High Court Punjab-Haryana High Court

) Cwp No. 21544 Of 2008 vs The Punjab Pollution Control … on 20 August, 2009

Punjab-Haryana High Court
) Cwp No. 21544 Of 2008 vs The Punjab Pollution Control … on 20 August, 2009
     CWP No. 21544 of 2008                             [1]

        IN THE HIGH COURT OF PUNJAB & HARYANA AT
                        CHANDIGARH


                                   Date of Decision: 20.08.2009



     1) CWP No. 21544 of 2008


M/s M.K.Overseas Pvt. Ltd.                             ..Petitioner


                        Versus


The Punjab Pollution Control Board and others.       ..Respondents


                                __:__



2)      CWP No. 16306 of 2007

Village Welfare & Environment Bachao Committee, Samgoli.

                                                   ..Petitioner

                        Versus


State of Punjab and others                         ..Respondents


                                *****

CORAM: HON’BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

1.Whether Reporters of local papers may be allowed to see the
judgment ?

2. Whether to be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest?

__:__
CWP No. 21544 of 2008 [2]

Present : Mr. Rupinder Khosla, Advocate,for the petitioner-unit
M/s M.K.Overseas Private Limited in Civil Writ Petition
No. 21544 of 2008 and

(for Respondent No. 3 in Civil Writ Petition No. 16306 of
2007, alongwith Mr.Ravi Sodhi, Advocate).

Mr. S.S.Brar, Advocate,
for the petitioner in Civil Writ Petition No. 16306 of 2007.

Mr. A.R.Takkar, Advocate,
for Punjab Pollution Control Board.

Ms. Geeta Sharma, Advocate, for Punjab State Electricity
Board.

Mr. T.P.Singh, Advocate,
for Central Pollution Control Board.

Ms. Madhu Dayal, Addl. A.G. Punjab
for respondent-State of Punjab.

Mr. Tushar Sharma, Advocate for respondent No.4
in Civil Writ Petition No. 16306 of 2007

*****

T.S.Thakur, C.J. (Oral)

Civil Writ Petition No. 21544 of 2008 under Article 226

of the Constitution of India assails an order dated 19.12.2008 issued by

the Punjab Pollution Control Board in exercise of its powers vested

under Section 33-A of the Water (Prevention & Control of Pollution)

Act, 1974. The backdrop in which this order has been made is

elaborately set out in the order itself, from a reading whereof, it appears

that the Punjab Pollution Control Board Authorities based on the

inspections conducted by them noticed several deficiencies in the

Effluent Treatment Plant set up by the petitioner-unit. These

deficiencies have been enumerated as under:-

CWP No. 21544 of 2008 [3]

5. At the time of visit, it was observed that one no.
Secondary Clarifier (after Ist stage Aeration)
was not in operation & was empty. Both the
aeration tanks were being used in series, as
such, the treatment system was functioning as
single stage aeration system.

6. The Pressure Sand Filter & Activated Carbon
Filters installed by the industry were not in
operation and the treated trade effluent from the
pre-filtration tank was being discharged for
plantation/irrigation bye-passing these filter
units.

7. The industry has installed water meter at the
final outlet of the ETP, but it is not maintaining
any record for the quantity of treated trade
effluent discharged by the industry. However,
during visit, the quantity of treated trade effluent
discharged by the industry was measured from
the water meter installed by the industry, which
was about 25 Kl/hr.

8. The industry is not maintaining any record
regarding consumption of the chemicals for the
operation of the ETP.

9. During visit, the monitoring of various
components of the ETP installed by the industry
as well as the treated trade effluent discharged
by the industry was carried out. The analysis
results indicate that the conc. of various
pollutants ( i.e. BOD-220 mg/1, TSS-120 mg/1
and TDS-5040 mg/1) in the treated trade
effluent ( i.e. at the outlet of ETP) discharged by
the industry is beyond the permissible limits
prescribed by the Board for such discharges
onto land for irrigation/plantation.

10.All the trenches in the irrigation fields
CWP No. 21544 of 2008 [4]

including the areas having no plantation as well
as areas where plants were at the initial stage of
growth, were full of treated or partially treated
effluents. Two no. samples of effluents from
trenches i.e. In the irrigation fields, were found
to have TSS-265 & 120 mg/1, TDS-8346 & 8138
mg/1, BOD-655 & 1150 mg/1 and COD-1664 &
2560 mg/1 confirming the application of
untreated/partially treated effluent on land for
irrigation/plantation.

11.The industry has developed about 12.5 acres of
land as per Karnal Technology for utilization of
its treated trade effluent. In addition to this land,
the industry has also developed lawns in an area
of about 10 acres. The industry has installed
pipe line distribution network for its lawns.
However, the distribution system for the
disposal of treated trade effluent in its
plantation area is with flexible pipes. But during
visit, stagnation of effluent was observed inside
and outside the industrial premises in its
plantation area.

12.The sludge drying beds provided by the industry
do not have adequate filter media and were not
maintained properly. These beds were found
chocked and sludge in semi-liquid form was
being lifted by the industry in trolley/tanker for
disposal. This sludge was being disposed off by
the industry into unlined pits outside the
industry on the land, which were earlier used for
disposal of solid waste from Lairage area.

13.Two number ground water samples of the
industry were also collected by the team from
the peizometers provided by the industry inside
the premises. The analysis of ground water
CWP No. 21544 of 2008 [5]

samples collected by the team from the
peizometer wells ( about 80 ft. deep) located
within the unit’s premises shows the BOD-6 & 8
mg/1 and COD-29 & 32 mg/1, indicating that
the ground water quality has been affected by
the discharge of effluent.

14.The industry has installed Salt Recovery System
consisting of collection tank and evaporation
pans to separate the salt from leather house
wastewater and no effluent from leather house
was being discharged into the ETP. These pans
are slightly above the ground level and were full
to their capacity. In addition to this, the industry
has also completed the civil construction work
of 3 no. additional solar evaporation ponds of
size 20 mx 10 mx 1 m each. But the same are yet
to be put into operation. The unit has proposed
solar evaporation for high TDS effluent in these
ponds. With the commissioning of these
evaporation ponds, the existing pans shall be
discontinued.

15.The Rendering Plant installed by the industry
was in operation. It has been provided with a
cyclone, condenser and a bio-filter, so as to
arrest the vapours of volatile material from the
cooker exhaust. The bio-filter is at ground level,
consists of grid of perforated pipes covered with
bed of sand, different sizes of aggregates and
rice husk etc. The husk is kept wet by way of
sprinkling water to contain the odorous
emissions from the cooker section. The
emissions of the bio-filter were being escaped
into the atmosphere at about 5 ft. above ground
level causing odour in the adjoining area.

16.The industry is in the process of constructing
CWP No. 21544 of 2008 [6]

one no. collection tank of size 25 m x 15m x 4m
and a storage tank of size 37 m x 20m x 5.5 m
for further managing its effluent.”

Aggrieved by the findings recorded by the Board on the

above aspects, as also the final order of closure of the unit and the

directions issued to the Punjab State Electricity Board for disconnecting

the electricity supply, the petitioner-unit has filed the present petition as

noticed earlier.

When the petition came up before us for hearing on

22.12.2008, Mr. Khosla, learned counsel for the petitioner-unit

expressed apprehension about the impartiality of the approach and the

fairness of the process undertaken by the respondent-Board in dealing

with the questions relating to the efficacy of the Effluent Treatment

Plant established by it. It was contended by Mr. Khosla that the

petitioner-unit was ready and willing to be evaluated from the point of

view of efficacy of its system and the adequacy of the anti pollution

measures installed by the Central Pollution Control Board. On behalf of

the Punjab Pollution Control Board, it was on the other hand, argued by

Mr. Takkar that the findings recorded by the Board in the impugned

order were all based on the observations and reports prepared by the

officers on the basis of their site visits and test reports of samples taken

in the course of such visits. It was also contended that the Board had

not passed the impugned order under any duress as suggested by the

petitioner nor was the petitioner singled out for any hostile treatment.

All the same, the Board was according to the learned counsel not averse

to the unit being reassessed and re-evaluated from the point of view of

efficacy and adequacy of Effluent Treatment Plant installed in the same
CWP No. 21544 of 2008 [7]

and other pollution control measures by the Central Pollution Control

Board. It was also stated that in case the Central Pollution Control

Board recorded its satisfaction about the efficacy and operational

efficiency of the pollution control measures, taken by the petitioner, it

could in supersession of the order, passed by the respondent-Board,

pass any order permitting the petitioner to resume its operations on such

conditions as the Board may consider.

This Court had in the above backdrop directed the Central

Pollution Control Board to have the entire system installed by the

petitioner-unit re-evaluated from the point of view of its adequacy and

efficacy and take a final decision as to whether the petitioner-unit could

be allowed to resume its operations and if so, subject to what

conditions. The Chairman of the Central Pollution Control Board was

requested to nominate a team of officers to have the petitioner’s unit

evaluated from the point of view of the deficiencies reported by the

Punjab Pollution Control Board and also whether the Effluent

Treatment Plant installed in the same was adequate and efficacious and

whether the same is being run efficiently by the petitioner. Since the

Unit is a 100% export oriented unit, the Chairman of the Central

Pollution Control Board was requested to take expeditious steps in the

matter of nominating the team and issuing instructions to them to visit

the unit for inspection and submit their report preferably within a period

of 10 days from the date of the order. Liberty was given to the Central

Pollution Control Board to allow the petitioner unit to resume its

operations unconditionally or subject to the conditions which the

Central Pollution Control Board may choose to impose, if it was of the
CWP No. 21544 of 2008 [8]

opinion on the basis of the report submitted by the Committee of the

officers, that such an order was justified. We had made it clear that in

case the Central Pollution Control Board passed any such order, the

same would take effect in supersession of the directions issued by the

State Board. We had also directed that pending fresh evaluation of the

Unit by the team nominated by the Chairman of the Central Board, the

State Board shall not encash the bank guarantee furnished by the

petitioner in case the same had not been already encashed.

The Chairman of the Central Board in obedience of the

above directions appears to have constituted a Committee of officers

who had conducted an inspection of the unit on 13.01.2009 and

submitted a report to the Central Pollution Control Board. Based on the

said report, the Chairman of the Central Pollution Control Board has in

exercise of the powers vested on him under Section 5 of the

Environment (Protection) Act, 1986, passed an order dated 27.01.2009

permitting the petitioner-unit to resume operations subject to certain

conditions stipulated in the said order. For facility of reference, the

operative portion of the order passed by the Chairman, may be extracted

at this stage:-

” Now, therefore, keeping in view of the aforesaid
inspection report and as empowered by and in
compliance of the Hon’ble Punjab and Haryana High
Court’s order, dated December 22, 2008, and in exercise
of powers delegated to the Chairman, Central Pollution
Control Board under Section 5 of the Environment
(Protection) Act, 1986, the Unit is allowed to resume
operations subject to the following conditions:-

1. The unit shall properly stabilize the effluent treatment
CWP No. 21544 of 2008 [9]

plant (ETP) and operate ETP and other pollution
control measures so as to meet the prescribed
standards; and

2. The unit shall fully comply with the CPCB’s direction
dated October 10, 2008, including the time schedules
fixed, failing which the Bank Guarantee of Rs. 50 Lakhs
submitted by them to the Punjab Pollution Control
Board would be forfeited in full or in part as may be
directed by CPCB; and

3. The unit shall submit monthly progress and status of
compliance report to PPCB and CPCB by 7th day of the
succeeding month during the validity of the Bank
Guarantee.

CPCB will review, through inspection by CPCB alone
or jointly with PPCB, the implementation of various
measures and compliance of its direction by the Unit
from time to time and in case of non-compliance with
any of the above conditions, CPCB may initiate
appropriate action against the Unit at any time as per
the provisions of the Environment (Protection) Act,
1986.”

The Unit has pursuant to the said directions resumed its

operations. From the status report filed on the affidavit of

Dr. A.B.Akolkar, Additional Director, Central Pollution Control

Board, Delhi, it appears that a team of officers from the Central

Pollution Control Board conducted a further inspection of the unit on

19.05.2009 followed by a final inspection made on 30.07.2009. The

affidavit specifically states that out of 8 different steps that were

required to be taken by the Unit, only one remains to be taken by it

while the others have already been complied with satisfactorily. The
CWP No. 21544 of 2008 [10]

affidavit presents the picture regarding the compliance of the steps

stipulated by the Central Pollution Control Board in a tabular form as

under:-


 Main actions/conditions stipulated      Target date     Status based
   in CPCB's directions dated                           on the CPCB's
    10.10.2008 and 27.01.2009                             inspection
                                                           reports.
To make arrangements for disposal of With               Complied
solid waste                          immediate
                                     effect
To install peizometer at appropriate 15.10.2008         Complied
locations
Proper Irrigation with sprinklers, 31.12.2008           Complied
increased density of plantation,
kitchen garden and rain guns.
Construction of RCC tank of 1500 KL 31.12.2008          Complied
for effluent
Construction of solar evaporation 31.12.2008            Complied
pans
Construction of tank of 1 month 31.01.2009              Storage facility
( 18,180 KL) capacity for storing                       of 11,770 KL
treated effluent.                                       capacity
                                                        provided.
To increase validity of Bank --                         Complied
Guarantee already submitted to PPCB
till 15.8.2009
Providing forced evaporation system. 30.06.2009         Completed.
To submit progress report               By 7th day of Reports    are
                                        succeeding    being received
                                        month.        regularly.

In so far as the increase of the storage capacity of the

effluent generated by the Unit is concerned, the affidavit states that as

against 18,180 KL, the unit has storage capacity of 11770 KL only. The

Unit has therefore to limit its effluent discharge to maximum of 450 KL

per day particularly during monsoon season, as the demand for

irrigation goes down during the said season. The report enclosed with

the affidavit also states that the sample collected from the unit upon
CWP No. 21544 of 2008 [11]

tests shows that the same meets the prescribed standards. The report

says as under:-

” The installed capacity of effluent treatment plant
(ETP) provided by the Unit is 710 KLD. As per the
analysis report of sample collected on May 19, 2009,
treated effluent meets the standards.”

On behalf of the respondents, it was in the above back

ground argued that the Unit may have to add its storage capacity as

required by the Central Pollution Control Board as storage capacity is

less than what has been stipulated by the Central Pollution Control

Board.

Mr. Khosla, learned counsel appearing for the petitioner-

unit, however, has no objection to the enhancement of the storage

capacity of the unit from 11,770 KL to 18,180 KL. He submits that the

Unit would take appropriate steps in this regard and ensure that the

enhanced capacity is available within next three months. Mr Kholsa

further submits that since the Central Pollution Control Board has

already passed an order permitting the petitioner to resume its

operations upon satisfaction of the objections that were at one stage

raised by the State Board and since the order passed has the effect of

superseding the order to the contrary made by the Punjab Pollution

Control Board, this petition could be disposed of with appropriate

directions.

On behalf of the respondents, it was submitted that while

the petition could be disposed of with a direction to the unit to enhance

the storage capacity suitably, the disposal of the petition should not
CWP No. 21544 of 2008 [12]

prevent the Central Pollution Control Board or the Punjab Pollution

Control Board from taking the samples as and when considered

necessary for the purposes of verifying whether the systems installed by

the petitioner-unit are working efficiently. It was submitted that

disposal of this petition should not be understood to mean that the

question regarding compliance with the standards fixed under the law

for installation and functional efficacy of the Effluent Treatment Plant

stands concluded for all times. The question whether the Unit is

complying with the requirements of law will be a matter that would

have to be continuously monitored and appropriate steps be taken as

and when it is found to be falling short of the legal requirements.

There is in our opinion no gain saying that the installation

of the Effluent Treatment Plant and providing of basic requirements,

considered essential by the Central Pollution Control Board or the

Punjab Pollution Control Board, is only one aspect of the matter. The

second and the more important aspect is whether such systems and

plants, that are installed, are made to work efficiently. For that purpose,

the Pollution Control Board Authorities shall have to remain vigilant

and conduct periodic checking/inspection and tests to ensure that the

plants installed by the petitioner-unit are not only ornamental but are

actually put to use. It also goes without saying that in case the tests

conducted on the samples collected by the competent authorities fail to

meet the standards prescribed for the same, the authorities would be

free to pass appropriate orders for closure of the unit or for further

directions considered appropriate. For the present, all that we need say

is that the order passed by the Punjab Pollution Control Board shutting
CWP No. 21544 of 2008 [13]

down the unit is no longer effective in as much as the same stands

superseded by the order passed by the Central Pollution Control Board.

Mr. Takkar was fair enough to state that in the light of the

subsequent developments mentioned earlier, the Punjab Pollution

Control Board would have no difficulty in withdrawing the impugned

order. Mr. Takkar, however, submitted that the fact that the reference

had been made to the Central Pollution Control Board and steps

pursuant to the directions issued by the said Board have been taken by

the petitioner and found to be adequate for the present, should not be

interpreted to mean that the Punjab Pollution Control Board authorities

were in any way biased against the petitioner-unit nor should the same

be interpreted to mean that any action which the Punjab Pollution

Control Board authorities may take against the petitioner would

necessarily be biased or partisan in nature. We see no reason to decline

that clarification. Just because there was an apprehension expressed by

the petitioner unit regarding fairness of the officers of the Punjab

Pollution Control Board and just because this Court made reference to

the Central Pollution Control Board to find an early solution to the

problem created on account of the closure of the unit, would not mean

that this Court had accepted the allegations of bias or partisan attitude

levelled by the petitioner-unit against the State Board and its officers.

This would also not mean that the State Board authorities would not be

entitled to monitor the working of the unit or take steps that are

otherwise permissible in law upon failure of the petitioner unit to

comply with the legal requirements.

CWP No. 21544 of 2008 [14]

Mr. Khosla at this stage submits that the bank guarantee

furnished by the petitioner could be released to the petitioner unit. We

do not see any reason why the bank guarantee should be held beyond

the period necessary. At the same time, we find that the bank guarantee

ought to continue till such time the petitioner unit complies with the

requirements of increasing the storage capacity to 18,180 KL.

Before parting, we may as well deal with an incidental

issue that has been raised by the petitioner-committee in Civil Writ

Petition No. 16306 of 2007 against the respondent No. 3 Unit

petitioner in Civil Writ Petition No. 21544 of 2008. Petitioner in Civil

Writ Petition No. 16306 of 2007 happens to be a Village Welfare &

Environment Bachao Committee, which has made a grievance against

M/s M.L.Overseas Private Limited-petitioner in Civil Writ Petition No.

21544 of 2008 that the operation of the unit established by the said

company results in obnoxious smell making the lives of those residing

in the vicinity of the unit miserable. It is submitted that because of the

slaughtering of animals and the processing of the residual remains of

slaughtered animals which are thrown in the open fields and adjoining

jungles and because of untreated water that discharges in the adjoining

fields, the entire area is affected by foul smell, which is injurious to

health. Certain photographs showing discharge of the water and

remains of dead animals have also been placed on record. It was

contended on behalf of the petitioner Committee that this Court could

in public interest issue appropriate directions to the authorities to

examine the issue more closely and to save the inhabitants of the area

from what is serious hazard for their health and lives.

CWP No. 21544 of 2008 [15]

Mr. Khosla, learned counsel for the petitioner-unit submits

that the petitioner-unit has taken adequate steps in the matter and there

is at present no foul smell being emitted by the operation or working of

the unit. He urged that this issue could be got verified from the

Pollution Control Board Authorities also to set at rest this part of the

controversy.

Mr. Takkar, learned counsel for the State Board was also

not averse to the matter being examined by the State Authorities having

regard to the norms, if any, on the subject for emission of foul smell or

odour and in which event the company could be directed to take

whatever steps necessary or feasible.

In the circumstances, therefore, the question whether the

working of the unit is causing inconvenience or hardship or source of

any health hazard for the residents of the area, whether in terms of

emission of foul smell or odour or otherwise, is a matter that can be

left to be examined more closely by the Punjab Pollution Control

Board. It is noteworthy that this Court had at one stage appointed Local

Commissioner to visit the spot and to report whether there is any foul

smell being emitted by working of the unit. The report submitted by the

Local Commissioner is also available on record which can be made use

by the Punjab Pollution Control Board in case the same is otherwise

found to be of any use. Suffice it to say that the petitioner committee as

also the Punjab Pollution Control Board authorities shall be free to

bring up the matter for consideration at the appropriate level for passing

of orders which are considered necessary in the circumstances.

CWP No. 21544 of 2008 [16]

In the result, we dispose of both the writ petitions in the

following terms:-

i) The petitioner company in Civil Writ Petition No.

21544 of 2008 shall comply with the direction

issued by the Central Pollution Control Board in

regard to the increase in the storage capacity from

11,770 KL to 18,180 KL within a period of three

months from today i.e. on or before 30.11.2009.

ii) The bank guarantee furnished by the petitioner-unit

shall continue with the Board till increase in the

storage capacity is achieved to the satisfaction of the

Punjab Pollution Control Board. The petitioner-unit

shall keep the bank guarantee duly renewed if the

same is otherwise limited in point of time during all

this period.

iii) Punjab Pollution Control Board so also Central

Pollution Control Board shall be free and indeed

duty bound to make proper visits and conduct

proper inspections and take samples and conduct

tests to ensure that the provisions of the Act and the

Rules framed thereunder are strictly complied with

by the petitioner unit. In the event of any default, the

said authorities shall be free to pass appropriate

orders on the subject including orders by way of

closure of the unit.

CWP No. 21544 of 2008 [17]

iv) The petitioner Committee in Civil Writ Petition No.

16306 of 2007 shall be free to make a proper

representation to the Chairman of the Punjab

Pollution Control Board pointing out the nature of

the hazards faced by them on account of the working

of the unit, in which event the Board shall look into

the matter and pass appropriate orders on the same

expeditiously but not later than three months from

the date the representation is received.

Parties are left to bear their own costs.

(T.S.THAKUR)
CHIEF JUSTICE

(KANWALJIT SINGH AHLUWALIA)
JUDGE
20.08.2009
‘ravinder’
CWP No. 21544 of 2008 [18]

IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH

CWP No. 16306 of 2007
Date of Decision: 20.08.2009

Village Welfare & Environment Bachao Committee, Samgoli.

                                                ..Petitioner

                         Versus

State of Punjab and others                           ..Respondents

                                *****
Present :    Mr. S.S.Brar, Advocate,
             for the petitioner

             Mr. Rupinder Khosla, Advocate,
             alongwith Mr.Ravi Sodhi, Advocate
             for respondent No. 3

             Mr. A.R.Takkar, Advocate,
             for Punjab Pollution Control Board.

Ms. Geeta Sharma, Advocate, for Punjab State Electricity
Board.

Mr. T.P.Singh, Advocate,
for Central Pollution Control Board.

Ms. Madhu Dayal, Addl. A.G. Punjab
for respondent-State of Punjab.

Mr. Tushar Sharma, Advocate
for respondent No.4
____

For orders see, Civil Writ Petition No. 21544 of 2008.

(T.S.THAKUR)
CHIEF JUSTICE

(KANWALJIT SINGH AHLUWALIA)
JUDGE
20.08.2009
‘ravinder’