Comrade George Fernandes fought against Coco Cola , and his political secretary Anil Hegde even when he was Union Minister will go to Parliament Street and picket the Co Co Cola Supply van shouting CoCo Cola Desh Bachoo. He would have been arrested more than 2000 days, and I would have been arrested around 50 days whenever I was in Delhi. I also participated in Kerala, border Pollachi Madam known as Plachi Mada Struggle against Co Co Cola.
LEGAL ARCHIVES : ONE ORDER
:
IN THE HIGH
COURT OF KERALA
W.A. No. 2125 of
2003 etc.
Decided On:
07.04.2005Appellants:
Hon'ble Judges.
Ramachandran and K.P. Balachandran,
JJ.Counsels: For
Appellant/Petitioner/Plaintiff: C.S. Vaidyanathan and Ashok Desai, Sr. Advs, Anton
Dominic, A.M. Shaffique and Sajan Narain Shaffique,Advs.For respondents /Defendant:
Rajan Joseph, Addl. Advocate General, P.I.Davis, Government Pleader, K. Ram
Kumar, Bobby Augustine, N.N. Sugunapalan, Antony C. Ettukettil, Babu Joseph Kuruvathazha,
R. Sudhir, Sandeep Ankarath, Jacob Sebastian, V. Chitambaresh and T.C.Suresh
Menon, Advs:
Civil Subject:
INActs/Rules/Orders:Kerala Panchayat Raj Act, 1994 - Sections 166, 233A and
276; Factories Act; Kerala GroundWater (Control and Regulation) Act; Hazardous
Wastes (Management and Handling) Rule; Constitution of India - Article 226Cases
Referred:M.C. Mehta v. Kamal Nath, (1997)
1 SCC
388JUDGMENT M.Ramachandran, J.1. W.A.No.
2125 of 2003 and W.A.No.215 of 2004 arise from the judgment in W.P. (C)
No.34292 of 2003 dated 16.12.2003 (Reported in 2004 (1) KLT 731). The Writ
Petition had been filed by a local authority (Perumatty Grama Panchayat)
challenging Ext.P6 order passed by the Government. The above said order came to
be passed on adjudication, as Directed by this Court at an earlier round of the
proceedings. This had arisen, when the Panchayat refused to renew a license,
which had been earlier issued, facilitating an industrial establishment to
manufacture branded items of beverages.
2. The Writ
Petition had been disposed of with certain findings, observations and
directions details of which could be stated later. The second respondent to the
proceedings is a limited company--Hindustan Coca-Cola Beverages Private Limited
(hereinafter referred to as 'the company'). Challenging such of those
observations, which were likely to have hindered their normal manufacturing and
sales activities, W.A.No. 2125 of 2003 came to be preferred, at the instance of
the company. The Panchayat has preferred W.A.No. 215 of 2004 feeling aggrieved
by some other findings that had been entered into by the learned Single Judge,
which would have, according to the Panchayat, gone against their interests.
3. W.A.No. 1962
of 2003 had come to be filed at the instance of the said company, aggrieved
about the judgment passed in W.P.(C) No. 31286 of 2003 dated 14.11.2003, which also
concerned the issue of licensing. As the main issues have been agitated in the
connected Writ Appeals, it was also posted along with them.
4. During the
pendency of W.P. (C) No. 34292 of 2003, the Panchayat had taken further steps
for canceling the license granted to the company and such proceedings had been
subjected to an appeal, as envisaged under Section 276 of the Kerala Panchayat
Raj Act. However, the orders had been stayed by the Government. W.P.(C) No.
12600 of 2004 had been filed by the Panchayat contending that the Government
was not within its rights to tamper with such orders and the proceedings should
not have been so interfered with. This too had been referred for being
considered by a Bench, along with other cases.
5. Mr. K.
Ramakumar, learned counsel for the Panchayat, submits that since an appeal had
been filed by the company against the steps taken for cancellation of the license
by the Panchayat, now that a statutory Tribunal has already been constituted,
the appeal is to be deemed as transferred to such Tribunal. He submitted that
perhaps without going to the merits or demerits of the contentions raised by
the parties, it would have been proper for all concerned to agitate the matters
before the said authority and a decision of this Court could have been deferred
to a future occasion.
6. Appearing on
behalf of the State Government Mr. Rajan Joseph, the learned Additional
Advocate General, also voiced this Opinion. But Mr. Vaidyanathan, senior
counsel representing the company, points Out that although an appeal is
pending, it arose as an off shoot of collateral Proceedings, while the matter
was being actively agitated before this Court by The parties and finality would
not have come, if the parties were relegated to Pursue such remedies. According
to him, since the validity and veracity of the Government Orders had also been
under challenge, the Tribunal would have been disabled to go into or
effectively adjudge on such issues. On our part, we find that the matters had
been pending before this Court for almost two years, and a large amount of time
had been spent and reports from expert bodies, appointed by The Court, have
been made available. Therefore relegating the matter to be decided by the
Tribunal may not be a proper procedure, since the effort is to have a lasting
solution to the disputes that had cropped up, for unfortunate Reasons. Hence
the parties were required to state their respective cases.
7. Mr. Ramakumar
submitted that the Panchayat, represented by him, should not be understood as
having basic objections about the functioning of the industry in the Panchayat
area, since direct and indirect employment to a number of persons was being
offered. But the objection was about the impact, which was found to be real,
interfering with the basic life pattern of the Grama Panchayat. Residents had
worry about exploitation of resources and were concerned of pollution. If such
apprehensions are appropriately remedied; there would not be any objection for
the Panchayat to permit the company to carry on their activities, it is
submitted
.8. Taking
notice of the submissions, as above made, we feel that the Matter could be gone
into in some detail and the legal and factual contentions raised by the parties
could be subjected to examination, as coming within the purview of this Court,
exercising jurisdiction under Article226 of the Constitution of India.
9. In fact, as
could be seen from the proceedings on Record before the Division Bench, taking
notice of the observations of the Learned Single Judge, the effort was to rest
the findings on 2008-09-02 Scientific data collected by expert bodies, as the
issue very much revolved Round balancing of ecological rhythm, the aspirations
of the people in the locality, the duties and responsibilities that were
expected to be discharged by a Grama Panchayat, especially in the wake of decentralization
of powers and the Predicament of an industrial unit, which had been cordially
invited to invest Substantial funds, ensuring them freedom of functioning.
Therefore, advertence to a great extent would have to be made to the report
prepared by the investigation team, constituted by order in W.A.No. 2125 of
2003 dated 19.12.2003 by the Division Bench, since this would have in the most
proper way to assess and tackle the situation resulting from conflicting stand.
10. The
provocation of the Panchayat for filing W.P. (C) No. 34292 of 2003 could be
stated now. At one point of time, they had refused to renew the license in
favour of the company. The steps were challenged by way of a Writ Petition.
Although a stay order had been issued, ultimately this Court refused to go into
the merits of the case, and had
suggested that
since already an appeal had been filed before the Government, it would have
been proper for the company to pursue the appeal. The Writ Petition was closed.
Thereafter, on hearing the parties, the Government by order dated 13.10.2003
had held that the Panchayat was in error in issuing the orders, and a more
detailed investigation should have been appropriate, and had directed
consequential instructions in this direction. This order was the subject matter
of challenge, at the instance of the local authority. The details of the Sequences
would be given later.
11. The
concerned industrial unit is engaged in the business of manufacturing, storage,
distribution and sale of aerated and carbonated non-alcoholic beverages, fruit
beverages and Packaged Drinking Water. It is predominantly a water based
industry. According to the company, they have set up units and factories in
various parts of India , and
one such factory is at Moolathara
Village
12. We may
presently refer to the background of the disputes as well. After identifying allocation
and installing infrastructural facilities, in response to its application, the
Panchayat had issued a license to them on 27.1.2000 for running the factory, using
electric power up to 2600HP. They claim that they had obtained license Under
the Factories Act and had obtained clearance from the Pollution Control Board.
The license issued by the statutory authorities was being renewed from Year to
year. The operations were smooth for a while. But discordant notes were heard
at a distance, but they had thought it prudent to take them in their stride, as
basically their hands were clean.
13. An
application for renewal of the License, for the year 2003-04, had been duly presented
with in prescribed time. But, by communication dated 9.4.2003, the company was informed
that the Panchayat had decided not to renew the license consequent to a
resolution of the Panchayat dated 7.4.2003. The company was also required to
show cause as to why the working License should not be cancelled within 15 days
of receipt of the notice dated 9.4.2003. It had been alleged that because of
the working of the factory,
Exploitation of
excess groundwater occasioned and there is serious shortage of Drinking water.
Ecological problems also were seen. Further reason pointed out was that the
Panchayat was also noticing that certain organizations were agitating over the
functioning of the factory. At the auspices of early settlers, for over a year
an agitation was going on. Panchayat had been constrained, according to them,
therefore to pass a resolution, taking notice of these. The notice is Ext.P2 in
W.P. (C) No. 34292/2003 and Ext.P1 is the copy of the resolution dated
7.4.2003.
14. A reply was
filed by the company against the show cause notice on 30.4.2003, where under
they refuted the allegations as made. They Apprehended that it is a
post-decisional notice and amounted to violation of the principles of natural
justice. The allegations, According to them, were factually not sustainable and
the agitations were stage Managed and for extraneous reasons. Reference had
been made to the grant of License by the other statutory authorities. Ithad
been pleaded that taking Notice of the circumstance that it was catering to the
social needs of the region, the Panchayat was requested to desist from the
contemplated steps. A right of hearing had also been solicited. It had also
been highlighted in Ext.P3 Reply that:” We have also done/are undertaking
number of community development programmes for the people living in the
locality in the field of education, health and drinking water supply. We are
actively supporting the Perumatty Panchayat run Higher Secondary School
15. A formal
hearing had been offered, and thereafter, by Ext.P4 order dated 15.5.2003, the
Panchayat had cancelled the license granted to the company. It had been
directed that the activities are to be stopped from 17.5.2003. It appears that
the only recourse available viz., an appeal had been filed before the
Government by the Company, challenging the Steps contemplated by the Panchayat,
seeking guidance and interference, as briefly referred toearlier.
16. In the
meanwhile, an Original Petition also had been filed against Ext.P2 as O.P.No.
13513of 2003. After hearing the parties, finding that a decision after hearing
the explanation was yet to be passed, the Court had, by order dated 22.4.2003,
directed the parties to maintain status quo till 16.5.2003 or till the
Panchayat takes a decision, whichever is earlier. O.P.No. 13513 of2003 came up
for final orders on 16.5.2003 and this Court had directed that the company is to
move the appropriate authority against the decision taken by the Panchayat. Such
representation was to be filed within one week from the date of the judgment. A
decision was to be taken thereon within one month; status quo was to be
maintained till such time. The decision, referred to earlier, came to be passed
in this context.
17. In due
course, orders on the appeal came to be passed as Ext.P6 on 13.10.2003. The
Government had gone to the essential details and found that the Panchayat had
not conducted any scientific investigation or obtained benefit of any report
from the competent agencies before taking the drastic stand of canceling the license
already being enjoyed. The predominant issue of course centered round
exploitation of water resources. According to the Government, the circumstances
called for a detailed independent investigation and consequently had issued the
following direction:” In the above circumstances Government hereby order that
the Perumatty Grama Panchayat will constitute a team of experts from the
departments of Ground Water and Public Health and the State Pollution Control
Board to conduct a detailed investigation into the allegations leveled against
the Company and its products. The Panchayat will take a decision based on this
independent investigation as to whether the license granted to the Company
should be renewed or cancelled. The Panchayat will get the enquiry conducted by
these agencies and come to a just u and fair conclusion based on this enquiry
within three months from the date of receipt of this order. All enquiries and
investigations should be conducted with notice to the appellant Company. Till
the Panchayat takes a final decision on the cancellation of the license issued
to the Company, the stay granted by Government on 12.6.2003against the order of
cancellation of license by the Panchayat will continue inoperation."A copy
of the order is Ext.P6. W.P. (C) No. 34292 of 2003 came to be filed at the
instance of the Panchayat challenging the above order of the Government. Observations
and directions had been made and issued by the learned Judge, while disposing
of the Original Petition. The validity thereof has presently come up for
consideration in the two Writ Appeals (W.A.No. 2125of 2003 and W.A.No. 215 of
2004), as both the parties had grievances in their respective areas of
interest.
18. Before
examining the rival contentions, it is essential that the facts leading to
W.A.No. 1962of 2003 also are catalogued. When the matter was being considered
by the Government, as stated above, the Panchayat had issued a further show
cause notice on 18.9.2003 pointing out that the company had installed
bore-wells without permission. They also alleged that there were medical
reports pointing out the presence of toxic substances in the effluent discharges.
Company was directed to show cause as to why steps for closure should not be
enforced. The notice was purported to be issued by virtue of powers conferred
on the Panchayat under Section I66 of the Kerala Panchayat Raj Act. It had also
been suggested that paddy fields in the possession of the company were
converted into dry lands, which was unauthorized. According to the Panchayat,
there was also reason to presume that the products of the company were likely
to create health
Hazards.
19. Before us,
it had been suggested that there was even an over play of the issue. Notice
confided that on enquiries, the Panchayat gathered that though the company has shareholders
in India, none of them has voting rights or any say in the decision making
process by the company. All decisions are taken by the foreign nationals as
regards the manufacturing of soft drinks, establishment of factories, disposal
of waste etc., without any say to any one of the Indian Nationals. Therefore,
the Panchayat claimed that it had reasons to believe that the very
establishment of the factory in the country, and especially at Plachimada, is
violative of various provisions of law regulating the conduct of Business by
multi-national companies. As the sale and consumption of the products like
Coca-Cola have been banned within the Parliament premises in New
Delhi and also by the State Legislative Assembly, Trivandrum
20. A Writ
Petition had thereupon been filed by the company as W.P.(C) No. 31286 of
2003challenging the orders, inter alia pointing out that the issue was already
before the Government and the fresh notice showed the bias harboured. No
interim orders had been granted, however. According to the Court, the Writ
Petition was premature as there was only a show cause notice. The submission
made, however, had been noticed that an explanation was being submitted. It was
during this time that Ext.P6, referred to earlier, leading to W.P.(C) No. 34292
of 2003came to be passed on 13.10.2003.
21. On the show
cause notice, taking notice of the reply, a personal hearing had been offered. A
stand had been taken by the company that the later developments in the form of Government
Orders took cognizance of the disputes and there was no requirement for a
separate or independent examination, or orders to be passed, as a course of
conduct had been directed to follow. The Writ Petition itself was however
disposed of, observing that the matter was being heard by the Panchayat on
17.11.2003 and the decision, if adverse, could be challenged. Against this
judgment dated 14.11.2003, W.A.No. 1962 of 2003 had come to be filed, pointing
out that the exercise of power by the Panchayat was unwarranted and showed the
mala fides harboured by the local authority against them, and this Court should
have considered the issue son merits.
22. But a
separate examination of the rival contentions may not be necessary, as the
issues are closely interlinked. The anxiety of the Company is that the
rejection of the Writ Petition shouldn’t cause technical hurdles to them.
23. We may also
advert to W.P.(C) No. 12600 of 2004, at this juncture. An application for
licence for the year 2004-2005 had been submitted by the company along with a
covering letter dated 17.2.2004 (Ext.P1 in the Writ Petition). However,
referring to the
resolution that had
been passed on 5.3.2004, by Ext.P2 communication dated 11.3.2004; the company
had been informed that their style of running of the industrial unit was not
one which inspired confidence. To the regret of the Panchayat, they had
noticed, according to them, the over extraction of ground water by installing
six bore-wells without the permission of the Panchayat, and as a result
thereof, there was drought resulting in shortage of drinking water.
Additionally, there was a direction by the Government to stop the drawing of
ground water by the company, and a Joint Parliamentary Committee had reported
about the all round pollution brought about by the working of the factory and
manufacturing products, which were hazardous to health. There were complaints
about skin diseases, itching etc., as a result of the discharge of poisonous
effluents from the factory, there was improper effluent treatment and the
Pollution Control Board as per their letter dated 23.2.2004 was dissatisfied
about the disposal of hazardous waste generated from the factory, and that the
Panchayat had a duty to preserve water resources, soil protection etc. Because
of the precarious availability of water, they were therefore practically
convinced that considering the nature of magnitude of water requirement, it may
not be proper for grant of the request.
24.
Notwithstanding the above and although the Panchayat would have been justified in
refusing renewal, the company was informed that as a special case, taking
notice of the employment potential of persons in the local area, a renewal
could be considered, if they were not to draw any ground water from the
Panchayat area and were to carry on the industry by bringing water from else
where. They were also to immediately stop discharge of waste to the
satisfaction of the Panchayat and also to satisfy the Panchayat about the
safety of the products, taking notice of the report of the Joint Parliamentary
Committee. An undertaking was to be given forthwith, as otherwise the
operations were to be completely closed down.
25. By Ext.P3,
the company had invited the attention of the Panchayat to the unreasonableness
of the advice. In effect, it was highlighted that they were flouting the orders
of the Court as also Government by resorting to such a stand. But, referring to
the resolution passed on 29.3.2004,by order dated 30th of March, 2004 (Ext.P5),
the company was advised them not to résumé their operation in the absence of a
valid license from the Panchayat pin pointing five reasons,viz.1.) The
application for renewal contains false statements and claims.2) The Kerala
State Pollution Control Board has refused to issue the authorization under the
Hazardous Wastes (Management and Handling) Rules with a result that the company
has not provided satisfactory facility for the disposal of Hazardous Wastes
generated in your company.3) The Joint Parliamentary Committee report has
clearly indicated that the products of the company contain harmful materials,
which is injurious to public health.4) The drawl of ground water by the company
has affected the source of drinking water and water supply to the entire area,
which is a matter of consideration and the Government had declared so and
stopped the drawl of ground water until theEdavapathy (Monsoon).5) The
Panchayat is convinced that the reasons stated in its intimation dated11.3.2004
have to be reiterated and the company has not satisfactorily explained any one
of them either in the course of the hearing or in the written statement made by
the company through the counsel. This order had been challenged by way of an
appeal. By order dated 1.4.2004, the Government had granted a stay on three
conditions, namely that (i) The Government Order dated 21.2.2004regarding the
extraction of ground water (which pertained to prohibition of extraction of water
during drought season) was to be strictly followed; (ii) the appellant was to
strictly follow the conditions laid down by the Pollution Control Board; (iii)
the directions in the judgment of the High Court in W.P.(C) No. 34292 of 2003
regarding the extraction of ground water subject tithe directions/ orders in
W.A.No. 2125 of 2003 was to be followed. In the Writ Petition, at the instance
of the Panchayat, it is contended that an ex parte order ought not have been
passed.Mr. Ramakumar submits that the practical solution now will be to direct
the statutory Tribunal to hear and dispose of the pending appeal, after hearing
all the parties, and the indiscretion of the Government in granting the interim
order is not to be separately examined.
26. The issues
are practically interlinked. Although certain additional grounds had been
pointed out, justifying non-renewal of the license, the basic issue is the
assumption, which almost stands transformed to a conviction harboured by the
Panchayat, that consumption of any amount of water for the industry would be
detrimental to the general interests of the Panchayat and therefore it is to be
discouraged. This was the reason which prompted the Panchayat to advise the
company that renewal for the year 2003-04 also was not being favourably
considered. However, such an attitude adopted did not get full support from
this Court, when we examine the judgment in W.P.(C) No. 34292 of 2003, although
the Court had been persuaded to feel towards a necessity for a study and
imposing of restrictions in the enjoyment of nature's bounty. The Government
had advised the Panchayat for the necessity and requirement of expert opinion,
and it had to come from a competent body.
27. By judgment
in W.P.(C) No. 34292/03, the directions were streamlined. In the present
proceedings, this Court had felt the necessity for presence of adequate
materials by entrusting the investigation to an expert body, practically
concurring with the Government's view. After hearing the parties concerned, by
order dated 19.12.2003, it had been ordered that:” for a proper adjudication of
this case, more scientific data are required. In this view of the matter, prima
facie we are of the view that the Government was right in directing the
Perumatty Grama Panchayat to constitute a team of experts to conduct a detailed
investigation into the allegations leveled against the company and its
products".28. Noticing the suggestions made at the bar, the learned Judges,
at the early stage of the hearing, opined that "the investigation should
be entrusted with the Centre for Water Resources Department and Management,
Kunnamangalam, Kozhikode , which is part of the
Kerala State Council for Science & Technology and Environment". The
Centre was thereby appointed for conducting an investigation as to whether the
allegation viz., that working of the factory atMoolathara Village
directed to be
defrayed by the company. The project report was required to be filed by
7.1.2004, so that further directions could be issued
.29. Monitoring
the progress, follow up orders had been issued from time to time. It cannot be
ignored that such data was being authoritatively collected so as to subject the
contention of the Panchayat for an examination as to the alleged existence of
exploitation, and if so, for curbing the activities and for prescribing
parameters, as might be required, so as to ensure justice as between the
parties. The role played by the Court had never been objected by any of the
participants to the proceedings. The objective had been made known to all. Now
that a report has come, the Court is not to shirk responsibility, by refusing
to look into that. Also we feel that in view of the vital nature of the issue,
the matter has to be dealt with, befitting with the importance it deserves.30.
A preliminary
reports,
followed by a final report, have come on record. Formal objection has-been
filed by the Government on 1.4.2005, in the form of an affidavit, filed on
behalf of the second respondent. The Panchayat has also filed an objection, and
had produced along with it the materials relied on by them as about the interim
report, reserving leave to file further statements/objections in due course.
Before adverting to them, it is essential that the criticism and contentions
raised by the parties in Writ Appeals No. 2125/03 and 215/04 are examined.
31. Judgment in
W.P. (C) No. 34292 of 2003 dealt with the issues in some detail and paragraph8
thereof could be extracted as follows:"8. Exts.P1, P2 and P4 would show
that action was taken against the 2ndrespondent for excessive extraction of
ground water and the resultant problem of drinking water scarcity and
environmental problems. But, at the time of hearing before the Government, the
Panchayat raised certain allegations regarding the pollution caused by the
industrial waste generated and also the impurity of the Cola produced by the
company. The 2nd respondent answered those allegations. The Government, while
disposing of the matter, ordered an investigation and a decision on these
matters also. While exercising the licensing jurisdiction, the Panchayat
Is not competent
to go into the quality of the beverages produced. It is for other appropriate
authorities to look into such allegations. Regarding the pollution caused by
industrial effluents, the Panchayat can look into and take appropriate action in
consultation with expert bodies under Section 233A of the Act. But, in this
case, the notice was issued only on the ground of excessive exploitation of
ground water and the decision to cancel the license was taken only on the basis
of that ground. Therefore, the Panchayat fairly submitted that the validity of
its decision and that of the Government on this point alone need be considered
by this Court in this case.” The Court therefore had held that while exercising
the licensing jurisdiction, the Panchayat is not competent to go
into the quality
of the beverages produced and it is for other authorities to look into such
aspects. As notice was issued only on the ground of excessive exploitation, the
jurisdiction or right to cancel the license could have been exercised by the
Panchayat only on the basis of that reason. The approach is unexceptionable.
32. Mr.
Vaidyanathan, senior counsel submits that if that be the case, the Court was not
justified to go into other aspects. As highlighted in the appeal memorandum,
according to him, most of such points were never even agitated. Counsel
referred to paragraph 12 of the judgment also, which is in the following
terms:"12. Now, coming to the present case, at the outset, it has to be
held that the order of the Panchayat to close down the unit on the finding of
excessive extraction of ground water is unauthorized. The Panchayat can at
best, say, no more extraction of ground water will be permitted and ask the
Company to
find out alternative
sources for its water requirement. So, the Government's order to the extent it
interfered with the closure of the unit has to be upheld.” But, according to
him, the learned Judge had faltered steps, when he observed that:” even in the
absence of any law governing ground water, I am of the view that the Panchayat
and the State are bound to protect ground water from
excessiveexploitation".The approach and enquiry, which began from this
premises, according to the counsel, has adversely affected the thought process
leading to the rest of the directions, which according to him plainly defied
logic.
33.
Exploitation, if carried out, has to be established, before accusing one of the
indiscretion. He
suggests that the Court was not examining a hypothetical question. A finding
was yet to be arrived, and as it has turned out, it was one really begging the
issue. Counsel points out that it is not as if a person is not the owner of
water beneath his field, be it well water or groundwater. The reasoning
supplied for entering a finding to the contrary, according to him, was feeble
and not based on any legally accepted principles. Excess exploitation is still
more secondary issue.
34. We may point
out that precise information was not forthcoming as to the meaning of the term
"ground water". The Additional Advocate General, on being asked,
explained that groundwater was generally water which was available, possibly
below hundreds of meters belowground level and mostly locked among rocks in the
upper crest regions of the earth. But, he submits that the legislation of the
Government, as also dictionary meaning, refers to "groundwater" as
any water below the surface of the earth, be it well
water or water
in a pond or water which could be brought up by pumping through the bore-well.
The essential difference as between the water sources have not been attempted
to be noticed.35. We have to assume that a person has the right to extract
water from his property, unless it is prohibited by a statute. Extraction
thereof cannot be illegal. We do not find justification for upholding the
finding of the learned Judge that extraction of ground water is illegal. It is
definitely not something like digging out a treasure-trove. We cannot endorse
the finding that the company has no legal right to extract this 'wealth'. If
such restriction is to apply to a legal person, it may have to apply to a
natural person as well. Abstract principles cannot be the basis for the Court
to deny basic rights, unless they are curbed by valid legislation. Even
reference to mandatory function, referred to in the third schedule of the
Panchayat Raj Act, namely” Maintenance of traditional drinking water
sources" could not have been envisaged as preventing an owner of a well
from extracting water there from, as he wishes. The Panchayat had no ownership
about such private water source, in effect denying the proprietary rights of
the occupier and the proposition of law laid down by the learned Judge is too
wide, for unqualified acceptance.
36. In fact, we
find that the learned Single Judge was himself in two minds about an
absolute
proposition that might have resulted. Observations in paragraph 14 of the
judgment indicated that what was objectionable was a "right to claim a
huge share of it" alone. Further, it has been observed in paragraph 15
that "like every other land owner, the second respondent can also be
permitted to draw ground water by digging wells, which must be equivalent to
the water normally used for irrigating the crops in a 34 acre plot", but
however, the right had been given to the Panchayat to fix the quantity
permitted to be used. No reason is however given as to why agriculture has a
priority than an industrial
activity.
Agricultural needs for water differ from crops to crops. Therefore, the
observation in sum total would have resulted in a chaotic situation
.37. It should
have been found that the Panchayat had no machinery to assess requirement
for water to a
property owner other than to adopt the rule of thump. Senior Counsel points out
that after making these observations, again in the operative portion of the
judgment, practically contrary direction had been issued which enabled the
Panchayat to prevent the company from drawing any ground water after a period
of one month. Even this period was to enable the company to find out alternate
sources of water. The criticism is that the real issue has escaped notice of
the learned Judge, and there was no justification therefore to deny the
rightful claims, even recognized by the Government.
38. We find that
the findings are not precise and the follow up course suggested may not be
practical. After holding that there is right for using a reasonable amount of
water, the
Court could not
have held that the Panchayat is obliged to renew the license and should not interfere
with the functioning of the company, only if the Company is not extracting
ground water and is depending for its water needs from other sources. The
absolute prohibition was neither called for, nor legal. A further direction had
been made, where under the Panchayat was to get the assistance of the Ground
Water Department for assessing the quantity of water that could be drawn by a
land owner, who had 34 acres of land for his domestic and agricultural purposes.
But it is not suggested as to what earthly purpose this exercise is to benefit
anybody. Use of any amount of water had been prohibited and the earlier
directions stood as a ban for use of water for the manufacturing
work in the
factory. The criticism of the appellant appears to be correct, as in spite of
the suggested examination or exercise directed to be carried out, follow-up
directions had not forth come, as to whether the ground water could have been utilized
at least to a limited extent.
39. Mr.
Vaidyanathan also points out that the condition prescribed by the learned
Single Judge that the factory may be worked by bringing water from other
sources, though established inPerumatty Grama Panchayat, would have been
plainly unworkable. Not only the right to use its own water is prohibited, but
impossible conditions are prescribed, which can lead only to one result viz.,
that the establishment is to be closed down. The
benefit of the
earlier observations, when the Government order had been upheld is thereby lost
to the company. It is argued that if the principle deducible from the judgment
could be understood in plain terms, an owner of a land cannot draw water from
his properties or use even a single drop thereof. It could be visualised that
in all possibility, any other local authority would have objected to drawing of
water for being utilized for an industry distantly situated. The restrictions
would have applied to them as well, as an individual was not entitled to draw
water without the permission of authorities. The net result will be that
bringing water from any other sources becomes illegal and unauthorized.
40. There is
basis in such submissions, as it exposes presence of rigid and unworkable
propositions. We are reconvinced that as suggested by the Division Bench, at
the early phase of hearing, the workable solution was to get sufficient data
from authentic sources and try to resolve the issues with a sense of proportion
and balancing. A water based industry, with a huge investment has to receive
water, to quench its thirst without inconveniencing others. We also do not
approve the observation made in paragraph 13 of the judgment that "even
assuming the experts opine that the present level of consumption by the second
respondent is harmless, the same should not be permitted". The reasons
given in the judgment do not appeal to us as reasonable. Also the above,
essentially does not go hand in hand with the finding in the judgment, in
paragraph 12 that:” Now, coming to the present case, at the outset, it has to
be held that the order of the Panchayat to close down the unit on the finding
of excessive extraction of ground water is unauthorised."as well as the observation:”
so the Government's order to the extent it interfered with the closure of the unit
has to be upheld"41. Coming to Writ Appeal No. 215 of 2004, we notice that
the findings just above extracted have not been subjected to challenge in the
Writ Appeal of the Panchayat. The grounds taken were that the Judge erred in
law in holding that the Panchayat cannot cancel the license if there is a
health hazard in the continuance of an industrial unit within the area of the Panchayat
(Ground A); and that the "observations of the learned Judge are contrary
to the mandate of the Constitution enjoying on the Panchayat to attend to
measures of protection of health and wellbeing of its residents (Ground-B).
Ground-C was that the learned Judge erred in holding that the cancellation of
the license is not warranted in the case. Ground-D also was in the following
terms:” The learned Judge ought to have held that if an industrial unit poses
health hazards or causes pollution all round it is within the powers of the
Panchayat to exercise the power of licensing and seeking the cancellation of
the license already granted.” But these grounds have been taken totally
forgetting the submissions made by the Panchayat, while the matter was being
heard by the learned Single Judge. There was no categoricchallenge about the
finding in paragraph 8 of the judgment that "while exercising the licensing
jurisdiction, the Panchayat is not competent to go into the quality of the
beverages produced and it is for other appropriate authorities to look into
such allegations." As a matter of fact, the learned Judge had recorded
that "the Panchayat fairly submitted that the validity of its decision and
that of the Government on this point alone need be considered by this Court in
this case”. This we find concerned with the issue of excessive exploitation
alone.
42. Therefore,
the appeal filed by the Panchayat poses no challenge on the quoted findings of
the learned Judge. On the other hand, the Court has held in favour of the
Company that the Panchayat had been arbitrary in imposing its decision. This
appeal therefore has no merit. Really we are again being reminded of the
necessity of examining the report of the Expert Committee, so as to give a
quietus to the issues
.43. We hold
that ordinarily a person has right to draw water, in reasonable limits, without
waiting for permission from the Panchayat and the Government. This alone could
be the rule, and the restriction, an exception. The reliance placed by the
learned Judge in Kamal Nath's case (M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388)
is not sufficient to dislodge the claim. The observation in paragraph 13 that
the ground water under the land of the respondent does not belong to it may not
be a correct proposition in law. In the present case, we also notice the
statement that the Company has registered themselves as required under the
Kerala Groundwater (Control and Regulation) Act, 2002, which came into force on
11.12.2003.
44. Now we may
enter the next phase of the adjudication. The final report of the Expert
Committee is comprehensive, and it could be gathered there from that a
scientific investigation on the ground water potential of the area and the
shortage and scarcity of drinking water in the nearby areas due to the current
level of water extraction by the company had been made the subject matter of
enquiry/investigation. The Committee found that the rainfall data recorded in
respect of the areas revealed of a shortfall in showers for the years 2002-03
and 2003-04, as much lesser than the mean value. This deficiency, according to
the Committee, could be considered as the most significant factor that has
contributed to the scarcity of water experienced in the study area. The
Committee has recorded the opinion that the unregulated withdrawal of ground
water from the wells within the Coca-Cola factory complex and also outside,
even during such a deficit period had aggravated the scarcity situation. The annual
average rainfall for the past ten years had been taken notice, and up to the
year 2004. During the year 2004, as could be seen from the statements, there
was a better amount of rainfall (1690 mm at Meenkara). For the purpose of
calculation, the lower value of 1412mm atChitturpuzha Project office has been
taken for assessing the ground water potential of the area. The data available
for the macro area of Chittur Block had been considered and the Committee had
come to the conclusion that the committed annual ground water draft that should
be reserved to meet the water requirements of both domestic and irrigation
sectors in ChitturBlock till 2025
AD could be
estimated as 62.5 Million Cubic Meters (MCM), leaving an annual balance of
about 4.2 MCM of ground water resources for meeting other uses of water, including
industrial purposes. The annual ground water required by the company, at the
average rate of 5lakh litres per day, would have come at 0.1825 MCM, which
would be less than 5% of the total available 4.2 MCM.45. As revealed in the
report, Committee had also studied the data pertaining to ground water resource
of Plachimada watershed. It found that what could be used by the company
was4.97% of the annual available ground water resource of 3.67 MCM which would
be there in the watershed. The recommendation appears to be that permissible
ground water withdrawal could be 5 lakh litres per day, if for relevant year,
average rainfall was available. If it was less by10%, exploitation is to be
reduced to 4 lakh litres per day. If the monsoon is less by 20% or30%,
restriction should have been made to 3 lakh litres and 2 lakh litres
respectively. In a case of a year where there was 30% lesser rainfall than
average, total ban of use has to be imposed.46. The Panchayat had not filed any
detailed objection about the report, and continued to rely on the objections
made against the interim report. Thus, it has not been possible to know their
stand about the presentation, including the watershed approach for arriving at
water availability status for various purposes, which alone appears to have
been the addition (See Minutes dated20.1.2005 - Appendix IF). Nothing was
specifically pointed out for discarding the report or the recommendations.
Although an affidavit is filed on behalf of the second respondent on1.4.2005,
it has come out as a very feeble effort, and an effort, which is difficult to
be accepted as of any consequence. A "Geological Assistant" of the
Ground Water Department is the signatory to the affidavit. He submits that on
going through the report, no principle is found outland reason for allowing
withdrawal of such a huge quantity of water is also not discernible from the
report. Attempt is to import and rely on statistics in the form of Ext.R2(a)
(Yearly Rainfall atChulliar Dam) and Ext.R2(c) (Monthly Rainfall at Meenkara
Dam) for the year 2004. It is to be noticed that Chulliar Dam is situated more
than 15 kilometers away. Also the signatory has overlooked that the Expert
Committee had taken the lowest figures of rainfall as mean value recorded by
relevant rain gauges, which was lesser than for the latest year. The mechanism of
the projections suggested is not attempted to be challenged. We are also
constrained to observe that it was not prudent for a subordinate officer to
swear an affidavit controvert the findings of the Expert Committee, especially
since his superior officer (Hydro geologist, Groundwater Department) was one of
the members of the Expert Committee. The opinion of the Officer, who is a
Geological Assistant, can only be considered as pedestrian. Evidently, the
attempt of the Government was to escape from a possible pique of indiscretion
that otherwise might have been suggested. Perhaps it is filed purely for the
purpose of records; if not to appease the gallery. We find that the report of
the Committee is fair; it appears to be authentic, based on data collected,
mature and therefore acceptable.
47. Before
coming to the final phase of the case, we may also advert to the relevance of
W.P. (C) No. 12600 of 2004. Although orders were passed by the Government on
13.10.2003, as per the directions of this Court in O.P.No. 13513 of 2003,
certain fresh issues were precipitated, especially pointing out the health
hazard and the application for license for the year 2004-05had been rejected.
Because of the binding judgment in W.P. (C) No. 34292 of 2003 dated16.12.2003,
wherein the Panchayat had suffered an order that "while exercising the licensing
jurisdiction, the Panchayat is not competent to go into the quality of the
beverages produced and it was for the other appropriate authorities to look
into such allegations", we feel that such arguments are incapable of being
reagitated, as the Panchayat is bound by the observations, as such findings
have never been challenged. Also the proceedings were of not good taste, as the
Government Order dated 13.10.2003 bound the discretion of the Panchayat, which
had only been partially modified by the judgment in W.P. (C) No. 34292 of 2003.
All steps were to be kept in abeyance, and they had a duty to assess the
magnitude of alleged exploitation before any further adventure. Of course, it
could be seen that additional circumstances were arrayed, but even prima facie,
such allegations appear to be of no substance.
48. When we go
through the exhibits presented in the Writ Petition, we find that the Panchayat
has however, in their letter dated 11.3.2004, and offered to renew the license
on satisfaction of three conditions. They are: (1) The Company should not draw
or cause to be
drawn any
groundwater from anywhere in Perumatty Grama Panchayat, including the
open well, and
they may bring water from outside; (2) The company is to immediately stop
discharge of waste, including dangerous and offensive contents, which are
serious health hazards and attend to waste management; and (3) the products are
to be ensured as not having any poisonous chemical substance in them, as has
been found by the Joint Parliamentary Committee. Therefore, it was more of an
ego clash, and we do not wish to go to other details.
49. As regards
the first objection, we have already held that such a restriction will be
unwarranted. It always will be permissible for an occupier to draw water out of
his holding. The permissible restrictions, in public interest, can only be to
compel him to ensure that by his conduct he does not bring about a drought or
any imbalance in the water table. The interim report of the Expert Committee
itself indicate (vide paragraph 4.3) that although the pumping of ground water
was stopped during March, 2004 the trend of water level falling in the
observation wells in the area continued. The suggestion and condition to bring
water from outside the Panchayat area to run an industry housed there is
plainly unreasonable and we cannot approve such a condition for curbing the
normal
activities.
50. In respect
of the objection about pollution, in the course of hearing, reference is made
to a letter addressed to the Chairman of the Kerala State Pollution Control
Board pointing out that every possibility of any waste product contamination
has been plugged up. May be the Pollution Control Board has no objection in
permitting operation. As for the third objection viz., report from the Joint
Parliamentary Committee, we had occasion to peruse through the documents as
produced by the Panchayat. There is no reference to any sample taken from the
Factory atPlachimada and therefore the objection as presented do not appear to
be valid or even sustainable. The Panchayat might not be possessing
sophisticated equipments for analyzing the contents of the manufactured
products, and although as Mr. Ramakumar points out that the Schedule to the
Panchayat Raj Act is specific about the mandatory duties of the local body, that
by itself will not justify them to engage in a pursuit for which they are ill-equipped.
The anxiety of the Panchayat of course is understandable, but blind faith may
lead to perpetration of arbitrariness, as points of view of third parties do
not get noticed.
51. An overall
assessment of the situation, we feel, may not be out of place. Water travels
constantly through water channels beneath the ground. These are generally
referred to as water sources and reserves, and replenishment of ordinary wells
is brought about naturally through this system. But, water in immeasurable
quantities which reach substantially lower levels by percolation processes
round the year are locked in, for ages, between rock formations, and it could
be tamed out only by mechanical devices, e.g., through bore-wells. Presence of
water could be compared to that of petroleum deposits
Underground,
although there is no regular replenishment for the latter. Often kilometers
below ground level, both remain eternally trapped. It is not uncommon that
large deposits of petroleum are found far below the ocean floor. The ground
water similarly is trapped deep below the ground. Such deposits are not subject
to evaporation, and laws of gravity do not permit it ever to come up of its
own. It is, therefore, safe to assume that bore-wells are used to draw such
water alone and by working of such pumps, water might be drawn from areas
extending to several kilometers. Drying up of ordinary wells, tanks etc., in
summer season is
not a phenomenon specific to Plachimada. As could be gatherable from the
report, the shortage in rainfall substantially is a contributory factor
thereto. By natural seepage during rainy seasons, on its own, water travels downwards
to reach low levels. The Committee has explained the above as a process of
recharging to the ground water, which is likely to replace the exploited
amounts. This appears to be the basis of the future projections made by them.
The very fact that the wells were drying up in the summer at Plachimada,
notwithstanding stoppage of exploitation after March 2004, and when the
company's bore-wells were kept idle, leads to the assumption that the
apprehensions
and allegations
were not true to the factual situation.
52. We,
therefore, come to the conclusion that the Panchayat was not justified in
resorting to steps, whereby renewal of license for the Hindustan Coca-Cola
Beverages Private Limited was rejected well before a scientific assessment was
made. The Panchayat had also no legal authority to cancel the license for
functioning the unit in the Panchayat area for any of the reasons pointed out,
at different occasions. The Panchayat is therefore directed to consider the
application for renewal of the license granted to the Company, for the coming
year, or any block years, if such application is filed within two weeks from
today. The Company will have the obligation to apprise the Panchayat that they
possess licenses issued under the Factories Act and clearance received from the
Pollution Control Board. Within one week of such presentation, if the above two
conditions are satisfied, the Licensing Authority of the Panchayat is directed to
grant the license and it may not be within its jurisdiction to enquire about
the details of the machineries installed, including bore-wells, as such matters
predominantly are to be within the jurisdiction of enforcement officers under
the Factories Act. After grant of license, it may be permissible for the
Panchayat for making inspections, so as to see whether further license fee
would be payable.
53. For the year
2005-06, taking notice of the average rainfall that had been there in the
locality, the Company will be entitled to draw ground water not exceeding 5
lakh of litres per day, without any right for accumulation in case of non-user
per day. The Panchayat will be entitled to carry out inspection, as coming
within its jurisdiction,
including the
limits of use of water per day, in a manner at their discretion, of course
without unduly interfering or inconveniencing the company. The Company should
satisfy the Panchayat about the intake of water per day, keeping correct
up-to-date log books and records. The renewal of license for the coming years
should also be on the basis of the observations made herein, as might be
applicable with required changes, so as to suit the occasion.
54. Although
third parties had got themselves imp leaded, we had only opportunity to hear
Mr.Chithambaresh, representing the cause of workmen. They were vociferous in
contending
thatthe Panchayat had been unnecessary twisting the arms of the company for no
useful purpose, misdirecting itself. There were no representations from any
others, who posed to represent the general public. Nevertheless, we feel that
taking notice of the commitment to which reference and claim is made by the
company, we have to direct that the company should actively involve in the
community development programs for the people residing in the locality
especially in the matter of health and drinking water supply, at the
supervision of the Panchayat. We may refer to the stand taken by them, as could
be seen from Ext.P3, produced in W.P.(C) No. 34292 of2003, which calls for such
directions. Since the early settlers and general public are apprehensive about
the shortage
of drinking
water, this becomes an essential duty of the company. The factory is drawing
water resources from the Plachimada watershed, and also perhaps from other
regions of Chittur Taluk through suction. Therefore, a reasonable amount of the
water so drawn are to be utilized for benefit of general public, and as
directed by the Panchayat from time to time. This work of water supply is to be
undertaken, and commenced before 30th of June 2005. The restriction imposed for
its own consumption will not be applicable when water is drawn for this
additional requirement.
55. In view of
our observations and findings, we hold that the appeal proceedings before the
statutory Tribunal, filed by the Company under Section 276 of the Panchayat Raj
Act, is to be closed as having become anfractuous, and a formal request is to
be made by the
Company in that
regard, on the authority of this judgment. As far as the refund of deposit of
cash made, in view of the order of this Court dated 7.1.2004, on application
being filed, the Registry is to place the matter before the Court, and obtain
further orders.
56. The three
Writ Appeals and the Writ Petition are disposed of as above. The directions and
observations of the learned Single Judge in the judgment in W.P. (C) No. 34292
of 2003 will be deemed as modified in consonance with the directions, as above made.
On pronouncement of the judgment in open Court, the learned counsel for the Panchayat
submits that one week's time granted for consideration of the application will
be too short a period and at least two weeks might be required. Although Sri.
Shaffique, appearing for the respondent-Company, submits that the time granted
is adequate, taking notice of the circumstances, the time granted as one week
will stand modified as two weeks.
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