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Judgment
By this common order, we propose to dispose of both these Applications together, inasmuch as they are interlinked. The Miscellaneous Application is filed by the original Applicant with a request to add Automotive Research Association of India (ARAI), as a party to the main Application. The Applicant has further sought directions against ARAI, to grant type approval/COP for six (6) models of bifuel gas Gensets, petrol start/petrol run models. The Applicant seeks further directions including direction to CPCB to the effect that no instructions shall be issued to ARAI to discontinue internal process of Type Approval/COP of six (6) petrol start/petrol run Gensets, manufactured by the Applicant.
The main Application of the Applicant reveals that the Applicant allegedly manufactures 22 models of petrol and LPG driven Gen sets. Out of them, six (6) are petrol driven Gen sets, 14 are petrol start LPG run Gen sets and two (2) are LPG start/LPG Run Gensets. According to the Applicant, standards have already been fixed for petrol start/petrol run and Petrol start/LPG run Gensets. However, the CPCB has not yet fixed the standards, nor notification has been issued by the MoEF in respect of LPG start/LPG run Gen sets. Obviously, ARAI has not tested the same for issuance of Type Approval. The Application for such approval is not entertained by ARAI, because no such standards have been fixed by the Authority by MPCB and CPCB.
The Applicant seeks directions that the CPCB shall give them personal hearing in respect of directions which have been issued under Section 5 of the Environment (Protection) Act, 1986, as regards to the unapproved Gensets for which standards are not notified. The Applicant further urges that MoEF be directed to set out standards for emissions and noise for petrol start/LPG run Gen sets and LPG/CNG/Natural Gas run Gensets. So also, certain other directions are sought against the ARAI.
The reply affidavit of Respondent No.2, (CPCB) shows that only six (6) models of petrol start/petrol run type have been approved. It is stated that out of these six (6) models, only three (3) type Gensets, which are manufactured by the Applicant, have been granted approval for production, because they are manufactured at the site of industrial unit of the Applicant. Other three (3) approved models are being manufactured for the customer namely M/s Bajaj Electrical Ltd, for which type approval has been issued. It is stated that any Genset compatible with petrol fuel must have valid Type Approval and unless such approval is granted production thereof cannot be undertaken. It is further stated that the Applicant is illegally manufacturing a large number of Gensets without obtaining Type Approval and unless such bulk of Gen sets are recalled, the request for personal hearing cannot be considered by the CPCB. It is further stated by CPCB that the Applicant has got valid type of approval for three (3) models and therefore, cannot manufacture any other models, as there is no approval. It is contended that the Type Approval for model of other three (3) Gensets sold to the customer i.e. M/s Bajaj Electrical Ltd, is not permissible, to manufacture at the Applicant's industrial premises.
We have heard Mr. Yogeshkumar Upadhyay, appearing for ARAI, who has filed affidavit. He is working as Senior Manager. According to him, the ARAI has no role to play in the matter. His affidavit shows that the ARAI is only certifying agency. He would submit that only on fixation of standards by competent authority and after receiving of Application by the manufacturer, ARAI is required to consider the Application for the purpose of certification, if the compliance is found in accordance with the standards. Beyond that ARAI has no role to play. It is not business of ARAI to fix the standards, nor it is business of ARAI to grant any kind of approval for manufacturing of Gensets or any other engines run on fuel like petrol, diesel etc.
We have heard learned Counsel for the parties including Counsel for CPCB, Counsel for MoEF, MPCB and also Counsel for the Applicant.
Perusal of the record shows that the Applicant was not given opportunity of hearing before taking any decision by the CPCB to give directions under Section 5 of the Environment (Protection) Act, 1986. It is well settled that fair play and principles of natural justice require the authority to follow the principles of audi alterm partem.
Obviously, it is necessary to hear the party, which is likely to be affected before passing of any adverse order. In other words, before directing the Applicant to recall the Gensets or stop manufacturing or close down the business, the CPCB is required to give Notice of hearing to the Applicant. The Applicant shall go before the CPCB and submit representation and thereafter, personal hearing shall be given by the CPCB to the Applicant before taking final decision in the matter that will be requirement of administrative decision making process.
It is stated by Kedarnath Das, Scientist-C, attached to CPCB that the standards of emissions and noise for LPG start/LPG run or petrol start/LPG driven Gen sets are likely to be fixed and notified by the MoEF within period of couple of months. We may note that CPCB is also empowered to take necessary decision for the purpose of fixing of standards of emissions. Although, approval for such purpose and work of notification may be referred to MoEF, if regulated.
We do not propose to set out any particular standard, nor do we propose to grant any permission to the Applicant for manufacturing of approved type of Gensets. For, it is not in the domain of NGT to issue directions to the authority to allow manufacturing of Gensets of which there is no fixed standards as such. Under these circumstances, we propose to finally dispose of the main Application and Miscellaneous Application in the following manner.
(I) The approved three (3) Gen sets bearing Champ 3000 CPS petrol start/ petrol run, Champ 5000 CPS petrol start/ petrol run and Champ 2800 CPS petrol start/ petrol run, shall be allowed and continued to be manufactured by the Applicant for period of four (4) months hereafter. The remaining three (3) models which are being sold to the customer M/s Bajaj Electricals Ltd, may be allowed to be manufactured if they are manufactured at the site of M/s Bajaj Electricals Ltd and if they are not manufactured on that site, then after conducting inspection same may be disallowed by the CPCB.
(II) There is no need to join ARAI in the Application and ARAI, stands discharged.
(III) The CPCB shall reconsider the closure order or any prohibitory order passed against the Applicant and recall the same.
(IV) The CPCB shall hear the Applicant on 26th May, 2014, at the office of the Chairman/Member Secretary, New Delhi, between 11 a.m. to 1.00 p.m.
(V) The Applicant will be at liberty to submit written representation before the date of such hearing.
(VI) The Chairman, CPCB, should consider such representation before taking final decision in regard to the directions which are proposed to be given under Section 5 of the Environment (Protection) Act, 1986. Then only after hearing the Applicant, such decision shall be arrived at and be communicated to the Applicant.
(VII) The MoEF, in consultation with CPCB shall fix the standards for LPG start/LPG run as well as petrol start LPG run Gen Sets within period of four (4) months hereafter at the most.
(VIII) The directions shall be communicated by the Counsel to the Secretary of MoEF and concerned department and Mr. Kedarnath, Scientist-C, shall communicate this order to the Chairman/Member Secretary of CPCB as well as shall give a copy of the order to the concerned department of MoEF.
(IX) In case standards are so fixed, the Applicant is at liberty to apply to ARAI, as per the Notification and norms settled.
(X) Both the Applications are accordingly disposed of. No costs.