IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 67 of 2011 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the
4 interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================= VALSAD JILLA PARIYAVARAN TRUST THROUGH PRESIDENT & OTHERS Versus STATE OF GUJARAT THROUGH PRINCIPAL SECRETARY & OTHERS ========================================= Appearance :
MR MUKESH A PATEL for the Petitioners MR PK JANI, GP with RASHESH RINDANI, AGP for the Respondent No.1 MR HS MUNSHAW with MR VAIBHAV A VYAS for the Respondent Nos.6 and 8 MR HARDIK P. MODH, for the Respondent No.9 MR HITESH D. PADHYA, for the Respondent No.12 ========================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 8/11/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This writ petition, under Article 226 of the Constitution of India, in the nature of a public interest litigation, is at the instance of a trust and a few local residents of the village Nani Tambadi, situated in the District of Valsad, and have prayed for an appropriate writ, order or direction on the respondent authorities to stop the establishment and construction of an industrial unit by the respondent No.12 on the land bearing survey Nos.307, 308, 356 and 357/1 of the village Karaya, and have also prayed to initiate appropriate actions against the respondent No.12 for the alleged contraventions committed by the respondent No.12 of the terms and conditions, on which permission has been granted by the authorities for setting up of an industrial unit. The petitioners have also prayed for an appropriate writ, order and/or direction, restraining the respondent No.12 from setting up the industrial unit, as according to the petitioners, such unit is being set up in a residential zone and was likely to cause environmental hazards.
2. The case made out by the petitioners in this petition may be summarized as under:
2.1 The petitioner No.1 is a trust, duly registered under the provisions of the Bombay Public Trust Act, 1950, having its registration No.E18791999. The said trust was established with an object to protect the environment in the area of the District of Valsad, and/or to help the small agriculturists in protecting their rights. The other petitioners are the local residents of village Nani Tambadi, and claim to be active social workers. According to the petitioners, the respondent No.12 has started establishing a unit and construction thereof in the form of a godown for the storage of petroleum products in survey Nos.307, 308, 356 and 357/1 of the village Karaya in violation of the provisions of law and thereby, endangering public life in the vicinity. According to the petitioners, the establishment of such unit would cause lot of environmental problems affecting the underground water, and also the supply of water from the irrigation canal. The land in question was purchased by the respondent No.12 from its erstwhile owner, in breach of the provisions of sections 65, 65A and 65B of the Bombay Land Revenue Code. According to the petitioners, the land in the District of Valsad is considered to be a very fertile land. The entire area is well irrigated, and the local people earn their livelihood from the agricultural activities. According to the petitioners, the authorities concerned should not have granted permission in favour of the respondent No.12 to set up the unit, as proposed. It is also the case of the petitioners that the area of village Nani Timbadi falls within the declared “Command Area” of the Damanganga Irrigation Project. The object of such project is to establish infrastructure, and to develop the agricultural activities. No permission for establishment of an industry, at the cost of the agricultural activities, could have been granted. According to the petitioners, the land in question was originally an agricultural land, and the agricultural land cannot be sold to a nonagriculturist, and, as such, no permission under Sections 63 and 65 had been obtained by the respondent No.12 before entering into the said transaction. According to the petitioners, no permission under Section 63AA or a revised permission under Section 65 of the Bombay Land Revenue Code could be granted, as the land in question falls within the proviso to Section 65B of the Bombay Land Revenue Code. It is also the case of the petitioners that, as such, the land in question ought to have been treated as an agricultural land, even after the year 1982, as, non agricultural permission had ceased to operate, as the lands were not put to non agricultural use, for which the permission was granted at the relevant point of time.
2.2 It is also the case of the petitioners, that as per the norms and guidelines of the Gujarat Pollution Control Board (for short “the GPCB”), there cannot be any establishment of any industry within the area of 500 meters from a residential zone and water resources/canal. It is also the case of the petitioners, that the respondent No.12 has made no provision for the discharge of water containing poisonous chemicals, and in the absence of any such provision, the discharge would be directly on the land. Due to large consumption of water by the respondent No.12, the supply of water, in the surrounding areas, would also be affected. Thus, according to the petitioners, the respondent No.12 should not be permitted to go ahead with the establishment of the industrial unit on the land bearing survey Nos.307, 308, 356 and 357/1 of the village Karaya, as it was likely to create problems of pollution, and many other difficulties for the people residing within the vicinity of the unit.
2.3 Notice was issued on the respondents, and the respondents have opposed this petition by filing their respective affidavitinreply.
3. Stance of the respondent No.6, GPCB.
3.1 According to the GPCB, the site of the respondent No.12, namely, Padmavati Logistics, was inspected by their officials on 18th November, 2011, and at the time of inspection, it was found that the unit was not in operation, and the construction activity was almost completed. The officials of the Board further noticed that no manufacturing activity was being undertaken in the said premises, and it was informed that the said premises was sought to be used as a godown for storing nonhazardous waste chemicals. At the time of the inspection, no storage of chemicals or other material was noticed in the said premises.
3.2 According to the GPCB, there would be no generation or discharge of industrial affluent or fuel gases from the said unit, and therefore, there was no question of any air or water pollution in or around the said unit.
3.3 According to the GPCB, the respondent No.12 had preferred an application on 1st April, 2011, requesting the GPCB for grant of consent to establish the unit under Section 25 of the Water Act, 1974, and Section 21 of the Air Act, 1981. After due verification, the GPCB granted the consent to the respondent No.12, vide its order dated 4th June, 2011, subject to the conditions specified therein. It is the case of the GPCB that the premises of the respondent No.12 was inspected, pursuant to the complaint dated 27th February, 2011, received by the GPCB, and not for any other purpose, as the GPCB had already granted the consent to establish the unit on being satisfied that the unit was a zero generation or zero discharge unit. The GPCB has also clarified that the norms and guidelines, referred to by the petitioners, in para No.8(G) of the petition, are applicable only to the polluting units and would not apply, so far as the unit of the respondent No.12 was concerned, as the same has been certified as a Low Pollution Potential Unit. According to the GPCB, the grievance voiced by the petitioners, that due to the activities, which would be undertaken by the respondent No.12, there would be air and water pollution, was totally baseless and misconceived.
4. Stance of the respondent No.5, Collector, Valsad.
4.1 According to the respondent No.5, Collector, Valsad, the respondent No.12, through one Daksaben Hemchandra Gauda, had applied for a revised nonagricultural permission, for the purpose of a godown storage. By communication dated 31st March, 2010, the District Development Officer, Valsad, had sought opinion in that regard from the District Collector. On perusal of the records of the land bearing survey Nos.307, 308, 356 and 357 paiki 1 of the village Karaya, Taluka Pardi, and considering the relevant guidelines, as laid down in the resolution of the Revenue Department, State of Gujarat dated 1st July, 2008, and also, after necessary inquiry from the Mamlatdar as well as the Deputy Collector, Pardi, the District Collector, Valsad, vide communication dated 1st July, 2010, had forwarded its opinion to the District Development Authority, Valsad, certifying the title of the land, referred to above.
4.2 After following the procedure, the District Development Officer, Valsad, granted revised nonagricultural permission under Section 65A of the Bombay Land Revenue Code.
5. Stance of the respondent Nos.3 and 9 i.e. the Secretary, Irrigation Department and the Executive Engineer, Damanganga irrigation Department.
5.1 According to the respondent Nos.3 and 9, an application, dated 26th March, 2010, was preferred by the respondent No.12, addressed to the District Panchayat, Valsad for nonagricultural permission to set up the construction of godown in the land situated in survey Nos.307, 308, 356 and 357 paiki 1 of the village Karaya, Taluka Pardi, since the area, for which the permission was sought for by the respondent No.12, fell in the “Command Area”, vide communication dated 31st March, 2010. The District Development Officer, sought the necerssary information from the Executive Engineer, Damanganga Irrigation Department, in respect of the land in question. According to the respondent Nos.3 and 9, pursuant to the above referred communication dated 31st March, 2010, necessary inquiry was undertaken, and it was found that the proposed construction, put up by the respondent No.12, was not covered within the acquired land width of the small canal (minor canal), passing through the aforesaid survey numbers. Vide communication dated 24th June, 2010, addressed by the Executive Engineer, it was opined that there is a distance between the building control line and acquired land width of small water (minor canal) at about 6 metre, passing through the aforesaid survey numbers, and therefore, the respondent Nos.3 and 9 conveyed their no objection for granting the necessary permission for use of the land for non agricultural purpose.
6. Stance of the respondent No.12 – Padmavati Logistics
6.1 It is the case on behalf of the respondent No.12 that the land in question was already granted NA permission in the year 1982. The said land was thereafter, purchased by one Daksaben Hemchandra Gauda, Proprietor of the respondent No.12, who was also an agriculturist in the State of Gujarat. According to the respondent No.12, the petition, in the nature of a Public Interest Litigation, is not maintainable, as the bona fide of the petitioners are highly doubtful. It is the case of the respondent No.12 that, with a view to establish a project at the village Karaya of a service provide like warehouse and logistic it entered into MOU with the Government of Gujarat. The respondent No.12 is registered with the Industries Department through the District Industries Centre, Valsad, for the project of service provider like warehousing, logisticcumwarehousing service etc. For the purpose of the project, the revised NA permission with the approved plan was also obtained. The Karaya Gram Panchayat also passed a resolution granting No Objection Certificate for the project in the village Karaya. The respondent No.12 also sought the consent from the GPCB, which was accorded by the GPCB, vide order dated 4th June, 2011. According to the respondent No.12, as provided by the norms, fire safety measures have been undertaken and a water tank has also been constructed along with pipe fittings, valves etc. It is also the case of the respondent No.12 that while constructing the godown, a distance of more than 75 mtrs, as required from the Centre of the Road, has also been maintained. The compound wall and the construction of the godown is according to the norms. It has been denied by the respondent No.12 that adjacent to the godown, there are 5 to 7 residential huts at a distance of 1 km. It has also been denied that there is a high tension electric line passing through the said land. It is the case of the respondent No.12 that they have already invested more than Rs.1.5 crore towards the safety measures, and there is no irrigation canal passing through the land in question. It is also the case of the respondent No.12 that all the conditions specified in Section 65B(1)(b)(i) of the Bombay Land Revenue Code have been fulfilled, and on the strength of the same, the Collector was pleased to grant NA permission for using the land for the purpose of godown.
6.2 According to the respondent No.12, there is no merit in this petition and the same deserves to be rejected.
7 We heard Mr. M.A. Patel, the learned counsel appearing for the petitioners, Mr. P.K. Jani, the learned Government Pleader for the respondent No.1, Mr. H.S. Munshaw, the learned counsel appearing for the respondent Nos.6 and 8, Mr. Hardik P. Modh, the learned advocate appearing for the respondent No.9 and Mr. Hitesh D. Padhya, the learned advocate appearing of the respondent Nos.12 at length.
8. Ordinarily, Court would allow litigation in public interest if it is found:
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That such person or group of persons is not a busybody of meddlesome interloper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busybodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;
(x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busybody or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest.
9. Having heard the learned counsel for the respective parties, and having gone through the materials on record, the only question, that falls for our consideration in this petition, is as to whether the authorities were justified in granting appropriate permission in favour of the respondent No.12 for construction of a godown for the purpose of storing nonhazardous waste chemicals on the land in question and as to whether, any case has been made out by the petitioners to set aside the permission accorded in favour of the petitioner in exercise of our powers under Article 226 of the Constitution.
10. It appears that the land bearing survey Nos.307, 308, 356 and 357 paiki 1 of the village Karaya was an agricultural land. In the year 1982, the erstwhile owner, of the said parcels of land, had sought permission from the authorities concerned for non agricultural use, and the same was granted. Therefore, the land in question was bought by the respondent No.12, and as the respondent No.12 wanted to construct a godown for the purpose of storing nonhazardous chemicals, a further revised NA permission was prayed for from the revenue authorities. The record also reveals that the Collector, Valsad, after necessary inquiry, and after calling for the reports from the Mamlatdar as well as the Deputy Collector, Pardi, granted the necessary permission under Sections 65, 65A and 65B of the Bombay Land Revenue Code. Such permission was granted to the respondent No.12 way back in the year 2010. The record also reveals that thereafter, the respondent No.12 prayed for the consent from the GPCB to establish a godown, as required under Section 25 of the Water Act, 1974 and Section 21 of the Air Act, 1981. The GPCB, after being satisfied that the product in question was only a logistic godown for storage of nonhazardous chemicals to the extent of 500 metric tonne per month, and as, all other norms were being fulfilled by the respondent No.12, the necessary consent was accorded by the GPCB, vide order dated 4th June, 2011. As the petitioners have raised hue and cry that the activity of the respondent No.12 would create pollution related problems, we deem fit to reproduce herein below the conditions, on which the GPCB accorded the consent.
The validity period of the order will be five years from date of issue.
SUBJECT TO THE FOLLOWING CONDITIONS:
1. Applicant shall not carry out any activities which required prior Environmental Clearance.
2. Applicant shall not store any hazardous chemicals which attacks the provision of S.O. 1533 dated 15.9.2006.
CONDITIONS UNDER WATER ACT 1974:
3. There shall be no generation of the industrial effluent from the manufacturing process and other ancillary industrial operations.
4. The quantity of the domestic waste water (sewage) shall not exceed Lits/day.
5. Unit shall be Zero discharge. There shall be no GIDC drainage connection.
6. Sewage shall be disposed of through septic tank/soak pit system.
CONDITIONS UNDER AIR ACT 1981:
7. The following shall be used as fuel in the D.G. Sets 100 KVA.
8. The applicant shall install & operate air pollution control system in order to achieve norms prescribed below.
9. The flue gas emission through stack shall conform to the following standards:
10. There shall be no Process emission.
11. The concentration of the following substance in the ambient air within the premises of the industry and at a distance of 10 meters from the source (other than the stack/vent with height of more than 9 meters from the ground level) shall not exceed the following levels:
12. All measures for the control of environmental pollution shall be provided before commencing production.
CONDITIONS UNDER HAZ. WASTE:
13. Applicant shall have to comply with provisions o H.W. (Management Handling & Transboundry Movement) Rules, 2008.
a. Industry shall provide adequate collection, storage, treatment & transportation system in accordance with the nature, quantity & compatibility of hazardous waste and shall offer their hazardous waste only to authorized operator of the ultimate disposal facility.
b. Applicant shall comply all the directives issued by Honourable Courts, notifications issued by Ministry of Environment & Forest Department of Environment & Forest, Central Pollution Control Board and other competent authorities time to time.
c. Applicant shall comply all the guidelines published by Ministry of Environment& Forest Department of Environment & Forest, Central Pollution Control Board and other competent authorities time to time.
d. Industry shall also comply following directives issued by the Supreme Court of India dated 14.10.2003.
i. Industry shall have to display the relevant information with regard to hazardous waste as indicated in the Court's order in W.P. No.657 of 1995 dated 14th October, 2003.
ii. Industry shall have to display online date outside the main factory gate with regard to quantity and nature of hazardous chemicals being handled in the plant, including wastewater and air emissions and solid hazardous wastes generated within the factory premises.
GENERAL CONDITIONS:
14. Adequate plantation shall be carried out all along the periphery of the industrial premises in such a way that the density of plantation is at least 1000 trees per acre of land and a green belt of 05 meters width is developed.
15. The applicant shall have to submit the returns in prescribed form regarding water consumption and shall have to make payment of water cess to the Board under the Water Cess Act, 1977.
16. In case of change of ownership/management the name and address of the new owners/partners/directors/ proprietor should immediately be intimated to the Board.
17. The applicant shall however, not without the prior consent of the Board bring into use any new or altered outlet for the discharge of effluent or gaseous emission or sewage waste from the proposed industrial plant. The applicant is required to make applications to this Board for this purpose in the prescribed forms under the provisions of the Water Act, 1974, the Air Act, 1981 and the Environment (Protection) Act, 1986.
18. The applicant also comply with the General conditions as per Annexure – I attached herewith (No.1 to 38) (whichever applicable).
19. The concentration of Noise in ambient air within the premises of industrial unit shall not exceed ffollowing levels:
Between 6 A.M. and 10 P.M.: 75 dB(A) Between 10 P.M. and 6 A.M.: 70 dB(A)
20. Applicant is required to comply with the manufacturing, Storage and Import of Hazardous Chemicals Rules, 1989 framed under the Environment (Protection) Act, 1986.
21. If it is established by any competent authority that the damage is caused due to their industrial activities to any person or his property in that case they are obliged to pay the compensation as determined by the competent authority.”
11. The above referred conditions, as imposed by the GPCB, would suggest that adequate safeguards have been provided, and we are also convinced, considering the nature of the project that there is going to be no generation or discharge of any industrial effluent or fuel gases from the unit in question. It is needless to say that, if there is any breach of any of the conditions imposed by the GPCB in its consent order, and at any point of time, if it is found that the respondent No.12 is creating pollution, then, under such circumstances, it would always be open for the petitioners to immediately bring it to the notice of the GPCB, so that appropriate steps could be taken against the respondent No.12.
12. We are not going into the question as to whether the permission, granted by the revenue authorities under the provisions of the Bombay Land Revenue Code, was in accordance with law or not. As such, nothing cogent has been shown to us, on the basis of which, it could be said that the conditions specified in section 65(B)(1)(b)(ii) of the Bombay Land Revenue Code are not being satisfied. In any view of the matter, if the petitioners are dissatisfied with such permission being granted, it would always be open for the petitioners to approach the higher authorities by way of an appeal or revision, as provided under the Bombay Land Revenue Code.
13. In the over all view of the matter, we do not find any merit in this writ petition warranting any interference at our hand, in exercise of our jurisdiction, under Article 226 of the Constitution.
14. For the foregoing reasons, this petition fails and is consequently rejected. However, in the facts and circumstances of the case, there shall be no order as to costs.
15. In view of the order passed in the main matter, the connected civil applications, if any, are rendered infructuous, and are accordingly, disposed of.
[BHASKAR BHATTACHARYA, CJ.] shekhar* [J.B.PARDIWALA, J.]