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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 2114 of 2020 a/w CWPs
.
No. 2231, 2250 & 2251 of 2020
Decided on: 22.07.2020
CWP No. 2114 of 2020
Vardhman Textiles Limited ...Petitioner
Versus
The State of Himachal Pradesh and another ...Respondents
.........................................................................................................
CWP No. 2231 of 2020
M/s. Winsome Textile Industries Limited ...Petitioner
Versus
The State of Himachal Pradesh and another ...Respondents
.........................................................................................................
CWP No. 2250 of 2020
Vardhman Textiles Limited ...Petitioner
Versus
The State of Himachal Pradesh and another ...Respondents
.........................................................................................................
CWP No. 2251 of 2020
Vardhman Textiles Limited ...Petitioner
Versus
The State of Himachal Pradesh and another ...Respondents
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2
Coram
The Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
.
Whether approved for reporting?1
For the petitioner(s): Mr. R.L. Sood, Senior Advocate, with
Mr. Arjun Lall, Advocate, in all the
writ petitions.
For the respondents: Mr. Ashok Sharma, Advocate General,
with Ms. Ritta Goswami, Additional
Advocate General, for respondent No.
1, in all the writ petitions
Mr. Nalin Kohli and Mr. Maan Singh,
Advocates, for respondent No. 2, in all
the writ petitions.
L. Narayana Swamy, Chief Justice. (Oral)
All these writ petitions are being disposed of by this common judgment since the issue involved in these writ petition is same.
2. The petitioners have invoked the jurisdiction of this Court challenging the Show Cause Notices, dated 23 rd June, 2020 (Annexure P26) issued by the Himachal Pradesh State Pollution Control Board (hereinafter referred to as 'the Board') on various grounds, including, jurisdiction, want of 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 23/07/2020 20:21:12 :::HCHP 3authority, vagueness, cryptic and noncompliance of the provisions of Water (Prevention and Control of Pollution) Act, .
1974 (hereinafter referred to as 'Water Act') and the Environment (Protection) Act, 1986 (hereinafter referred to as 'the Environment Protection Act').
3. It is the submission of the learned Senior Counsel appearing for the petitioners that the impugned Show Cause Notices have been issued by the Board in terms of Section 33A of the Water Act, which empowers the Board to issue any direction or notice, whereas the impugned Show Cause Notices in the instant writ petitions have been issued by the Member Secretary of the Board, who is only an Officer/Authority of the Board and cannot be considered as a 'Board'. He further submits that the resolution, dated 10 th June, 1996, as submitted by the Board, authorizing the Member Secretary of the Board to issue notices/directions under the provisions of Water and Environment Protection Acts, is impermissible and contrary to law and legislative intent as Section 33A of the Water Act authorizes the Board to exercise power to give ::: Downloaded on - 23/07/2020 20:21:12 :::HCHP 4 directions whereas the impugned Show Cause Notices have been issued by the Member Secretary and not by the Board.
.
4. His next ground of attack is that the Member Secretary, who has issued the impugned Show Cause Notices, has referred the case pending before the National Green Tribunal wherein the petitioners are not a party.
5. He further submitted that it has been recorded in the Show Cause Notices that the petitioners have emitted the treated effluent into the river and in case the reply is not given within the time stipulated, the respondentBoard would close down the effluent plant by exercising powers under Section 33A of the Water Act and Sections 7 & 15 of the Environment Protection Act and also that Environment Compensation to the tune of ₹ One Crore will be imposed on the petitioners for polluting the river, however, there is no such provision under the Acts mentioned (supra) and moreover, before imposing any Environment Compensation and passing the orders exercising the powers under Section 33A of the Water Act, the petitioners should have been given an opportunity of hearing in this regard.
::: Downloaded on - 23/07/2020 20:21:12 :::HCHP 56. In this background, learned Senior Counsel appearing for the petitioners submitted that the impugned .
Show Cause Notices issued by the Member Secretary of the Board deserve to be quashed and set aside.
7. On the other hand, learned counsel appearing for respondentBoard supported the Show Cause Notices issued by the Member Secretary of the Board. Apart from the grounds taken in the Grounds of Defence submitted on maintainability, learned counsel for the respondentBoard, in order to substantiate his submissions, has referred to the judgments in Panj Peer Stone Crusher versus State of Punjab, 2012 SCC OnLine P&H 8046; Laxmi Suiting and Ors. versus State of Rajasthan and Ors., 2013 LawSuit (Raj) 1110;
Goa Foundation versus Union of India (UOI) and Ors., (2014) 6 SCC 590; and M.C. Mehta and Ors. Versus Union of India and Ors., MANU/GT/0067/2017.
8. It is his submission that the Water Act provides an alternative remedy under Section 33B of the Water Act to prefer an Appeal before the National Green Tribunal if any ::: Downloaded on - 23/07/2020 20:21:12 :::HCHP 6 person is aggrieved by any order/directions issued by the Board under Section 33A of the Water Act and in case the .
petitioners were aggrieved, they should have preferred an Appeal before the National Green Tribunal instead of approaching this Court. He has, therefore, prayed for dismissal of all the writ petitions being not maintainable.
9. While referring to Rule 8 (13) of the Himachal Pradesh Water (Prevention and Control of Pollution) Rules, 1977 (hereinafter referred to as 'H.P. Water Rules') read with Section 12 (2) of the Water Act, the learned counsel for respondentBoard submits that the Member Secretary was competent to issue the impugned Show Cause Notices on behalf of the Board.
10. At this stage, learned Advocate General appearing for respondentState submits that in such a situation when an industry is stated to have been causing pollution to the environment/water bodies and pursuant thereto, the Board, exercising its powers under Water Act and Environment Protection Act, is proceeding to shut down the petitioners Unit, the ultimate sufferer, in both the situations, will be the ::: Downloaded on - 23/07/2020 20:21:12 :::HCHP 7 State, since the emission of the treated effluent into the river will destroy the environment of the State and due to the .
shutting down of the petitionersUnit, it is the State who ultimately will suffer loss of revenue and employment opportunities as the industries in the State, directly or indirectly, are helping the State in generating revenue as well as employment opportunities.
11. He has, therefore, prayed that instead of passing some orders on merits of the cases, permission be granted to the State Government to make an endeavour to make understand the parties to sit together in order to amicably resolve the dispute and the Authorities under the Water Act, Environment Protection Act and H.P. Water Rules will work out the level of pollution caused by the petitioners, if any, and, accordingly, the steps to prevent the same will be taken.
12. This Court has given a thoughtful consideration to the submissions made by the learned Advocate General as also by the learned counsel representing the respective parties and are of the opinion that in the peculiar facts and circumstances of the case, we deem it appropriate to dispose of these writ ::: Downloaded on - 23/07/2020 20:21:12 :::HCHP 8 petitions, at this stage, with liberty to the Principal Secretary (Environment, Science & Technology) to the Government of .
Himachal Pradesh and also the Authorities under the Water Act, to issue appropriate directions to the petitioners to prevent emission of the treated effluent strictly in terms of the provisions of Law. In case, even after the efforts made by the State and the Board, the petitioners fail to prevent the emission of treated effluent into the river, then it is for the State and Board to take appropriate action(s), in accordance with law.
13. We feel that the Show Cause Notices, dated 23 rd June, 2020, impugned in all the writ petitions, may come in the way of the petitioners and the Board to proceed further in case these are allowed to stand. Therefore, in the light of above submissions, more particularly, on the submissions made by the learned Advocate General, we hold that the impugned Show Cause Notices, dated 23rd June, 2020 shall remain inoperative for the time being.
14. Before parting with, it would be appropriate to record herein that the water bodies, like streams, lakes, rivers, ::: Downloaded on - 23/07/2020 20:21:12 :::HCHP 9 are the precious gift from the nature to the mankind since time immemorial and it is our duty and responsibility to .
protect and preserve them. No industry can be allowed to pollute the water bodies by discharging or emitting the treated effluents or pollutants into the water. All the industries should adhere to the rules and regulations framed by the State/Central Governments with respect to environment protection.
15. Viewed thus, all the writ petitions are disposed of with a direction to the petitioners and respondentBoard to appear before the Principal Secretary (Environment, Science & Technology) to the Government of Himachal Pradesh, without awaiting any notice, on 30th July, 2020, who is further directed to proceed in matter after hearing both the parties.
All the miscellaneous applications/Caveat Petitions are disposed of accordingly.
(L. Narayana Swamy) Chief Justice (Anoop Chitkara) Judge July 22, 2020 ( rajni ) ::: Downloaded on - 23/07/2020 20:21:12 :::HCHP