Wonderseal Packaging vs Member Secretary And Ors

Wonder-seal Packaging Industry engaged in manufacture of plastic bags is in Appeal, invoking provisions of Section 16(c) and (g) of the National Green Tribunal Act, 2010. The order passed by 1st Respondent dated 11.11.2016 directing the Appellant industry to cease functioning, is invoking the powers conferred by the provisions of Section 33A of the Water (Prevention and Protection) Act, 1974 (For Short, 'Water Act') and Section 31A of the Air (Prevention and Protection) Act, 1981(For short, Air Act).

The Member Secretary, Maharashtra Pollution Control Board (MPCB)-Respondent No.1 and the Regional Officer of Board- 2nd Respondent are duly served and are represented by learned Counsel Mr. Sanyal.

The material propositions in support of relief to quash the impugned order and for grant of other consequential reliefs, manifest from the Appeal Memo are:

The Appellant is an industry incorporated under the Companies Act,1956, which has obtained consent to operate on 20th April, 2014, which is valid up to 30th April, 2019 under green category as Small Scale Industry. The industry is manufacturing zip-lock bags which are used for packing and storing of materials and are reusable.

It contends it has not contravened any provisions under which the consent to operate was issued, nor has it violated any of the provisions of enactments dealing with manufacturing, sale and storage of plastic bags.

It is alleged that the field officer of Respondents visited the Industry on 19.11.2016 and submitted report based on which arbitrarily 1st Respondent has passed the impugned order on 11.11.2016.

Learned Counsel for the Appellant while urging several grounds against the impugned order passed by the Member Secretary, mainly attacked on the legality of action under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981, hereafter referred to as 'Water Act' and 'Air Act' for short.)

To seek quashing of the impugned order, it is urged that the Appellant industry is undoubtedly involved in manufacturing of plastic bags and has violated consent and required permissions. The premises was inspected and the Report in this regard also refers to manufacturing of plastic bags storage by the Appellant. He submits that the inspection report of the industry conducted on 19.11.2016 as basis on which the impugned order dated 11.11.2016 has been passed, does not refer to any act of violation by the Appellant industry of any provisions of the Water Act and Air Act. Thus, he submits invoking the power under Section 33A of the Water Act and 31A of the Air Act by the Pollution Control Board to close the industry is wholly illegal and needs serious view. He submits that if the Appellant has violated any of the provisions of the Water Act and Air Act, then appropriate action requires to be taken under those provisions.

In response to the Notice in this Appeal, Mr. Sanyal, learned Counsel has entered appearance. We have heard him substantially.

The submissions of Appellant's Counsel and also of Mr. Sanyal boils down following issues:

1) Whether 1st Respondent could have exercised power Under Section 33A of the Water Act and Section 31A of the Air Act, to issue impugned order to stop running of the industry, when allegation is of alleged violation of provisions under the Plastic Waste (Management & Handling) Rules, 2016?

2) Whether 1st Respondent has power under Section 5 of the Environment (Protection) Act, 1986 to issue order or direction as suggestions made require under the provisions of Section 5 of the Environment (Protection) Act, 1986?

From undisputed facts on record and observations in the impugned order passed by 1st Respondent, makes it clear that 1st Respondent was informed that the officials that the Appellant is manufacturing zip plastic carry bags below 40micron i.e. 20 micron of size 8x8 inch and 8x12 inch stored. The quantity of bags stored was 10kg. It is seen from the impugned order also, there is no mention of Appellant's being manufacturing of plastic bags and being covered under the Plastic Waste (Management & Handling) Rules, 2016. But there is no statement in the impugned order as to what was nature of violation and how the Appellant has contravened the provisions of these two enactments to invoke Ss.33A and 31A of the Water/Air Act respectively. For the purpose of clarity it is worth to refer to the provisions of Ss. 33A of the Water Act and 31A of the Air Act.

SECTION 33A POWER TO GIVE DIRECTIONS

Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions.

Explanation.-For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service.

Section 31A of the Air (Prevention & Control of Pollution) Act, 1981, reads as under:

31A Power to give directions.-Notwithstanding anything contained in any other law, but subject to the provisions of this Act and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such direc-tions. Explanation.-For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service.] COMMENTS The Powers under section 31A are in addition to section 17. Section 17 of the Act is not exhaustive, therefore the general powers to issue directions were also conferred on the Board.

The provisions contained in Section 33A of the Water Act and Section 31A of the Air Act are para-materia. These provisions make it clear that the powers conferred on the Pollution Control Board by these provisions enable it to exercise the powers to close the industry and stoppage of supply of electricity etc. but the provisions itself spell out that the powers under Section 33A of the Water Act could be invoked by the Board only "in the exercise of its powers and performance of its functions under this Act." Therefore, to invoke the provisions under Section 33A of the Water Act, the Board must be exercising and performing its functions under the said Act. Similar is the case, Section 31A of the Water Act should be invoked only if the Board is exercising its powers under the provisions of Air Act and not otherwise. In the instant case, mentioning of facts in the impugned order show that the Member Secretary of the Board had received the complaint about violation of the Plastic Waste (Management & Handling) Rules, 2016, and not that the Appellant has contravened any provisions of the Water/Air Act.

These two provisions are virtually penal in nature and its compliance is mandatory. Therefore, the impugned order must show that the Board has thought fit in exercise of powers conferred by the Act and not otherwise.

At this stage, learned Counsel Mr. Sanyal would submit that under the provisions of the Plastic Waste (Management & Handling) Rules, 2016, there is no specific provision to take such action, as provided by Ss.33A and 31A of the Water/Air Act. It is difficult to appreciate this contention for the reason there is no explanation from the Board as to why it has not invoked the powers under Section 5 of the Environment (Protection) Act, 1986, which gives to the Board unbridled powers to issue such directions as it may be fit in the circumstances. It is seen from the provisions of Section 5 of the Environment (Protection) Act, 1986 that the Central Govt may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. This power has been delegated to the Pollution Control Boards and MPCH is not an exception. Therefore, the powers exercised by the Central Govt. being now exercised by the State Pollution Control Boards, MPCB, they have the powers to issue such order and directions to any person, industry etc. as circumstances deem necessary to prevent contravention of provisions of any of the enactments specially which are for environment protection. In the instant case, if the industry had violated the provisions of the Plastic Waste (Management & Handling) Rules, 2016, the department should examine whether it could invoke the powers under Section 5 of the Environment (Protection) Act, 1986. That is not done so instant, the Board has resorted to issue directions under Ss. 33A and 31A of the Water/Air Act, when there is no allegations of violation of any of the provisions of these enactments. Thus, the order impugned is illegal and nonest and has to be quashed.

The impugned order dated 11.11.2016 is hereby quashed. Consequently, the direction issued by the Board to disconnect electricity and water supply to the industry is also set aside. The interim order passed by this Tribunal on 8th December, 2016 is made absolute.

The Appellant's Counsel seeks imposition of costs on the Respondents for illegality in the proceedings. Normally costs are imposed when we finds that the party has deliberately or otherwise attempted to misuse the process of law to harass adversary, which is normally absent in the statutory authorities. Hence, we do not find any reason to impose the costs. The request is declined.

The Appeal is disposed off in terms of this order, making no order as to costs.

We appreciate assistance tendered in this case by learned Counsel Mr. R.B.Mahabal and Mr. S. Sanyal.