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SCA/22609/2005 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 22609 of 2005
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
GUJARAT
DYSTUFF MANUFACTURERS ASSO. & 1 - Petitioner(s)
Versus
STATE
OF GUJRAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
VIMAL M PATEL for
Petitioner(s) : 1 - 2.
MR AJ DESAI, AGP for Respondent(s) : 1,
MR
TUSHAR MEHTA FOR MS AMEE YAJNIK for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 22/04/2010
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
This
petition is filed by Gujarat Dyestuff Manufacturers Association
(here-in-after referred to as the petitioner Association ).
Following prayers have been made in the petition :
A.
Your Lordships be pleased to issue a writ or in the nature of
mandamus directing the respondents to withdraw the Environmental
Audit Scheme for Industries Manufacturing Specified Products on such
terms and conditions as deemed just and proper by the Court.
B. Pending
admission, hearing and final disposal of this petition, your
Lordships be pleased to stay and suspend the operation and
implementation of Environmental Audit Scheme for Industries
Manufacturing Specified Products Scheme on such terms and conditions
as deemed just and proper by this Court.
C. Ex-parte
ad interim relief in terms of prayer B above be granted.
D. Such
other and further reliefs as may be deemed just and proper in the
facts and circumstances of the present case may kindly be granted.
Briefly
stated, facts of the case are that petitioner no.1 is a registered
Association of Dyestuff Manufacturers in the State of Gujarat. In
the late 80s and early 90s, large number of petitions were filed
before the High Court alleging rampant pollution being caused by
various industries in the State of Gujarat. Many of these industries
were concentrated in and around the city of Ahmedabad. In different
litigations, series of orders were passed by different Benches of
this Court directing corrective measures to be taken by the
Industries as well as by Gujarat Pollution Control Board(GPCB for
short). One such litigation involved was Special Civil Application
No. 770/1995 and connected matters. Division Bench of this Court by
a detailed judgement dated 20.12.1996 considered various aspects of
polluting industries and its impact on the environment and the
natural resources. The Bench was of the opinion that the industries
could not be allowed to use up the capital provided by the nature.
In this regard the Bench made following observations :
To
what extent industries should be allowed to use up capital
provided by the nature and at what cost, are larger questions which
require indepth study but which need not detain us for the
present, since we are proceeding on the principle laid down in the
case of Pravindbhai (supra) and in the case of Indian
Council for Enviro-Legal Action 1996 (5) SCC 281 (para31) that
balance between industrialization and ecology is required to
be maintained. Nevertheless, the manner in which the capital
provided by the nature is used or abused does warrant closer
scrutiny at the hands of qualified professionals.
2.1 The
Bench eventually envisaged an environment audit scheme . Bench
provided broad contours of the scheme as follows :
…that
the scheme is in addition to and not in derogation of the
powers of the statutory authorities and also that individual
industrial units, cluster of industrial units and class of
industries are still subject to monitoring,which can be carried out
by GPCB, Association of Industries, or monitoring committees
appointed by them and/or by the coordinating committee/s, if any,
appointed by this court. Although the scheme is applicable, by
virtue of this order, in the first instance to industries in and
around Ahmedabad, we see no reason why the scheme should also not
be made applicable to the industries manufacturing specified items
in all other parts of Gujarat.
2.2 Eventually
the proceedings came to be disposed of by issuing following
directions :
21. The State Government and GPCB are
directed
(a) to publish the said Scheme in two English and
Gujarati daily newspapers having wide circulation
in Gujarat for information of all concerned by
January 10, 1997 and to invite applications for
being recognized as “Environmental Auditors” by
February 10, 1997 and to prepare the list of
Recognized Environmental Auditors as early as
possible and latest by February 28, 1997.
(b) to prepare by February 15, 1997, the format of
the Environmental Audit Reports including the
proforma statement to be prepared by the Labour
Commissioner and the Chief Inspector of Factories
in consultation with the National Institute of
Department of Health.
(c) to implement the Environmental Audit Scheme which
is annexed to this order and to report compliance
to this Court from time to time.
(d) to formulate plans for monitoring of industries
as per, inter alia, discussion in paragraphs 9
and 16 of this order.
(e) to consider the Scheme for providing positive
incentives for setting up units using by-products
like spent acids as raw-materials for
manufacturing other products as discussed in
paragraph 16 of this order.
22. Associations of Industries in Vatva, Naroda,
Odhav and Gujarat Vyapari Maha Mandal Estate at Odhav
are directed to fix the norms for receiving effluents
from individual units [not having secondary treatment
plants] into respective CETPs. The instructions
containing such norms shall be issued to the members of
CETPs by February 15, 1997, and shall be produced on the
record of these proceedings on the next date of hearing.
A copy of this order shall be sent to NEERI, Nagpur and
to ATIRA. The Registry shall immediately send this
order to Government and to GPCB.
It
is not in dispute that pursuant to such directions a formal scheme
has been formulated by GPCB. Petitioners have been filing necessary
environment audit reports periodically. In the present petition, it
is however the case of the petitioner that adherence to the said
requirement of submitting periodical environment audit reports is no
longer relevant. It is the case of the petitioners that no useful
purpose is being served by filing such reports. Scheme was farmed at
the time when industrial pollution was at its peak. Now that much of
the polluting industries are brought under control, members of the
petitioner Association who are small scale industries, should not be
any longer burdened with heavy cost of providing environmental audit
every year. It is on this premise that present petition is filed
with above-noted prayers.
Replies
have been filed on behalf of GPCB contesting the petition and
insisting that such scheme has been successful in various ways for
controlling the pollution.
On
behalf of the petitioner, learned counsel Shri Vimal Patel submitted
that members of the petitioner No.1 Association are small scale
industries. They cannot afford heavy cost of providing environmental
audit every year. In any case, it is no longer necessary to have
such close monitoring. It is further contended that GPCB had not put
the said data to any effective use till the year 2007. Entire
effort and expenditure in collecting such data therefore, had
failed.
On
the other hand on behalf of GPCB, learned counsel Shri Tushar Mehta
appearing for Ms. Amee Yagnik opposed the petition contending
inter-alia that the data collected through such environment audit
report forms are useful basis for taking corrective measures. GPCB
has been taking all necessary steps and would continue to do so in
future also.
Having
thus heard learned advocates for the parties, first and foremost, we
find that directions for Environmental Audit Scheme were given by
Division Bench of this Court by decision dated 20.12.1996 in Special
Civil Application No.770/1995. It is pursuant to such directions
that petitioners are required to abide by the terms of the scheme
which in turn required filing periodical environmental audit
reports. Granting prayers made in the petition would amount to
modifying or recalling said decision of the Division Bench. No case
for adopting such a course has been made out. Further, we find that
there is nothing before us to suggest that the close monitoring of
pollutant industries is no longer necessary. It is not unknown that
heavy pollution caused through industries particularly engaged in
hazardous substances leave permanent damage on environment, plants,
animals and human beings inhabiting in the region. There is no data
placed before us to suggest that since the Division Bench passed
said decision on 20.12.1996, industries in general have cultivated
maturity and self restrain as on its own volition not to cause any
serious pollution nor has it been demonstrated that GPCB on its part
invariably in all cases performed its statutory functions. Measures
provided by the Bench in the said decision therefore, cannot be
withdrawn or diluted.
Contention
of the petitioners that GPCB has not utilized the data effectively
can hardly be a ground to recall the entire scheme. Firstly, if GPCB
has been inactive and not taken full advantage of the data collected
through such environmental audit, it would be a case for directing
GPCB to take more proactive interest. It would certainly not be a
case for recalling the directions. Secondly, we also find that as
stated in the affidavit dated 24.2.2010 filed by Shri J.K. Vyas,
Environment Engineer, GPCB, at-least from the year 2007 onwards
series of proceedings have been initiated against erring industries
on the basis of data supplied. Such figures are given in tabular
form in the affidavit which reads as follows :
Year
Under
Section 33(A) of the Water Act
Under
Section 31(A) of the Air Act, 1981
Under
Section 5 of the E.P. Act, 1986
Notices
Directions
Notices
Directions
Notices
Directions
2007
794
327
764
69
24
37
2008
631
637
436
59
10
13
Upto
Nov.2009
588
244
627
85
07
09
Additionally,
we also notice that National Environmental Engineering Research
Institute (NEERI for short) has this to say about the scheme :
In
Gujarat State, the GPCB implemented Environmental Audit Scheme as
per the orders of the Hon’ble High Court of Gujarat in 1996. Based
on the evaluation of the environmental audit formats prepared under
the Environment Audit Scheme, modifications have been suggested to
meet the objectives of the environmental audit of industries. In
addition, new formats have been recommended which include,
Proforma
for intimation to conduct an environmental audit of an activity.
Certificate
by an auditor for the analysis of sample parameters.
Additional
information on improvement in effluent/emission quality based on
performance of effluent/emission management system is also
recommended for achieving progress towards cleaner production
activities including retrofitting and proper maintenance of the
system thereby attaining the desired objective of the audit scheme.
Identifying major hurdles faced during the operation of
effluent/emission management systems and remedial measures taken
thereof are included in the scheme. Altogether, the scheme has
strengthened the environmental management and pollution control in
the industrial sector of the Gujarat State.
The
necessity of environmental audit is to make the industry realize the
impact of its activity and ensure mitigation of the impacts on
environment. Hence, environmental auditing for the industries needs
to be continued in the interest of environmental protection and
society at large, thereby attaining sustainable development. The
scheme should not only be restricted to the State of Gujarat but can
also be adopted by other states across the country to acquire the
benefit of the scheme for compliance with environmental laws and
meeting the environmental challenges. Thus benefits gained through
implementation of this scheme can be taken advantage of, for
sustainable development in the country.
In
the result, no case for granting prayers is made out. GPCB is
however directed to take all necessary follow up steps on the basis
of audit reports to control environmental pollution. This of-course
would be in addition to its ordinary function and duties flowing
from statutory powers and responsibilities. GPCB shall also ensure
that the data collected through such audit reports does not collect
dust in the archives of its office but is put to meaningful use for
understanding the environmental impact for which main purpose scheme
was envisaged by this Court.
The
petition is disposed of accordingly. Rule is discharged.
(S.J.
Mukhopadhaya,C.J.)
(Akil
Kureshi,J.)
(raghu)
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