Bangalore Medical Trust v. B. S. Muddappa



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2. The petitioner in Special Civil Application No. 12136/94 is a partnership firm carrying on business in textile processing and having its unit in the G.I.D.C. Estate zone at Handa, Ahmedabad. The said petitioner had applied for consent of the Gujarat Pollution Control Board (hereinafter referred to as the State Board) under S. 25(2) of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as “the Water Act”). A consent letter was issued in its favour on 26th Nov. 1981 by the State Board as per Annexure “B” to the petition. According to this petitioner, it had constructed “water treatment plant” which was functional. It is contended that, however, the drainage provided by the G.I.D.C was not of sufficient capacity and due to overflow, the water discharged by other factories entered the premises of the factory of this petitioner. This petitioner had filed a suit being Civil Suit No. 5391/ 93 in the City Civil Court at Ahmedabad. On receiving a notice from the G.I.D.C. that action would be taken for disconnecting the water supply. The said suit is pending. According to the petitioner, samples were taken by the State Board for analysis of the effluent and a report dt. 13th Oct. 1993 of the State Board showed PH factor at 6.06 which was within the tolerance limits. It is contended that no notice was issued to the petitioner before making the impugned order dt. 19th Oct. 1994 . It is also contended that the action was taken by on the basis of letter dt. 10th Oct., 1994 of the State Board, a copy of which was not supplied to the petitioner.

3. In Special Civil Application No. 12357/ 94, the petitioner Company is engaged in the manufacture of dye intermediates and has its factory in the G.I.D.C. Estate, Vatva, Ahmedabad. According to this petitioner, it had installed a primary effluent plant which was working satisfactorily. However, the State of Gujarat issued order dt. 19th Oct, 1994 directing the petitioner company to stop its production activities to take all necessary steps to make the waste water being discharged by the company to conform to the standards specified by the State Board and not to restart production without prior permission of the State. It is contended that this order has been made without giving opportunity of being heard to the petitioner. It is also contended that the powers were exercised by the State Government under the provisions of S.5 of the said Act read with R. 4(5) of the Rules framed thereunder, though these powers are vested in the Central Government and it was not shown whether they were delegated to the State Government.


4. In Special Civil Application No. 12165/ 94, the petitioner private limited company carries on business of processing manmade fibre at the G.I.D.C. Estate, Vatva, Ahmedabad. According to this petitioner, officers of the State Government inspected the factory of the petitioner on 13th Sept. 1994 and the sample of water was collected for analysis. A report was made on 27th Sept. 1994 showing that the trade effluent discharged by the petitioner’s factory did not conform to the standard prescribed by the respondent. It is contended that it had installed machinery and plant for the purpose of purifying the trade effluent. After the plant was constructed, it collapsed when it was started. This happened on account of very poor quality of work done by the contractor. It is further contended that during the monsoon season of 1994 there were unprecedented heavy rains in the city of Ahmedabad and, therefore, until the sub-soil water receded. it was not possible to reconstruct the effluent treatment plant. The petitioner thereafter received the impugned order dt. 19th Oct. 1994 directing to the stop the manufacturing activities and to take necessary precaution for discharge of waste water. According to the petitioner, it is ready and willing to comply with all the norms, but requires four months time to make the effluent plant functional again.

5. In all these cases, directions have been issued under S.5 of the Act in view of the fact that the discharge of trade effluents and polluted waste water entered the Khari-cut Canal and polluted the underground strata resulting in damage to the crops and to the fertile lands in Kheda District. It is recorded in the impugned orders that the State Government had received many complaints regarding damage to the crop and the land due to such discharge of effluent. In case of all these petitioners, it was stated in the orders issued on them that they were not operating any effluent treatment plant and were discharging their effluents without treatment.


6. It has been contended by the learned counsel appearing for the petitioners in these three matters that the impugned action of giving directions under S.5 of the Act has been taken without giving any opportunity of being heard to these petitioners. It was contended that the State Government could not have dispensed with the hearing before issuing the impugned order. It was also contended that the PH factor was within the tolerance limit.

7. On behalf of the State Government and other respondents, it was contended that these units were not having an operative effluent treatment plant and that they had not abided by the terms of the consent letters given by the State Board under S.25 (2) of the Water Act. The petitioner’s had not fulfilled the conditions of the consent letters. In the affidavits-in-reply filed on behalf of the respondents, it is stated that these petitioners were discharging polluted waste water without treatment and this resulted in an extensive damage to the crops and fertile lands in Hatar Taluka of Kheda District. Taking into account the extensive damage which was resulting due to the discharge of untreated effluents by these petitioners and other similar industrial units, closure orders were issued under S.5 of the said Act against as many as thirteen units which admittedly were discharging untreated effluents in the Khari-cut Canal. It has been stated that having taken into consideration the various aspects of the matter and after satisfying itself about the urgency, the impugned action was taken by the authority by dispensing with the issuance of notice of hearing as provided under R.4 (5) of the Rules framed under the said Act. After considering several representations received by the Department as well as by the Hon’ble Chief Minister, from agriculturists, farmers and other citizens, the impugned action was taken against these industrial units.


8. In case of the petitioner in Special Civil Application No. 12136/94, it has been stated that though consent was granted by the State Board with condition to provide effluent treatment plant within six months, it was found that the industry was discharging effluent not conforming to the standards and, therefore, three complaints were filed under the provisions of the Water Act on 4-1-1988, 19-1-1988 and 10-11-1989. It is also stated that inspection of the said industry was also carried on, on 27-5-1990, 23-5- 1991, 14-5-1992 and 19-7-1993 and it was found that the industry was not operating effluent treatment plant and was discharging effluents not conforming to the standards. Based on the inspection reports on 3-9-1993 the Board requested G.I.D.C. to disconnect the water supply of this industry. Again on 22-1-1993 and 18-1-1994 this industry was required to upgrade effluent treatment plant and to submit a time bound programme in respect thereof. On 29-7-1994 the State Board carried out inspection of this industry and found that the effluent was being by passed and the effluent treatment plant was not being operated.

9. In Special Civil Application No. 12357/ 94, it has been brought on record that the petitioner unit was operating without having taking consent of the State Board and it was engaged in manufacture of reactive turquoise blue. In July 1979 it was issued notice under the Water Act for operating an out-let for the discharge of the effluent without obtaining consent of the Board. In Aug., 1979 it applied for the consent and in Oct., 1980 result in inspection of samples showed highly acidic effluent being discharged. In 1981 the said petitioner was directed to provide effluent treatment plant. In Aug., 1981 the State Board granted consent with conditions to provide effluent treatment plant within six months. In 1982-83, the inspection of this industry showed that it had stopped production of reactive turquoise blue and had started manufacture of lubricating oil without obtaining consent of the State Board. In 1983, this industry applied for consent for the manufacture of sulpho phenyl carboxyl pyrazolone, but the State Board rejected the application for consent on the ground that the conditions of the earlier consent order of 1981 were not complied with. In 1986-87, the State board found that the industry was discharging acidic effluent. In July 1987, case was filed against this petitioner for violation of the provisions of Water Act. In Sept., 1994 inspection of this industry revealed that effluent treatment plant had collapsed and was not in use.


10. In Special Civil Application No. 12165/94 it is brought on record by an affidavit-in-reply filed on behalf of the State that this petitioner who had obtained consent of the State Board in Oct., 1981 with a condition to provide effluent treatment plant within six months had not put up the plant and was, therefore, required to be issued a show cause notice by the Board in 1983. Thereafter in 1984, the industry had provided some effluent treatment plant but it was required by the Board to operate the same efficiently to treat the effluent to (sic) specified by the State Board. In 1985, this industry was directly to upgrade the effluent treatment plant as it was found that it did not conform to the standards prescribed. In 1991, the Board on inspection found that this industry was discharging acidic effluent. In November 1990 a complaint was filed against this industry by the State Board under the provisions of the Water Act for violation of the conditions of the consent order. In June 1993, on inspection the State Board found that the industry was discharging effluent. In Feb./March 1994, the State Board again found that the said industry was discharging acidic effluent and therefore the State Board refused to give consent under S. 25 (2) of the Water Act.

11. It has been also brought on record that based on the representations received by the Hon’ble Chief Minister regarding problem of water pollution due to discharge of effluent of G.I.D.C. Estate at Naroda, Odhav and Vatva into river Khari, a meeting was arranged with the Hon’ble Chief Minister and it was decided to take strict action against units which were causing pollution. The State Board was asked to submit the list of defaulting industries and the State Board on 10th Oct., 1994 identified thirteen units which were causing such pollution and on the basis of material placed before the authority, action was taken under S. 5 of the said Act by issuing orders on these units on 19th Oct., 1994.


12. The facts which have been brought on record by the State Government are also reflected from the original files which were shown in the Court. A copy of the Letter of the State Board written on 10th Oct., 1994 was supplied to the learned counsel appearing for these petitioners. Since the State Government had taken up a plea that notice was dispensed with in view of the urgency, it appeared to this Court that it was necessary to ascertain whether there was relevant material on record before the concerned authority which could warrant issuance of the impugned orders without giving notice to the concerned party. The State of Gujarat was therefore directed on 8-12-1994 to file separate affidavits in each of these writ petitions showing material on the basis of which it had passed the impugned orders. Accordingly the aforesaid material was placed on the record of this case and there has not been any dispute as to its authenticity.

13. Section 25 of the Water Act prescribes restrictions on new out-lets and new discharges. It inter alia provides that no person shall, without the previous consent of the State Board, establish any industry or process which is likely to discharge sewerage or trade effluent into the stream or well or sewer or on land. The consent of the State Board can be obtained by an application made under S. 25(2) of the Water Act. Under sub-sec. (4) of Section 25 the State Board may grant its consent subject to conditions as it may impose. The State Board may impose conditions including conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the premises from which the discharge is to be made. In the consent orders issued by the State Board the tolerance limits of the effluent were indicated and they constituted conditions for granting consent. The consent letters which were issued by the State Board have been placed on record along with the affidavit-in-reply filed by the State Government. These units were required to observe the tolerance limits and for that purpose they were required to put up the treatment plants which could achieve the quality of the effluent according to the tolerance limits. One of the conditions of the consent letters issued by the State Board to these units was that the consent granted shall lapse after the expiry of time limit prescribed in paragraph 3(i)(c) thereof in which it was provided that all units of the treatment plant required to achieve the quality of the effluent according to the tolerance limits prescribed in the consent letter, shall be completed within six months from the date of consent order. In Clause 7 of the consent order, it was provided that if the applicant fails to comply with the conditions and other directives issued by the State Board as laid down in the consent order within the prescribed time limit, the applicant would be liable for prosecution under Ss.43 and 44 of the Water Act. Thus, a mere consent order issued by the State Board under S. 25(2) did not entitle the application to discharge trade effluents and it was incumbent upon the applicants to comply with the conditions mentioned in the consent order, as also to put up the effluent treatment plants within the time prescribed in the consent order. Failure of complying with the requirement of putting up effluent treatment plant resulted in lapse of the consent. Therefore, mere fact that consent orders were obtained by the petitioners cannot insulate them against the requirement of putting up the effluent treatment plants and complying with the standards of tolerance limits prescribed.


14. During the course of hearing of these petitions, it was demonstrated that certain characteristics of the trade effluent exceeded the tolerance limits in case of the discharge of effluents affected by these petitioners in the Khari-Cut Canal.

15. Rule 3 of the Environmental (Protection) Rules, 1986 provides for standards for emission or discharge of environmental pollutants and these are specified in the schedule. On behalf of the petitioners of Special Civil Application Nos. 12136/94 and 12165/94 who were running textile industry, their counsel referred to item 6 of Schedule I under R. 3 of the said Rules, which reads as under:

....................................................................................

.....................................................................................


Sr. No.

Industry

Parameter

Standards

6.

Cotton textile industries

(composite and processing)






Concentration not to exceed Milligram per litre ( except for PH and bio-assay)







Common

PH


Suspended solids

Bio - chemical oxygen demand,

5-day 20

degree C.



5.5 to 9


100

150







Oil and grease

Bio- assay test


Special:


Total chromium (as Cr)

Sulphide (as S)

Phenelic compounds

(as C6 H5 OH)



10

90%


survival of fish

after 96 hrs.


2
2
5



16. For the petitioner of Special Civil Application No. 12357/94 which deals business of dye-intermediates, its Counsel relied upon item No. 8 of the said schedule which reads as under:-

..............................



Sr. No.

Industry

Parameter

Standards

8.




Dye and Dye inter

mediate industries



Concentration not to exceed milligrams per

Litres (except for Ph. temperature and bio-assay)









Suspended Solids

PH

Temperature



100

6 to 8.5


shall not exceed 5

degree C. above the ambient temperature of

receiving body.







Mercury (as Hg)

Hexavalent (as Cr)

Chromium

Total Chromium (as Cr.)

Copper (as Cu)

Zinc (as Zn)

Nickel (as Ni)

Cadmium (as Cd)

Chloride (as Cl)

Sulphate (as SO4)

Phenolic compounds

(as C6 H5 OH )

Oil and Grease

Bio-assay Test

(with 1:8 dilution of effluents)



0.01
0.1

2.0


3.0

5.0


3.0

2.0


1000

1000
1.0



1.0

90% survival of test



animals after 96 hrs.

The standards of chlorides and sulphates are applicable for discharge into inland and surface watercourses. However, when discharge on land for irrigation, the limit for chloride shall not be more than 600 milligrams per litre and the sodium absorption ratio shall not exceed 26.

17. In Special Civil Application No. 12136/ 94, the analysis report dt. 31st July 1993 showed excess of total suspended solids, which were 295 as against the prescribed 100. It also showed excess over tolerance limits in case of Bio- chemical Oxygen demand which was 206 as against the prescribed 150 in the scheduled item and 30 in the consent letter of the Board, the Chemical Oxygen demand was 520 which was in excess of the tolerance limit of 250 prescribed in the consent order of the Board. Similarly, the analysis report dt. 13th October, 1993 showed suspended solids at 526 as against 100, dissolved solids at 3823 against the tolerance limit of 2500 and the bio- chemical oxygen demand 1622 as against 30 prescribed in the consent order. The analysis report dt 29th July, 1994 also showed excess of suspended solids which was 204 and excess of biochemical oxygen which was 196. The chemical oxygen demand was 5.15 as against the prescribed tolerance limit of 250 in the consent letter of the State Board.


18. In Special Civil Application No. 12165/ 94 the analysis report dt. 27th Sept., 1994 showed that the sample which was collected on 13th Sept., 1994 showed excess of biochemical oxygen demand, the result showing 250 as against the prescribed 30 in the consent order. The chemical oxygen demand was 607 as against the prescribed tolerance limit of 250. The oil and grease was 30 as against the tolerance limit of 10.

19. In Civil Application No. 12357/94, the inspection report under Section 23 of the Water Act made on 26-9-1994 showed that waste water was discharged in the G.I.D.C. drain without any treatment and this unit had not taken consent from the State Board. It also showed that there was no provision for compositing the final effluent immediately before discharging it.

20. In the letter dt. October 10, 1994 of the State Board to the Government, there is reference to the discussion which took place in the meeting convened by the Hon’ble the Chief Minister on Oct., 3, 1994 and the subsequent discussion which took place in the chamber of the Secretary to the Government, Forest and Environment Department on 4th Oct, 1994 and in the context a list of industries which were defaulters was submitted. At item 5 was Messrs. Caffil Pvt. Ltd. (petitioner of Spl. C.A. No. 12357/ 94). The Board has remarked that during recent inspection it was observed that the effluent treatment plant of this petitioner was not being operated and the untreated effluent was being by passed. At item No. 7 of this letter, the name of Messrs. Narula Dyeing and Printing Works (petitioner of Spl. C. A. No. 12136/ 94) is mentioned and the remark of the State Board is that during the inspection it was found that effluent treatment plant was not being operated and the untreated effluent was being by passed. As regards Messrs Jyoti Processors (petitioner of Spl. C. A. No. 12165/ 94) referred to at item No.10 of the letter, the Board has remarked that the primary effluent treatment plant provided by the industry was found in a broken condition and it was not functioning and the waste water was discharged without any treatment.


21. The object of referring to the above materiel is to indicate that their was material on record before the competent authority along with the letter of the Board dated 10-10-1994 to show that these petitioners were discharging effluents without 4 proper treatment plant. The State Board is a specialized agency created under the Water Act and when on the basis of the analysis report and other reports it opines that there is no requisite effluent treatment plant put up or that the tolerance limits are exceeded, ordinarily this Court will not sit in appeal over it’s views. The material disclosed shows that the State Government had a valid reason to take action to prevent these units from discharging the trade effluents in the Khari-Cut Canal. It is not disputed that Khari-cut Canal provides for irrigation to vast areas in Kheda District.

22. The Environmental (Protection) Act, 1986 was enacted with a view to provide for the protection and improvement of environment and for matters connected therewith. India had participated in the decisions taken at United Nations Conference on the Human Environment held at Stockholm in June, 1972 to take appropriate steps for protection and improvement of human environment. For implementing these decisions in so far as they related to protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and properties, the said Act was enacted. An urgent need was felt for the enactment of a general legislation on Environmental protection, which should enable inter alia speedy response in the event of accidents threatening environment. The fundamental directive of State Policy enshrined under Art.48A of the Constitution of India enjoined a duty on the State to protect and improve the environment and to safeguard the forests and the wildlife of the country. The fundamental duties of every citizen enumerated in Art. 51A of the Constitution includes duty to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. Keeping these laudable objects in view. Section 5 of the Act provides as under: -

“5. Power to give directions:-

Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any 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 or any industry, operation or process; or

(b) stoppage or regulation of the supply of electricity or water or any other service.”



The power under section 5 is to be exercised by the Central Government and the directions issued thereunder are required to be complied with by the person, officer or authority on whom they are issued. Such directions are required to be issued subject to the provisions of the said Act and in exercise of the powers and performance of the functions of the Central Government under the Act. Therefore, the guidelines for exercise of power under the said provision of issuing directions are to be drawn from the nature of powers conferred on the Central Government and the nature of it’s functions as prescribed under the Act. Under section 6 of the said Act, Central Government is empowered to make Rules in respect of all or any of the matters referred to in S.3. Section 3 provides for power of the Central Government to take measures to protect and improve environment. The Central Government has power to take measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution and this power includes taking up measures for laying down standards for emission or discharge of environmental pollutants from various sources whatsoever. In the process, it may lay down different standards for emission or discharge from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources. Section 23 of the said Act confers power on the Central Government to delegate its functions and accordingly, the Central Government may by notification in the official gazette, delegate subject to conditions and limitations as may be specified in the notification its power and functions under the Act as it may deem necessary or expedient to an officer, State Government or other authority except the power to constitute an authority and the power to make Rules. The powers vested in the Central Government under S.5 of the said Act have been delegated to the State of Gujarat by Notification dt. 10th Feb., 1988 issued by the Government of India, Ministry of Environment and Forests, Department of Environment, Forests and Wild Life issued under the signature of the then Secretary to Government of India Mr. T.N. Seshan. The Notification was published in Gazette of India, Extraordinary Part II, Section 3, sub- section (ii). In view of this notification issued in exercise of powers conferred under S. 23 of the said Act delegating the powers vested in the Central Government under Section 5 of the said Act to the State Government the contention of the petitioners that the impugned orders are issued by the State Government under S.5 without the authority of law has no substance.



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