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2020 DIGILAW 28 (TRI)

Raju Industries v. State of Tripura

2020-02-10

S.TALAPATRA

body2020
JUDGMENT : S. Talapatra, J. 1. Heard Mr. P. Saha, learned counsel appearing for the petitioner who is the proprietor of M/s. Raju Industries, which manufactures aluminum utensils. Also heard Mr. Ratan Datta, learned counsel appearing for the Tripura State Pollution Control Board and its Secretary respectively the respondent Nos. 2 and 3 and Mr. M. Debbarma, learned Addl. GA appearing for the respondents No. 1 and 4. 2. The grievance of the petitioner falls within a short compass. By means of this writ petition, the closure order No. F.17(10)/TSPCBAV/Aluminium(T-Gr)/3345/6199-6206 dated 13.07.2018 issued by the Member Secretary, Tripura Station Pollution Control Board (Annexure H to the writ petition) has been challenged. For purpose of the reference, the entire text of the said closure order dated 13.07.2018 is reproduced hereunder: Tripura State Pollution Control Board (A Govt. of Tripura Organisation) No. F. 17(10)/TSPCBAV/Aluminium(T-Gr)/3345/6199-6206 July 13, 2018 CLOSURE ORDER WHEREAS, Mr. Hanif Mia, S/o. Mr. Latu Mia is operating an aluminium utensil manufacturing unit in the name and styled as M/s. Raju Industries at Madhya Charipara, PO: Charipara, PS: Amtali, Tripura West illegally without obtaining valid Consent of Operate Certificate from the Tripura State Pollution Control Board AND WHEREAS, on 26.06.2018, a mass complaint has been received from the inhabitants of Madya Charipara PO: Charipara, PS: Amtali, Tripura West alleging that huge smoke emitting out from M/s. Raju Industries are creating air pollution to the surrounding area, so far the environmental health hazard is concerned. AND WHEREAS, on the basis of the complaint, the site was inspected by the Board Officials on 07.07.2018 and observed during inspection that the there is a possibility of fire accident at any time, which may cause serious environmental hazard to the surrounding area. Moreover, the unit is causing air pollution to the local residents. NOW THEREFORE, in exercise of power conferred under Section 31A of the Air (prevention and Control of Pollution) Act, 1981, it is directed that the unit shall be closed from the date of issue of Closure Order. (Manas Mukherjee) Member Secretary 3. On bare reading of the said closure order, it appears that the grounds of issuing closure order are distinctly as follows: (i) There is possibility of fire accident at any time, which may cause serious environmental hazards to the surrounding area and (ii) The unit is causing air pollution to the local residents. 4. Mr. (Manas Mukherjee) Member Secretary 3. On bare reading of the said closure order, it appears that the grounds of issuing closure order are distinctly as follows: (i) There is possibility of fire accident at any time, which may cause serious environmental hazards to the surrounding area and (ii) The unit is causing air pollution to the local residents. 4. Mr. Saha, learned counsel appearing for the petitioner has quite robustly submitted that before issuance of the closure order, no show cause was issued to the petitioner in terms of the second proviso of sub-section (4) of section 21 of Air (Prevention and Control of Pollution) Act, 1981. Section 21 of the said act imposes clear restriction on certain industrial plants which operate in the air pollution control area. Mr. Saha, learned counsel has further submitted that there is no scientific report that the petitioner's unit is causing air pollution, even though a complaint has been made by the local people. Apparently, based on the said complaint, the aforementioned action has been taken by the Tripura State Pollution Control Board. 5. Mr. Datta, learned counsel has submitted that at the relevant point of time, the petitioner did not have the required consent to operate the said unit and as such the entire operation was illegal and supposed to be intervened. When on the face of the record, it appears that the unit was operating within the restricted area under Section 21 of the Air (Prevention and Control of Pollution) Act without the consent to operate. Issuance of the show cause notice was mere empty formality. In no way it can be stated that the petitioner has been prejudiced for taking such action. 6. That apart, Mr. Datta, learned counsel has submitted that even after the closure order, the petitioner continued to operate the unit in full swing generating smoke to the air inasmuch as no chimney is fitted to regulate the noxious air. Mr. Datta, learned counsel appearing for the Tripura State Pollution Control Board has referred to the inspection report submitted by Shri Dipak Rudra Pal, Junior Scientist on 03.02.2020 (Annexure-H to the reply filed by the respondents). Mr. Mr. Datta, learned counsel appearing for the Tripura State Pollution Control Board has referred to the inspection report submitted by Shri Dipak Rudra Pal, Junior Scientist on 03.02.2020 (Annexure-H to the reply filed by the respondents). Mr. Datta, learned counsel has further submitted that after receipt of the complaint by the AH Akbar Miah and other 90 residents from the area [Madhya Charipara] the Pollution Control Board carried out due inspection and thereafter the inspection team submitted the inspection report on 09.07.2018 observing as follows: [i] No measures were taken by the unit to combat Air Pollution. [ii] 3 Nos. of workers have been found working without hand gloves and Masks. [iii] No fire fighting facility is found in the unit. [iv] Consent Certificate was not displayed in the office of the unit. [v] Average noise level is measured 58 dB from about 30 M distance of the unit and measured 71.5 dB (Average) inside the unit. [vi] During inspection, it was observed that a good extent of burning smoke was released from the industry and extended to surrounding areas. 7. Therefore, the action was taken on the basis of the said inspection report. When this court, queried Mr. Datta, learned counsel whether a copy of the said inspection was furnished to the petitioner, he has fairly submitted that the inspection report was not furnished to the petitioner. 8. In the rejoinder, Mr. Saha, learned counsel has submitted that the petitioner has filed the due application for renewal of the consent to operate with the required fee on 27.06.2018 (Annexure-F to the writ petition) but the same has not been acted upon and the petitioner was not apprised why the renewal was delayed or not granted on the said application. 9. Mr. Saha, learned counsel has further submitted that the unit is being operated on the basis of the order passed by this court on 03.08.2018 whereby the further operation and any effect from the order 13.07.2018 has been stayed. In the order dated 03.08.2018, a prima-facie observation has been made as under: "without affording reasonable opportunity of hearing on a complaint of the local residents order impugned has been passed by the TSPCB Dated. In the order dated 03.08.2018, a prima-facie observation has been made as under: "without affording reasonable opportunity of hearing on a complaint of the local residents order impugned has been passed by the TSPCB Dated. 13th July, 2018 in exercise of power U/Sec. 31 A of the Air (Prevention and Control of Pollution) Act, 1981 for closer of the running unit which according the petitioner's counsel is in clear violation of the principle of natural justice." 10. Having attended the submission made by the learned counsel for the parties, this court is of the view that the petitioner has the right to get opportunity to respond to the allegations made against the petitioner's unit of releasing air pollutants in the air and it has been surfaced that no such opportunity was afforded at any stage to the petitioner not having the consent to operate falls with the different perspective. Moreover, it is apparent that neither the copy of the complaint nor the inspection report dated 09.07.2018 was supplied to the petitioner nor any show cause was issued. However, it cannot be denied that without consent to operate the unit of the petitioner cannot be run for a single day. 11. Having regard to all these aspects of the matter, the respondent-Tripura State Control Pollution Board is directed to afford the petitioner a reasonable opportunity to have his say on the complaint filed by the local residents as well as on the inspection report dated 09.07.2018 (Annexure-F to the reply filed by the respondent Nos. 2 and 3). Since no opportunity was extended, the closure order dated 13.07.2018 (Annexure-H to the writ petition), this court is persuaded to intervene in the impugned order dated 13.07.2018, but for a limited purpose towards providing an opportunity to the petitioner to have his say over the allegations as well as on the inspection report dated 09.07.2018. Accordingly, the same is quashed. Since, the petitioner has filed an application for the renewal of consent to operate, the respondent-Pollution Control Board shall take a call on this and take a final decision on the application. It is expected from the respondent Nos. 2 and 3 that before they take any extreme step like the closure, they should give the petitioner an opportunity to rectify or upgrade the operational mechanism so that it does not emit any pollutant in the air. It is expected from the respondent Nos. 2 and 3 that before they take any extreme step like the closure, they should give the petitioner an opportunity to rectify or upgrade the operational mechanism so that it does not emit any pollutant in the air. This court has not fixed and stipulated any date for purpose of issuing the notice based on the said complaint and the inspection report dated 09.07.2018 (Annexure-F to the reply filed by the respondent Nos. 2 and 3). However, The entire exercise shall be completed preferably within a period of six weeks from the day when a copy of this order will be available to the respondent No. 3. In terms of the above, this writ petition stands allowed and disposed of. Pending applications, if any, stands disposed of. There shall be no order as to costs. A copy of this order be supplied to the learned counsel for the parties.