Odisha State Pollution Control Board vs Aswini Kumar Dhal And Ors

O.A. No. 41/2015/EZ was preferred by one Aswini Kumar Dhal of Jakhapura, District, Jajpur, Odisha seeking for directions against the Odisha State Pollution Control Board, the District Collector, Jajpur district, various East Coast Railway authorities etc., for illegal operation of a railway siding/stack Yard in Jakhapura Railway Station causing severe air and water pollution in the locality to the detriment of health and economy of the people of the area. The OA was ultimately disposed off vide judgement dated 25th May, 2016, holding the Odisha State Pollution control Board (in short PCB), the District collector, Jajpur and the East Coast Railways culpable with directions for initiating certain actions against them and for payment of penalty by the Railways.

In the said judgement certain observations had been made against the Chairman and the Member Secretary, Odisha State PCB in paragraphs 37 and 38 ( c) and, directions issued against them in paragraph 39(I)(ii). For convenience we may reproduce those portions below :-

"37. The Member Secretary, PCB, Odisha, by a communication No. 6163/Ind./Con. 6458 dated 04.04.2015 much to our astonishment, revoked the stoppage/closure order only by taking into consideration the action by the railway for compliance of the statutory provision. It is pertinent to note that closure order was issued by the Board to the railway siding unit as it was a „red category‟ unit admittedly operating without consent from the Board and also that there were violations of pollution norms. Once a closure order was issued for want of consent to operate as one of the reasons, the unit could not have been allowed to operate before grant of consent after due consideration of their pending application therefor by following the due process. We find it difficult to comprehend as to how the State Pollution Control Board could have revoked its own closure order issued against a red category industry which was admittedly operating from the beginning in violation of the requirements under the Air Act, 1981, the Water Act 1974 and in non-compliance of the mandatory consent management. The reply affidavit filed by the PCB that "considering the report of the inspection team, closure order was revoked", clearly shows that the Chairman, PCB did not follow the consent management rules and allowed the Railway to undertake Loading Unloading activities even when it had not been granted consent to operate. Clearly, therefore, the decision of the Chairman, State PCB, is undeniably in violation of the environmental norms and is to be seriously deprecated.

Having discussed on the facts and circumstances in detail, we are of the considered view that -

(a) ..... ..... ..... ....... ....... ...........

(b) ........... ........ ...... ......... ........

(c) he Chairman and Member Secretary, State Pollution Control Board have not functioned in accordance with the power vested on them under the Water Act, 1974 and the Air Act, 1981 in revoking closure order issued against a non-compliant Unit operating without consent of the Board and the Board acted in haste and under pressure in allowing the unit to continue operating illegally without consent of the Board.

For the reasons stated above we direct as follows:-

I. ...... ........ ........ .......... ........ ..........

(ii) he Govt. of Odisha through the Chief Secretary to constitute a High Power Committee to enquire into the action of the Chairman and Member Secretary, PCB, who have been delegated by the Board vide order No. 9832/Ind-I-CON-MISC-306 dated 25.1.2008, in revoking the closure order and thereby allowing the Railway siding at Jakhapura to undertake the activities in the absence of consent to operate certificate of the Board and, recommend appropriate action against them to the Government....."

By filing this petition the petitioner seeks for a review of the aforesaid portions of the judgement on the ground that the directions and observations of the Tribunal were as a result of manifest errors apparent on the face of the record.

he primary ground raised for seeking the review is that while making the impugned observations and directions the Tribunal had overlooked the fact that the revocation of the closure order issued by the PCB against the Railway Siding at Jakharpura railway station under the East Coast Railway, was in view of compliance of the statutory provisions by the East Coast Railway authorities. As per the petitioner, such direction revoking the order of closure was issued in exercise of his power delegated upon the Regional Officer of the PCB to consider the matter of consent for the railway siding for which application was pending and to take action in that regard. As per the petitioner, revocation of the closure direction before consideration of the application for consent, was as per the provisions of the Air Act, 1981 and Water Act, 1974.

It is emphasised that considering the facts and circumstances of the case and in the backdrop of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981, it was sine qua non to revoke the direction of closure before the consent application submitted by the Railways could be considered. That the action of the Chairman in revoking the closure direction being issued in accordance with the statutory provisions governing consideration of applications for consent to operate, was, therefore, legal and valid. Under such circumstances, as per the review petitioner, the views expressed and the directions issued against the Chairman and the Member Secretary of the State PCB in the above referred to portion of the judgement dated 23.5.2016 disposing of OA 41/2015/EZ were errors apparent on the face of the record.

On 23.1.2017, when the matter was taken up for hearing, on the prayer of Mr. N.C.Bihani, Ld. Counsel for the review petitioner, leave to file an affidavit on behalf of the Member Secretary, State PCB was granted and, to the Chairman, State PCB, further time to file such affidavit.

However, when the matter came up for hearing on 2. 2.2017, it was informed by Mr. Bihani that since the officer holding the post of the Chairman, State PCB, has since left having taken voluntary retirement, no instructions could be obtained from him as a result of which he was unable to file the affidavit.

Since by order dated 23.1.2017 it had been made clear that the affidavit should be filed within one week and not a day later which obviously had not been complied with, the review petition was taken up for hearing without waiting further for such affidavit .

In his affidavit filed on 1.9.2016, we find that the Member Secretary, Odisha State PCB, except for repeating and re-emphasising the same facts pleaded in the review application, nothing else of substance has been stated. For convenience we may reproduce below Paragraph 4 of the affidavit:

"4. That it has been, inter alia, stated in the review application that the power to revoke closure direction has been vested with the Chairman by virtue of the delegation of power and the power to grant/refuse consent and issuance of direction for closure are vested with the Regional Officer, it was stated that the Chairman, after being satisfied with the compliance of the statutory provisions, revoked the direction of closure order and directed the Regional officer to take action for disposal of the consent matter and guide the Railway Authority in implementing the pollution control measures as per the approved guidelines of the Board. It was stated that the Chairman had revoked the closure order on the basis of the compliance as stated in the inspection report for facilitating the consideration of the pending consent application".

he only additional fact discernible in the affidavit is that the steps taken by the Chairman in revoking the closure order were in good faith and in due compliance of the provisions of the law. The apology tendered by him said to be unconditional and unqualified, is also with a rider "if the legal provisions have been violated in any manner whatsoever".

his was followed by a supplementary affidavit filed on 12. 1.2017 which was taken on record on 23.1.2017 whereby in paragraph the apology tendered in the aforesaid manner was again repeated.

When we had pointed out the above anomaly to Mr.N.C.Bihani, Ld. Counsel appearing for the Review Applicant, he prayed for leave to withdraw those and file one afresh. Leave as prayed for having been granted, another supplementary affidavit was filed on23.01.2017 but, this time it was by Mr. Rajiv Kumar, Chief Conservator of Forest (Personnel & Administration), Odisha, who was the Member Secretary, Odisha state PCB at the material time and the person responsible for having issued letter No. 6163/I &D./Con./ 6458 dated 4.4.2015 by which the stop/closure order issued against the East Coast Railway was withdrawn. In paragraph 4 of the supplementary affidavit, we find that he has offered an unconditional and unqualified apology and has prayed for being pardoned for his actions. Paragraph 4 is reproduced below for convenience:-

" 4. I had written the letter concerned due to inadvertence. I tender my unconditional and unqualified apology before this Hon'ble Tribunal for such actions taken by me being the erstwhile Member Secretary of Odisha Pollution control Board and I earnestly pray before the Hon'ble Tribunal to be pardoned for the same."

Without going much into the facts of OA 41/2015/EZ as those are not relevant, it would be sufficient to note that neither the Chairman nor the Member Secretary, both past and the present, have denied that the stop/closure order of the railway siding at Jakhapura was revoked before the consent to operate was granted to the East Coast Railways for which application was under consideration before the Regional Officer of the State PCB.

In the review application emphasis has been laid by them on the power vested upon the Chairman to grant/refuse consent and, upon the Regional Officer of the State Board to issue direction for closure. In paragraph 10 of the review application, it has been pleaded that the closure direction was revoked by the Chairman of the Board on being satisfied that the statutory provisions of the Water Act, 1974 and the Air Act, 1981, had been satisfied by the railways and, by referring to the order dated 04.04.2015 conveying such revocation, it has been curiously stated that the order of revocation issued by the review petitioner was for the purpose of considering the pending application of the Railways for consent as per the terms of the delegation of power vested in him.

he question that would thus require determination is as to whether the Tribunal, while making the observations at paragraphs 37 and 38(c) and the directions issued in paragraph 39(I)(ii), had considered all the facts and circumstances including the letter dated 4.4.2015. The answer to this cannot but be in the affirmative in view of the detailed discussions on this aspect set out in the judgement which ultimately led us to make the observations at para 37 which by itself are clear, categorical and unambiguous.

Under the Air (Prevention & Control of Pollution) Act, 1981 and Water (Prevention & Control of Pollution) Act, 1974, no project or activities requiring consent under these Acts can be taken up without "previous consent of the State Board". We may refer to Sec. 25 of the Water (Prevention & Control of Pollution) Act, 1974 and Sec. 21 of the Air (Prevention & Control of Pollution) Act, 1981. Undeniably, the activities of the railway siding had come within the purview the Consent Management of the State PCB after the year 2011. Since the Jakhapura railway siding was said to have been in existence earlier to the year 2011 and, therefore, by application of the proviso to Sub-section (1) to Section 21 of the Air (Prevention & Control) Act, 1981, prior to that year, no consent was necessary and they would be permitted to continue for three months. If application for consent had been made by the Railways within the three months, it would then have been permissible for them to have continued operating for the period till the disposal of such application. Similar provision is found in the Water (Prevention & Control of Pollution) Act, 1974 in the proviso to Sub-section (1) of Sec 25 thereof. Although the railway in question is not one which was in operation before the commencement of these Acts, the principle under the proviso to Sec. 21 of the Air (Prevention & Control of Pollution) Act, 1981 and the proviso to sub-section (1) of section 25 of the Water (Prevention & Control of Pollution) Act, 1974, would certainly apply in full force. This obviously having not been done naturally led the Regional Officer of State PCB to issue the closure order.

he proposition canvassed on behalf of the review petitioner that the closure order issued by the Regional Officer was revoked by the Chairman, State Board as he was satisfied with the compliance of the statutory provisions by the Railways and that such revocation was sine qua non in the facts and circumstances of the case, in our view, is alien to both the statutes and, therefore, cannot be countenanced.

In the facts and circumstances discussed above, we do not find any reason as to why we should review the judgement as prayed for on behalf of the review petitioner.

he review application is, therefore, liable to be rejected.

However, upon consideration of the fervent plea of the then Member Secretary in his affidavit filed on 23.1.2017 and in consideration of the unconditional and unqualified apology tendered by him and, further that he has since been relieved of the position of the Member Secretary and transferred elsewhere, interest of justice would be served if the Chief Secretary, Govt. of Odisha issues a non-recordable warning against him i.e. to Mr. Sri Rajiv Kumar, Chief Conservator of Forest (Personnel & Administration) Deptt. Of Forest, Govt. of Odisha, cautioning him not to repeat such indiscretion in future.

In so far as the Chairman of Odisha State PCB is concerned, the necessity of taking action as directed in paragraph 39(I)(ii) of the judgement would now be otiose and infructuous since it has been conveyed to us that the officer has since left service on voluntary retirement.

he direction contained in paragraph 39(I)(ii) shall, therefore, stand modified as under :-

"In view of the unconditional and unqualified apology tendered by Mr. Rajiv Kumar, the then Member Secretary, State PCB in RA 108/2016/EZ, it is ordered that a non-recordable warning be issued against him by the Chief Secretary and he be cautioned not to repeat such omissions and commissions in future. As the Chairman, State PCB who was responsible for the indiscretion of having ordered for revocation of the closure order, is said to have sought voluntary retirement which is reported to been allowed, no further action need be taken against him. "

With the above observations and directions, the Review Application stands disposed of.

No order as to costs.

Kolkata

Dated 10th February, 2017