IN THE HIGH COURT OF TRIPURA
                              AGARTALA

     W.P.(C) No.322 of 2013

1.   Shri Rajarshi Dhar,
     son of late Ramesh Chandra Dhar,
     village-  Debinagar,     P.O.   &   P.S.
     Ranirbazar, West Tripura, PIN-799035

2.   Shri Janardhan Saha,
     son of Shri Suresh Chandra Saha, village-
     Assampara, P.O. & P.S. Ranirbazar, West
     Tripura, PIN-799035

     -the petitioners No.1 and 2 are the
     partners of M/S. Joy Ram Rice Mill of
     village- Brajanagar, P.O. Ranirbazar,
     West Tripura

                                                    ......Petitioners
                               Versus

1.   Tripura State Pollution Control Board,
     a Government of Tripura Organisation,
     represented by its Member-Secretary,
     Pandit Nehru Complex, Gorkhabasti, P.O.
     Kunjaban, Agartala, PIN-799006

2.   The Member Secretary,
     Tripura State Pollution Control Board,
     Pandit Nehru Complex, Gorkhabasti, P.O.
     Kunjaban, Agartala, PIN-799006

3.   The Assistant Environmental Engineer,
     Tripura State Pollution Control Board,
     Pandit Nehru Complex, Gorkhabasti, P.O.
     Kunjaban, Agartala, PIN-799006

4.   The Principal Chief Conservator of Forest and C.W.L.W,
     Chairman, Appellate Authority, Aranya
     Bhavan,    Pandit    Nehru   Complex,
     Gorkhabasti, P.O. Kunjaban, Agartala,
     PIN-799006

5.   The Principal,
     Agartala Government Medical College and
     G.B.P.   Hospital,   Member     Appellate
     Authority, West Tripura, PIN-799006

6.   The Principal,
     Tripura Institute of Technology, Member,
     Appellate Authority, Narsingarh, P.O.
     Airport, Agartala, West Tripura


                                                 ........ Respondents

[2] BEFORE THE HON‟BLE MR. JUSTICE S. TALAPATRA For the petitioners : Mr. S.M. Chakraborty, Sr. Advocate Ms. P. Sen, Advocate For the respondents : Mr. Samarjit Bhattacharji, Advocate Date of hearing and delivery : 20.03.2017 of Judgment & Order Yes No Whether fit for reporting : √ JUDGMENT & ORDER (ORAL) Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. P. Sen, learned counsel appearing for the petitioners as well Mr. Samarjit Bhattacharji, learned counsel appearing for the respondents.

[2] By means of this writ petition, the petitioners have challenged the order dated 28.05.2013, Annexure-8 to the writ petition, which has been passed by the appellate authority in exercise of its jurisdiction as provided under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 and under Section 28 of the Water (Prevention & Control of Pollution) Act, 1974 in the appeal. By the closure order dated 14.02.2012, Annexure-5 to the writ petition, the rice mill of the petitioners, under name and style of 'Joyram Rice Mill' situated at Ranirbazar was directed to be closed down forthwith, in exercise of the power conferred by Section 33 (A) of the Water (Prevention & Control of Pollution) Act, 1974 and under Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981.

W.P.(C) No.322 of 2013 Page 2 of 9

[3] Being aggrieved by that order dated 14.02.2012, the petitioners had filed an appeal under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 and under Section 28 of the Water (Prevention & Control of Pollution) Act, 1974 raising the ground that the said rice mill was all the times observing the standard so far the noise level and water standard are concerned. The petitioners have further contended that there was no scientific inquiry into the allegations and without resorting any inquiry, the said closure order dated 14.02.2012 was issued by the Member Secretary, Tripura State Pollution Control Board illegally and arbitrarily. Despite that, the petitioners have complied the said order dated 14.02.2012 by suspending the operation of the said rice mill. By the said appeal, legality of the order dated 14.02.2012 was questioned. It would be apparent from the memorandum dated 02.06.2012, Annexure-7 to the writ petition, that even during the appellate proceeding inspection in the mill was carried out for purpose of submitting the report to the appellate authority. The appellate authority made the following observations on perusal of the inspection report:

"1. In stark violation of the order of the TSPCB, who had issued the closure order dated 14th February, 2012 and the Authority, who had permitted operation of the Mill only prior and during the inspection by the Authority and TSPCB as allowed by the Authority for recording the Mill is still being operated as confirmed by the local residents. The Mill owner himself admitted to the Authority running the Mill even in night to make up the loss of outputs due to power cut in the residential area during the daytime.

2. The unit has changed over to use manual cleaner instead of machine cleaner.

3. The Blower section has been covered up with plywood. According to the proprietor the unit has reduced rpm rate of the motor blower from 1440 rpm to 960 rpm, although the Mill owner on W.P.(C) No.322 of 2013 Page 3 of 9 [4] demand from the Authority could produce no document in support of this.

4. The unit has installed a steam exhauster on the top of overhead boiler section linked with water tank at ground level through which the steam passes into the water.

5. The unit has erected fencing at both side of the boundary using GCI sheets.

6. The screening chamber is open and generates suspended particulate Matters.

7. The ash contents produced are not being properly managed.

8. The internal electrifications were not found satisfactory as the electric wires were found hanging all around and were even found on the floor thus posing serious threats on the count of both electrocution of the workers and fire due to short circuiting.

9. No technically approved system of fire extinguisher was noted inside the Mill premises.

10. The enquiry from the employees of the Mill revealed to the Authority lack of any health safety plan from the Mill owner for the workers.

11. As per the advice of Authority the officials of TSPCB measured noise level at the both the adjacent house of Sri Anil Debnath and Sri Parimal Majumder. The measured noise level at the house of Sri Anil Debnath was recorded at 53.83 dB and at the house of Sri Parimal Majumder it was at 52.88 dB, which are below the prescribed standard limits.

12. Lots of filth noted all around the Mill posing severe health risks for the local residents. Although, there is enough space to undertake planting of trees of all around the Mill to provide greenery and also to act as sound absorber and dust filter, yet, no consideration is seem to have been given by the Mill owner towards its importance. The authority directed the owner to undertake this in an organized manner.

The Appellate Authority held series of meeting in full strength on 22nd April, 2013 and 13th May, 2013 to discuss the issued post visit on 4th April, 2013 and observe the followings:

Observations of Appellate Authority

(i) In stark violation of the Order of the TSPCB closure order dated 14th February, 2012, the Mill is still run as complained by the local residents. The Owner himself admitted to the Authority during their visit on 4th April, 2013 that it is also run at night to make up the loss in the outputs accruing due to power cut during day hours.

(ii) This Mill is not located in the prescribed industrial areas where the issue of noise and air pollution may not arise. Moreover, the issue of power cut W.P.(C) No.322 of 2013 Page 4 of 9 [5] during the day time shall also not be there in industrial area thus discounting the necessity to run the mill even at night, as is being done in this case.

(iii) Though the noise pollution level was measured within the permissible limits on 4th April 2013 yet the measurement is just at the threshold level at 53.35 dB against the standard permissible limit at 55 dB for residential area. Therefore, though, the readings are technically lower than 55 dB, yet, as per the ground condition, this marginal lower limit is not sufficient to provide the local residents a peaceful ambience.

(iv) The modifications as done by the mill owner are only cosmetic. The GCI sheets erected around the Mill are not at all useful in arresting the noise level, which is affecting the nearby houses (in fact many houses are located in very close vicinity of the Mill). The TSPB also should have indicated on the non-utility of placing sheets in place of the double layer brick walls all around the Mill in their report dated 16th January 2013, which was not done.

(v) Given, that the ill is located at the residential area, it would be very difficult to modify the existing set up for having permanent solutions towards substantial reductions in the noise & dust pollution levels. This may result in the health hazards to the local people in near future.

(vi) The Mill was given the Certificate for Consent to Operate by the TSPCB vide their letter of even number 3044-49 dated 15th July, 2010 „subject to the observance of other codal formalities of the Govt. of India/Govt. of Tripura/District Administration/Agartala Municipal Council/Nagar Panchayets/ Health Department/Industries & Commerce department. However, on enquiry by the Authority, the Mill owner failed to produce any official document supposedly issued by concerned department and required in support of the observance of different set of mandatory rules and regulations. There were no records with the Mill owner on the periodic inspection made by the Health Department, Electricity Department, Fire Department certifying the appropriateness of the existing facilities. This was evident with the presence of ill equipped system of fire fighting equipment, installation of high tension wires all across the Mill premises, lack of periodic health check up o the workers who are exposed to dust particles and high noise-level atmosphere of the Mill all through the working hours.

Recommendation

(i) Based on the facts into the matter as noted in above paragraphs resulting from the discussions with the Appellant (Mill owner); the officials of the TSPCB; the local residents in the vicinity of the Mill; records made available to the Authority by the Appellant and the TSPCB; and visits by the Authority to the Mill, the Appellate Authority directs the appellant and owners of M/S. Joyram Rice Mill to take all necessary steps as needed to shift the Mill from its existing location in the W.P.(C) No.322 of 2013 Page 5 of 9 [6] residential locale at Brajanagar, Uttar Majlishpur, West Tripura to any other suitable place, preferably within the premises of the authorized commercial industrial units.

(ii) As the set up of the Mill is a big one and is presently running within the permissible limit of noise and air pollution levels, a period of maximum nine months from the date of issue of this letter is allowed to complete shifting of the Mill to a new locale. The owners of this rice Mill may apply to the competent authority for allotting a suitable place for shifting.

(iii) Till the shifting is accomplished in next nine months, the Closure order issued by TSPCB is stayed and the owner can operate the Mill ONLY during day time. The owners of M/S. Joram Rice Mill, Brajanagar, Uttar Majlishpur, West Tripura are further directed to comply with all the mandatory Rules & Regulations for running an industrial unit including from view point of Pollution Control, Fire Protection, Labour Welfare, Electricity safeguard, Health care of the workers and employees during the course of running for next nine months till the shifting is accomplished. The appellant has to procure all necessary certifications in support of the observance of required guidelines from the concerned competent authorities.

(iv) The shifting should be completed within prescribed time limit from the issuance of this recommendation. In no case the Mill will be allowed to continue its operation after that period of nine months. On non-compliance of these recommendations, the Closure Order earlier issued by the Member Secretary, Tripura State Pollution Control Board, Agartala dated 14th February, 2012 will stand REINSTATED.

(v) The TSPCB is directed to make fortnightly visits to the Mill to make an assessment of the compliance of all the recommendations by the Mill owner and report to the Authority. The status of fortnightly progress made into shifting the Mill by the owner shall be indicated in the report from the TSPCB.

(vi) The TSPCB is also advised to avoid according permission to operate such industrial units at the vicinity of the residential areas since there are earmarked industrial units set up across the state for setting up the commercial industrial units."

Against the said order dated 28.05.2013 the present writ petition has been filed by the petitioners. [3] Mr. S.M. Chakraborty, learned senior counsel appearing for the petitioners has submitted that the said order is strictly arbitrary and it has taken away the right to livelihood of W.P.(C) No.322 of 2013 Page 6 of 9 [7] the petitioners and as such, interference in the order is essentially required.

[4] From the other side, Mr. Samarjit Bhattacharji, learned counsel appearing for the respondents has submitted that for the amendment carried out in the Air (Prevention and Control of Pollution) Act, 1981 by inserting Section 31B a substantive provision for an appeal to the National Green Tribunal has been made. For purpose of reference, Section 31B of the said Act is extracted hereunder:

"31B. Appeal to National Green Tribunal - Any person aggrieved by an order or decision of the Appellate Authority under section 31, made on or after the commencement of the National Green Tribunal Act, 2010 [Date of commencement 18-10- 2010, vide S.O.2569(E), dated 18th October, 2010], may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act."

[5] There cannot be any amount of doubt that the impugned order has been passed by the appellate authority after the National Green Tribunal was constituted. Section 31B of the National Green Tribunal Act, 2010 came into force from 18.10.2010.

[6] Mr. Chakraborty, learned senior counsel appearing for the petitioners was persuasive enough to impress this court that the closure order was uncalled for. But later on, he has fairly conceded that in view of the provisions of Section 31B of the Air (Prevention and Control of Pollution) Act, 1981 read with Section 16 of the National Green Tribunal Act, the petitioners ought to W.P.(C) No.322 of 2013 Page 7 of 9 [8] have filed an appeal under Section 31B of the Air (Prevention and Control of Pollution) Act, 1981 in the National Green Tribunal but noticing the jurisdictional aspect as stated, this petition under Article 226 of the Constitution of India challenging the order of the appellate authority had been filed in this Court on 07.10.2013. The closure order was passed on 14.02.2012 whereas the impugned appellate order has been passed on 28.05.2013. In view of the period of limitation, as prescribed by proviso to Section 16 of the National Green Tribunal Act, 2010, the tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days. When a special jurisdiction has been curved out by Section 31B of the Air (Prevention and Control of Pollution) Act, 1981, this Court definitely lacks in the jurisdiction to entertain the challenge as made in this writ petition. It cannot be doubted that when there is a substantive provision for filing an appeal under Section 16 of the National Green Tribunal Act, this Court cannot waive the substantive jurisdiction to allow the petitioners to throw the challenge against the order of the appellate authority under Article 226 of the Constitution of India inasmuch as this Court is not bereft of power to exercise jurisdiction under Article 226 of the Constitution of India, if it is found that else there would be serious failure of justice and such justice cannot be retrieved by any other means. This is not the case here and accordingly, it is held that after commencement of W.P.(C) No.322 of 2013 Page 8 of 9 [9] the National Green Tribunal Act, 2010 this court does not ordinarily have any substantive jurisdiction for challenging the order of the appellate authority under those acts. In the similar circumstances, this court had had occasion to observe in Shri Hiralal Debnath and others vs. the State of Tripura and others [judgment and order dated 16.03.2016 delivered in W.P.(C) No.63 of 2013].

[7] Having held thus, the writ petition is dismissed in view of Section 16 of the National Green Tribunal Act, 2010 as not maintainable and accordingly, the same is disposed of.

However, there shall be no order as to costs.

JUDGE Sujay W.P.(C) No.322 of 2013 Page 9 of 9