ORDER

1. The petitioners, in substance are seeking an appropriate writ or direction against the respondents for shutting down of the rice mill set up by the 8th respondent, which is situated contiguous to the residential house of the petitioners causing health hazards by emitting husk and dust in the entire atmosphere surrounding the area, resulting in violation of the fundamental right of the petitioners as also the Pollution Control Laws.

MATERIAL FACTS

2. The petitioners are having their residential house in Gandhinagar lying within the territorial jurisdiction of Kolar Town Municipality. Pursuant to grant of permit dated 18-9-1993 (Annexure-D) issued under Section 5 of the Rice Milling (Regulation) Act, 1958 (in short the 'Rice Milling Act' only) the 8th respondent has established a sheller type rice milling industry next to the house of the petitioners. Subsequently, he has also been granted licence dated 22/28-2-1994 under the said Act which was valid up to 31-12-1994. Thereafter, the same was renewed by the Deputy Commissioner by his order dated 16-6-1995 (Annexure-B) for the period 1-1-1995 to 31-12-1997 with certain conditions to be noticed hereunder. However, this order was modified in some material aspects by the subsequent order dated 31-8-1995 (Annexure-A), the legality where of has been called in question by the petitioners in the present proceedings.

3. It is a matter of record that even before grant of licence to the 8th respondent, the petitioners, on 18-12-1993 had lodged their written objection with the respondent-Deputy Commissioner on the ground that the running of the proposed industry would cause intolerable disturbance and pollution. Keeping in view the said objection, the then Deputy Commissioner made a spot inspection of the mill on 29-1-1994 in the presence of the 8th respondent as well as the petitioners and in order to remedy the grievance of the petitioners certain directions like raising of walls to 18 feet, downing the face of the hose pipe, etc., were given, to which the owner of the mill agreed. But it seems the down facing of the hose pipe proved insufficient for arresting the air pollution caused by the Industry. Therefore, the petitioner 1, who is also suffering from Bronchitis lung disease and the pollution caused by the industry was aggravating the same causing major health hazard, made another application dated 7-2-1995 to the Deputy Commissioner requesting for closure or shifting of the industry.

4. Pursuant to the said application, the Deputy Commissioner conducted another spot inspection on 18-5-1995 along with the Health and Family Welfare Officer. The facts ascertained during inspection, as noticed by the respondent-Deputy Commissioner in his order dated 31-8-1995 (Annexure-A) are to the following effect.-

"At the time of spot inspection in the compound of objector's house on the back yard, it is found that paddy husk and bran are accumulated and heap of husk and bran is found in the place.

The dust and husk due to operation of the industry is spread over on the entire plants, green vegetation in the compound of objectors.

I have visited the premises of the industry. The mill operator Venkateshappa, and other workers were present. In front of the industry, about 60-70 feet open space is found with adjoining industry building. The operation of the mill had just then stopped. Inside the mill there is a passage of 18 x 20 feet and 25 x 80 feet without roof. Inside, it is found that paddy husk is stored which has been thrown out from the main pipe of the industry. The owner has built 15 feet wall. In the said building 7 coconut trees were found out of which 6 are already dead; remaining one is on the verge of destruction. By this I can assess the damage caused by air pollution on the coconut plantation. There is one tiled roof shed on which the entire paddy husk is accumulated. Behind the Objector's house, on the trees, and plantation the paddy husk and dust in extensive manner is accumulated. It is found and confirmed at the time of my inspection".

5. Accordingly, the Deputy Commissioner while granting the renewal of the licence by his order dated 16-6-1995 (Annexure-B) passed the following operative order.-

"I have carefully examined all the points and conditions, by establishing and running the Rice Milling Industry by emanating dust and husk, it causes enormous Air Pollution. Added to this no precautionary measures are taken for running such industry. The objector has suffered serious inconvenience as found and confirmed by my spot Inspection. It is found absolutely true and correct and the Housing and Urban Development Department's Order of stay is in operation. The owner of the Industry shall not cause nuisance, pollution to the public. Hence, to the designated place the Industry shall be shifted within clear 30 days from this date of order as per Rice Milling Industry (Regulation), Section 7(1)(b) and (2), it is ordered".

6. Quite strangely despite the said facts, subsequently by his impugned order dated 31-8-1995 (Annexure-A), the same Deputy Commissioner, having been persuaded by the owner of the Rice Mill (respondent 8), altered the said condition of shifting by, inter alia, relying on the notification dated 10-3-1992 (Annexure-C) issued by the respondent-Karnataka State Pollution Board purporting to grant exemption to certain industries including the Rice Milling Industries (Sl. No. 52) keeping those outside the purview of the Water (Prevention and Control of Pollution) Act, 1974 (in short 'the Water Act') and the Air (Prevention and Control of Pollution) Act, 1981 (in short the Air Act') subject to certain conditions. On the strength of this order, the 8th respondent continued with its rice milling operations even at the predicament of the petitioners which forced them to move this Court for redressal of their grievances by raising some far-reaching and important questions of law having bearing on the very object, purpose and operation of pollution laws like the Water Act and Air Act.

7. In the present case, the 8th respondent who has been represented by Sri. U.L. Narayana Rao, has exerted his right to run rice mill even daring pollution caused by it by wielding the Notification dated 10-3-1992 (Annexure-C) issued by the respondent-Pollution Board as a sheet anchor. According to him, the Pollution Board has given a free license to the rice millers to run their industry even at the cost of Pollution Prevention Laws and by defying the fundamental rights, directive principles and duties enshrined in the Articles 21, 48A and 51-A of the Constitution of India.

8. In the case of Subhash Kumar v State of Bihar, it has been judicially recognized by the Supreme Court that "Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life". Similarly, in the case of Virender Gaur v State of Haryana, this very enunciation has more eloquently been propounded by declaring that (Para 7)-

"Article 48-A in Part IV (Directive Principles) brought by the Constitution 42nd Amendment Act, 1976, enjoins that "the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country". Article 47 further imposes the duty on the State to improve public health as its primary duty. Article 51-A(g) imposes "a fundamental duty" on every citizen of India to "protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures". The word 'environment' is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance". It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge, in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right.

Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water pollution, etc., should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right of healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment".

9. The Parliament being alive to the said requirements of providing pollution free environment has enacted laws like the Water Act, Air Act and Environment (Protection) Act, 1986, to ensure among other things the preservation of quality of environment and control of pollution.

10. For the purpose of the present case, I am more concerned with the Air Act. Therefore I will be dealing with the provisions thereof in some what greater detail.

AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981

11. Section 2 of the Act, is the definition clause. The material definitions are -

"Section 2. Definitions.-- (a) "air pollutant" 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;

(b) "air pollution" means the presence in the atmosphere of any air pollutant;

(c).....

(h) "chimney" includes any structure with an opening or outlet from or through which any air pollutant may be emitted;

(j) "emission" means any solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet;

(k) "industrial plant" means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere;

(l) .. .. ..

12. Section 17 of the Act, provides for the functions of the State Boards, which reads as follows-

"Functions of State Boards.--(1) Subject to the provisions of this Act, and without prejudice to the performance of its functions, if any, under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), the functions of a State Board shall be.-

(a) to plan a comprehensive program for the prevention, control or abatement of air pollution and to secure the execution thereof;

(b) to advise the State Government on any matter concerning the prevention, control or abatement of air pollution;

(c) to collect and disseminate information relating to air pollution;

(d) to collaborate with the Central Board in organizing the training of persons engaged or to be engaged in programs relating to prevention, control or abatement of air pollution and to organize mass-education program relating thereto;

(e) to inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process and to give, by order, such directions to such persons as it may consider necessary to take steps for the prevention, control or abatement of air pollution;

(f) to inspect air pollution control areas at such intervals as it may think necessary, assess the quality of air therein and take steps for the prevention, control or abatement of air pollution in such areas;

(g) to lay down, in consultation with the Central Board and having regard to the standards for the quality of air laid down by the Central Board, standards for emission of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any air pollutant into the atmosphere from any other source whatsoever not being a ship or an aircraft:

Provided that different standards for emission may be laid down under this clause for different industrial plants having regard to the quantity and composition of emission of air pollutants into the atmosphere from such industrial plants;

(h) to advise the State Government with respect to the suitability of any premises or location for carrying on any industry which is likely to cause air pollution;

(i) to perform such other functions as may be prescribed or as may, from time to time, be entrusted to it by the Central Board or the State Government.

(j) to do such other things and to perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes of this Act.

(2) A State Board may establish or recognize a laboratory or laboratories to enable the State Board to perform its functions under this section efficiently.

13. Section 18 of the Act, empowers the Board to give directions, which is to the following effect-

"Power to give directions.--(1) In the performance of its functions under this Act-

(a) the Central Board shall be bound, by such directions in writing as the Central Government may give to it; and

(b) every State Board shall be bound by such directions in writing as the Central Board or the State Government may give to it:

Provided that where a direction given by the State Government is inconsistent with the direction given by the Central Board, the matter shall be referred to the Central Government for its decision.

14. Under the purported powers as contained under Section 18(1)(b) of the Air Act, the State Government under its letter dated 18-2-1992 (authorised/granted prior approval) directed the Pollution Board to exempt certain small scale/cottage industries from the purview of the Water and the Air Acts.

15. It will be apt to reproduce the contents of the said letter for a better appreciation of State Government's approach in pollution control matters. The letter reads thus.-

GOVERNMENT OF KARNATAKA No. DEE 140 ENV 90 Karnataka Government Secretariat, 7th Floor, IV Stage M.S. Building, Bangalore-560 001 Dated 18th February, 1992 From The Secretary to Government of Karnataka, Department of Ecology and Environment, To The Chairman, Karnataka State Pollution Control Board, M.G. Road, Bangalore-1.

Sir, Sub: Keeping certain small scale and cottage industries outside the purview of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.

XXX XXX XXX.

I am directed to invite reference to the Government letter of even number dated 17-6-1991 regarding keeping certain small scale and cottage industries outside the purview of Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981.

Your attention is invited to the discussions of the meeting held on 11-2-1992 at 11.00 a.m. in the Chambers of the Commissioner and Secretary to Government, Department of Ecology and Environment in which the representatives of the Industries Department and the Chairman, Karnataka State Pollution Control Board were also present.

It was agreed that the Karnataka State Pollution Control Board may be authorised by the State Government to issue necessary notification keeping certain small scale and cottage industries, as recommended by the Board, outside the purview of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 as has been done by the Tamil Nadu Pollution Control Board.

I am therefore to convey approval of Government to the effect that the Board may issue necessary notification on the same lines as was done by the Tamil Nadu Pollution Control Board incorporating necessary conditions as has been done by the said Board and indicating that the concession extended shall be valid until further orders.

Yours faithfully, Sd/-

(KANNAN KUTTI KULAVIL) UNDER SECRETARY TO GOVERNMENT DEPARTMENT OF ECOLOGY AND ENVIRONMENT

16. Accordingly, keeping in view the aforesaid letter, the State Board issued a notification dated 10-3-1992 (Annexure-C) keeping the suggested small scale/cottage industries numbering about 115 including "Rice Mill Industries" outside the purview of the Air Act. The said notification is to the following effect. -

"NOTIFICATION Sub: Keeping certain small scale and cottage industries outside the purview of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.

Ref: Government letter No. DEE/140/ENV/90/dated 18-2-1992 XXX XXX XXX.

Pursuant to the decision taken in the 71st meeting of the Karnataka Control Board held on 7-5-1990 and the communication reported from the Government of Karnataka in Department of Ecology and Environment in No. DEE/140/ENV/90 dated 18-2-1992, the State Board hereby notified the small scale and cottage industries indicated in the schedule attached to this notification, keeping them outside the purview of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 subject to the following conditions and until further notification.

(i) the number of workers in the industry shall be less than 20.

(ii) industry employing more than 20 workers shall obtain the consent of the Board and comply with the required formalities.

(iii) it should conform to the land use classification by the competent authority.

(iv) if any industry mentioned in the schedule, creates conditions that generate any type of pollution or if there is any objection from the surrounding community and if on verification, it is found that such objection has such substance, the facility given to the industry would be withdrawn.

(v) any act of omission/commission on the part of the units listed in the schedule, resulting in pollution or violations of standards prescribed by the Board will not bind/control the Board from taking Air (Prevention and Control of Pollution) Act, 1981 as amended in 1987 and the Water (Prevention and Control of Pollution) Act, 1974.

Sd/-      

MEMBER SECRETARY"

17. Now let me examine whether it was competent on the part of the Board to grant exemption, to any industrial plant omitting air pollutants, from the provisions of the Air Act.

18. A plain reading of Section 18(1)(b) of the Air Act unquestionably manifests that the State Board shall be bound by only such directions issued by the State Government which pertains to the discharge of functions assigned to the State Board under Section 17 of the Air Act. It is also amply clear that neither the State Government can issue any directions which has no nexus with the functions assigned to the Board nor the Board is bound to follow any such directions.

19. In the said background it has to be ascertained as to whether under the provisions of the Air Act, the State Board has been assigned with the functions to exempt any industrial plant from the provisions of the said Act conditionally or unconditionally. At least, on my reading of the provisions of the Act with minute details, I do not find any provisions under which the Parliament has vested any discretion with the State Board to grant exemption to any particular industrial plant or class of plants. A reading of Section 17 of the Air Act, which sets out the functions of the State Board, clearly envisages that the functions assigned to the State Board are meant for taking such steps as may further the object of the Act in effectively controlling the air pollution caused by the industries. No clause of the said section, or, for that sake any provision of the Air Act has empowered the State Board to keep any industrial plant out of the purview of the Act if it causes air pollution. Any authority to grant exemption assumed by the State Board can be held only to be derogatory to the object and express provisions of the Act. Nonetheless, it has done so by exempting 115 industrial plants under its resolution dated 7-5-1990 under the purported directions of the State Government which had been notified to the public on 10-3-1992. I may emphatically state here that whether any particular industrial plant falls within the purview of the Air Act or not, has to be adjudged with reference to the provisions of the Act itself which provides that the Act will apply to only such industries which emit air pollutants. Therefore, if any industry is not emitting any air pollutant, then ipso facto the provisions of the Act will have no application to it. But, if it is emitting air pollutants, irrespective of this extent then neither the State Government nor the State Board has any competence to keep such industries, may be cottage, Small Scale or Tiny to keep them out of the purview of the Act. Accordingly, notification dated 10-3-1992 (Annexure-C) issued by the State Board granting exemption in respect of certain industrial plants is declared as ultra vires its powers and functions and is accordingly quashed.

20. Under Section 19, the Board has the power to declare air pollution control areas. The relevant portions reads as under-

"Section 19. Power to Declare Air Pollution Control Areas --(1) The State Government may, after consultation with the State Board, by notification in the Official Gazette, declare in such manner as may be prescribed, any area or areas within the State as air pollution control area or areas for the purposes of this Act".

21. Section 21 of the Act provides certain restrictions on use of certain industrial plants, which reads as-

"Restrictions on use of certain industrial plants.--(1) 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".

22. Section 22 of the Act further restrict the persons carrying on industry etc., not to allow emission of air pollutants in excess of the standards laid down by the State Board, which reads thus.-

"No person operating any industrial plant, in any air pollution control area shall discharge or cause or permit to be discharged the emission of any air pollutant in excess of the standards laid down by the State Board under clause (g) of sub-section (1) of Section 17".

23. Pursuant to the powers under Section 19 of the Air (Prevention and Control of Pollution) Act, 1981 (in short the 'Air Act' only), the State Government under its notification No. SO/893 dated 1-6-1988 has declared the whole State of Karnataka as a "Air Pollution Control Area". As such all the industrial plants are mandatorily required to abide by Section 21 of the Act.

24. It may be noticed here that the said sub-section of Section 21(1) of the Air Act was substituted by Section 9 of the Air (Prevention and Control of Pollution) Act, 1987 and pursuant to the notification issued by the Central Government under Section 1(2) of this amending Act, the substituted sub-section (1) of Section 21, has come into force with effect from 1-4-1988 (See Gazette of India, dated 28-3-1988, Part-II, Section 3(ii) Ext. P. 2). As such even the industrial plants which were in operation before the said date were required to obtain the consent of the Sta'te Board as required under the said provisions.

25. A combined reading of Section 21(1) with the definitions of 'air pollutant' and 'air pollution' and 'industrial plant', manifests the primary intention to the Parliament to the effect that if any industrial plant as understood in common parlance is emitting any solid, liquid or gaseous substance including noise in the atmosphere in such concentration as may be or tend to become injurious to human beings or other living creatures, or plants or property, or environment, then the operation thereof cannot be continued except with the consent of the State Pollution Board, which can be granted only subject to the conditions enumerated under sub-section (5) of Section 21 of the Air Act.

26. In the present case as found by the Deputy Commissioner, it is beyond any spell of doubt that the Rice Milling industry run by the 8th respondent is emitting air pollutants in the form of husk and dust in the atmosphere, which has tended to cause injury to the property of the petitioners, apart from being injurious to the environment, and detrimental to the physical comfort and health of the petitioners. Therefore, the said rice milling plant is an "industrial plant" within the meaning of the Air Act and the same cannot be operated, except with the consent of the State Pollution Board as envisaged under Section 21 of the Air Act.

27. In the present case, admittedly the 8th respondent has not obtained any consent from the Pollution Board. According to the 8th respondent, as disclosed in the statement of objections, he has not obtained the said consent in view of the resolution dated 10-3-1992 issued by the State Pollution Control Board. In the said resolution, several industries including the rice huller and flour mill (Sl. No. 52) have been exempted from the provisions of the Air Act. The said resolution of the State Pollution Control Board has already been declared as ultra vires and inoperative by me, since neither the State Government nor the State Pollution Board has any power to exempt any industrial plant from the operation of the Air Act.

28. To conclude, the notification dated 10-3-1992 (Annexure-C) of the State Pollution Board is declared ultra vires its powers and functions under the Air Act and as such non est in the eye of law. The 8th respondent cannot in law run its rice milling industrial plant, unless he obtains consent from the State Pollution Board under Section 21 of the Air Act, as noticed above. As such they are directed to stop the running of the said industry forthwith. In the present case, the facts as noticed above eloquently speaks of the mental and physical torture suffered by the petitioners because of the arbitrary and unconstitutional actions of the respondents. In the case of Common Cause, a Registered Society v Union of India and Others, it has been held by the Supreme Court that "the legal position that exemplary damages can be awarded in a case where action of a public servant is oppressive, arbitray or unconstitutional is unexceptional". Keeping in view the facts of the present case and the arbitrary manner in which the State Government or its servants, the State Pollution Board and the 8th respondent has acted to the utter detriment of the petitioners, I feel that they must suffer exemplary damages so that the executive officers and the statutory boards may feel the necessity of acting in a more responsible manner in consonance with the object and requirements of legislative Acts.

29. The writ petition is accordingly allowed with cost and exemplary damages assessed at Rs. 21,000/- to be paid equally that is Rs. 7,000/- each by the first, second and the eighth respondents, by crossed bank draft drawn in favour of the first petitioner within three weeks from today under registered post.