Reserved Case :- WRIT - C No. - 10259 of 2019 Petitioner :- Hma Agro Industries Ltd Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rahul Agarwal Counsel for Respondent :- C.S.C.,Hari Nath Tripathi,Vishnu Pratap Hon'ble Abhinava Upadhya,J.
Hon'ble Saurabh Shyam Shamshery,J.
(Delivered by Hon. S.S.Shamshery, J. under Chapter VII Rule 1 (2) of the Allahabad High Court Rules,1952)
1. Heard Sri Navin Sinha, Senior Advocate and Sri Anurag Khanna, Senior Advocate assisted by Sri Rahul Agrawal and Aishwarya Pratap Singh, learned counsel for the petitioner and Sri Vishnu Pratap Singh, learned counsel appearing for U.P. Pollution Control Board. The petition is heard finally at this stage with the consent of the Advocates for the parties.
2. Present petition has been preferred for a writ of certiorari to quash the order dated 17.3.2019 issued by respondent no 3 (Chief Environment Officer) as also all consequential steps taken subsequent thereto.
3. Petitioner company is engaged in the business of state of the art Abattoirs where frozen meat is packed in hygienic conditions and exported and sold across the world. The petitioner company has two Abattoirs in Uttar Pradesh, one situated in the district Agra and second one is situated in the district Aligarh. The present writ petition is in regard to second Abattoir which is situated in the district Aligarh.
4. According to petitioner's case, the Abattoir in the district Aligarh was established in the year 2011 after obtaining the consent to establish from Uttar Pradesh Pollution Control Board and was made functional after obtaining statutory consent to operate under The Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as Water Act) as well as under The Air (Prevention and Control of Pollution) Act 1981 (hereinafter referred to as Air Act) and the same was renewed from time to time. The latest consent is dated 27.12.2017. The petitioner's company also obtained no objection dated 22.10.2018 from Central Ground Water Authority, Government of India for extracting ground water.
5. Petitioner's Company claimed that they were maintaining all the requisite precaution required for business of Abattoir. They also abided by the directions issued by the authorities from time to time.
6. Uttar Pradesh Pollution Control Board vide their communication dated 6.2.2019 communicated the petitioner's company about directions issued by the National Green Tribunal in O.A No 200 of 2014 (M.C.Mehta Vs Union of India and others) regarding the pollution caused by Abattoirs. By the said letter, the petitioner company was directed to ensure that ETP (Effluent Treatment Plant) is operational and treated effluents conforms to parameters. It was further directed to the petitioner to install HD PTZ rotational Camera at the inlet and outlet point of ETP and the same be made operational with connectivity of the Control Room of Uttar Pradesh Pollution Control Board office at Lucknow. In the said letter, it was also specified that in case such directions are not observed in compliance within 15 days, appropriate action shall be taken against the petitioner's company.
7. As per the petitioner's case, they have taken all the remedial steps immediately on receipt of the said letter and also ensured that the treated effluents be meet with parameters prescribed. Uttar Pradesh Pollution Control Board sent another letter dated 8.2.2019 to the petitioner's company in pursuance of further directions passed by the Committee constituted by the National Green Tribunal after the Committee visiting Abattoirs situated in district Aligarh. Certain directions were issued whereby petitioner was directed to install HD PTZ rotational camera at the inlet and outlet point of ETP, to maintain hide record, to maintains stock register of sale of hide, establish a salt recovery plant and to ensure that no discharge is made in drain close to the petitioner's Abattoir and solid waste is to be disposed of in accordance with the Rules. It was further directed by the said letter that all the said directions be observed in compliance within 15 days and in absence of compliance, appropriate action may be taken against the petitioner.
8. As per the case of the petitioner, the petitioner took all the steps to comply with the directions as mentioned in the letter dated 8.2.2019 also. The petitioner also responded by letter dated 27.2.2019 to the communication made to the petitioner and specifically intimated the respondent no 3 that the petitioner has installed HD PTZ rotational camera at the inlet and outlet point of ETP and immediately on connection of the same with the on-line system, the requisite URL and pass word would be made available to the respondent no 3.
9. Further response was also sent on the even date specifically mentioning that record of hide and stock register are separately maintained, salt recovery plant is being established and no discharge is made into any stream or well.
10. Petitioner's Unit was inspected by the Regional Officer Aligarh of respondent no 3 and a sample of treated effluent at the outlet point of ETP was also taken. The District Level Committee constituted by the respondent no 3 also inspected the petitioner's Abattoir on 12.3.2019. Certain samples were also taken by the District Level Committee.
11. Uttar Pradesh Pollution Control Board vide impugned order dated 17.3.2019 issued a direction to the petitioner to close its Abattoir situated in district Aligarh for contravening the provisions of section 32 (1) (c ) and section 33 A of the Water Act. The said order stated that in inspection, certain shortcomings were found and the petitioner was unable to satisfy the said shortcomings. It was mentioned in the impugned order that URL details alongwith password of HD PTZ camera have not been provided to the authorities. The primary clarifier of the ETP and UASBR of Unit 1 to 4 was not working and no gas was found emitting out of UASBR and consequently there was a deposit of sludge.
12. Learned Senior Counsel appearing on behalf of the petitioners submitted that the impugned order dated 17.3.2019 is passed without issuing any show cause notice and without granting any opportunity to communicate stand of the petitioners and as such the principles of natural justice have been clearly violated.
13. Learned Senior Counsel further submitted that the directions contained in section 33 A of the Water Act and the procedure prescribed in Rule 34 of the Water Rules has to be complied with. However, in the present case, such procedure has not been followed inasmuch as no show cause notice was issued and no proposed direction was communicated nor any opportunity was granted to file objection to the proposed action.
14. Learned Senior counsel further submitted that the grounds mentioned in the impugned order are factually incorrect as the petitioner's abattoir has complied with all the requisite parameters as well as has complied with all the directions issued under the communications dated 6.2.2019 and 8.2.2019.
15. Learned Senior Counsel has also placed reliance on a judgment passed by a Co-ordinate Bench of this Court in Writ-C No 4462 of 2013 (HMA Agro Industrial Ltd Vs State of U.P. And others) wherein in similar circumstances, order of closure issued therein was quashed. The action taken therein was quashed as principles of natural justice were violated. The learned counsel relied upon following portion of the said order.
“Petitioner is an Industry and it has prayed for quashing of the order dated 8th January, 2013, contained in Annexure No.1 to the writ petition, issued under signature of the Member Secretary, U.P. Pollution Control Board, whereby he has communicated that the State Board on considering the materials indicated in that order has decided to refuse grant of consent for the year 2013, in exercise of powers under Section 27(2) of the Water (Prevention and Control of Pollution) Act, 1974. Some further directions have also been issued through the impugned order such as for closure of the Industrial Unit with immediate effect etc., which are clearly consequential directions on account of order passed under Section 27 of the aforesaid Act.
On behalf of the petitioner, our attention was drawn to the facts mentioned in the impugned order which disclose that the Industrial Unit of the petitioner situated at Aligarh, was inspected by the Officials of the U.P. Pollution Control Board on two occasions, first on 21.11.2012 and again on 13.12.2012. Petitioner's grievance is that although a show cause notice was issued on 22.11.2012 but the analysis report of the samples collected on 21.11.2012 was not furnished with the show cause notice. It has further been submitted that even the analysis report with respect to the samples collected on 13.12.2012 was also not furnished to the petitioner although the findings of such report have been mentioned in the impugned order and have been used against the petitioner.
A careful perusal of the impugned order discloses that the Authorities of the U.P. Pollution Control Board have placed reliance upon notice of inspection made on 21.11.2012 and not upon the analysis report of any sample of effluent collected on that date. Since the authorities themselves have not placed any reliance upon analysis report in respect of sample collected on 21.11.2012, petitioner's grievance regarding non-supply of copy of the analysis report in respect of first inspection and sample collected therein, cannot have any significance. However, since the analysis report in respect of sample collected on 13.12.2012 has been used in the impugned order and since such sample was collected after show cause notice and receipt of petitioner's reply thereto, we find substance in the submission that principle of natural justice have not been fully complied with. Petitioner ought to have been given a copy of the analysis report which has been used against it with liberty to file further show cause. That was obviously not done and that, in our considered opinion, is a lapse on the part of the concerned respondents, which must be rectified by them before the petitioner can be relegated out of this Court on account of availability of statutory alternative remedy of appeal under Section 28 of the Act.
Hence, although a statutory appeal is provided against the order dated 08.01.2013, in view of our finding recorded above, we quash the impugned order dated 08.01.2013 without going into the merits of the case only with a view to ensure that a copy of the analysis report in respect of sample collected on 13.12.2012 is furnished to the petitioner and it is afforded another opportunity of filing a show cause. It goes without saying that after giving such opportunity to the petitioner, the respondent Authorities shall be at liberty to pass any appropriate order on the merits of the case, in accordance with law. We expect the Authorities to complete the exercise by furnishing copy of the analysis report and fresh show cause notice and passing fresh order in accordance with law at an early date, preferably, within four weeks from today.
Some faint suggestion was also given in the course of argument on behalf of the petitioner that the impugned order was not passed by the competent authority namely the U.P. Pollution Control Board but was passed only by the Member Secretary. No useful purpose will be served by going into this controversy when we have remanded the matter for passing fresh order in accordance with law. The writ petition is allowed to the aforesaid extent.” (Emphasis supplied)
16. The learned counsel has also relied upon a judgment of Supreme Court in Tamil Nadu Pollution Control Board Vs Sterlite Industries (1) Ltd and Ors reported in 2019 (3) SCALE 721 in order to show that availability of statutory alternative remedy of filing Appeal before National Green Tribunal under section 33 B of the Water Act does not bar the petitioner from approaching this Court under Article 226 of the Constitution of India. The learned counsel also submitted that the impugned order has been passed under two provisions of the Water Act . The First is section 32 (1) (c ) and second is under section 33 A of Water Act. Though appeal is available against the order passed under section 33 A. However, no appeal is available to any order passed under section 32 of the Water Act and for that the learned counsel relied upon para 35 of the judgment in Tamil Nadu Pollution Control Board (supra). Para 35 is quoted below.
“35. We have referred to the orders dated 12.04.2018, 23.05.2018, and 28.05.2018 passed by the TNPCB under Sections 33A and 31A of the Water Act and Air Act respectively. At this juncture, it is important to state that Section 33B of the Water Act and Section 31B of the Air Act were both enacted on 18.10.2010, which is the very date on which the NGT Act came into force. What is important to note is that whereas Section 33B(c) of the Water Act read with Section 16(c) of the NGT Act make it clear that directions issued under Section 33A of the Water Act are appealable to the NGT, directions issued under Section 31A of the Air Act are not so appealable.
In fact, the statutory scheme is that directions given under Section 31A of the Air Act are not appealable. This being the case, all the aforesaid orders, being composite orders issued under both the Water Act and the Air Act, it will not be possible to split the aforesaid orders and say that so far as they affect water pollution, they are appealable to the NGT, but so far as they affect air pollution, a suit or a writ petition would lie against such orders. Shri Sundaram's argument that these orders being substantially relatable to the Water Act would, therefore, not hold, as such orders are composite orders made both under the Water Act and the Air Act. Equally disingenuous is the reference to Section 14 of the NGT Act which only refers to the original jurisdiction of the NGT and not to its appellate jurisdiction.
Also, to state generally that the subject matter of environment lies with the NGT, is an argument of despair that must be dismissed for the reason that as held by us hereinabove, an appeal being a creature of statute, a statute either confers a right of appeal or it does not. In the present case, we have seen that so far as directions issued under Section 31A of the Air Act are concerned, there is no right of appeal conferred by the Air Act read with the NGT Act. The ingenious argument made by Shri Sundaram that, in any case, a "direction" under Section 31A of the Air Act is nothing but an "order", and would, therefore, be appealable as such under Section 31B of the Air Act read with Section 16(f) of the NGT Act would drive a coach-and-four through the statutory scheme that has just been adverted to. We have seen how all the appellate proceedings to the NGT, whether under the Air Act, the Water Act, or the NGT Act have been brought into force on the same date.
Whereas the identical power to give directions by the Board under the Water Act is appealable to the NGT, the same power to give directions by the Board under the Air Act is not so appealable. The absence of any mention of Section 31A in Section 31B of the Air Act, given the statutory scheme as aforesaid, makes it clear that even this argument must be rejected. Also, "directions" that are issued under Section 31A of the Air Act are of a different quality from "orders" referred to in Section 31 of the same Act. Directions are issued in the exercise of powers and performance of functions under the Act and are not quasi-judicial in nature, whereas orders that are appealed against under Section 31 are quasi-judicial orders made, inter alia, under Section 21 of the Air Act.
For this reason also, we cannot accept the aforesaid argument of Shri Sundaram. However, Shri Sundaram argued, with particular reference to the explanation to Section 31A of the Air Act that "directions" partake of the nature of "orders" when closure of any particular industry or stoppage of supply of electricity qua any single industry is made, and therefore, such directions are appealable as orders under Section 31 of the Air Act. This argument is also of no avail as Section 33A of the Water Act contains an identical explanation to that contained in Section 31A of the Air Act. Despite this, the legislative scheme, as stated hereinabove, is that so far as directions under the Water Act are concerned, they are appealable, but so far as directions under the Air Act are concerned, they are not appealable.
Hence, reference made to P. Ramanatha Aiyer's Law Lexicon and Black's Law Dictionary, which state that in certain circumstances, orders are also directions and vice versa, would not apply to the present case, given the express statutory scheme. In this connection, Shri Sundaram cited Kanhiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC 678, and relied upon paragraph 17, where this Court held, referring to Article 324(1) of the Constitution of India, that a "direction" may be equated with a specific or a general order. The context of Article 324 being wholly different, it is obvious that this authority also has no application, given the statutory scheme in the present case. (Emphasis supplied)
17. The learned counsel appearing on behalf of Central Pollution Control Board submitted that communications dated 6.2.2019 and 8.2.2019 are akin to show cause notice as provided under Rule 34 of the Water Rules,S 1975 and when the petitioner has failed to comply with the directions mentioned in the said communication and the authorities had rightly taken action to close down the Abattoir of the petitioner's company relying upon inspection reports.
18. The learned counsel has also stressed on Rule 34 (6)of Water Rules, 1975 which provides power in emergency to pass directions even without providing an opportunity to the affected person. Rule 34 (6) provides as follows.
“34 (6) In a case where the Central Board is of the opinion that in view of the likelihood of a grave injury to the environment it is not expedient to provide an opportunity to file objections against the proposed direction, it may for reasons to be recorded in writing issue directions without providing such an opportunity.”
19. Learned counsel has also submitted that on inspection of the Abattoir it was found that direction issued on behalf of the Central Pollution Control Board have not been complied with and reply to the communication dated 6.2.2019 as well as 8.2.2019 were not satisfactory and therefore, he submitted that the impugned order does not suffer from any legal infirmity and principles of natural justice have been complied with.
20. Learned counsel further submitted that section 33 B of Water Act provides an appeal to the National Green Tribunal against the directions issued under section 33 A of the Water Act and therefore, the present writ petition is liable to be dismissed on the ground of availability of statutory alternative remedy.
21. Considered the submissions made across the bar and perused the record.
22. For effective disposal of the present writ petition, following provisions of law are relevant which are quoted below.
“Section 32(1) in The Water (Prevention and Control of Pollution) Act, 1974.
(1) Where it appears to the State Board that any poisonous, noxious or polluting matter is present in 1[any stream or well or on land by reason of the discharge of such matter in such stream or well or on such land] or has entered into that stream or well due to any accident or other unforeseen act or event, and if the Board is of opinion that it is necessary or expedient to take immediate action, it may for reasons to be recorded in writing, carry out such operations, as it may consider necessary for all or any of the following purposes, that is to say,—
(a) removing that matter from the 2[stream or well or on land] and disposing it of in such manner as the Board considers appropriate;
(b) remedying or mitigating any pollution caused by its presence in the stream or well;(c) issuing orders immediately restraining or prohibiting the person concerned from discharging any poisonous, noxious or polluting matter 3[into the stream or well or on land] or from making insanitary use of the stream or well.
….............................................
Section 33A in The Water (Prevention and Control of Pollution) Act, 1974 [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 33B in The Water (Prevention and Control of Pollution) Act, 1974 [ 33B Appeal to National Green Tribunal. —Any person aggrieved by,—
(a) an order or decision of the appellate authority under section 28, made on or after the commencement of the National Green Tribunal Act, 2010; or
(b) an order passed by the State Government under section 29, on or after the commencement of the National Green Tribunal Act, 2010; or
(c) directions issued under section 33A by a Board, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.] …......................................................................
Rule 34 of Water (Prevention & Control of Pollution) Rules 1975 34. (1) any direction issued under section 33A shall be in writing.
(2) The direction shall specify the nature of action to be taken and the lime within which it shall be complied with by the person, officer or the authority to whom such direction is given.
(3) The person, officer or authority to whom any direction is sought to be issued shall be served with a copy of the proposed direction and shall be given all opportunity of not less than fifteen days from the date of service of a notice to file with an officer designated in this behalf the objections, if any, to the issue of the proposed direction.
(4) Where the proposed direction is for the stoppage or regulation of electricity or water or any other services affecting the carrying on an industry. operation or process and is sought to be issue to an officer or an authority, a copy of the proposed direction shall also be endorsed to the occupier of the industry, operation or process, as the case may be, and objections, if any, filed by the occupier with an officer designed in this behalf shall be dealt with in accordance with the procedures under sub-rules (3) and
(5) of this rule:
Provided that no opportunity of being heard shall be given to the occupier, if he had already been heard earlier and the proposed direction referred to in sub-rule (3) above for the stoppage or regulation of electricity or water or any other service was the resultant decision of the Central Board after such earlier hearing.
(5) The Central Board shall within a period of 45 days from the date of receipt of objections, if any, or from the date upto which an opportunity is given to the person,. officer or authority to file objections whichever is earlier, after considering the objections, if any, sought to be directed and for reasons to be recorded in writing, confirm, modify or decide not to issue the proposed direction.
(6) In a case where the Central Board is of the opinion that in view of the likelihood of the grave injury to the environment it is not expedient to provide an opportunity to file objections against the proposed direction, it may, for reasons to be recorded in writing, issue directions without providing such an opportunity.”
23. Rule 34 of Water Rules as mentioned above, provides a complete scheme for issuing any direction under section 33 A of Water Act. However, in the present case, the said scheme has not been followed as neither the petitioner has been served with a show cause notice along with a copy of the proposed directions nor the petitioner has been given any opportunity to submit objections nor the petitioner has been communicated about the proposed directions.
24. The argument of the respondents that communication dated 6.2.2019 as well as 8.2.2019 are akin to show cause notice under Rule 34 of Water Rules are not tenable. The contents of the said communications do not specify details as mentioned in sub para (3) of Rule 24 of Water Rules 1975. Therefore, the authorities have not complied with the procedure prescribed in Rule 34 of the Water Rules 1975.
25. We have also considered the judgment relied upon by the petitioner in T.N. Pollution Control Board (supra) and we are of considered view that in the present case, the petition under Article 226 of Constitution of India is maintainable and it cannot be dismissed on the ground of availability of statutory alternative remedy of Appeal under section 33 B of the Water Act and further the order under section 32 (1) (2) is not even appealable under section 33 B of Water Act. Therefore, we are in agreement with the submissions made by the learned counsel for the petitioner that this petition under Article 226 is maintainable.
26. As we have already held that the procedure prescribed under Article 34 of the Water Rules 1975 has not been followed and therefore, the alternative argument of the learned counsel for the respondents that the actions against the petitioner's Abattoir are taken under Rule 34 (6) is also liable to be rejected as respondents have not placed any document in support of this submission. Right to fair hearing is a sacrosanct obligation on the adjudicator to ensure fairness in procedure and action. However in the present case, such fairness is missing.
27. We are also in agreement with the judgment passed by the Co-ordinate Bench in HMA Agro Industries (Ltd) Vs State of U.P. & ors) (supra) and accordingly, this writ petition is allowed and the impugned order dated 17.3.2019 is quashed. However, the respondent authorities shall be at liberty to pass appropriate order in accordance with law after complying with the procedure prescribed in the Water Act as well Water Rules within a period of four weeks from today after serving show cause notice alongwith the requisite documents to the petitioner.
Order Date :-May 31, 2019. MH (Saurabh Shyam Shamshery,J.) (Abhinava Upadhya,J.)