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.
BEFORE THE NATIONAL GREEN TRIBUNAL,
CENTRAL ZONAL BENCH,
BHOPAL
Application No. 10/2013 (P.B.76/2012 THC)
In the matter of
M/s Cox India Ltd.
Nowgong (BKD)
Distt. Chhattarpur. .....Applicant
Vs.
1. MP Pollution Control Board,
Through its Secretary,
E-5 Arera Colony,
Paryawaran Parisar, Bhopal.
2. Central Pollution Control Board
Zonal Office, 3rd Floor, Shaker Bhawan (North)
T.T.Nagar, Bhopal. ....Respondents
Application No. 7/13 (P.B.No.79/2012 THC)
In the matter of
Balram Raikwar
Near Campion School,
Dairy Road, Chhattarpur (MP) ......... Applicant
1. State of MP
Through Collector
Chhattarpur (MP).
2. Sub Divisional Officer
Nowgaon Dist. Chhattarpur (MP).
3. Regional Officer
MP Pollution Control Board,
Sagar, MP.
4. M/s Cox India Ltd.,
C-115, Mansarovar Garden
New Delhi 110015
Works at
Nowgong (BKD) Dsit. Chhattarpur (MP). ...... Respondents
Counsel for Applicant :
Shri Suresh A.Sadhwani, Adv.
Counsel for Respondents :
Shri Sachin K.Verma, Advocate, Shri Purshaindra Kaurav, Addl. Advocate
General, Shri Sandeep Singh, Advocate, Shri Shivendu Joshi, Advocate., Shri
Sandeep Singh, Advocate
ORDER/JUDGMENT
PRESENT:
Hon'ble Dr. Justice P. Jyothimani (Judicial Member)
Hon'ble Dr. Ajay A. Deshpande (Expert Member)
2
Delivered in the open court by the Hon'ble Justice P.Jyothimani, JM
1. Both the Applications No. 07/2013 and 10/2013 were transferred from the
Hon'ble Principal Bench to this Tribunal which in turn were originally filed as
Writ Petition before the Hon'ble High Court of Madhya Pradesh at Jabalpur. As
the issues involved in both the cases are common, both the applications are taken
together for passing a common order. For the sake of convenience, we take up the
Application no. 10/2013 at the first instance.
2. Application No. 10/2013
The applicant herein M/s Cox India Ltd. is a private Company registered under the
Companies Act and started with an object of carrying on a distillery unit originally
with a capacity of 9 lakh unit per year, for rectified spirit (country liquor) and that
was started in the year 1995. It was at that time, the applicant company was
permitted to run the unit with the capacity of 3 KL per day on molasses based
manufacturing of liquor. Later, it was in the year 2006 or in the later part of 2005,
the applicant has submitted an application for additional grant of 8 KL per day as
expansion, with the respondent namely the State Pollution Control Board and
originally an order was passed by the State Pollution Control Board on 24.01.2006
giving consent to establish for distillery unit on grain basis with 8KL per day. The
grievance of the applicant in the above application is that the Pollution Control
Board which has granted its consent on 24.01.2006, has unilaterally and in an
arbitrary manner cancelled the same by the impugned order dated 07.12.2006 and
that order has been challenged in the said application contending inter alia that the
order, suffers from the violation of principles of natural justice, since, no
opportunity was given before the impugned order of cancellation was made, that
the order cannot be passed under Section 33 (A) of Water Act, 1974 and that the
Pollution Control Board Authority having already decided as seen in the
3
communication dated 18.08.2006 that the grain based distillery unit is certainly
less pollutant as compared to the molasses based unit and therefore the impugned
order is contradictory in nature. It is seen that, originally the applicant Company
was allowed to run the distillery unit for producing 3 KL per day on molasses basis
and it was while running the same they have made the aforesaid application for
the purpose of expansion to have the additional capacity of 8 KL on grain based
distillery. According to the applicant, the impugned order passed by the State
Pollution Control Board refers to certain communication of the Central Pollution
Control Board dated 18.08.2006 wherein and according to the State Control Board,
it amounts to a direction and therefore, based on the said directions they have taken
action under Section 33(A) of the Water (Prevention and Control of Pollution) Act,
1974 and passed the impugned order withdrawing the permission to establish
already granted to the applicant and according to the applicant, the communication
of the Central Pollution Control Board cannot be treated as a direction given as per
statue and at the most, it can be taken as a letter which has no statutory value and
Central Pollution Control Board's letter cannot be the ground for the State
Pollution Control Board to act and pass the impugned order.
3. Application No. 07/2013
The other application No.07/2013 has been filed by an applicant namely
Balram Raikwar which was originally filed by way of Writ Petition before the
Hon'ble High Court of M.P. seeking for a mandamus against the State Pollution
Control Board to take appropriate legal action against the Respondent no. 4, M/s
Cox India Ltd., who is the applicant in application no. 10/2013 and also to take
action against the Regional Officer of MPPCB, Sagar, who has filed false report.
The contention raised in the said application are also similar to that of the project
proponent in the other case, but opposing the original clearance given to the
4
applicant in application no. 10 of 2013. The applicant has chosen to state that the
distillery unit namely the project proponent has been given 67.5 acres of land by
Govt. of M.P. by way of exchange, on condition that, the Company shall establish
the Pollution Control mechanism and also, make plantation of trees all over the
land to make it a green area which would minimise pollution, likely to be caused
by the project, in order to protect the people living in the area. It is also stated that
even though the condition imposed was that the project proponent should plant
3000 trees, there are no such trees available at all and the project proponent has
defied the condition under the pretext that 600 trees have died due to draught and
therefore there is a factual false statement made by the project proponent. It was
on those averments, the petition has been filed for the prayer as stated above.
4. The State Pollution Control Board as well as the Central Pollution Control
Board have filed their response. In the reply filed by the State Pollution Control
Board before the High Court which has been pending from 2006 onwards, the
State Board has stated that installation of grain based distillery unit is equally
pollutant in its nature. It is also denied that prior notice was not given before
passing the impugned order. It is seen that in the reply affidavit filed by one of the
officer namely the Regional Officer of MPPCB Mr.A.K. Mishra, dated
23.07.2011, who is stated to be no more, it is also reiterated that pollution load of
the grain based distillery is equal to the molasses based distillery and therefore,
both of them are pollutant industries. In the reply filed by the MPPCB, ever since
the date of filing of application by the applicant by way W.P. and also, from the
date of transfer to this Tribunal, till date, there is no averment made by any officer
of the MPPCB about the real existing situation of the project run by the
proponent.
5. Learned Counsel appearing for the Central Pollution Control Board would
categorically submit that the communication of the official of the Central
5
Pollution Control Board stated in the impugned order of the State Pollution
Control Board dated 04.05.2006 is not statutory in nature and the Learned
Counsel also brought to the notice of this Tribunal that even under the said
communication, the CPCB has never directed the State Pollution Control Board to
withdraw expansion proposal and therefore, that letter cannot be the basis for the
State Pollution Control Board to act and pass the impugned order . We certainly
appreciate the frank stand taken by the Learned Counsel appearing for the Central
Pollution Control Board. On a reading of said letter dated 18.08.2006 which is the
basis for the State Pollution Control Board to pass the impugned order it shows in
clear terms, that the distillery may not be allowed to enhance the capacity even if
shifted to grain based and the capacity increase may be considered only after
satisfactory treatment and utilization of effluent is achieved. For the purpose of
understanding the said letter dated 18.08.2006 of CPCB and also, to appreciate as
to whether it can be treated as direction given as per the Water Act, it is
appropriate to extract the contents of the said letter which is as follows:
"This has reference to your letter, dated 04.05.2006 and 30.06.2006 on the
above subject. It is to inform you that we have monitored one of the grain
based distillery and results indicates that the pollution load generated is
comparable to that of a molasses based distillery. Central Board is likely to
take monitoring of few other grain based distillery. In case, grain based
distilleries are operative in your State, please provide us the name and
address of such units so as to take up detailed monitoring.
In view of the above, the distilleries may not be allowed to enhance the
production capacity even if shifted to grain based. The capacity increase
may be considered only after satisfactory treatment and utilization of
effluent is achieved."
6
6. According to the Learned Counsel appearing for the Central Pollution
Control Board, it is true that the Central Pollution Control Board has not taken any
steps so far, as to study whether, the grain based distillery is a more pollutant
industry than the molasses based. However, according to the Learned Counsel the
study is still going on. We deprecate the slackening attitude shown by the CPCB
in this regard as the distillery units in particular are highly pollutant industries and
are covered under Central Action Plan. It was expected of CPCB to complete such
proposed study, more so when, they have given suggestions for not allowing the
expansions to MPPCB vide the above referred letter dated 18.08.2006.
7. Be that as it may, as it is rightly pointed out by Learned Counsel of CPCB
that by no stretch of imagination the said letter 18.08.2006 can be considered as
statutory in character so that it can be treated as binding on the State Pollution
Control Board.
8. The Learned Additional Advocate General appearing for the State Pollution
Control Board would submit that it is true that under the impugned order of
withdrawal of permission to establish additional facility, there is no mention about
any show cause notice having been issued to the project proponent before passing
the impugned order. However, according to him, there was a show cause notice
issued to the project proponent on 12.10.2006 asking the project proponent to
submit his objection. Unfortunately, the Learned Additional Advocate General is
unable to produce any record to show that such notice has been served on the
project proponent. Law is well settled, that unless the communication of such
notice is made, it cannot be said to be the compliance of the principles of natural
justice and so we are unable to agree with the contention of the Learned Counsel
that any notice has been given before passing the impugned order of withdrawal.
Further, there is no reference of any such show cause notice in the impugned order
as admitted by the Learned Addl. Advocate General.
7
9. There is a reference in the impugned order dated 24.01.2006 which is letter
No. 1025 and it is only permission to establish the additional facility of grain based
distillery in the existing plant for the purpose of increasing capacity of 8 KL per
day. However, there is another reference of letter dated 24.01.2006 bearing letter
No. 1027. Even though the copy of the said letter has not been produced before
this Tribunal, it may be the consent to renewal for the period from 01.11.2005 to
31.10.2006 already granted for the existing consented capacity of rectified spirit, as
elicited in the impugned order itself. A reading of the said letter No. 1025 dated
24.01.2006 shows that the permission is not without any conditions. There are
various conditions imposed. It is the case of SPCB, as per the Learned Addl.
Advocate General, that the project proponent has not at all complied with any of
the conditions and therefore even if it is assumed that no notice is given before
withdrawing the permission of the project proponent for additional capacity, it
cannot as a matter of right claim that it should be entitled for an order of consent to
operate in respect of the additional capacity. According to him, consent to operate
is not a matter of right unless the project proponent complies with all the
conditions of consent to establish. We are in total agreement with the contention
raised by the Learned Addl. Advocate General. In fact, in the said letter imposing
condition, the State Pollution Control Board has also stated that the industry shall
also be liable to comply with all directions given by the CPCB and Ministry of
Environment and Forest. But the question is that in such event, when the project
proponent has not even complied with the conditions for the additional facilities,
where is the need for the State Pollution Control Board under the impugned order
to withdraw the consent to establish additional facilities for grain based distillation,
on the basis of the letter of the CPCB dated 18.08.2006 and without even giving
prior notice.
8
10. The Learned Counsel appearing for the project proponent on the other hand
raised various legal issues namely:
i. The impugned order is liable to be set aside on the ground of violation
of the principles of natural justice.
ii. The impugned order cannot be issued under Section 33(A) of the
Water Act.
iii. The State Pollution Control Board, having taken a decision, as seen in
the communication of its Member Secretary dated 07.01.2011 that
grain based industry is less pollutant, has chosen to take a
contradictory stand under the impugned order.
iv. In any event, the communication of CPCB dated 18.08.2006 cannot
be treated as a direction binding on the State Board.
11. We have heard the Learned Counsel appearing for all the parties including
the Learned Addl. Advocate General appearing for the SPCB, Learned Counsel
appearing for CPCB apart from the Learned Counsel appearing for the project
proponent and the State Government and referred to various papers and
communications filed and given our anxious thought to the issues involved.
12. The first point which has to be considered is as to whether the impugned
order dated 09.12.2006 suffers from the violation of the principles of natural
justice. The principles of natural justice was originally called under English Law
as natural law. This concept of natural law has been debated for a long time in the
legal parlour as to whether it can be equated or should be treated more than man
made law. In the Indian context, the question as to whether the term "the
procedure established by law" as contemplated under Article 21 of the Constitution
of India and "due process of law" used in American Constitution are one and the
same. The term "law" is used in both the terms and therefore, according to one
school of thinking it was felt that both are one and the same. If the same is
9
accepted, by using the word 'procedure established by law' the Government can
pass any law by following the procedure but taking away the valuable rights of
citizen and that will not be subjected to judicial review.
13. It was considered in one of the earliest judgment of Constitutional Bench of
the Hon'ble Supreme Court of India immediately on its commencement, namely
A.K.Gopalan vs. State of Madras, reported in A.I.R (Volume 37) 1950 SC 27. The
first Chief Justice of the Independent India, Hon'ble Justice Kania presiding over
the said Constitution Bench consisting of eminent legal luminaries namely,
Hon'ble Justice Fazl Ali, Hon'ble Justice Patanjali Shastri, Hon'ble Justice
Mahajan, Hon'ble Justice B.K.Mokherjea and Hon'ble Justice S.R.Das, by
majority of 06 judges out of 07 including the Hon'ble Chief Justice, it was held
that the court has to go strictly as per the wordings of Article 21. When a
contention was raised that the freedom conferred under Article 19 and right to life
conferred under Article 21 are mutually connected to each other, rejecting the
contention it was held that, the said Articles act independent and the freedom given
under Article 19 can never be read together with the right to live granted under
Article 21 of the Constitution of India and they operate in different fields. It was
held that as long as there was a valid law of preventive detention passed by the
Government of India, no citizen can claim his right other than the said law by
invoking the fundamental right of freedom conferred under Article 19(1)(d) of the
Constitution of India. It was Hon'ble Justice Fazl Ali who has given a contra
judgment who held that the right conferred under the said Article 21, has to be read
alongwith freedom conferred under Article 19 which are forming part of the same
part III of the Constitution of India conferring Fundamental Right.
14. The contra view taken by the Hon'ble Justice Fazl Ali especially in respect
of the principles of natural justice, which was not accepted by majority at that time,
10
has become a well established law recognized worldwide which is an apt instance
of March of law. It was the contention of Shri M.K.Nambyar, who was in fact
instrumental for bringing the word "procedure established by law" from Japanese
constitution, even if the procedure established by law is followed, the principles of
natural justice being an inherent law of nature contemplates that a person detained
must be informed of the reason for such detention. As stated above, the said
contention was rejected by the majority judges of the Supreme Court in that case.
Holding that the principles of natural justice which are nowhere defined in any law
cannot be accepted as a valid principle of law, Hon'ble Justice Kania, Chief
Justice has observed as follows:
"Para 18. No extrinsic aid is needed to interpret the words of Art.21, which
in my opinion, are not ambiguous. Normally read, and without thinking of
other Constitutions, the expression "procedure established by law" must
mean procedure prescribed by the law of the State. If the Indian Constitution
wanted to preserve to every person the protection given by the due process
clause of the American Constitution there was nothing to prevent the
Assembly from adopting the phrase or if they wanted to limit the same to
procedure only, to adopt that expression with only the word 'procedure'
pre-fixed by 'law'. However, the correct question is what is the right given
by Art.21? The only right is that no person shall be deprived of his life or
liberty except according to procedure established by law. One may like that
right to cover a larger area, but to give such a right is not the function of the
Court; it is the function of the Constitution. To read the word 'law' as
meaning rules of natural justice will land one in difficulties because the
rules of natural justice, as regards procedure, are nowhere defined and in
my opinion the constitution cannot be read as laying down a vague
standard. ................................................................. The word 'law' as used
11
in this part has different shades of meaning but in no other Article it appears
to bear the indefinite meaning of natural justice. (Emphasis supplied)
15. Again, brushing aside the contention that the intention of the debators of the
Constituent Assembly to be taken into consideration to infer the principles of
natural justice under the "procedure established by law", Hon'ble Justice Patanjali
Shastri observed as follows:
" 107. Mr. Nambiar urged that the word "law in Article 21 should be
understood, not in the sense of an enactment but as signifying the immutable
and universal principles of natural justice - the jus natural of the civil law -
and that the expression "procedure established by law" meant the same
thing as that famous phrase "due process of law" in the American
Constitution in its procedural aspect. Numerous American decisions were
cited to show that the phrase implied the basic requirements of, (1) an
objective and ascertainable standard of conduct to which it is possible to
conform, (2) notice to the party of the accusation against him, (3) a
reasonable opportunity for him to established his innocence, and (4) an
impartial tribunal capable of giving an unbiased judgment. Mr. Nambiar
conceded that these requirements might have to be modified or adapted to
suit the nature of the particular proceeding and the object it had in view, as
for instance, in a case of preventive detention, previous notice, which might
result in the person concerned going underground might be dispensed with.
Learned counsel insisted that these requirements, being the very core of the
principles of natural justice which transcended all State-made laws, must be
substantially complied with
..............................................................................................................
108.There can be no doubt that the people of India have, in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, so-called, I apprehend, because they have been retained by the people and made paramount to the delegated powers, as in 12 the American model. Madison (who played a prominent part in framing the first Amendment of American Constitution) pointing out the distinction, due to historical reasons, between the American and the British ways of securing "the great and essential rights of the people", observed "Here they are secured not by laws paramount to prerogative but by Constitutions paramount to laws": Report on the Virginia Resolutions, quoted in Near v. Minnesota, 288 U.S. 697. This has been translated into positive law in part III of the Indian Constitution, and I agree that in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind. This, however, is not to say that the language of the provisions should be stretched to square with this or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment, constitutional or other, that its spirit, no less than its intendment should be collected primarily from the natural meaning of the words used. "109. Giving full effect to these principles, however, I am unable to agree that the term "Law" in Article 21 means the immutable and universal principles of natural justice. "Procedure established by law" must be taken to refer to a procedure which has a statutory origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as " the immutable and universal principles of natural justice". In my opinion, 'law' in Article 21 means 'positive or State-made law'." (Emphasis supplied)
16. However, as we stated earlier in the dissenting opinion of Hon'ble Justice Fazl Ali, while accepting the principles of natural justice as forming part of law, His Lordship has observed that-
"77. In a number of cases, it has been held that though there may be no specific provision for notice, in the statute, the provision must be read with law. I am aware that some judges have expressed strong dislike for the expression 'natural justice' on the ground that it is too vague and elastic but where there are well known principles with no vagueness about them, which 13 all systems of law have respected and recognized, they cannot be discarded merely because they are in the ultimate analysis found to be based on natural justice. That the expression 'natural justice' is not unknown to our law is apparent from the fact that the Privy Council has in many criminal appeals from this country laid down that it shall exercise its power of interference with the course of criminal justice in this country when there has been a breach of principles of natural justice or departure from the requirements of justice."
17. As stated above, it is the minority view of the Hon'ble Justice Fazl Ali that has become the well recognized law by the subsequent judicial pronouncements to the effect that the natural justice is so basic that even if a statutory law fails to state in so many words about, its presence shall be inferred. At the risk of repetition we reiterate our firm stand that it is a unique instance of March of law and also to show the word "law" is not a static concept, but a moving and living substance.
18. Hon'ble Justice Shah presiding over a 11 judges constitutional bench of the Supreme Court in R.C.Cooper Vs. Union of India 1970 (1) SCC 248 speaking for the majority, has specifically over ruled the view expressed by the majority in A.K.Gopalan's case in para 55 as follows:
"55. We have found it necessary to examine the rationale of the two lines of authority and determine whether there is anything in the Constitution which justifies this apparently inconsistent development of the law. In our judgment, the assumption in A.K.Gopalan's case (supra) that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct. We hold that the validity of 14 "law" which authorises deprivation of property and "a law" which authorises compulsory acquisition of property for a public purpose must be adjudged by the application of the same tests. A citizen may claim in an appropriate case that the law authorising compulsory acquisition of property imposes fetters upon his right to hold property which are not reasonable restrictions in the interests of the general public. It is immaterial that the scope for such challenge may be attenuated because of the nature of the law of acquisition which providing as it does not expropriation of property of the individual for public purpose may be presumed to impose reasonable restrictions in the interest of the general public."
19. Thus, it was in R.C.Cooper case, the view expressed in the first judgment against the natural justice was overruled by a larger bench of Supreme Court consisting of 11 judges. It was ultimately in Mrs. Menaka Gandhi Vs. Union of India reported in 1978 (1) SCC 248, the constitutional bench presided over by the Hon'ble Chief Justice M.H.Beg has taken the view that the principles of natural justice is so basic that even in the absence of any specific provision about giving reasonable opportunity, the extent of natural justice has to be implied in all statute and the relevant portion is as follows:
"221. It is well established that even where there is no specific provision in a stature or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. The principle was laid down by this Court in the State of Orissa Vs. Dr. (Miss) Binapani Dei in the following words:
15
"The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of person invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore arise from the very nature of the function intended to be performed: it need not be shown to be superadded. It there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.
222. In England, the rule was thus expressed by Byles, J. in Cooper v. Wandsworth Board of Works The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence, "Adam" (says God), where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?" And the same question was put to Eve also."
20. Therefore, by virtue of march of law as per the law enunciated by the Hon'ble Apex Court, the latest principle in natural justice is very clear that giving opportunity to the person before taking away his right which is already conferred to him is not merely natural justice but fundamental in nature which is inherent. It goes back to the early English Author who made century ago that the principles 16 natural justice which was called the natural law is the law of God as reiterated by the Hon'ble Supreme Court in Union of India Vs. Tulsiram Patel 1985 in 3 SCC
398. The Hon'ble Apex Court has elicited Blackstone's view which is as follows:
"78. This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times : no human laws are of any validity, if contrary to this ; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original." 83 Some judges have been faced with the contention as Maugham, L.J., was in Errington v. Minister of Health that "the principles of natural justice are vague and difficult to ascertain". Referring to such contentions Lord Reid said in Ridge v. Balwin :
"In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as a tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more definite than that. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. (emphasis supplied). 17
21. It was in that judgment, the Supreme Court has made historical study about the entire concept of natural justice from the beginning till the date of the judgment including views of Acadamics. The view taken in RC Cooper and other various cases are of course on the aspect of service laws.
22. The principles as to how the concept of natural justice has undergone a great change ever since the date of commencement of Supreme Court till date has been reiterated in the latest judgment in Canara Bank Vs. V.K.Awasthi, (2005) 6 SCC 321 wherein the Supreme Court has made the following statement which is pertinent to be extracted :
"14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the stature under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
15. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew Vs. Drew and Leburn (Macq at p.8) Lord Cranworth defined it as "universal justice". In James Dunber Smith vs. R.(AC at p. 623) Sir Robert P. Collier, speaking for the Judicial Committee of 18 the privy Council, used the phrase "the requirements of substantial justice", while in Arthur John Spackman vs. Plumstead Dist. Board of Works (AC at p.
240), the Earl of Selbourne, S.C. preferred the phrase "the substantial requirement of justice." In Vionet vs. Barrett (LJJRD at p. 41), Lord Esher, M.R. defined natural justice as the "the natural sense of what is right and wrong". While, however, deciding Hopkins Vs. Smethwick Local Board of Health Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet case chose to define natural justice as " fundamental justice" In Ridge Vs. Baldwin (QB at p. 578), Harman, L.J., in the Court of appeal countered natural justice with "fair play in action", a phrase favoured by Bhagwati, J.in Maneka Gandhi Vs. Union of India. In HK (an infant), In re (QB at p. 530) , Lord Parker, C.J., preferred to describe natural justice as "a duty to act fairly". In Fairmount Investments Ltd. Vs. Secy of State for Environment Lord Russell of Willoman somewhat picturesquely described natural justice as "a fair crack of the whip" while Geoffrey Lane, L.J. in R, v. Secy of State of Home Affairs, ex p Hosenball preferred the homely phrase "common fairness".
16. How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi- judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is "nemo judex in causa sua" or "nemo debet esse judex in propria causa sua" as stated in (1605) 12 Co. Rep. 114 that is, "no man shall be judge in his own cause". Coke used the form 19 "aliquis non debet esse judex in proprio causa, quia non protest esse judex et pars" (Co. Litt. 1418), that is, "no man ought to be a judge in his own case, because he cannot act as judge and at the same time be a party ......................................................."
23. The long journey of case laws on this principle has again been reiterated by the Hon'ble National Green Tribunal, Principal Bench, New Delhi in M/s Sesa Goa Ltd., Sesa Ghar and Another V/s State of Goa and others in Application No. 49 of 2009. Hon'ble Shri Justice Swatanter Kumar, Hon'ble Chairperson of the NGT, presiding the 05 Member Bench in which one of us is a party (Justice P.Jyothimani), in His own unique style giving the entire historic events of natural justice has come to a conclusion that whether administrative or quasi judicial act, when it intends to take away the right which has been vested upon any person without opportunity, such act cannot stand the test of law. Therefore, by applying the above principles to the facts of the present case that admittedly when consent to establish was given to the project proponent on 24.01.2006 which was abruptly withdrawn on 07.12.2006 without even given notice to him is totally opposed to the principles of Natural justice. Therefore, we have no hesitation to hold that the impugned order passed by the State Pollution Control Board withdrawing the consent cannot stand the scrutiny of law and it is liable to be set aside on that ground alone.
24. Now coming to the other issue that the order has been passed under Section 33(A) of Water (Prevention and Control of Pollution) 1974, the said Section empowers the Central Government to give certain directions. This power has been given to the Central Pollution Control Board by amendment which has come into effect on 29.09.1998. The said Section reads as follows:
"[33A. Power to give directions. - Nothwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions 20 that the Central Government may give in this behalf, a Board may, in the exercise of its power and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such, directions. "Explanation. - For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct -
(a) The closure, prohibition or regulation of any industry, operation or process; or
(b) The stoppage or regulation of supply of electricity, water or any other service.]
25. A close reading of the said Section makes it abundantly clear that the power conferred under Section 33(A) are for the purpose of giving direction for better performance of an industry and to avoid pollution and it cannot be made applicable for the purpose of revoking or withdrawing a permission already granted. If at all, there is any power available to the State Pollution Control Board under the Act, it is Section 27, wherein there is a power given for the purpose of withdrawal of the consent. However we are aware that merely because wrong provision is quoted in any order, that itself would not vitiate the order. We are referring to the same only to reiterate that the purpose of any direction under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974 is to enable the SPCB to issue periodic direction for the purpose of maintaining pollution standards so to as to give effect to the avowed object of the said Water Act as well as Air Act.
26. There is one other aspect which is very apparent on the face of record. On a reference to the affidavit filed on behalf of the State Pollution Control Board, we are totally shocked to find out the attitude of the SPCB. One of the very senior officers of SPCB who was holding post of Regional Officer Shri A.K.Mishra has filed an affidavit even before the Hon'ble MP High Court on 27.11.2011 which nowhere states anything about the very sad condition of the unit of the project proponent which has been found out by this Tribunal from a report of the Expert Committee constituted in which the project proponent himself has participated. In the said affidavit or subsequently, the officer has chosen not to state anything about 21 the condition of the unit even in respect of the original consent to operate given for establishment of distillery with 3 KL per day. He has only chosen to state that both molasses based and grain based distillery are pollutant industry. On the other hand one of the responsible officer of SPCB namely the Member Secretary, SPCB in his clarification letter regarding applicability of EIA notification to the project in question, in his letter dated 07.01.2011 in no uncertain terms has stated that the pollution caused by the molasses based distillery is more pollutant than the pollution which may be caused by grain based industry. It is relevant to extract the entire clarification given by Shri R.K.Jain, the Member Secretary, MPSPCB dated 07.01.2011.
" This reference to the proposal of M/s Cox India Ltd., Nowgaon,Distt. Chhatarpur, MP engaged manufacturing of rectified spirit (3kl/d) on molasses based distillation since, 1995. The unit was granted permission to establish under Section 25 of Water (Prevention & Control of Pollution) Act, 1974 and under Section 21 of Air (Prevention & Control Pollution) Act, 1981 for grain based distillation (8 kl/d) based on no increase in pollution load vide Board's letter dated 24.01.2006 (copy enclosed). The pollution generation from molasses based distillery was considered as 2.5 times compared to grain based distiller."
27. There is no reason for us to differ from the view of Shri R.K.Jain. Thus, consequently one has to come to a conclusion as a necessary corollary, that the SPCB through its previous Regional Officers has been giving wrong information both to the High Court as well as to this Tribunal or suppressed the real situation about the unit. If only the Regional Officer has given the correct information about the industry which is in a very bad shape, there would have been an opportunity to the project proponent to correct itself or closure order could have been passed at the earliest stage which would have certainly prevented pollution in the area. 22 Therefore, we are of the view that it is not only the project proponent which can be treated as a pollutant but also the official who has prevented the court as well as the Tribunal from taking an appropriate action to prevent pollution and the department is also to be held equally responsible.
28. Taking into consideration, the entire issue which has been considered above, we have constituted a committee consisting of Shri R.S.Kori, Zonal Officer, CPCB, Bhopal and Shri Manoj Kumar Mandrai, Executive Engineer, MPPCB, Bhopal and Shri V.S.Rai, Regional Officer, MPPCB, Sagar to inspect the project proponent's factory to find out and give reply for the two questions raised : (a) as to whether plantation of 3000 trees are sufficient to meet the environmental protection norms and as to whether sufficient space and infrastructure is available for the same; (b) whether the scheme proposed by the project proponent for the purpose of treatment of the discharge of the effluent is acceptable and what is the present status of the treatment plant and nature of pollution being caused.
29. In the joint inspection report filed by the committee in which the project proponent has participated through its representatives Shri J.C.Agrawal, MD M/s Cox India Ltd., Shri Rajeev Mittal, Manager M/s Cox India Ltd. And Shri Satwant Singh, Plant Incharge M/s Cox India Ltd. While answering the first question, the committee has ultimately found that plantation of 3000 trees on 8.541 acres would not be sufficient to meet environmental protection norms. In fact the committee has also pointed out that there is no sign of earlier plantation of 3000 trees observed at the time of inspection. While answering the second point about effluent treatment plant, the committee has gone in detail about the various material facts supported by various photographs and documents and has come to a conclusion that the existing ETP was not functional. The observation made in this regard, which is relevant is extracted as follows:
23
"1. The photographs clearly indicate that the effluent treatment plant is in place but it is not being used for treatment of effluent. Its component/tanks are only being used for storage of effluent.
2. The entire Effluent Treatment Plant (ETP) including digester, de- gassifier vessel, lamella clarifier, ,primary and secondary clarifiers, sludge drying beds, aerators were found non-functional. At the time of inspection, team requested to the industry to show, whether all aerators are in working condition or not. Then the industry started only one aerator and shown to the team. Other aerators were not operation.
3. Sludge Collection Pit made for collection of sludge of lamella clarifier found filled with spent wash and its sludge.
4. The sludge drying bed are not being used a d found full of weeds and grasses.
5. The spent wash collection tank is also interconnected with aeration tanks whereas its effluent should be fed into the digester. This arrangement causes the short-circuiting of spent wash (raw effluent) in aeration tank.
6. All the 04 aeration tanks are also interconnected in parallel whereas these should be in series. Last 02 aeration tanks are also connected in parallel with treated effluent collection tank, whereas these should be connected with primary and secondary clarifiers. This arrangement causes the short-circuiting of effluent of aeration tank to the final treated effluent storage tank It is evident from above that present ETP is non-functional.
30. Ultimately, the committee has given the following comments: 24
1. Treated effluent is not confirming with standards prescribed by MPPCB in water consent letter.
2. The sample quality of impounded water in nalla indicates the discharge of effluent outside the factory premises.
3. Presence of Potassium and TDS in water sample open wells may be due to percolation of effluent into the ground water. Therefore industry should seal all the outlets of factory boundary located towards nalla and the effluent impounded in nalla should be pumped to back to spent wash collection tank to prevent drinking of this water by cattle."
The said report reveals a startling state of affairs of the project proponent and the same is not opposed by anyone and in fact the project proponent is a party to the report. The contents of the report shows that the existing plant of the project proponent is totally opposed to what was presented before the High Court as well as this Tribunal by the officials of the SPCB.
31. When the Tribunal asked the opinion of the Zonal Officer, CPCB, to give suggestion for the development of the system, the Zonal Officer of CPCB in his report has specifically stated that "the industry should redesign the ETP according to quantity of effluent generation to achieve the prescribed norms and to maintain zero liquid condition as given by MPPCB. In case the industry needs to redesign and modify the existing ETP, then the industry may examine the suitability of adopting emerging technologies.
32. All these factors show that not only the SPCB has failed to give the exact position but also made us to form a conclusion that the project proponent has complied with the conditions. Even though, we have no hesitation to set aside the impugned order for the reasons stated above, ultimately it is for MPPCB to decide 25 about the proposal given by the project proponent for extension by giving due opportunity to the project proponent.
33. In so far, it relates to the right of the project proponent to continue with the existing 3 KL per day on molasses basis for which the permission was legally granted and even though the period of licence has expired on 31.12.2012 and project proponent has made an application for renewal for which the MPPCB has not taken any decision so far action and therefore, it should be taken that licence will continue till such time and final decision is taken. Be that as it may, it is always open to the SPCB to take any decision based on fresh inspection. But it remains a fact that the project proponent is certainly entitled to run the existing 3 KL per day on molasses basis but the question is as to whether he should be allowed to run in this situation as stated in the joint report or unless and until the project proponent comply with certain conditions. We are of the view that the minimum requirement of plantation of 3000 trees must be done by the project proponent so as to enable it to run 3 KL per day on molasses basis and that should be done within the time specified by us. It is now seen that in respect of conducting 8 KL per day on grain basis, the requirement of land by the project proponent is much more. We make it clear that it is for MPPCB to decide the said requirement at the appropriate time. However, in the existing land, we are of the view that on the polluter pay principle, the project proponent should be directed to plant sufficient number of trees.
34. For all the abovesaid reasons we pass the following orders:
(1) Application No. 10 of 2013, M/s Cox India Ltd. stands allowed and the impugned order passed by the MPPCB dated 07.12.2006 stands set aside.
(2) It would be open to MPPCB to give proper notice to the project proponent and after hearing him and giving him sufficient 26 opportunity including the opportunity to remove the defects and comply with various conditions, the MPPCB shall pass appropriate order regarding the proposal of the project proponent for extension. We make it clear that the MPPCB which has by its conduct through its officer has caused huge loss shall not repeat the same. We refrain from passing any further orders in this regard as we are informed that the concerned officer who has filed the affidavit is no more.
(3) We make it clear that by setting aside the impugned order we are not permitting the project proponent to go ahead with the proposed expansion. The decision about consent to operate shall be made by MPPCB which shall be considered as stated above by giving opportunity to the project proponent and passing appropriate orders in accordance with law including the EIA 2006 notification. (4) We accept the Joint Inspection Report made by the committee as per the direction of this Tribunal. Taking note of the spirit of the report and as an interim measure before the SPCB take any decision regarding the continuation of the project proponent to run either 3 KL per day on molasses basis or for expansion of 8 KL per day on grain basis, we hereby direct the project proponent to plant minimum 3000 trees of each having 3 feet length and maintain the same for 3 years so as to make the trees self sustainable and that shall be done within 3 months' from today failing which the project proponent shall pay an amount of Rs. 5 lakhs as a compensation and that amount shall be kept by the State Government in a separate account as "Environmental Protection Fund" which shall be maintained by the Chief Secretary of State of 27 MP alongwith Principal Secretary, Housing and Environment and Zonal Officer of CPCB and it will be open to this committee to spend this amount for environmental protection in the State as and when required accordingly and report the same to the registry of this Tribunal.
(5) The contention of Shri Sachin K.Verma, Learned Counsel appearing for the State of MP that the government is always anxious to implement the directions of the Tribunal especially relating to the environmental protection and his undertaking that any direction given by the Tribunal will be implemented is recorded.
35. While parting with, we are compelled to observe that it is high time that M.P.P.C.B., which has got more responsibility than any other State Pollution Control Boards as the state is covered with a large extent of forest area, water resources in the form numerous lakes and other natural resources, shall take urgent steps to meet the increasing challenges of environmental protection and degradation with the improved understanding of the subject and framing of new regulations, as per the mandate given to it under various provisions of Water Act,1974, Air Act 1981 and various Rules under Environment (Protection) Act, 1986.
36. We find it relevant to refer, in particular, Section 17 of Water Act,1974 & Air Act, 1981 wherein the role of SPCB has been defined as multi faceted one, including, enforcement and compliance, environmental monitoring, information dissemination, environmental awareness and environmental advocacy. It is needless to say that all these functions require strong Research and Development support in environment science and technology. We find it, therefore, necessary to observe that MPPCB shall form a separate research wing with adequate manpower 28 and budget support, where all such essential activities are carried out internally or by associating with leading education and research institutes. It is needless to say that technical and scientifically sound information generated through such efforts will improve the environmental governance of MPPCB and make it ready to face increasing challenges of environmental degradation and protection in effective and efficient manner. We hope that the MPPCB will take it in correct spirit and do the needful for the purpose.
37. We place our deep sense of appreciation to Shri Purshaindra Kaurav, Addl. Advocate General and Shri Shivendu Joshi, Advocate appearing for MPPCB; Shri Sachin K. Verma, Advocate appearing for State of M.P.; Shri Suresh Atmaram, Advocate appearing for Respondent no.4 the project proponent for the efforts made by them. We also appreciate Shri R.S. Kori, Zonal Officer, CPCB who has chosen to give his suggestions apart from other committee members of the appointed committee including Mr. R.S.Kori, which has given an excellent report, which shall form a part of this order.
(Dr. Justice P. Jyothimani) Judicial Member (Dr. Ajay A. Deshpande) Expert Member Central Zonal Bench, Bhopal May 9th , 2013 29