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Judgment
This Appeal under Section 16 of the National Green Tribunal Act, 2010 is directed against the order of Haryana State Pollution Control Board injecting the request of the appellant to grant consent vide order dated 28th September, 2016 no. HSPCB/Consent/313296216BHICTO3310465. The appellant has raised several factual and legal grounds to assail the order.
Heard the Learned Counsel for the Appellant and the respondents.
Though, the narrations of the fact are a plenty but for the purpose of adjudicating this appeal a brief references to the relevant facts is sufficient. It is as follows:
(a) The appellant claims to be poultry farm run in the name and style of New Era poultry in the village Loharu, District Bhiwani, Haryana from 2005. It claims to have less than one lakh birds and managing the business scientifically without causing any pollution.
(b) It is alleged M/s Haylcon Pharmaceutically Company which is in the neighbourhood encroached upon the appellant's land used as passage. It lead to further dispute consequent to which the pharmaceutical company filed a suit and then complaint against the appellant industry to the Pollution Control Board alleging that the appellants poultry farm was polluting unit and has caused severe noise pollution and also become a cause of nuisance.
(c) The HSPCB appears to have initiated action against the appellant company issuing show cause notice etc. to which the appellant replied and established that it is not a polluting unit.
(d) The appellant has further averred that during this period the pharmaceutical Company filed Writ Petition No. 8262 of 2007 and Civil Writ Petition 1258 of 2008 connected with W.P. No. 8041 of 2010. The Hon'ble High Court of Punjab and Haryana considered the matter and issued notice to Union of India, CPCB and HSPCB, to state as to whether there are any specific guidelines framed for poultry management to prevent pollution and adverse impact on the environment.
(e) It is averred the writ petitions were disposed of by the Hon'ble High Court vide its common order on 3rd July, 2012. The appellant was one of the party in Writ Petition, but no adverse order has been passed against it. It has relied on the text of the order.
(f) The appellant has further averred that pharmaceutical company continued to harass the appellant consequent to which Pollution Control Board issued notice to the appellant to close the unit. The appellant preferred appeal no. 147 of 2015 against the order of Haryana State Government Environment Department dated 10th November, 2015, contending that the appellant unit was an old compliant unit and few of the discrepancies which were noted by the Board were removed. The appellant alleged before this Tribunal that the closure order issued on the basis of inspection report conducted by the Board was malafide and did not give a correct report. This Tribunal accepting few of the contention of the appellant appointed a Joint Inspection Committee of the CPCB and HSPCB to conduct inspection of the appellant unit and report. The Joint Inspection Report dated 14th July, 2016 held that the appellant unit was fully compliant and did not require consent to operate as it had less than one lakh birds. It is alleged, when the Joint Inspection Report was filed in the Tribunal and the appeal was taken for hearing the Learned Counsel for the HSPCB placed on record a letter stating that poultry farm of the appellant required consent and thus the appellant had to run the unit only after obtaining the consent. Consequently, this Tribunal disposed of the Appeal no. 147 of 2016 by its order dated 29th July, 2016, directing the appellant to file application seeking consent to operate before the HSPCB. The Tribunal also directed the HSPCB, if the appellant files such application for grant of consent then the same should be decided expeditiously.
(g) The appellant claims to have applied for consent in terms of the order of the Tribunal before the HSPCB. The appellant's grievance is the application was not considered expeditiously and to the misery of the appellant, the application was kept pending.Consequently, the appellant filed Execution Application no. 26 of 2016 in the said case the Tribunal issued notice to HSPCB and disposed of the same by order dated 5th September, 2016 with the following directions:
Execution Application No. 26 of 2016 Learned Counsel appearing for the respondents submit that the application for consent to operate filed by the applicant has been rejected by a detailed order dated 28th September, 2016. Copies thereof have been furnished to the Learned Counsel appearing for the applicant. The applicant is at liberty to challenge the said Order in accordance with law if he so desires. This application does not survive for consideration.
Thus, Execution Application No. 26 of 2016 stands disposed of with no Order as to cost.
In view of such order, the appellant has preferred this Appeal against the order of the HSPCB rejecting its consent application. Impugned order is annexed to the application as annexure A/14. Referring to the above referred set of facts the Learned Counsel appearing for the appellant was very vocal in contending that the Pollution Control Board has acted arbitrarily and at the instance of appellant's rival M/s Halycon Pharmaceutical Company. The Learned Counsel submitted that the impugned order is not sustainable on more than one ground. He had termed impugned order as biased and result of malafide action against the appellant. To substantiate this contention he pointed out that on the basis of order passed in appeal no. 147 of 2015, the appellant had applied to the Tribunal in Execution No. 26 of 2016 for direction to the Board to comply with the order passed in the Appeal on 29th July, 2016 to consider the application for consent. In the Execution Application No. 26 of 2016 the Board was notified and show cause notice was issued to the HSPCB for not complying with the order passed on 29th July, 2016 in appeal no. 147 of 2015.
The date of hearing was fixed as 29th September, 2016. On the date of hearing i.e. 29th September, 2016 Learned Counsel for the HSPCB produced impugned order dated 28th September, 2016 reporting to this Tribunal that the consent application was rejected.
Learned Counsel described the said order as wholly unsustainable, on the ground that no show cause notice was issued as mentioned in the passed order. He further pointed, the statement made in the impugned order about the issuance of show cause notice to the appellant on 26th September, 2016 would show malafide. He submits that even if it is presumed the show cause notice was issued by the Board on 26th September, 2016, the appellant should have been given sufficient time to respond. Without giving sufficient time the impugned order has been passed within one day i.e. on 28th September, 2016. Thus, he submits the order is stage managed and is only to phase the rival M/s Halycon industry.
Learned Counsel further submits that, even on merits impugned order is unsustainable because no reasons are assigned, for refusing consent. He submits that unit is an old complaint unit, having commenced business in the year 2005, therefore the guidelines for poultry farm framed by the CPCB by notification in the year 2011was not applicable. He further added even if the guidelines is made applicable to the appellant, the appellant unit is fully compliant and was not required to obtain consent, as the appellant unit is having less than one lakh birds. Consequently, he submits even if guidelines is applicable to poultry farm as detailed in the condition "siting criteria". It will not apply to the appellant as it is an old unit. According to him the 'Siting Criteria' which prescribes that poultry farm should not be located within 500m from residential zone and 200m from major water course like River, Lake and Canals and 500m from any major drinking water reservoir on catchment side is applicable to the New unit. As regards other norms laid down in the guidelines he submits that appellant has complied with all the requirements as is proved by the inspection report itself.
He, therefore, seeks quashing of the impugned order. However, Counsel for M/s Haylcon Pharmaceutical Company submits impugned order has been passed at the instance of appellant (Haylcon Pharmaceutical Company and therefore, they should be heard by considering order in M.A. No. 96 of 2017) we have heard and rejected M.A. No. 96 of 2017 consequently. The State of Haryana and HSPCB are contesting respondents while the respondent nos. 3 and 4 are Regional Officers of HSPCB and CPCB. The appeal action was opposed by HSPCB and Learned ASG Mr. Anil Grover appeared representing State was heard substantially and perused the records as referred to para (supra). It is necessary to notice the proceedings before the Hon'ble High Court, before considering the merits of the grounds of impugned order.
It is not disputed that M/s Halycon Pharmaceuticals company had initiated writ action in W.P. No. 8262 of 2007 with connected CWP no. 1258 of 2008 and 8041 of 2010. The main grievance of the M/s Halycon pharmaceuticals was that the poultry farms and poultry farm units including the appellant had become source of severe noise pollution and causing adverse effect on the environment. The writ action was in the nature of Public Interest Litigation. Since, the grievance was against the poultry farms the Hon'ble High Court of Punjab and Haryana had issued notice to MoEF, State of Haryana and Haryana Pollution Control Board to state whether they have framed any Guidelines or Norms or Rules or Regulations to govern poultry farms.
The order passed by the Hon'ble High Court on 3rd July, 2012 leaves no doubt that the submission was made on behalf of the CPCB that apart from the notification issued by the Union of India prescribing the norms, parameters, standards of Ambient Air Quality emitted by such industries and poultry farms, the MoEF had also issued notification on 16th November, 2009 providing National Ambient Air Quality Standards.
CPCB further submitted that it has also framed guidelines for governing the management of the poultry farms and produced the guidelines for consideration.
HSPCB which is also a party arrayed in the above writ petition submitted that they are in the process of issuing the same guidelines, as issued by the CPCB for management of the poultry farm and also submitted that it will adopt all the norms laid down by the CPCB to avoid unnecessary repetition. The text of the order passed by the Hon'ble High Court is extracted below:
This order will disposed of three writ petitions bearing Civil Writ Petition No. 1258 of 2008 titled as "Jagdish V. State of Haryana and others", Civil Writ Petition No. 8262 of 2007 titled as "Halcyon Pharmaceuticals Limited v. State of Haryana and others" and Civil Writ Petition No. 8041 of 2010 titled as "Resident Welfare Association (Registered), Gurgaon, v. State of Haryana and Others". The facts are being taken out from Civil Writ Petition No. 1258 of 2008.
In all the above writs petitions, a grievance has been raised regarding emission of odour/smell/stink by the industries and other establishments including poultry farms.
After notice, reply was filed by the respondents. It was specially stated that for ambient air quality, no rules have been framed either by the Central Pollution Control Board or Haryana State Pollution Control Board.
The sole grievance of the petitioners is that it was very difficult to reside in the near vicinity of such units emitting stink and thus, a prayer has been made that the State be directed to take necessary steps to prevent air pollution.
This Writ is pending since from the year 2008. On 10.12.2008 this Court formed a view to refer the matter for consideration to the Law Commission of India for making suitable recommendations to cover gray area so that necessary steps can be taken to prevent emission of stink from the industrial units and other establishments. However, in the meantime, it came on record that Union of India has issued a notification dated 15.3.2011 prescribing norms/parameters/standards of ambient air quality emitted by such industries and poultry farms. It also borne out from the record that prior thereto Ministry of Environment and Forests have issued a notification 16.11.2009 providing national ambient air quality standards. By an application i.e. Civil Misc. No. 5583 of 2012 moved in Civil Writ Petition No. 8262 of 2007, it has been p laced on record that the Central Pollution Control Board has issued guidelines for good poultry management practices so that stink etc. may not be emanated from such poultry farms and other establishments. Mr. Arun Walia, Advocate, appearing for the Haryana State Pollution Control Board states that the Pollution Control Board has accepted the above said guidelines.
In view of the above, no further action is necessary to be taken in these writ petitions and the same are disposed of. However, the authorities of the Haryana State Pollution Control Board are directed to take action against the units not maintaining the standards laid down in the notification issued by the Central Pollution Control Board. If the petitioners find that these guidelines are not being followed by the Poultry Farms or other Industrial Units, then they will be at liberty to complain it to the C hairman, Haryana State Pollution Control Board, who shall take stern action forthwith, as per law.
CPCB on its own volition produced guidelines framed by it for good poultry management practice through civil M.A. No. 5583 of 2010 in W.P. No. 8262 of 2007. It is also clear from the text of the order that HSPCB made further statement that they have accepted the guidelines issued by the CPCB.
We have perused the guidelines issued by the CPCB in light of the submission made on behalf of the HSPCB before the Hon'ble High Court. The guidelines issued by the CPCB make it clear that the poultry farm are required to adhere to certain standards and take such precautionary steps as detailed therein. The guidelines also show the areas where the establishment of new poultry farm is prohibited. This is found under the heading "Siting Criteria"
Mr. Anil Grover, Learned AAG, HSPCB fairly submitted that they had, before the Hon'ble High Court agreed to apply the guidelines framed by CPCB in the absence of guidelines framed by the HSPCB. However, he hastened to add that the subsequent to submission of HSPCB, the HSPCB has also framed guidelines which, though similar to the guidelines of CPCB had incorporated a specific clause "Sitting Standard" which is made applicable to the new units. He submitted by implications the guidelines of HSPCB relating to "Sitting Standard" make it clear that new units are required to adhere to guidelines framed therein. Whereas, the same is absent in guidelines prescribed by CPCB. His second contention was that the guidelines framed by HSPCB are applicable to the appellant unit as it comes within the territorial jurisdiction of the State Pollution Control Board and it has applied for consent and thus to be construed as new unit.
Responding to this contention, Learned Counsel for appellant submitted that the caption of "sitting Standard" itself shows that it is applicable to new poultry farms and therefore, the same cannot apply to the appellant's unit as it was established in the year 2005 and was functional much before the guidelines was framed.
We have examined this contention in the light of the specific clauses of the guidelines framed by the CPCB and the State Pollution Control Board. It is not difficult to understand that the phraseology used dealing with the clause relating to "Sitting Standard" framed by the HSPCB makes "Sitting Standard" applicable to the new units. Besides, this HSPCB has agreed to apply the guidelines of the CPCB till it frames its own guidelines, the case of the appellant has to be adjusted as on the date matter was considered by Hon'ble High Court which undoubtedly is before the HSPCB who framed the guidelines. The reasonable conclusion would be that the "Sitting Standard" be incorporated in the scheme framed by HSPCB is prospective in its application. Of course we do not find anything wrong in the contention of Mr. Anil Grover, AAG HSPCB that the officials of State Pollution Control Board have understood the scheme framed as applicable to all units and therefore, brought the appellant's unit into mischief of all the clauses which mandate obtaining of prior consent to run the unit. At this stage, we would also like to deal with the issue as to what is the present situation. The facts undisputed are that in view of statement made by the State Pollution Control Board before this Tribunal in appeal no. 147 of 2015 that prior consent to run the unit is essential the appellant had involuntarily accepted the legal proposition and had undertaken before this Tribunal that it will apply to grant of consent to the State Pollution Control Board and accordingly the plea in appeal no. 147 of 2015 was disposed off by the Order dated 14th September, 2016. Permitting the appellant to apply for consent and further directed the State Board to dispose off it expeditiously. Proceedings in Execution Application No. 26 of 2016 are affirmation to this fact that as in Execution No. 26 of 2016 the appellant has approached this Tribunal complaining of non-consideration of its application. It is only in that Execution Application that the order impugned passed by the State Pollution Control Board rejecting the consent by Order dated 28th September, 2016 was produced.
The ultimate conclusion would be that the appellant has not disputed that it had to obtain consent and taken all required steps. Thus, the question is about sustainability of the impugned order.
We have bestowed our serious consideration to the ground urged which are already referred to in the preceding paras however, we would again refer to the ground for clarity. The appellant's contention is that when it filed Execution No. 26 of 2016 this Tribunal issued show cause notice to the Pollution Control Board and fixed a date of hearing on 29th September, 2016. As on the date the Execution Application was moved (to execute the order passed in Appeal no. 147 of 2015 dated 14th September, 2016), the Board had not considered this application. Soon before after the show cause notice the HSPCB has stage managed the proceedings and produced before the Tribunal order dated 28th September, 2016 purportedly rejecting the application. We have taken note of appellant's contention that the order dated 28th September, 2016 impugned in the appeal refers to the show cause notice having being issued to the appellant on 26th September, 2016. The appellant has seriously disputed this statement in the impugned order on the ground that no show cause notice has issued.
We have also taken note of the fact that even presuming that show cause notice was issued on 26th September, 2016 the State Pollution Control Board has not produced any material to substantiate service of show cause notice on appellant. We also take note of the fact that even if show cause notice was issued on 26th September, 2016 the impugned order is passed on 28th September, 2016 i.e. just a day after the issue of show cause notice. It is quite obvious that the impugned order has been passed a day before the date of hearing of Execution Application No. 26 of 2016 fixed on 29th September, 2016. In the circumstances we find substance in the contention of the appellant's Counsel that the order impugned dated 28th September, 2016 produced before the Tribunal on 29th September, 2016 in Execution Application No. 26 of 2016 is not free from blemishes and is open to question of its validity.
We must record that the purpose of issuing show cause notice is to elicit explanation from the offending unit with regard to finding of the Pollution Control Board about the deficiencies found in establishment or running of the units. A reasonable time is required to be given to the noticee to tender explanation. It is manifest from the facts, not disputed, that the show cause notice was issued on 26th September, 2016 and the impugned order has been passed on 28th September, 2016 a day therefrom and there is no material establishing service of notice. This renders the order unsustainable and accordingly needs to be set aside.
As similar cases have been coming up for consideration before this Tribunal it is necessary we issue appropriate directions to State Pollution Control Board to be followed in future whenever issuance of show cause notice is mandatory or desirable before passing final orders in the nature of closure of the units and otherwise.
Though, in the enactments there is no time period stipulated to be granted in the notice for show cause yet it will be reasonable to hold that as a matter of general practice at least two weeks time should be granted to the noticee to explain and offer show cause against the proposed action by the HSPCB. At this stage Mr. Anil Grover, Ld. AAG, submitted that there may be certain circumstances when immediate action for closure of unit would be necessary and in such cases two weeks time if insisted upon to show cause then it will have disastrous and adverse effect on environment. We enjoin the concern of Mr. Anil Grover, AAG and clarify that in cases where immediate action is necessary and situation is alarming then the authorities in the Pollution Control Board may record reasons therefor and call upon noticees to show cause within a shorter period than 15 days. This shall be in discretion of the State Pollution Control Board but it shall be supported by sufficient reasons and service of show cause notice must be ensured before final decision is taken by it.
For the above sated reasons and on the basis of decision recorded in this order the appeal succeeds. It is allowed, the appellant's unit is permitted to run for a period of 3 months during which period the water and electricity be restored.
The appellant is allowed to run unit for a period of 3 months during which period the State Pollution Control Board shall conduct inspection of the unit for ascertainment as to whether it has complied with the deficiencies noticed by the Board and if so then consider grant of consent on merit.
The appellant unit will bear cost of inspection. Water and electricity shall be restored for the limited purpose and for the period of 3 months for inspection.
The unit is permitted to submit information to the Pollution Control Board about its readiness subject to inspection.
The appellant unit is further permitted to produce such additional documents, record as may be necessary to consider its application for consent by the Board afresh based on the records.
The unit shall achieve optimum capacity for the purpose of inspection.
If the Boards find after inspection that there is any such deficiencies the Board shall exercise its statutory powers which will be unbridled by this order.
In case otherwise the Board may consider the application for consent on its merits and issue the same without loss of time.
The entire process shall be completed within an outer limit of 4 months from the date of receipt of this order and the industry intimates its commencement of functioning.
Before we part a word of caution we desire that Pollution Control Board must perform its statutory functions, in terms of the Statue. We conclude by further observations, we expect the Board to perform its statutory functions dispassionately, unbiased and in the interest of justice and the impugned order shall be free from all stigmas as is noticed in this case.
Appeal No. 56 of 2016 is therefore allowed with no order as to cost in terms of this order.