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C/SCA/6098/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6098 of 2020
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KETHOS TILES PVT. LTD.
Versus
GUJARAT POLLUTION CONTROL BOARD
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Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR. KEYUR GANDHI,
ADVOCATE NANAVATI ASSOCIATES(1375) for the Petitioner(s) No. 1,2
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
MR VIRAL K SHAH(5210) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 28/05/2020
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1 By this writ application, the writ applicants have prayed for the following reliefs:
"[A] Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in nature of Mandamus or any other Writ, order or direction, quashing and setting aside the (i) impugned Revocation Order dated 29.02.2020, issued by the Respondent (at Annexure A/1); and (ii) impugned Closure Order dated 02.03.2020 (at Annexure A/2);
[B] Pending admission, hearing and final disposal of the present Petition, Your Lordships may be pleased to stay and suspend the operation and implementation of the (i) impugned Revocation Order dated 29.02.2020, issued by the Respondent (at Annexure A/ 1); and (ii) impugned Closure Order dated 02.03.2020 (at Annexure A/ 2);Page 1 of 10 Downloaded on : Fri May 29 22:13:56 IST 2020
C/SCA/6098/2020 ORDER [C] Pending admission, hearing and final disposal of the present Petition, Your Lordships may be pleased to direct the Respondent No.3 to resume supply of the Electricity to the Manufacturing Unit of the Petitioner Company;
[D] An exparte adinterim relief in terms of prayer [B] and [C] above may kindly be granted;
[E] Such other and further reliefs as deemed fit and proper, in the facts and circumstances of the case, may kindly be granted."
2 The genesis of this litigation lies in the order passed by a Division Bench of this Court dated 10th October 2019 in the Writ Petition (PIL) No.72 of 2016. The order reads thus:
"1. The present writ petition in the form of Public Interest Litigation has been takenout for following prayers.
"A. Be pleased to direct the State of Gujarat in Revenue and Environment Department to frame the permanent policy, guideline to avoid such problem as focus in the present petition and thereby to save the life and environment of the citizens and thereby to avoid industries in the residential area and thereby compulsory setting up of industries in the industrial area declare by the State in respective area;
B. Be pleased to issue appropriate writ, order or direction holding that the ceramic industry adjoining residential house is health hazardous to the petitioners and water bodies and thereby direct the shifting of industry to any industrial area (GIDC) forthwith and thereby be pleased to quash and set aside N.A. Permission and all other permission for the site in question survey no.111, 112 and 119 of village : Umedni Muvadi, Dist : Sabarkantha;
C. Your lordship may be pleased to issue an appropriate writ, order or direction directing the private respondent no.5 to immediately comply with the direction of respondent no.4 GPCB vide its letter dated 13th January 2016 and thereby stop construction on site forthwith;
D. Your lordship may be pleased to direct the respondent no.4 GPCB to take steps in accordance with law to implement its order Page 2 of 10 Downloaded on : Fri May 29 22:13:56 IST 2020 C/SCA/6098/2020 ORDER and direction for stopping of construction of disputed Ceramic industry on the disputed site; E. To grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice.
Interim prayer:
Your lordship may be pleased to direct the respondent no.5 to forthwith stop the industrial construction activity on the disputed site block/survey no.111, 112 & 119 and thereby, to comply the directions and orders of GPCB."
2. During the course of submission and hearing, it transpired that now the most relevant policy so far as pollution and conservation of environment is concerned, the GPCB's policy vide Circular dated 12th April 2016 placed on record at page no.93 and the complete compliance thereof is to be insisted upon by all the concerned and deviation of breach thereof would entail serious consequences that may include, if required, removal or shifting of the existing industries in case they are offending or contrary to the policy as spelt out.
3. Shri Viral Shah, learned advocate appearing for the Gujarat Pollution Control Board makes a statement that this policy is prevalent as on date and it has not been rescinded in any manner, therefore all the authorities will have to insist strict compliance therewith.
4. Shri Utkarsh Sharma, learned AGP for the respondent nos.1, 2 and 3 under the instructions of Shri V.L.Patel, Resident Additional Collector, states that as there is a specific statement of policy produced on record at page no.93, the said authority would take all the positive steps to enforce strict compliance therewith after following due procedure of law and page no.146 also now would pale into insignificance on account of this clear stand of GPCB. The industries offending this policy and not in significance with the policy within the jurisdiction will be proceeded against and 4 weeks be granted for initiating the action, which in due compliance with law would be over within 4 weeks thereafter.
5. In this view of the matter, we are of the considered view that the petition is required to be disposed of with a liberty to all the concerned to approach the Court by filing fresh proceedings in case of difficulty. Accordingly, the petition is disposed of with aforesaid liberty.
6. It goes without saying that in light of the statement made by the learned advocate for the GPCB and learned AGP for the respondent nos.1, 2 and 3, all the concerned authorities shall take steps and do the needful so far as cause of action is concerned.
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7. In view of the order passed in the main matter, no orders in the connected civil application and the same is disposed of."
3 On the strength of the order passed by this Court referred to above, the Gujarat Pollution Control Board (for short, 'the GPCB') issued a show cause notice, which reads thus:
"CONSENT REVOKE NOTICE WHEREAS, the Gujarat Pollution Control Board has granted consolidated Consent and Authorization (CC&A) under the Water (Prevention and control of Pollution) Act, 1974, the Air (Prevention and control of Pollution) Act, 1981 and the Hazardous and other Waste (Management and Handling) Rules, 2016 to M/s. Kathos Tiles P. Ltd. S. No: 111,112 & 119, HarsolUjedia Road, umedpura Kampa:383215, TaTalod, Dist:Sabarkantha vide Consent Order No:AWH90641 dated 22/01/2018 for operating of industrial plant for manufacturing of Single Charge/Double Charge/Glazed/Polished Glazed Vitrified Floor Tiles Subject to the conditions mentioned therein.
AND WHEREAS the Board has empowered from time to time to review under the provisions of clause (b) of subsection 2 of section 27 of the Water (Prevention and Control of Pollution) Act, 1974 and make such order as deemed fit.
AND WHEREAS, in pursuant to judgment of Honourable High Court order dated 10/10/2019 passed below Writ Petition (PIL) No: 72 of 2016, Board has to take necessary steps.
AND WHEREAS, during visit of the officers of the Board on 03/12/2019:
1) Your industrial plant is located adjoining to residential area (peta paru of Umedpura kampa village) and Water body (Najera Talav). 2) You have not fulfilled the siting criteria vide this office Circular dated 12th April 2016.
NOW UNDER THE POWER MANNTIONED HERE INABOVE, and conferred on the Board, the Board serve this consent revoke notice to M/s. Kathos Tiles P. Ltd. S. No: 111,112 and 119, HarsolUjedia Road, Umedpura Kampaz383215, TaTalod, DistSabarkantha.Page 4 of 10 Downloaded on : Fri May 29 22:13:56 IST 2020
C/SCA/6098/2020 ORDER UNDER THE CIRCUMSTANCES, you are directed to show cause within 15 days from the issue this notice as to Why consent granted to you vide consent order No:AWH90641 dated 228/01/2018 should not be revoked. If you fall to represent to the Board within stipulated time aforesaid order shall be revoked without assigning further reasons.
For and on behalf of Gujarat Pollution Control Board (A.V. Shah) Senior Environmental Engineer"
4 Ultimately, the GPCB passed a final order dated 29th February 2020 revoking the concerned order, which reads thus:
"ORDER PASSED REGARDING CLOSURE OF INDUSTIRES U/S 33[A] OF THE WATER POLLUTION [PREVANTION AND CONTROL] ACT, 1974 You M/s Kathos Tiles Pvt Ltd [M/s. Kathos Tiles P. Ltd] are running industries at Survey no 111, 112 and 119, HarsolUjediya Road, Umedpura Campa 383215, Taluka Talod, District Sabarkantha and thereupon producing Single Charge/ Double Charge Glazed Polished Glazed Vitrified Floor Tiles.
In conformity with order passed by Hon'ble High Court dated 10/10/2019, Gujarat Pollution Control Board, Gandhinagar vide notification no Gujarat Pollution Board/ Notification /N.A./RJ/1/06/10253 dated 12/04/2016 a policy was framed for execution and implementation and if any infringement or violation thereof, necessary action steps shall be taken against such industries and necessary compliance and/or implementation shall be executed within period of four weeks, as directed by Hon'ble High Court.Page 5 of 10 Downloaded on : Fri May 29 22:13:56 IST 2020
C/SCA/6098/2020 ORDER In accordance with order passed by Hon'ble High Court, the Unit was issued notice on 13/12/2019 for revoking consent of the Unit [CCEA] and also directed to comply it within period of 15 days but, Unit failed to produce any compliance within stipulated time frame and also failed to produce any reply thereof therefore, vide order no AWH90641 DATED 22/01/2018 in context of exercise of the powers conferred vide section 27 of the Water Pollution [Prevention and Control] Act, 1974 on 29/02/2020, consent issued was withdrawn of Consent Revoke order no Gujarat Pollution Control Board/ CCASK 596id50107/555972 On above circumstances, I G.H.Trivedi, Senior Environment Engineer, Gujarat Pollution Control Board, u/s. 33 of the Water Act, passes the following order.
1. You are to shut down [windup] the Production process of your Industry with immediate effect . Running batch shall be closed with proper care and by making utmost care that same shall not remain functioning, production process shall be stopped.
2. If your Production process is running of your [Captive] Power Plant or D.G. Set than same shall also be closed.
3. Until and unless other order passed, Electricity supply to your Industry shall be cut down of your Industry with immediate effect.
If above order passed is not implemented with immediate effect than you and your responsible officers are liable for again preferring of the complaint under section 41[2] of the Water Act.
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In the name and for
The Gujarat Pollution Board,
SD/
[G.H. Trivedi]
Senior Environment Engineer"
5 As the consent order came to be revoked, a closure order dated
2nd March 2020 came to be passed by the GPCB.
6 It appears that on the strength of the two orders referred to
above, the respondent No.3 disconnected the power supply of the unit. In such circumstances, the writ applicants are here before this Court. On 20 th March 2020, this Court passed the following order:
"Heard Mr. Mihir J. Thakore, learned Senior counsel with Mr. Keyur D. Gandhi and Mr. Raheel S. Patel, learned counsel for Nanavati Associates for the petitioner and Mr. Premal R. Joshi, learned counsel for respondent no.3 and Mr. Viral K. Shah, learned advocate for GPCB - respondent no.1.
2. Further affidavit filed by GPCB dated 19.03.2020 is taken on record. Copy of same may be provided to all the parties.
3. Learned advocate for petitioner has prayed to reconnect the electricity supply, which was disconnected pursuant to impugned order, as there are 600 residential units in the petitioner company.
4. Keeping the issue of disconnection of electricity supply open, by way of adinterim relief, the respondent no.3 is directed to restore the electric connection to the petitioner unit for residential use. However, petitioner shall not utilize the electricity for any other purpose. The same shall be utilized for residential purpose only.
5. The respondent GPCB shall present the original file of present petitioner before the court on the next date of hearing.
S.O to 01.04.2020. Direct service permitted today."
7 We have heard Mr. Mihir Thakore, the learned senior counsel assisted by Mr. Keyur Gandhi, the learned counsel appearing for the Page 7 of 10 Downloaded on : Fri May 29 22:13:56 IST 2020 C/SCA/6098/2020 ORDER writ applicants, Mr. Viral K. Shah, the learned counsel appearing for the respondent Nos.1 & 2 & Mr. Premal Joshi, the learned counsel appearing for the respdt No.3.
8 The principal argument of the learned senior counsel is that the impugned orders are without jurisdiction as no opportunity of hearing was given to the writ applicants before the consent order came to be revoked. In this regard, the learned senior counsel invited the attention of this Court to the averments made in para 7 of the affidavitinreply dated 13 th March 2020 filed on behalf of the GPCB.
The same reads thus:
"Without prejudice to aforesaid contentions, it is respectfully submitted that if this Hon'ble Court is of the Opinion that closure order is passed without affording opportunity of hearing to petitioner / in breach of principle's of natural justice, matter may be remanded back with direction to adjudicate show cause notice afresh within stipulated time after giving sufficient opportunity to petitioner and petitioner may be directed to appear before the respondent board and to file its representation within the stipulated time and respondent shall decide the same afresh."
9 Thereafter, the learned senior counsel invited the attention of this Court to the further affidavit filed on behalf of the GPCB. In the further affidavit, the following has been stated:
"At the outset, it is again submitted that SCN dated 13122019, @ P. 109, was served upon the petitioner via online mode on 13122019 @15:55:00. To substantiate the same, deponent herein annexed the screen shot of the GPCB portal, which is marked as ANNEXURE: 1. It is submitted that intimation of issuance of SCN is also served upon the petitioner firm i.e. on its Registered Mobile being mobile number 7211102011, on 13 122019, itself."Page 8 of 10 Downloaded on : Fri May 29 22:13:56 IST 2020
C/SCA/6098/2020 ORDER 10 It appears from the materials on record that the villagers took
up the issue in public interest. It appears that the villagers are objecting to the various setting up of the industrial unit in their village. It appears that it is the case of the villagers that the consent order was granted by the GPCB contrary to the guidelines.
11 We do not propose to go into the merits of the case as we are of the view that both the impugned orders deserve to be quashed only on the ground that appropriate opportunity of hearing was not given to the writ applicants. We are of the view that the writ applicants must be heard by the GPCB, and thereafter, a fresh order, in accordance with law, may be passed.
12 In such circumstances referred to above, this writ petition
succeeds and is hereby allowed. The impugned orders dated 29 th
February 2020 at Annexure : A/1 and dated 2 nd
March 2020 at
Annexure : A/2 are hereby quashed and set aside. The matter is remitted to the GPCB for fresh hearing. The GPCB shall inform a particular date to the writ applicants for the purpose of fresh hearing. On a particular date, as may be informed by the GPCB, the writ applicants shall appear before the competent authority and make good their case so far as the show cause notice referred to above is concerned.
13 Let this exercise be undertaken and completed within a period of six weeks from today.
14 As both the impugned orders are ordered to be quashed and set aside, the respondents No.3 is directed to restore the power supply so far as the industrial unit of the writ applicants is Page 9 of 10 Downloaded on : Fri May 29 22:13:56 IST 2020 C/SCA/6098/2020 ORDER concerned.
15 With the above, this writ application stands disposed of.
(J. B. PARDIWALA, J) (ILESH J. VORA,J) CHANDRESH Page 10 of 10 Downloaded on : Fri May 29 22:13:56 IST 2020