National Green Tribunal
M/S. Jay Mahakali Chemical vs Deputy Environment Engineer (M.P ... on 10 September, 2020
Item No. 03 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Appeal No. 28/2020 (WZ)
(I.A. No. 34/2020 & I.A. No. 42/2020)
M/s. Jay Mahakali Chemical Appellant(s)
Versus
Deputy Environment Engineer & Ors. Respondent(s)
Date of hearing: 10.09.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Appellant (s) : Mr. Bhaumik Patel, Advocate
For Respondent (s): Ms. Minaxi Solanki, DEE for GPCB
ORDER
1. The matter was taken up on 02.07.2020 and it was directed as follows:
"1. By way of filing this appeal the order dated 09.03.2020 which is annexed as Annexure-A of this application passed by the respondent has been challenged and it is argued that the appellant was not given proper hearing and material document were not considered.
2. Issue notice to the respondents. Returnable within four weeks.
3. Appellant is directed to take necessary steps for service to the respondents within a week by both ways Dasti, Registered Post as well as also on available e-mail.
4. Respondents are directed to submit their reply by e-mail on [email protected] within six weeks.
5. List it on 10.09.2020."1
2. Incompliance thereof, the respondent nos. 2 and 3- Gujarat Pollution Control Board (GPCB) and Deputy Environment Engineer had filed the reply/affidavit which is as follows:
"3. It is further submitted that the Consolidated Consent and Authorization order No. AWH-93879 dated 26/06/2018 had been issued to Applicant unit for manufacturing of N-Methyl J Acid, N-Methyl Pthalamide, Rhodaline Acid, Meta phenyline di amine 4 sulphonic acid (M.P.D.S.A) or Meta Amino Acetanilide or Meta Nitro Aniline or Ortho Amino Phenol-4 Sulphonic Acid (O.A.P.S.A.) and same is Valid up to 15/05/2023.
4. It is respectfully submitted Site Visit had been conducted by board Regional Official Surat on 13/01/2020. During visit tanker found filled with industrial liquid approx. 18000 lit. and having pH was 6-7 on pH strip and dark brown colour observed. Sample of the industrial liquid was collected from said tanker whose analysis report shows COD-40509 mg/L, BOD-9700 mg/L, TDS-584932 mg/L, Ammonium Nitrogen- 3640mg/L. During visit on 13/01/2020 Shri Hemantbhai (Head Constable, Kosamba Police Station) as well as other staff were present at site and they had taken this tanker to kosamba Police station in their custody.
5. It is respectfully submitted that upon completion of above proceedings of visit on 13/01/2020, tanker found filled with industrial liquid approx-18000 lit. and therefore Regional office, Surat has asked to Police Inspector, Kasamba in writing to submit the details of tanker driver as well as cleaner and name, address of the tanker owner. Moreover also asked to submit the details from which area and from which industry this industrial liquid filled and where they are going to disposed off this liquid, to investigate all these and find out immediately the responsible person, owner, partner of that industry and submit these all details to board.
It is respectfully submitted that Police Inspector of Kosamba Police station has replied on 31/01/2020 to Regional Official's, GPCB, Surat and stated that one file was found in tanker cabin in which they got RC book and form-P- team.
According to RC book, the owner of tanker is Khubilal Ramswarup Nagar (Jain), Residence- 203/ Amar Apt. Laksh meshwar Nagar, Tal: Kamrej; Dist. Surat. On basis of this they had issued notice on 17/01/2020 to the tanker owner.
On the basis of the notice, tanker owner was present at the police station on 31/01/2020 and gave his statement in this regards.
2 In this statement he stated that tanker is his own and ne stated that he took his tanker on 12/01/2020 to Mahakali factory, Near-Panoli police chowki at-Panoli GIDC where he made him filled chemical waste by Rajubhai and told him to be disposed off this waste to lonely place at Palsana Dist- Surat. He stated that he didn't know full name of Rajubhai but having the contact number-9898359600 and 7990474541.
6. It is further submitted that the board had verified the contact number 9898359600 given in statement of tanker owner with the Partner /director list from file/record.
7. It is respectfully submitted that Head office GPCB has received letter dated 01/2/2020 sent by Regional office, Surat Gujarat Pollution Control Board regarding illegal tanker movement by applicant industry namely Mahakali, GIDC Panoli.
8. It is submitted respondent board has further carried out site inspection through Regional official, GPCB Ankleshwar on 17/02/2020 i.e. the factory came under the jurisdiction of Regional Office Ankleshwar.
According to Inspection Report dated 17/2/2020, major following non-compliances were noticed during site visit as under:-
a. During visit to your industry on 17/2/2020 it was found that unit has provided underground RCC storage tank in south-west corner within premises in which dark brownish concentrated waste water is stored.
b. Unit has not provided facility for treatment of concentrated stream and unit has not obtained membership of common facilities for final disposal of such type of concentrated waste water.
c. Unit is regularly operating their manufacturing process plant but unit has sent only few tankers of waste water to PETL- Panoli against consented quantity of waste water, while majority of waste water might have disposed off in illegal manner.
d. No records of production, waste water generation& disposal, hazardous waste generation & disposal are furnished during visit. e. Unit has provided flexible pipes in Effluent Treatment Plant.
f. Unit is not updating monthly patrak also and not adopted online manifest system for disposal of hazardous waste. Thus the wastewater management by the unit is not justified, possibility of sending wastewater (including concentrated stream) to unauthorized location cannot be rule out.3
g. Earlier board had issued closure to the unit regarding mismanagement of industrial wastewater.
h. Habitual defaulter, so stringent actions were recommended.
9. It is further submitted that based on the letter received from Regional office, Surat dated-01/02/2020 and Inspection Report dated 17/02/2020 of Regional office, Ankleshwar, this board has issued Closure direction under section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 to Appellant M/s. Jay Mahakali Chemical for the violations mentioned in closure order after approval of competent authority and also Environment Damage Compensation had been imposed as per the direction of Hon'ble NGT order based on guideline prepared by CPCB.
10. It is submitted that looking to the past record, earlier with reference to telephonic complaint regarding disposal of contaminated wastewater in storm water drain, industry was visited on 25/01/2018. And based on inspection report and findings, industry was issued Closure directions under Water Act-1974 on 12/03/2018 for not provided proper arrangement for treatment of generated wastewater and its disposal. Later on closure direction was revoked on 12/6/2018.
11. It is submitted that again with reference to telephonic complaint regarding illegal disposal of wastewater, industry was visited on 28/05/2019. And based on inspection report and findings, industry was again issued closure directions under Water Act, 1974 on 04/06/2019. Later on closure directions was revoked on 17/7/2019.
13. It is respectfully submitted that as per the Provisions of the Water (Prevention & Control of Pollution) Act, 1974 section- 50 any Members, officer and servant of the board to be public servant. Further it is respectfully submitted that as per the Provisions of the Water (Prevention & Control of Pollution) Act, 1974 section- 59 "no suit or other legal proceedings shall lie against Government or any officer of the Government or any member or any officer of a board in respect of anything which is in good faith done or intended to be done in pursuance of this Act or the rules made there under"."
3. After perusal of the reply and inspection report, it reveals that the unit has provided underground RCC storage tank in south-west corner within premises in which dark brownish concentrated waste water is stored and unit has not provided facility for treatment of concentrated stream. Further, no records of production, waste water generation and disposal, hazardous waste generation and 4 disposal are furnished and unit is not updating monthly patrak and not adopted online manifest system for disposal of hazardous waste.
4. Show cause notice has been issued to the respondents and after going through the show cause notice, the respondent had passed the order in accordance with law. The learned counsel appearing for the appellant had submitted that opportunity of hearing was not given.
5. It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi Vs. State Bank of India & Ors., AIR 1984 SC 273; N.K. Prasada Vs. Government of India & Ors., (2004) 6 SCC 299; State of Punjab Vs. Jagir Singh, (2004) 8 SCC 129; Karnataka SRTC & Anr. Vs. S.G. Kotturappa & Anr., (2005) 3 SCC 409; and in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337.
6. In Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr. Vs. Ramjee, AIR 1977 SC 965 the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural 5 expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artefact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
7. In Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416, the Hon'ble Supreme Court held:-
"Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible."
8. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan Lal Gupta & Ors. Vs. Asha Devi Gupta & Ors., (2003) 7 SCC 492; Mardia Chemicals Ltd. Vs. Union of India, AIR 2004 SC 2371 and Canara Bank Vs. Debasis Das, AIR 2003 SC 2041.
9. In Hira Nath Mishra & Ors. Vs. The Principal, Rajendra Medical College, Ranchi & Anr. AIR 1973 SC 1260, the Hon'ble Supreme Court held that principles of natural justice are not inflexible and 6 may differ in different circumstances. Rules of natural justice cannot remain the same applying to all conditions.
10. The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad Vs. B. Karunakar, AIR 1994 SC 1074 made reference to its earlier decisions and observed:-
"In A.K. Kraipak & Ors. Vs. Union of India & Ors., AIR 1970 SC 150, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasijudicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice." (Emphasis added)".
11. The Hon'ble Supreme Court in Bihar School Examination Board Vs. Subhas Chandra Sinha & Ors., AIR 1970 SC 1269 while considering the cancellation of the entire examination because of use of mass copy considered the scope of the principles of natural justice in such a matter and observed:-
7
"It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go........."
12. After referring to the aforesaid decision, the Supreme Court in Chairman J&K State Board of Education Vs. Feyaz Ahmed Malik, AIR 2000 SC 1039, emphasised that the Board is entrusted with the duty of proper conduct of examinations.
13. In Biswa Ranjan Sahoo & Ors., Vs. Sushanta Kumar Dinda & Ors., AIR 1996 SC 2552, the Hon'ble Supreme Court had the occasion to examine whether principles of natural justice were required to be followed in a matter where because of large scale malpractice in the selection process, the selection was cancelled and in this context it was observed:-
"Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment."
14. In Union of India & Ors. Vs. O. Chakradhar, AIR 2002 SC 1119, the Hon'ble Supreme Court considered the question whether it was necessary to issue individual show cause notices to each selected person when the entire selection was cancelled because of widespread and all pervasive irregularities affecting the result of selection and it was observed:-
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"The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable."
15. In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors., AIR 1994 SC 853, the Hon'ble Supreme Court refused to interfere on the ground of breach of principles of natural justice by observing that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
16. It is further to be noted that the Court is to proceed as to whether non-observance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. Even, if in a given case, like the fact of the present case there may be some deviation but it has not resulted in grave injustice or has not prejudiced the cause of the petitioner because the decision taken by the respondent was based on the scientific report. This Court does not function as a Court of appeal on the finding of scientific report submitted by the experts. On examining the facts and circumstances of the present case, it cannot be held that the process adopted or decision made by the respondents is in anyway arbitrary or irrational or in any way in violation of the principles of natural justice. The conclusion is that the petition is devoid of merit and deserves to be dismissed.
17. After considering on relevant facts, we are of the view that proper opportunity of hearing was given to the appellant and order impugned was passed according to law. Accordingly, we don't find 9 illegality or irregularity in the impugned order, thus, the appeal deserves to be dismissed and accordingly Appeal No. 28/2020 (WZ) along with I.A. No. 34/2020 and I.A. No. 42/2020 stands dismissed.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM September 10, 2020 Appeal No. 28/2020 (WZ) R 10