Writ Petition No.979 of 1997

16th December, 1997

Petitioner Counsel: Mr. A. A. KUMBHAKONI
Respondent Counsel: Mr. V. S. GOKHALE, A.G.P. , Mrs. NEETA KARNIK , Mr. S. M. PARANJPE

JUDGMENT

M. B. SHAH, J. :- The petitioners, who are permanent residents of Kolhapur City, have filed this petition as a public interest litigation for directions to the respondents to take immediate measures to eliminate the supply of polluted water to the citizens of Kolhapur as also for implementing water supply scheme for supplying water from Kallammawadi dam to the City of Kolhapur by closed pipeline.

2. It has been pointed out that as per the survey conducted by the United Nations Organisation (U.N.O.), Kolhapur is one of the twelve cities in the world which are getting polluted water for drinking purpose. It has also been contended that as per the survey conducted by the U.N.O., Panchganga river, from where the drinking water is supplied to Kolhapur City, is one of the ten rivers in the world which are having highest polluted water. Due to such polluted water, diseases like gastro-enteritis, jaundice, diarrhoea, dysentery and dombivli fever are on increase and number of deaths on account of such diseases have been reported. It has been further pointed out that the scheme for supply of drinking water to the city of Kolhapur directly from Kallammawadi Dam by closed pipelines (with 1.8 diameter) has been accepted by the State Government, respondent No.1 herein, and if the said scheme is implemented soon, the citizens of Kolhapur will get clean and unpolluted drinking water.

3. When the matter came up for admission on 21st April 1997, the learned Counsel appearing for respondent No.3 made a statement that the Corporation would take immediate steps for testing the water supplied to the residents of Kolhapur City and see that the drinking water, according to the standard laid down by the Maharashtra Pollution Control Board, is supplied. Upon such statement made by the learned Counsel for the Corporation, the Maharashtra Pollution Control Board, respondent No.5, was directed to take samples occasionally and find out whether water supplied by the Corporation is according to the prescribed standard for drinking. So also, respondent No.3 was directed to place the report in this behalf before this Court on or before 5th May 1997.

4. Subsequently, on 7th May, 1997, this Court directed respondent No.5 to take immediate action against the polluting industries referred to in the letter dated 9th April 1997 written by the Air Pollution Control Board to the District Collector, Kolhapur. In the said letter, it was mentioned as under:-

The molasses stored in the pucca tank of the above factory having about 3300 MT of molasses underwent auto combustion on 9th April 1997at 0400 hours in the morning. This resulted into over-flow of molasses into the environment. The factory authorities tried to divert and stop the flow. However, with the water in the nala and in the field the diluted molasses entered into river Bhogawati (Panchganga) upstream of Rahiwade weir and resulted into heavy pollution of water."

Respondent No.5 was further directed to inspect the site near the Chemical factories, distilleries, sugar factories and other institutions around the Kolhapur City and find out whether the said industries and institutions are discharging water in the nala or river after treatment and whether the said industries and institutions are having effluent treatment plant as required under various environment acts because in the Technical Reports on Kolhapur Water Supply Scheme prepared by the Engineers Forum, it was mentioned as under:

"At present, the source of drinking water for Kolhapur City is Panchganga river. As per water survey carried out by UNO regarding pollution of water, the Panchganga river is one of the ten rivers in the world which are highly polluted. This pollution is due to industrialisation, excessive use of fertilizers in agriculture sector, sugar factories and distilleries and increasing urbanisation. The drinking water supply scheme of Kolhapur is utilising this polluted water from river Panchganga, which is also badly affected due to mixing of waste water from Jayanti and Dudhali Nalas on the upstream of pumping stations at Rajaram weir."

5. Thereafter, on 30th June 1997, on the submission made by the learned Counsel appearing on behalf of respondent No.5 that the Board would take appropriate action against the industries which are polluting the water in the periphery of Kolhapur City by discharging untreated water or discharging molasses under the guise of overflow, the matter was adjourned to 14th July 1997.

6. On 29th July 1997, the learned Counsel appearing on behalf of the Kolhapur Municipal Corporation submitted that the project undertaken by the Corporation i.e. repair work, would be completed on or before 30th August 1997. On the said statement made by the learned Counsel for the Corporation, the matter was adjourned to 1st September 1997.

7. When the matter was called out on 22nd September 1997, the learned Counsel appearing on behalf of the Kolhapur Municipal Corporation, respondent No.3, submitted that as per the directions of this Court, the repair work of sewage treatment plant has been completed and the said plant has now started functioning so also 50% of the work for enhancing the capacity of the said plant has been completed and the remaining work is in progress. In order to show as to how the said plant functions, respondent No.3 has produced on record the technical report prepared by the City Engineer.

8. The learned Counsel for respondent No.3 further submitted that apart from the aforesaid measures, efforts are being made to ensure that untreated sewage/sullage water from Jayanti, Dudhali, Juna Dudhwar and CPR Nallas, which are the major nallas, would not be discharged into the river Panchganga. So far as the utilisation of treated effluent on land for irrigation purpose is concerned, it was submitted that at present, 40% of the sewage/sullage water is used for irrigation purpose. In so far as arrangement for diverting the effluent from tanneries into underground drainage is concerned, he submitted that it would require some time and long term plan in this behalf has been adopted by respondent No.3. He also submitted that with the compliance of the repairs work and the functioning of sewage treatment plant coupled with the action for diverting the rest of the sewage/sullage water from major nallas to the sewage treatment plant by ensuring proper filtration and chlorination of water, the city of Kolhapur is now getting potable water.

9. Considering the aforesaid facts, the matter was adjourned for four weeks for having further progress report in the matter by respondents Nos.3 and 5.

10. Respondent No.3 has, on 17th November 1997, filed a report pursuant to direction dated 27th September 1997. A perusal of the said report shows that the same deals with the Kolhapur Water Works and Kolhapur Underground Drainage Works. The first part of the report gives particulars as regards the actual work that is being carried on for the implementation of construction of New Water works at Shingnapur located on river Panchganga pursuant to the administrative approval and technical sanction that has been accorded by the State Government and the Maharashtra Water Supply and Sewerage Board vide Resolution No.WSS/1095/4097/Case No.194/W.S.18/dated 28th August 1996 and Letter No.MWS & SB/CE(P)/Case No.1416/ Desk.4/3564 dated 31 st August 1996 respectively.

11. The second part of the report deals with the Kolhapur Underground Drainage Works and the process of the Sewage Treatment is dealt with therein.

12. The third part of the report dealt with the pollution of river Panchganga on account of Jayanti and Dudhali Nala and the action taken to curb the pollution. The annexures from I to IV pertain to the tests carried out at various spots as also pertain to the actual water supplied to the city of Kolhapur. A perusal of the said annexures further indicate that the water supplied to the city of Kolhapur is potable and the pollution is within permissible limits as prescribed by Indian drinking water standards.

13. The fourth part of the report deals with the stage II of the Augmentation and Improvement to Kolhapur Water Supply Scheme directly from the Kalammawadi Dam as also for improvements to the Kolhapur Underground Drainage scheme Stage II, providing a construction of sewage, sullage and solid waste treatment plant at Kasba Bavda with power generation and providing and constructing sewage, sullage and tannery waste treatment at Hutatma Park with power generation. The report further states that the above schemes have been sanctioned by the High Power Cabinet Committee by Government of Maharashtra on 6th March 1997 and to execute these projects through private sectors participation. The report also contains the action taken for initiating the implementation of the said projects and the method of financing them.

14. The directions which were issued from time to time and the reports that have been filed, consistently show that the city of Kolhapur is being supplied potable water. The third respondent has filed affidavits from time to time wherein the action taken by it from the month of January 1997 to divert the discharge of sewage and sullage through the Dudhali and other Nalas has been set out. The affidavits also disclose that the sewage treatment plant at Kasba Bawada which was non-functional for several years has now been fully repaired and its capacity has been increased. The third respondent has also placed on record voluminous material which shows that serious efforts are being made to not only supply unpolluted water by way of direct pipe line but also simultaneously serious efforts are also being made to improve the underground drainage system and sewage treatment.

15. The fifth respondent had issued directions to the third respondent, inter alia, calling upon the third respondent to take immediate steps as evidenced by the letter dated 6th June 1997 which is at page 133 of the paper book. The main thrust of the said direction was pertaining to operation and maintenance of the existing treatment facility as also to take immediate steps to repair and primary treatment to be commenced within the time specified. By the affidavit of the fourth respondent at page 165 of the paper book, the 4th respondent has in paragraph 12 stated that all the directions issued by the fifth respondent from time to time have been complied with save and except one of the requirement for user of treated affluent entirely for agricultural purpose as according to the fourth respondent, the demand for such user was only 40%. By the said affidavit, it was also brought on record that the sewage treatment plant has become functional. From the material placed on record, it thus appears that the third respondent has successfully tackled the problem by reducing the pollution of water of river Panchganga. In the said affidavit of the fourth respondent, the issue regarding totally eradicating effluent discharge in the river Panchganga has been dealt with and it has been pointed out that as has been also acknowledged by the Ministry of Non Conventional Energy Sources (Union of India) that in the entire country, only 50% of sewage is collected and out of that only about 50% of sewage is subjected to any sort of treatment.

16. From the above narration, the following picture emerges:-

i) That the city of Kolhapur was facing a very grave and serious problem of supply of polluted drinking water which fact has been acknowledged by the third respondent also.

ii) The reasons for the heavy pollution was attributed to discharge of untreated sewage and sullage directly into the river Panchganga primarily through Dudhali and Jayanti Nalas coupled with the breakdown of existing Sewage Treatment Plant.

iii) The action initiated by the third respondent in diverting the flow of the Nalas and subsequent repairs and commissioning of the Sewage Treatment Plant has brought the situation under control and as disclosed by various test reports placed on record, the city of Kolhapur is now being supplied the potable drinking water after treatment.

iv) On the other hand, the problem of supply of potable water from unpolluted sources is also being tackled as disclosed by the material placed on record. Similarly, long term measures for totally eradicating discharge of treatment effluent has also been planned and is under execution.

v) The petition which is by way of public interest litigation is mainly based on the contention that the city of Kolhapur should be supplied water by means of direct pipeline from Kalammawadi Dam and in the interregnum, a project for supply of water through pipe time from the location of Haldi should be undertaken by the third respondent and the proposed project undertaken by the third respondent for construction of water works at the location at Shingnapur should be scrapped. The petitioners have in support of their above contentions dealt with the polluting factors in the city of Kolhapur. As regards the major thrust of the petitioners' contention, it is to be noted that the Shingnapur Project was conceived and accepted on the basis of expert report which was given after examination of both the sites. The proposal was sanctioned by the State Government but, however, was temporarily stayed by the Chief Minister on account of grievances made by an Action Committee formed by the residents of Kolhapur. Subsequently, a Committee was appointed as it is to be found in Government Resolution dated 5th December 1996 which is at page 71. This Committee comprised of various officials as also two members of the Action Committee, the Mayor of Kolhapur and the representative of the Action Committee. The said Committee by its report dated 9th December 1996 approved the project with Panchganga river as a source at Shingnapur by giving reasons. Subsequently, the State Government has also given its sanction to implement Phase II of the Project which includes supply of water to the city of Kolhapur directly from Kalammawadi Dam through private sector participation. The third respondent has given time schedule for the completion of the respective projects undertaken by it.

A) The actual work of augmentation and improvements to Kolhapur Water Supply Scheme Phase I Part I (Shingnapur Source) will be completed by December 1999.

B) The tender procedure on the basis of private sector participation or any other basis for long term water supply project (Kalammawadi Dam as a source) and underground drainage project of Kolhapur, construction of sewage, sullage, tannery waste and solid waste treatment plant will be completed by 30th June 1999.

C) After completion of Tender procedure of long term water supply and drainage project, tentative execution and completion period of the said work will be as under:-

(i) Improvements and augmentation to Kolhapur Water Supply Scheme Stage II (Kalammawadi Direct Pipe Line) - 6 to 7 years.

(ii) Improvements to Kolhapur underground drainage Scheme Stage II - 5 to 6 years.

(iii) Construction of sewage, sullage and solid waste, treatment plant at Kasaba Bavda - 3 to 4 years.

(iv) Construction of tannery waste, sullage and sewage treatment plant at Hutatma Park - 2 1/2 years to 3 years.

17. The net result that can be ascertained from the above discussion is that two major concerns of the petitioners namely:

(i) Direct supply of water by pipe line from Kalammawadi Dam, and

(ii) Assured supply of potable drinking water to the city of Kolhapur have been satisfied.

As regard the third grievance regarding location of the new water works at Haldi instead of Shingnapur is concerned, the same cannot be considered in view of the fact that the same has been initiated on experts report which has also been re-examined and confirmed by the Committee appointed by the State Government.

18. We further note that it was totally unjustified on the part of the Municipal Corporation to supply polluted drinking water. It was also unjustified on the part of the Maharashtra Pollution Control Board not to take appropriate action against those industries which were discharging untreated effluents into the river and of not taking immediate action against the particular Karkhana from which there was over-flow of molasses. As per the statutory provisions, it is mandatory duty of the Municipal Corporation or the Municipal Council to supply unpolluted water for the use of the residents.

19. Section 63 of the Bombay Provincial Municipal Corporation Act, 1949 (B.P.M.C. Act), it is the primary duty of the Corporation to supply unpolluted water for the use of the residents. Sections 310, 311 and 312 of the B.P.M.C. Act are also required to be implemented, so that drinking water is not polluted.

20. Section 63 of the B.P.M.C. Act lays down an obligatory duty of the Corporation. Section 63, inter alia, provides that it shall be incumbent on the Corporation to make reasonable and adequate provision -

"(20) for the management and maintenance of all municipal water works and the construction or acquisition of new works necessary for a sufficient supply of water for public and private purposes;

(21) preventing and checking the spread of dangerous diseases;"

As such, the elementary duty is forgotten by the Corporation and polluted water is supplied to the residents of the Corporation which spreads water-born diseases, including jaundice and diarrhoea.

21. Section 66 provides that the Corporation may, in its discretion, provide from time to time for establishing and maintaining a farm or factory for the disposal of sewage. In clear violation of this, untreated sewage is disposed of in rivers.

22. Similarly, under the Water (Prevention and Control of Pollution) Act, 1974, the Maharashtra Pollution Control Board is required to implement with all vigour Sections 24(1) and 25(1) of the Water Act, which provides as under:-

"24. Prohibition on use of stream or well for disposal of polluting matter, etc. - (1) Subject to the provisions of this section, -

(a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any stream or well or sewer or on land; or

(b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other cause or of its consequences."

"25. Restrictions on new outlets and new discharges - (1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, -

(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or an extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or

(b) bring into use any new or altered outlets for the discharge of sewage; or

(c) begin to make any new discharge of sewage;

Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent, within the said period of three months; till the disposal of such application."

23. In the circumstances, the petition is disposed of with the following directions:-

i) The third respondent shall periodically monitor the level of pollution of the water of river Panchganga at the three sources of confluence and also at the discharge point of the treated effluents and shall ensure supply of potable water to the city of Kolhapur. The third respondent shall, every two months, publish in the local newspaper the reports of the test carried out.

ii) The fifth respondent, Maharashtra Pollution Control Board, would keep a strict vigilance on the activities of the industries discharging effluents in rivers and see that standards prescribed under the various enactments, including the Water (Prevention and Control of Pollution)Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, are maintained.

The fifth respondent should also maintain a strict vigil on the activities of the following industries, so that untreated effluents are not discharged in River Panchganga:

(1) Rajaram Sahakari Sakhar Karkhana Ltd., Kasba Bawda.

(2) Datta Sahakari Sakhar Karkhana Ltd., Asurle-Purle.

(3) Kumbhi-Kasari Sahakari Sakhar Karkhana Ltd., Kuditre.

(4) Bhogawati Sahakari Sakhar Karkhana Ltd., Shahunagar-Parite.

(5) United Distilleries, C/o.Bhagawati Sahakari Sakhar Karkhana Ltd., Shahunagar-Parite.

(6) Vhatkar Industries, Jawahar Nagar.

(7) Tanning Industries (Tanneries) situated at Jawaharnagar, Subhashnagar and Udyamnagar.

(8) C.R. Hospital.

(9) Fertilizer Industry, Yawluj.

Periodical visits should be made by the higher officer of the fifth respondent so that, if there is any connivance on the part of the concerned persons, it could be detected and immediate action taken. Report of such inspection should be given to the Committee of Experts constituted as per the directions given below:-

Immediate action should be taken by respondents Nos.3 and 5 jointly to see that untreated sewage is not directly discharged into river Panchganga from sources, including the Dudhali and Jayanti Nallas.

(iii) The learned Counsel for the fifth respondent has agreed that within four weeks from today, the fifth respondents would withdraw the prosecution launched against the third respondent and its officers under the provisions of the Water (Prevention and Control of Pollution) Act, 1974, failing which the said proceedings pending in Court shall stand quashed and set aside.

(iv) The second and the fourth respondents shall accelerate the progress of on-going water supply project Phase I Part I (Shingnapur Source) and complete and commission the said project on or before 31st December 1999. Liberty to the second and fourth respondents to apply in case of difficulties.

(v) The third respondent is directed to constitute a Committee of experts consisting three members (who may or may not be Municipal Councillors) in the field of water technology so as to monitor supply of unpolluted potable water to the city of Kolhapur and to find out ways and means so that there may not be any discharge of drain water into the Panchganga river.

24. With the above directions, the Writ Petition stands disposed of.

25. It would be open to the petitioners or the Committee appointed by this Court to approach this Court by taking out Notice of Motion.

26. We also note that after the filing of this Petition, Kolhapur Municipal Corporation has taken immediate remedial steps and has started supplying potable water to the residents. We hope that the Corporation would keep constant vigil in association with the members of the aforesaid Committee to see that unpolluted water is supplied.

Ordered accordingly