Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942
WA.No.2572 OF 2019
(JUDGMENT IN WP(C) NO.30789/2019(W) DATED 26.11.2019 OF HIGH COURT OF KERALA)
APPELLANT/PETITIONER:
THRISSUR CORPORATION,
REP BY ITS SECRETARY, THRISSUR.
BY ADV. SRI.SANTHOSH P.PODUVAL
RESPONDENTS/RESPONDENTS:
1 KERALA STATE POLLUTION CONTROL BOARD,
PATTOM P.O., THIRUVANANTHAPURAM-695 004,
REP BY ITS MEMBER SECRETARY.
2 THE CHAIRMAN, KERALA STATE POLLUTION BOARD, PATTOM P.O.,
THIRUVANANTHAPURAM-695 004.
3 THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE,
THRISSUR-680 001.
4 DIRECTORATE OF URBAN AFFAIRS,
OFFICE OF THE DIRECTORATE OF URBAN AFFAIRS, SWARAJ BHAVAN,
1ST FLOOR, NANTHANCODE, THIRUVANANTHAPURAM-695 033.
5 EXECUTIVE DIRECTOR,
SUCHITHWA MISSION, LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT OF KERALA, THIRUVANANTHAURAM-695 001
6 STATE OF KERALA,
REP BY CHIEF SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT,
THIRUVANANTHAPURAM-695 001.
R1-R3 BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD,
BY SR. GP SRI.ARAVINDA KUMAR BABU FOR R5 AND R6
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2020, THE COURT ON 09-06-
2020 DELIVERED THE FOLLOWING:
W.A.No.2572 of 2019 2
JUDGMENT
Dated this the 9th day of June, 2020 S.Manikumar, CJ.
Instant writ appeal is filed against judgment dated 26.11.2019 passed in W.P.(C) No.30789 of 2019, by which, writ court closed the writ petition without granting any relief sought for by Thrissur Corporation, represented by its Secretary, writ petitioner/appellant, but leaving liberty to the Corporation to approach National Green Tribunal appropriately, either by filing a statutory appeal or by impleading themselves in the original application or by doing both.
2. Short facts leading to the appeal are as under:
The Chairman, Kerala State Pollution Control Board, Thiruvananthapuram, (respondent No.2) has issued a direction under Section 5 of the Environment (Protection) Act, 1986 dated 21.10.2019 (Exhibit-P1) imposing compensation of Rs.4,56,60,000/- to Thrissur Corporation (appellant) for the period 22.11.2018 to 31.07.2019, for non- compliance of Rule 22 of the Solid Waste Management Rules, 2016. In Exhibit-P1, the 2nd respondent has referred to various orders passed by the National Green Tribunal, New Delhi, clarifying that apart from prosecution, W.A.No.2572 of 2019 3 statutory authorities under the Environmental (Protection) Act in exercise of their incidental powers shall collect prescribed scale of compensation from the polluters on the "polluter pay's principle". It was also noted that National Green Tribunal in the order dated 22.11.2018 in O.A. No.353 of 2016 has observed that statutory authorities are entitled to assess and recover damages by applying polluter pay's principle in exercise of incidental powers to protect environment.
3. Appellant has contended that the Environmental (Protection) Act, 1986 or Solid Waste Management Rules, 2006 do not provide assessing or imposing compensation upon local authorities for the delay in providing facilities and in carrying out the activities prescribed in the rules. Appellant has further contended that a clarification made by the National Green Tribunal shall not clothe the Pollution Control Board with any power which is not otherwise provided under the Act. Challenging the authority of Kerala State Pollution Control Board, i.e. 2nd respondent, to issue such a direction (Exhibit-P1) on the basis of certain clarifications made by the National Green Tribunal, instant writ petition has been filed seeking for issuance of a writ of certiorari or other appropriate writ order or direction, quashing Exhibit-P1 order dated 21.10.2019 issued by the Kerala State Pollution Control Board, respondent No.2.
W.A.No.2572 of 2019 4
4. After considering the rival contentions, writ court by the impugned judgment, closed the writ petition by observing thus:
"Resultantly, I close this Writ Petition without granting any of the reliefs sought for, but leaving liberty to the petitioner to approach the NGT appropriately, either by filing a statutory appeal or by impleading themselves in the Original Application or by doing both.
Needless to say, until such time as the statutory period for filing an appeal, as fixed under Section 16 of the NGT Act expires, the interim order granted by this Court will continue to be in operation; and consequentially, all further action being pursued by the Pollution Control Board, based on Ext.P1, shall stand interdicted, so as to enable the Corporation to approach the NGT without the threat of imminent action."
5. Being aggrieved, instant writ appeal has been filed contending that,- the judgment passed by the writ court refusing to entertain the writ petition relegating the petitioner to seek alternate remedy of appeal without considering the specific pleadings to the effect that such an appeal is not efficacious, is improper. According to the appellant, Exhibit P1 direction has been issued specifically in compliance with the direction issued by National Green Tribunal; that there is reference in Exhibit P1 direction to certain findings of the Tribunal, to the effect that statutory authorities under Environment (Protection) Act are empowered to impose compensation W.A.No.2572 of 2019 5 against the polluters. The writ petition is filed specifically challenging the authority of the Pollution Control Board to issue such a direction, on the basis of certain clarifications made by the National Green Tribunal.
6. In the writ petition, appellant has further contended that, a clarification made by the National Green Tribunal shall not clothe the Pollution Control Board with any power, which is not otherwise provided under the Act. The scale of compensation is arbitrarily fixed by the 1 st respondent and is seen to have been approved by the Tribunal. Hence, an appeal before the Appellate Authority cannot be said to be efficacious.
7. It is further contended that Thrissur Corporation was not a party to the proceedings before the National Green Tribunal, in which, an order has been passed endorsing the authority of Pollution Control Board to impose compensation. Direction has been issued by the 2 nd respondent mechanically, noting that the six months' period fixed by the National Green Tribunal have elapsed. The explanation of the appellant was not at all considered. Further, it was not considered whether the delay is due to the laches on the part of the appellant. The 1 st respondent itself had certain duties to be performed in the matter of issuing directions and suggestions to the local authorities, which were not done promptly. The State Policy itself was formulated after two years of the enactment of the rules. It is W.A.No.2572 of 2019 6 finally contended that the polluter pay's principle does not apply in the case of the appellant for the alleged delay in complying with the norms. At any rate, imposition of compensation for an act of pollution, being a tortious liability could not have been done by the 2nd respondent.
8. The Senior Environmental Engineer, Kerala State Pollution Control Board, Regional Office, Ernakulam has filed a counter affidavit on behalf of Kerala State Pollution Control Board, rep; by its Member Secretary and the Environental Engineer, Kerala State Pollution Control Board, Thrissur, respondents 1 and 3, contending that,- as per the Solid Waste Management Rules, 2016 (hereinafter referred to as SWM Rules), the Municipal Corporation is legally bound to take all measures for the scientific disposal of the solid waste generates within its limits. As per Rule 22(1) of the SWM Rules, the Corporation shall identify suitable sites for setting up of solid wastes processing facilities by 08/04/2017, that is one year from the date of notification of the Rules.
9. It is further contended that the Board on numerous occasions issued directions to the appellant to comply with the directions issued in the light of the provisions contained the SWM Rules. However, the appellant failed to comply with those directions and the facilities now in place for the disposal of solid wastes are highly inadequate. National Green Tribunal, W.A.No.2572 of 2019 7 Principal Bench, New Delhi vide Exhibit-P2 order dated 22.11.2018 in O.A. Nos.353 of 2016 and 412 of 2017 has clarified that the statutory authorities shall collect compensation from the pollutors on "polluter pays" principle. Vide paragraph 13 of the above order, the National Green Tribunal has held as follows:
"We may also clarify at this stage that apart from prosecution, the statutory authorities under the Environment (Protection) Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 must, in exercise of their incidental powers, prescribed scale of compensation to be collected from the polluters on the "Pollutor Pays' principle. Such scale which may be laid down at various levels, having regard to the local conditions or as per directions in the hierarchy of the authorities." The Tribunal further ordered that the copies of the order be sent by e-mail to the Hon'ble Apex and the' Regional Committees and also to the Central Pollution Control Board (hereinafter referred to as "CPCB") for being communicated to all the State Pollution Control Board or such other Authorities as may be considered necessary.
10. Therefore, it is further contended that in the light of the above clarification made by the National Green Tribunal, the Board is bound to prescribe the scale of compensation to be collected from the polluters on the "polluter pay's principle". In this case, the appellant is the authority fastened with the responsibility to dispose the solid wastes generated within its limits in a scientific manner as prescribed under the SWM Rules. W.A.No.2572 of 2019 8 The Board is competent to impose and prescribe compensation on the appellant in case of failure on their part in scientifically handling the solid waste generated within its limits.
11. It is further contended that as per Rule 22(7) of the SWM Rules, solid wastes processing facility has to be set up by bodies having 1 lakh population or more and as per Rule 22(9), common or standalone sanitary landfill is to be provided by 08.04.2019. As the time period was over and no considerable progress has been achieved by the local bodies, the NGT issued Exhibit-P5 order in O.A. No.606/2018, directing to notify atleast 3 major cities and 3 major towns in the State and at least 3 Panchayats in every district, which would comply with the provisions contained in SWM Rules, within 6 months from the date of the order. The above Original Application came up for consideration before the NGT pursuant to the transfer of proceedings in W.P.(C) No. 888/1996 pending before the Hon'ble Supreme Court, vide order dated 2.9.2014. The National Green Tribunal vide order dated 22.12.2016 held that,- "the directions contained in this judgment shall apply to the entire country. All the State Governments and Union Territories shall be obliged to implement and enforce these directions without any alteration or reservation."
12. It is further contended that the appellant-Corporation was one W.A.No.2572 of 2019 9 among the three model cities identified as per G.O.(t) No.45/2019/ENVT dated 31/05/2019. Though the time granted was over, appellant failed to comply with the provisions contained in SWM Rules. The solid waste management measures taken were not adequate to cater the quantity of wastes generated in Thrissur Corporation. The Corporation also failed to identify land for solid waste treatment processing facility.
13. In the light of the directions issued by the National Green Tribunal, Exhibit-P3 notice under Section 5 of the Environment (Protection) Act, 1986 (hereinafter referred to as E.P. Act) was issued to the appellant, to show cause within 15 days why the Board shall not recover environmental compensation of Rs.456.6 lakhs from 22-11-2018 to 31-7- 2019 for the non-compliance of Rules 22 (1), 22(3), 22(5), 22(6), 22(7) and 22(11) of the SWM Rules, 2016. Above notice was issued based on the finding that solid waste management measures reported by the appellant- Corporation are inadequate to cater the quantity of waste expected in the Corporation. As per the Annual Report submitted by Thrissur Corporation, the total quantity of solid wastes generated is 177 tonne per day. The quantity of solid wastes processed (community level) is 37 TPD and quantity of solid wastes processed in household level is 60 TPD. Hence, it is clear that 80 TPD of wastes generated in Thrissur Corporation are not W.A.No.2572 of 2019 10 scientifically processed. This also establishes a fact that the appellant Corporation has miserably failed to identify the land for solid wastes processing facility and sanitary landfill. The reply submitted by Thrissur Corporation vide letter dated 27-8-2019 was far from satisfaction as they have not identified land for solid waste treatment facility, sanitary landfill and failed to implement door to door collection of solid wastes.
14. It is further contended that in the light of the above, the Board had taken steps for assessment of environmental compensation from the appellant-Corporation for the period from 22-11-2018, on which date the Order specifying the levying of Environmental Compensation by Hon'ble NGT came into force, to 31-7-2019 (days 252). The Board is following the environmental compensation regime for solid waste accepted by the NGT vide order dated 28/08/2019 in O.A. 593/2017. Thereafter, the Board has issued Ext.P1 under Section 5 of the E.P. Act and directed Thrissur Corporation to remit environmental compensation of Rs.456.6 lakhs from 22-11-2018 to 31-7-2019 for non-compliance of SWM Rules, within 15 days from the date of receipt of the direction. The Corporation replied to the direction vide letter dated 5-11-2019 and requested for a hearing on the subject. A hearing was held on 2-12-2019, in which the Secretary, Thrissur Corporation attended. However, no action plan was submitted specifying W.A.No.2572 of 2019 11 the activities and time limit for implementation of Solid Waste Management Rules, 2016.
15. It is further contended that Exhibit-P1 is an order issued under Section 5 of the Environment (Protection) Act. Section 5A of the said Act stipulates that any order passed under Section 5 is appealable before the National Green Tribunal. It was in that background, the learned single Judge has disposed of the writ petition, granting liberty to the appellant Corporation to approach the National Green Tribunal by filing an appeal against Exhibit-P1 order. Apart from that, the appellant was given liberty to implead in the pending Original Applications before the NGT. Without exhausing the statutory remedies, the appellant has approached this Court, and for that reason alone, writ appeal is liable to be dismissed.
16. As stated above, Exhibit-P1 was issued strictly based on the directions and observations contained in Exhibits-P2 and P5 orders of the National Green Tribunal. The above orders cast a duty upon the Pollution Control Board to take appropriate steps for imposing environmental compensation and to realise the same from the polluters under polluters- pays-principle. Hence, the contention of the appellant has no relevance as the steps taken by the Board are in the light of the directions issued by the NGT. As regards the averments contained in the Appeal Memorandum to W.A.No.2572 of 2019 12 the effect that the Hon'bie NGT cannot confer any power under the statutory Authority, the Board herein; unless there is specific provision, it is contended that the action taken by the Board is as per the directions and observations of the Hon'bie NGT. It is to enable the appellant to canvass such a position before the NGT, the writ court granted liberty to the appellant for impleading in the pending Original Application. The appellant- Corporation is duty bound to-handle with the solid wastes generates within its limits in a scientific manner as per the SWM Rules, 2016. The failure on the part of the appellant- Corporation is a valid reason for imposing environmental compensation under "polluter pays" principle. For the afore- mentioned reasons, the Kerala State Pollution Pontrol Board, sought for dismissal of the writ appeal.
17. Heard learned counsel for the parties and perused the material available on record.
18. Exhibit-P1 impugned order, which is the direction issued under Section 5 of the Environment (Protection) Act, 1986 dated 21.10.2019 is extracted hereunder:
"DIRECTION ISSUED UNDER SECTION 5 OF THE ENVIRONMENTAL PROTECTION ACT, 1986 Sub: Issue of notice for the noncompliance of the Solid Waste Management Rules, 2016 Ref: 1. The Hon'ble NGT order OA no. 606/2018 dated 6/01/2019 and 25/04/2019 W.A.No.2572 of 2019 13
2. Letter no. PCB/HO/SEE2/RMC- Meeting/2018 dated 09/10/2018, 22/10/2018 and 24/10/2018
3. This office notice of even no. PCB/HO/EE4/NGT/SWM DIRECTIONS TO LB/2019 dated 17/04/2019
4. This office notice of even no. PCB/HO/EE4/AG/2019 dated 09/05/2019
5. Letter no. PH4/5475/09 dated 24/06/2019
6. Letter no. PH4/5475/09 dated 31/05/2019
7. Annual Report send by email dated 02/07/2019
8. Email on 14/08/2019
9. This office notice of even no. PCB/HO/RULES/SWM - Thrissur/2018 dated 14/08/2019
10. Letter no. PH4/28606/16 dated 27/08/2019
11. Letter no. PCB/TSR/MSW/3/2002 dated 14/10/2019 WHEREAS the Central Govemment notified the Environmental (Protection) Act, 1986 for the protection and improvement of environment and for matters connected therewith;
WHEREAS as per Section 3, 6, and 25 of the Environment (Protection) Act, 1986, the Central Government re-notified the Solid Wastes Management Rules, 2016 (herein after referred as SWM Rules) vide notification S.O. 1357(E) dated 8-4-2016;
WHEREAS as per Rule 22(1) of the SWM Rules, suitable sites for setting up solid waste processing facilities are to be identified;
WHEREAS as per Rule 22(3) of the SWM Rules, suitable sites for setting up solid waste processing facility and sanitary landfill facilities are to be procured;
WHEREAS as per Rule 22(5) of the SWM Rules, door to door collection of segregated waste and its transportation in covered vehicles to processing or disposing facility shall be ensured by 8-4-2018;
WHEREAS as per Rule 22 (7) of the SWM Rules, solid waste processing facilities for the complete quantity of waste generated from the local body @ 0.4 to 0.5 kg/person/day, shall be set up by 8-4-2018;W.A.No.2572 of 2019 14
WHEREAS facilities with the technologies specified in CPHEEO manual and SWM Rules are to be in place for the effective treatment and disposal of the solid waste generated in the local body;
WHEREAS as per Rule, 22 (6) of the SWM Rules, separate storage, collection and transportation of construction and demolition waste shall be provided by 8-4-2018;
WHEREAS as per Rule 22(11) of the SWM Rules, bio- remediation or capping of old and abandoned dump site shall be ensured;
WHEREAS the following information was submitted by you vide the Annual Report read 7th above.
No. of Households 86604
No. of non-residential waste 15250
generated
Quantity of Solid waste generated 177 TPD
Quantity of Solid waste collected 37b TPD
Quantitiy of Solid waste processed 37 TPD
(Community level)
Quantitiy of Solid waste processed in Biogas plant-632 Household level Compost pits-20,118 = 60 TPD WHEREAS it is noted that you are not processing 80 TPD of waste generated;
WHEREAS it is noted that you have not identified the land for the solid waste processing facility and sanitary landfill;
WHEREAS the Hon'ble National Green Tribunal, Principal Bench, New Delhi in the order dated 22/11/2018 in O.A. No. 353/2016 clarified that apart from prosecution, the statutory authorities under the Environment (Protection) Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981 and the Water W.A.No.2572 of 2019 15 (Prevention and Control of Pollution) Act, 1974, must, in exercise of their incidental powers, prescribed scale" of compensation to bewcpllected from the polluters on the "Polluter Pay's Principle". Such scale which may be laid down at various levels, having regard to the local condition or as per direction in the hierarchy of the authorities. ln various other application also, the Hon'ble NGT passed similar orders, for instance, in the order dated 20/11/2018 in O.A No. 117/2014, 499/2014 and 102/2014 the Hon'ble NGT noted as; "Needless to say that statutory authorities under the Environment (Protection) Act, 1986, Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 are entitled to assess and recover damages as "Polluter Pay's Principle" in exercise of incidental powers to protect environment".
WHEREAS notice was issued to you as you have not complied with the above provision;
WHEREAS Environmental Engineer, District Office, reported that the solid waste management measures reported by you are inadequate to cater to the quantity of waste expected from Thrissur Corporation.
WHEREAS the Board is constrained to assess the Environmental Compensation from 22/11/2018 to 31/07/2019 (Days=252) as follows:
City Thrissur
Population (2011) 317526
Class Class-I Town
Waste Generation (kg. per person per day) as per 0.55
Annual Report
Waste Generation (TPD) as per Annual Report 177.00
Waste Disposal as per Rules (TPD) as per Annual 97.00
Report
W.A.No.2572 of 2019 16
Waste Management Capacity Gap (TPD) 80.00
Calculated EC (capital cost component) in Lakhs. 192.00
Rs.
Minimum and Maximum values of EC (Capital Min.100
Cost Component) recommended by the Max.1000
Committee (Lakhs. Rs.)
Final EC (capital cost component) in Lakhs Rs. 192.00
Calculated EC (O&M Component) in Lakhs. 1.60
Rs./Day
Minimum and Maximum values of EC (O&M Cost Min.0.1
Component) recommended by the Committee Max. 1.0
(Lakhs. Rs./Day)
Final EC (O&M Component) in Lakhs Rs./Day 1.00
Final EC (O&M Component) in Lakhs 252
Calculated Environmental Externality (Lakhs Rs. 0.00
Per Day)
Minimum and Maximum value of Environmental Min. 0.05
Externality recommended by the Committee Max. 0.10
(Lakhs Rs. Per Day)
Final Environmental Externality (Lakhs Rs. Per Day) 0.05
Final Environmental Externality in Lakhs 12.6
WHEREAS an amount of Rs.456.6 Lakhs (Four Crore Fifty Six Lakh Sixty Thousand) is assessed as environmental compensation from 22/11/2018 to 31/07/2019 (Capital cost component (Rs.192 Lakhs) + O&M Component (Rs.252 Lakhs) + Environmental Externality (Rs.12,6 Lakhs));
WHEREAS notice was issued to you to comply with this office notice cited 9th above to show cause why the Environmental Compensation of Rs.456.6 Lakhs (Four Crore Fifty Six Lakh Sixty Thousand) shall not be recovered from you for the non compliance of Rule 22(1), 22(3), 22(5), 22(6), 22(7) and 22(11) of the SWM Rules, 2016:
WHEREAS as per order dated 25/04/2019 in O.A. No.606/2018, the time line for compliance of environmental statues will be elapsed on 24/10/2019;W.A.No.2572 of 2019 17
WHEREAS in the said letter, while quantifying the waste generated, the quantity of non bio-degradable waste from market is not included in 1(b) in page 4;
WHEREAS you have vide reply no. PH4/28606/16 dated 27/08/2019 reported that the present dumpsite of Corporation is converted to stadium and steps are taken to identify the new space for solid waste processing plant as per Rule 22(1);
WHEREAS it is noted that you are converting the land acquired for waste management to stadium which is against Rule 22(1) and 22(3);
WHEREAS you have yet to comply with 22(5), 22(6) and 22(7) of the Solid Waste Management Rules, 2016;
WHEREAS NGT order dated 17/07/2019 in OA. No. 519/2019 directed to ensure allocation of funds for proeessing of legacy waste dumpsites and the remediation work is to be commenced from 01/11/2019 and preferably within 6 month to be completed;
WHEREAS you have yet to report the action taken for the compliance of above matter;
WHEREAS the Environmental Engineer, District Office, Thrissur, based on their inspection on 17/07/2019, reported that the procedure adopted for closure of the dump yard is not in compliance with the Rule 15(zj) and Schedule 1(j) of the SWM Rules, 2016; WHEREAS the reply submitted by you is not satisfactory;
WHEREAS the KSPCB District office,Thrissur has found that the Corporation has provided facilities to 14 T of biodegradable waste against the 99.12 T of biodegradable waste generated as mentioned in your reply under ref.11;W.A.No.2572 of 2019 18
WHEREAS though you have claimed to have waste treatment facility for treating 63.87T at source and this is far from reality and the disposal method through piggery farm and agricultural activities cannot be taken in account,as the same is not authorized;
WHEREAS the KSPCB, District Office inspected 10 houses each from 31 wards and found that non-biodegradable waste is collected from 107 houses and biodegradable wastes from 10 houses from a total of 3 10 houses;
WHEREAS the Corporation has not reported the mode of treatment and disposal of non-biodegradable wastes;
WHEREAS the wastes generated in flats, educational institutions, industrial establishments are disposed in incinerator without having satisfactory air pollution control system and disposal measures for burnt residues;
WHEREAS the Corporation has not submitted a detailed plan for the treatment and disposal of remaining wastes;
WHEREAS though the instruction was given to Corporation authorities for doing bio mining as per statutory rules in Laloor dumping sites, you are continuing the construction activities for the stadium-inthe said area against the Board's directions and you are not complying with the Board's direction and has not given reply to the Board's direction on bio mining;
AND WHEREAS it is noted that you have not complined with the Solid Waste Management Rules, 2016:
NOW THEREFORE, in exercise of the powers vested under Section 5 of the Environment (Protection) Act, 1986, you are directed to remit the Environmental Compensation of Rs.456.6 Lakhs (Four Crore Fifty Six Lakh Sixty Thousand) from 22/11/2018 to 31/07/2019 against you for the non compliance of W.A.No.2572 of 2019 19 Rule 22(1), 22(3), 22(5), 22(6), 22(7) and 22(11) of the SWM Rules, 2016 within 15 days of receipt of this direction failing which further legal action shall be initiated against you.
Sd/-
CHAIRMAN To The Secretary, Thrissur Corporation"
19. Material on record discloses that the impugned order (Exhibit-P1) has been issued by the Chairman of Pollution Control Board, as extracted above. In fact, in the objection filed to the show cause notice, the Corporation has raised various contentions, including the authority of the Pollution Control Board to impose fine against them on the basis of "pollutor pay's principle". However, as per Exhibit-P1, Chairman of the Pollution Control Board has gone through the provisions of Environment (Protection) Act, 1986 and the rules made thereunder, for arriving at the conclusion that the authorities are vested with sufficient powers to impose environmental compensation.
20. The paramount contention advanced by the appellant Corporation before the writ court was that it was not provided an opportunity of being heard by the Pollution Control Board. Writ court after considering the rival contentions of the appellant, held that the Corporation has got an alternate remedy to file an appeal against the order of the Chairman, Pollution W.A.No.2572 of 2019 20 Control Board before the National Green Tribunal. However, on a perusal of Exhibit-P1, extracted above, it is evident that the said order was passed without providing an opportunity of hearing to the appellant. In fact, the amount of Rs.456.6 lakhs was imposed against the Corporation as environmental compensation, directed to be paid within 15 days from the date of receipt of the order. In our considered view, since the Corporation has filed serious objection to the show cause notice, issued by the Pollution Control Board, the Corporation ought to have been provided with such an opportunity to contest the proceedings before the Chairman.
21. It is almost an admitted fact that no opportunity of hearing was provided to the Corporation to contest the proceedings. Moreover, on a perusal of Exhibit-P1, it is evident that even though the provisions of the Act and rules were considered by the Chairman of the Pollution Control Board, no opportunity has been provided to the appellant Corporation to substantiate the case putforth by them in their objections. Therefore, we are of the considered view that Exhibit-P1 order of the Chairman suffers from the vice of arbitrariness, since it has been passed in violation of the principles of natural justice. It was only appropriate on the part of the Pollution Control Board to have provided an opportunity of hearing to the appellant. Having not done so, there is clear illegality and unfairness on the W.A.No.2572 of 2019 21 part of the Chairman of the Pollution Control Board.
In the light of above discussion, we set aside Exhibit-P1 order of the Chairman, Kerala State Pollution Control Board, dated 21.10.2019 and direct the Chairman to issue notice to the appellant Corporation and finalise the proceedings, after providing the Corporation an opportunity of being heard. Writ appeal is accordingly, allowed.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P.CHALY JUDGE Krj /TRUE COPY// P.A TO CJ