Abraham Thomas vs Union of India And Ors

This application raises an important issue relating to the application of Water (Prevention and Control of Pollution ) Act,1974 and Air (Prevention and Control of Pollution) Act, 1981 particularly by the Kerala State Pollution Control Board.

Even though the learned counsel appearing for the respondents 1, 2, 4 and 5 sought permission to file reply, with the consent of the learned counsel appearing on both sides, the application is taken up for final disposal. We have heard elaborately the arguments of the learned counsel appearing on both sides.

The applicant, who is stated to be a neighbour to the 5th respondent, has filed this application seeking for a permanent injunction against the 5th respondent from constructing a five storeyed building viz. Hotel and Lodging House at Survey No.22/2 - 3, Kumily Village, Idukki District and also for a direction against the authorities to take appropriate action against the 5th respondent for carrying on illegal construction.

According to the applicant, the 5th respondent has proceeded to put up construction of a building for hotel and lodging house at the above said place withoutobtaining "Consent to Establish" from the Kerala State Pollution Control Board (Board). The applicant has stated that the Board having found that the 5th respondent has been unauthorisedly putting up construction without any "Consent to Establish" has in fact directed the 5th respondent to stop construction in their letter dated 11.11.2014. However, for reasons best known to the Board, the said order came to receded by a subsequent communication by letter dated 11.12.2014. According to him, taking advantage of the above order, the 5th respondent is said to have put up construction unauthorisedly. Therefore, the applicant's case otherwise is that the 5th respondent has not followed the provisions of Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 in getting "Consent to Establish" then proceed to comply with the condition and afterwards applying for ''Consent to Operate'' and only after getting ''Consent to Operate'' the operations of the 5th respondent for construction of building should have been effected.

Per contra, it is the case of the 5th respondent that while it is true that the 5 respondent did not apply for ''Consent to Establish'', the Board having known about the putting up of construction has indirectly permitted the said construction by an order dated 11.12.2014 by receding the earlier stop work order. The 5th respondent has however stated that the construction is not for a five storeyed building and only basement and three storeyed building. According to 5th respondent, the place is not situated within the buffer zone and therefore it is not prohibited under the Forest Conservation Act and the siting criteria will not apply. It is also stated that during the time when notice was given on 11.12.2014 by an application dated 28.11.2014 the 5th respondent has applied for "consent to operate" straightaway to the Board'.

The 3rd respondent viz., Kerala Pollution Control Board has stated that on 29.10.2014 on receiving a complaint dated 21.10.2014, an inspection was made and it was found that the construction work was going on during late night. After finding out that the 5th respondent has started construction work without obtaining "Consent to Establish", the Board has immediately directed the 5th respondent to stop further work. It is further stated that on 28.11.2014, the 5th respondent has applied for "Consent to Operate" to the Board and during enquiry it was found that the house was located at a distance of 9.65 meters from the resort building and the nearest house is located at a distance of 2.85 meters. In the inspection made on 03.09.2015 it was found that the construction work of the building was found already completed. It is also stated that the facilities for collection and treatment and disposal of wash water and sewage generated were not provided and the matter has been referred to the Chief Environmental Engineer of the Board and "Consent to Operate" is not so far issued to the 5th respondent.

Mr.Kamalesh Kannan, learned counsel appearing for the applicant would submit that this a classic case wherein the 5th respondent has been allowed to proceed with the construction even without ''Consent to Establish'' which is against the law. In all fairness, the Board at least after coming to know about the illegal construction put up by the 5th respondent without obtaining the "Consent to Establish", should have taken appropriate action. On the other hand, the Board has been lenient and steps have been taken on the 5th respondent while completing the construction.

On the other hand, it is the case of the learned counsel appearing for 5th respondent that in fact the 5th respondent has made application for "Consent to Establish" on 21.11.2014. Moreover, the letter dated 21.11.2014 of the 5th respondent addressed to the Environment Engineer of Board, Idukki specifically states that the application for "Consent to Establish" is for construction and erection of ETP as per the norms of the Board and it is not an application filed for the purpose of "Consent to Establish" for the project of the 5th respondent. The learned counsel would further submit that the 5th respondent has not yet completed construction, however, he is proceeding with the construction and he will abide by the directions given by the Board and operation of the building will be carried out only after appropriate order for ''Consent to Operate'' is granted by the Board.

The learned counsel appearing for the Board has submitted that after inspection of the place it was found that the establishment of the 5th respondent comes under "orange'' category and not under "red'' category and construction is almost completed and the Board has taken a lenient stand as no useful purpose will be served to direct the demolition of the building at this stage and therefore steps are being taken by the Board to scrupulously implement the various requirements to be complied with by the 5th respondent under the Air (Prevention and Control of Pollution) Act,1981 and Water (Prevention and Control of Pollution) Act, 1974 before ''Consent to Operate'' order is issued.

After hearing the arguments for both these sides, a startling point revealed in this case is that the Board has not followed the procedure as prescribed under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974. The said Acts contemplate that the project proponent makes an application at initial stage for "Consent to Establish" and after satisfying the citing criteria and other initial requirements, the project proponent shall be allowed to proceed and the Board gives "Consent to Establish" subject to fulfilment of certain conditions. Thereafter, after the conditions are complied with by the project proponent, the project proponent makes an application for "Consent to Operate" and after such application is received, inspection once again shall be carried out by the Board to find out as to whether the conditions of "Consent to Establish" have been fulfilled. It is only after the satisfaction of the Board that the conditions are complied with, the Board passes orders in the "Consent to Operate" application. It is only after granting ''Consent to Operate'' the project proponent is permitted to proceed with its activities. Therefore, it is clear that without obtaining "Consent to Establish" no project proponent shall proceed with any part of the function of the project, including putting up any construction.

In the present case, much against the provisions of law, the 5th respondent has put up construction and thereafter makes an application for "Consent to Establish" on 21.11.2014 for the purpose of putting up of ETP plant. It is unfortunate that even after the Board came to know that the building has been constructed by the 5th respondent without "Consent to Establish'', the Board has not taken any strict action against 5th respondent either pulling down the construction or to resort to any other remedy available under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974. It is informed that the Board has taken action under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 and imposed a penalty of Rs.50,000/- on the 5th respondent and the same has been paid.

Considering the above said factual matrix, even though fait accompli situation is created by the conduct of the 5th respondent as well as the conduct of the Board, taking note of the fact that the proposed activities of the 5th respondent is of ''orange'' category, we are of the view that a direction to pull down the construction will not serve any useful purpose. Therefore, we direct that the Board shall give suitable direction to the 5th respondent to make necessary application for ''Consent to Establish'' in accordance with law and the said application shall be scrutinised by the Board and pass appropriate orders, including conditions to be followed to enable the 5th respondent to apply for ''Consent to Operate''. We make it clear that after the 5th respondent complies with those directions, it is open the 5th respondent to make necessary application for ''Consent to Operate'' and on physical verification thereafter it is for the Board to pass appropriate orders on the ''Consent to Operate'' application in the manner known to law. It is only after such ''Consent to Operate'' order is granted the 5th respondent shall proceed with its activities.

Another issue raised in this case is that the building has been put up in the buffer zone. Even though the same is disputed by the learned counsel appearing for the 5th respondent, we make it clear that the Board, while considering the application for ''Consent to Establish'' shall make necessary orders directing the 5th respondent to obtain appropriate NOC from the Forest Department to ascertain whether the building falls under the buffer zone or not and NOC shall also be considered by the Board for the purpose of granting ''Consent to Establish''.

Taking note of the fact that the 5th respondent has also not followed the provisions of law and proceeded with the construction, we are of the view that in addition to the penalty which is stated to have been imposed by the Board under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, the 5th respondent shall be directed to pay a further amount to the Board which shall be kept as Environment Protection Fund by the Chairman of the Kerala State Pollution Control Board to be used only for the purpose of environmental protection activities in Idukki District.

Accordingly the 5th respondent shall deposit an amount of Rs.1,00,000/-(Rupees One Lakh) with the Board which should be specifically kept in an account called Environment Protection Fund to be maintained by the Chairman of the Kerala State Pollution Control Board and to be used for environment protection in the Idukki as per the decision taken by the Chairman of the Board. The above said amount shall be paid along with application for ''Consent to Establish'' when such application is filed by the 5th respondent with usual fees..

With the above direction the application stands disposed of.