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ORDER Anil Dev Singh, J.
1. These are applications on behalf of the petitioners under section 151 CPC for seeking clarification of the order dated August 6, 1998 whereby the writ petitions filed by the applicants were disposed of.
2. In the writ petitions, the petitioners had impugned order of the third respondent, Delhi Pollution Control Committee dated May 25, 1998 whereby the petitioners were directed to stop functioning and operating their units in Delhi with immediate effect. The petitioners are manufacturers of rubber auto tubes. According to the impugned orders, the industries of the petitioners manufacturing rubber auto tubes fall in category H(a) in Annexure III to the Master Plan, 2001. It needs to be noticed that industries falling in H(a) categories are hazardous in nature & are consequently prohibited to operate within the Union Territory of Delhi. The impugned orders go on to recite that the Supreme Court in I.A.224/94 in Writ Petition (Civil) No.46/77 has held that the manufacturing units falling in group H(a) cannot be permitted to operate and function in Delhi and such Industries may be re-allocated to any other industrial estate in the National Capital Region.
3. On August 17, 1998 the following order was passed by this Court in C.W.Ps:-
Mr. Ishwar Singh appears for the Central Pollution Control Board. He has been apprised of the orders dated August 6, 1998 and August 14, 1998. He states that he will file an affidavit with regard to the question which has been raised and specified in order dated August 14, 1998. Let the affidavit be filed within five days. Rejoinder to the affidavit, if any, be filed within two days thereafter. In case the Central Pollution Control Board has not performed any tests in that event they should permit the writ petitioner in Writ Petition No. 2947/98 to run the industry for the purposes of enabling the Central Pollution Control Board to perform the requisite tests. It will also be open to the Delhi Pollution Control Committee to perform the tests. If the Delhi Pollution Control Committee is to perform the tests it is clarified that the inspection by the Central Pollution Control Board and Delhi Pollution Control Committee will be made at one and the same time.
4. This order was passed with the consent of the parties. By means of the instant applications, the applicants seek re-call/clarification of the order dated August 6, 1998 on the ground that the third respondent had orally advanced the plea based on section 21 of the Air(Prevention & Control of Pollution) Act, 1981 on August 6, 1998 & at the spur of the moment petitioners' counsel was not able to cross check the plea. Under the bonafide belief that the petitioners falls within the purview of section 21 of the Act, the learned senior counsel for the petitioner did not raise any objection to the same. At this stage, it will be convenient to extract para 4 of the applications:-
"That it is pertinent to mention here that since the above mentioned argument happened at the spur of the moment and that too when the petitioner's counsel was not able to cross check the plea of the respondent No.3 because of the above mentioned fact, herefore, under the bonafide belief that the petitioner falls within the purview of section 21 of the said Act, the counsel for the petitioner could not raise any objection to the same."
5. On August 14, 1998 learned senior counsel for the petitioners in support of the applications submitted that the petitioners were not having any industrial plant within the meaning of section 2(k) read section 2(a) of the Act and as such section 21 thereof was not applicable. Section 2(a), 2(k) and section 2(l) read as follows:-
2(a) "air pollution" means any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment;
xx xx xx 2(k) "industrial plant" means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere;
xx xx xx 21(1). Restrictions on use of certain industrial plants-
Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area:
Provided that a person operating any industrial plant in any air pollution control area immediately before the commencement of Section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application.
6. It was the submission of learned senior counsel for the petitioners that the industries of the petitioners were not emitting any air pollutants and therefore, the provisions of sections 21, 2(a) and 2(k) of the Act were not attracted. In order to give a fair opportunity to the petitioners, the Central Pollution Control Board was directed to specify whether they had subjected the emissions from the industries of the petitioners to Chemical tests. On August 17, 1998 the Central Pollution Control Board was directed to perform tests in case it had not performed the same earlier. In order to enable the Central Pollution Control Board to perform the requisite tests, the writ petitioner in Writ Petition No.2947/98, was permitted to run the industry. On September 16, 1998 the Central Pollution Control Board presented its report. The report concludes as follows:-
1. The high concentration of particulate matter (3604 microgramme/cum) was observed in the compounding and extruding section.
2. The concentration of suspended particulate matter is ambient air (654 microgramme/cum) exceeds the limit (400 mg/Nm 3). The height of stack connected to the boiler is to be increased to 11m based on minimum stack height regulations.
3. The concentration of suspended particulate matter in ambient air (654 microgramme/cum) exceeds the limit (200 microgramme/cum). However, the concentration of Benzi (a) preen in ambient air (5.41 nanogramme/cum) was found to be within limits (10 nanogramme/cum).
4. Benzi
(a) preen and Benzi
(e) preen were not detected in work zone area.
7. As is evident from items No.1 to 3 above, the emissions contained particulate matter beyond the prescribed limits. It is not disputed that the factories are not located in residential areas. As per the Notification dated April 11, 1994 issued by the Central Pollution Control Board under section 16(2)(h) of the Act, the National Ambient Air Quality Standards with regard to residential, rural and other areas are as follows:-
Pollutant Time Weighted Residential,Rural
average & other areas
Sulphur Dioxide Annual Average 60pg/m3
(SO 2) 24 hours 80pg/m3
Suspended Part- Annual Average 140pg/m3
iculate Matter 24 hours 200pg/m3
(SPM)
8. Thus it is obvious that the concentration of suspended particulate present in ambient air at the time of the test far exceeds the prescribed limits. Though the Central Pollution Control Board, Delhi has concluded that concentration of sulphur dioxide in the boiler emissions is within the prescribed limit the standards laid down in the above Notification show to the contrary. It needs to be noticed that the results relating to particulate matter and concentration of sulphur dioxide were obtained after short run of the factory. Even during short run of the factory, the concentration of sulphur dioxide and particulate matter were beyond the standards laid down by the Central Pollution Control Board. Thus the submission of learned senior counsel for the petitioners that the industries of the petitioners did not fall within the purview of the section 21 of the Act is not well founded. As per section 2(k) of the Act, industrial plant means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere. As per section 2(a), air pollution inter-alia means any solid, liquid or gaseous substance present in the atmosphere in such concentration as may be injurious to human beings or other living creatures or plants or property or environment. The National Ambient Air Quality Standards laid down by the Central Pollution Control Board under section 16(2)(h) of the Act are meant to preserve the environment. In case sulphur dioxide, suspended particulate, carbon monoxide etc. exceed the time weighted averages laid down in Notification obviously the industry releasing such emissions will attract the provisions of sections 2(a), 2(k) and 21(1) of the Act. Therefore, such an industry cannot be allowed to run without the previous consent of the State Pollution Control Board. Thus there is no justification for the petitioners to ask for recall of the order dated August 6, 1998.
9. In the written submissions filed after the close of arguments, the petitioners have submitted that the Ambient Air Quality Statistics, 1995 reveal that particulate matter in ambient air is far in excess of 200 ug/m3 even in residential areas of Delhi. The purport of the submissions of the petitioners appears to be that as in certain areas of Delhi, the particulate matter exceeds 200 micro grammes/cum, the particulate matter emitted in excess by the industry should be over-looked. Obviously such an argument cannot be accepted as it will strike a death blow to the efforts to eradicate pollution. One cannot loose sight of the fact that the concentration of suspended particulate matters are chiefly due to the emissions from the factories, which have not taken measures for installation of pollution control devices, and vehicular traffic. The emissions must conform to the standards prescribed by law. The written submissions also emphasise that the tests were performed for 370 minutes and for the purposes of working out the 24 hourly mean the readings for 370 minutes is to be calculated as per below for arriving at the mean :-
654 x 370 = 168 1400
10. The petitioners do not seem to be correct in stating that the particulate matter emitted at the time of test run of the industry was less than the prescribed limits. When the unit was run for 370 minutes, the particulate matter emitted was to the tune of 654 ug/m3 at the top floor of the industry. The fugitive emission was as follows:-
FUGITIVE Compounding 500 - 1700 SPM 3604 (120 mins.) Curing(1) 1040 - 1240 SPM 2796 Section (120 mins.) Curing (2) 305 - 1505 SPM 1 833 Section (120 mins.) Curing (3) 1510 - 1710 SPM 1220 Section (120 mins.)
11. Thus it seems that even when the factory was running for a lesser period of time, the emission levels were found to be beyond the prescribed limits. The emission of hazardous substances endangers life. If the poisonous gases and particulate matters are allowed to be thrown into the atmosphere, the future of ten million inhabitants of Delhi would be at stake. While industrial growth is extremely important, more important is the preservation of environment. It must be realised that the industry should strive for sustainable growth which is compatible with environment.
12. Learned senior counsel for the petitioners also submitted that the manufacturing of auto tubes cannot fall under category H (a) in Annexure III to the Master Plan. Learned counsel for the Central Pollution Control Board has drawn my attention to the decision of the Supreme Court rendered in M.C. Mehta Vs. Union of India and others, in which it was held that as per the mandatory provisions of the Master Plan, the hazardous and noxious industrial units falling in category H(a) can not be permitted to operate in Delhi. The Supreme Court observed as follows:-
"There is no doubt that the H(a) industries have been operating in Delhi illegally during the last about three years. They must stop operating in Delhi and relocated themselves to some other industrial estate in the NCR. We are further of the view that the concerned officers of the Delhi Administration are equally responsible for continuous illegal operation of the H(a) industries in the city of Delhi. The Chief Secretary, Delhi Administration shall hold an inquiry and fix the responsibility of the officers/officials who have been wholly re-miss and negligent in the performance of the statutory duties entrusted to them under the Master Plan."
13. The Delhi Pollution Control Committee filed a list of industries, which were categorised as H(a) and H(b) before the Supreme Court. In this list some of the industries manufacturing tyres and tubes also figure. By subsequent order dated September 6, 1996 in the case of M.C. Mehta vs. Union of India the Supreme Court noted that the Committee after considering the objections of the units, which were given public/individual notices to show cause why they be not declared as category H(a) or H(b) industries under the Master Plan, had classified 532 units as falling in 'H' category. These included 443 units which did not respond to the public notices and 89 units whose objections were rejected by the Committee after due consideration. It also noticed that the Committee dealt with yet another 290 'H' category industries consisting of 240 brick kilns, 43 electric furnaces and 1 forging unit. Therefore, a total of 822 industries were classified by the Committee as falling in category 'H'. These industries were directed to be reallocated. As already pointed out that some of the units producing rubber tyre and tubes were classified as falling under H(a) category. The names of these industries are: M/s.Asiatic Rubber Industries, M/s.Calcutta Rubber Factory, M/s.Jupiter Rubber Products and M/s.Ray Industry. Therefore, the question is when the lists of industries were filed before the Supreme Court and the industries falling therein were classified as H(a) Industries and were directed to be reallocated, it is not for this Court to examine the question as to whether or not these industries fall in category (H). When this aspect of the matter was brought to the notice of the learned counsel for the petitioners, he stated that he will take appropriate steps to seek clarification from the Apex Court.
14. For the aforesaid reasons, the order dated August 6, 1998 does not require any clarification. Accordingly, the applications are dismissed.