IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 15311 of 2009(H) --------------------------------------- PETITIONER: ------------------- M/S.INDIAN RARE EARTHS LIMITED, RARE EARTHS DIVISION, UDYOGAMANDAL – 683 501, REPRESENTED BY ITS CHIEF GENERAL MANAGER, MR.A.K.DAS. BY ADVS. MR.E.K.NANDAKUMAR, MR.A.K.JAYASANKAR NAMBIAR, MR.K.JOHN MATHAI, MR.P.BENNY THOMAS, MR.ANIL D. NAIR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY,TO GOVERNMENT, GOVT. SECRETARIAT,THIRUVANANTHAPURAM -695 001. 2. THE KERALA STATE POLLUTION CONTROL BOARD, PATTOM P.O., THIRUVANANTHAPURAM-695 004, REPRESENTED BY ITS MEMBER SECRETARY. *ADDL.R3 IMPLEADED: 3. PURUSHAN, AGED 43 YEARS, S/O. VELAYUDHAN, “SANKHYAPURI” , (VYLOKUZHI), ELOOR NORTH, UDYOGAMANDAL.P.O. *IMPLEADED VIDE ORDER DTD. 22/06/09 IN I.A. 7137/2009. R1 BY GOVT. PLEADER, R2 BY MR. M.K.CHANDRA MOHANDAS,SC, ADDL.R3 BY ADV. SMT.DAISY A.PHILIPOSE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON 20/10/2009 DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.15311 of 2009-H = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of October, 2009. JUDGMENT 1.The petitioner, a Government of India undertaking, has its Rare Earths Division in Udyogamandal. In so far as safe disposal/transfer of radioactive waste is concerned, it is covered by Ext.P1 authorisation issued by the competent authority, the Chairman of the Atomic Energy Regulatory Board. It challenges Ext.P12 whereby the Kerala State Pollution Control Board has required it to pay amounts at the rate of Rs.1.25 lakhs per month in terms of the decision stated to have been taken on 18.5.2009 in the meeting at which the issue was decided with the company representatives. 2.The petitioner contends that the impugned communication is illegal and arbitrary and is WPC15311/2009 -: 2 :- issued without authority of law and the second respondent PCB does not have the jurisdiction to issue such a notice. It further pleads that as on date, no finding has been rendered by the second respondent PCB, of the petitioner having caused any pollution or of having violated any of the statutory conditions even to invoke the principle of “polluter pays”. It states that even without a prima facie finding, there could be no request or demand to make any payment and the impugned action is totally arbitrary. 3.In answer, among other things, the PCB points out Ext.R2(n) order of the Apex Court issued on 9.5.2005 in WPC.657/1995 in which, among other things, in I.A.No.18, it has been ordered by the Hon'ble Supreme Court of India that no court or authority shall take cognizance or entertain any challenge connected with the implementation of the order passed by the Hon'ble Supreme Court on 14th October, 2003. WPC15311/2009 -: 3 :- 4.On behalf of the petitioner, it is pointed out that the order of the Apex Court issued on 14.10.2003, about which alone reference is made in Ext.R2(n) (under I.A.No.18), has no bearing on any issue relatable to the petitioner or its activity referred to in the impugned Ext.P12. It is further stated that the impugned Ext.P12 is issued not only without the authority of law but reference has been made in it as if the petitioner had conceded to make the payment. 5.The impugned Ext.P12 is issued on 27.5.2009. It states, among other things, that the Monitoring Committee constituted by the Hon'ble Supreme Court of India in WP(C).657/95 had visited Kerala in May, 2005 and directed that potable water supply be provided to the residents of Wards 1, 2, 3, 4 & 17 of Eloor Grama Panchayat by the industries of FACT-Udyogamandal, HIL, IRE & Merchem. The said work was entrusted to the Kerala Water Authority. The PCB is stated to have persuaded the aforesaid industries to share the WPC15311/2009 -: 4 :- cost equally, i.e., by contributing Rs.35 lakhs each, to make up Rs.140 lakhs, estimated by the KWA for providing distribution system. The petitioner had accordingly contributed Rs.35 lakhs for formulating and implementing the Water Supply Scheme. The impugned Ext.P12 further states that as per direction of the Monitoring Committee, the fund for formulating the water supply scheme and its implementation including recurring charges is to be borne by the said four industries. It further states that in the meeting held on 15.12.2008, the necessity of the recurring charges of water supply being borne equally by the said four industries was also made clear. FACT expressed their willingness to supply filtered water (1.6 million litre per day) from their water supply scheme on chargeable basis for a period of two years or till water supply augmentation scheme of KWA is commissioned. The Water Authority expressed confidence of commissioning the augmentation scheme within a maximum period of two years. The water supply WPC15311/2009 -: 5 :- scheme was commissioned on 15.1.2009. Ultimately, it proceeds to state that though there was need of signing an agreement between the four industries and the draft agreement was discussed and terms of the agreement drafted, the petitioner did not sign the agreement and had not commenced payment of the recurring charges. Accordingly, the PCB had issued a letter to the petitioner and had ultimately brought the matter to the notice of the Minister for Health and Social Welfare in the Government, who discussed the issue with the representatives of the petitioner company on 18.5.2008. It is stated in Ext.P12 that in that meeting, it was decided that the petitioner shall pay the pending recurring charges which amount to about Rs.1.25 lakhs per month before 1st of June, 2009, i.e., Rs.1.25 x 4.6 = Rs.5.625 lakhs in arrears and the charges thereafter on the basis of actual invoice. It is stated in Ext.P12 that if the petitioner backs out of its corporate social responsibility and the direction of the Monitoring Committee, the WPC15311/2009 -: 6 :- PCB may have to take stringent action without any further notice. The petitioner was thereby called upon to pay the amounts. 6.The petitioner stands to assert among the grounds in the writ petition that the impugned notice is without authority of law and that it cannot be mulcted with any responsibility, including on the principle of “polluter pays”, since the PCB has not even rendered any decision that the petitioner is, at least prima facie, a polluter. However, it does not really dispute the fact that it was decided in the meeting dated 18.5.2009 that the petitioner will pay the pending recurring charges. May be that the said decision would have been the result of detailed discussions and arrived at by those who participated, may be, without the officials of the petitioner, a Government of India undertaking, conceding to it. The corporate social responsibility that would be practised by the institutions like the petitioner which is a WPC15311/2009 -: 7 :- Government of India undertaking has necessarily to be salutary and to be in consonance with the social needs. It is not in dispute that the situation in the area in question requires such a social security measure. Advertence to Ext.R4(e) would abundantly show the fact that the area in question needs such succour. Though Ext.R2(f) minutes reflect that the representative of the petitioner stated that it is not in a position to undertake any liability on perpetual basis on account of supply of water to Eloor Grama Panchayat, it also needs to be noted that what ultimately matters is not solely the volition of the petitioner but the need to provide the measure that is required in the area. In this view of the matter, it also needs to be noted that by Ext.R2(l), the petitioner had required the Member Secretary of the PCB to give different facts which it called for. That included the quantity of water to be supplied per day, the total number of consumers proposed to be covered by the scheme, modality of calculating the cost WPC15311/2009 -: 8 :- of water and how it would compare with the cost at which Water Authority supplies water in Kerala and also as to whether there is any consumer in Kerala to whom KWA is supplying water free of cost. These materials were obviously sought for only to conclude for itself the requirement to make the payment. This, coupled with the fact that Ext.R2(k) evidences that the petitioner was very well informed and was involved in the matter of concluding on the project for supply of potable water to the area, makes it inappropriate to hear a Government of India undertaking to contend, in writ jurisdiction, that it shall not provide the helping hand that is required of it to reach out in the situation which calls for management of the acute drinking water shortage in an area which has been found to be overburdened with industrial activity. 7.With the aforesaid, even if I were to take that Ext.R2(n) order of the Apex Court does not exclude the jurisdiction of this Court to deal WPC15311/2009 -: 9 :- with this matter, I find no ground to interfere with the impugned decision. The impugned decision cannot be treated as unjust, unreasonable or uncalled for on the facts and circumstances of the case. It does not warrant interference in writ jurisdiction. 8.For the aforesaid reasons, jurisdiction is declined, refusing to interfere with the impugned demand. In the result, the writ petition fails. The same is accordingly dismissed. No costs. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/161009