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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938
WP(C).No. 18558 of 2016 (T)
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PETITIONER(S):
-----------------------
M/S. SREE SAKTHI PAPER MILLS LTD.,
HAVING AT REGISTERED OFFICE AT
SREE KAILAS PALLIAM ROAD, 39/2724 A,
ERNAKULAM, KOCHI-682 016,
REPRESENTED BY ITS DEPUTY GENERAL MANAGER
AND AUTHORISED SIGNATORY MR.V. VINOD KUMAR.
BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE.
ADVS.SRI.V.B.UNNIRAJ,
SMT.R.S.GEETHA,
SMT.K.SEEMA,
SMT.P.ANITHA.
RESPONDENT(S):
--------------------------
1. STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. KERALA STATE POLLUTION CONTROL BOARD,
THIRUVANANTHAPURAM-695 001,
REPRESENTED BY ITS CHAIRMAN.
3. ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
UDYOGAMANDAL, PIN-683 501.
4. MUNICIPAL COUNCIL, ELOOR-683 104,
REPRESENTED BY ITS CHAIRMAN.
5. ELOOR MUNICIPALITY,ELOOR-683 104,
REPRESENTED BY ITS SECRETARY.
WP(C).No. 18558 of 2016 (T)
6. KADUNGALLUR GRAMA PANCHAYATH,
KADUNGALLUR, REPRESENTED BY ITS SECRETARY,
PIN-683 502.
* ADDL. R7 IMPLEADED
7. PERIYAR MALINEEKARANA VIRUDHA SAMITHI,
REPRESENTED BY ITS TREASURER, ANVAR C.I.,
AGED 49 YEARS, S/O.P.A. IBRAHIM, RESIDING AT
CHENNOTH HOUSE, ELOOR NORTH,
UDYOGAMANDAL PO.
* ADDL. R7 IS IMPLEADED AS PER ORDER DATED 20/06/2016
IN I.A. NO.6840/2016.
** ADDL. R8 IMPLEADED
8. WATER (PREVENTION AND CONTROL OF POLLUTION)
APPELLATE AUTHORITY,DEVI KRIPA BUILDING, PETTA,
TRIVANDRUM - 695 024.
** ADDL. R8 IS IMPLEADED AS PER ORDER DATED 20/06/2016
IN I.A. NO.7033/2016.
*** ADDL. R9 & R10 IMPLEADED
9. ERNAKULAM DISTRICT INDUSTRIAL LABOUR
ASSOCIATION (INTUC-1), SREE SAKTHI PAPER MILLS UNIT,
EDAYAR, ERNAKULAM, REPRESENTED BY ITS
VICE PRESIDENT MR.K.S. AJITH.
10. SREE SAKTHI PAPER MILLS EMPLOYEES UNION (CITU),
AKG MANDIRAM, ALUVA, REPRESENTED BY ITS
VICE PRESIDENT, MR.DILISH, S/O.A.K. SUBHASHAKAN.
*** ADDL. R9 & R10 ARE IMPLEADED AS PER ORDER DATED 20/06/2016
IN I.A. NO.9716/2016.
WP(C).No. 18558 of 2016 (T)
# ADDL. R11 IMPLEADED
11. SUBAIDA HAMSA, AGED 55 YEARS,
W/O. HAMSA, RESIDING AT VELLAMKOLIL HOUSE,
KUTTIKATTUKARA P.O., PATHALAM,
CHAIRPERSON, JANAJAGRATHA PEOPLES' INITIATIVE
FOR ENVIRONMENTAL PROTECTION AND
SOCIAL AWARENESS, DOOR NO.A-33,
KUTTIKATTUKARA P.O., PATHALAM, PIN-683 501.
# ADDL. R11 IMPLEADED AS PER ORDER DATED 21/06/2016 IN
I.A. NO.6813 OF 2016.
R1 BY GOVT.PLEADER SMT.LILLY K.T.
R2 & R3 BY ADV. SRI. M.AJAY, SC.
ADDL.R7 BY ADVS. SRI.RAJAN VISHNURAJ,
SRI.V.HARISH.
ADDL.R9 & R10 BY SRI.GRASHIOUS KURIAKOSE, SENIOR ADVOCATE
ADV. SRI.GEORGE MATHEWS,
R11 BY ADV. SRI.K.K.ASHKAR.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 21-06-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 18558 of 2016 (T)
APPENDIX
PETITIONER'S EXHIBITS:-
P1. TRUE COPY OF THE NOTICE NO.PCB/ESC.CO-99/07 DATED 04/05/2016
ISSUED BY THE 3RD RESPONDENT.
P2. TRUE COPY OF THE NOTICE DATED 05/05/2016 ISSUED BY THE
PETITIONER TO THE 3RD RESPONDENT.
P3 TRUE COPY OF THE LETTER NO.PCB/ESC.CO-99/07 DATED 06/05/2016
ISSUED BY THE 3RD RESPONDENT.
P4 TRUE COPY OF THE NOTICE NO.PCB/ESC.CO-99/07 DATED 10/05/2016
ISSUED BY THE 3RD RESPONDENT.
P5 TRUE COPY OF THE REPLYDATED 17/05/2016 BY THE PETITIONER TO
THE 3RD RESPONDENT.
P6 TRUE COPY OF THE REPLYDATED 24/05/2016 SUBMITTED BY THE
PETITIONER TO THE 3RD RESPONDENT.
P7 TRUE COPY OF THE ORDER NO.PCB/ESC.CO-99/07 DATED 24/05/2016
ISSUED BY THE 3RD RESPONDENT.
P8 TRUE COPY OF THE STATEMENT REVENUE PAID BY PETITIONER
DURING 2013-14 AND 2014-15.
P9. TRUE COPY OF ONE OF THE INVOICE SHOWING THE SALE OF PULP
WASTE (SLUDGE).
P10 TRUE COPY OF THE MEMORANDUM OF APPEAL WITHOUT
ANNEXURES.
RESPONDENT'S EXHIBITS:-
ANNEXURE R2A COPY OF THE LIST OF 17 CATEGORY INDUSTRIES.
ANNEXURE R2B COPY OF THE INTEGRATED CONSENT TO OPERATE
VALID UPTO 30/06/2015.
ANNEXURE R2C COPY OF THE LETTER DATED 03/03/2016.
ANNEXURE R2D COPY OF THE REPLYFROM THE UNIT DATED 14/03/2016.
ANNEXURE R2E COPY OF THE CONSENT TO OPERATE VALID UPTO 30/06/2016.
ANNEXURE R2F & R2G: COPY OF THE SHOW CAUSE NOTICES
DATED 06/02/2016 & 18/03/2016.
....2/-
WP(C).No. 18558 of 2016 (T)
ANNEXURE R2H & R2I COPY OF THE REPLYFROM THE UNIT DATED 09/02/2016
AND 22/03/2016.
ANNEXURE R2J COPY OF THE ANALYSIS REPORT.
EXT.R7A COPY OF THE PROCEEDINGS OF THE KERALA STATE HUMAN
RIGHTS COMMISSION DATED 08/04/2014 IN HRMP NO.5078/2013
FILED AGAINST THE PETITIONER.
EXT.R7B COPIES OF THE PAGES 157 TO 165 OF THE ENVIRONMENTALAUDIT
REPORT 2004-05 SUBMITTED BY LAEC DEALS WITH THE INSPECTION
CONDUCTED IN THE 3RD PETITIONER.
EXT.R7C COPY OF THE NEWS REGARDING FISH KILL IN PERIYAR APPEARED
IN MALAYALA MANORAMA DAILY DATED 09/05/2016.
EXT.R7D COPY OF THE CONSENT NO.PCB/HO/EKM/CO/IC/02/07
DATED 26/03/2007 ISSUED TO THE PETITIONER BY THE
2ND RESPONDENT BOARD.
EXT.R7E COPY OF THE CONSENT NO.PCB/HO/EKM/CO/ICO/02/07/R1/2010
DATED 21/07/2010 ISSUED TO THE PETITIONER BY THE BOARD.
EXT.R7F COPY OF THE DIRECTION ISSUED BY CPCB TO 2ND RESPONDENT
BOARD DATED 02/03/2015.
EXT.R7G COPY OF THE NOTICE DATED 24/07/2015 ISSUED BY CPCB TO
THE PETITIONER.
EXT.R7H COPY OF THE NOTICE ISSUED TO INDUSTRIES WHO HAVE NOT
RECEIVED AND RESPONDENT TO EXT.R7G SHOW CAUSE NOTICE.
EXT.R7I COPY OF THE CLOSURE DIRECTION ISSUED AGAINST ANOTHER
INDUSTRY WHO HAS NOT IMPLEMENTED ONLINE MONITORING
SYSTEM AND NOR RESPONDED EXT.R7G AND R7H LIKE PETITIONER.
EXT.R8A COPY OF THE RELEVANT PAGES OF THE ENVIRONMENTAL AUDIT
REPORT PREPARED BY THE LAEC IN NEXUS WITH THE PETITIONER'S
INDUSTRIAL UNIT.
EXT.R8B COPY OF THE DIRECTION DATED 18/01/2014 ISSUED BY THE
3RD RESPONDENT.
EXT.R8C COPY OF THE DIRECTION DATED 24/01/2014 ISSUED BY THE
3RD RESPONDENT.
EXT.R8D COPY OF THE ORDER DATED 25/01/2014 ISSUED BY THE
3RD RESPONDENT.
.....3/-
WP(C).No. 18558 of 2016 (T)
EXT.R8E COPY OF THE CLOSURE INTENTION NOTICE DATED 29/10/2014
ISSUED BY THE 3RD RESPONDENT.
EXT.R8F COPY OF THE LETTER DATED 09/07/2015 ISSUED BY THE
3RD RESPONDENT.
EXT.R8G COPY OF THE SHOW CAUSE NOTICE DATED 17/09/2015
ISSUED BY THE 3RD RESPONDENT.
EXT.R8H COPY OF THE REPLY DATED 10/10/2015 SUBMITTED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT.
EXT.R8I COPY OF THE WATER ANALYSIS REPORT PREPARED BY THE
3RD RESPONDENT.
EXT.R8J COPY OF THE SHOW CAUSE NOTICE DATED 06/02/2016
ISSUED BY THE 3RD RESPONDENT.
EXT.R8K COPY OF THE SHOW CAUSE NOTICE DATED 18/03/2016
ISSUED BY THE 3RD RESPONDENT.
EXT.R8L COPY OF THE PHOTOGRAPHS EVIDENCING THE ALARMING
HEAPS OF PLASTIC WASTE DUMPED BY THE PETITIONER IN
THE INDUSTRIAL SITE.
//TRUE COPY//
P.S.TO JUDGE
rs.
A.M.SHAFFIQUE, J
* * * * * * * * * * * *
W.P.C.No.18558 of 2016
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Dated this the 21st day of June 2016
J U D G M E N T
Petitioner, an industrial unit, has approached this Court challenging Ext.P7 by which an order has been passed by the Pollution Control Board (hereinafter referred to as 'the Board') under Section 33A of the Water (Prevention and control of Pollution) Act, 1974 (hereinafter referred to as 'the Act') by which there is a direction to close down the unit of the petitioner.
2. Petitioner is a company having a unit at Edayar, Ernakulam. The unit started functioning in the year 1992. According to the petitioner, they were complying with all statutory requirements and, in the meantime, directions had been issued by the Board to close down the unit and to stop discharge of any effluent into river Periyar. Ext.P1 is the notice dated 04/05/2016. Petitioner submitted representations clarifying the various issues raised by the Board and thereafter the Board conducted a proper study in the matter and finally petitioner was faced with Ext.P7 order, by which, the Board, while pointing out certain infirmities in the functioning of the unit, directed closure of the unit. It is inter W.P.C.No.18558/2016 2 alia contended by the petitioner that the Board had not considered various objections raised by the petitioner and the factual circumstances involved in the matter had not been properly appreciated.
3. This Court had granted an interim order staying further proceedings pursuant to Ext.P7. In the meantime, counter affidavits have been filed by persons who had been impleaded in the case and the Board has also filed a report as per the directions issued by this Court.
4. I have heard the learned Standing Counsel appearing for the Board as well as the learned Counsel appearing for additional respondents 7 and 8. One main objection raised by the additional respondents 7 and 8 is regarding the maintainability of the writ petition especially on account of the specific statutory provision by which an alternate remedy is available under Section 33B(c) of the Act. Section 33A and 33B of the Act reads as under:
"33A. Power to give directions.-
Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its W.P.C.No.18558/2016 3 functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions.
Explanation- For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) the stoppage or regulation of supply of electricity, water or any other service."
33B. Appeal to National Green
Tribunal.-
(a) xxx
xxx
(c) direction issued under Section 33A by a Board, on or after the commencement of the National Green Tribunal Act, 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. Learned counsel appearing for the 7th respondent also placed reliance on the judgment of the Apex Court in Gopal Gas Peedith Mahila Udyog Sangathan and Others v. Union of W.P.C.No.18558/2016 4 India and Others [(2012) 8 SCC 326] to contend that after coming into force of the National Green Tribunal Act, 2010, all matters in which National Green Tribunal (hereinafter referred to as 'the Tribunal') has jurisdiction should be referred to the Tribunal.
6. Learned senior counsel appearing for the writ petitioner submits that though there is a report by the Board that appropriate steps have not been taken by the unit as provided under the consent to operate, petitioner is taking earnest efforts to install the facility ensuring zero discharge of effluent.
7. Be that as it may, in so far as an alternate remedy is available to the petitioner to challenge the impugned order, I do not think that this Court will be justified in interfering with Ext.P7 order, at this stage of the proceedings. It is open for the petitioner to approach the Tribunal and seek necessary direction. The petitioner is granted two weeks' time to approach the Tribunal and seek necessary direction.
This writ petition is disposed of as above.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr