BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE…greentribunal.gov.in/Writereaddata/Downloads/35-2016-WZ... · 2016-12-09 · Page 3 (J) Appeal No.35/2016 (WZ) Appellant industry

Page 1 (J) Appeal No.35/2016 (WZ)

BEFORE THE NATIONAL GREEN TRIBUNAL

(WESTERN ZONE) BENCH, PUNE

APPEAL No.35/2016 (WZ)

[M.A. No.236/2016]

CORAM:

HON’BLE DR. JUSTICE JAWAD RAHIM

(JUDICIAL MEMBER)

HON’BLE DR. AJAY A.DESHPANDE

(EXPERT MEMBER)

In the Matter of:

Hindusthan Engineering & Industries Limited A company having registered under the Companies Act, 1956 Having its Registered Office at: Mody Building, 27, Sir, R.N. Mukherjee Road, Kolkata – 700 001. having amongst others, its division known as Hindusthan Chemicals Company And its Factory at: GIDC Industrial Estate, Olpad, Surat – 394 540. District :Surat, State: Gujarat Through its authorized signatory Mr. Krishan Prakash Singhal, GM-Accounts & Administration Age about : 55 years Residing at : C-2, Hindusthan Chemicals Colony, Village : Masma, Olpad, Surat – 394 540.

….APPELLANT

VERSUS

1. Gujarat Pollution Control Board,

The State Board appointed and

constituted by State Government of


Gujarat under Section 4 of Water

(Prevention and Control of Pollution)

Act, 1974, having its office at :

Paryavaran Bhavan, Sector 10-A,

Gandhinagar – 382 010.

2. The Regional Officer,

Gujarat Pollution Control Board,

Having address at : 338, Belgium

Square, Typical First Floor, Silver

Plaza Complex, Opp. Liner Bus Stand,

Ring Road, Surat – 395 003.

.……RESPONDENTS

Counsel for Applicant(s):

Mr. Gaurav Joshi, Senior Advocate a/w Mr. Raheel Patel,

Advocate and Mr. Kaushik A. Kulkarni, Advocate

Counsel for Respondent(s):

Mr. Viral Shah, Advocate for Respondent Nos.1 and 2.

Date: 22nd November, 2016

ORDER/JUDGMENT

1. This Appeal is filed by Appellant industry under

Section 14 and 16 read with Section 18(1) of the National

Green Tribunal Act, 2010 challenging the direction of

closure issued by Gujarat Pollution Control Board (for

short ‘GPCB’) Respondent Nos.1 and 2 on 27th June,

2016 in exercise of the powers conferred upon the Board

under Section 33A of the Water (Prevention and Control

of Pollution) Act, 1974. The Appellant industry is a

chemical industry and is manufacturing and marketing

several chemical products like sodium cyanide,

potassium cyanide, sodium ferro cyanide, etc. The


Appellant industry was commissioned in 1982 and claims

to currently employing, directly or indirectly, about 400

people in the area.

2. Shorn of unessential, it is the case of the

Appellant industry that the impugned Closure Order is

passed by the Environment Engineer of GPCB without

following the principles of natural justice; without issuing

prior Show Cause Notice and granting personal hearing.

The Appellant contends that even on merit, the Closure

Order is devoid of any merit as it is totally silent on the

alleged eminent environmental damage allegedly resulting

from pollution nor even reflects any apprehension of such

environmental degradation. It contends that based only

on some cursory observations cited in the Closure Notice

like question of COD, the Closure Notice has been issued.

The Appellant has also alleged that the Closure

Order/Notice was issued by GPCB under the pressure

from the local residents who have lodged complaint

against the Appellant industry.

3. The Appellant contends previously also the GPCB

had issued Closure Notice to the industry on 20th

January, 2015 and the same was challenged before this

Tribunal in Appeal No.7/2015. The Tribunal has

considered the Appeal on merit and has allowed the

Appeal by Judgment dated 16thApril, 2015 on certain


terms and conditions. The industry has complied with

such terms and conditions and the said compliance was

duly verified by the officials of the GPCB from time to

time and even, the compliance report has been filed

before the Tribunal.

4. GPCB has not filed affidavit in reply but when

pointed out to the alleged irregularities with reference to

the procedure laid down under Rule 34(3) of Water

(Prevention and Control of Pollution) Rules, 1975, the

learned Counsel appearing for GPCB had sought some

time to respond. The Tribunal had recorded in its Order

dated 8th July, 2016 that the procedure prescribed under

Rule 34(3) of the Water (Prevention and Control of

Pollution) Rules, 1975 appears to have been given go-bye.

The Closure Order dated 27th June, 2016 was therefore

stayed until further orders. Subsequently, on 5th August,

2016 the matter was heard and it was listed for orders on

17th August, 2016. On 17th August, 2016, learned

Counsel for GPCB submitted that GPCB has revoked the

impugned Closure Order on its own volition and pleaded

that the Appeal be treated as infructuous. He had

admitted that such an order for revocation has been

issued on 11th August, 2016 after the matter was heard

on 5th August 2016 and listed on 17th August 2016 for

orders. The Tribunal had noted that GPCB has revoked


the impugned order when the issue is sub-judice before

the Tribunal.

5. Faced with this piquant position, the learned

Counsel for GPCB sought time to file an affidavit. They

were permitted to do so only after taking leave of the

Tribunal. Though such affidavit has been filed in

Registry, it is without seeking any leave of Tribunal and it

only refers to revocation of impugned order and encloses

a copy of such order. Unfortunately, in the subsequent

hearing on 6th, 7th, 9th September, 2016 neither

concerned officer of the GPCB nor the learned Counsel

appeared before the Tribunal for the reasons best known

to them, though it was well informed that the matter is

listed for orders.

6. Now coming to the present proceedings, it would

be relevant to refer to the findings recorded by the

Tribunal in Appeal No.7/2015 wherein a similar Closure

Order issued to the Appellant Industry was challenged. It

reads thus:

“2. We have perused the Appeal and Misc.

Applications and the order of closure of the

Industry. We find that the closure order is issued

under Section 33A of the Water (Prevention and

Control of Pollution) Act, 1974, on the basis of

assumption that hazardous effluents are being

discharged by the Industry, which resulted into

pollution and caused problem to the health of the

members of nearby residential area. There are

complaints received from the inhabitants of

localities surrounded by the Industry.


3. Upon considering the material placed on

record, it is manifestly clear that the impugned

order is passed without giving hearing to the

Industry/ Appellant and moreover, copy of the

impugned order was not served on the Industry, as

required under Section 33A of the Water

(Prevention and Control of Pollution) Act, 1974,

which could have given opportunity to the Industry

to make representation within period of fifteen (15)

days, as permitted under the said provision. Thus

there is clear violation of provision of the Law and,

therefore, the impugned order is unsustainable.

4. Gujarat State Pollution Control Board

(GSPCB), could not have acted only upon

grievances of the group of residents of the localities

residing in the area near the Industry, without

verification of actual quality, quantity and

standards of effluents discharged from the

Industrial unit. The norms of load of pollution

discharge, the type of pollutants so discharged,

water quality, the presence of hazardous elements

in the water and other factors ought to have been

reflected in the Inspection Report, or closure order,

which are not communicated to the Industry, nor

they are shown in the report of Technical Expert

Committee.”

7. The Tribunal had also issued certain directions

and in fact the GPCB came on record to submit

compliance of those directions.

8. The impugned order dated 27th June 2016,

challenged in this Appeal has been issued by the

Environment Engineer of GPCB and the relevant material

portion of the order is reproduced to understand the

basis of issuance of such order:

“You are informed that in response to complaint

against your industry, officers of GPCB has visited

your factory on 30.05.2016 under Water Act 23

and following were the observations:


1. Polluted water was observed coming out from a

200 meter long underground pipeline, which

was laid for drainage of polluted water upto the

outside of compound wall towards Khadi side.

2. Spreading of white colour was observed near

the industrial outlet and drainage towards

MasmaKhadi.

3. Traces of discharge were observed at the inlet of

above mentioned underground pipeline inside

the factory.

4. White colour deposition was also observed in

the plantation area.

5. Polluted water sample which was collected

during the visit & COD was found 522 mg/l in

the same.”

9. It is manifest from the bear reading of the

Closure Order that the Appellant Industry was not issued

with Show Cause Notice prior to the passing of the

impugned order nor any personal hearing was granted.

This fact was not controverted by GPCB either during

oral submissions or through written submissions.

10. The GPCB is a statutory authority and is

required to strictly follow the procedures which are

mandatory by law before issuing such directions. Rule

34(3) of the Water (Prevention and Control of Pollution)

Rules, 1975 elaborately stipulates the procedure which

includes issuance of the Show Cause as well as grant of

personal hearing. No doubt, in case of emergent

situations and eminent danger of environment

degradation, the authorities can issue certain directions,

but for the reasons to be recorded in writing. All these


procedural requirements have to be complied with by the

GPCB which has been totally flouted.

11. As this is an appeal proceeding, we are required

to test the impugned order on the touchstones of legality,

rationality and procedural regularity/compliance and

propriety. In the present case, the order under challenge

is of closure of an industry which means the industry will

cease to operate. Such a special power has been

bestowed with the Environmental Regulatory Authority

regulating the Environment Regulations in law in order to

protect the environment. These powers are exemplary

and deterrent. Such powers cannot be exercised

arbitrarily or in violation of the prescribed procedure.

Therefore, it is expected that the authorities upon whom

such powers have been conferred use such powers

judiciously and sparingly. The Environment Regulations

prescribe different levels of regulatory response to deal

with issues related to environment pollution and

degradation. It is, therefore, necessary for such

regulatory authorities to assess the situation on objective

technical parameters in order to protect and conserve the

environment and thereafter, based on such scientific

analysis and appraisal; adopt a reasonable and

proportionate response to deal with the emergent

situation, following prescribed process of Law. The


Hon’ble Apex Court in Maharashtra Land Development

Corporation & Ors Vs. State of Maharashtra & Anr.

(2011) 15 SCC 616 has dealt with this issue at

paragraph 61, which read thus:

“61. The principle of proportionality envisages that a

public authority ought to maintain a sense of proportion

between particular goals and the means employed to

achieve those goals, so that administrative action

impinges on the individual rights to the minimum extent to

preserve public interest. Thus implying that administrative

action ought to bear a reasonable relationship to the

general purpose for which the power has been conferred.

The principle of proportionality therefore implies that the

Court has to necessarily go into the advantages and

disadvantages of any administrative action called into

question. Unless the impugned administrative action is

advantageous and in public interest such an action

cannot be upheld. At the core of this principle is the

scrutiny of the administrative action to examine whether

the power conferred is exercised in proportion to the

purpose for which it has been conferred. Thus, any

administrative authority while exercising a discretionary

power will have to necessarily establish that its decision

is balanced and in proportion to the object of the power

conferred.”

12. Despite the facts referred to above, the GPCB has

gone ahead with issuance of impugned closure orders

against the industry in Appeal ignoring the orders and

observations of Tribunal in Judgment dated 16th April,

2015 in Appeal No 7 of 2015.

13. It is manifest that GPCB has issued the

impugned order without following the principles of

natural justice by not giving Show Cause Notice and

subsequent personal hearing. It has also failed to

establish that there was an eminent environmental


danger or threat in order to support non-issuance of

Show Cause Notice. In fact, the GPCB has maintained

stoic silence and has not even responded to the grounds

raised in Appeal. Under these circumstances, the

impugned order fails in terms of its legality, rationality

and propriety. The impugned order is, therefore, set aside

and quashed.

14. The facts manifesting from various

circumstances including earlier Appeal proceeding in this

Tribunal make it clear that the GPCB has not acted in a

fair manner in exercising its power conferred upon it by

the various statutes relating to prevention and control of

pollution, particularly, with reference to Section 33A of

the Water (Prevention and Control of Pollution) Act, 1974.

It is evident from the proceedings in Appeal No.7/2015

that GPCB in the recent past it had initiated similar

action like the present action against the Appellant

Industry Hindusthan Engineering & Industries Limited,

which action was impugned before this Tribunal. The

considered Order passed on 16th April, 2015 in Appeal

No.7/2015 bears testimony to the fact that this Tribunal

viewed seriously the violations and non-compliance to the

strict procedures prescribed under the provisions of the

Water (Prevention and Control of Pollution) Act, 1974 and

other statutes by GPCB while exercising the powers for


issuing orders to close the units on alleged contravention

of conditions of EC or other provisions. We had therefore

held the action taken by GPCB which resulted in passing

the order to close the unit was arbitrary and violative of

principles of natural justice. Hence we had issued

specific directions in Appeal No. 7/2015 to be complied to

prevent such lapses.

15. The GPCB filed a statement before us that those

directions issued in Order dated 16th April, 2015 in

Appeal No.7/2015 have been duly complied. We are

therefore, pained to see within a short period thereafter

the GPCB has indulged in disdainful conduct of once

again issuing Closure Order to the Appellant Industry

virtually similar to the one which was quashed by our

Order dated 16th April, 2015 in Appeal No.7/2015. It is

quite obvious that this is not an innocent conduct of the

GPCB but smells of deliberate violations in exercise of the

enormous power conferred upon it under Section 33A of

the Water (Prevention and Control of Pollution) Act, 1974.

The order passed is arbitrary, unreasonable and an order

which is in conflict with our directions issued to GPCB

vide Judgment dated 16th April, 2015 in Appeal

No.7/2015 referred to above. The only conclusion would

be that GPCB is indulging in confrontation or seems to

conduct in conflict with rule of law which conduct cannot


be ignored.

16. It is, therefore necessary, in the interest of

justice, to ensure that rule of law prevails and the erring

Members who presently constitute GPCB be cautioned,

lest, they may feel unbridled to indulge in such acts.

Hence, we feel it appropriate to impose cost on the GPCB.

We, therefore, impose cost of Rs.5 Lakhs on GPCB which

shall be deposited with Collector, Surat within 4 (four)

weeks, which shall be used for environmental

improvement in or around GIDC Industrial Estate, Olpad,

Surat. We also direct the Registry to send a copy of this

order to the Chief Secretary of Gujarat for information

and necessary action at his end.

17. We are of the opinion that the officers concerned

that are authorized to issue directions need to be

sensitized and trained about legal requirements and

procedure to be followed in such cases. It is also

necessary for the GPCB to review its operational frame

work to avoid such incidents. We, therefore, expect

Chairman, GPCB to take necessary action in this regard,

which will avoid putting GPCB in such awkward position.

18. The Appeal is, therefore, allowed and disposed of.


19. We also make it clear that GPCB should not have

any prejudice against the Appellant Industry in its

regulatory affairs because of the findings of this Appeal.

.…...……………………………,JM

(Dr. Justice Jawad Rahim)

..….……………………………,EM

(Dr.Ajay A. Deshpande)

DATE: 22nd November, 2016. PUNE. mk

Documents

BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE…greentribunal.gov.in/Writereaddata/Downloads/35-2016-WZ... · 2016-12-09 · Page 3 (J) Appeal No.35/2016 (WZ) Appellant industry