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Judgment
These appeals have been preferred by the Kerala State Pollution Control Board (KSPCB) against two orders of the Appellate Authority dated 15.03.2019, one under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (Water Act) and the other under the provisions of the Air (Prevention and Control of Pollution) Act, 1981 (Air Act).By both the said orders, identical Circulars of the KSPCB dated 17.03.2017 (one under the Water Act and one under the Air Act) categorising certain activities of industries as 'Red', 'Orange', 'Green' and 'White' have been set aside on the ground that the same are more stringent than the categorization made by the CPCB in its directions dated 07.03.2016 under Section 18(1)(b) of the Water and the Air Act.
It will be appropriate to reproduce the directions of CPCB dated 07.03.2016 and the Circulars of the KSPCB dated 31.08.2016 and 17.03.2017, to the extent relevant, which are as follows:-
Directions of CPCB
"1. That the SPCBs and PCCs shall adopt the proposed criteria of categorization of industrial sectors as detailed in table nos. 11,12, 13 and 14 and proposed list of Red, Orange, Green and White categories of industrial sectors presented at table no. G2, G3, G4 respectively, in the final report as attached herewith immediately.
That all pending applications for consideration of Consent to Establish' and 'Consent to Operate' and future such applications shall be processed as per revised criteria.
That the SPCBs and PCCs will provide the list of industries, identified in each category existing in the State while have been considered for grant of consents. SPCBs/PCCs will forward the list of such industries before 31.05.2016 and the same will be uploaded on the website of respective SPCB/PCC.
That the 'Revised Lists of Red, Orange, Green and White category of industrial sectors' shall be used by the SPCBs and PCCs for consent. Management and inventorization of industries under Red, Orange, Green and White categories. Siting of industries shall be only in conforming areas. SPCBs/PCCs shall evolve sector specific plans for control of pollution and industrial surveillance for verifying compliance.
That the SPCBs and PCCs shall revise/ prepare the inventory of Red, Orange, Green and White categories of industries operating in their jurisdiction based on the revised criteria specified in the Final Report and submit the same to CPCB within 90 days i.e. before 30.05.2016 in hard copy as well as soft copy.
That the listed category of industries or those identified later-on under different categories shall not be linked to sanction of loan/finance or bank proceedings.
That any further addition of any new or left-over industrial sector and their categorization which is not listed in the revised list of Red, Orange, Green and White industrial sectors, shall be at the level of concerned SPCB /PCC following revised criteria and guidelines as detailed in the attached document and not concurrence of CPCB shall normally be required. It is further clarified that while categorizing the industries, fractional numbers shall be rounded off to nearest integer.
The SPCBs / PCCs shall acknowledge the receipt of directions and submit the Action Taken Report in compliance with these directions to CPCB before 15.04.2016."
Circulars of KSPCB
"1. The revise classification list attached along with the CPCB direction shall be in force with effect from 1st October 2016. Revised classification list is attached as Annexure I. All applications received on and after 1st October 2016 shall be processed as per the new classification criteria.
Further addition of any new or left over industrial sectors which are not listed in the CPCB's revised list of Red/Orange/White categories shall be categorized based on the relative pollution scoring methodology as enumerated in the final document on Revised Classification of Industrial sectors by a committee constituted as under.
Member Secretary, KSPCB - Chairman
Chief Environmental Engineer-1 Member
Chief Environmental Engineer-2 Member
Environmental Engineer-1, Head Office Convenor
As per the final document on revised categorization of industries there is no necessity of obtaining 'Consent to Operate' for white category of industries. An intimation to the SPCB/PCC shall suffice. So such industries need not be brought under consent preview. But such industries shall required on time registration of the Board which is valid for a period of 15 years, without shifting the location, as decided by the Board in its 199th meeting.
As per the direction of Central Pollution Control Board, revised category list of industries into Red, Orange, Green and White based on the pollution potential was implemented in the State vide Circular No. PCB/T4/115/97(3) dated 31/08/2016. A Technical Committee was constituted to bring those industries under the purview of the Board which were not so far included in the categorization list. The committee prepared a detailed list to be included under different categories based on their pollution potential and recommendations were submitted to the 201st Board meeting for approval. After detailed discussion, Board approved the list with certain modifications. The approved list of industries in Red, Orange, Green and White category is enclosed. The above categorization shall be considered while issuing consent for the industries in the categorization list. The circular shall come in to effect on the date of this circular."
"List of units recommended by the Categorization Committee to include under red/orange/white category
S. No. Items categorized category
1to24 xxx xxx xxx
Flats/ Apartments/ Commercial buildings Orange
(area 2000m2<20,000m2
Industries generating domestic effluent only Orange"
Respondent No. 2 preferred two separate appeals (on account of there being technical by two separate orders under the Water and the Air Act). Respondent No. 2 claims to be confederation of real estate developers in Kerala. The appeals were filed under Sections 28 of the Water Act and 31 of the Air Act. Contention in the appeals was that the direction of the CPCB was to include constructions above 20,000 sqm in 'Orange' category while the KSPCB has expanded the said category to include all constructions above 2000 sqm., which was arbitrary. There was no potential of air and water pollution in small construction projects.
As against this, the stand of the KSPCB was that appeal under Section 28 of the Water Act was maintainable only against an order passed under Sections 24, 25 or 26 of the Water Act. Similarly, an appeal under Section 31 of the Air Act was maintainable against an order passed under Section 21 of the Air Act. The circular of the KSPCB was not such an order. Moreover, the KSPCB could prescribed stricter standards in exercise of power of Environment (Protection) Rules, 1986 (EP Rules). The KSPCB also took the plea that its circular was based on report of an expert Committee dated 17.10.2017. The Committee while giving its report mentioned higher ground water table requiring different technology of STPs, high population density and high rainfall as factors for determining the classes. These factors required oversight of sewage treatment to protect water sources and the ground water level. Huge quantity of untreated water could not be discharged through soak pits in water bodies or on land. The study by the Committee found huge generation of waste affecting ground water and water bodies. BOD load of waste water was high. Foul smell was a problem. This required more stringent norms. The change of category only required compliance of stringent norms and did not otherwise affect any legitimate activities complying with the said norms.
The Appellate Authority held that the Circulars of the KSPCB were not in conformity with the direction issued by the Central Pollution Control Board (CPCB) under Section 18(1)(b) of the Water and Air Acts. It was further held that the Circular fell under Section 24, 25 and 26 of the Water Act dealing with the provisions of consent to operate and corresponding provisions of the Air Act and, therefore, the appeals were maintainable. KSPCB was bound by the directions of the CPCB in view of statutory provision under Section 18(1)(b).
We have heard the learned counsel for the parties.
We directed the Central Pollution Control Board (CPCB) to submit their stand regarding the categorisation made by the State Pollution Control Board (SPCB) which is under challenge. CPCB has filed affidavit supporting the contentions of the SPCB. Reference has been made to para 7 of the direction of the CPCB permitting the SPCB to make any further addition of any new or leftover industrial sector and their categorization. This justified the decision in question of the SPCB. SPCB has power to impose more stringent conditions to prevent the pollution in the State taking into account the pollution index prevailing in the respective State. The impugned categorization made by the SPCB is within its power and it cannot be treated as a violation of any guidelines given by the CPCB under Section 18(1)(b) of the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974.
The SPCB has also filed written submissions reiterating the contention in the appeal. It will be appropriate to quote para 7 from the submissions of the SPCB:
"7. It is respectfully submitted that intention of bringing polluting units under the consent administration is to prevent and control pollution and to maintain wholesomeness of water. The subject under question is the Flats/Apartments/Commercial Buildings having area 2000m2 - < 20,000m2 and its pollution potential. For example, a residential flat having an area of 15,000m2 will comprise around 100 3BHK flats taking the area of one flat as 150 sq.m2. Considering 5 persons per flat, will generate 600 litres per day effluent considering the per-capita demand of 150 liters/day, 80 percentage of which is generated as effluent. The whole flat will generate 600 litre * 100 units = 60,000 litres i. e. 60 KLD. Cluster of flats is common in Kerala due to land scarcity. It is beyond doubt that such regular discharge of huge quantity of effluents without any treatment will affect the environmental system. In order to ensure that the effluents generated will not cause any environmental damage, nothing less than bringing the units under consent regime is possible. As the area and no. of flats increase the condition will worsen and irreparable damage will be the ultimate result. Only because of the grave situation as detailed above the State Board took decision to the bring Flats/Apartments/Commercial Buildings having area 2000m2 - < 20,000m2 under consent purview."
Learned counsel appearing for the second respondent submitted that the appeals are maintainable as it can only be treated as an 'order', though the Circular was issued invoking the power under Section 17 of the said Acts. Further, it cannot be said that the delay cannot be condoned as they are not a party to the proceedings and it starts only from the date of their knowledge. It is further stated that the Circular issued by the appellant including the building activities mentioned therein without conducting any study is arbitrary. Further, when a particular industry has been left over by the CPCB the same cannot be included by the SPCB, applying the Principle of expressio unius est exclusio alterius as has been held in the decision in State of Bihar Vd. Tata Iron and Steel Company Limited reported in (2019) 7 SCC 99 and if there is any conflict between the Central and State legislation, the central legislation will prevail as has been held in the decision in CH. Tika Ramji and Others Vs. State of Uttra Pradesh and Others reported in AIR 1956 SC 676. It is also argued that it cannot be treated as an industry under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 in view of the dictum laid down in the decision in Delhi Pollution Control Committee Vs. Splendor Landbase Ltd , LPA 895/2010.
We have considered all the contentions.
We are in agreement with the stand taken by the CPCB that the re-categorisation made by the SPCB is not violative of the guidelines given by the CPCB. Even as per the Circular, there is a power vested in the SPCB to include any industry which has been left out and the SPCB can impose more stringent condition but cannot relax the conditions imposed by the CPCB in the guideline issued under Section 18(1)(b) of the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974.
We are unable to accept the submission made by Mr. Satish Parasaran, the learned Senior counsel appearing for the second respondent, that the SPCB has no power to impose any conditions or re-categorise the industry against the guidelines given by the CPCB in this regard. The dictum laid down in the decision relied on by Mr. Satish Parasaran, the learned Senior counsel appearing for the second respondent is not applicable to the facts of this case. Principles of interpretation are meant to discover the intention of author of a document. The maxim 'expressio unius est exclusio alterius' considered in State of Bihar V. Tata Iron and Steel Company Limited reported in (2019) 7 SCC 99 is also not applicable. This principle can apply if it can be said that the intention of the document is to exclude something not specified. In the present case the document in question i.e. the circular of CPCB cannot be read as intending to exclude the power of the SPCB to make regulatory regime more stringent when it expressly mentions that the SPCB can do so. The maxim has inherent limitation of applying to a situation where the court, on consideration of overall factors, finds that the intention is to exclude the things not specified. The principles of interpretation are to apply having regard to the text and the context and not in isolation. The judgment relied upon deals with an altogether different context which is not comparable to the present context. There is no implied exclusion made in the guidelines given by the CPCB. On the other hand, power has been expressly given to the SPCB to include the categories which were not taken note of by the CPCB. It will not be an impediment on the power of the SPCB to include certain categories / certain industries and imposing more stringent conditions while making the categorisation taking into account the pollution index in that area. The dictum laid down in the decision reported in Delhi Pollution Control Committee Vs. Splendor Landbase Ltd. LPA 895/2010 relied on by the counsel for second respondent is not applicable to the facts of this case.
It will be seen from the submission of the appellant that a study has been made regarding the nature of constructions that is coming up in the State of Kerala and the availability of Sewage Treatment System, Drainage System and also the number of flats coming in a single project with large amount of generation of discharge of sewage that the present categorisation has been made. Further, it is also mentioned that on the basis of the calculations made the pollution index score will be more than 40 and if the guidelines given by the CPCB is adopted then where the pollution index score is between 41 to 51, then it will fall under Orange category. That is how the Committee on the basis of the study includes the disputed units in the Orange category mentioned in the circular. So, the submission made by Mr. Satish Parasaran, the learned Senior counsel appearing for the second respondent that the categorisation was done without making any study and without application of mind and in an arbitrary manner against the guidelines given by the CPCB cannot be accepted and the findings of the appellate authority in this regard is unsustainable in law.
As already mentioned, main contentions of the appellant Board are that it could lay down more stringent norms and its circulars were not the orders under Section 24, 25 and 26 of the Water Act and Section 21 of the Air Act against which appeals could lie. The same were issued in exercise of inherent power, having nexus with the functions assigned to the Board under Section 17 of the Water and the Air Act. Thus, the appeal was not maintainable. Even otherwise, the Board could lay down more stringent norms having regard to local conditions. The expert Committee report showed need for more stringent norms on account of higher ground water level and potential for contamination of water bodies and the ground water which was required to be prevented. The Circular did not adversely affect any person complying with the law. It is not the case of Respondent No. 2 that basis of the expert Committee was imaginary.
Reference has been made to notices issued by the appellant board on the basis of analysis of water samples collected from residential complexes of less than 20,000 sqm showing high level of pollution on account of discharge of untreated sewage which justified the action of the State Board for stringent regulatory norms. It was also submitted that there was no underground sewerage network in the State except to the extent of 20-30% in Trivandrum and a small percentage in Kochi. High rise buildings even of less than 20,000 sqm were generating sewage which was not being properly treated. It is also pointed out that there are other Boards which have taken similar course of laying down stricter norms than the norms prescribed by CPCB. Reference has been made to the circular of the State of Punjab dated 29.09.2016.
In view of above discussion, we hold that the appeals were not maintainable under Section 28 of the Water Act and Section 31 of the Air Act against the Circulars of the KSPCB. We are unable to hold that the said Circulars are orders under Sections 24, 25 and 26 of the Water Act or Section 21 of the Air Act. Mere fact that Circulars have bearing on the said provisions cannot mean that the Circulars were orders under the said provisions. The Appellate Authority could entertain appeal only if the same was within the purview of statutory provision conferring right of appeal. It is well settled that appeal is a creation of statute and there is no inherent right of appeal (Anant Mills Co. Ltd. v. State of Gujarat, (1975) 2 SCC 175, ¶40 Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659 ¶17 M. Ramnarain (P) Ltd. v. State Trading Corpn. of India Ltd., (1983) 3 SCC 75 ¶ 16 Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad, (1999) 4 SCC 468 ¶ 8 Hari Singh v. Kanhaiya Lal, (1999) 7 SCC 288¶ 7). The appellate authority had no jurisdiction to deal with the appeals and the impugned orders are liable to be set aside on that ground alone.
We further hold that the circulars of the appellant Board are valid. Rule of 3 of the EP Rules is as follows:-
Rule 3. Standards for emissions or discharge of environmental pollutants
(1) For the purpose of protecting and improving the quality of the environment and preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in [Schedule I to IV].
(2) Notwithstanding anything contained in sub-rule (1), the Central Board or a State Board may specify more stringent standards from those provided in [Schedule I to IV] in respect of any specific industry, operation or process depending upon the quality of the recipient system and after recording reasons therefore in writing.
[(3A) (i) Notwithstanding anything contained in sub-rules (1) and
(2), on and from the 1st day of January, 1994, emission or discharge of environmental pollutants from the [industries, operations or processes other than those industries, operations or processes for which standards have been specified in Schedule-I] shall not exceed the relevant parameters and standards specified in schedule VI.
Provided that the State Boards may specify more stringent standards for the relevant parameters with respect to specific industry or locations after recording reasons therefore in writing; (ii) The State Board shall while enforcing the standards specified in Schedule VI follow the guidelines specified in Annexure I and II in that Schedule].
Considering the above rule, the Hon'ble Supreme Court held that the State Board could not relax the standards but could make the same more stringent. Akhil Bharat Gosewa Sangh & Ors. v. State of A.P. & Ors., , (2006) 4 SCC 162¶ 38
The appellate authority erred in holding that the State Board violated the directions of CPCB under Section 18(1)(b). There is no direction that State Board could not make the standards stricter. The CPCB has rightly stated that State Board was entitled to do so. The appellate authority has not found the stricter norms to be arbitrary. The State PCB has given valid reasons for its decision. Thus, the impugned circulars of the State Board could not be held to be violative of directions of CPCB.
In view of the above, we allow the appeals, set aside the order of the Appellate Authority and restore the Circulars dated 17.03.2017 of the appellant Board.