I
IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 10'?" DAY OF SEPTEMBER 2009.

PRESENT

THE HONBLE MR. P.D. DINAKARAN, CHIEE   1.

AND

THE HONELE M1-2.JUST1CA_E  = 
WRIT PETITION No.23646'1/2002;. . T  O'
BETWEEN: A O' h

1 THEKARNATA1<A:«*STATE.«""' -  

POLLUTION CONTRCL E-OAPD "  

BYITS MEMVER SE,'CY'.,     '

"PARISARA 13HAVANA""  '

NO. 49, CHLIRCHZ-ST.';' V.  .  =

EANGALc'EE.'560Eo1g'   PETITIONER
(By Sri/Sniit : D«--NAGARAJ;ADV_.V';.  

AND 

1 Mrs BAGALKOT CEMENT & INDUSTRIES
LIMITED. HAVING OFFICE AT AIR 1ND1A
' 'BUILDING, '14TH'FLOOR, NARIMAN POINT,
»  MUMBAI. AN.D__1T_-3 PRODUCTION FACILITY
A1>JD'"w0RKS AT BAGALKOT--587 1 1 1
 _ .R:EP.»EY. ITS AUTHORIZED REP. MR.
 v1<«...A.-KH.A1f.DELwAL  RESPONDENT

'(13§'Sr1/SfiOII._:ASAJAN POOVAYYA, ADV. 1
I  I ' =:==1==1=as:#=1==1=

"  THIS w.P. IS FILED PP;AwNG "DO QUASH THE IMPUGNED

I _  DT. 16.4.2009 VIDE ANNEX~C PASSED BY THE
   APPELLATE AUTHORITY IN APPEAL No.5/2009.

THIS WRIT PETITION COMING ON FOR HEARING ON THIS
DAY, SABHAHIT J ., MADE THE FOLLOWII\IG:--



ORDER

This writ petition is filed urider Articles 227 of the Constitution of India being order dated l6/ 4/ 2009 passedfoy "the Karnatal;a'Stat'e Appellate Authority at Bangalore:(he_reinafter"ca'lled"the~--,;L 'Appellate Authority') wherein,'-lthe "Appellatea"'Authorityit has allowed the Appeal N_o,'5'/éQtlV$i'-._andé 'set aside the order impugned in remitted the matter to the' of: the --:.=Karrilataka,V.fflgollution Control Board and to reconsider the "'a:ft.er appellant a reasonable opportunitypof"beir:ig.:h'eard;'as provided under law. Itis av'erre_d.»in the petition that the respondent .._Cement and industries Limited, is manufacture of cement of capacity 1000 Tones. day. The petitioner ~ Board had issued A to the respondent -- Industry both under the Water (Prevention 8: Control of Pollution] Acts, 1974 (hereinafter referred to as the 'Water Act') and Air (Prevention 8: Control of Pollution) Acts, 1981 \.53 3 (hereinafter referred to as the 'Air Act') which is valid up to 30/6/2008. Thereafter, the consent has npot/"been Validated and the industry had filed an _ 2/5/2008, the petitioner -- Board has refn.=:.e4d:*«». both under the Water Act and A._.ctLb}uf'aits...or<ierjd_a'ted 26/2 /2009. The Regional sfiicer inspected:'the..i_ridnstry.it = on 16/5/2008 and 20/6_/4_2'0.08..__and certain observations regarding.' J u"in'ad'eq_uaCy in the resp0ndent--facto:_y an'd"'accord_i'n_g1ij', cause notice to the on 19/7/2008, whic1j.'dV\ifas' the representatives of theVV"re's'ponderitjV' appeared before the State Level flonsent 'Ccrninittee and in the meeting it was 0 dec'ide3d' that theH"8enior Environmental Officer of the the piant and decision will be taken on"4«con._sent3'sought by the industry upon his report and byg_an"~o:rder dated 26/2/2009, the petitioner - Board 8' "refused consent under both Water Act and Air Act. The order was chalienged by the respondent in Appeal No.5 and though the order refusing consent was set U1 aside by the Appellate Authority, the fact remains that respondent - Industry has no counsel and the operation of industry is in violation of mandatory p:'fo'Vl--s1en's:.-'of _ Section 21 of the Air Act and Section \7l[at;er"= Act and therefore, it is illegal. yt"o,€':;t officials from the Central":_P_ollution ('ford short 'CPCB'), Zonal Office_.._:lTI3'3I1é'5f=I10r§§,«.hiiclyyvviinspected the respondent on 8"'/"1al--/ .ri1a.de the following observationsvzf' V' V V . z t """ ope-rating without valid 'ill/ater (Prevention and Control lofVPoA'llu:tion}V'l. Act, 1974 and the Air an.dfiConirol of Pollution) Act, .....

2) As per the consent dated 2007 given by the Karnataka Board, n 'Lenten expired on 30/6/2008 the unit is not supposed to operate the rotary kiln and the raw mill without the prior consent from the Board. But, subsequently an addendum ws issued on 12/3/2008 in which permission was granted to operate both kiln and raw mill \/'* with suitable air pollution control measures. At the time of inspection, both the raw mill and the rotary kiln were found in operation.

3) Rotary Kiln was ll emitting thick dense smoke at _ inspection. The particulate from cement mill and clinker'»_co'o_ler we_re'A'quite*:.4 it high i.e., 2099 trig/N'rri3'~.t_and.V'3OO6VA respectively and exceeded _presc'ribed_ll'n1it of 100

4) was the unit is operating 5u2itho:ifi..i'15rop;ér lair pollution control condition laid down in theVV_adde:idu«.h:-- mgr dated 1 2/3/2008.

5) '"Fug.iiive emission control system it been provided, as per CREP rccofmfiewiidations.

V 6) Source emission monitoring facilities not provided as per Emission Regulation Part -- III.

7) Overall house keeping of the unit is not satisfactory."

\,)~ 6

3. In exercise of the powers conferred under Section l8(1)(b] of the Air Act, 1981, the Chairman of CPCB issued directions to the respondent -- Industry and the directions read as fo1lows:-- V dd " 1) To stop operation of the indii's;trg. A the required air pollution control:sys-tem'"*to''_ '4 meet the emission standa»rds».,atjj.ce1Tient. 'm:i1__' f and clinker cooler section are'-provided: "and'=-4 consent issued by the State Board.' it 2} To subnfiit aciioiijalan for adhering to A " 3) on line emission n1oni_torinfj the stacks attached to :' -«,»5;w 'and cement mill with logging arrangerrientllat control room. * - provide suitable dust suppression it to control the fugitive emission from x the raw material storage and coal yards.

5) To improve the house keeping in such a manner so that the dust arising due to \/Q movernent of vehicles and conveyer belt operations are minimized.

6) To establish an environme_nt._'__i' management system within the indusfiy V" l monitoring all the environmental.coriditjtons',_ it

7) To furnish a banlcgiiarantee an appropriate amount State Board." ' '

4. The 'issued specific-

direction to pe'tiiioner to stop the operatiionlvofxtiie ilndustry till the required air pollutionl is provided to meet the emission stanldards "at 'cement mill and clinker cooler

- v it.,5ec'tion»--."and._to time bound action plant from the Industry for adhering to CREP rec"o__mrnend'ations and etc. Pursuant to the said- Vhciiijeciionl, petitioner -- Board by its order dated >1_l1';'3'l/2009 issued directions to the respondent -

-~-Industry as directed by the CPCB under the Act. Since the direction issued by CPCB are binding on the State U Pollution Control Board and the petitioner -- Board in order to implement the decision taken by the CPCB. issued directions to the respondent -- Industry. an order passed by the petitioner -- No.5/ 2009 was challenged before» :A¢§pe1late--«., Authority, contending that direction 'beeri«-igitieri as required under Rule 204A of the Control of Pollution) Rules, The appeal was contested by filing Vtiael' 'objections by the petitioner -- Board. Ti'ie'*A:ppellate has passed the appeal and the matter was re1riitteVd'bacl};._to--.'petitioner -- Board for passing fresh. orders accordance with law and being aggrieved by their said orderlvdated 16/5/2009 passed by the in Appeal No.5 / 2009, petitioner has p1"eferredvi'.3' this writ petition contending that the .. petitioner -- Board is bound by the directions issued by it '~_Vthe':CPCB under Section 18(1) (b) of the Air Act and the

-"said Board cannot take any other decision and has to implement the direction issued by the CPCB and the Q TO Authority ought to have dismissed the Appeal No.5/2009.

7. Learned counsel appearing for submitted that the order passed' pbyfiiii Authority is justified in View 20--A of the Karnataka Air~_[ geventio__r1' and Coiiitrol of Pollution] Rules, 1983 and the has beengremitted to the petitioner -- isbax-d 'cannot have any grievance V' careful consideration to the contentions u1'ge'dfj hy'~..t:heV"'1earned counsel for parties and A.scrutini2:ed'the {material on record. * 9,V"'Th.e""m_ateria1 on record would clearly show that _ even to the writ petitioner -- Board, the direction has been issued by the CPCB under Section V' C_" E'): (b) of the Act. Section 20-A of the Air Act provides for procedure to be followed by implementing the direction issued and the same requires that a person, Officer or an authority to whom any direction is sought \,9 11 to be issued, shall be reserved with a copy of the proposed direction, and shall be given an oppo1ftuni_ty,,of not less than 15 days from the date notice of file with an officer designated the it ' objections, if any, to the issue of Thereafter, after consideringlpitiae olojections_, necessary direction has to Suing-'uleV46 of Rule 20-A provides that is of the opinion thatginiew a grave injury to the eigpedient to provide an against the proposed directi'on!,"itl to be recorded in Writing, issue. providing such an opportunity.

it the material on record would the petitioner - Board has simply issiied"direlctions to the respondent as per the directions A..iss4ued""by CPCB. There is no order dispensing with °..providir1g of an opportunity under Rule 20--A of the it ""Ruies and in the absence of any such order, the procedure contemplated under Rule 20--A of the Rules \P