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Judgment
Venkataswami, J.—This writ petition, which is a Public Interest one, is preferred by the Petitioner, a Society registered under the Tamil
Nadu Societies Registration Act, 1975 having its object inter alia to promote the causes of environment and conservation.
There life prayed for in the writ petition is, to issue a writ of mandamus directing the Respondents 1 to 5 to take action in law and prevent the
6th Respondent from using and occupying or permitting the use and occupation or continuance thereof of its holiday resort complex in Kodaikanal
and to take such further or other action as may be necessary to prevent and abuse of environmental pollution by the 6th Respondent of the
Kodaikanal Lake and marsh including removal of the road constructed by the 6th Respondent across the marsh.
I do not propose to set out the facts in detail as I have already done twice while passing interim orders in this matter.
Though the first Respondent, at the initial stage, filed a useful affidavit to help to decide the issue raised in this writ petition, ultimately instructed
their counsel to state as follows:
From the report of the Expert Committee on Sterling Holiday Resorts Ltd. and Kodaikanal Lake; constituted under the directions of the High
Court orders of 31.7.90 in W.P. No. 4257/88, it is noted that the matter is related to prescription of norms for the discharage of treated sewage
into the lake. Based on the expert opinion of the members, the Committee has recommended specific standards for several parameters such as,
pH, suspended Solids, BOD, Nitrogen and Phosphorus (P.25 of the report) and also suggested modifications to existing and new ST Ps of the
projects (P.25 - 29 of the report).
Considering the fact that water is a State subject, and the prescription of the standards and norms for discharge of effluents to surface water-
bodies is under the domain of the Water (Prevention & Control of Pollution) Act, 1974, the State Pollution Control Board is the final authority for
prescription of such norms under the statute. In addition, it is also noted that the Member-Secretary of the State Pollution Control Board was also
the Chairman of the Expert Committee constituted by the High Court.
Considering all the above facts, it may be stated that in so far as the prescription of the standards for discharge of treated effluent into the lake is
concerned, the opinion and view of the State Pollution Control Board may be deemed as final.
In the light of the averments and counter averments in the affidavits and counter-affidavits, I had, by my Order 17.4.1989, directed the State
Government to constitute an Expert Committee to go into the matter and submit a Report. Though an Expert Committee was constituted and
Report was submitted, it was later on found that the constitution of the Committee was not in order, and therefore, by another order 31.7.1990, I
have directed the State Government to constitute an Expert Committee and to forward a Report. The duly constituted Second Committee has
submitted its Report on 15.3.1991. In fairness to the Committee, it must be stated that the Second Committee has gone into the matter in depth
and has given a very detailed Report partly aggrieved by the observations and findings of the Committee, the 6th Respondent has filed an affidavit
on 7.8.1991 objecting to certain portions of the Report. The Petitioner has also filed an affidavit highlighting the observations of the Committee
which support the case put forward by it. Mr. S. Govind Swaminathan, learned Senior Counsel appearing for the Petitioner, placing heavy reliance
on the Report of the Second Expert Committee pressed for making the rule nisi absolute.
Mr. M.R. Narayanaswami, learned Senior Counsel appearing for the 6th Respondent, by pointing out the passages in the Expert Committee''s
Report which are against the 6th Respondent, submitted that the Committee has exceeded its jurisdiction in making those observations and
findings, and the Committee was not justified in prescribing standards for prevention of pollution higher than the statutory ones. He also submitted
that the observations which are beyond the scope of the Terms of Reference should be ignored by this Court. He also submitted that in the light of
the guidelines prescribed by the Supreme Court for entertaining Public Interest Litigation, this writ petition must not be treated as a Public Interest
Litigation, but must be treated as one directed against the 6th Respondent with some ulterior motive. Admittedly there are several other similar
Holiday Resorts/institutions causing more pollution than the 6th Respondent. However, the writ Petitioner has chosen the 6th Respondent alone as
its target. In support of his submissions, he cited the following authorities:
Ramsharan Autyanuprasi and another Vs. Union of India and others, , Chhetriya Pardushan Mukti Sangharsh Samiti Vs. State of U.P. and others,
, Dahanu Taluka Environment Protection Group and Another Vs. Bombay Suburban Electricity Supply Company Ltd. and Others, , R.R. Dalavoy
v. The Indian Overseas Bank reported in AIR 1991 Mad 61 and Bombay Environment Action Group and Another Vs. State of Maharashtra and
Others, .
Before going into the findings of the Second Expert Committee and the objections raised on certain aspects of the findings of the Expert
Committee by the 6th Respondent, it will be useful to bear in mind the principles laid down by the Supreme Court in the cases cited by the
Learned Counsel for the 6th Respondent.
In Ramsharan Autyanuprasi and another Vs. Union of India and others, , the Supreme Court has observed as follows:
Public interest litigation is an instrument for the administration of justice to be used properly in proper cases. Public interest litigation does not mean
settling disputes between individual parties. this Court in Bandhw Mukti Morcha v. Union of India (1984) Justice Bhagwati, as the learned Chief
Justice then was, observed that public interest litigation is not the nature of adversely litigation but it is challenge and an opportunity to the
Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them
social, economic and political justice which is the signature tune of our Constitution. He reiterated that the court entertains public interest litigation,
not in cavilling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to
ensure observance of social and economic rescue programmes, Legislative as well as executive, framed for the benefit of the have-nots and the
handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the Executive.
After noticing earlier decisions on the same issue, the learned judges further observed thus:
It is only when Courts are apprised of gross violation of fundamental rights by a group of class action or when basic human rights are invaded or
when there are complaints of such acts or shock the judicial conscience that the the Courts, especially this Court, should leave aside procedural
shackles and bear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the
underdog and the neglected.
In Chhetriya Pardushan Mukti Sangharsh Samiti Vs. State of U.P. and others, , it was argued before the Supreme Court as follows:
There is a statute for controlling pollution. It is well settled that if there is a statute prescribing a judicial procedure governing a particular case, the
court must follow such procedure. It is not open to the court to bypass the statute and evolve a different procedure at variance with it.
On such argument, the Supreme Court held as follows:
Having considered the facts, circumstances, nature of the allegations and the long history of enmity and animosity, we are of the opinion that prima
facie the provisions of the relevant Act, namely, the Air Pollution Control Act have been compiled with and there is no conduct which is
attributable to Respondent 3 herein leading to pollution of air or ecological imbalances calling for interference by this Court.
While commenting on the public interest litigation, the Supreme Court further held thus:
While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this under Article 32 should not be
misused or permitted to be misused creating a bottleneck in the superior court preventing other genuine violation of fundamental rights being
considered by this Court, That could be an act or a conduct which will defeast the very purpose of preservation of fundamental rights.
In (1991) 2 S.C.C. 569 (supra), the Supreme Court while considering a case of environmental pollution, observed as follows:
It is sufficient to observe that it is primarily for the Government concerned to consider the importance of public projects for the betterment of the
conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation
and maintenance of purity of the atmosphere and water free purity of the atmosphere and water free from pollution on the other in the light of
various factual, technical and other aspects that may be brought to its notice by various factual, technical and other aspects that may be brought to
its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Court''s
role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored nor overlooked any
material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decision.
In R.R. Delavai Vs. The Indian Overseas Bank and Others, , the passages relied on by the learned Senior Counsel read as follows:
As laid down by the Supreme Court, this Court has to weight on the one hand the public interest that would be served by issuing a writ as prayed
for and on the other the public interest that will be served by refusing to issue the same. In my opinion, in view of the express admission made by
the Petitioner that it is possible to recover the amounts the persons who had taken loans as they are not in affluent circumstances, the public interest
in refusing to grant the relief will be served better than the public interest in granting the direction.
In fact, the substantial part of the second prayer is to formulate the corrective guidelines the may be essential in preserving the national wealth and it
is only for that purpose a request is made to this Court to direct the Respondents to place before this Court the full Inspection Report of Shri A.
Namasivayam, I am of the view that it is not possible for this Court to formulate guidelines as prayed for by the Petitioner as it would tantamount to
making jufidical competence of this Court. That is essentially a Legislative exercise and one on which, in my opinion, I should hestitate long before
embarking, particularly when it is brought to the notice of the Court that suitable guidelines have been framed by the second Respondent, who is
not open to this Court to tranch upon the powers of the second Respondent and formulate the guidelines as prayed for the Petitioner. The validity
of conferment of such powers on Reserve Bank of India by the provision of Banking Companies Act, 1949, was upheld by the Supreme Court in
Joseph Kuruvilla Vellukunnel Vs. The Reserve Bank of India and Others, .
In Bombay Environment Action Group and Another Vs. State of Maharashtra and Others, , a Division of Bench of the Bombay High Court
considered the limitations of the Courts while dealing with issue relating to environmental pollution and observed as follows:
Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of a
developing country. If one finds, as in this case, that all possible environmental safeguards have been taken, the check and control by way of
judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the invironmentalists, the State
and the Central authorities and expert-bodies is undertaken and effected and its and result judicially considered and reviewed, the matter thereafter
should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end
and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it
may as well cease to be in public interest any further.
In bearing in mind the principles laid down by the Supreme Court, this Court and the Bombay High Court as extracted above, let the consider
the relied prayed for in this writ petition.
The Members of the Second Expert Committee, in their anxiety, if not over anxiety, to save the Kodaikanal lake from the cluteches of
pollution, have observed as follows:
...The lake is a priceless and unique feature of the hill station. It is the main attraction of Kodaikanal. Apart from the tourist and recreational value
of the lake, the overflow from the lake provides drinking water supply to the pilgrim town of Palani and the lake itself is a source of emergency
water supply to residents and tourtist in Kodaikanal. According to all indications availabke, eutroplication of the lake has already set in on account
of the increase in the rate of pollution particularly in the last decade or so. Urgent and effective steps are required to check and reverse the
pollution of the lake and of the downstream water into which the overflow of the lake is discharged. Unless such steps are taken in a timely and
comprehensive manner, the lake will swiftly and surely ''die'' from progressive algal growth. This has happened to the Dal Lake and the Nainital
lake. The Kodaikanal lake must be saved from a similar fate The Committee would therefore urge the Government to expeditiously consider and
approve its recommendations as a package and initiate steps for their implementation in the shortest possible time frame.
The condition of the lake is tersely described by the Committee, justifying the filling of this writ petition. Might be, the Petitioner has overstated its
case by projecting a very bad picture about the 6th Respondent, again, it seems to be only in its over anxiety in narrating the facts, the writ petition
is certainly not a frivolous one, or one filed with an intention to settle private disputes between the Petitioner and the 6th Respondent. The purpose
would have been better served if the Petitioner had filed the writ petition against all similar institutions (as pointed out by the Committee) who are
responsible for the pollution of the lake. But it must be noted that after the Report of the Second Expert Committee, the Petitioner filed applications
to implead the institutions which cause pollution to the lake, but I dismissed the petitions for reasons stated in the order passed thereson. Therefore,
the Petitioner cannot be blamed for moving this Court for the relief sought by wav of public interest litigation. I have to point out that the 6th
Respondent, while commenting upon the Report of the Second Expert Committee, has stated that the Committee has exceeded its jurisdiction in
recommending to the Government to initiate steps in the lines suggested by it at the earliest possible time. If it is a lis between private parties, that
comment would be justified. But this writ petition, being one filed as a public interest litigation and having regard to the nature of the relief prayed
for, I do not consider that the Members of the Expert Committee had gone wrong in urging the Government to come forward to initiate steps for
savins the Kodaikanal Lake. As pointed out earlier, the Committee has not failed to appreciate the steps taken by the Respondent to prevent
pollution of the Lake on its part. At the same time the Committee has also suggested certain foolproof measures to be adopted not only by the 6th
Respondent but also by other institutions which are causing pollution lake. It is true, as pointed out by the 6th Respondent in the counter affidavit
filed objecting certain observations and findings of the Second Expert Committee that certain measures and standards suggested by the Second
Expert Committee are beyond what are prescribed by the concerned statutory authorities. On that, as held by the Supreme Court and Bombay
High Court, I propose to give directions to the Government to take notice of the suggestions and take appropriate measures in consultation with
Experts to prescribe necessary standards so that the measures taken by the statutory authorities are foolproof to prevent pollution of the lake. The
Committee, after elaborately dealing with the factors that contribute to the pollution of the Kodaikanal lake in Chapter II issues and
recommendations relating to the 6th Respondent in Chapter in, the properties and establishments (other than the 6th Respondent) with potential to
pollute the quality of water in the lake in Chapter IV, the common sewage treatment plant for Establishments around and downstream of the lake in
Chapter V. about the pollution caused by informal activities in Chapter VI, and after giving general suggestions for protecting and reviving the lake
in Chapter VII, summarised its conclusions and recommendations in Chapter VIII. It is worthwhile to have the last Chapter, namely, Chapter VIII
which gives the summary of conclusions and recommendations, as part of this Order. The said Chapter VIII reads as follows:
The two terms of reference given to the Committee are the following:
(i). To examine and assess the environmental implications of the Holiday Resorts Projects put up by M/s. Sterling Holiday Resorts (India) Ltd.
and suggest necessary safeguards and modifications required.
(ii) To go into the question of pollution of the Kodaikanal lake caused due to the construction of buildings near the lake and running of several other
establishments in and around the lake.
Following the introductory chapter, we ""have described the Kodaikanal Lake and its present status in Chapter II of the Report. The lake is
priceless and unique feature of the hill station. It is the main attraction of Kodaikanal. Apart from the tourist and recreational value of the lake the
overflow from the lake provides drinking water supply to the pilgrim town of Palani and the lake itself is a source of emergency water supply to
residents and tourists in Kodaikanal. According to all indications available, europhication of the lake has already set in on account of the increase in
the rate of pollution particularly in the last decade or so. Urgent and effective steps are required to check and reverse the pollution of the lake and
of the downstream waters into which the overflow of the lake is discharged. Unless such steps are taken in a timely and comprehensive manner,
the lake swiftly and surely, ''die'' from progressive algal growth. This has happended to the Dal Lake and the Nainital Lake. The Kodaikanal lake
must be saved from a similar fate. The Committee would therefore urge the Government to expeditiously consider and approve its
recommendations as package and initiate steps for their implead package and initiate steps for their implementation in the shortest possible time
frame.
In formulating its recommendations the Committee has taken an integrated approach to the problems of Kodaikanal lake and its surroundings
and to the water downsream of the lake. These problems arise from a variety of factors:
(i) Activities arising from and related to the heavy influx of excursionists and tourists. Traditionally, tourists were largely confined to the ''seasons''
during mid April to mid June and Mid September to mid October and were in large measure owners or tenants of private residential properties in
Kodaikanal. Elitist tourism of this kind has been ""democratised"" in recent years with the influx of persons, often of a voungerage group, who come
up to Kodaikanal for a single day or a week-end or for relatively short stays. The come throughout the year not only from Tamil Nadu and Kerala,
which is closely to Kodaikanaal, but also from Western India and North India. This influx has resulted in a large increase to hawkers, vendors,
small shops, restaurants, hotels and lodges of various kinds increased boating activity and a sizable increase to vehicular traffic. Both fixed
establishments-hotels, restaurants, residential schools, etc. and informal activities - howking, vending, boating, vehicles, pedestrain tourists - are
sources of pollution.
(ii) Kodaikanal has also become a favoured location for residential schools. The Kodaikanal International Schools has been in existence for long
time. In recent years, the Bharatiya Vidya Bhavan. Brinda van Public and Zion Matericulation residential schools have come up. They have a
sizeable occupancy which extends to most of the years.
(iii) On account of a general growth in affluence, disturbed conditions in parts of North India, and crowding in other premier hill stations in Tamil
Nadu such as Udagamandalam and Coonoor, there has been a spurt in residential construction in Kodaikanal in the forms of institutional guest
house, individual houses and high density complexes. Some of these constructions have an actual or potential impact on the siltation and pollution
of the lake.
(iv) It is only recently that the 200 metre limit is being enforced for construction on the lake boundary. A number of the old and large
establishments (e.g. Kodai International School, M/s. Carlton Hotel) as well as a number of the old residential houses a re situated very close to
the lake. Only two of the large establishments around the lake viz. M/s. Carlton Hotel and M/s Sterling Holiday Resorts have seweage treatment
facilities. Along the other properties and establishments around the lake, only some have septic tank facilities, which do not conform to the
specifications and standards, in many cases, maintenance and periodical removal of waste matter are also not satisfactory. This is also the case
with the numerous establishments which have come up in the vicinity of the lake in the bazzer area and abutting the downstream on the ghat road.
Only one of such establishments viz. Kodai international Hotel has some kind of a sewage tratment plant.
(v) The Bombay Shola zone-bounded by the Bombay Shola, Levenge and observatory roads and slopping towards the lake with the marsh and
the Gymkhana ground being closest the point of view of avoiding siltation and deforestation as it constitutes the lower catchment area of the lake.
The siltation that has already occurred to the lake over the years needs to be cleared up and systematic desilting arrangements are also necessary
for the future.
The recommendation in the report are addressed to all these aspects:
In Chapter III we have made specific recommendations in regard to M/s. Sterling Holiday Resorts as required under the first of our terms of
reference. In summary they are as follows:
The discharge standards specified by the Tamil Nadu Pollution Control Board in their proceedings No. TI(2)/TNPC
Bd/19892/F.309/87/W/AN, dated 8.6.88 maybe amplified to include specific standards of 2.35 mg/1 of Nitrogen and 0.15 mg/1 of Phosphorous
in the treated sewage.
The old Sewage Treatment Plant which is still functioning would require certain modifications. The news sewage treatment plant would also
require certain other modifications. These are identified in Chapter III. The choice of continuing the Old Sewage Treatment Plant with the
modifications now suggested or to opt for the new sewage treatment plant with the modifications now suggested is to be decided between the
TNPCB and M/s. Sterling Holiday Resorts. In any case, the treated sewage should meet the additional standards for Nitrogen and phosphorous
as now specified.
The treated sewage from the STP as modified, should be recycled through use in the toilet flushing systems to the extent required for such
purpose and the balance alone used for gardening purposes.
Present arrangements for solid waste and storn water disposal may be continued.
Tamper-proof hour-run meters should be installed for all the electrical equipments in the STP to ensure continuous operations and should be
monitored by TNPCS.
Samples of the treated sewage should be monitored according to the procedure indicated in chapter II.
These recommendations should be implemented within a period of 3 months from the date of a formal notice to be issued by the TNPCB. M/s.
Sterling Holiday Resorts Ltd. must be linked to the proposed common Sewer Project and the treated sewage alone should be let into the common
sewer.
Permission to expand
We feel that once the recommendations and safeguards summarised above are fully implemented and the functioning of the STP of M/s. Sterling
Holiday Resorts on this basis is monitored for a reasonable length of time, the expansion of the Resort to the strength originally planned can be
examined. An appropriate decision in this regard may be taken at that time by the Government having regard to pollution control and all other
relevant factors includings Master plan Regulations, etc.
Apart from M/s. Sterling Holiday Resorts, there are large number of other establishments which are also sources of pollution to the lake. This has
been discussed in Chapter IV of the report and suitable recommendations have been made therein.
Chapter V. on the Common Sewage Treatment Plant (STP) is the centre-piece of our a limited common sewer for Kodaikanal linking the
establishments around and downsteam of the lake. The commissioning of the CSTP will ensure that raw or treated sewage from 89 establishments
sicharged therefrom after proper treatment into the valley outside the Kodaikanal bowl. Only the CSTP will be a lasting and satisfactory answer to
the valley outside the Kodaikanal bowl. Only the CSTP will be a lasting and satisfactory answer to the pollution problem in Kodaikanal. Given the
spread and terrain of institutional, commercial and residential constructions in Kodaikanal, Common sewerge arrangements for the entire town,
which is ideally desireable, will be prohibitively expensive and will have to be ruled out. However a limited common sewerage, as envisaged in the
CSTP, linking the properties and establishments that are possible pollutions to the lake and to its overflow stream, which provides water supply to
the pilgrim town of palai, is an immediate necessity. We attach the highest importance to this proposal. We would urge the Government to take up
the detailed investigation of this scheme on an urgent basis and to ensure that it is fully implemented within one year.
Chapter VI lists several measures to deal with informal pollution. In this matter engineering solutions are not possible. It is all the more necessary
that necessary regulatory and administrative measures are enforced to control informal pollution. The influence of short duration excurssionists and
tourists in recent years indicates that large number of our people, particularly the youth are beginning to enjoy the beauties of this hill resort. This is
to be welcomed At the same time, it underlines the necessity and importance of adequate arrangements to prevent the pollution that is being caused
by short-duration visitors to Kodaikanal, especially since they themselves cannot be expected to have a long-terms involvement in preserving the
cleanliness of the lake and its environs.
In Chapter VII we have recommended a number of measures for protecting the reviving of the lake such as regulation of buildings, green cover,
fish culture, low-level discharge from the lake, desilting of the lake and systematic monitoring of the pollution status of the lake for which we have
formulated a scheme. These recommendations complement the ones we have made in the earlier chapter for the control of pollution from
establishments and informal activities. They are equally necessary and should be given the same importance.
Inasmuch as the Committee has taken an integrated approach to its terms of reference, the implementation of its recommendations must also be
closely coordinated and monitored. For this purpose, we have recommended a compact High level Committee under the Chairmanship of the
Secretary to Government. Environment and Forests Department. The other members are to include secretaries in the Departments of Municipal
Administration and Water Supply and Finance, Chairman TNPCB, the Collector of Dindigul Quaid-E-Milleth District and a non-official
representative from the Voluntary agencies working in Kodaikanal. We are confident that such a Committee, given the necessary political will,
should be able not only to effectively pursue the implementation of the recommendations but also to improve upon them in order to preserve,
protect and promote this premier hill station of Tamil Nadu. This will be possible only if Kodaikanal lake, which is the heart of this hill station and
its environs is kept free of pollution. Fortunately, it is still not too late to save the Kodaikanal lake but if lake but if it is to be saved action on the
lines we have indicated in this report should not be postponed.
No doubt, the 6th Respondent has filed objections to the Report filed by the Second Expert Committee by stating that it was not given full and
adequate opportunity before the Committee arrived at certain conclusions which are against it. As pointed out by the Second Expert Committee,
there are number of factors which contribute to the pollution of the lake and its present condition which should be taken into account by the State
Government seriously and also immediately. Therefore, I consider that it is not necessary to issue writ as prayed for against the sixth Respondent
alone who has taken some measures already and also propose to take certain measures in order to prevent the pollution caused to the lake on its
part. On the other hand, in my opinion, ends of justice would be met by giving appropriate directions to the State Government having regard to the
fact that the first Respondent has taken a stand that it is for the State Government to take appropriate steps.
I direct the Respondents 2 to 4 to take note of the Report of the Second Expert Committee, and, if necessary, appoint a High-level Committee
consisting of Experts, to go into the report in depth and take appropriate measures on the lines suggested, by the members of the Second Expert
Committee, to save the priceless and unique feature of the hill station, namely, the Kodaikanal lake. Respondents 2 to 4 are further directed to
send a report to this Court within six months from the date of receipt of this Order, about the measures taken by them pursuant to this Order.
Before parting with this Order, I would like to place on record my appreciation of the Members of the Expert Committee for the services
rendered by them and for bringing out the Report inviting the attention of the Government to the immediate necessity of taking steps to save the
Kodaikanaal lake.
The writ petition is disposed of accordingly. No costs.