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CWP No. 21544 of 2008 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Date of Decision: 20.08.2009
1) CWP No. 21544 of 2008
M/s M.K.Overseas Pvt. Ltd. ..Petitioner
Versus
The Punjab Pollution Control Board and others. ..Respondents
__:__
2) CWP No. 16306 of 2007
Village Welfare & Environment Bachao Committee, Samgoli.
..Petitioner
Versus
State of Punjab and others ..Respondents
*****
CORAM: HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
1.Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
__:__ CWP No. 21544 of 2008 [2] Present : Mr. Rupinder Khosla, Advocate,for the petitioner-unit M/s M.K.Overseas Private Limited in Civil Writ Petition No. 21544 of 2008 and (for Respondent No. 3 in Civil Writ Petition No. 16306 of 2007, alongwith Mr.Ravi Sodhi, Advocate). Mr. S.S.Brar, Advocate, for the petitioner in Civil Writ Petition No. 16306 of 2007. Mr. A.R.Takkar, Advocate, for Punjab Pollution Control Board.
Ms. Geeta Sharma, Advocate, for Punjab State Electricity Board.
Mr. T.P.Singh, Advocate, for Central Pollution Control Board.
Ms. Madhu Dayal, Addl. A.G. Punjab for respondent-State of Punjab.
Mr. Tushar Sharma, Advocate for respondent No.4 in Civil Writ Petition No. 16306 of 2007 ***** T.S.Thakur, C.J. (Oral) Civil Writ Petition No. 21544 of 2008 under Article 226 of the Constitution of India assails an order dated 19.12.2008 issued by the Punjab Pollution Control Board in exercise of its powers vested under Section 33-A of the Water (Prevention & Control of Pollution) Act, 1974. The backdrop in which this order has been made is elaborately set out in the order itself, from a reading whereof, it appears that the Punjab Pollution Control Board Authorities based on the inspections conducted by them noticed several deficiencies in the Effluent Treatment Plant set up by the petitioner-unit. These deficiencies have been enumerated as under:-
CWP No. 21544 of 2008 [3]
5. At the time of visit, it was observed that one no. Secondary Clarifier (after Ist stage Aeration) was not in operation & was empty. Both the aeration tanks were being used in series, as such, the treatment system was functioning as single stage aeration system.
6. The Pressure Sand Filter & Activated Carbon Filters installed by the industry were not in operation and the treated trade effluent from the pre-filtration tank was being discharged for plantation/irrigation bye-passing these filter units.
7. The industry has installed water meter at the final outlet of the ETP, but it is not maintaining any record for the quantity of treated trade effluent discharged by the industry. However, during visit, the quantity of treated trade effluent discharged by the industry was measured from the water meter installed by the industry, which was about 25 Kl/hr.
8. The industry is not maintaining any record regarding consumption of the chemicals for the operation of the ETP.
9. During visit, the monitoring of various components of the ETP installed by the industry as well as the treated trade effluent discharged by the industry was carried out. The analysis results indicate that the conc. of various pollutants ( i.e. BOD-220 mg/1, TSS-120 mg/1 and TDS-5040 mg/1) in the treated trade effluent ( i.e. at the outlet of ETP) discharged by the industry is beyond the permissible limits prescribed by the Board for such discharges onto land for irrigation/plantation.
10.All the trenches in the irrigation fields CWP No. 21544 of 2008 [4] including the areas having no plantation as well as areas where plants were at the initial stage of growth, were full of treated or partially treated effluents. Two no. samples of effluents from trenches i.e. In the irrigation fields, were found to have TSS-265 & 120 mg/1, TDS-8346 & 8138 mg/1, BOD-655 & 1150 mg/1 and COD-1664 & 2560 mg/1 confirming the application of untreated/partially treated effluent on land for irrigation/plantation.
11.The industry has developed about 12.5 acres of land as per Karnal Technology for utilization of its treated trade effluent. In addition to this land, the industry has also developed lawns in an area of about 10 acres. The industry has installed pipe line distribution network for its lawns. However, the distribution system for the disposal of treated trade effluent in its plantation area is with flexible pipes. But during visit, stagnation of effluent was observed inside and outside the industrial premises in its plantation area.
12.The sludge drying beds provided by the industry do not have adequate filter media and were not maintained properly. These beds were found chocked and sludge in semi-liquid form was being lifted by the industry in trolley/tanker for disposal. This sludge was being disposed off by the industry into unlined pits outside the industry on the land, which were earlier used for disposal of solid waste from Lairage area.
13.Two number ground water samples of the industry were also collected by the team from the peizometers provided by the industry inside the premises. The analysis of ground water CWP No. 21544 of 2008 [5] samples collected by the team from the peizometer wells ( about 80 ft. deep) located within the unit's premises shows the BOD-6 & 8 mg/1 and COD-29 & 32 mg/1, indicating that the ground water quality has been affected by the discharge of effluent.
14.The industry has installed Salt Recovery System consisting of collection tank and evaporation pans to separate the salt from leather house wastewater and no effluent from leather house was being discharged into the ETP. These pans are slightly above the ground level and were full to their capacity. In addition to this, the industry has also completed the civil construction work of 3 no. additional solar evaporation ponds of size 20 mx 10 mx 1 m each. But the same are yet to be put into operation. The unit has proposed solar evaporation for high TDS effluent in these ponds. With the commissioning of these evaporation ponds, the existing pans shall be discontinued.
15.The Rendering Plant installed by the industry was in operation. It has been provided with a cyclone, condenser and a bio-filter, so as to arrest the vapours of volatile material from the cooker exhaust. The bio-filter is at ground level, consists of grid of perforated pipes covered with bed of sand, different sizes of aggregates and rice husk etc. The husk is kept wet by way of sprinkling water to contain the odorous emissions from the cooker section. The emissions of the bio-filter were being escaped into the atmosphere at about 5 ft. above ground level causing odour in the adjoining area.
16.The industry is in the process of constructing CWP No. 21544 of 2008 [6] one no. collection tank of size 25 m x 15m x 4m and a storage tank of size 37 m x 20m x 5.5 m for further managing its effluent."
Aggrieved by the findings recorded by the Board on the above aspects, as also the final order of closure of the unit and the directions issued to the Punjab State Electricity Board for disconnecting the electricity supply, the petitioner-unit has filed the present petition as noticed earlier.
When the petition came up before us for hearing on 22.12.2008, Mr. Khosla, learned counsel for the petitioner-unit expressed apprehension about the impartiality of the approach and the fairness of the process undertaken by the respondent-Board in dealing with the questions relating to the efficacy of the Effluent Treatment Plant established by it. It was contended by Mr. Khosla that the petitioner-unit was ready and willing to be evaluated from the point of view of efficacy of its system and the adequacy of the anti pollution measures installed by the Central Pollution Control Board. On behalf of the Punjab Pollution Control Board, it was on the other hand, argued by Mr. Takkar that the findings recorded by the Board in the impugned order were all based on the observations and reports prepared by the officers on the basis of their site visits and test reports of samples taken in the course of such visits. It was also contended that the Board had not passed the impugned order under any duress as suggested by the petitioner nor was the petitioner singled out for any hostile treatment. All the same, the Board was according to the learned counsel not averse to the unit being reassessed and re-evaluated from the point of view of efficacy and adequacy of Effluent Treatment Plant installed in the same CWP No. 21544 of 2008 [7] and other pollution control measures by the Central Pollution Control Board. It was also stated that in case the Central Pollution Control Board recorded its satisfaction about the efficacy and operational efficiency of the pollution control measures, taken by the petitioner, it could in supersession of the order, passed by the respondent-Board, pass any order permitting the petitioner to resume its operations on such conditions as the Board may consider.
This Court had in the above backdrop directed the Central Pollution Control Board to have the entire system installed by the petitioner-unit re-evaluated from the point of view of its adequacy and efficacy and take a final decision as to whether the petitioner-unit could be allowed to resume its operations and if so, subject to what conditions. The Chairman of the Central Pollution Control Board was requested to nominate a team of officers to have the petitioner's unit evaluated from the point of view of the deficiencies reported by the Punjab Pollution Control Board and also whether the Effluent Treatment Plant installed in the same was adequate and efficacious and whether the same is being run efficiently by the petitioner. Since the Unit is a 100% export oriented unit, the Chairman of the Central Pollution Control Board was requested to take expeditious steps in the matter of nominating the team and issuing instructions to them to visit the unit for inspection and submit their report preferably within a period of 10 days from the date of the order. Liberty was given to the Central Pollution Control Board to allow the petitioner unit to resume its operations unconditionally or subject to the conditions which the Central Pollution Control Board may choose to impose, if it was of the CWP No. 21544 of 2008 [8] opinion on the basis of the report submitted by the Committee of the officers, that such an order was justified. We had made it clear that in case the Central Pollution Control Board passed any such order, the same would take effect in supersession of the directions issued by the State Board. We had also directed that pending fresh evaluation of the Unit by the team nominated by the Chairman of the Central Board, the State Board shall not encash the bank guarantee furnished by the petitioner in case the same had not been already encashed.
The Chairman of the Central Board in obedience of the above directions appears to have constituted a Committee of officers who had conducted an inspection of the unit on 13.01.2009 and submitted a report to the Central Pollution Control Board. Based on the said report, the Chairman of the Central Pollution Control Board has in exercise of the powers vested on him under Section 5 of the Environment (Protection) Act, 1986, passed an order dated 27.01.2009 permitting the petitioner-unit to resume operations subject to certain conditions stipulated in the said order. For facility of reference, the operative portion of the order passed by the Chairman, may be extracted at this stage:-
" Now, therefore, keeping in view of the aforesaid inspection report and as empowered by and in compliance of the Hon'ble Punjab and Haryana High Court's order, dated December 22, 2008, and in exercise of powers delegated to the Chairman, Central Pollution Control Board under Section 5 of the Environment (Protection) Act, 1986, the Unit is allowed to resume operations subject to the following conditions:-
1. The unit shall properly stabilize the effluent treatment CWP No. 21544 of 2008 [9] plant (ETP) and operate ETP and other pollution control measures so as to meet the prescribed standards; and
2. The unit shall fully comply with the CPCB's direction dated October 10, 2008, including the time schedules fixed, failing which the Bank Guarantee of Rs. 50 Lakhs submitted by them to the Punjab Pollution Control Board would be forfeited in full or in part as may be directed by CPCB; and
3. The unit shall submit monthly progress and status of compliance report to PPCB and CPCB by 7th day of the succeeding month during the validity of the Bank Guarantee.
CPCB will review, through inspection by CPCB alone or jointly with PPCB, the implementation of various measures and compliance of its direction by the Unit from time to time and in case of non-compliance with any of the above conditions, CPCB may initiate appropriate action against the Unit at any time as per the provisions of the Environment (Protection) Act, 1986."
The Unit has pursuant to the said directions resumed its operations. From the status report filed on the affidavit of Dr. A.B.Akolkar, Additional Director, Central Pollution Control Board, Delhi, it appears that a team of officers from the Central Pollution Control Board conducted a further inspection of the unit on 19.05.2009 followed by a final inspection made on 30.07.2009. The affidavit specifically states that out of 8 different steps that were required to be taken by the Unit, only one remains to be taken by it while the others have already been complied with satisfactorily. The CWP No. 21544 of 2008 [10] affidavit presents the picture regarding the compliance of the steps stipulated by the Central Pollution Control Board in a tabular form as under:-
Main actions/conditions stipulated Target date Status based
in CPCB's directions dated on the CPCB's
10.10.2008 and 27.01.2009 inspection
reports.
To make arrangements for disposal of With Complied
solid waste immediate
effect
To install peizometer at appropriate 15.10.2008 Complied
locations
Proper Irrigation with sprinklers, 31.12.2008 Complied
increased density of plantation,
kitchen garden and rain guns.
Construction of RCC tank of 1500 KL 31.12.2008 Complied
for effluent
Construction of solar evaporation 31.12.2008 Complied
pans
Construction of tank of 1 month 31.01.2009 Storage facility
( 18,180 KL) capacity for storing of 11,770 KL
treated effluent. capacity
provided.
To increase validity of Bank -- Complied
Guarantee already submitted to PPCB
till 15.8.2009
Providing forced evaporation system. 30.06.2009 Completed.
To submit progress report By 7th day of Reports are
succeeding being received
month. regularly.
In so far as the increase of the storage capacity of the effluent generated by the Unit is concerned, the affidavit states that as against 18,180 KL, the unit has storage capacity of 11770 KL only. The Unit has therefore to limit its effluent discharge to maximum of 450 KL per day particularly during monsoon season, as the demand for irrigation goes down during the said season. The report enclosed with the affidavit also states that the sample collected from the unit upon CWP No. 21544 of 2008 [11] tests shows that the same meets the prescribed standards. The report says as under:-
" The installed capacity of effluent treatment plant (ETP) provided by the Unit is 710 KLD. As per the analysis report of sample collected on May 19, 2009, treated effluent meets the standards."
On behalf of the respondents, it was in the above back ground argued that the Unit may have to add its storage capacity as required by the Central Pollution Control Board as storage capacity is less than what has been stipulated by the Central Pollution Control Board.
Mr. Khosla, learned counsel appearing for the petitioner- unit, however, has no objection to the enhancement of the storage capacity of the unit from 11,770 KL to 18,180 KL. He submits that the Unit would take appropriate steps in this regard and ensure that the enhanced capacity is available within next three months. Mr Kholsa further submits that since the Central Pollution Control Board has already passed an order permitting the petitioner to resume its operations upon satisfaction of the objections that were at one stage raised by the State Board and since the order passed has the effect of superseding the order to the contrary made by the Punjab Pollution Control Board, this petition could be disposed of with appropriate directions.
On behalf of the respondents, it was submitted that while the petition could be disposed of with a direction to the unit to enhance the storage capacity suitably, the disposal of the petition should not CWP No. 21544 of 2008 [12] prevent the Central Pollution Control Board or the Punjab Pollution Control Board from taking the samples as and when considered necessary for the purposes of verifying whether the systems installed by the petitioner-unit are working efficiently. It was submitted that disposal of this petition should not be understood to mean that the question regarding compliance with the standards fixed under the law for installation and functional efficacy of the Effluent Treatment Plant stands concluded for all times. The question whether the Unit is complying with the requirements of law will be a matter that would have to be continuously monitored and appropriate steps be taken as and when it is found to be falling short of the legal requirements.
There is in our opinion no gain saying that the installation of the Effluent Treatment Plant and providing of basic requirements, considered essential by the Central Pollution Control Board or the Punjab Pollution Control Board, is only one aspect of the matter. The second and the more important aspect is whether such systems and plants, that are installed, are made to work efficiently. For that purpose, the Pollution Control Board Authorities shall have to remain vigilant and conduct periodic checking/inspection and tests to ensure that the plants installed by the petitioner-unit are not only ornamental but are actually put to use. It also goes without saying that in case the tests conducted on the samples collected by the competent authorities fail to meet the standards prescribed for the same, the authorities would be free to pass appropriate orders for closure of the unit or for further directions considered appropriate. For the present, all that we need say is that the order passed by the Punjab Pollution Control Board shutting CWP No. 21544 of 2008 [13] down the unit is no longer effective in as much as the same stands superseded by the order passed by the Central Pollution Control Board.
Mr. Takkar was fair enough to state that in the light of the subsequent developments mentioned earlier, the Punjab Pollution Control Board would have no difficulty in withdrawing the impugned order. Mr. Takkar, however, submitted that the fact that the reference had been made to the Central Pollution Control Board and steps pursuant to the directions issued by the said Board have been taken by the petitioner and found to be adequate for the present, should not be interpreted to mean that the Punjab Pollution Control Board authorities were in any way biased against the petitioner-unit nor should the same be interpreted to mean that any action which the Punjab Pollution Control Board authorities may take against the petitioner would necessarily be biased or partisan in nature. We see no reason to decline that clarification. Just because there was an apprehension expressed by the petitioner unit regarding fairness of the officers of the Punjab Pollution Control Board and just because this Court made reference to the Central Pollution Control Board to find an early solution to the problem created on account of the closure of the unit, would not mean that this Court had accepted the allegations of bias or partisan attitude levelled by the petitioner-unit against the State Board and its officers. This would also not mean that the State Board authorities would not be entitled to monitor the working of the unit or take steps that are otherwise permissible in law upon failure of the petitioner unit to comply with the legal requirements.
CWP No. 21544 of 2008 [14] Mr. Khosla at this stage submits that the bank guarantee furnished by the petitioner could be released to the petitioner unit. We do not see any reason why the bank guarantee should be held beyond the period necessary. At the same time, we find that the bank guarantee ought to continue till such time the petitioner unit complies with the requirements of increasing the storage capacity to 18,180 KL.
Before parting, we may as well deal with an incidental issue that has been raised by the petitioner-committee in Civil Writ Petition No. 16306 of 2007 against the respondent No. 3 Unit petitioner in Civil Writ Petition No. 21544 of 2008. Petitioner in Civil Writ Petition No. 16306 of 2007 happens to be a Village Welfare & Environment Bachao Committee, which has made a grievance against M/s M.L.Overseas Private Limited-petitioner in Civil Writ Petition No. 21544 of 2008 that the operation of the unit established by the said company results in obnoxious smell making the lives of those residing in the vicinity of the unit miserable. It is submitted that because of the slaughtering of animals and the processing of the residual remains of slaughtered animals which are thrown in the open fields and adjoining jungles and because of untreated water that discharges in the adjoining fields, the entire area is affected by foul smell, which is injurious to health. Certain photographs showing discharge of the water and remains of dead animals have also been placed on record. It was contended on behalf of the petitioner Committee that this Court could in public interest issue appropriate directions to the authorities to examine the issue more closely and to save the inhabitants of the area from what is serious hazard for their health and lives.
CWP No. 21544 of 2008 [15] Mr. Khosla, learned counsel for the petitioner-unit submits that the petitioner-unit has taken adequate steps in the matter and there is at present no foul smell being emitted by the operation or working of the unit. He urged that this issue could be got verified from the Pollution Control Board Authorities also to set at rest this part of the controversy.
Mr. Takkar, learned counsel for the State Board was also not averse to the matter being examined by the State Authorities having regard to the norms, if any, on the subject for emission of foul smell or odour and in which event the company could be directed to take whatever steps necessary or feasible.
In the circumstances, therefore, the question whether the working of the unit is causing inconvenience or hardship or source of any health hazard for the residents of the area, whether in terms of emission of foul smell or odour or otherwise, is a matter that can be left to be examined more closely by the Punjab Pollution Control Board. It is noteworthy that this Court had at one stage appointed Local Commissioner to visit the spot and to report whether there is any foul smell being emitted by working of the unit. The report submitted by the Local Commissioner is also available on record which can be made use by the Punjab Pollution Control Board in case the same is otherwise found to be of any use. Suffice it to say that the petitioner committee as also the Punjab Pollution Control Board authorities shall be free to bring up the matter for consideration at the appropriate level for passing of orders which are considered necessary in the circumstances.
CWP No. 21544 of 2008 [16] In the result, we dispose of both the writ petitions in the following terms:-
i) The petitioner company in Civil Writ Petition No. 21544 of 2008 shall comply with the direction issued by the Central Pollution Control Board in regard to the increase in the storage capacity from 11,770 KL to 18,180 KL within a period of three months from today i.e. on or before 30.11.2009.
ii) The bank guarantee furnished by the petitioner-unit shall continue with the Board till increase in the storage capacity is achieved to the satisfaction of the Punjab Pollution Control Board. The petitioner-unit shall keep the bank guarantee duly renewed if the same is otherwise limited in point of time during all this period.
iii) Punjab Pollution Control Board so also Central Pollution Control Board shall be free and indeed duty bound to make proper visits and conduct proper inspections and take samples and conduct tests to ensure that the provisions of the Act and the Rules framed thereunder are strictly complied with by the petitioner unit. In the event of any default, the said authorities shall be free to pass appropriate orders on the subject including orders by way of closure of the unit.
CWP No. 21544 of 2008 [17]
iv) The petitioner Committee in Civil Writ Petition No. 16306 of 2007 shall be free to make a proper representation to the Chairman of the Punjab Pollution Control Board pointing out the nature of the hazards faced by them on account of the working of the unit, in which event the Board shall look into the matter and pass appropriate orders on the same expeditiously but not later than three months from the date the representation is received. Parties are left to bear their own costs.
(T.S.THAKUR) CHIEF JUSTICE (KANWALJIT SINGH AHLUWALIA) JUDGE 20.08.2009 'ravinder' CWP No. 21544 of 2008 [18] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 16306 of 2007 Date of Decision: 20.08.2009 Village Welfare & Environment Bachao Committee, Samgoli.
..Petitioner
Versus
State of Punjab and others ..Respondents
*****
Present : Mr. S.S.Brar, Advocate,
for the petitioner
Mr. Rupinder Khosla, Advocate,
alongwith Mr.Ravi Sodhi, Advocate
for respondent No. 3
Mr. A.R.Takkar, Advocate,
for Punjab Pollution Control Board.
Ms. Geeta Sharma, Advocate, for Punjab State Electricity Board.
Mr. T.P.Singh, Advocate, for Central Pollution Control Board.
Ms. Madhu Dayal, Addl. A.G. Punjab for respondent-State of Punjab.
Mr. Tushar Sharma, Advocate for respondent No.4 ____ For orders see, Civil Writ Petition No. 21544 of 2008.
(T.S.THAKUR) CHIEF JUSTICE (KANWALJIT SINGH AHLUWALIA) JUDGE 20.08.2009 'ravinder'