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2018 DIGILAW 735 (GUJ)

Digvijaysinh Parbatsinh Rana v. State of Gujarat

2018-06-12

A.Y.KOGJE, M.R.SHAH

body2018
JUDGMENT : M.R. Shah, J. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate Writ, order or direction, directing the respondent authorities, more particularly, the Gujarat Pollution Control Board (hereinafter referred to as "the GPCB" for short) to ensure that the usage of coal gacifiers by the ceramic industries in the Morbi area which cause air and water pollution is discontinued. 2. It is the case on behalf of the petitioner that the ceramic industries of Morbi District represented by respondent No.6 are causing irreversible damage to the environment - both water and air environment owing to their illegal manufacturing techniques/practices, more particularly, by using coal gacifiers. It is the case on behalf of the petitioner that there were complaints filed before this Court and subsequently also before the National Green Tribunal (West Zone), Pune ("NGT" for short) which, upon having taken cognizance, had also directed the closure of such industries which are said to have caused alarming damage to the environment, despite of which there is no stopping to the illegal acts of such industries. 2.1 It is the case on behalf of the petitioner that initially, a Public Interest Litigation being WP(PIL) No.165/2013 was filed before this Court ventilating the grievances, as is being raised by way of the present petition. That the said PIL came to be disposed of by the Division Bench vide order dated 23.06.2014 by directing the concerned ceramic units to follow the new guidelines annexed to the affidavit-in-reply filed by the Central Pollution Control Board so long as the new norms adopted by the Central Pollution Control Board are not further modified. That thereafter, the petitioners of that petition, i.e. WP(PIL) No.165/2013, approached the NGT by way of an application, which is subsequently numbered as OA No.20/2017 (WZ). It is the case on behalf of the petitioner that the NGT by order dated 14.11.2017, though had directed the GPCB to shut down ceramic industries/industries using Type-B gasifiers, no further steps have been taken and by use of such coal gasifiers by the ceramic industries, damage to the environment has continued. 2.2 It is the case on behalf of the petitioner that while passing the interim order/interim direction dated 14.11.2017, the NGT had taken into consideration the report of the Expert Committee - Environment Status Report. 2.2 It is the case on behalf of the petitioner that while passing the interim order/interim direction dated 14.11.2017, the NGT had taken into consideration the report of the Expert Committee - Environment Status Report. It is further the case on behalf of the petitioner that the Expert Committee appointed by the NGT dealt with Type-A, B, C, D, and E gasifiers and recommended shutting down of Type-B gasifiers. It is also the case on behalf of the petitioners that so far as Type-A gasifiers are concerned, it was observed that Type-A gasifiers cannot be permitted to be operated in the Morbi industrial area. It is the case on behalf of the petitioner that despite the above directions which as such were issued in the month of November 2017, no further steps are taken and the damage to the environment has been continued by such industries by using the coal gasifiers and therefore, the petitioner has preferred the present Special Civil Application for the aforesaid reliefs. 3. The present petition was heard by this Court on 19.04.2018. This Court directed to issue notice upon the respondents. This Court directed that on the returnable date, a responsible officer from the office of the GPCB to state on affidavit what further steps are taken by it to carry out the directions issued by the National Green Tribunal, Western Zone Bench, Pune, dated 14.11.2017, in O.A. No.20/2017 (WZ) and O.A. No.42/2017 (WZ). 4. In response to the notice issued by this Court, Ms. Manisha Lavkumar, learned Senior Advocate, has appeared with Shri Viral K. Shah, learned advocate on behalf of respondent No.5 - GPCB and Shri Shalin Mehta, learned Senior Advocate has appeared with Mr. P.B. Khambholja, learned advocate on behalf of respondent No.7 - Ceramic Association. 5. An affidavit-in-reply is filed on behalf of respondent No.5 - GPCB, affirmed by Shri Devang M. Thaker, Environment Engineer, dated 30.04.2018. P.B. Khambholja, learned advocate on behalf of respondent No.7 - Ceramic Association. 5. An affidavit-in-reply is filed on behalf of respondent No.5 - GPCB, affirmed by Shri Devang M. Thaker, Environment Engineer, dated 30.04.2018. In the said affidavit-in-reply, it is stated on behalf of the GPCB that GPCB had issued legal notices to 860 ceramic units of Morbi - Wankaner region on 09/10.04.2018, asking, "(i) why Board should not withdraw gasifier (producer gas) from the "Consent to operate (CC&A)" given to your industry using coal based gasifier technology?, (ii) why your ceramic industry should not be asked to use Natural Gas as a fuel in the kiln?, and (iii) why your ceramic unit should not be given closure directions, if it is found operating with gasifier technology (producer gas) and has not obtained permission of the Board for the same?" It is stated that 15 days' time has been given to the industries to reply to the aforesaid notices. It is further stated that the GPCB had also issued public notice for the above legal notices in three vernacular daily newspapers. It is further stated that in addition, the Board has prepared a policy for effective implementation of the environment laws in the cases of violation by ceramic industries of Morbi - Wankaner area and uniformity in implementation of rules. It is further stated that on noticing blatant violations of the conditions/ parameters by the industries concerned, the Board has issued 24 closure directions to ceramic units from 01.01.2018 to 28.04.2018. It is further stated that on noticing non-compliance of the conditions/parameters of the CC&A, the Board has issued notice of directions to 64 units from 01.01.2018 to 28.04.2018, and the Board has also issued 43 show cause notices to the industry from 01.01.2018 to 28.04.2018. 5.1 A further affidavit-in-rely is filed on behalf of respondent No.5 - GPCB dated 08.05.2018, in which it is stated that a team consisting of 23/24 members was constituted. It is further stated that in pursuance to the directions issued by the Board, the said members had inspected 729 units as on 07.05.2018. It is further stated that total number of ceramic units operational/in-operational located on Morbi - Wankaner belt is 850. It is stated that the team carried out personal site visits of 729 units. It is further stated that in pursuance to the directions issued by the Board, the said members had inspected 729 units as on 07.05.2018. It is further stated that total number of ceramic units operational/in-operational located on Morbi - Wankaner belt is 850. It is stated that the team carried out personal site visits of 729 units. It is stated that 430 units were found to be with gasifiers and 299 were found to be operational without gasifiers. It is further stated that so far as the issue of pollution is concerned, for the present, 430 units were found to be gasifiers, 9 of which were of Type-A gasifiers. It is stated that Type-A gasifiers are the ones having a direct cooling gasifier system. It is stated that so far as Type-A units are concerned, all such units have been shut down and their electricity connections have been discontinued. It is further stated that most serious issue concerns 403 units having Type-B gasifiers. It is stated that of these 403 units, 264 units were found to be operational, 5 units were found not to have either the consent to establish or the common consent and authorization. It is stated that these units have been issued the directions for the immediate closure. It is stated that 18 units were found to be without common consent and they have also been issued the common closure orders. It is further stated that insofar as 241+50 units are concerned and found to be operational, though they possess the common consent and authorization, they are found to be in breach of the conditions, namely, (i) evaporator not provided, (ii) provision for the steam release into the atmosphere, (iii) SCADA system not in operation and (iv) direct scrubbing system found to be in existence. It is stated that for these 291 units causing breach of the terms of consent, 10 days' notice would be given to them with a specific direction to rectify the same failing which they would face closure. 5.2 A further affidavit is filed on behalf of respondent No.5 - GPCB, affirmed by the Secretary of respondent No.5 - Board, dated 10.05.2018, pointing out relevant facts for proper adjudication of the present proceedings. 5.2 A further affidavit is filed on behalf of respondent No.5 - GPCB, affirmed by the Secretary of respondent No.5 - Board, dated 10.05.2018, pointing out relevant facts for proper adjudication of the present proceedings. It is stated in the said affidavit that there are in all five different types of gasifiers which are branded as Type-A, Type-B, Type-C, Type-D and Type-E. It is stated that the issue concerning the present petition is pertaining to Type-A and Type-B. It is stated that on personal verification by the Committee, the Board had noticed that out of 729 units which are inspected, 430 units are using coal as a fuel to run their production house and 299 units are using Piped Natural Gas (PNG) as a fuel to run their production house. It is stated that around 393 units out of 430 units have PNG connection but they are using coal as a fuel, for the reasons which are obvious. It is stated that cost of the fuel can be said to be one of the important factors why PNG is not used and coal is used as fuel. 5.3 It is stated that in all 9 units were found to be using Type-A gasifier which is totally prohibited. It is stated that all such units have been ordered to be closed with immediate effect vide order dated 08.05.2018. 5.4 It is stated that out of 729 units which were inspected, 403 units were found to have been using Type-B gasifier. It is stated that units using such technology are polluting air as well as water. It is stated that all stringent steps are taken against the erring industries to see that volume of creating pollution is reduced. It is stated that out of the aforesaid 403 units, 264 units were found to be in operation, 100 units were found to be closed (recently) and 39 units were found to be closed since long. 5.5 It is further stated that out of 264 units which were found to be in operation, 5 units have not taken any permission, i.e. CTE (Consent to Establish) and CCA (Consent to Operate), which is mandatory; 18 units have taken CTE but have not taken CCA. 5.5 It is further stated that out of 264 units which were found to be in operation, 5 units have not taken any permission, i.e. CTE (Consent to Establish) and CCA (Consent to Operate), which is mandatory; 18 units have taken CTE but have not taken CCA. It is stated that to such kind of industries, namely, not having obtained CTE, closure notice is issued and the same will be executed on 16th day from the date of notice whereas in case of those industries which have not obtained CCA, closure notice is issued and the same will be executed on 31st day from the date of notice. It is further stated that insofar as noncompliance of conditions imposed is concerned, GPCB will take corrective steps against the erring industries considering the gravity of non-compliance and past history, at the earliest and preferably within three weeks. 5.6 It is further stated that insofar as closed units which may be in "recent past" or "since long" category are concerned, GPCB will take effective/corrective steps against such industries, including passing of an order of closure considering the history of particular industry. 6. The present petition is vehemently opposed by Shri Shalin Mehta, learned Senior Advocate appearing for respondent No.7 - Ceramic Association. 6.1 It is submitted by Shri Shalin Mehta, learned Senior Advocate appearing for respondent No.7 - Association that the issue with regard to Type-B gasifier which are coal based gasifier is pending before the National Green Tribunal (West Zone), Pune, and the NGT is seized of the matter and various orders have been passed. It is submitted that therefore, this Court may not exercise the jurisdiction for inspection as well as constitution of the Committees. It is submitted that therefore, this Court may not exercise the jurisdiction for inspection as well as constitution of the Committees. 6.2 Shri Shalin Mehta, learned Senior Advocate appearing for respondent No.7 - Association has further submitted that even otherwise, in view of the decision of the Hon'ble Supreme Court in the case of Bhopal Gas Peedith Mahila Udyog Sangathan And Others v. Union of India And Others, (2012) 8 SCC 326 as well as the decision of the Division Bench of this Court in the case of Salaya Machhimar Boat Association Through Vice President v. Union of India & Ors., (2015) 2 GLR 927 , this Court may not exercise the powers under Article 226 of the constitution of India, more particularly, when the jurisdiction would lie before the National Green Tribunal, West Zone, Pune, even for the purpose of execution of the directions/ orders passed by the NGT. It is submitted that remedy available to the petitioner is to approach National Green Tribunal, West Zone, Pune, for execution of the orders passed by the National Green Tribunal, West Zone, Pune. 6.3 It is further submitted by Shri Shalin Mehta, learned Senior Advocate appearing for respondent No.7 - Association that there is no order passed by the NGT directing to close down industries using B-Type gasifiers. It is submitted that as per order dated 14.11.2017 of the NGT, if the industries are not complying with the conditions of CCA, in that case only, the industries are ordered to be shut down. 6.4 It is further submitted by Shri Shalin Mehta, learned Senior Advocate appearing for respondent No.7 - Association that GPCB has already issued show cause notices to the members of respondent No.7 - Association to show cause as to why the industry should not be closed. It is submitted that the members of the Association have already replied to the said notice by explaining each and every question asked by the GPCB in the notice. 6.5 It is further submitted by Shri Shalin Mehta, learned Senior Advocate appearing for respondent No.7 - Association that GPCB has adopted very unfair procedure and issued orders of closure. It is submitted that the industries have not been heard and without giving opportunity of hearing, the orders for closure have been passed. 6.5 It is further submitted by Shri Shalin Mehta, learned Senior Advocate appearing for respondent No.7 - Association that GPCB has adopted very unfair procedure and issued orders of closure. It is submitted that the industries have not been heard and without giving opportunity of hearing, the orders for closure have been passed. 6.6 It is further submitted by Shri Shalin Mehta, learned Senior Advocate appearing for respondent No.7 - Association that using Type-B gasifiers/coal gasifiers cannot be said to be the only cause for air and water pollution in the area. It is submitted that more than 5000 trucks are transporting in the industrial area of Morbi cluster which is spread in the radius of 15 kilometers. It is submitted that daily, 24 hours, approximately 4000 trucks are moving in an out of the Morbi cluster. It is submitted that because of such transportation, dust is generated and spread in atmosphere. Further, the said area is semi-arid and having high wind velocity which is contributing in considerable particulate matter and is also polluting air and therefore also, ambient air quality of that area is deteriorating. It is submitted that thus, with the use of coal based gasifier, it cannot be said that pollution is generating. It is submitted that on the contrary, there are other industries such as paper mill, stone crusher, roofing tiles, coal screener, eminent unit, frit refractory etc. which are also emitting air pollution. 6.7 Apropos the suggestion asked by this Court from the industries to reduce the air and water pollution, Shri Shalin Mehta, learned Senior Advocate appearing for respondent No.7 - Association has submitted and suggested that by using new technology, which is advanced oxidant process provided with Linuex based on Singapore technology, the problem can be solved to some extent. It is submitted that one of the member of respondent No.7 - Association has applied for CTE (amendment) on 03.05.2018 and has requested the GPCB to provide the trial run of the new technology and its request is pending before the GPCB. 7. Heard learned counsel appearing for the respective parties at length. 8. The issue involved in the present petition is damage to the environment, both air and water, by the ceramic industries in Morbi - Wankaner region due to use of coal gasifiers, more particularly, Type-A and Type-B gasifiers. 7. Heard learned counsel appearing for the respective parties at length. 8. The issue involved in the present petition is damage to the environment, both air and water, by the ceramic industries in Morbi - Wankaner region due to use of coal gasifiers, more particularly, Type-A and Type-B gasifiers. It cannot be disputed that as such, because of Type-A and Type-B gasifiers, there is a great damage being caused to the environment which as such is irreparable and irreversible. The National Green Tribunal (Western Zone), Pune, in its interim direction/order dated 14.11.2017, after considering the report of the Committee comprising senior scientists, one each from the Central Pollution Control Board, Gujarat Pollution Control Board and National Environmental Engineering Research Institute, Nagpur (NEERI), which was constituted to carry out investigation of all the industries situate within Morbi and Wankaner Industrial Cluster, has already issued the directions and has directed the GPCB to (i) place before the NGT the action taken against the erring units and (ii) shut down ceramic industries/industries using Type 'B' gasifiers, if they are not complying with the consent terms and conditions as stipulated for grant of consents to operate by GPCB. The learned Tribunal has also directed that the Committee shall continuously monitor the performance of the industrial units employing any of the Type-C, D and E gasifiers and ascertain its effect on all aspects of pollution and safety. 9. Now so far as the industries using Type-A gasifiers is concerned, the same is not at all permissible and all industries using Type-A gasifiers are required to be closed down and as per the affidavit filed on behalf of the GPCB, all those industries using Type-A gasifiers are closed down/ closure orders are passed and even the electricity connections are discontinued. 10. So far as the ceramic industries using Type-B gasifiers are concerned, while issuing aforesaid directions, it appears that the learned Tribunal has considered the report submitted by the Expert Committee, more particularly, Page 6.1 of the Report which reads as under:- "Page 6.1 However, it was observed that ceramic industries using Type B gasifiers often do not operate the evaporator and dispose waste water in the drain and low lying area, abandoned mines etc. The reason mentioned by some of the gasifier operator is that evaporators get choked frequently, leaks, and also increases expense towards heat energy for evaporation of waste water. The reason mentioned by some of the gasifier operator is that evaporators get choked frequently, leaks, and also increases expense towards heat energy for evaporation of waste water. Even if evaporator is operational then mostly release steam containing VOCs SO2 and PAH is released into atmosphere which is not desirable. In view of fact that there is no feasible (design, operational, economical) option for waste water management by way of evaporation, treatment or incineration for all such gasifiers (Type-B) this type of gasifier should not be operated. Ceramic industries must not be allowed to dispose condensate waster water outside their premises." 11. Thus, as such, the GPCB is bound to comply with the aforesaid directions issued by the NGT. It is apprehended and it is the case on behalf of the petitioner that despite the above directions, no further steps are taken by the GPCB and the damage to the environment, both air and water, has been continued. 12. In the case of Bhopal Gas Peedith Mahila Udyog Sangathan And Others v. Union of India And Others , the Hon'ble Supreme Court has observed as under:- "1. Unlike natural calamities that are beyond human control, avoidable disasters resulting from human error/negligence prove more tragic and completely imbalance the inter-generational equity and cause irretrievable damage to the health and environment for generations to come. Such tragedy may occur from pure negligence, contributory negligence or even failure to take necessary precautions in carrying on certain industrial activities. More often than not, the affected parties have to face avoidable damage and adversity that results from such disasters. The magnitude and extent of adverse impact on the financial soundness, social health and upbringing of younger generation, including progenies, may have been beyond human expectations. In such situations and where the laws are silent or are inadequate, the courts have unexceptionally stepped in to bridge the gaps, to provide for appropriate directions and guidelines to ensure that fundamentals of Article 21 of the Constitution of India are not violated...." 13. In such situations and where the laws are silent or are inadequate, the courts have unexceptionally stepped in to bridge the gaps, to provide for appropriate directions and guidelines to ensure that fundamentals of Article 21 of the Constitution of India are not violated...." 13. In various affidavits filed on behalf of the GPCB which are referred to hereinabove, the GPCB has pointed out the steps already taken and/or to be taken in furtherance of the directions issued by the NGT dated 14.11.2017, more particularly, with respect to ceramic industries/industries using Type-B gasifiers and also with respect to the industries which are not complying with the consent terms and conditions as stipulated for grant of consents to operate by GPCB. The GPCB is directed to act as stated in the various affidavits filed by it referred to hereinabove and see to it that the directions issued by the National Green Tribunal (West Zone), Pune, dated 14.11.2017, passed in O.A. No.20/2017 (WZ) and O.A. No.42/2017 (WZ), are complied with. 14. Now so far as the submission on behalf of respondent No.7 - Association that the closure orders are issued in breach of the principles of natural justice and/or sufficient opportunity has not been given, it is observed that if any of the industry is aggrieved by any closure order, it will be open for it/them to prefer the appeal as provided under the Act and/or approach the GPCB pointing out the compliance and the same be considered by the GPCB in accordance with law and on merits. However, it is observed that the GPCB shall take all necessary steps to shut down the ceramic industries/industries using Type-B gasifiers as directed by the National Green Tribunal (West Zone), Pune, only in a case where such industries are not complying with the consent terms and conditions as stipulated for the grant of consents to operate by GPCB. It is also further observed that in case where the show cause notices are issued, the concerned noticee may submit reply to such notice and the same be considered by the GPCB in accordance with law and on merits. 15. It is also further observed that in case where the show cause notices are issued, the concerned noticee may submit reply to such notice and the same be considered by the GPCB in accordance with law and on merits. 15. Now so far as the contention on behalf of respondent No.7 - Association not to issue further direction in the present petition, even with respect to compliance of the directions issued by the NGT dated 14.11.2017 in exercise of powers under Article 226 of the Constitution of India on the ground that the petitioner and/or aggrieved party may approach the National Green Tribunal (West Zone), Pune, for compliance of the order passed by the learned Tribunal and the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Bhopal Gas Peedith Mahila Udyog Sangathan And Others v. Union of India And Others and the decision of the Division Bench of this Court in the case of Salaya Machhimar Boat Association Through Vice President v. Union of India & Ors., is concerned, at the outset, it is required to be noted that at present, there is no Bench of the National Green Tribunal, West Zone, Pune, available as the post is vacant and there is no Bench available at Pune. Even for urgent orders the aggrieved person is required to approach the Delhi Bench of NGT. Therefore, considering the peculiar facts and circumstances and more particularly, when the National Green Tribunal, West Zone, Pune Bench is not available, it cannot be said that the petitioner and/or the aggrieved person has an efficacious remedy available. As observed hereinabove, damage to the environment cannot be permitted to continue. As such, sufficient damage has already been caused to the environment by such industries and the ultimate sufferers are the innocent citizens for no fault on their part. Damage to the environment shall not only affect the present generation but the same may also affect the future generations. Therefore, this Court is inclined to exercise the powers under Article 226 of the Constitution of India and issue the directions as above, more particularly, the directions which shall be in continuation and/or furtherance of the directions issued by the National Green Tribunal (West Zone), Pune Bench, dated 14.11.2017, passed in O.A. No.20/2017 (WZ) and O.A. No.42/2017 (WZ). Therefore, this Court is inclined to exercise the powers under Article 226 of the Constitution of India and issue the directions as above, more particularly, the directions which shall be in continuation and/or furtherance of the directions issued by the National Green Tribunal (West Zone), Pune Bench, dated 14.11.2017, passed in O.A. No.20/2017 (WZ) and O.A. No.42/2017 (WZ). 15.1 Now so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Bhopal Gas Peedith Mahila Udyog Sangathan And Others v. Union of India And Others is concerned, at the outset, it is required to be noted that as observed hereinabove, at present, the Bench at Pune is not available and/ or functional and therefore, the petitioner and/or aggrieved party is not in a position to avail such a remedy. No person can be rendered remediless, more particularly, in absence of any efficacious remedy available. 15.2 So far as reliance placed upon decision of the Division Bench of this Court in the case of Salaya Machhimar Boat Association Through Vice President v. Union of India & Ors. is concerned, the said decision shall not be applicable to the facts of the case on hand. Before the Division Bench, a closure order was sought to be challenged in a petition under Article 226 of the Constitution of India and having observed that there are complex questions relating to environmental law involved and considering the decision of the Hon'ble Supreme Court in the case of Bhopal Gas Peedith Mahila Udyog Sangathan And Others v. Union of India And Others, the Division Bench refused to exercise the powers under Articles 226 and 227 of the Constitution of India and relegated the petitioner therein to approach the NGT and transferred the petition to the NGT. 16. In view of the above and for the reasons stated hereinabove, the present petition stands disposed of with a direction to the GPCB to take further steps as stated in the affidavits-in-reply dated 30.04.2018, 08.05.2018, 10.05.2018, filed on behalf of the GPCB. 16. In view of the above and for the reasons stated hereinabove, the present petition stands disposed of with a direction to the GPCB to take further steps as stated in the affidavits-in-reply dated 30.04.2018, 08.05.2018, 10.05.2018, filed on behalf of the GPCB. As observed hereinabove, the steps shall be taken by the GPCB only with respect to those ceramic industries/industries using Type-B gasifiers if they are not complying with the consent terms and conditions as stipulated for grant of consents to operate by GPCB and all steps shall be taken by the GPCB to ensure that no further damage is caused to the environment by such ceramic industries/industries in Morbi - Wankaner cluster/region using Type-B gasifiers. So far as those ceramic industries/industries using Type-A gasifiers are concerned, as stated by GPCB, all those industries are closed and closure orders have been passed and even the electricity supply has been disconnected. 17. Before parting with the present order, it is observed that as suggested on behalf of respondent No.7 - Association, the GPCB may explore the possibility of permitting the ceramic industry to use new technology, which is "advanced oxidant process with provided as Lineux based on Singapore technology" for which one of the members of respondent No. 7 - Association has applied for CTE (amendment) on 03.05.2018 and the GPCB to consider the request to provide the trial run of the new technology after following due procedure as required and explore the possibility/availability of such new technology which may help to some extent in stopping further damage to the environment which is being caused at present by using Type-B gasifiers - coal based gasifiers. With the above observations and directions, the present petition stands disposed of.