M/s Siddhartha Enterprises vs State of NCT of Delhi And Ors

This appeal challenges a judgment of the Karnataka State Appellate Authority at Bangalore dated 11.6.2012 whereby an order originally passed by the Respondent No. 4 was sustained by dismissing the appeal preferred by the appellant herein.

Short facts necessary for the disposal of this appeal can be stated thus. The appellant is a proprietary concern engaged in engineering industry of lathes. The industry has been running for 3 years without any complaint what so ever. As an existing industry, Consent for Operation was required and also upon knowledge applied for the same in the month of May 2011. There was a dispute between the landlord of the appellant and his neighbour. The neighbour with a mala-fide intention gave a complaint to the authorities as if there was air and water pollution. Following the same, a notice was issued on 23.11.2010 to the appellant by KSPCB without any inspection or ascertaining the facts. On the receipt of the notice, a reply was sent by the appellant on 23.11.2010 stating his case that the industry was being run for 3 years without any complaint, that the appellant was allotted an industrial plot in an industrial area and the appellant was awaiting grant of possession of land and the same was being delayed, that once he was able to get possession, the appellant would immediately shift to the new place. There was a delay on the part of KIDAB. Under such circumstances, no action can be taken against the appellant. Following the same, respondent No. 3 issued a show-cause notice on 20.10.2010 stating that the industry was inspected by the Chairman and the Board officials, that industry was running from 6 years causing pollution to the surrounding without effective environmental measures and also industry was commissioned and operated without obtaining land conversion, without consent from the Board, and that delay in getting possession of the industrial land could not be considered as a reason. Apart from that the industry of the appellant was situated in a residential area and surrounded by the residential houses. Pursuant to the show-cause notice, respondent No. 4 even without giving any opportunity of being heard, issued another notice on 19.05.2011 reiterating the contents of the show-cause notice and also stating that the appellant was engaged in engineering activity without the consent of the Board and was discharging sewage into the land polluting the environment and further the appellant should close the industrial operation forthwith and for disconnection of electricity. Under such circumstances, an appeal was made before the Karnataka State Appellate Authority who dismissed the appeal. Hence the appeal has arisen before the Tribunal.

The case of the respondent in short is that the appeal is not maintainable due to the misjoinder of parties and apart from that there was no cause of action for the appellant. The industry of the appellant was being run for more than 6 years in a residential area. The said industry was commenced and being operated without the land conversion and also causing Air and Water pollution within the jurisdiction of the Respondent No. 3. Industry was also commenced without obtaining the valid Consent for Establishment or Consent for Operation from the Karnataka State Pollution Control Board as required under Section 25 of the Water Act 1974 and also under Section 21 of the Air Act 1981. In the instant case, a proper inspection was made by the Chairman and also the officials of the Board after serving a notice. After getting reply from the appellant, a show-cause notice was also served. The appellant put forth his reply. The authority made a thorough consideration and passed an order on merits and directed the appellant to close industry and also ordered for disconnection of the electricity. Aggrieved appellant took the matter on appeal before the Karnataka State Appellate Authority who by an elaborate order dismissed the appeal of the appellant on merits. Under such circumstances the appeal is meritless and has got to be dismissed by the Tribunal.

The only point arising for consideration in the appeal is: Whether the order of the Karnataka State Appellate Authority made in Appeal No. 60/2011 and 68/2011 requires any interference by the Tribunal for the reasons stated by the appellant herein?

The Tribunal heard the contentions put forth by the both sides and had thorough scrutiny of the available material.

Admittedly, the appellant is a proprietary concern engaged in the engineering industry of lathes. According to the appellant it was being run for a period of 3 years while according to the respondents it was being run for a period of 6 years. In the opinion of the Tribunal, how long the industry of the appellant was being run, is not a material necessary for the taking a decision in the appeal. The contention putforth by the respondent that the appellants industry is situated in residential area is not disputed by the appellant side. Apart from that the Chairman of the respondent Board along with the officials made an inspection and had found that the industry is situated in a residential locality. Following the inspection made, as admitted by the appellant, a notice was served upon the appellant on 23.11.2010 and the same was replied by the appellant. A show-cause notice dated 23.11.2010 was served and the same was also replied. Under such circumstances, it cannot be stated that an opportunity was not given or denied to the appellant. It is well admitted by the appellant that before the commencement of the industry, he has not obtained the Consent to Operate which was a condition precedent. The Consent to Operate from the Karnataka State Pollution Control Board is a condition under both enactments namely Water Act 1974 and also Air Act 1971. The contention put forth by the Counsel for the appellant that the Consent to Operate was applied for upon knowledge and there was a delay on the part of the respondent Board in issuing same cannot be countenance for 2 reasons. Firstly, the law mandates that the Consent to Operate under the Water and Air Acts should have been obtained earlier and that secondly, having commenced the industry in a residential area the appellant was operating the same for years, without either the Consent to Establish or the Consent to Operate, as required by law. The further contention put forth by the learned counsel that already an application was made for allotment of land for the purpose of the industry of the appellant and the same was allotted in an industrial area but the possession has not been handed over and if handed over the appellant would shift the industry to that area can neither be accepted nor can it satisfy the legal requirement. Even assuming that there was delay on the part of the KIADB in handing over the possession of the allotted plot, it cannot be accepted by any imagination to be a legal Act of the appellant. It is well admitted by the appellant that the industry was commenced without getting the Consent as required under Section 25(1) of the Water Act, which is mandatory. As rightly pointed out by the Karnataka State Appellate Authority, the setting up of the industry by the appellant without prior consent, a mandatory one under section 25(1) of the Water Act, itself was illegal and making an application later for consent can neither cure or make it legal. Under such circumstances and for the reasons stated above, the Tribunal is unable to find any reason to interfere with the orders of the State Appellate Authority and the said orders has got to be sustained.

It is a matter of surprise to notice that the Karnataka State Pollution Control Board has not made any inspection or taken any action in a given case like this, where the industry was being run illegally for number of years. Even assuming there was no complaint from any quarter, the authorities of the Pollution Control Board, were duty bound to make inspection and should have taken necessary action and stopped the appellant industry from committing illegal act. It is the case of Respondent Board that there was water and air pollution, which would mean that the authority, without inspection and action, has allowed the illegal activities of the appellant. From the point of environmental degradation, this attitude and inaction on the part of the authorities of Karnataka State Pollution Control Board is viewed by the Tribunal seriously.

The appeal is devoid of merits and dismissed accordingly. Leaving the parties to bear their costs.