DTD. 16/11/2007. EXT.P.8: COPY OF THE STANDARDS FOR WATER QUALITY CRITERIA FOR DESIGNATED BEST USE BY R.4. EXT.P.9: COPY OF THE RELEVANT EXTRACTS FROM THE 3RD RESPONDENT'S MANUAL ON NORMS AND STANDARDS FOR ENVIRONMENTAL CLEARANCE FOR LARGE CONSTRUCTION PROJECTS. EXT.P.10: COPY OF THE TEXT BOOK “WASTE WATER ENGINEERING” BY METCALF AND EDDY (TATA MCGRAW-HILL EDN. 2003., PAGES 1359-1360). EXT.P.11: COPY OF A BUILDING PERMIT DTD. 16/12/2005. EXT.P.12: COPY OF THE DEPARTMENT OF HEALTH AND FAMILY WELFARE,HAD ISSUED NOTIFICATION NO.G.O.(RT)2536/2002 H & FWD DTD. 21/10/2002. EXT.P.13: COPY OF A COMMUNICATION FROM FILE NO.PCB/GEN/C/1/2002 DTD. 07/07/2003 ISSUED BY THE R.2. EXT.P.14: COPY OF NOTIFICATION NO. 43799/G3/05/H&FWD DTD. 09/06/2006. EXT.P.15: CONSENT FEES LEVIED BY THE KARNATAKA STATE POLLUTION CONTROL BOARD. EXT.P.16: A TYPICAL PROCESS LAYOUT PLAN OF STP AS APPROVED BY THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 19166 of 2007, 25746, 29367, 32926, 35903, 37683 of 2008, 871, 7270, 7357, 7467, 8516, 8530, 8545, 8735, 8736, 11583, 11749, 11952, 12781, 12807 & 15058 of 2009. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November, 2009. JUDGMENT Balakrishnan Nair, J, These writ petitions are filed by various builders and their organisation. The builders are engaged mainly in constructing residential apartments. They submit, the residential apartments were never treated as an industry or undertaking, which requires clearance from the Pollution Control Board after they are occupied by the residents. According to them, only domestic waste is generated and the same does not require any special sewage treatment or effluent treatment facility. The schedules contained in Rule 3 of the Environment (Protection) Rules , 1986 do not cover residential apartments. From November, 2007 the Pollution Control Board has issued orders and circulars making it mandatory to have sewage treatment plants/effluent treatment plants for residential apartments. The parameters for the effluents WPC. 19166/2007 & con.cases. 2 discharged are contained in paragraph 3.3 of Ext.P3 consent issued to one of the petitioners. (The exhibits mentioned are those produced in W.P.(C) 25746 of 2007). Apparently the action was taken under the proviso to Rule 3(3A)(i) of the Rules. Though the petitioners maintain that the Pollution Control Board in exercise of the power under the said proviso could not have issued orders governing residential apartments, they were willing to obey the orders issued by the Board. But recently the parameters have been further revised as evident from Ext.P4, which have become very difficult to attain in view of the present sewage and effluent treatment facilities available. The revised parameters are contained in paragraph 3.3 of Ext.P4, which is a consent to establish the treatment facilities issued to one of the builders. Some of the petitioners have pointed out that the establishment of treatment facilities for waste and effluent is insisted by the Local bodies at the time of completion of the construction of the residential apartments as per the original permit granted. Under the WPC. 19166/2007 & con.cases. 3 instructions of the Pollution Control Board, the Local bodies are not issuing completion certificate without the treatment facilities being established. According to them, since the plan and lay out were finalised long ago and based on the approval of the same constructions were completed, now it is practically impossible to provide effluent/sewage treatment facilities as stipulated by the Pollution Control Board. 2. When the writ petitions were taken up for hearing, learned counsel for the petitioners pointed out that they have already moved the Government and the Pollution Control Board pointing out their grievances. The grievance highlighted before the Government is regarding the exorbitant fee fixed for grant of consent for establishing treatment facilities for effluents and waste in residential apartments. They are also aggrieved by the classification of residential apartments as coming under Orange category, for which the fee for submitting application for consent for establishment and operation of treatment facility for effluents WPC. 19166/2007 & con.cases. 4 and waste is comparatively high. They feel, residential apartments should have been included in the Green category. Learned counsel for the petitioners also submitted that since the Pollution Control Board and the Government have taken a sympathetic view towards their grievances and are taking steps to discuss their problems, they do not want a hearing of the matter on merits. They said, they would pursue the matter before the Government and the Pollution Control Board first and in case their grievance is not redressed, they may be permitted to approach this court again. 3. Learned Standing Counsel for the Pollution Control Board submitted that regarding the grievances raised against the orders and circulars issued by the Board, it is willing to have a discussion with the builders' representatives and if their grievances are found genuine, the Board will try to redress the same by taking action within the four corners of law. Learned Standing also submitted that a meeting of the parties is scheduled to be held on 30.11.2009. WPC. 19166/2007 & con.cases. 5 4. The learned Government Pleader upon instructions submitted that the Government had already constituted a Committee as per a Government Order issued recently to look into the grievances raised by the builders and to report what could be done to redress their grievances, if found genuine. In view of the submissions made by both sides, these writ petitions are closed without prejudice to the contentions of both sides. The pollution Control Board and the Government may take further action in the matter as submitted before this court as expeditiously as possible, preferably within three months from today. It is made clear that we have not expressed any opinion regarding the merits of the contentions of both sides. K. Balakrishnan Nair, Judge P. Bhavadasan, Judge sb.