Shorya Enterprises Through Its Proprietor Piyush Parulkar S/O Laxmikant Parulkar vs Madhya Pradesh Pollution Control Board & Others

By this writ petition under Article 226 of the Constitution of India, the petitioner is challenging order dated 23.02.2018 (Annexure P/5) passed by the

Regional Officer, MP Pollution Control Board, Indore (respondent No.2) on the ground that the same has been passed on the basis of complaint

lodged upon the Chief Minister Helpline on 17.02.2018; on the back of the petitioner, a Team was constituted and without giving any show cause

notice to the petitioner, the impugned order has been passed in violation to the principles of natural justice; and prays for its quashment.

The alleged impugned order dated 23.02.2018 (Annexure P/5) has been passed by Madhya Pradesh Pollution Control Board (respondents No.1 to

3) under Section 33-A of Water (Prevention and Control of Pollution) Act, 1974 and Section 31-A of Air (Prevention and Control of Pollution) Act,

1981.

A preliminary objection has been raised by respondents No.1 to 3 / Madhya Pradesh Pollution Control Board on the ground that the aforesaid order

is appeal-able to the National Green Tribunal under Section 33-B of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31-B of

the Air (Prevention and Control of Pollution) Act, 1981.

On merit, Shri Aniket Abhay Naik, learned counsel for respondents No.1 to 3 has submitted that a complaint has been filed on grievance portal in

the name of CM Help Line against the petitioner alleging cause of pollution due to industrial activity of the petitioner. Upon such complaint, an

inspection has been carried out on 22.02.2018 by an employee (Scientist) of the Madhya Pradesh Pollution Control Board, who has submitted a report

to the effect that the industry of the petitioner is being run in the residential area, and therefore, issuance of notices under the provisions of Water

(Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 was proposed.

He further submitted that Hon’ble Supreme Court in Writ Petition (C) No.375/2012 Paryavaran Suraksha Samiti and another v. Union of India

& others vide order dated 22.02.2017 has directed continuation of industrial activity only when there is in place a functional “primary effluent

treatment plantsâ€. Pursuant, respondents No.1 to 3 have published a public notice in daily newspaper Dainik Bhaskar on 16.03.2018 whereby the

above order of Hon’ble Supreme Court has been informed to the industries at large and action consequent on failure thereupon.

He also submitted that the directions issued by the Madhya Pradesh Pollution Control Board are just, proper and legal, as the petitioner has been

running the industry, without obtaining mandatory consent under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section

21 of Air (Prevention and Control of Pollution) Act, 1981.

Relevant part of order dated 22.02.2017 passed by the Supreme Court in Writ Petition (C) No.375/2012Paryavaran Suraksha Samiti andanother v.

Union of India & others reads, as under: -

“4. The question that arises for our consideration is, whether the same is maintained in good order, after the industry itself has become functional.

The industry requiring “consent to operateâ€, can be permitted to run, only if its primary effluent treatment plant, is functional. We therefore

consider it just and appropriate, to direct the concerned State Pollution Control Boards, to issue notices to all industrial units, which require “consent

to operateâ€, by way of a common advertisement, requiring them to make their primary effluent treatment plants fully operational, within three months

from today. On the expiry of the notice period of three months, the concerned State Pollution Control Board(s) are mandated to carry out inspections,

to verify, whether or not, each industrial unit requiring “consent to operateâ€, has a functional primary effluent treatment plant. Such of the

industrial units, which have not been able to make their primary effluent treatment plant fully operational, within the notice period, shall be restrained

from any further industrial activity. This direction may be implemented by requiring the concerned electricity supply and distribution agency, to

disconnect the electricity connection of the defaulting industry. We therefore hereby further direct, that in case the concerned State Pollution Control

Boards make a recommendation to the concerned electrical supply and distribution agency/company, to disconnect electricity supply to an industry, for

the reason that its primary effluent treatment plant is not functional, it shall honour such recommendation, and shall disconnect the electricity supply to

such defaulting industrial concern, forthwith.

Such an industrial concern, which has been disabled from carrying on its industrial activities, as has been indicated in the foregoing paragraph, is

granted liberty to make its primary effluent treatment plant functional to the required capacity, and thereupon, seek a fresh “consent to operateâ€

from the concerned Pollution Control Board. Only after the receipt of such fresh “consent to operateâ€, the industrial activities of the disabled

industry, can be permitted to be resumed. In carrying out the above exercise, we consider it just and appropriate to require, the Pollution Control

Boards to carry out inspections, by prioritizing inspections of severely and critically polluted industries, so that visible results emerge at the earliest.

Liberty is hereby granted to private individual(s) and organizations, to address complaints to the concerned Pollution Control Board, if any industry is

in default. On the receipt of any such complaint, the concerned Pollution Control Board, shall be obliged to verify the same, and take such action

against the defaulting industry, as may be permissible in law. Such action, would be in addition to the discontinuation of industrial activity forthwith, in

the manner directed herein above (but only after verification).

Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are

informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50 per cent, that of the concerned

State Government (including the concerned Union Territory) is 25 per cent. The balance 25 per cent, is to be arranged by way of loans from banks.

The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed, that the setting up of a common effluent

treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced). The reason for the above

prolonged period, for setting up “common effluent treatment plantsâ€, according to learned counsel, is not only financial, but also, the requirement

of land acquisition, for the same.

In view of the fact, that the financial position has been taken care of, as has been expressed above, we are of the view, that the setting up of

“common effluent treatment plantsâ€, should be taken up as an urgent mission. With reference to common effluent treatment plants, which are

already under implementation, we hope and expect, that they would be completed within the time lines already postulated. With reference to common

effluent treatment plants, which are yet to be set up, we consider it just and appropriate to direct, the concerned State Governments (including, the

concerned Union Territories) to complete the same within a period of three years, from today. We are also of the view, that while acquiring land for

the 'common effluent treatment plants', the concerned State Governments (including, the concerned Union Territories) will acquire such additional

land, as may be required for setting up “zero liquid discharge plantsâ€​, if and when required in the future.

During the course of hearing, we were informed by learned counsel, that the running of 'common effluent treatment plants', which are in place, is

also a matter of serious concern. In this behalf, it was submitted, that some of the common effluent treatment plants are dis- functional, because of

lack of finances, whilst some others are dis- functional, because of the requirement of repairs, which have not been carried out, again because of lack

of financial resources.

Given the responsibility vested in Municipalities under Article 243 W of the Constitution, as also, in item 6 of the 12th Schedule, wherein the

aforesaid obligation, pointedly extends to “public health, sanitation conservancy and solid waste managementâ€​, we are of the view, that the onus to

operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies). Given the aforesaid responsibility, the concerned

municipalities (and/or local bodies), cannot be permitted to shy away, from discharging this onerous duty. In case there are further financial

constraints, the remedy lies in Articles 243X and 243Y of the Constitution. It will be open to the concerned municipalities(and/or local bodies), to

evolve norms to recover funds, for the purpose of generating finances to install and run, all the “common effluent treatment plantsâ€, within the

purview of the provisions referred to herein above. Needless to mention, that such norms as may be evolved for generating financial resources, may

include all or any, of the commercial, industrial and domestic beneficiaries, of the facility. The process of evolving the above norms, shall be supervised

by the concerned State Government (Union Territory), through the Secretaries, Urban Development and Local Bodies respectively, (depending on the

location of the respective common effluent treatment plant). The norms for generating funds, for setting up and/or operating the 'common effluent

treatment plant' shall be finalized, on or before 31.03.2017, so as to be implemented with effect from the next financial year. In case, such norms are

not in place, before the commencement of the next financial year, the concerned State Governments (or the Union Territories), shall cater to the

financial requirements, of running the “common effluent treatment plantsâ€, which are presently dis- functional, from their own financial resources.

Just in the manner suggested herein above, for the purpose of setting up of “common effluent treatment plantsâ€, the concerned State

Governments (including, the concerned Union Territories) will prioritize such cities, towns and villages, which discharge industrial pollutants and sewer,

directly into rivers and water bodies.

We are of the view, that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We therefore

hereby direct, that 'sewage treatment plants' shall also be set up and made functional, within the time lines and the format, expressed herein above.

We are of the view, that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We therefore hereby provide,

that the directions pertaining to continuation of industrial activity only when there is in place a functional “primary effluent treatment plantsâ€, and

the setting up of functional “common effluent treatment plants†within the time lines, expressed above, shall be of the Member Secretaries of the

concerned Pollution Control Boards. The Secretary of the Department of Environment, of the concerned State Government (and the concerned Union

Territory), shall be answerable in case of default. The concerned Secretaries to the Government shall be responsible of monitoring the progress, and

issuing necessary directions to the concerned Pollution Control Board, as may be required, for the implementation of the above directions. They shall

be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished

to the Central Ground Water Authority, which shall evaluate the data, and shall furnish the same to the Bench of the jurisdictional National Green

Tribunal.

To supervise complaints of nonimplementation of the instant directions, the concerned Benches of the National Green Tribunal, will maintain

running and numbered case files, by dividing the jurisdictional area into units. The above mentioned case files, will be listed periodically. The concerned

Pollution Control Board is also hereby directed, to initiate such civil or criminal action, as may be permissible in law, against all or any of the defaulters.

Liberty is granted to private individuals, and organizations, to approach the concerned Bench of the jurisdictional National Green Tribunal, for

appropriate orders, by pointing out deficiencies, in implementation of the above directions.

It however needs to be clarified, that the instant directions and time lines, shall not in any way dilute any time lines and directions issued by Courts

or Benches of the National Green Tribunal, hitherto before, wherein the postulated time lines would expire before the ones expressed through the

directions recorded above. It is clarified, that the time lines, expressed herein above will be relevant, only in situations where there are no prevalent

time line(s), and also, where a longer period, has been provided for.

It would be in the interest of implementation of the objective sought to be achieved, to also require each concerned State(and each, concerned

Union Territory) to make provision for “online, real time, continuous monitoring system†to display emission levels, in the public domain, on the

portal of the concerned State Pollution Control Board. We are informed, that at least three State Governments have already adopted the aforesaid

measures. Such measures shall be put in place by all the concerned State Governments( including, the concerned Union Territories), within six months

from today. 18. The instant writ petition stands disposed of, in the aforesaid terms.â€​

His submission is that action has been taken against the petitioner’s unit in compliance to order passed by the Hon’ble Supreme Court on

22.02.2017. Photographs annexed by the writ petitioner with writ petition as Annexure P/4 establish the emission of pollutants, smoke etc. through the

installed chimney and exhaust; and prayed for dismissal of the writ petition. 9. Shri Vijay Sharma, learned counsel for respondent No.6 / Indore

Municipal Corporation also supported the action of the Madhya Pradesh Pollution Control Board and submitted that unit of the petitioner is situated in

residential area; and in residential area, no industrial unit is permissible. In the present case, the petitioner, without taking No Objection Certificate

from Indore Municipal Corporation, Indore has started the industrial unit, and therefore, Madhya Pradesh Pollution Control Board has not committed

any legal error in passing the impugned order.

Learned Senior Counsel for the petitioner has drawn our attention to various provisions and submitted that under Section 25 (5) of Water

(Prevention and Control of Pollution) Act, 1974, notice is must. The impugned order dated 23.02.2018 has been passed without proper enquiry and

investigation. He has also drawn our attention to decision of the Apex Court in the case of Harbanslal Sahnai v. Indian OldCorporation Limited

reported in AIR 2003 SC2120and in the case of M/s. Allied Motors Limited v. M/s. Bharat Petroleum Corporation Limited reported in AIR 2012 SC

709; and submitted that rule of exclusion of writ jurisdiction by availability of alternative remedy is rule of discretion and not one of compulsion.

Admittedly, the impugned order was passed without giving show cause notice and giving an opportunity of hearing; and thus, there is violation of

principles of natural justice. This Court rightly entertained the writ petition while staying the impugned order; and prayed that the writ petition be

allowed.

On due consideration of the arguments of the learned counsel for the parties, so also the fact that on the basis of the order passed by the Apex

Court in the case of Paryavaran Suraksha Samiti and another v. Union of India & others (supra), which has been quoted by us in the preceding

paragraph, the industry of the petitioner was causing pollution and without NOC running the industry in the residential area contrary to Master Plan,

the action of the Madhya Pradesh Pollution Control Board is just and proper. No case to interfere with impugned order dated 23.02.2018 (Annexure

P/5), as prayed for, is made out.

Writ Petition No.7140/2018 has no merit and is accordingly dismissed.