BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE M.A.No.04/2015 APPEAL NO.37 OF 2014 CORAM
:
HON’BLE SHRI JUSTICE V.R. KINGAONKAR (JUDICIAL MEMBER) HON’BLE DR. AJAY A.DESHPANDE (EXPERT MEMBER)
B E T W E E N:
M/S. TECHNO ENGINEERING & RUBBER INDUSTRIES Through its Proprietor Shri. Rajkumar S/o Kisanlal Chokhani, having its address at Plot No.E-14,E-15, MIDC area, Hingna Road Nagpur, Maharashtra.
APPELLANT AND
1. MAHARASHTRA POLLUTION CONTROL BOARD, Through its Chairman, having the address At Kalpataru Point, 2nd and 4th Floor, opposite Cine Planat Cinema, Near Sion, Circule, Mumbai-400022. Page 1 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
2. THE REGIONAL OFFICER, Maharashtra Pollution Control Board, having address at Udyog Bhavan, Civil Lines, Nagpur. . ………RESPONDENTS
Counsel for Applicant(s): Mr. Mr.Tushar Mandlekar for the Applicant.
Counsel for Respondent(s): Mr Saurabh Kulkarni Advocate Respondent Nos.1,2.
Date : January 13th, 2015
ORAL JUDGMENT
1.
By filing this Appeal, the Appellant has challenged
the impugned order dated 18th October, 2014, issued by the Maharashtra Pollution Control Board (MPCB), directing him to close down the industrial unit, under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 and under Section 33A of the Water Air (Prevention and Control of Pollution) Act, 1974. There is no dispute about the fact that the Appellant runs a Page 2 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
small industrial unit, dealing with casting activities of manufacturing certain parts required for manufacture of pumps. The Appellant has also filed Misc Application No.4 of 2015, assailing the refusal of consent order issued by MPCB dated 13.10.2014, claiming that he has received the same only on 4.12.2014. There is also no dispute about the fact that the Appellant is rather a Small Scale Industry, with investment about Rs. 10 lakh as initial capital amount for establishment of the unit. The consent to operate to Appellant’s unit was granted on 29th December, 1995, for period of one year by the MPCB, under the provisions of the Water Act. The Air Act came into force subsequently and therefore at the relevant time there was no question of seeking consent under the Air Act. The Appellant could not run unit due to certain financial problems. The Appellant was unable to ask for continuation of the consent to operate, after expiry of initial period of one year, is undisputed fact, and he also does not deny it, because subsequently, he paid certain amount as required by the MPCB, after his Application for renewal of consent. 2.
It appears that the Appellant filed Application
with MPCB, dated August 19th, 2013, seeking renewal of Page 3 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
consent to operate the unit. The MPCB carried out visit to the unit on 30.11.2013, in order to verify status. The MPCB noted that industry was having cupola of furnace with capacity of 1 TPH and coal was used as fuel. It was also noticed that the industrial unit was engaged in engineering activity only. It was informed that the industry would start casting activity after some days. The MPCB thereafter directed the Appellant to pay additional fees of Rs.25,000/- as early as possible within three (3) days. By communication dated December 3rd, 2013, the Appellant paid that amount to the MPCB vide D.D. No.800771 dated 3.3.2013. Needless to say, he complied the directions. 3.
What
appears
from
the
record
is
that
subsequently the MPCB carried out another visit on 18.9.2014, at the site of industrial unit of the Appellant. The MPCB officer’s noted that unit of the foundry and mechanical activity was in operation. Cupola unit was not in operation. It was found that Cupola is operated only as per the order. Cupola manufacturing unit was installed in 1994. It was also reported that the unit had not applied for renewal, as it was not regular operation and was declared as ‘sick unit’. The house-keeping Page 4 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
activity was found to be satisfactory. This visit report does not show any record or observation regarding any kind of air pollution or water pollution caused by the industrial unit at the relevant time, due to industrial activity, which was in operation i.e. the foundry. Obviously, may be because the other unit was in operation. 4.
The MPCB gave Notice dated 20.9.2014, to the
Appellant and called upon him to explain as to why grant of consent should not be refused under the provisions of the Water Act and the Air Act, and the Hazardous Waste (M &H) (Amended) Rules,2000. It appears that the Appellant gave reply to the said Notice on 30th September, 2014, which was received by MPCB on October 4th, 2014. The orders impugned are the fallout of the above events, which have been narrated in nutshell. 5.
We have heard learned Advocates for the parties.
We have carefully perused the record of the matter. We have also considered the fact that the Appellant never applied under the Air Act, may be because the unit was not an industry, which could have emitted any stack Page 5 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
emission. He also did not apply to the Authorities under the Hazardous Waste (M & H) Rules, 2000, because it is a small-scale unit, dealing with casting activity and required tools, needed to be used in the coal mining. It is nobody’s case that hazardous waste is generated from the said unit. 6.
The question which arises to be addressed in the
present Appeal is whether the impugned orders stand test of legal propriety and correctness, in view of the provisions of the Water (Prevention and Control of Pollution ) Act, 1974 and under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981. 7.
Perusal of the impugned orders reveal that the
orders are passed on the ground that renewal of the consent lapsed on 31.10.1996 and therefore, the unit is required to be closed. This is ground which is stated in the refusal and closure orders. Second ground quoted in the impugned orders is that the Appellant did not provide adequate air pollution control system and did not pay consent fees towards renewal of the Application and also, did not submit self-monitored analysis report. Third ground stated in the impugned order is that MPCB Page 6 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
has
issued
SCN
for
refusal
of
consent,
vide
communication dated 20th September, 2014, but the Appellant failed to reply the same. The next ground stated in the impugned order is that he violated the provisions of the Water Act and the Air Act. Last ground stated in the impugned order is that his Application for consent to operate has been refused by the MPCB, under Section 27 of the Water Act and the Air Act. One more ground which is stated is that the Appellant’s unit is not satisfying RRZ policy, as it is located at the distance of 1 km in “A-II zone of Nag-river” which is notified river. 8.
Before considering the grounds stated in the
impugned orders, it is important to note that the Appellant was not called to give any explanation and never given opportunity of hearing in the context of grounds stated in the closure order, impugned in this Appeal. The impugned orders refer to the Application of the Appellant for consent to operate for renewal filed by him on 20th August, 2013, SCN for refusal is issued vide dated
20.9.2014
and
the
MPCB/APDE/IB-1-refusal/ 13.10.2014.
These
are
Board’s
letter
B-4174/174,
three
(3)
No. dated
communications
referred in the impugned closure order. We do not found Page 7 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
any
place
in
the
impugned
order
as
regards
consideration of reply submitted by the Appellant to the Notice given to him. The impugned order does not speak about non-compliance made by the Appellant, in the context of excess emissions of ambient air beyond permissible limits, nor it reflects anything about adverse impact on the quality of water as a result of industrial activity the unit run by the Appellant. Neither, the communication mention what air pollution control systems are required to be provided by the Appellant and what is the deficiency in air pollution control system at Appellant’s
industrial
unit.
In
other
words,
the
Appellant’s industrial activity is not shown to be polluting industry, prima facie, so as to attract any provisions of the Air Act or the Water Act, to order closure thereof. Thus, material ground for closure is that there was no further consent obtained by the Appellant after 3110.1996. Thus, expiry of the date of consent is the main ground on which the impugned order is passed. Second ground for the impugned order is that the unit does not satisfy RRZ policy. The third ground is that for unit the MPCB has issued SCN refusal of
Page 8 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
consent vide letter dated 20th September, 2014, of which the Appellant had failed to reply. 9.
We shall now deal with aforesaid grounds stated
in the impugned order. First the visit report dated 18 th September, 2014, itself shows that the unit of Appellant was declared as ‘sick unit’. Obviously, the Appellant’s unit was asking for financial support from the Govt. or other Agencies, under the fiscal Laws, as provided under various schemes, like amnesty scheme etc. True it is, that Show-cause Notice was issued by the MPCB to the Appellant on 20th September, 2014, as stated in the impugned order at Sr. No.2, but it is untrue that the same was not replied at all by the Appellant. The record shows that the Appellant gave reply on September 30th, 2014 to the said Show-cause Notice. He explained the circumstances under which there was non-compliance. He explained that the Govt. department gave financial help, but it was inadequate. He explained that he would do needful within one month. Thus, the statement in the closure order that SCN dated 20th September, 2014, remained unanswered, is untrue and could not be a ground to direct closure of the unit. Secondly, the Appellant was, no doubt, defaulter in the sense that he Page 9 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
had not applied after expiry of first year of consent, but we cannot overlook the fact that the MPCB accepted the amount of Rs.25,000/- from him, as renewal fees and allowed him to run the unit. Thus, from time to time, he was permitted regularization of industrial activities. Needless to say, he was hoping to get further regularization on basis of payment of certain fees or any justifiable amount, which MPCB could have asked for, whether legally or by other means. 10.
Thus, mere fact that his consent had expired in
1996, could not have the ground for closure of unit in 2014, when he was allowed to run the industry or allowed from 1997 to 2014 and particularly when several visits were paid by the MPCB officers warning Notices were issued from time to time and fee was accepted for running of the unit from time to time. It appears that the Appellant had paid in all Rs.30,000/- to the MPCB, during relevant period for regularization of the unit and activity was going on with the knowledge of MPCB rightly or wrongly. 11.
Coming to the ground of unit being within
distance of 1km. zone of ‘Nag’ river, which is said to be Page 10 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
a notified river and therefore, the same is not satisfying the RRZ policy. We do not find any particular material, which shows that the Appellant was communicated any such information, plan or certificate received from the competent authority (Irrigation department), which took objection
for
establishment
of
the
industry.
Consequently, the industrial unit was established in 1994, prior to commencement of the RRZ policy, which came in force in 2000 and therefore, real question is as to whether the RRZ policy would be applicable retrospectively? 12.
So far as procedural aspect is concerned, the
policy revised by the MPCB is set out in communication dated 13th May, 2011, which reads as follows: “The Petitioner’s main contention was that the Board has not extended opportunity of hearing before issuing such directions and denied natural justice”. 13.
This communication was issued as a result of the
Hon’ble High Court order in the Writ Petition No.8717 of 2010, ( Imrankhan Iqbal Khan Qureshi & Ors Vs State of Maharashtra and Ors) and in Writ Petition No.2097 Page 11 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
of 2010 (Nadim Khan Suleiman Khan Qureshi vs State of
Maharashtra
&
Ors).
The
relevance
of
said
communication is reproduced as below: “ The matter was heard at length taking note of earlier petitions IPIL No.75 of 2009/162 of 2009 and 95 of 2009) and directed the Board to extend personal hearing to the Occupier of the Slaughter
House
along
with
the
Commissioner/Chief Officer as the case may in accordance with the Law before issuing closure Directions.” 14.
In the context, we may further reproduce another
communication dated 1.8.2000, attached to above communication, issued by the MPCB, which is a Circular, whereby guidelines have been issued regarding exercise of power delegated under Section 33A of the Water (Prevention & Control of Pollution) Act, 1974 and under Section 31A of the Air (Prevention & Control of Pollution) Act, 1981, to exercise the same for direction to close-down any industrial activity or project to which consent is granted. The relevant minutes of 126th
Page 12 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
Meeting of the Board held on 8th February, 2000, are reproduced as below: (1) The powers shall be exercised only in emergent cases such as gas leak, absence of pollution control devices, non-operation of emission control devices/effluent treatment plant and discharge of highly acidic/alkaline effluent causing serious pollution, serious complaints of air pollution, water pollution and environmental pollution endangering public health, flora and fauna. (2) The Regional Officers shall follow the principles of natural justice before exercising these powers. However in case of extreme emergent situations causing grave and sudden injury to the environment, the procedure of giving show cause/hearing may dispensed with. (3) In case the industry is directed to stop manufacturing activities and the water supply and or electricity supply is disconnected, the Regional Officers shall send the proposal to the Chairman/Member Secretary of the Board. 15.
Considering the policy of MPCB, in view of
aforesaid Circular and communications as well as the fact that the impugned order does not refer to any opportunity of hearing given to the Appellant, in our opinion, the impugned order is unsustainable in the eye or Law. The order of closure dated 13th October, 2014, is also illegal and liable to be quashed in view of the Circular of the MPCB, inasmuch as the Regional Officer has no delegated powers to issue such order. At the Page 13 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
same time, we find that though the Appellant’s is a small unit and there is illegality committed by the MPCB, the Appellant also cannot escape from blame of causing delay and committing the error of avoiding due procedure to apply for consent for a long period, under one or other pretext. Hence, while allowing the Appeal, we are of the opinion that the Appellant shall deposit amount of Rs.50,000/- with the office of Collector, Nagpur, which shall be utilized for afforestation work in MIDC area and particularly, in the proximity of Appellant’s unit. The Appellant will be responsible for care of the plantation done. In the result, the Appeal is allowed and impugned orders dated 18th October, 2014 and 13th October, 2014, are quashed and the Appellant is directed to deposit Rs.50,000/- in the office of Collector, Nagpur within four (4) weeks and report compliance of the same to the Registrar, NGT (WZ) along with payment receipt. The Collectorate shall accept such amount in the Escrow Account and incur expenditure of the same for plantation of trees in the MIDC area and as stated above, if possible in the proximity of the land if available around the unit of Appellant of which the Appellant shall be made caretaker. Page 14 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
16.
This Judgment shall not be treated as precedent
in other cases. 17.
The Appeal as well as Misc Application are
accordingly disposed of. No costs.
..……………………………………………, JM
(Justice V. R. Kingaonkar)
….…………………………………………, EM
(Dr.Ajay A. Deshpande)
Date : January 13th, 2015
Page 15 (J) Appeal No.37/2014 (WZ) M.A.No.4/2015
