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Judgment
N. Nagaresh, J.
This review petition is one arising from W.P.(C) No.31326 of 2022. The writ petitioner has filed the review petition. The writ petition was filed by the petitioner aggrieved by Ext.P11 order in OA No.262/2020 of the National Green Tribunal, Southern Zone, whereby the petitioner was restrained from operating its industrial unit from 10 pm to 6 am.
The 4th respondent, which is an organisation formed to protect environment and ecology filed OA No.262/2020 before the National Green Tribunal, aggrieved by the noise pollution caused on account of the petitioner's industrial unit manufacturing plastic woven fabrics and flexible packaging materials in Onakkoor Village of Muvattupuzha Taluk in Kerala. The prayer made by the 4th respondent in the OA was to direct the Kerala State Pollution Control Board to issue necessary directions to the 3rd respondent for the installation of proper tamper free equipment for the online measurement of noise level generated from the industrial unit of the 3rd respondent for the effective implementation of the Noise Pollution (Regulation and Control) Rules, 2000 with complete access for seeing the data by the general public including the 2nd respondent.
The National Green Tribunal in its Ext.P11 judgment came to the conclusion that there is some necessity for providing restriction of operation of the unit and allowing the unit to work day and night is likely to cause health hazard in that locality. So, we feel that the 3rd respondent unit has to be restrained from operating the unit between 10 pm and 6 am. Consequently, the OA was disposed of inter alia restraining the petitioner from operating the industrial unit from 10 pm to 6 am applying the “precautionary principle” and also considering the health of the people who are likely to be affected due to the possible sound pollution that is likely to be caused on account of the petitioner's unit.
Aggrieved by Ext.P11 order, the petitioner in this review petition filed W.P.(C) No.31326/2022. This Court considered the writ petition and found that the petitioner holds all requisite statutory licences, permits and consents to run the manufacturing industry for production of polypropylene. This Court noted that the Tribunal has found that the State Pollution Control Board had conducted noise level test and submitted a report wherein it was noted that the sound level was above 70 dB(A). The Tribunal has found that there is necessity for providing restriction of operation of the unit during night hours. Therefore, Ext.P11 order does not suffer from any error and the Tribunal rightly restricted night time operation of the petitioner's industrial unit.
The petitioner has now come up with the review petition alleging errors apparent on the face of the records of the case. Finding prima facie case in the facts projected by the review petitioner, this Court passed an interim order dated 20.01.2023 staying the operation of the judgment dated 10.01.2023 in W.P.(C) No.31326 of 2022 and of the judgment dated 26.09.2022 in OA No.262/2020 of the National Green Tribunal.
The counsel for the review petitioner argued that this Court has affirmed the judgment of the Tribunal imposing restriction on working hours on the premise that the Pollution Control Board suggested for limiting of the working hours of the unit. In fact, the Board had not made any such recommendation before the Tribunal. The counsel further argued that the restriction imposed by the Board was confined to stone crusher units and quarries only and was not applicable to woven bag manufacturing units like the petitioner.
The 4th respondent, who is the applicant before the Tribunal, entered appearance and resisted the review petition. The 4th respondent submitted that if the judgment of the National Green Tribunal contained any error as is now urged before this Court, the petitioner ought to have filed a review petition invoking Section 19(4)(f) of the National Green Tribunal Act, 2010. A writ petition under Article 226 was not the remedy. The writ petition was rightly dismissed by this Court. The petitioner still has the remedy of review before the Tribunal open.
The counsel for the 4th respondent submitted that the industrial unit of the petitioner does cause considerable sound pollution beyond the permissible limits. Therefore, the 4th respondent had prayed for online monitoring of the pollution levels of the petitioner's industrial unit. The Tribunal taking into consideration the entire facts and circumstances of the case, restrained the petitioner from running the unit during night time. The review petition is misconceived and it is liable to be dismissed.
I have heard the learned counsel for the review petitioner, the learned Standing Counsel for the 1st respondent, the learned Government Pleader representing the 2nd respondent, the learned Deputy Solicitor General of India representing the 3rd respondent and the learned counsel appearing on behalf of the 4th respondent.
The prayers made by the 4th respondent in the OA were as follows:-
(i) To direct the Kerala State Pollution Control Board to issue necessary directions to the 3rd respondent for the installation of proper tamper free equipment for the online measurement of noise level generated from the industrial unit of the 3rd respondent for the effective implementation of the Noise Pollution (Regulation and Control) Rules, 2000 with complete access for seeing the data by the general public including the 2nd respondent;
(ii) To issue proper directions to the 4th respondent to issue proper authorisation or make proper changes for the implementation of the Noise Pollution (Regulation and Control) Rules, 2000 by issuing proper authorisation to launch prosecution to take congnizance of offences under Section 19 of the Environment (Protection) Act, 1986.
(iii) To direct the 2nd respondent to take proper steps required under law for the implementation of the Noise Pollution (Regulation and Control) Rules, 2000 including passing of prohibitory orders to stop the generation of noise, launching of complaint, seizing of equiqments and other steps in accordance with law against the 3rd respondent unit and its officers responsible;
(iv) Pass such other orders or direction which this Hon'ble Tribunal may deem fit, proper and necessary in the circumstances of the case for the effective implementation of Noise Pollution (Regulation and Control) Rules, 2000.
The Tribunal in paragraph 43 of Ext.P11 order found as follows:
Subsequent report filed by the State Pollution Control Board dated 18.06.2021 will go to show that the sound level was within the permissible limit after providing additional control measures for abating the noise level by the unit. They also suggested for limiting the working hours. Further, it is seen from the report that there was some noise pollution caused on account of the operation of the unit and directions were issued by the Pollution Control Board to abate the same and after compliance of the directions, the sound level has been brought down. But, as observed by the Pollution Control Board, there is some necessity for providing restriction of operation of the unit and allowing the unit to work day and night is likely to cause health hazard in that locality. So, we feel that the 3rd respondent unit has to be restrained from operating the unit between 10 pm and 6 am.
The contention of the petitioner is that the State Pollution Control Board had not suggested limiting the working hours. The Tribunal found that there was noise pollution caused by the operation of the unit and directions were issued by the Pollution Control Board to abate the same. The Tribunal found that the Pollution Control Board has made observations regarding necessity for providing restriction of operation of the unit and that allowing the units to work day and night is likely to cause health hazard. It was with these findings that the Tribunal held that the petitioner's unit has to be restrained from operating the unit between 10 pm and 6 am.
The counsel for the 4th respondent submitted that the Tribunal happened to arrive at the afore conclusion based on an erroneous submission made on behalf of the Pollution Control Board.
In fact, a perusal of Ext.P10 report filed by the Environmental Engineer, Kerala State Pollution Control Board before the Tribunal would show that the Board insists time regulation for operation of stone crusher units and quarries only and the permitted operational timing for the above two activities is 6 am to 6 pm and that no other time restriction is insisted in the area in which the petitioner's unit is functioning. The industrial unit of the petitioner is neither a stone crusher unit nor a quarry.
It is evident from the judgment dated 10.01.2023 in W.P.(C) No.31326/2022 that this Court proceeded as if the restrictions on operational timings insisted by the Pollution Control Board for the operation of stone crusher units and quarries would apply to the woven bag manufacturing unit of the petitioner. This obviously is an error in the judgment. But, at the same time, I find that the said error is seen reflected in Ext.P11 judgment of the Tribunal also. If that be so, the right remedy for the petitioner is to file a review petition invoking Section 19(4)(f) of the National Green Tribunal Act. A writ petition would not be an appropriate remedy, in the facts and circumstances of the case.
Therefore, it would be only appropriate that the petitioner is permitted to approach the Tribunal by filing review petition against Ext.P11 judgment. If the petitioner makes such a review petition, obviously, in considering filing delay of the review petition, the period during which the petitioner was prosecuting W.P.(C) No.31326 of 2022 and R.P. No.98 of 2023 before this Court should stand excluded treating that the petitioner was bona fide prosecuting its case in a wrong forum.
In the facts of the case, the review petition is allowed and the writ petition is dismissed, at the same time permitting the petitioner to invoke Section 19(4)(f) of the National Green Tribunal Act. In order to permit the petitioner to invoke the review remedy and since the petitioner's unit is a running industrial unit, the benefit of the interim order dated 20.01.2023 passed by this Court in the review petition will stand extended for a period of one month from today.