Additional Ambernath Manufactures Association vs Maharashtra Pollution Control Board And Ors

This Appeal has gained access to this Tribunal under Ss. 16 and 18 of the National Green Tribunal Act, 2010. For brevity it shall be referred to as the Act.

The Appellant M/s Additional Ambernath Manufactures Association (AAMA) has assailed the order passed by the Maharashtra Pollution Control Board (MPCB) dated 2nd July, 2016, acting under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974, to forthwithshut down and refrain from running the Central Effluent Treatment Plant (CETP) at Taluk Ambernath, district Thane.

Consequent to issuance of the said order under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974, the Appellant had perforce stopped running of CETP.

Being aggrieved by it, this Appeal is preferred. Several grounds are urged, as detailed in the prayer column of the Appeal, but the principal prayer is against the order dated 2 ndJuly, 2016 as being opposed to and against the principle of natural justice etc. Incidental reliefs are also sought to permit running of CETP pending consideration of Appeal and directions to the Respondents to grant consent to run CETP.

Upon issuance of Notice Mr. S. S. Sanyal, learned Counsel entered appearance for MPCB.

We have heard substantially learned Counsel for the Appellant as also Mr. S.S. Sanyal for MPCB. We have perused the records made available.

From the material propositions in the Memoranda of Appeal and the facts not controverted by the pleadings of the parties brings to surface that CETP was established at Ambernath by MIDC after obtaining consent of MPCB. MIDC in turn entered into tripartite agreement with a private contractor named M/s Ambernath MIDC, CETP Co. Pvt. Ltd, division of Bharat Udyog Ltd. Upon entering into the tri-party agreement with MIDC the said contractor has applied to financial institutions and has raised funds on the security of CETP. He commenced operation of CETP under the consent obtained from MPCB as seen from Annexure-A/12 dated 25.5.2016. Additional consent and authorization under provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 from MPCB.

However, after running CETP for some time M/s Ambernath MIDC, CETP Co. Pvt. Ltd abandoned operation of the CETP. Thereafter, MIDC transacted with the Appellant and handed over charge of CETP for its effective functioning.

During working of CETP by the Appellants, the officers of MPCB inspected and found that CETP was not working as is required and thus, issued Show cause Notice dated 25.5.2016 (Annexure-A/12), to M/s Ambernath MIDC, CETP Co. Pvt. Ltd to show cause as to why an order should not be passed to stop running of CETP and as to why competent Authority shall not be directed to disconnect water, electricity supply to CETP. The show cause notice was not issued to the appellant.

It appears M/s Ambernath MIDC, CETP Co. Pvt. Ltd did not respond to the Notice, consequent to which MPCB has issued a closure order dated 27.2.2016 under NO.MPCB/JD(WPC)/CD/TB-2647 dated 2.7.2016 to the Appellant herein.

The Appellant's grievance is that the Notice of Show-cause dated 25.5.2016, Annexure-A/12, referred to above, was issued to the contractor i.e. M/s Ambernath MIDC, CETP Co. Pvt. Ltd, who had obtained the contract to run CETP from MIDC and who was the recipient of the consent and authorization. Since the present, the Appellant is running it. If at all, MPCB had to take any action they should have first complied with the mandatory provisions and issued notice to the appellant. Failure to follow procedure has resulted in failure of justice by arbitrary resulting in closure order.

Much has been made of non-application of mind by the officers of MPCB in issuance of the impugned order without hearing the Appellant in this Appeal.

When confronted with this fact, Mr. Sanyal did raise certain grounds amongst which he contends that MIDC is recipient of the authorization from MPCB and by internal arrangement with the Appellant allowed it to run CETP.

Mr. Sanyal would submit that MPCB is concerned about running of CETP properly and not as to who is presently in-charge. He would submit that even assuming that MIDC is authorized consent holder and had to answer, the MPCB is to justify the initiating of an action against the occupier/person in charge, who is running CETP as permissible in law. He refers to the provisions of Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and 31A of Air (Prevention and Control of Pollution) Act, 1981.

Though at the first look these grounds may appear reasonable and worthy of acceptance, but facts of this case are quite different. No doubt the provisions of Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and 31A of Air (Prevention and Control of Pollution) Act, 1981 makes it clear that the Board is empowered to issue directions as may be deemed necessary to the occupier/ person in charge, who is responsible for running of the industry/CETP but the point for consideration in this case is whether the order impugned has preceded with the show cause notice to the appellant. For clarity the provisions of Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and 31A of Air (Prevention and Control of Pollution) Act, 1981 are extracted below.

Section 33A POWER TO GIVE DIRECTIONS

Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions.

Explanation.-For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-

(a) the closure, prohibition or regulation of any industry, operation or process; or

b) the stop stoppage or regulation of supply of electricity, water or any other service.

In light of the unambiguous language of Provisions extracted above it is to be held that even though the Board has the power to issue any direction in writing to any person, officer/Authority and such person, Officer/Authority shall be bound to comply with such directions, but when it comes to the question of issuing a show cause notice, the Board has issued show cause notice to a different person and issued direction under Section 33A of Water (Prevention and Control of Pollution) Act, 1974 to a different person i.e. the appellant. In the instant case, it is not disputed that the notice calling for explanation was issued by the MPCB to M/s Ambernath MIDC, CETP Co. Pvt. Ltd. division of Bharat Udyog Ltd. but not to the appellant who was running CETP in question. Thereafter the appellant which is named as Additional Ambernath manufactures Association has taken over running of the CETP. It is material to note that order impugned has been issued by the MPCB to the appellant, namely, Additional Ambernath manufactures Association where as a show cause notice was issued to M/s Ambernath MIDC, CETP Co. Pvt. Ltd. both are different entities. It is in this context we hold that even though the Board is empowered to invoke the power under Section 33A of Water (Prevention and Control of Pollution) Act, 1974 and Section 31A of Air (Prevention and Control of Pollution) Act, 1981 to issue directions under Water and Air Act to person indicated in the sections. This is because it amounts to non-grant of reasonable opportunity and violation of principle of natural Justice.

This is essential as the provision of Section 26, is the provision under which permission to grant authorization to run CETP is being granted.

Section 33A of the Water Act and 31A of the Air Act require the person in-charge of running of the industry, to be answerable. In the instant case, CETP is the property of MIDC, it has to run CETP. It had entered into an agreement with the private contractor namely; i.e M/s Ambernath MIDC, CETP Co. Pvt. Ltd. Therefore, he applied to 1st Respondent and obtained authorization. Consequently, he was the person concerned who was granted consent to run CETP and was responsible. Therefore, if any contravention or that non-functioning of CETP was noticed, he was bound to answer. But MIDC in its wisdom has allotted contract to run it to the present Appellant. First of all, the present Appellant not being authorized person to run could not have run CETP. For all intent and purposes, the Appellant cannot be treated as Applicant under Section 26 of the Water Act for running CETP. However, as occupier and person in charge of running CETP had to answer the Board. But as the Board has failed in issuing Notice of Show cause, directly impugned order could not have been passed. The order impugned which is questioned in Appeal has not provided opportunity to the Appellant as to why Show cause Notice was issued to the former contractor, who was recipient of authorization. In the circumstances, we find that the impugned order is initiated and cannot be sustained and is liable to be set aside and quashed. Accordingly, we set aside and quash the said order.

However, we reserve liberty to the Board to take steps as law permits as Appellant is running CETP under Section 26 and consequently, if there is any improper functioning the Board is entitled to exercise its delegated powers. With these observations, the appeal succeeds. The order dated 2nd July, 2016 is quashed, reserving liberty to the Board as aforesaid.

In the circumstances, we dispose of the Appeal making no order as to costs.

Pending Application, if any, stands disposed of.