HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 7
 
Case :- WRIT - C No. - 35706 of 2019
 
Petitioner :- Insilco Limited
 
Respondent :- Uttar Pradesh Pollution Control Board And Another
 
Counsel for Petitioner :- Vikas Singh (Sr. Adv.), Abhimanyu Chopra, Varun Singh, Ram Kausik, Tanmay Sharma,  Priyanka Midha,Ram M. Kaushik
 
Counsel for Respondent :-  Vishnu Pratap
 

 
Hon'ble Biswanath Somadder,J.

Hon'ble Ajay Bhanot,J.

(Per: Hon'ble Biswanath Somadder, J.) This is an application under Article 226 of the Constitution of India filed by a Limited Company - Insilco Limited - seeking this Court's intervention in respect of two orders; both dated 22nd October, 2019, passed by the Chief Environment Officer of Uttar Pradesh Pollution Control Board. One order was rendered in an application of the writ petitioner / company seeking consent to operate under section 21 / 22 of Air (Prevention and Control of Pollution) Act, 1981, as amended. The other order was passed in an application for the purpose of seeking consent to operate under section 25 / 26 of the Water (Prevention and Control of Pollution) Act, 1974, as amended.

This writ petition was initially moved on 5th November, 2019, when the following order was passed:-

"Having heard learned advocates for the parties and upon perusing the instant writ petition, we are of the view that the only issue which falls for consideration in the facts and circumstances of the case is whether the two orders (both dated 22nd October, 2019) were passed by the Uttar Pradesh Pollution Control Board without giving any opportunity of hearing to the writ petitioner. In order to get an answer to this issue, we direct the learned advocate representing the Uttar Pradesh Pollution Control Board to obtain specific instructions from his client and also bring before us the relevant records of the instant case in order to substantiate that the two orders were passed consequent upon giving adequate notice to the writ petitioner.

Put up this case on 13.11.2019 in the Additional Cause List."

Today, when the matter is taken up for further consideration, pursuant to the direction of this Court as contained in the order dated 5th November, 2019, the learned advocate appearing on behalf of Uttar Pradesh Pollution Control Board hands-over an "Instruction Note", which may be kept on record. This instruction note reveals certain facts which are relevant and are, therefore, setout hereinbelow:

"1. M/s Insilco Ltd, Gajraula, Amroha is engaged in production of Precipitated Silica - 21000 TPA from Sodium Silicate - 80 TPD, Suphuric Acid 31.5/day, Ammonia 30 kg/day.

2. Unit has earlier obtained Consent To operate Water under the provisions of Water (Prevention and Control of Pollution) Act, 1974 vide letter dated 08.05.2018 and valid upto 31-12-2018. Consent To operate Air under the provisions of Air (Prevention and Control of Pollution) Act, 1981 was issued vide letter dated 11-05-2018 valid upto 31-12-2018. The said Consent to Operate was issued with the specific condition that unit shall ensure Zero Liquid Discharge by 31-12-2018 through recycling of treated effluent or other methodology recommended by IIT, Roorkee and approved by CPCB.

3. Unit has obtained NOC dated 02.1.2018 from CGWA for ground water extraction of 4900 kl/day. The NOC from CGWA is valid upto 07.12.2019.

4. Unit has Effluent Treatment plant and treated effluent is diluted with fresh water to meet the norms of SAR (Sodium Absorption Ratio).

5. Hon'ble Supreme Court in PIL NO. 418/98 Imtiaz Ahmad vs. UOI, Directed UPPCB to prescribed SAR Limit for the industry. UPPCB in compliance imposed SAR value of 26 for treated effluent of the unit.

6. The matter of unit was taken up by Hon'ble NGT in O.A. No. 200/2014 M.C. Mehta vs. Union of India and Ors., Hon'ble NGT in its order dated 26.4.2017 considered the inspection report dated 25.4.2017 of High Power inspection team constituted by Hon'ble NGT wherein the inspection team found that M/s Insilco Ltd. has been prescribed with the norms of SAR which the unit is achieving not by treatment but by dilution with fresh water and such practice is nothing but fraud.

7. Hon'ble NGT in its order dated 26.4.2017 issued closure order against M/s Insilco Ltd. Hon'ble NGT in O.A. No. 200/2014 M.C. Mehta vs. Union of India and Ors. vide order dated 8.5.2017 allowed operation of unit subject to payment of Rs. 15 Lakh. Unit deposited the said amount. Hon'ble NGT also directed that as regards ZLD through dilution, the industry would put forward its case before joint inspection team which shall offer its comments and place the report before tribunal. The joint Committee of CPCB and UPPCB inspected the unit on 23.5.2017 and made following recommendations:

i. The Unit required to recalculate the dosing of magnesium sulphate to meet the SAR standard.

ii. In a time bound manner the unit shall discontinue the present chemical addition (10 Tons of MgSO4) and further dilution of ground water (1800 to 2000 KLD) to meet the prescribed SAR value (26). Instead unit may switch over to complete ZLD (Zero Liquid Discharge technology) system to save ground water and wastage of chemicals for neutralization. Presence of Fluoride (5 to 6 mg/1) also indicates that rather than dilution, ZLD may be the only option for achieving and continuity of the unit.

iii. Presence of inorganic pollutants in the storm water indicates poor operation and maintenance of the plant and suspected partial diversion of effluent or negligent handling of sludge by the unit, which may require further investigation.

iv. The Unit shall operate STPs continuously.

v. Closure of the unit may be considered, if the unit failed to provide the time bound action plan for achieving ZLD.

8. The unit vide letter 6.11.2017 communicated that agreement has been signed with IIT, Roorkee for assessment of possibility to recycle / reuse treated effluent in economic viability mode and development activity for investigation of alternative remedies to mitigate the high sulfate / high TDS in the effluent.

9. Board has issued directions on dated 12.1.2018 to the unit to ensure the compliance of recommendation of the joint inspection team.

10. The unit vide its letter dated 19.1.2018 submitted compliance of the directions and informed that the unit has appointed IIT, Roorkee to carry on research and development activity for investigation of alternative remedies to mitigate the high sulfate / high TDS in the effluent.

11. The unit vide its letter dated 26.4.2018 addressed to CPCB and UPPCB submitted the progress of R & D of IIT, Roorkee and submitted the interim report of IIT, Roorkee regarding treatment of high sulphate bearing waste water.

12. Unit vide its letter dated 20.8.2019 has submitted the Final report of Department of Civil Engineering IIT, Roorkee. UPPCB gave unit the opportunity to present its case and the findings made by IIT, Roorkee. Unit was invited for a presentation on final report on 17.9.2019. Unit presented its case on the said date.

13. In the final report IIT, Roorkee has evaluated various technologies like Reverse Osmosis (found non-feasible), MEE (found not techno economically viable), Gypsum Precipitation followed by biological treatment (found non-feasible), Electrocoagulation followed by nono filteration (non-feasible), Membrane - based ZLD process consisting of RO followed by MEE and crystallization (non-feasible). The report of IIT, Roorkee further suggests that treated waste water of 120 KLD STP may be used for dilution of effluent and in future when Gajraula STP gets commissioned, the unit may seek permission for utilization of treated sewage for dilution of treated effluent. The report clearly states that there is no feasible technology available other than the present practice followed by unit for the treatment to maintain SAR.

14. Unit is using fresh water for dilution of effluent to achieve the norms of SAR 26. The study carried out by IIT, Roorkee has failed to arrive at any feasible method for the industry.

15. The process of dilution with fresh water cannot not be allowed. Keeping the facts in view the Consent To Operate Water & Air application has been rejected by UPPCB vide its letter dated 22.10.2019. UPPCB while processing the consent application has given opportunity to the unit by raising query on 27.11.2018 and again on 1.5.2019."

The Chief Environment Officer, Uttar Pradesh Pollution Control Board, in his "Instruction Note" has also stated that the unit has not yet evolved any methodology for achieving prescribed standard of Sodium Absorption Ratio (SAR) value of 26 without dilution with fresh water. The Joint Committee, constituted by the Hon'ble National Green Tribunal (NGT), in its report has specifically mentioned that use of fresh water cannot be allowed for such purposes. It has also been specifically stated by the Chief Environment Officer that the Uttar Pradesh Pollution Control Board had decided the ''Consent to Operate' applications after giving sufficient opportunity to the concerned unit by way of query letters and invitation for presentation of the case. It has also been further stated that in the present writ petition, the concerned unit has contested the merit of the two letters dated 22nd October, 2019, rejecting the ''Consent to Operate' applications, without exhausting the alternative remedy provided under the two statutes.

We are alive to the settled proposition of law with regard to availability of statutory alternative remedy not being an absolute bar for a Constitutional Court to exercise its power of judicial review under Article 226 of the Constitution of India and step in to intervene in certain exceptional situations such as arbitrary or mala fide exercise of power or gross violation of the established principles of natural justice or exercise of power without jurisdiction and so on and so forth.

In the facts of the instant case, the writ petitioner-company participated all throughout the decision making process which led to passing of the two orders dated 22nd October, 2019. This is not a case where the two impugned orders strike the writ petitioner like a lightning bolt from the blue in an exceptional situation as enumerated above. Even if there might have been some technical/procedural infirmity, it is simply not so gross so as to allow the writ petitioner to get benefit of the extraordinary high-prerogative jurisdiction of this Court under Article 226 of the Constitution of India, which is essentially discretionary in nature. The two judgments which have been referred by the learned advocate representing the writ petitioner are both unreported. One is in respect of Writ - C No. 4462 of 2013 (H.M.A. Agri Industries Ltd. Versus State of U.P. through Secretary and others), being a judgment and order dated 28th January, 2013. The other judgment has been rendered more recently by another Division Bench of this Court on 31st May, 2019, in Writ - C No. 10259 of 2019 (H.M.A. Agro Industries Ltd. Versus State of U.P. and two others). We notice that the earlier judgment of this Court in Writ - C No. 4462 of 2013 has been followed in the latter judgment. So far as the earlier judgment rendered on 28th January, 2013, is concerned, in the facts of that case, a copy of an analysis report which was used against the writ petitioner had not been supplied to the writ petitioner. As such, in the considered opinion of the Division Bench, it was a lapse on the part of the concerned respondent which had to be rectified by them before the writ petitioner could be relegated out of the High Court on account of availability of statutory alternative remedy of appeal. Both the judgments referred by the learned advocate for the writ petitioner cannot be a blanket authority for the proposition that the writ Court is bound to entertain a writ petition in each and every case notwithstanding the existence and availability of statutory alternative remedy. In fact, as stated earlier, in the case of H.M.A. Agri Industries in Writ - C No. 4462 of 2013, the issue was centered around non supply of a copy of an analysis report to the writ petitioner which was used against the writ petitioner by the concerned respondent authority. In the latter case, the fact situation was totally different. The allegation was in respect of non compliance of direction issued by the National Green Tribunal (NGT) with regard to pollution caused by the Abattoris. In both cases, the writ petitioner was H.M.A. Agri Industries Ltd., which was engaged in the business of state of the art Abattoirs, where frozen meat was packed and sold across the world. The writ petitioner company was directed by the Uttar Pradesh Pollution Control Board to ensure that ETP (Effluent Treatment Plant) was operational and the treated effluent conformed to parameters. Certain other directions were issued by the Uttar Pradesh Pollution Control Board, as contained in its communication dated 6th February, 2019, and considering such facts, the Division Bench had intervened. At this stage we must observe that any decision of any Court is an authority for a proposition based on certain set of facts and even a single distinction of any fact or an additional fact can alter the applicability of its ratio. In the facts of the instant case, as observed earlier, we do not find the situation to be so exceptional so as to allow the writ Court to intervene, exercising its extraordinary high prerogative discretionary jurisdiction under Article 226 of the Constitution of India. The writ petitioner, of course, is not without any remedy. Statutory alternative remedy is available to the writ petitioner in respect of both the orders dated 22nd October, 2019. The writ petitioner is always at liberty to approach the statutory appellate authority in respect of the two orders dated 22nd October, 2019, and take all points which are available in law. We make it clear that in the event the writ petitioner approaches the statutory appellate authority, the said authority shall not be influenced in any manner by any observation made herein and shall decide the appeals strictly in accordance with law.

The writ petition stands accordingly dismissed.

Order Date :- 13.11.2019 Deepak (Biswanath Somadder, J.) (Ajay Bhanot, J.)