IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.V.K.BALI & THE HONOURABLE MR. JUSTICE P.R.RAMAN FRIDAY, THE 10TH NOVEMBER 2006 / 19TH KARTHIKA 1928 WP(C).No.26304 of 2006(S) ----------------------------------- PETITIONER:- ---------------- DEJO KAPPAN, AGED 48, S/O.LATE JOSEPH, RESIDING AT D3, 4TH LANE, ASARIPARAMBU ROAD, EDAPPALLY, COCHIN-24, (MANAGING TRUSTEE, CENTRE FOR CONSUMER EDUCATION MARKET ROAD, PALA) BY ADV. SRI.JOHNSON MANAYANI RESPONDENTS:- ------------------- 1. SECRETARY TO LOCAL SELF GOVERNMENT, SECRETARIAT, TRIVANDRUM. 2. SECRETARY TO HEALTH, SECRETARIAT, TRIVANDRUM. 3. COCHIN CORPORATION REP. BY ITS SECRETARY, SECRETARIAT, TRIVANDRUM. 4. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 5. UNION OF INDIA, REP. BY ITS PRINCIPAL SECRETARY, CENTRAL SECRETARIAT, NEW DELHI. W.P.(C).NO.26304 OF 2006-S - 2 - ADDITIONAL RESPONDENTS 6, 7, 8 & 9 IMPLEADED ADDL.R6. THE DISTRICT MISSION CO-ORDINATOR, KUDUMBASREE, COLLECTORATE, CIVIL STATION, KAKKANADU, ERNAKULAM. (ADDITIONAL 6TH RESPONDENT IS IMPLEADED AS PER ORDER ON I.A.NO.14019 OF 2006 DATED 11.10.2006). ADDL.R7. BIBIEMOL THOMAS, HOUSE NO.43/1485, POWER HOUSE EXTENSION ROAD, COCHIN-18. (ADDITIONAL 7TH RESPONDENT IS IMPLEADED AS PER ORDER ON I.A.NO.15150 OF 2006 DATED 30.10.2006) ADDL.R8. SOUMYA NAGAR RESIDENTS ASSOCIATION, KALEEKAL, ALINCHUVADU, EDAPPALY, COCHIN-24, REP. BY ITS SECRETARY K.T.THOMAS, AGED 50 YEARS, S/O.LATE THOMAS. (ADDITIONAL 8TH RESPONDENT IS IMPLEADED AS PER ORDER ON I.A.NO.14640 OF 2006 DATED 7.11.2006) ADDL.R9. ANDHRA PRADESH TECHNOLOGY DEVELOPMENT AND PROMOTION CENTRE (APTDC), HYDERABAD, ANDHRA PRADESH. (ADDITIONAL 9TH RESPONDENT IS IMPEADED AS PER ORDER ON I.A.NO.15482 OF 2006 DATED 7.11.2006) R1, R2 & R4 BY ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD I/B. GOVERNMENT PLEADER SRI.T.B.HOOD. R3 BY STANDING COUNSEL SRI.M.K.CHANDRAMOHAN DAS. R5 BY ADDL.C.G.S.C. SRI.SUDHI VASUDEVAN. R7 BY ADV.SMT.PINKU H.THALIATH. R8 BY ADV.SRI.THOMAS ABRAHAM. ADVOCATE COMMISSIONER SRI.P.B.SAHASRANAMAN. BY ADV. SMT.M.K.PUSHPALATHA,SC,COCHIN CORPORATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/11/2006, THE COURT ON 10/11/2006 DELIVERED THE FOLLOWING:- W.P.(C).NO.26304 OF 2006 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 - TRUE COPY OF THE PETITION FILED BEFORE THE HON'BLE MINISTER FOR HEALTH DATED 26.9.2006. EXT.P2 - TRUE COPY OF THE PETITION FILED BEFORE THE SECRETARY TO HEALTH SERVICE DATED 26.9.2006. EXT.P3 - TRUE COPY OF THE PETITION FILED BEFORE THE HON'BLE SECRETARY, LOCAL SELF GOVERNMENT, SECRETARIAT, TRIVANDRUM DATED 26.9.2006. EXT.P4 - TRUE COPY OF THE PETITION FILED BEFORE THIRD RESPONDENT DATED 26.9.2006. EXT.P5 - THE PAPER REPORTS REPORTS IN VARIOUS DATES IN HINDU DAILY. EXT.P6 - TRUE COPY OF THE NEWS PAPER REPORT WITH REGARD TO CHICKEN GUNIA AND THE EPIDEMICS REPORTED IN INDIAN EXPRESS DATED 4.10.2006. EXT.P7 - TRUE COPY OF THE JUDGMENT IN O.P.8444 OF 2003. RESPONDENT'S ANNEXURES (PRODUCED ALONG WITH STATUS REPORT):- ANNEXURE-1 - TRUE COPY OF GO(RT).NO.2890/06/H&FWD DATED 3.10.2006. ANNEXURE-2 - TRUE COPY OF GO(RT).NO.2889/06/H&FWD DATED 3.10.2006. ANNEXURE-3 - TRUE COPY OF MINUTES OF THE STATE LEVEL CO-ORDINATION COMMITTEE HELD ON 5.10.2006. ANNEXURE-4 - TRUE COPY OF THE ACTION PLAN FOR CHIKUNGUNYA CONTROL. ANNEXURE-5 - TRUE COPY OF THE GO NO.2785/2006/H&FWD DATED 22.9.2006. ANNEXURE-6 - TRUE COPY OF GO(RT).NO.2939/06/H&FWD DATED 6.10.2006. J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W. P. (C) No. 26304 OF 2006 ~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 9th day of December, 2010 JUDGMENT Ramachandra Menon J. This petition, of course a public interest litigation, was filed before this Court, when the State and in more particular, the entire city of Kochi stood panic of the dreadful newcomer disease 'Chicken Gunia', which was spreading through out, taking the lives and limbs of several people. 2. The prayers are as follows : i. Issue a writ of mandamus or any other appropriate writs, directions or orders commanding the respondents to take emergent preventive measures to prevent chicken gunia and other epidemics in the State of Kerala and especially in the Cochin Corporation. ii. Issue a writ of mandamus or any other appropriate writs, directions or orders commanding the respondents to take steps to remove garbage, waste and solid waste which is heaped up in Ernakulam City of Cochin Corporation iii. Issue such other orders as are deemed fit and proper in the circumstances of the case. W.P. (C) No. 26304 of 2006 : 2 : 3. Considering the nature and gravity of the issue projected in the Writ Petition, this Court passed appropriate interim orders, pursuant to which, the remedial measures were caused to be taken, particularly, with regard to the cleaning of the garbages heaped up in the city, so as to provide free flow of waste water, rain water and also removal of the filth from the city. An interim order was passed on 11.10.06 for immediate removal of the solid waste from the city after identifying suitable place, with the involvement of the Advocate Commissioners appointed by this Court. Corporation of Kochi appeared and filed statement / counter affidavit / additional affidavit etc., expressing their serious concern and the remedial measures being taken on war footing. Taking note of such steps, appropriate directions were given and the W.P. (C) was disposed of as per judgment dated 10.11.2006 with liberty to the petitioner to move an application in the very same petition, if the Corporation did not take steps as undertaken or if there was any delay in pursuing the same. Thereafter, pursuant to filing of I.A. No. 8312 of 2009 and considering other relevant aspects, the Writ Petition was W.P. (C) No. 26304 of 2006 : 3 : ordered to be reopened, as per order dated 07.07.2009 and the respondents 13 and 14 were impleaded in the party array as the additional respondents. As per the said order, taking note of the need of hour, this Court directed the Railways to clean the Railway culverts, while the Corporation was directed to cause the removal of garbage and filth; with the involvement of the 13th respondent. It was to ensure free flow of water and prevent water logging in the Ernakulam city and also to have the garbage heaped in the Corporation removed in a systematic manner, providing peaceful living to the inhabitants. 4. In the course of events, two sites were identified by the concerned respondents as the 'dumping sites' for removal of the garbages, one near Vennala and the other one near Udayamperoor. The Advocate Commissioners inspected both the sites and submitted the 'first report' dated 17.07.09, pointing out that both the sites were quite unsuitable for the purpose. Subsequently, a place near Brahmapuram was identified and the garbage was caused to be lifted to the said site. W.P. (C) No. 26304 of 2006 : 4 : 5. With regard to the expenses for cleaning operations, the 13th respondent quoted `23 lakhs in respect of the identified works, which according to the Corporation was worth only `10 lakhs, while the Railways reckoned it as of `12 lakhs. Since, there was no consensus on expenses, an interim order was passed by this Court on 24.09.09, directing the Advocate Commissioners to convene a joint meeting and to thrash out proper course. 6. On 05.10.2009, the Advocate Commissioners submitted a report pointing out that the 13th respondent had inspected the sites and identified the culverts. In response to the request to quote the 'rate per M3' of the filth to be removed on clearing the culverts, they quoted the rate of `415/- per M3 and an additional expense of `2.5 lakhs in respect of the additional works (because of the gravity/extensive nature of the incidental works to be completed). According to the Railways, the rate could only be `395/- per M3 , whereas, according to the Corporation, it is `310/- per M3. The Advocate Commissioners observed that, the rate suggested by the Corporation was quite unworkable W.P. (C) No. 26304 of 2006 : 5 : and hence, after considering the various aspects, they recommended `410/- per M3, plus an amount in between `1.75 to 2 lakhs for the additional works. After considering the said report, this Court passed an interim order dated 12.10.09, fixing the rate as `402/- per M3 for removal of the waste under the Railway culverts and a sum of `1.85 lakhs for the additional works, giving appropriate directions to the Corporation as well as to the Railways, to meet the expenses as specified. 7. On 21.10.2009, the Advocate Commissioners submitted another interim report, pursuant to the joint meeting of all concerned held on 16.12.2009. In the said joint meeting, it was agreed among all, that the suggestions made by the Advocate Commissioners were to be final & binding, subject to the modifications, if any, to be made by this Court. The 13th respondent submitted a time schedule to start the work from 27.10.2009 between 8 A.M. and 6 P.M. and to have it completed within 45 days, agreeing the silt to be removed from the site on the same day and to be taken to the dumping site at Brahmapuram. It was also agreed by the 13th W.P. (C) No. 26304 of 2006 : 6 : respondent that the total quantity of the filth to be removed (after the joint inspection) was 1760 M3 in respect of the Railway area, while the quantum in respect of the Corporation area was agreed to be fixed after a joint inspection before the works started. The schedule of payment by way of installments was also fixed by the Advocate Commissioners, making it clear that the disputes, if any, on the work including the measurement shall be considered and decided by the Advocate Commissioners, whose decision was to be final and binding, subject to the orders of this Court. The said report was accepted by this Court as per interim order dated 22.10.2009 and consequential directions were given to have the work commenced accordingly. 8. The Advocate Commissioners, as per report dated 03.11.2009, appreciated the work completed by the 13th respondent as excellent; simultaneously mentioning some pitching and repairs of drainage to be pursued. After hearing the version of the Chief Engineer of Southern Railways, who was present in the Court, such works were directed to be completed by the 13th respondent, under the supervision of W.P. (C) No. 26304 of 2006 : 7 : two Officers as nominated by the Railways. As per the interim order dated 18.11.2009, the Corporation and the Railways were directed to pay a sum of `2 lakhs and `3 lakhs respectively to the 13th respondent and the 13th respondent was permitted to submit the running bills. The Junior Advocates appointed to assist the Advocate Commissioners, were ordered to be paid a sum of `10,000/- each, to be satisfied jointly by the Railways and the Corporation. 9. The Advocate Commissioners submitted the '7th report' dated 29.11.2009 referring to a joint conference held on 25.11.2009 and the next meeting scheduled on 03.12.2009. The factum of having given instructions to the 13th respondent to submit the proposal to the Railways and the Corporation as to the additional works to be performed and as to the instructions given to the Railways and the Corporation to offer their comments/suggestions were also incorporated in the said report. 10. On 08.12.2009, the Advocate Commissioners reported of a 'comprehensive plan' for cleaning up the canals in consultation with the Railways and the Corporation, which W.P. (C) No. 26304 of 2006 : 8 : was stated as drawn up in consultation with the Railways and the Corporation. Another report was submitted on 17.12.2009, referring to the joint conference held on 04.12.2009 and the appreciation of work performed by the 13th respondent; by all concerned who attended the joint conference. Future works were also identified including the cleaning up of canals (4 major canals viz. Thevara - Perandoor canal, Koithara Canal, Mullasserry canal and Market canal) and the 'Kannachanthodu' at Ayyappankavu and Tata Oil Mills area. All those present in the meeting including the authorities of the Corporation, were stated as agreed upon of the urgent requirements to carry out the above operations and accordingly, the Advocate Commissioners directed the 13th respondent to give their estimate on 'Annexure A' works mentioned therein. In respect of the works connected with the Railways, it was directed to be completed after getting the estimates from the Railways and in respect of the works connected with the Corporation, the 13th respondent was instructed to have it done, after negotiating the rates in this regard. The version of the Corporation that the rate payable in W.P. (C) No. 26304 of 2006 : 9 : respect of the cleaning operations of the Railway culverts cannot be given for cleaning the road drains, was recorded by the Advocate Commissioners as 'reasonable' (under point No. 3 (b) of the report dated 17.12.2009). Accordingly necessary directions were sought to be issued. 11. On 18.12.2009, this Court directed the Chief Engineer, Bridges of the Southern Railways to file a report as to the works to be executed. Sanction was also given to complete the works scheduled in Annexure A, as opined by the Advocate Commissioners and to be effected by the 13th respondent. The Corporation was directed to pay a sum of `10 lakhs, while the Railways were directed to pay `3 lakhs to the 13th respondent in this regard. On 28.12.2009, the Advocate Commissioners alerted the Corporation on the different aspects covered by the above interim order including the works to be performed near Ayyappankavu. 12. Pursuant to the instructions given by the Commissioners, the 13th respondent submitted an estimate of the above works on 18.12.2009, in respect of the 'Railway area' and the 'Corporation area' separately. With regard to the W.P. (C) No. 26304 of 2006 : 10 : cleaning of the various canals, the rates were quoted by the 13th respondent uniformly at `325 per M3, as borne by 'Annexure D series' attached to the said estimate dated 18.12.2009. 13. On 08.01.2010, the Advocate Commissioners submitted the 'report No. 8', pointing out that no separate estimate was given by the Railways, who were stated as pursuing some or other evasive tactics and hence seeking for a direction to restore the Thevara - Perandoor canal at the CBI Office area (which has already been filled up by the Railways in connection with laying of tracks) with the aid of some other agencies. Since the estimate was not furnished by the concerned parties, the Advocate Commissioners recommended to permit the 13th respondent to complete Annexure A works, on their estimate, as given in Annexure D series (attached with the estimate dated 18.12.2009). 14. On 12.01.2010 an interim order was passed by this Court referring to the affidavit filed by the Railways as to the construction of the new bridge in the ERS - QLN Section, for the Thevara - Perandoor canal, which accordingly were W.P. (C) No. 26304 of 2006 : 11 : directed to be completed immediately. The contribution payable by the Corporation, if any, was held as to be decided later, however, directing the Corporation to pay the full Centage charges of `5,63,660/- to the Railways. The Corporation was directed to complete the full dredging works in the TP Canal in 'one go' and the Advocate Commissioners were directed to identify and report the beneficiaries of the projects/operations, simultaneously directing the Railways and the Corporation to clear all pending bills of the 13th respondent. 15. The Advocate Commissioners submitted 'report No.9' on 25.01.2010 pointing out that the Railways were still to give the schedule of work, though they started preliminary work in respect of restoration of the TP canal at the CBI Office area. The on-going steps being pursued by the Corporation as to the dredging of the Perandoor canal and particulars of some of the beneficiaries identified were also reported, besides pointing out that the 13th respondent was proceeding with Annexure A works including the works in the 'Ayyappankavu area'. As borne by the interim order dated 27.01.2010, this Court W.P. (C) No. 26304 of 2006 : 12 : recorded the assurance given by the Corporation regarding the payment being effected to the 13th respondent and accordingly, ordered to disburse the amount within two weeks or else to pay the same with interest at the rate of 12 % (to be met by the concerned officers at default). 16. On 02.02.2010, the 13th respondent wrote a letter to the Advocate Commissioners and also to the authorities of the Corporation, regarding the huge variation in the quantum of works being undertaken and completed, also referring to the rough measurements recorded by the authorities of the Corporation earlier and the actual measurements. As per the said letter, the addressees were also requested to depute officers to record the actual measurements. Since there was no response from the part of the Corporation, a reminder was sent by the 13th respondent on 09.02.2010 requesting the Corporation to do the 'measurements' of the silt removed by the said respondent. 17. On 25.02.2010, the Advocate Commissioners filed 'report No. 10', pointing out among other things, that the 13th respondent had already completed the works in the W.P. (C) No. 26304 of 2006 : 13 : 'Ayyappankavu area'; that measurements had been given to the Corporation and that it was for the Corporation to effect the payments accordingly. The lethargy on the part of the Railways and the Corporation in connection with the further operations was also brought to the notice of this Court. 18. On 09.03.2010, payment of the Centage charges of `5,53,660/- effected by the Corporation to the Railways on 27.02.2010 was recorded. The submission made as to the works started by the Railways by conducting the 'soil testing' and the steps taken by the Corporation by inviting necessary tenders in respect of the other works were also recorded by this Court. 19. While so, in response to the bill dated 24.03.2010 submitted by the 13th respondent in respect of the 'Ayyppankavu' works and also referring to the previous balance under bill dated 15.01.2010 (in respect of the Railway culverts), the Corporation filed a statement on 08.04.2010 stating that the 'measurements' shown and 'rate' reckoned by the 13th respondent for raising the bill were not correct or acceptable and that, according to the Corporation, the balance W.P. (C) No. 26304 of 2006 : 14 : amount payable was only `5,06,000/- at the PWD rate. On 09.04.2010, this Court recorded the submission of the Corporation as to the steps being taken for disbursal of the said amount and it was ordered to be paid within 10 days. The 13th respondent, taking note of the stand of the 3rd respondent/Corporation filed IA No. 6340 of 2010 dated 19.05.2010 for payment of the balance amount of `23,08,271/-. The correctness and sustainability of the said claims was seriously disputed by the Corporation by filing a counter affidavit dated 09.09.2010, both on the 'rate', as well as on the 'quantum/measurement' of the silt removed. 20. After hearing the matter in detail, I.A. 6340 of 2010 was disposed of, as per the order dated 03.12.2010; the crux of which is to the effect as given below: (i) - that the claim in respect of the previous Bill dated 15.01.2010 preferred by the 13th respondent stands settled and satisfied and no more amount is due from the Corporation under this head; (ii) - that the quantity of silt removed by the 13th respondent in connection with the Ayyappankavu/Kannachanthodu works will stand W.P. (C) No. 26304 of 2006 : 15 : concluded as 6074.61 M3, as stated by the 13th respondent; (iii) - that the 13th respondent is entitled to have the bill settled in respect of the above works @ ` 265 / M3. (iv) - that the 3rd respondent/Corporation shall work out the amount due to the 13th respondent at the aforesaid rate, for the total quantity of 6074.61 M3 and disburse the same within one month. and (v) - that the rates fixed by this Court in respect of the operations pursued are in view of the particular facts and circumstances of the case; considering the expediency of the work and larger public interest involved, which will not set any precedent. 21. Now, the remaining question is whether any further orders are necessary in this Writ Petition. 22. As noted hereinbefore, we find that, the Writ Petition has in fact served the purpose taking the proceedings to a logical conclusion. In the said circumstances, we do not find it necessary to keep the Writ Petition pending further. It is open to the petitioner to approach this Court, if at all any grievance W.P. (C) No. 26304 of 2006 : 16 : is popped up and if the action being pursued by the concerned respondents, particularly the Railways and the Corporation, pursuant to the various interim orders passed by this Court is defective or inadequate, by filing a fresh Writ Petition, as and when necessitated. The Divisional Manager (Works), Southern Railways, Thiruvananthapuram (Respondent No. 16) and the Corporation of Cochin (Respondent No. 3) are directed to maintain separate records as to the works being undertaken and as to the compliance with regard to the various interim orders passed by this Court in the Writ Petition, which shall be made available as and when required by this Court. 23. Before parting with the case, we take note of the splendid job done by the Advocate Commissioners, Sri. P. Jacob Varghese and Sri. P.B. Sahasranaman and their team, who have spent much of their time, energy and creative thoughts to attain the desired objective, amidst their otherwise busy work schedule. The learned Advocate Commissioners also submit that the efforts and contributions made were more with a 'social objective' and that they do not intend to claim any amount towards remuneration. We record our W.P. (C) No. 26304 of 2006 : 17 : appreciation of the sincere efforts and the work performed by the Advocate Commissioners and their team. The Writ Petition is accordingly closed. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd