IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                      Special Appeal No. 496 of 2018

M/s Multiwal Duplex Pvt. Ltd.                       ................... Appellant
                                     versus

State of Uttarakhand & Another                                 ....Respondents


Present:
Mr. Narendra Bali, Advocate for the appellant.
Mr. Narayan Dutt, Brief Holder for the State of Uttarakhand/ respondent No. 1.
Mr. Shiv Pande, Advocate on behalf of Mr. Aman Rab, Advocate for the respondent No.
2.



Coram:         Hon'ble K.M. Joseph, C.J. (Oral)
               Hon'ble Sharad Kumar Sharma, J.

Dated: 2nd July, 2018 K.M. Joseph, C.J. (Oral) Appellant is the writ petitioner. The writ petition was filed calling in question Annexure -5, which is notice dated 6th June, 2018 purported to be issued under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred as the "Act"). There is a direction sought to respondent no. 2 to collect the sample from the outlet and examine the same and, after that, pass appropriate order.

2. Briefly put, the case of the petitioner is as follows:

Appellant Company is working from last 5-6 years. The appellant applied for consent to operate, which is pending. By Annexure-1 to the writ petition dated 08.01.2018, a letter was received, in which certain conditions were mentioned for taking consent from the Pollution Control Board and it was also mentioned therein thereafter that after receiving letter dated 08.01.2018, a show cause notice be submitted within 30 days before the Authority concerned. Appellant submitted his reply and clarified all the things by Annexure-2. Respondent no. 2 issued another show cause notice (Annexure-3) and in the said notice, it was mentioned that some irregularities were found in the plant and plant was not functioning as per the norms prescribed by the Authority. Appellant gave Annexure-

4 reply dated 22.05.2018. It is thereafter that Annexure-5 letter dated 06.06.2018 was issued which reads as follows:

"Ref: UEPPCB/HO/Con-M-11(II)/2018/4115 Dehradun, June 06, 2018 By Speed Post To, M/s Multiwal Duplex Pvt. Ltd., Vill. Gangapur Gusain, Kundeshwari Road, kashipur, Distt. U.S. Nagar (Uttarakhand).

Directions under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974.

WHEREAS, the Central Government has made the Water (Prevention and Control of Pollution) Act, 1974 and vide provisions of theis Act every Water polluting industry/unit is required to obtain consent to establish and consent to operate from the State Pollution Control Board; and WHEREAS, the Central Government has notified the standards for discharge of environmental pollutants from various categories of industries under the Environment (Protection) Rules, 1986; and WHEREAS, M/s Multiwal Duplex Pvt. Ltd., located at Vill. Gangapur Gusain, Kundeshwari Road, Kashipur, Distt. US Nagar, Uttarakhand (hereinafter referred as 'the Unit') is a duplex board manufacturing Unit using waste paper asa raw materials with a production capacity of 900MT/month; and WHEREAS, consolidated consent and authorization (CCA) of the Unit was refused on 26.12.2017 (letter issued on 08.01.2018) due to non-compliance of provisions of the Water (Prevention and Control of Pollution) Act, 1974, the Environment (Protection) Rules, 1986 as amended and directions issued by the Board time to time; and WHEREAS, direction was issued to the Unit by this Board under section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974 vide letter ref. no. UEPPCB/HO/Gen- 334/2012/4066-6465(1-33) dated 01.08.2014 for implementation of "Charter for Water Recycling and Pollution Prevention in Pulp and Paper Industries in Ganga river Basin" wherein amongst others, emphasis has been given in up-graded as well as proper operation and maintenance of Effluent Treatment Plant and recycling of treated water in industrial uses; and WHEREAS, in view of Magh Mela, the Board has issued necessary notices, vide its letter ref. No. UEPPCB/HO/Gen-

93(VIII)/2017/6216-1146 dated 22.11.2017 to all Grossly Polluting Industries (GPI) operating in the State of Uttarakhand for proper operation of Effluent Treatment Plant and not to discharge any kind of untreated/partially treated/coloured effluent into the rivers/water bodies; and it was also mentioned that in case of non-compliance, action would be taken under section -33(A) of the Water (Prevention and Control of Pollution) Act, 1974, without any further notice or prior information against the defaulting Unit(s); and WHEREAS, the Unit was inspected by the Joint Inspection Team constituted by the District Magistrate, US Nagar vide letter ref. no. 10161/30 ARA (04NGT)/2018 dated 21.03.2018. The Joint Inspection Team inspected the Unit on dated 22.03.2018 and made following observations:

1. During inspection unit was found in operation.

2. Unit is engaged in manufacturing of Duplex Board by using waste paper as a raw material.

3. Main source of industrial effluent is from the Paper Machine and from Cooking of the raw material.

4. Unit has provided Effluent treatment Plant consists of Primary clarifier, Secondary aeration, secondary clarifier and tertiary treatment consisting of Pressure Sand Filter.

5. Finally treated effluent is partly recycled back to process and remaining is discharged in to a drain, which met a river Bhella at upstream of Bazpur Road Bridge.

6. House Keeping of the plant is very poor.

7. Unit has also provided Real Time Effluent Monitoring System (RTMS), which results, during inspection, could be seen due to power failure at that time.

8. Effluent found discharged along with the sludge of grayish colour. Such sample of the effluent, entering in to water stream, has been taken and sent to Board laboratory for analysis.

9. Consent to Operate of the unit was refused by the State Pollution Control Board due to default in operation of ETP and exceeding the ETP outlet discharge parameters with respect to prescribed norms. At present fresh application of consent to operate is under consideration with State Pollution Control Board.

10. Sludge disposal system is not proper. Unit is required to provide Sludge drying beds or Filter press.

WHEREAS, Show cause notice was issued to the Unit under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974 vide this office letter ref. no. UEPPCB/Ho/Gen-183-247/2018/680-119 dated 24.04.2018; and -4- WHEREAS, in compliance of order of the Hon'ble High Court of Uttarakhand in the matter of WP(PIL) No. 5 of 2014 Ashok Kumar Vs. State of Uttarakhand & Ors. on 26.03.2018, ETP outlet sample of the Unit was collected and analysed and analysis report showed BOD-155 mg/L which is above the prescribed effluent discharge norms specified under the Environment (Protection) Rules, 1986 as amended time to time.

As such, it is evident from the above analysis results that Effluent Treatment Plant is not being operated and maintained appropriately to meet prescribed discharge norms and polluted wastewater is being disposed into drain leading to river Bahella. The Unit may be categorized as habitual defaulter.

AND NOW THEERFORE, in view of threat to environment and in exercise of power conferred under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974 as amended thereafter, with approval of the Competent Authority of the Board, M/s Multiwal Duplex Pvt. Ltd., Vill. Gangapur Gusain, Kundeshwari Road, Kashipur, Distt. US Nagar, Uttarakhand is hereby directed to close down their all manufacturing operations with immediate effect.

In case of default in compliance with the above directions by the Unit, the UEPPCB will be constrained to initiate appropriate actions against the occupier(s) without giving any further notice, in accordance with provisions of the Water (Prevention and Control of Pollution) Act, 1974, as amended thereafter.

MEMBER SECRETARY"

3. Feeling aggrieved, the petitioner approached the learned Single Judge under Article 226 of the Constitution of India. The learned Single Judge by the impugned judgment took the view that on an inspection, certain deficiencies were detected in the manufacturing plant of the petitioner. House keeping of the plant was found to be very poor, the Effluent Treatment Plant and sludge disposal system were not working properly and the polluted wastewater was being disposed into the drain leading to river Bahella. It was found that on the basis of the same, impugned order has been passed. It was found, as is evident, that the petitioner was violating the prescribed norms and standards resulting into threat to the environment. Thereafter, it is stated that in any case, the petitioner has an alternative remedy as the impugned order is appealable under Section 16(c) of the National -5- Green Tribunal Act, 2010 and the writ petition was dismissed on the ground of alternative remedy.

4. We heard Mr. Narendra Bali, learned counsel on behalf of the petitioner, Mr. Narayan Dutt, learned Brief Holder for the State of Uttarakhand / respondent no. 1 and Mr. Shiv Pande, learned counsel on behalf of respondent no. 2.

5. It is true that the impugned order was passed under Section 33-A of the Act. It is equally true that under Section 33-B of the Act, an appeal lies before the National Green Tribunal, but we must be detained by one aspect of the matter that the appellant was issued a show cause notice. The appellant gave reply to the same (Annexure-4). The show cause notice (Annexure-3), to which the appellant gave Annexure-4 reply has culminated in Annexure-5, which is the impugned order. We have perused the impugned order. Though there is reference to the show cause notice, the second respondent has not considered the reply given by the appellant and yet passed the order under Section 33-A of the Act. The purpose of giving the show cause notice was to elicit response, if any, to the contents of the show cause notice and, thereafter, pass an order.

6. In this case, though a reply was given, it is not in dispute that the reply given by the appellant has not been adverted to or considered while passing the impugned order.

7. In such circumstances, we would think that to relegate the appellant to avail remedy under Section 33-B of the Act may not be very fair in the circumstances as the appellant would have to appeal the order before the National Green Tribunal, which is located at New Delhi. Therefore, we may notice that the appellant does not, as of now, have consent to operate and its application for consent to operate is pending consideration. Therefore, also we think that the interest of justice would be sub-served, if we quash the impugned order and direct the second respondent to consider Annexure-4 and take a decision in accordance with law within a period of 10 days from the date of production of a certified copy of this judgment. In the meantime, needless to say, the appellant cannot be permitted to -6- operate as the appellant does not have the consent to operate. Accordingly, we dispose of the Appeal by modifying the judgment of the learned Single Judge and directing the second respondent to consider Annexure-4 reply given by the appellant and take a decision in accordance with law within a period of 10 days from the date of production of a certified copy of this judgment before him. The second respondent will not consider the observations made by the learned Single Judge in the impugned judgment.

8. Let a certified copy of this judgment be issued today itself.

(Sharad Kumar Sharma J.) (K.M. Joseph, C.J.) 02.07.2018 Rathour