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Judgment
This Appeal under Section 18(1) read with Sections 14, 15, 16 & 17 of the National Green Tribunal Act, 2010(referred to as the act) is by M/s. Daudpur Poultry Farm assailing the order dated 02-11-2016 passed by the respondent no.2 against the appellant's unit.
In response to the notice issued the State of Haryana, Haryana State Pollution Control Board and Regional Officer, Haryana State Pollution Control Board, arrayed as respondent nos. 1, 2 and 3 respectively have entered appearance.
We have heard Mr. A. R. Takkar, Learned Counsel for the appellant and Mr. Rahul Khurana, Learned Counsel for respondent nos. 1 to 3 perused the records in supplementation thereto.
Factual matrix is:
The appellant claims to be in poultry business. The Poultry Farm was inspected by the Regional Officer(respondent no.3) of Panchkula, State Pollution Control Board on 06-05-2016. During inspection they found to be category less than 1 lakh birds but poultry farm was not maintained properly in terms of the guidelines issued by the Haryana State Pollution Control Board which govern the Poultry Farm.
The appellant claims to have assured the officer that all short-comings noticed by him shall be rectified as earliest and accordingly the appellant started removing the deficiencies but it was consuming time as some of the short-comings required civil work to be carriedout. When the appellant was honestly attempting to remove the short-comings, to its shock and surprise they have received an order on 16-02-2016 purported to have been issued on 02-11-2016 directing closure of the unit.
The Learned Counsel referring to the contents of the order dated 02-11-2016(impugned in this appeal), submits though there is a mention in the order that the show cause notice vide letter no. 567 dated 12-05-2016 was issued to the appellant no such show cause notice was ever sent to the appellant and therefore the basis of issuance of the impugned order is unjustified. He further submits that the reason assigned in the impugned order that the appellant had not given any reply to the show cause notice is factually incorrect and therefore on this ground also order in question has to be quashed and set aside.
The lastly he submits no opportunity was given to the appellant before passing of the impugned order violating Principal of Natural Justice. Therefore, the impugned order dated 02-11-2016 ordering closure of the unit cannot be sustained. Alternatively, he submits that the appellant is willing to remove the short-comings and in fact was in process of removing the short-comings as recorded in the inspection report dated 16-12-2016 and thus the bona-fide claim of the appellant that it has no knowledge of the issuance of show cause till 16-12-2016 be accepted.
Mr. Rahul Khurana, Learned Counsel for respondent nos. 1 to 3 has questioned this appeal on the ground of maintainability and has also questioned the conduct of the appellant. According to him, the appellant is guilty of suppression of facts and for the purpose of obtaining the order of this Tribunal suppressed that it was duly served with the show cause and in fact had acknowledged it. Though the affidavit filed by respondent no's. 1 to 3 it is brought out that joint inspection of the unit was conducted in the first instance on 21-03-2016 and several deficiencies were noticed. Vide letter dated 25-03-2016 the Deputy Director, intensive Cattle Development Project, Ambala City had pointed out the deficiencies which are at annexure R/1.
The Sub-Divisional Magistrate (SDM) Ambala City through its letter dated 04-05-2016 sent joint inspection report of Veterinary Surgeon, Government Hospital and Sub Divisional Officer (AH) Ambala to respondent no.3 to take necessary action vide annexure R/2. On 06-05-2016the appellant's unit was inspected by the officers of the HSPCB and they found the unit is not compliant. Thus, notice of show cause notice u/s 5 of Environment Protection Act, 1986 was issued on 12-05-2016 Copy of the same is annexed as annexure R/3.
Mr. Rahul Khurana submits that the appellant had sent no reply to the said show cause notice within 15 days stipulated therein consequent to which a letter was issued on 04-07-2016 to the Head Officer recommending issuance of closure order. Based on this fact and the recommendations of the Regional Officer the appellant's unit was asked to be closed vide annexure R/4 vide order of Principal Secretary.
He submits that the appellant had sent a reply to the show cause notice on 04-08-2016 stating that the unit has complied with the directions in the show cause notice. They rely on the reply sent by the appellant vide annexure R/5 and inspection of the unit once again on 05-10-2016. It is contended despite such opportunity they did not find the unit having complied with the observations in the joint inspection as also directions in the show cause notice. Inspection done on 05-10-2016 is documented vide annexure R/6. Mr. Rahul Khurana Learned Counsel further refers to several other dates and different stages, the case in which the appellant's case was considered by the authority in question.
Having heard the Learned Counsel for the HSPCB, we had requested the appellant's counsel to respond as to whether the appellant admits receipt of the show cause notice in view of the detailed furnished by the HSPCB.
Learned Counsel for the appellant very fairly submitted that on enquiry he learned from his client that reply dated 04-08-2016 was in fact submitted by the appellant to the HSPCB in answer to show cause notice, but denies it was received directly.
We are unable to appreciate this contention for the reason the reply dated 04-08-2016 sent to the HSPCB is in answer to show cause notice dated 05-06-2016 and is under signature of the appellant. Besides it is not in dispute that in pursuance to the reply dated 04-08-2016 once again the unit was inspected and they found the unit was not compliant.
Putting all these facts together, what surfaces is that on 21-03-2016 the appellant Poultry Farm was inspected and they have found several deficiencies. The inspection report was forwarded by the Deputy Director, Intensive Cattle Development Project Ambala City on 25-03-2016 to Sub Divisional Magistrate by respondent no.1. The SDM Ambala vide letter dated 05-04-2016 forwarded the joint inspection report to respondent no.3-Regional Officer of the PCB for further action vide its letter dated 05-04-2016.
Consequently, appellant farm was inspected on 06-05-2016 by the Officer of the HSPCB and as they found the unit was still not compliant. They issued show cause on 12-05-2016 u/s 5 of the Environment Protection Act, 1986,the show cause notice is annexed as annexure at R/3.
As the appellant did not reply within 15 days to the show cause notice the case papers were forwarded to the Head Office on 04-07-2016 recommending closure of the unit.
It is only subsequent to it on 04-08-2016 the appellant has sent reply to the show cause notice vide annexure R/5. We have perused that the annexure R/5 addressed to the Chairman Haryana SPCB under signature of the appellant himself. The contentions of the Appellant's Counsel that it was not reply sent by him is therefore discounted. The annexure R/5 is undoubtedly under the signature of the appellant representing the Poultry Farm. There is unequivocal admission it is reply to the show cause notice. The appellant is deemed to have received the show cause notice Therefore, factually the contention of the appellant are incorrect. The show cause notice has preceeded issuance of impugned order directing closure of the unit in question.
Thus, the ground urged that impuged order that it is untenable for non issuance of show cause notice and that it is against the principal of natural justice, must fail.
As no other ground worthy of acceptance is made out by the appellant. We do not find appeal merits acceptance and consequently the appeal must fail, however, the appellant has always right to approach Board after removing the deficiencies and seek fresh inspection. If Board is satisfied that the deficiency has been addressed, it shall consider the case of the appellant afresh for grant of permission/consent to restart.
In view of the above, the Appeal No. 02/2017 and M. A. No.56/2017 stands disposed of, with the following directions :
The appellant may apply to the HSPCB intimating that it has complied with all the deficiencies as pointed out in the show cause notice and the impugned order dated 02-11-2016.
On such intimation the HSPCB shall inspect the appellant's unit and satisfy itself as to whether all deficiencies have been removed and appellant's unit is compliant.
The application of the appellant shall be considered in light of the inspection report and on merit appropriate order may be passed expeditiously as possible.
Thus, the Appeal No. 02/2017 and M. A. No.56/2017 stand disposed of, with no order as to cost.