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C/LPA/1216/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1216 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 2930 of 2014
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SATISHBHAI R PATIL
Versus
GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION (GIDC)
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Appearance:
MR MM SAIYED(1806) for the Appellant(s) No. 1
MR UTKARSH SHARMA, AGP (99) for the Respondent(s) No. 4
MR ABHISHEK M MEHTA(3469) for the Respondent(s) No. 3
MR RD DAVE(264) for the Respondent(s) No. 1
MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 2
MS DHARMISHTA RAVAL(707) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
Date : 23/12/2019
ORAL ORDER
(PER : HONOURABLE DR.JUSTICE A. P. THAKER)
1. The appellant - original petitioner has taken out present Letters Patent Appeal under Clause 15 of the Letters Patent inter alia assailing the judgment and order of the learned Single Judge dated 13.07.2018 passed in Special Civil Application No. 2930 of 2014 whereby the learned Single Judge has dismissed the said petition.
2. The facts briefly stated are as under:-
2.1 The appellant - original petitioner is carrying business in Ahkleshwar GIDC on Plot No.4767 in producing liquid bromine in the said factory. It is also the case of the appellant that the unit of the Page 1 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER petitioner is zero discharge unit and not discharging any sort of contaminated water. It is contended that considering the practice of respondent, he has become the member of respondent No. 3 - Narmada Clean Tech Limited (for short "NCTL") in order to start a unit in Ankleshwar GIDC. It is contended that the said NCTL is a registered company under the Companies Act, 1956 and in which the share of GIDC is to be extent of 51% and remaining 49% shares of the company are offered to private companies located in Ankleshwar, Panoli and Jhagadiya industrial establishment. It is also contended that Article of Association of the NCTL are also prescribed that 21 Directors, out of which 12 are to be appointed by the GIDC and remaining 9 are to be appointed from the industries. 2.2 It is also the case of the appellant that though the NCTL has no authority of law and source of power, the office bearers thereof have collected the sample in arbitrary manner from the appellant's company and sent it to the private laboratory and, thereafter, imposed cost on the appellant and, thus, the NCTL is using the powers of GPCB (Gujarat Pollution Control Board) and according to the appellant, the exercise of powers by NCTL are against the provisions of law. It is contended by the appellant that the NCTL is shield used by major industries to prevent GPCB from exercising its jurisdiction. It is contended that the issue involved in the matter is whether NCTL has jurisdiction, source of power to collect sample, get it tested and inflicting of punishment and acting as adjudicating authority.
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C/LPA/1216/2018 ORDER 2.3 It is further the case of the appellant that by way of contract
or agreement, the jurisdiction cannot be conferred if it is not provided by the statute and accordingly, even if it is believed that the appellant has signed the agreement with NCTL, that could not give any jurisdiction to the NCTL to impose cost or act as adjudicating authority.
2.4 On all these grounds, the appellant has filed the aforesaid Special Civil Application which, after hearing both the sides, came to be dismissed by the learned Single Judge on the following grounds.
(i) The petitioner, appellant herein was caught for the purpose of violation of norms and policy which has been undisputedly formulated twice which are not under challenged.
(ii) The NCTL has been created with aid and assistance of the order passed in Public Interest Litigation by this Court.
(iii) The petitioner became member of the NCTL in the year 2008 pursuant to the agreement. The petitioner is already party to specific clause of monitoring and there is arbitration clause in agreement of year 2008. That the existence of NCTL was recognized by this Court and allowed extension of time to take appropriate measures. On that count, the petition is not entertained. That, the material circumstances about conduct of the petitioner himself has not been projected by him and there appears to be an attempt to suppress the material facts from the Court. Page 3 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019
C/LPA/1216/2018 ORDER (iv) That the detailed explanation given by respondent -
authorities by way of respective affidavits; they pleaded respondent No.3 is acting without the authority of law is not at all possible to be taken to its logical end; on the contrary, the authorities being endorsed by more than two occasions by this Court and the existence of respondent No.3 appears to be in larger interest of public at large.
(v) That special mechanism of adjudicating machinery has been setup.
2.5 The aforesaid observations of the learned Single Judge has been assailed in the present appeal submitting that the learned Single Judge has not decided the question as to whether NCTL has any authority under the Air and Water Act. That it has also not taken into consideration that even the NCTL was given closure by the GPCB in year 2015. It is contended that the action on the part of the NCTL is without jurisdiction. It is contended that the arbitrator has no authority to restrain the respondent No.3 from discharging function of GPCB. It is also contended that the learned Single Judge has committed error on forming an opinion on the basis of some orders passed in Public Interest Litigation. It is contended that recognition of existence of a company would not clothe the said company with power to collect samples, inflict penalty and establish it as adjudicating authority.
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C/LPA/1216/2018 ORDER 2.6 It is contended that the establishment of NCTL itself is
contrary to law and it has no power whatsoever under the Air and Water Act and, therefore, the action on the part of NCTL is without law. As such, the petitioner has preferred the main petition seeking reliefs referred to therein. According to it, the impugned judgment and order of the learned Single Judge is liable to be quashed and set aside.
3. Heard Mr.M. M. Saiyed, learned counsel for the appellant, Mr.R. D. Dave, learned counsel for respondent No.1 and Mrs. Dharmishta Raval, learned counsel for respondent No.2. Perused the material placed on record.
4. Mr.M. M. Saiyed, learned counsel for the appellant has submitted the same facts which are narrated in the memo of appeal and has submitted that without any authority of law, respondent No.3 is carrying out the work of collecting samples and is exercising the power of adjudicating authority which is against the law. While referring to the documentary evidence, he has submitted that the circumstances, which have been referred to above by the learned Single Judge, are not legally sustainable. He has submitted that even if it is believed that the appellant has signed the agreement with the NCTL, even in that case, the NCTL cannot adjudicate and it cannot exercise power of adjudication. He has submitted that the arbitration clause thereof cannot be pressed into service when Page 5 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER prima facie NCTL has to adjudicate the dispute between the parties. He has submitted that the entire exercise carried out by the NCTL is not sustainable in the eyes of law.
4.1 While referring to the documentary evidence and the impugned judgment and order of the learned Single Judge, learned advocate for the appellant has submitted that the authority lies with the Gujarat Pollution Control Board to collect the sample and to pass necessary order, but NCTL has no such power. He has submitted that the NCTL is exercising power of adjudicating authority which cannot be sustainable in the eyes of law. He has submitted that the appellant has specifically taken the contention that he does not admit any of the averments of affidavit-in-reply filed by respondent No3 and, therefore, the pleading of respondent No.3 ought not to have been believed by the learned Single Judge. While referring to the agreement, learned counsel for the appellant has submitted that the agreement does not refer to any policy or power whereby it could be specifically shown that petitioner has specifically agreed to collect the water samples, its testing, consent to accept the report and is consent to adjudicating authority. He has submitted that even otherwise, by way of contract or agreement, a jurisdiction cannot be conferred if it is not provided by the statute. He has submitted that simply because there are two alleged incident against the petitioner, that fact itself cannot be termed him as violater. He has submitted that there is serious dispute as to collection of samples Page 6 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER from the premises of the appellant, the learned Single Judge ought not to have accepted the contention of respondent No.3 i.e. NCTL. He has submitted that the arbitrator has no authority to restrain respondent No.3 from discharging function of GPCB. On all these grounds, he has urged to allow the appeal and quash and set aside the impugned judgment and order of the learned Single Judge.
5. Mr.R. D. Dave, learned advocate for respondent No.1 has vehemently submitted that the impugned judgment and order of the learned Single Judge is proper and it does not warrant any interference. During the course of the arguments, learned advocate for respondent No.1 has also produced the paper book which contains lease deed executed dated 07.05.2004, broacher of NCTL (respondent No.3), certificate of incorporation pursuant to change of memo of respondent No.3, Government Resolution dated 14.03.2018 and consent and authorization order dated Nil August 2016 issued by GPCB to NCTL. While referring to all documentary evidence, he has submitted that the NCTL has been established by the GPCB and necessary order was passed to the NCTL. While referring to the impugned judgment and order of the learned Single Judge, he has submitted that the learned Single Judge has taken into consideration all the aspects and there is no need to interfere with the impugned judgment and order. He has urged to dismiss the present appeal.
6. Ms.Dharmishtha Raval, learned advocate for respondent No.2 Page 7 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER has submitted that the NCTL has been created due to the order of the Supreme Court passed in Writ Petition (C) No.375 of 2012 decided on 22.02.2017 in the case of Paryavaran Suraksha Samiti and another Vs. Union of India and others. She has submitted that as per the direction of the Supreme Court, there was need to set "common effluent treatment plants" and, therefore, the NCTL has been created to monitor the activity of the industries established under its jurisdiction. She has submitted that even, if any, dispute is raised then the appellant could approach the arbitrator. She has submitted that the learned Single Judge has taken into consideration this aspect also and after perusing the material placed on record has rightly dismissed the petition.
7. It is worthwhile to refer to Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 which reads as under:-
"25. Restrictions on new outlets and new discharges.-- (1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,--
(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or
(b) bring into use any new or altered outlet for the discharge of sewage; or
(c) begin to make any new discharge of sewage:
Provided that a person in the process of taking any Page 8 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988, 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.
(2) An application for consent of the State Board under sub-section (1) shall be made in such form, contain such particulars and shall be accompanied by such fees as may be prescribed.] (3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed. 2[(4) The State Board may--
(a) grant its consent referred to in sub-section (1), subject to such conditions as it may impose, being-- (I) in cases referred to in clauses (a) and (b) of sub- section (1) of section 25, conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of sewage;
(ii) in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or new discharge is to be made; and
(iii) that the consent will be valid only for such period as may be specified in the order, and any such conditions imposed shall be binding on any person establishing or taking any steps to establish any industry, operation or process, or treatment and disposal system of extension or addition thereto, or using the new or altered outlet, or discharging the effluent from the land or premises aforesaid; or
(b) refuse such consent for reasons to be recorded in writing.
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C/LPA/1216/2018 ORDER (5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge. (6) Every State Board shall maintain a register containing particulars of the conditions imposed under this section and so much of the register as relates to any outlet, or to any effluent, from any land or premises shall be open to inspection at all reasonable hours by any person interested in, or affected by such outlet, land or premises, as the case may be, or by any person authorised by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions.] (7) The consent referred to in sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board. (8) For the purposes of this section and sections 27 and 30,--
(a) the expression "new or altered outlet" means any outlet which is wholly or partly constructed on or after the commencement of this Act or which (whether so constructed or not) is substantially altered after such commencement;
(b) the expression "new discharge" means a discharge which is not, as respects the nature and composition, temperature, volume, and rate of discharge of the effluent substantially a continuation of a discharge made within the preceding twelve months (whether by the same or a different outlet), so however Page 10 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER that a discharge which is in other respects a continuation of previous discharge made as aforesaid shall not be deemed to be a new discharge by reason of any reduction of the temperature or volume or rate of discharge of the effluent as compared with the previous discharge.
8. At this stage, reference of Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 requires to be taken into consideration. Section 21 provides as under:-
"21. 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 (47 of 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.] (2) An application for consent of the State Board under sub-section (1) shall be accompanied by such fees as may be prescribed and shall be made in the prescribed form and shall contain the particulars of the industrial plant and such other particulars as may be prescribed:
Provided that where any person, immediately before the declaration of any area as an air pollution control area, operates in such area any industrial plant, 16 [***] such person shall make the application under this sub-section within such period (being not less than three months from the date of such declaration) as may be prescribed and where such person makes such application, he shall be deemed to be operating such industrial plant with the consent of the State Board until the consent applied for has been refused.
(3) The State Board may make such inquiry as it may Page 11 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry, shall follow such procedure as may be prescribed.
(4) Within a period of four months after the receipt of the application for consent referred to in sub-section (1), the State Board shall, by order in writing, [and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse such consent:] [Provided that it shall be open to the State Board to cancel such consent before the expiry of the period for which it is granted or refuse further consent after such expiry if the conditions subject to which such consent has been granted are not fulfilled:
Provided further that before cancelling a consent or refusing a further consent under the first proviso, a reasonable opportunity of being heard shall be given to the person concerned.] (5) Every person to whom consent has been granted by the State Board under sub-section (4), shall comply with the following conditions, namely: -
(i) the control equipment of such specifications as the State Board may approve in this behalf shall be installed and operated in the premises where the industry is carried on or proposed to be carried on;
(ii) the existing control equipment, if any, shall be altered or replaced in accordance with the directions of the State Board;
(iii) the control equipment referred to in clause (i) or clause (ii) shall be kept at all times in good running condition;
(iv) chimney, wherever necessary, of such specifications as the State Board may approve in this behalf shall be erected or re-erected in such premises;
(v) such other conditions as the State Board may specify in this behalf; and
(vi) the conditions referred to in clauses (i), (ii) and
(iv) shall be complied with within such period as the Page 12 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER State Board may specify in this behalf:
Provided that in the case of a person operating any industrial plant [***] in an air pollution control area immediately before the date of declaration of such area as an air pollution control area, the period so specified shall not be less than six months: Provided further that--
(a) after the installation of any control equipment in accordance with the specifications under clause (i), or
(b) after the alteration or replacement of any control equipment in accordance with the directions of the State Board under clause (ii), or
(c) after the erection or re-erection of any chimney under clause (iv), no control equipment or chimney shall be altered or replaced or, as the case may be, erected or re-erected except with the previous approval of the State Board.
(6) If due to any technological improvement or otherwise the State Board is of opinion that all or any of the conditions referred in to sub-section (5) require or requires variation (including the change of any control equipment, either in whole or in part), the State Board shall, after giving the person to whom consent has been granted an opportunity of being heard, vary all or any of such conditions and thereupon such person shall be bound to comply with the conditions as so varied.
(7) Where a person to whom consent has been granted by the State Board under sub-section (4) transfers his interest in the industry to any other person, such consent shall be deemed to have been granted to such other person and he shall be bound to comply with all the conditions subject to which it was granted as if the consent was granted to him originally.
9. Having considered the contentions of both the sides and perusing the material placed on record, it is an admitted fact that the NCTL has been established by GPCB under Section 25 of the Page 13 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER Water (Prevention and Control of Pollution) Act, 1974, under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and under Section 6(2) of the Hazardous and Other Waste (Management and Trans-boundary Movement) Rule, 2016 framed under the E(P) Act, 1986. It also appears from the letter of the GPCB that the NCTL has been constituted as a monitoring committee for monitoring of the effluent discharged by member units in the GIDC underground drainage system. It also reveals from the agreement between the appellant and NCTL, which is produced at page No.141 to 143, that there is a clause regarding monitoring, which reads as under:-
2. MONITORING :
a. The COMPANY has constituted a monitoring committee to undertake the monitoring of effluent discharged in the Notified Area underground drainage system by the MEMBER. The procedure for carrying out Monitoring activities shall be finalized and reviewed by Monitoring Committee of BEAIL, which includes all three Presidents of Industries Associations.
b. If the MEMBER is found defaulting and not adhering to GPCB norms, the procedure to be finalized by Monitoring Committee would specify the action to be taken.
c. The MEMBER agrees to install necessary equipment as per Consent of GPCB. This will not apply to ETL / CETP MEMBERS and Zero discharge units. The calibration shall be certified by third party and approved by the COMPANY.
10. It also reveals from the agreement between the appellant and NCTL at page No.142 that there is a clause that in the event of any disputes, claims or difference which is not settled by mutual Page 14 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER compromise between the parties, the same shall be referred for Arbitration in accordance with Arbitration & Conciliation Act, 1996. Now, admittedly, the dispute has arisen between the appellant and NCTL and, therefore, in view of this agreement, it was incumbent on the part of the appellant to initiate proceeding in accordance with the provisions of Arbitration & Conciliation Act, 1996.
11. It also appears from the paper-book that this Court in Special Civil Application No.12823 of 2010 has issued directions on 23.06.2011 directing the NCTL to take measures to ensure that the discharge standard prescribed for waste water is maintained.
12. It also reveals from the documentary evidence that earlier, the appellant has also preferred appeal and he was given opportunity of hearing.
13. It also reveals from the documentary evidence on record that respondent No.3 was set up with aid and assistance of the order passed by this Court in Public Interest Litigation with a view to monitoring and controlling the larger discharge of effluent by the member. It is an admitted fact that the management of the NCTL is wholly and substantially controlled by the GIDC and essentially, it was created for controlling large number of industrial units and with a view to ensure that there discharge may not affect to the general public. It also appears from the record that this Court has recognized existence of respondent No.3 and it is for larger interest Page 15 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019 C/LPA/1216/2018 ORDER of public at large and when there is confrontation between the private interest and the public interest, then, the Court has to prefer public interest at large and if the Court finds that prima facie there is no case made out by the private party then the relief seeking a writ of quo warranto may be rejected.
14. It appears from the record that the appellant was party to the agreement right from 2008 and during this period, the appellant has violated the norms pertaining to discharge of effluent and there is alternative remedy available of approaching arbitrator, the appellant is not entitled to get any relief in law and even on the ground of equity.
15. On examining of the impugned judgment and order of the learned Single Judge, it appears that the learned Single Judge has not committed any error of facts and law in dismissing the petition and the same does not warrant any interference. Therefore, the present appeal is devoid of merits.
16. In view of the above, the present Letters Patent Appeal is liable to be dismissed. Accordingly, it is dismissed. Notice is discharged. No order as to costs.
(S.R.BRAHMBHATT, J) (A. P. THAKER, J) V.R. PANCHAL Page 16 of 16 Downloaded on : Mon Dec 23 20:27:08 IST 2019