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2015 DIGILAW 301 (KAR)

H. B MANACHRA v. STATE OF KARNATAKA

2015-03-18

D.H.WAGHELA, RAM MOHAN REDDY

body2015
ORDERD H. WAGHELA, J. 1. Petitioners herein are stated to be the permanent residents of Hiriyuru town of Chitradurga District and are staying with their families in the area near the work shop of respondent No.7. It is their grievance that respondent No.7 unit is situated in the residential area and manufacturing and producing certain spicy products and sweets and discharging waste food, wastewater as also causing nuisance of flies and mosquitoes resulting into adverse effects on the residents of the locality. It is alleged in the petition that respondent No.7 is using waste plastics, papers, old rubber tyres, etc., for firing ovens and causing thick emission which is affecting the public health and creating health hazard. It is alleged that they are also discharging waste oil through open drainage and canal and causing nuisance and air pollution by emission of smoke. The local residents have lodged complaints to respondents 2, 3, 5 and 6, orally and in writing, on several occasions and a complaint dated 22.06.2012 has also been lodged. However, neither the Karnataka State Pollution Control Board (‘KSPCB’ for short) nor the Chief Officer of Town Municipal Council (‘TMC’ for short), Hiriyuru, took any action till the order dated 17.12.2012 was issued which took note of the fact that the industry had approached office of ‘KSPCB’ on 22.11.2012 and requested to grant time of two years to shift the industry to a suitable location. When the parties were called for personal hearing on 12.12.2012, respondent No.7 had not cared to be present or represented before the Presiding Officer in the office of the Regional Senior Environmental Officer of ‘KSPCB’ at Chitradurga. After hearing, the Presiding Officer took the following decisions and conveyed it by letter dated 17.12.2012. (i) The industry shall be shifted to the suitable location within one year for which the industry shall make commitment on stamp paper. (ii) Till such time, industry shall not use rubber as fuel, but they have to use only bio fuel to avoid thick emission from chimney. (iii) The industry shall keep clean environment around the activity. (iv) The regional office shall inspect the industry periodically and report to this office.” 2. (ii) Till such time, industry shall not use rubber as fuel, but they have to use only bio fuel to avoid thick emission from chimney. (iii) The industry shall keep clean environment around the activity. (iv) The regional office shall inspect the industry periodically and report to this office.” 2. Even as the present petitions were filed and notice was ordered to be issued on 07.08.2013 returnable by 21.08.2013, respondent No.7 has not cared to file even the statement of objections or affidavit in reply till yesterday, and in the same manner, ‘KSPCB’ has also not cared to take any action on its own, except filing a criminal complaint only yesterday i.e., on 17.03.2015. According to the affidavits and statement of facts made by the learned counsel appearing for the respondents, unit of respondent No.7 has continued its operation at least till 24.02.2015, that too due to stoppage of power supply on that date; whereas, according to the police report, the unit has remained open and work therein was carried on till 09.03.2015. All these facts had to be viewed in the light of peremptory order dated 31.08.2013 which was issued by the Environmental Officer of ‘KSPCB’ and which in substance stated as under: (a) The industry of respondent No.7 was inspected on 26.11.2005 when it was observed that it was operating in residential area without consent of the Board and causing public nuisance due to emission of smoke and discharge of washings into open drain. Therefore, a letter was written to inform the industry to shift to suitable location and also a letter addressed to the Deputy Commissioner of Chitradurga District on 14.08.2008 was sent to request issuance of direction to the Chief Officer, TMC, Hiriyuru for shifting of the industry. Pursuant to that, the industry had filed a petition being W.P.No.15694/2009 which was dismissed on 21.07.2009, since the petitioner therein had withdrawn the petition by filing a memo. Pursuant to that, the industry had filed a petition being W.P.No.15694/2009 which was dismissed on 21.07.2009, since the petitioner therein had withdrawn the petition by filing a memo. Pursuant to legal notice to the ‘KSPCB’, inspection was carried out along with TMC officials on 06.11.2012 and it was observed that the industry was running in a residential area without consent of the Board; it was discharging waste water into surrounding areas and causing smell nuisance and providing shelter for flies and mosquitoes; that it was discharging emission through chimney where height of the chimney was below the height of the residential buildings affecting public in the neighbourhood and lot of solid waste was dumped in front of the factory which ultimately fell into open drain and choked culvert/drain pipes. (b) In view of the above non compliance, notice of proposed direction under Section 33A of The Water (Prevention and Control of Pollution) Act, 1974 (‘Water Act’ for short) and Section 31A of The Air (Prevention and Control of Pollution) Act, 1981 (‘Air Act’ for short), was issued on 20.11.2012, which the respondent No.7 did not care to even reply. Before initiating any action against the industry and to give an opportunity of being heard, hearing as aforesaid was held on 12.12.2012. The respondent No.7 also failed to comply with the decision taken by the Presiding Officer on 12.12.2012 which was communicated by letter dated 17.12.2012. It was under such circumstances that the order dated 31.08.2013 was issued in exercise of powers conferred upon the ‘KSPCB’ under Section 33A of the Water Act and Section 31A of the Air Act directing the occupier of respondent No.7 unit to close its operation and process forthwith until further orders. Direction was also issued to the Managing Director, BESCOM, K.R. Circle, Bengaluru, to issue necessary direction to the officers concerned to stop/cut off power supply to the unit, forthwith and until further orders. The Deputy Commissioner, Chitradurga, was also directed to seize the unit forthwith and until further orders. The Executive Engineer, BESCOM, Hiriyuru Division was also directed to issue necessary direction to the officers concerned to stop the power supply to that unit, forthwith. The Assistant Executive Engineer, BESCOM, Hiriyuru Sub Division was also given the same direction and Chief Officer, TMC, Hiriyuru was also directed to cancel the licence and stop water supply to the respondent No.7, forthwith and until further orders. The Assistant Executive Engineer, BESCOM, Hiriyuru Sub Division was also given the same direction and Chief Officer, TMC, Hiriyuru was also directed to cancel the licence and stop water supply to the respondent No.7, forthwith and until further orders. 3. As seen earlier, above mandatory directions issued in terms of the proceedings carried out by the ‘KSPCB’ in exercise of their statutory powers, were simply ignored and not implemented either by respondent No.7 or the other authorities; nor did ‘KSPCB’ took any action for enforcement of its own order. Being aggrieved by the aforesaid order dated 31st August 2013, respondent No.7 had preferred two separate appeals in Appeal Nos.206/2013 and 207/2013, which are pending. It is further stated that the ‘TMC’ has been renewing the licence of respondent No.7 and accepting fees thereof, even after the proceeding in the year 2012. The ‘KSPCB’ has filed the affidavit of Mr. Bheem Singh Gowgi, Environmental Officer working at Chitradurga since July 2012 to state, in substance, as under: That pursuant to the direction dated 31.08.2013 to the Managing Director, BESCOM, a letter was written to the Executive Engineer, Hiriyuru Sub Division, even as power supply was not cut off even till 21.10.2013. The Assistant Executive Engineer, Hiriyuru Sub Division, replied such letter dated 24.10.2013 stating that if the closure order is not set aside within seven days, the electricity connection of the unit will be disconnected. The Assistant Executive Engineer also wrote a letter to the Environmental Officer, Chitradurga on 02.12.2013 to state that respondent No.7 has requested not to take any action since their appeals were pending and the present writ petition was also pending. After such delays, the power supply is stated to have disconnected only on 09.03.2015, even as by admitted mistake the date mentioned in the affidavit is 09.03.2014. The Deputy Commissioner, Chitradurga and Chief Officer of TMC, Hiriyuru, are stated to have simply slept over the matter. Ultimately, the Environmental Officer is stated to have requested the head office to accord authorization for prosecution of persons concerned for violation of the order dated 31.08.2013. It is finally submitted that, on account of pressure of work and shortage of staff, appropriate action could not immediately be taken by ‘KSPCB’. 4. Ultimately, the Environmental Officer is stated to have requested the head office to accord authorization for prosecution of persons concerned for violation of the order dated 31.08.2013. It is finally submitted that, on account of pressure of work and shortage of staff, appropriate action could not immediately be taken by ‘KSPCB’. 4. The above summary of facts would clearly show how the powers and essential functions entrusted to the ‘KSPCB’ for immediate action against continued pollution of air and water are discharged without any effect on account of failure, lapses or possible collusion of the implementing agencies. It is hardly realized that failure to comply with the directions issued under Section 33A of the Water Act and 31A of the Air Act are punishable with imprisonment for a term which shall not be less than one year and six months, but which may extend to six years with fine. Against these stringent provisions to ensure compliance of the directions issued under Section 33A of the Water Act or 31A of the Air Act of the respondents herein clearly appear to have adopted lackadaisical approach, practically protecting respondent No.7 and allowing it to continue the violations as aforesaid. It was under such circumstances that this Court had made recent order dated 10.03.2015 calling upon ‘KSPCB’ to file an affidavit which details of the action taken by the ‘KSPCB’ after issuance of its order dated 31st August 2013 and disclose the steps, if any, taken against its own officers in respect of the practically admitted violations of the order dated 31st August 2013. Regretfully, all the agencies to which the directions were issued have failed to take any action admittedly for as long as 16 months, even while the present petitions were pending and ‘KSPCB’ as well as the Deputy Commissioner, Chitradurga and the Chief Officer of Hiriyuru TMC are made parties to the proceeding besides respondent No.7. 5. These facts not only place in sharp focus deteriorating condition of rule of law as much as the environment but the failure of the implementing agencies in providing any relief to the victims of pollution even after the appropriate mandatory directions being issued. 5. These facts not only place in sharp focus deteriorating condition of rule of law as much as the environment but the failure of the implementing agencies in providing any relief to the victims of pollution even after the appropriate mandatory directions being issued. There are reasons to believe that not only the ‘KSPCB’ but the engineers of BESCOM and officers of the local Government have consciously countenanced continued breach of order dated 31st August 2013 and practically contributed to erosion of rule of law while the only beneficiary of such dereliction of duty would be respondent No.7. Such facts put even integrity of officers concerned under cloud and they could as well be seen as permitting pollution rather than preventing it. 6. Since petitioners have partly succeeded to the extent of having the offending unit closed at least since 10th March 2015, the petitions do not survive and they are not pressed for any further relief of directing respondent No.7 to shift its unit. It is further necessary, in the interest of justice and for ensuring rule of law that the criminal complaint stated to have been filed by ‘KSPCB’ is property prosecuted and taken to its legal and logical conclusion within a period of one year. Accordingly, we direct that the complaint registered as P.C.No.3/2015 filed by ‘KSPCB’ in the Court of JMFC, Hiriyuru, shall, as far as practicable, be heard and disposed within a period of one year, in accordance with law and without being influenced by this order. 7. Respondent No.7 is directed to pay by way of costs, sum of Rs.10,000/- to each of the petitioners within a period of 15 days. Learned counsel Sri Ravi. H.K. appearing for respondent No.7 stated on instructions of the proprietor of respondent No.7, who is personally present in the Court, that in no circumstances, respondent No.7 shall resume its operation at the existing place in the residential area and will shift the unit in six months to carry on the industrial operations in accordance with law with all necessary licences, permits and consent, irrespective of pendency or outcome of the appeals filed by him. In view of the facts emerging from the record and the order that has to be made in the light thereof, it has to be hoped and expected that the statutory authorities like KSPCB, BESCOM and office of the Deputy Commissioner, as well as the Chief Officer of the Local Authorities will ensure immediate implementation and enforcement of orders issued by the ‘KSPCB’ so as to avoid prosecution of their officers. They may as well provide for fixing personal responsibility of the officer concerned, in case of failure, with the understanding that in case the matter has to be taken to the Court and such authorities have to appear as parties, the resultant order of costs may have to be borne by the officers concerned who simply fail or neglect their duty of forthwith implementing lawful directions of ‘KSPCB’. With these observations and order, petitions are disposed.