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1 CWP No. 20767 of 2008.
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
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M/S Chaudhary Chemical Industries Versus Haryana state Pollution Control Board and ors.
CWP No. 20767 of 2008.
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CORAM: Hon'ble Mr. Justice T.S.Thakur, CJ and
Hon'ble Mr. Justice Jasbir Singh.
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Present: Shri R.B.S.Chahal, Advocate for the petitioner.
Shri Arun Walia, Advocate for the respondents.
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T.S.Thakur, Chief Justice (Oral)
Issue Rule.
The respondent Board has appeared and filed a counter affidavit through Shri Arun Walia, Standing counsel for the Board. With consent this petition has been heard by us for final disposal.
The petitioner calls in question the correctness of an order dated 20.11.2008/4.12.2008 issued under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 directing closure of the unit set up by the petitioner for distillation of acids at Bahalgarh on the Karnal G.T.Road on the outskirts of Delhi in district Sonipat. The challenge arises in the following circumstances.
The petitioner is a registered partnership firm which has set up a small scale unit engaged in the sale of Chemicals since the year 1962 at Village Bahalgarh in Sonipat district of Haryana. The unit in question is according to the petitioner purchasing Hydrochloric Acid, Sulphuric Acid, Nitric Acid and Calcium Nitrate from Gujrat Alkalis and National Fertilizers Limited. The acids so purchased are brought to the unit aforementioned for purification, packaging and for utilizing a part of the same to manufacture Calcium Nitrate. The petitioner's case is that the unit is a small scale unit 2 CWP No. 20767 of 2008. and there are hardly any emissions from the same or any effluent discharge to require any Pollution Control measures or effluent treatment plant. According to the Board the unit in question was inspected by the Field Staff on 29.05.2008 who noticed that the unit was discharging untreated effluent in the open land without any ETP for treatment of the said effluent and that the unit had not provided APCM (Air Pollution Control Measure) for emissions arising from the distillation process or emanating from the coal fired bhatties being used in the unit. In the opinion of the field staff, the unit was violating Sections 25/26 of the Water(Prevention & Control of Pollution) Act, 1974 and 21/22 of the Air (Prevention and Control of Pollution) Act, 1981.
On receipt of the reports aforementioned, the Regional Office, Sonipat Region issued a show cause notice dated 3.6.2008 to the unit for its closure under Section 33-A of the Water (Prevention & Control of Pollution) Act, 1974 and 31-A of the Air (Prevention and Control of Pollution) Act, 1981. In response to the said notice, the unit submitted a written reply in which it was inter alia stated that although the unit was earlier processing some of the products in the premises but due to various economic reasons and cut throat competition in the market most of the goods are now being purchased as finished products only. The unit further stated that the discharge of effluents has considerably gone down on account of the said reasons. It also stated that although the APCM system of an approved type stands already installed in the unit, yet since the manufacturing process was at a very low scale, there was no need to keep the APCM system in operation as there were hardly any fugitive emissions. The effluent discharge, according to the unit, was in its own agricultural land and not in the surrounding area.
Upon consideration of the reply, the Regional Officer recommended to the Chairman of the Pollution Control Board that the reply 3 CWP No. 20767 of 2008. submitted by the petitioner was unsatisfactory and that the unit deserved to be given a personal hearing at the Head Office level. Consequently, a notice was issued to the Unit for a personal hearing scheduled for October 15, 2008. Shri Naresh Lal Chaudhary, partner of the Unit appeared on the said date before the competent authority and made a signed statement promising to undertake the following measures:-
"Shri Naresh Lal Chaudhary Partner on behalf of the said firm appeared before the competent authority today for the personal hearing and informed the following:-
1. That the unit will submit the scheme for
modernization/upgradation/improvement of ETP/APCM
within 15 days and complete the ETP/APCM within 3
months.
2. That the unit will install the Magnetic Flow Meter at the main source of total water supply and will install the Electronic Flow Meter at the final outlet of the ETP/unit.
3. That the unit will install energy meter for the proof of running of Air Pollution Control Measures and will maintain the log book for the same.
4. That the unit will have at least one day storage capacity of equalization tank.
5. That the unit will provide additional oil and grease trap and automatic chemical dosing system and will also provide one stand by motor in case of any break down within the Effluent Treatment Plant.
6. That the unit will submit the Bank guarantee of Rs. 50,000/- within 15 days for complying the above said conditions, failing which the bank guarantee so provided will be forfeited by the H.S.P.C.B.
7. That the unit will submit the affidavit duly attested by Notary within 15 days for the compliance of above said 4 CWP No. 20767 of 2008. conditions, failing which closure action will be initiated under Section 33-A of the Water Act, 1974 and 31-A of Air Act, 1981.
8. That the unit will maintain the parameters laid down by the Board under Water Act and Air Act.
I accept the above conditions and give assurance to comply the same in the stipulated period.
Signature: Naresh Lal Chaudhary Name and Designation: Partner Dt. 15.10.08."
The Regional Officer then submitted another report dated 6.11.2008, according to which the unit had neither submitted the scheme for upgradation of the APCM nor furnished a bank guarantee of Rs. 50,000/-. The Regional Officer, accordingly recommended the closure action under Section 33-A of the Water Act, 1974. On receipt of the said recommendation, the Board has passed an order and directed closure of the unit under Section 33-A of the Water (Prevention & Control of Pollution) Act, 1974. The present petition assails the validity of the said order, as already noticed above.
On behalf of the petitioner it was strenuously argued by Mr. Chahal that the field staff had at no stage visited the unit nor were any samples taken of the emissions or the treated effluent. It was urged by him that the notice issued by the Regional Office was mala fide and that the unit was being harassed because it had declined to satisfy the demands of the officers in the Regional Office. There is in our opinion no merit in that contention. The reply submitted by the petitioner-unit to the show cause notice issued by the Regional Office does not make any suggestion what so ever that the field staff of the Pollution Control Board had not visited the unit. If the show cause notice had in deed been issued without visit by the field staff that ought to have been the first objection from the petitioner in the reply to the show cause notice. There is no explanation much less a 5 CWP No. 20767 of 2008. cogent one forthcoming from the petitioner for not pointing out this aspect in the reply sent by it to the show cause notice. Not only that in the course of hearing before the Pollution Control Board also the unit at no stage had alleged that the field staff had not visited the unit or that there was no pollution being caused by the working of the unit. On the contrary the managing partner of the unit appeared before the board and specifically undertook to take all such measures as were necessary to prevent pollution. The undertaking inter alia was to the effect that the unit shall furnish a Bank guarantee for Rs. 50,000/- as is evident from a bare reading of the written statement made before the Board and extracted by us in the earlier part of this order. It is, therefore, difficult for us to appreciate the argument that the field staff had not visited the unit nor is it possible for us to accept the submission made before us that there was no necessity for the installation of any anti pollution control measures or the effluent treatment plant. Having appeared before the Board and undertaken to provide both the measures we fail to appreciate how the petitioner can still argue that the unit did not call for either of the two requirements.
Mr. Chahal next contended that the undertaking referred to by the Pollution Control Board and extracted by us in the earlier part, was taken from the petitioner without giving sufficient opportunity to it to think and deliberate over the matter. There is no merit in that contention either. The writ petition is totally silent about the alleged coercion or lack of reasonable opportunity to the unit to properly respond to the show cause notice. The argument that since the manufacturing process has reduced substantially on account of the cut throat competition in the market, it is neither necessary to have the APCMs functional nor provide for any effluent treatment plant needs notice only to be rejected. So long as the unit is working at what ever levels of production and so long as there is no exemption granted by any provisions of the law to a unit we find it difficult 6 CWP No. 20767 of 2008. to say how the requirements of law can be circumvented by simply stating that the output has gone down. At any rate the question which is under consideration in the present proceedings is limited to finding out whether the order impugned in the present writ petition suffers from any error of jurisdiction or material irregularity. Learned counsel vehemently argued that the Environmental Engineer had in terms of a communication addressed by him to the Financial Manager District Industries, Kundli stated that the working of the unit did not result in any pollution. He urged that on the face of the said certificate it was not possible for the Board to issue a show cause notice or an order shutting down the unit. There is in our opinion no merit even in that contention. A careful reading of Annexure P-4 to the writ petition reliance whereupon was placed by Mr. Chahal, does not in our opinion show any certificate having been given by the Environmental Engineer as is sought to be assumed by Mr. Chahal. All that the letter refers to is "that the petitioner unit is engaged in the process of purification of commercial Acids." It also refers to the process of the distillation being in glass flasks through glass tubes and condensation by cooling process through water. The context in which the letter was addressed by the Environmental Engineer to the Financial Manager is also not very clear from the communication in question although it appears that there was some case pending in the Supreme Court arising from some decision rendered by the High Court of Gujarat. Be that as it may, whether the unit is causing any pollution and if so what measures need to be taken or what kind of ETP would be effective is a matter that has to be determined. The question whether the petitioner unit was causing any pollution has not been examined by any court or authority leave alone the Supreme Court in any earlier round of litigation.
It was lastly contended by Mr. Chahal that the issue regarding exemption of the unit which has already been sealed by the Pollution 7 CWP No. 20767 of 2008. Control Board, could be directed to be re-examined by an independent authority like a Sub-Committee to be appointed by the Central Pollution Control Board to identify whether or not the unit is causing any pollution and if so what measures would be essential to satisfy the requirements of law. Mr. Walia, we must say in fairness was not averse to any such sub- committee being appointed for getting the unit tested or the efficacy of the APCM and the ETP determined. The Central Pollution Control Board, it was submitted, be asked to appoint a sub committee to look into the working of the unit and to recommend suitable measures to control the pollution. We, therefore, see no reason to decline the limited prayer made by the petitioner. The fact that the unit had been sealed does not mean that it cannot re-start its activities provided it satisfies the authority concerned regarding the installation and the efficacy of APCM and ETP.
We accordingly direct that the Central Pollution Control Board shall constitute a Sub-Committee of experts familiar with the subject of pollution resulting from the purification of acids etc. to inspect the unit and to suggest ways and means by which the emissions and the discharge can be kept within permissible limit. It goes without saying that the committee so constituted shall be free to examine the measures if any already in existence or require any further augmentation of such measures. The committee can see the actual working of the unit before it can make any recommendations on the subject. We direct that at the request of the committee, the Haryana Pollution Control Board shall have the seals of the unit removed to enable the committee to inspect the same and to put the unit on trial run in order to enable the committee members to take samples or to check the working of the systems if any. We, however, make it clear that after the trial run is complete, the Board shall be free to reseal the unit which shall continue till such time the Central Pollution Control Board is satisfied with the installation of APCM and the ETP, if any suggested by the 8 CWP No. 20767 of 2008. Sub-Committee and till final orders on the same are passed by the said Board. We further make it clear that the time frame within which the unit will be put on trial run for the purposes of inspection by the Sub Committee shall be left to be determined by the Sub-Committee.
The Sub-Committee shall be constituted by the Central Pollution Control Board, within one month from today. The Committee shall undertake the process and complete the same within four weeks thereafter. Final orders on the subject shall be passed by the Central Pollution Control Board expeditiously but not later than four weeks from the date the Sub- Committee submits the report.
The writ petition is with the above directions disposed of. No order as to costs.
A copy of this order shall be given dasti to the counsel under the signatures of Court Master of the Court.
(T.S.Thakur) Chief Justice (Jasbir Singh) Judge December 15, 2008 Malik