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IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16336 of 2010(N)
1. THE CHEERANS MAYURA INDUSTRIES
... Petitioner
Vs
1. KERALA STATE POLLUTUION CONTROL BOARD
... Respondent
2. THE CHAIRMAN,
3. THE APPELLATE AUTHORITY
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :16/09/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NOs. 16336 & 21000 OF 2010
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Dated this the 16th day of September, 2010
J U D G M E N T
Petitioner in WP(C) No.16336/10 is M/s.Cheerans Mayura Industries (hereinafter referred to as "M/s.Cheerans" for short) and the petitioner in WP(C) No.21000/10 is the Kerala State Pollution Control Board (hereinafter referred to as "Board" for short). Both have filed this writ petition challenging the order passed by the Appellate Authority under Air (Prevention and Control of Pollution) Act in Appeal No.15/2008 filed by M/s.Cheerans.
2. For convenience, I shall be referring to the documents produced in WP(C) No.16336/10 filed by M/s.Cheerans.
3. Briefly stated, the facts of the case are that M/s.Cheerans is engaged in the manufacture and installation of incinerators operated using coconut shell as its fuel. It is stated that on 6/11/2002, M/s.Cheerans filed Ext.P21 application to the Board requesting for the issue of Board approval and certificate. It is stated that after a long process, the Board issued to M/s.Cheerans, Ext.P1 certificate of approval of consultant dated WPC Nos.16336 & 21000/10 :2 : 7/2/2004 and valid till 6/2/2007. The certificate contained seven conditions, the last of which being relevant, is that, the design of the incinerator should confirm to the standards and guidelines prescribed by the Ministry of Environment and Forests and the Central Pollution Control Board. It is stated that, based on Ext.P1, Government of Kerala issued Ext.P4 according sanction to all Urban Local Bodies in the State to use the incinerators manufactured by M/s.Cheerans. It is also pointed out that, by Ext.P5, Ext.P4 was modified and the order was made applicable to the Grama Panchayats in the State also. M/s.Cheerans would state that based on the Government Orders referred to above, they have installed incinerators at various places, the list of which are Exts.P2 and P3.
4. While matters stood thus, the Board issued Ext.P6 dated 6/3/06, an order of cancellation of Ext.P1, the certificate of approval of consultant. Ext.P6 referred to show cause notice dated 20/11/2005 and the letter dated 2/12/05 allegedly issued by M/s.Cheerans in reply to the show cause notice. According to M/s.Cheerans, neither such a show cause notice was issued nor did they give any reply. Therefore they submitted Ext.P7 for WPC Nos.16336 & 21000/10 :3 : copies of show cause notice and its reply. There was no response to the request made and therefore they approached this Court by filing WP(C) No.18000/06 seeking a direction to the Board to issue them a copy of the show cause notice and the reply allegedly given by them. That writ petition was heard and by Ext.P10 judgment rendered on 13/6/07, the writ petition was disposed of recording that the learned Judge was not satisfied that a show cause notice was actually served on M/s.Cheerans. Taking note of this aspect and also the allegations of malafides raised against the then Member Secretary of the Board, this Court directed that the Chairman of the Pollution Control Board should examine the issue afresh after affording an opportunity of hearing to M/s.Cheerans. On that basis, quashing Ext.P6, the writ petition was disposed of directing the Chairman to issue the show cause notice to the petitioner allowing M/s.Cheerans to file its objections and directing the Chairman to pass orders after hearing M/s.Cheerans.
5. It is stated that accordingly show cause notice was issued and reply was also filed. A hearing was also given, which again gave rise to several controversies. Finally along with WPC Nos.16336 & 21000/10 :4 : Ext.P14 dated 15/5/2008, the Chairman issued his proceedings upholding Ext.P6 order cancelling Ext.P1. Ext.P14 proceedings were again challenged before this Court in WP(C) No.29511/08. That writ petition was disposed of by Ext.P17 judgment relegating M/s.Cheerans to file an appeal before the Appellate Authority. Accordingly, appeal was filed and by Ext.P18 order of the Appellate Authority, the appeal was allowed. A reading of the appellate order shows that the Appellate Authority framed the following points for consideration:
1) Whether the appeal is maintainable?
2) Whether the appellant is entitled to function and operate the incinerators by using coconut shell as the fuel?
3) Whether the order passed by the 2nd respondent is liable to be set aside?
4) Reliefs and costs.
6. On merits, all the points were found in favour of M/s.Cheerans. Considering the nature of the controversy now arising for resolution by this Court, it is profitable to quote para 12, 13 and 14 of Ext.P18 order,which reads as under;
12. Bio-Medical Waste as defined in the said rules means any waste which is generated during the diagnosis treatment or immunisation of human beings or animals or in research activities pertaining thereto or in the production of testing of biologicals and including categories mentioned in Schedule I by Medical waste treatment facilities. As per the above rules, treatment WPC Nos.16336 & 21000/10 :5 : means any facility wherein treatment disposal of Bio- medical waste or processes incidental to such treatment or disposal is carried out and includes common treatment facilities. The operating standards and omission standards are shown in schedule 5 of the said rules. The note contained in the above schedule assumes importance and they are as follows:-
"1. Suitably designed pollution control devices should be installed/retrofitted with the incinerator to achieve the above emission limits, if necessary.
2. Wastes to be incinerated shall not be chemically treated with any chlorinated disinfectants.
3. Chlorinated plastics shall not be incinerated.
3. Toxic metals in incineration ash shall be limited within the regulatory quantities as defined under th Hazardous Waste (Management and Handling) Rules, 1989.
5. Only low sulphur fuel like L.D.O/L.S.H.S/Diesel shall be used as fuel in the incinerator".
13. The learned counsel for the respondent would argue that since as per the above rules only low sulphur fuel like L.D.O, L.S.H.S, Diesel etc. shall be used as fuel, no solid could be used as fuel in the incinerator. On the other hand, the learned counsel for the appellant would argue that there is no bar against using solid fuel and if a solid fuel meets the requirements covered by the above rules, solid fuel also can be used in the incinerator. No doubt fuel stated in the note does not specifically mention any solid fuel. But that cannot be interpreted to mean that solid fuel cannot be used in the incinerator.
The main requirement under note 5 is that the fuel used should be low sulphur fuel. If the solid fuel is a low sulphur fuel the use of such a fuel will not violate Note 5 of the above Rule. The respondent do not have a contention that coconut shell is not a low sulphur fuel. It is significant to note that the respondents had earlier WPC Nos.16336 & 21000/10 :6 : permitted the appellant to install incinerators operated by coconut shells as fuel. Unless it is shown that coconut shell is a fuel which does not satisfy the requirements other than the one shown under Note 5 above, then and then alone the respondent can object the design and operation of the incinerator. As already pointed out the main contention of the respondent is that the incinerators installed by the appellant do not meet condition No.7 of the Certificate of Approval, issued by the Board. As already pointed out, Condition No.7 in Ext.P1 is as follows;
"The toxins of incinerators shall conform to the standards and guidelines prescribed by the Ministry of Environment and Forest and Central Pollution Control Board". The standards and guidelines prescribed by the Ministry of Environment and Forest are no doubt reflected in the Bio-Medical Waste (Management and Handling) Rules 1998 and the Municipal Solid Waste (Management and Handling) Rules, 2000. The fact is that the powers and functions of the Central Pollution Control Board as regards grant or refusal of consent are equally exercised by the State Pollution Control Board in relation to such matters.
14. The learned counsel for the respondents would argue that the appellant should obtain clearance from the Central Pollution Control Board and also the Ministry of Environment and Forest for using coconut shell as fuel due to the reason that coconut shell is not permitted to be used as a fuel as per the rules. The above argument cannot legally sustain. As already pointed out, the said rules prescribe parameters and the criteria for installing incinerators and the State Pollution Control Board has to consider the above aspects while granting or refusing a request for consent. This would definitely apply in relation to the use of fuel also in the incinerator. Even though coconut shell is not specifically shown as a fuel at Note 5 of the above rules, it cannot be inferred that the said fuel is excluded from the purview of the above Rules. As already pointed out, Note No.5 mandates that only low sulphur fuel should be used. This would definitely take within its fold solid fuel also. Admittedly coconut shell is WPC Nos.16336 & 21000/10 :7 : an organic material and it is a low sulphur fuel. Therefore, the contention that use of coconut shell as fuel is violative of the above rules is absolutely untenable. The finding of the Board that coconut shell being a solid fuel is not prescribed under the said rules cannot stand to a reason. Therefore the cancellation order is unsustainable.
7. Recording the aforesaid findings, the appeal was disposed of with the following directions;
In the result the appeal is allowed and the order passed by 2nd respondent is set aside and the appellant is permitted to submit fresh proposal/application for obtaining consent for the design and operation of the incinerator by using coconut shell as fuel and the respondents, on receiving such proposal/application shall re-examine the same in the light of the relevant Rules and also in the light of the observations contained in this judgment and dispose the matter afresh treating that coconut shells can be used as fuel provided it satisfies the other requirements as per Rules.
8. This order shows that although M/s Cheerans succeeded in the appeal, they were relegated back to the Chairman with a direction to make a fresh proposal/application and fresh orders were ordered to be passed on such application.
9. M/s.Cheerans have filed WP(C) No.16336/10 contending that having upheld all their contentions in the appeal on merits, Appellate Authority ought to have set aside Ext.P6 and reinstated Ext.P1. They also contend that Ext.P6 proceedings WPC Nos.16336 & 21000/10 :8 : were issued by the then Member Secretary of the Board, and that the then Member Secretary of the Board is presently the Chairman of the Board and that their contention that Ext.P6 issued by him was vitiated by malafides has been taken note of by this Court in Ext.P10 judgment. On this basis, they contend that if they are again asked to take their chance before the same person, they will not get justice from him. It is with these allegations, seeking to quash Ext.P18 to the extent the matter is remitted back to the Chairman and for consequential reliefs, this writ petition is filed.
10. In this context, one development which is to be taken note of is that when this writ petition came up for orders before this Court on 27/5/2010, this Court admitted the writ petition and passed an interim order that without prejudice to the contentions of M/s.Cheerans, they shall file an application as directed in Ext.P18 and that orders will be passed thereon. Accordingly M/s.Cheerans filed Ext.P19 application which has been produced along with IA 8694/10. That application was considered and the Chairman passed Ext.P20 order dated 16/6/2010 rejecting the application. In this order, for the first time, the Chairman has WPC Nos.16336 & 21000/10 :9 : chosen to state that vide Circular No.PCB/T4/115/97 dated 2/11/2007, the Board has discontinued the system of approval of consultants and that for getting the consent of the Board for establishing/operating incinerators, the occupier of the industry/institution establishing the incinerator has to apply in the prescribed form. It is stated that if and when system of approval of consultants is resumed, M/s.Cheerans shall be provided an opportunity to make their application.
11. The Pollution Control Board has filed WP(C) No.21000/10, challenging Ext.P18 order referred to above passed by the Appellate Authority in its entirety. According to the Pollution Control Board, in view of the provisions contained in the Bio Medical Waste (Management and Handling) Rules, 1998 and Municipal Solid Wastes (Management and Handling) Rules, 2000, only Light Diesel Oil (LDO), Low Sulphur Heavy Stock (LSHS) and Diesel shall be used as fuel in incinerator. On this basis, they contend that the finding in Ext.P18 order of the Appellate Authority that incinerator can be worked using coconut shell as fuel is illegal and unsustainable.
12. In so far as the cancellation of Ext.P1 order is WPC Nos.16336 & 21000/10 :10 : concerned, it is stated that in terms of Clause 7 of Exts.P1 and P4 referred to above, M/s Cheerans ought to have produced approval of the Ministry of Environment and Forests and the Central Pollution Control Board. According to them, M/s Cheerans did not produce such approval, and therefore, Ext.P6 cancellation order was issued. It was further contended by the Pollution Control Board that once the Board and its officers, who are experts in the field, have taken a view on a technical matter like this, it is impermissible for the Appellate Authority to sit in judgment over those conclusions. It is therefore contended that the Appellate Authority ought not have interfered with Ext.P18 order.
13. I have considered the submissions made.
14. The sustainability of the prayer sought by M/s.Cheerans in their writ petition will depend upon the outcome of the challenge raised by the Pollution Control Board against the order passed by the Appellate Authority. In other words, if the order of the Appellate Authority is interfered with in the writ petition filed by the Pollution Control Board, necessarily, the writ petition filed by M/s Cheerans will have to be dismissed. In that view of the matter, I shall first deal with the contentions raised by WPC Nos.16336 & 21000/10 :11 : the Pollution Control Board in the writ petition filed by them.
15. Before I deal with the contentions raised by both parties, I must record that although M/s Cheerans were claiming cancellation of Ext.P6 and reinstatement of Ext.P1 certificate of approval of consultant, when the writ petition was taken up for hearing, their main apprehension was that even if Ext.P1 is not reinstated, the Pollution Control Board shall not reject an application made by an institution, which has installed the incinerators manufactured by them on the ground that coconut shell is the fuel used. It was answering this contention of M/s.Cheerans that the counsel for the Pollution Control Board also addressed his arguments. The question whether this contention of M/s Cheerans can be accepted or not, will depend upon the correctness or otherwise of the findings of the Appellate Authority contained in para 12, 13 and 14 of Ext.P18 order. It is on this basis, that I proceed to examine the issues raised by the parties.
16. In para 12 to 14 of the order, the Appellate Authority has rejected the plea of the Board that only LDO, LSHS and Diesel can be used as fuel in the incinerator. The contrary finding of the Appellate Authority is based upon the provisions of the Bio WPC Nos.16336 & 21000/10 :12 : Medical Waste (Management and Handling) Rules 1998 and the Municipal Solid Waste (Management and Handling) Rules 2000. In so far as the fuel to be used in the incinerator is concerned, Schedule V of the Bio Medical Waste (Management and Handling) Rules 1998 and the provisions in the Municipal Solid Waste (Management and Handling) Rules provides that "only low sulphur fuel like LDO/LSHS/Diesel shall be used as fuel in the incinerator". As already noticed, it is interpreting this provision of the Rules that the Board contended that only LDO/LSHS/Diesel shall be used as fuel. Interpreting this provision, the Appellate Authority has held that the rule only provides that low sulphur fuel should be used and the rule does not exclude fuels other than those enumerated in the rule. It is on this basis that the Appellate Authority has rejected the plea of the Pollution Control Board.
17. While interpreting a statutory rule, this Court is bound to give full effect to the provisions of the Rule. Rule only says that only low sulfur fuel 'like' the enumerated ones shall be used as fuel. In my view, the terms of the Rules do not warrant the restricted interpretation that is canvassed by the Pollution Control Board. On the other hand, the Rule permits usage of other low WPC Nos.16336 & 21000/10 :13 : sulfur fuels like those enumerated in the Rule also as fuel in the incinerators. The word 'like' as defined by Webster means equal in quantity, quality or degree; exactly corresponding. In Andhra Cement Co. Ltd. v. A.P. State Electricity Board (AIR 1991 AP
269), it has been held that the word 'like' means only 'similar' and not same. From Words and Phrases, Permanent Edition, it is seen that the word 'like' has been judicially defined to mean "having the same or nearly the same appearance, qualities, or characteristics; resembling; similar to; equal in quantity, quality or degree. Taking into account the above and also the terms of the provisions of the Rules, I am inclined to hold that the Rules permit usage of fuels like LDO/LSHS or Diesel in the incinerator, so long as such fuels are low sulphur fuels.
18. In the writ petition filed by the Pollution Control Board, they have no case that coconut shell used by M/s Cheerans in its incinerator is not a low sulfur fuel. On the other hand, in ground (G), what is contended by the Pollution Control Board is that ash content and moisture content in coconut shell is more as compared to fuels like LDO/HSD and LSHS. It is also stated that the calorific value of coconut shell is less as compared to the WPC Nos.16336 & 21000/10 :14 : calorific value of fuel such as LDO/HSD and LSHS. In the absence of a case for the Board that the coconut shell is not a fuel having low sulphur content and as the rule permits other low sulphur also as fuel for incinerator, I uphold the conclusions contained in para 12 to 14 of Ext.P18 order of the Appellate Authority.
19. Now what remains is the contention of the Board that the petitioner did not produce approval from the Ministry of Environment and Forests and the Central Pollution Control Board and that it was therefore that they issued Ext.P6 cancelling Ext.P1. A reading of Clause 7 of Ext.P1 shows that the only condition imposed by the Pollution Control Board is that the design of the incinerator should confirm to the standards and guidelines prescribed by Ministry of Environment and Forests and the Central Pollution Control Board. This condition has been reiterated by the Government in Ext.P4 order also. A plain reading of this clause shows that this clause did not oblige M/s.Cheerans to obtain any approval from the Ministry of Environment and Forests and the Central Pollution Control Board. If that be so, the premise on which the Pollution Control Board has initiated action resulting in Ext.P6 also cannot be upheld.
WPC Nos.16336 & 21000/10 :15 :
20. In that view of the matter, no grounds have been made out by the Pollution Control Board warranting interference with Ext.P1. However, fact remains that although belatedly, Pollution Control Board has taken the stand in Ext.P20 order that the system of approval of consultants has been discontinued by circular dated 2/11/2007. M/s.Cheerans were not in a position to show me any statutory provision in the Air (Prevention and Control of Pollution) Act authorising the Board to issue a certificate in the nature of Ext.P1. Therefore, I am not persuaded to direct the Board to reinstate Ext.P1. However, on the basis of the submissions made by both sides, I am clear that the provisions of the Bio Medical Waste (Management and Handling) Rules, 1998 and the Municipal Solid Waste (Management and Handling) Rules, 2000 do permit usage of coconut shell also as a fuel for incinerators.
21. For the above reasons, it is ordered that if M/s.Cheerans or any establishment using the incinerator manufactured by them apply for consent to establish or operate incinerators, such applications shall not be rejected on the ground that the fuel used is coconut shell.
WPC Nos.16336 & 21000/10 :16 : In the result, WP(C) No.16336/10 filed by M/s.Cheerans will stand disposed of with the above direction and WP(C) No.21000/10 filed by Board will stand dismissed.
ANTONY DOMINIC, JUDGE Rp