IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 WP(C).No. 20891 of 2009(F) ---------------------------------------- PETITIONER(S): ------------------------- NITTA GELATIN INDIA LIMITED, 27/472, SBT AVENUE, PANAMPILLY NAGAR, COCHIN-36, REP.BY ITS MANAGING DIRECTOR. BY ADVS. MR.K.ANAND (A.201), SMT.LATHA KRISHNAN. RESPONDENT(S): ---------------------------- KADUKUTTY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY. *ADDL.R2 TO R5 IMPLEADED: R2. THE KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS MEMBER SECRETARY. R3. THE REVENUE DIVISIONAL OFFICER, THRISSUR. (ADDL.R2 AND R3 ARE IMPLEADED AS PER ORDER DTD.27/07/09) Kss ..2/- ..2.... WPC.NO.20891/2009 F R4. V.R.BABU, AGED 47, S/O.RAVUNNY V.K., VALLATHUPARAMBIL HOUSE, KAKKAD, KATHIKKUDOM P.O., KORATTY (VIA), THRISSUR DISTRICT, KERALA - 680 308. R5. T.O.JOGY, AGED 37, S/O.T.A. OUSEPH, THELEKKATT HOUSE, KATHIKODOM P.O., KORATTY (VIA), THRISSUR, KERALA - 680 308. (*ADDL.R4 & R5 ARE IMPLEADED AS PER ORER DTD. 5/10/2009 IN I.A.NO.11215/09) R1 BY ADVS.MR.SHEEJO CHACKO, MR.A.G.UNNIKRISHNAN, MR.DEVAN K.MENON. ADDL.R2 BY ADV. MR.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOARD R3 BY GOVERNMENT PLEADER MR. V. MANU ADDL.R4 & R5 BY ADV.MR.JOLLY JOHN, MR.SAIBY JOSE KIDANGOOR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20891/2009 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF CONSENT DTD. 17/06/09 ISSUED BY POLLUTION CONTROL BOARD. P2: COPY OF LICENSE ISSUED BY THE RESPONDENT. P3: COPY OF JUDGMENT IN O.P.10294/02 DTD.1/08/05. P4: COPY OF ORDER DTD. 20/07/09 ISSUED BY THE RESPONDENT. P5: COPY OF COMMUNICATION DTD. 30/07/09. P6: COPY OF COMMUNICATION DTD. 20/07/2009. P7: COPY OF COMMUNICATION DTD. 27/02/2010. P8: COPY OF ORDER DTD. 28/07/09 OF THE POLLUTION CONTROL BOARD. P9: COPY OF LEGAL OPINION DTD. 27/02/2010. P10: COPY OF LETTER ISSUED BY THE WARD MEMBERS. P11 SERIES: COPIES OF LETTERS ISSUED BY WARD MEMBERS. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE LIST OF HAZARDOUS INDUSTRIES PREPARED BY THE FACTORIES AND BOILERS INSPECTOR. R1(B): COPY OF THE REPRESENTATION ADDRESSED TO THE CHIEF MINISTER OF KERALA DTD. 17/11/09. R1(C): COPY OF THE LETTER DTD. 24/07/09. R1(D): COPY OF THE LETTER DTD. 19/03/10 FILED BY ONE PANCHAYAT MEMBER NAMED MARY FRANCIS. R2(A): COPY OF THE COMMUNICATION DTD. 3/1/2008. R2(B): COPY OF THE ORDER NO.PCB/HO/TSR/ICO/80/2007 DTD.9/02/2010. Kss ..2/- ..2... WPC.NO.20891/2009 F R2(C): COPY OF THE LETTER DTD. 19/10/2009. R2(D): COPY OF THE ANALYSIS REPORT DTD. 6/03/2010. R4(1): COPY OF THE PAPER REPORT PUBLISHED IN MATHRUBHOOMI DTD. 21ST JULY 2009 DETAILING THE INCIDENTS HAPPENED ON 20TH JULY 2009. R4(2): COPY OF THE NEWS PAPER REPORT DTD. 22ND JULY 2009, MATHRUBHOOMI DAILY. R4(3): THE NEWS PAPER REPORT DTD. 23RD JULY 2009, MADHYAMAM DAILY REGARDING THE INCIDENT HAPPENED ON 20TH JULY 2009. R4(4): THE COMMUNICATION BY THE PETITIONER COMPANY DTD. 24TH JULY 2009 MADE TO THE 1ST RESPONDENT PANCHAYATH AS RESPONSE TO EXT.P4, WHICH THESE RESPONDENTS PROCURED UNDER RTI ACT. R4(5): COPY OF THE NEWS PAPER REPORT DTD. 28TH JULY 2009, MATHRUBHOOMI DAILY DETAILING THE INCIDENTS OF 27TH JULY, 2009. R4(6): COPY OF THE NEWS PAPER REPORT DTD. 28TH JULY 2009, MADHYAMAM DAILY DETAILING THE INCIDENTS OF 27TH JULY 2009. R4(7): NOTICE DTD. 18/10/2008 ISSUED BY THE 1ST RESPONDENT PANCHAYATH TO THE PETITIONER COMPANY REGARDING EXPULSION OF SLUDGE. R4(8): REPLY OF THE PETITIONER COMPANY TO THE EXT.R4(7) NOTICE DTD. 18/10/2008 ISSUED BY THE 1ST RESPONDENT PANCHAYATH. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.20891 OF 2009 (F) -------------------------------------------------- Dated this the 26th day of March, 2010 J U D G M E N T Prayers sought in this writ petition are to quash Exts.P4 and P7. 2. Petitioner is a company incorporated under the Companies Act, 1956 which has established a factory at Koratti where it is manufacturing Gelatin used in the Pharmaceutical Industry. Ext.P1 is the consent that has been issued by the Pollution Control Board, prescribing the standards to be achieved by the Company, which is valid till 30.6.2012. The respondent Panchayat had also issued licence to the petitioner, the last of which is Ext.P2 valid up to 31.3.2010. 3. According to the petitioner, the company is functioning fully in compliance with the standards laid down by the Pollution Control Board. While so, for extraneous considerations, Ext.P4 stop memo was issued by the Panchayat on 20.7.2009 requiring the petitioner to stop functioning of its factory. The reasons alleged in Ext.P4 is that on 20.7.2009, the pipeline carrying the treated effluents from the Effluent Treatment Plant of the WPC.No. 20891/09 :2 : petitioner company broke and that sludge and other hazardous wastes escaped from the pipe line and polluted the paddy fields in the neighbourhood. It is also alleged that this had caused danger to the human lives and therefore until damage was rectified and the Panchayat is satisfied on inspection of the same, the company should stop functioning. It was on receipt of Ext.P4 that this writ petition was filed by the company challenging the same. 4. When the writ petition came up for consideration on 27th July, 2009, after hearing all concerned, this court passed a detailed interim order, paragraph 2 and 3 of which reads as under. “2. In the light of the aforesaid, this writ petition is admitted and notice is ordered to the respondent. The Kerala State Pollution Control Board, represented by its member secretary and the RDO, Thrissur are impleaded as additional respondents. Learned standing counsel for Pollution Control Board and the learned Government Pleader takes notice on behalf of those additional respondents. 3. Having regard to the aforesaid facts, it is ordered that the petitioner will be entitled to operate the unit and Ext.P4 will stand suspended to enable such operation, however that such operation shall not be commenced or carried on without the clearance of the competent authority in the Pollution Control Board. Learned counsel for Pollution Control Board states that the petitioner WPC.No. 20891/09 :3 : can commence operations provided they abide by the directions contained in Ext.P4 regarding management of the sludge, to the satisfaction of the Environmental Engineer, District Office, Thrissur.” 5. In pursuance to the above, the Pollution Control Board conducted an inspection and issued Ext.P8 dated 28.7.2009. Ext.P8 order reads as under; “During inspection on 27.7.2009, it was noticed that, the entire sludge, seen on 20.7.2009, in the paddy field, around the damaged manhole of pipeline discharging treated effluent from the company, was removed and treated in the effluent treatment plant of the unit. The effluent treatment plant and sludge management system were functioning effectively. Hence, in accordance with the order of the Hon'ble High Court of Kerala, cited (1) above, you are informed that there is no objection at present on the part of Pollution Control Board for the company to resume the production operations. You are directed to ensure that the factory is operated complying with the conditions stipulated in the consent order issued by the Board.” On the basis of Ext.P8, company resumed its activities and has been functioning since then. 6. Meanwhile, since the period of Ext.P2 licence issued by the Panchayat was expiring on 31.3.2010, on 18.2.2010 WPC.No. 20891/09 :4 : company made an application for renewal of the licence for the period 2010-2011. The application made by the company was considered in the meeting of the Panchayat held on 25.2.2010 and the Panchayat resolved not to renew the licence. This decision of the Panchayat was communicated to the petitioner by Ext.P7, the relevant portion of which, reads as under; (Malayalam version) 7. In Ext.P7, three reasons are mainly given by the Panchayat for declining renewal of the licence. First reason is that the incident that took place on 20.7.2009, which lead to Ext.P4 stop memo. Second reason stated is that, in spite of the above incident, company did not rectify the damage and further stated that complaints have been received from 1003 members of the general public. It is also stated that in view of the above, it has been decided not to renew the licence. It was thereupon that producing Ext.P7 the writ petition was got amended incorporating a prayer for quashing Ext.P7 as well. 8. In this writ petition, the Pollution Control Board has filed an affidavit. In paragraph 3 of the affidavit, the Pollution Control WPC.No. 20891/09 :5 : Board has explained the details of the pollution control measures implemented by the company. Details of the incident took place on 20.7.2007 and the further developments are stated in paragraph 5 to 9 of the counter affidavit, which are extracted below for reference. “5. On 20.07.2009, telephonic information was received at the District Office of the Board at Thrissur that some sludge from the company had spread in the paddy field through which the pipe line carrying treated effluent from the company passes. The sit where the sludge was spread was inspected by the Board officials on the same day. A manhole in the effluent discharge pipeline was seen damaged and blackish gray slurry was spread around the manhole. On 27.7.2009 telephonic information was again obtained that there was another leakage inn the treated effluent pipeline near the discharge point in the river. On inspection, black slurry was seen around the manhole on the bank of the river. Patches of gray sludge was also seen near the discharge pipeline. 6. The company vide letter dated 27.7.2009 informed the Environmental Engineer, District Office of the Board at Thrissur that they had cleaned up the entire area and requested to grant them permission to resume operations in accordance with the order dated 27.7.2009 of the Honorable High Court. 7. Based on the company's letter dated 27.7.2009 the officers of the Board at District Office, Thrissur inspected the company on 27.7.2009 itself. During inspection it was noticed that the entire sludge seen on 20.7.2009 in the paddy field around damaged manhole of pipeline was removed and treated in the WPC.No. 20891/09 :6 : Effluent Treatment Plant of the Unit. The Effluent Treatment Plant and sludge management system were functioning effectively. The company was therefore permitted to resume the production operations vide letter dated 28.7.2009 by the Environmental Engineer of the District Office of the Board at Thrissur. The copy of the said letter has been produced as Ext.P8 by the petitioner in the WP. In the letter, it is also directed to ensure that the factory is operated complying with the conditions stipulated in the integrated Consent to Operate/Authorization issued by the Board on 17.6.2009 with validity up to 30.6.2012. 8. The Ministry of Environment and Forests vide letter dated 3.1.2008 has excluded the Effluent Treatment Plant sludge generated in the industry from hazardous waste category as the constituents in the sludge were below the threshold limits required to categorize a material as hazardous waste as per the Hazardous Wastes(Management, Handling and Transboundary Movement)Rules 2008 (previously the Hazardous Wastes(Management and Handling) Rules 1989). Permission was also granted therein for utilizing composted sludge as manure for crops other than food crops. A true photo copy of the communication is produced herewith and marked as Ext.R2(a). 9. The quality of the sludge was further studied by the Kerala Agricultural University and the R&D Wing of FACT, Udyogamandal. Their reports make it clear that the compost prepared from the Effluent Treatment Plant sludge conform to the specifications for compost under Schedule IV of Municipal Solid Wastes(Management & Handling) Rules, 2000. The said compost can therefore be applied for all types of food and plantation crops and has been so certified by the Board. A true photo copy of the order thereon WPC.No. 20891/09 :7 : is produced herewith and marked as Ext.R2(b).” 9. It is further stated that considering the complaints, the Chairman of the Pollution Control Board visited the area on 25.9.2009, held consultation with the MLA, Panchayat President, members of the public and has given directions to provide additional pollution control measures for avoiding water and air pollution. It is stated that company has prepared an action plan and time schedule for the implementation of the directions of the Chairman and in Paragraph 11 of the affidavit, the suggestions made by the Chairman and the steps taken by the company for its implementation have been given. Thereafter, it is stated in paragraph 12 that the company has made further progress in complying with the suggestions. It is also stated that as per the analysis report of the effluent samples collected on 18.2.2010 from the final out let of the company, PH, BOD,COD, suspended solids, grease and phosphate confirms to the standards specified in the consent order issued by the Pollution Control Board. 10. The respondent Panchayat has filed a counter affidavit. According to the Panchayat the licence issued to the company WPC.No. 20891/09 :8 : should not be renewed for the reason that the sludge and other effluents were discharged by the company in to the paddy filed in the area on 20.7.2009. It is also stated that similar incident had occurred again on on 27.7.2009 and that the company has not taken any action for remedying the damage caused. It is stated tat the environmental and other pollution caused by the company therefore disentitled it for renewal of the licence. 11. The 4th respondent, a neighbouring resident, got himself impleaded in this writ petition and has filed counter affidavit, producing documents which suggests that the effluents had escaped into the paddy fields and that damage has been caused. 12. Admittedly, the Pollution Control Board had issued Ext.P1 consent order which is valid till 30.6.2012. In the consent order standards have been prescribed by the Pollution Control Board, which are to be achieved by the company. Therefore, if at all the company does not achieve the standards specified by the Pollution Control Board, it is always open to the Pollution Control Board to take appropriate action to make the company to achieve the standards specified and on their failure, the company is liable to be proceeded against in accordance with law. In this WPC.No. 20891/09 :9 : case, Ext.P4 was issued in the wake of the incident that had happened on 20.7.2009. What is mentioned in Ext.P7 is also the incident that took place on 20.7.2009. It is also alleged that the company has not taken any action to rectify the damage. However, in my view, the most competent agency which can testify whether the company has taken remedial action is the Pollution Control Board, which has filed its affidavit. From the affidavit filed by the Pollution Control Board, it can be seen that an incident as mentioned in Ext.P4 has happened on 20.7.2007, although, the company wanted me to think otherwise. From the affidavit it is also evident that the company has taken remedial action and on inspection, the Pollution Control Board was satisfied with the steps taken by the company. The Board is also satisfied with the additional precautions that are being taken by the company. If that be so, the incident which took place on 20th July, 2009, cannot now be relied on by the Panchayat, to decline renewal of the license for the period from 1.4.2010 sought for by the company. Therefore, Ext.P4, by lapse of time and the subsequent developments and Ext.P7 decision taken by the Panchayat on 27.2.2010 cannot be sustained. WPC.No. 20891/09 :10 : 13. In so far as the other incident which has allegedly taken place on 27.7.2009 is concerned, from the counter affidavit filed by the Pollution Control Board, it is evident that there were certain complaints in this regard and remedial action in respect of this incident was also taken by the company. However, this incident is not relied on by the Panchayat in the stop memo or for declining renewal of licence to the petitioner. 14. For the aforesaid reasons, I cannot uphold the stop memo issued or the decision of the Panchayat declining renewal of licence to the petitioner company. For the aforesaid reasons Exts.P4 and P7 have to be set aside. I do so. 15. Even if Pollution Control Board has issued consent to the Company, and the company has been functioning on that basis, it is the bounden duty and responsibility of the Pollution Control Board to conduct periodical inspections and to ensure that the company is complying with the standards laid down by it. Any default in this respect either by the company or the Pollution Control Board will be in violation of the fundamental rights of the individuals of the area and Article 21 of the Constitution of India. In the nature of the allegations that are raised by the Panchayat WPC.No. 20891/09 :11 : and also the neighbouring residents, this is a case where, more than the usual vigilance is called for from the Pollution Control Board. Therefore, I direct that the Pollution Control Board shall conduct regular and periodical inspections, and closely monitor the facilities provided by the company and standards of the effluents discharged by the company and shall ensure that the standards specified are complied with. It is directed that on such inspection, if the Pollution Control Board finds that there is any failure or latches on the part of the company, the Pollution Control Board shall take appropriate stringent action in the matter. It will also be open to the respondent Panchayat to proceed against the company in accordance with law, if in future any circumstance arise warranting the same. Therefore, the writ petition is disposed of quashing Exts.P4 and P6 directing the Panchayat to renew licence as sought for by the petitioner. It is directed that the Pollution Control Board shall conduct periodical inspections of the premises of the company and shall ensure that the company satisfies all the standards prescribed by it and in case of failure appropriate action shall be taken against them. WPC.No. 20891/09 :12 : (ANTONY DOMINIC) JUDGE vi/