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Judgment
O.A No.41/2015/EZ was preferred by one Aswini Kumar Dhal of Jakhapura, District Jajpur, Odisha seeking for directions against Odisha State Pollution Control Board, the District Collector, Jajpur District, various East Coast Railway Authorities, etc., for illegal operation of a Railway Siding/Stack Yard in Jakhapura Railway Station causing severe air and water pollution in the locality to the detriment of health and economy of the people of the area. The O.A was ultimately disposed off vide judgment dated 25th May, 2016 holding the Odisha State Pollution Control Board (in short PCB), the District Collector, Jajpur and the East Coast Railways culpable with directions for initiating certain actions against them and for payment of penalty by the Railways.
Although both the RAs are connected and arise out of the same OA No.41/2015/EZ, we will deal first with RA No.107/2016/EZ which involves a very limited issue.
R.A. No.107/2016/EZ
By filing the present application, the applicant who is presently the District Collector of the Jajpur district of Odisha against whom some of the directions had been issued, has sought for a review of paragraphs 33 and 34 of the judgment passed on 25th May 2016 in OA No.41/2015/EZ.
The observations as directed against him are reproduced below.
"33. By the same order dated 18.01.2016, we directed the District Magistrate and Collector, Jaipur, to explain on oath the power vested in him under the Air Act, 1981 to issue direction to the Regional Officer, PCB to allow the railway to continue with their Loading and Unloading activities pending the grant of consent. The submissions made in the reply affidavit at page 320 of O.A to the queries from the Bench are as follows :-
i) The collector has no power to issue direction under the law. He has only to give no objection for the purpose of grant of consent to establish.
ii) The Collector has not directed‟ but had only requested‟ the RO.
iii) The letter of the Collector was never acted upon by the State Pollution Control Board which was a mere recommendation having no effect unless it was approved and acted upon by the Authority concerned.
The explanation given in the affidavit obviously is contrary to the contents of the letter dated 16.03.2015 as would be apparent from a bare reading of the letter extracted earlier. It is difficult for us to accept that a District Collector, who presumably is a senior officer in the IAS cadre, is unable to distinguish between the words directed‟ and requested‟. ......."
Appearing for the applicant, it was submitted by Mr. S.P. Mishra, Learned Advocate General for the State of Odisha, that while arriving at the impugned observations, the Tribunal had erroneously relied upon an affidavit which had been withdrawn that, according to him, would be apparent from paragraphs 33 and 34 of the judgment supra.
It is submitted that vide order dated 29.02.2016, as permitted by the Tribunal, affidavit dated 02.02.2016 filed in compliance to order dated 18.01.2016, had been withdrawn with leave to file a fresh one and the matter was finally heard on 06.05.2016 after a short notes of arguments were filed on 30.03.2016. The Learned Advocate General thus urged that it was quite evident that the aforesaid observations and findings of the Tribunal were clearly in conflict with the records and, therefore, undeniably was an error apparent on the face it.
Without going into the facts for the sake of brevity, we find substance in the submission of the Learned Advocate General that our findings in paragraphs 33 and 34 of the judgment extracted above were based upon the averments contained in the affidavit dated 02.02.2016 which had stood withdrawn and, therefore, we have no hesitation in setting aside those directed against the present District Collector ,the Applicant in RA. No.107/2016/EZ as being error apparent on the face of the record.
Thus the Review Application No. 107/2016/EZ stands allowed to this extent and disposed off.
R.A.No. 106/2016/EZ
The applicant in the Review Application was the District Collector, Jajpur District, at the material time, who seeks for a review of paragraph 31,38(b) and 39 I (i) of the judgment dated 25th May, 2016 in O.A No. 41/2015/EZ whereby the Tribunal had made certain observations and issued directions for action to be initiated against him. For the sake of convenience we may reproduce those paragraphs herein below :-
"31. While issuing the direction, the District Magistrate has not disclosed the source of the power under which he could issue such direction. In any case, such a direction could not have been issued as the activity of siding/stackyard, as already discussed, cannot be carried on without prior consent of the Board, being mandatory under the Air and Water Acts. Thus, direction of the District Magistrate issued upon the Regional Officer to allow operation of the siding unit pending grant of "consent to operate certificate" is bad in law and by doing so the District Magistrate has unmistakably exercised a jurisdiction, which he did not have"
...
(b) The District Magistrate, Jajpur, has misused his power in directing the Regional Officer, State Pollution Control Board, to allow loading/unloading and transportation of raw materials at the railway siding in the absence of consent to operate from the Board".
For the Reasons stated above we direct as follows:-
I (i) The Govt. of Odisha through the Chief Secretary shall seek appropriate explanation from the District Magistrate, Jajpur ,for his misconduct in interfering with the functioning of the State Pollution Control Board and take suitable penal action against him.
The primary case of the applicant is that an error apparent on the face of the record had crept in while holding the above views having overlooked orders dated 29.02.2016, 30.03.2016, 06.05.2016, affidavit dated 22.03.2016 filed by the incumbent District Collector and written notes of arguments dated 06.05.2016. It is stated that had these been taken note of, the Tribunal would not have come to the impugned findings. Heard the Learned Advocate General, carefully considered the pleadings, the documents filed with the review application and perused the records.
Heard the ld. Advocate General, carefully considered the pleadings ,the documents filed with the review application and perused the record.
We are not inclined to accept the contention of the applicant that while passing the judgment we have overlooked the orders dated 30.03.2016 and 06.05 2016 as well as the written notes of arguments. It is pertinent to note that the fresh affidavit for which leave had been granted vide order dated 29.02.2016 after the one dated 02.02.2016 had been permitted to be withdrawn, was not filed by the Respondents No. 2 and not taken on record in the OA even as on 06.05.2016 when the matter was finally heard. In the circumstance, we shall proceed as if no affidavit had at all been filed by the Respondent No. 2 in compliance of the order dated 18.01.2016 by which the Respondent No. 2, the District Magistrate, Jajpur, was directed to do so on the source of his power under the Water Act, 1974 the Air Act, 1981 and to issue letter dated 16.03.2015 directing the Regional Officer, State Pollution Control Board, to allow loading and unloading operation of minerals at Jakhapur Railway Siding.
We, however, find that even after having expunged the impugned portion of the Judgment in the manner aforesaid, the position clearly does not get altered in as much as the letter of the District Magistrate dated 16.03.2015 issuing the directions does not get obliterated. The fact that the State Pollution Control Board carried out inspection on 25.03.2015 subsequent to the date of the letter of the District Magistrate and, that after the inspection, one of the considerations for recommending operation of the railway siding was that letter, indisputably establish that the Board was influenced by the direction issued by the District Magistrate vide his letter dated 16.03.2015 in firstly, carrying out the inspection by the State Pollution Control Board and secondly, in making the consequential recommendation which led the Board to permit operation of the siding, a red category industry, even when the application of the Railways for consent to operate was still under consideration and was yet to be granted by the Board. This was precisely what we had expressed in paragraphs 35, 36 and 37 of the judgment.
We also had found the inspection carried out on 25.03.2015 and the recommendations made consequential thereto quite incongruous to the reports on the inspection of the Board carried out earlier whereby the railway siding was found to be grossly non-compliant and the ones carried out subsequent to the revocation of the closure order by the Board as would be revealed by the following portions of paragraph 19 and paragraph 20 of the judgment:
"19. .....
(viii) Since show cause reply did not contain information on the project report and the existing pollution control measures adopted, an inspection of the railway siding was carried out 27.02.2015 during which, it was found that Respondent No.3 had not adopted any pollution control measures to arrest the dust generated by the unloading of raw materials. Thus, that the Regional Officer issued a letter dated 04.03.2015 directing the Respondent No.3 to stop the activities.
(ix) In response to the letter dated 04.03.2015, the Respondent No.3 in his letter dated 11.03.2015, while admitting that the railways had not obtained necessary consent from the State Pollution Control Board, informed the Regional Office that the work of unloading and loading at the Jakhapura Railway siding had been stopped from 07.03.2015 and , requested for one month‟s time for holding " Palli Sabha" for the purpose of obtaining NOC.
(x) Inspection carried out by Regional Office on 25.03.2015 found the Respondent No.3 in full compliance of the statutory requirements and had also proposed to adopt more pollution control measures and even the District Administration. Jajpur, had made a request to the Regional Office to allow the Respondent No.3 to operate the railway siding.
(xi) In view of the recommendation contained in the inspection report, the State PCB considered its earlier decision and revoked the direction of closure issued vide letter date d04.04.2015;
(xii) Since Regional Office of the Board have been directed to monitor the progress of implementation of the pollution control measures, inspection of the site was carried out by the officers of Regional Office on 30.05.2015 and 25.6.2015 and found that the pollution control measures installed earlier based upon which the inspection report dated 25.03.2015 had been submitted, had been removed and the status of pollution control measure adopted by the unit unsatisfactory. Show Cause notice was thus issued again to the Respondent No.3 vide letter dated 07.07.2015 as to why direction of closure under Section 33A of Water (PCP) Act 1974 and Section 31A of the Air (PCP) Act 1981 be not issued."
The aforesaid sequence of events set out in the affidavits filed by the State Pollution Control Board narrated above, in our view, demonstrates the indifference of the railway and their deliberate defiance of the laws and also the disdain with which they treat statutory authorities."
From the above facts and circumstances, we find it difficult to be persuaded to accept the contentions to the contrary advanced on behalf of the applicant, the former district Collector of Jajpur District.
On 29.08.2016, a supplementary affidavit was filed by the applicant seeking condonation for the omissions and commissions on his part by explaining the circumstances under which the letter date 16.03.2015 was issued by him as would appear from the following portions of the affidavit:
That, it is submitted that the Applicant has no intention either to violate the provisions of Air (Prevention and Control of Pollution) Act, 1981 or to violate the provisions of Water ( Prevention and Control of Pollution) Act, 1974 or to violate the provisions of Environmental Protection Act, 1986 or to interfere with the functioning of the Odisha State Pollution Control Board. The letter No.89/Res, dtd.
03.2015 (Annexure-A/11) issued by the Applicant to the Regional Officer, State Pollution Control Board, Odisha, Kalinga Nagar, Jajpur was to defuse the mounting tension in the area, to avoid law and order situation in the locality and not to interfere with the functioning of Odisha State Pollution Control Board. At the cost of repetition, the Applicant most humbly submits that the Applicant has neither the intention to interfere in the functioning of the Odisha State Pollution Control Board nor to compromise the environmental norms. The deponent begs apology for the inadvertent mistake committed in issuing the letter dtd. 16. 03.2015. The Applicant shall be careful in not repeating such things in future.
That, it is further submitted that the Applicant has a long way to go in his Service Career and unless the observations/conclusions/directions contained in Paragraphs- 31, 38(b) and 39 I (i) in respect of the Applicant is concerned, are modified/deleted /reviewed, the Applicant will suffer irreparable loss and injury, which cannot be compensated in any manner."
The Learned Advocate General also strongly urged and made a fervent plea for taking a lenient view of the matter in consideration of the facts and circumstances set out by the applicant in the supplementary affidavit.
After having given our thoughtful consideration to the above, we are of the opinion that interest of justice will be served if direction 39 (I) (i) is appropriately modified which we direct shall read as follows:
"39. For the reasons stated above we direct as follows:
I (i) Since the action of the former District Magistrate, Jajpur District,Mr.Anil Kumar Samal in issuing the direction contained in the letter 16.03.2015 to the Regional Officer, State PCB, prima facie amounts to interference in the functioning of the State Pollution Control Board, the Chief Secretary, Government of Odisha, shall call for explanation from him as to the circumstances under which it was written and, after consideration of the explanation, initiate appropriate proceedings if deemed necessary and if the circumstances so call for ".
In the result, the Review Application stands allowed in part and disposed off.
No order as to cost.