Karnataka High Court
M/S Seven Star Group vs The Senior Environment Officer on 31 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 2209, 2021 (1) AKR 537
Author: Abhay S. Oka
Bench: Abhay S. Oka
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.49489 OF 2019 (GM-POL)
CONNECTED WITH
WRIT PETITION NO.50434 OF 2019 (GM-POL)
IN W.P. NO.49489 / 2019
BETWEEN:
M/S SEVEN STAR GROUP
PLOT NO.1318
KIADB INDUSTRIAL AREA
KANABARGI
BELAGAVI-590015
REP. BY IT'S PARTNER
MR.IMRAN KHAN M PATHAN.
... PETITIONER
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL
FOR SRI A MOHAMMED TAHIR, ADVOCATE)
AND:
1. THE SENIOR ENVIRONMENT OFFICER
KARNATAKA STATE POLLUTION CONTROL BOARD
PLOT NO.4
LAKKAMANNAHALLY INDUSTRIAL AREA
DHARWAD-580004.
2. THE MEMBER SECRETARY
KARNATAKA STATE POLLUTION CONTROL BOARD
PARISARA BHAVANA, QUEENS ROAD
BENGALURU-560001. ... RESPONDENTS
(BY SRI GURURAJ JOSHI, ADVOCATE FOR R1 & R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
CLOSURE ORDER ISSUED BY THE R1 DATED 14.05.2018 PRODUCED
HEREWITH AS ANNEXURE-R AND ETC.
IN W. P. NO.50434 / 2019
BETWEEN:
1. M/S BARAFWALA FOODS
PLOT NO. 1325/A, AUTO NAGAR
KIADB INDUSTRIAL AREA
KALBURGI, BELAGAVI
REP . BY IT'S PARTNER
(MOHAMMED HUSSAIN BARAFWALA)
2. M/S BARAFWALA COLD STORAGE AND
AGRO PROCESSORS
PLOT NO.1322,
KIADB INDUSTRIAL AREA
KANBARGI, BELAGAVI
REP. BY IT'S PARTNER
(MOHAMMED HUSSAIN BARAFWALA)
... PETITIONERS
(BY SRI K.V. MOUNESH, ADVOCATE
FOR SMT. VIJETHA R. NAIK, ADVOCATE)
AND:
1. THE SENIOR ENVIRONMENTAL OFFICER
THE KARNATAKA STATE POLLUTION CONTROL BOARD
DIVISION OFFICE ZONAL OFFICE
PLOT NO.4, LAKAMANAHALLI
P.B. ROAD, KIADB INDUSTRIAL AREA
DHARWAD - 580 004
2. THE CHAIRMAN
THE KARNATAKA STATE POLLUTION CONTROL BOARD
CHURCH STREET
BENGALURU - 560 001
... RESPONDENTS
(BY SRI GURURAJ JOSHI, ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
CLOSURE ORDER ISSUED BY THE R1 DATED 21.5.2018 PRODUCED
HEREWITH AS ANNEXURE - M AND M1 AND ETC.
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THESE PETITIONS COMING ON FOR PRELIMINARY HEARING
THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE MADE
THE FOLLOWING:
ORDER
Considering the narrow controversy involved in these petitions, the same are taken up for final disposal.
2. A brief reference to the controversy involved in the petitions will be necessary.
In W.P.No.49489/2019, the challenge is to the Annexure-R which is the closure order dated 14th May 2018. The said order has been passed in purported exercise of powers under the Water (Prevention and Control of Pollution) Act, 1974 (for short 'the Water Act') and the Air (Prevention and Control of Pollution) Act, 1981 (for short 'the Air Act'). The petitioner in this petition claims that it is engaged in the business of cold storage and meat processing. In the impugned order at Annexure-R, it was observed that the petitioner has violated Sections 25/26 of the Water Act and Section 21 of the Air Act. The impugned order which is issued in purported exercise of powers under Section 33A of the Water Act and Section 31A of the Air Act directs closure of the operation of the petitioner. Further direction has been issued -4- to the Managing Director of HESCOM to withdraw the power supply to the petitioner.
3. As far as W.P.No.50434/2019 is concerned, the challenge is to the two orders dated 21st May 2018 (Annexures- M and M1). The petitioner in this petition is also carrying on the same business of cold storage and meat processing. Both the impugned orders are under the same provisions alleging violation of Sections 25/26 of the Water Act and Section 21 of the Air Act. The orders are again of the closure of the business of the petitioner.
4. On the last date, the submissions of the learned counsel appearing for the parties were heard. Paragraphs 2 to 6 of the order dated 19th August 2020 read thus:
"There are two preliminary objections raised by the learned counsel appearing for the Pollution Control Board. The first objection is that the impugned orders which have been issued in exercise of the powers under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (for short 'the Water Act') and Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 (for short 'the Air Act') are capable of being challenged by way of an appeal. The submission is that against the orders passed under both the Acts, the remedies of statutory appeals are available. The second ground of objection is based on the petitions filed by the petitioners in these petitions before the Dharwad Bench of this Court and the orders passed thereon.
A perusal of the challenges in the petitions filed before the Bench at Dharwad shows that the orders of -5- closure were not challenged in those petitions and on the ground that filing of the present petitions was not disclosed, the Bench at Dharwad declined to entertain the said petitions.
Against the order made under Section 33A of the Water Act, an appeal is provided to the National Green Tribunal under Section 33B of the Water Act. Against an order made under Section 31A of the Air Act, an appeal has been provided to the Appellate Authority as constituted in sub-section (1) of Section 31 of the Air Act. In these two petitions, the orders which are under challenge are common orders passed in exercise of power under the provisions of both the Acts. The statutory appeals against the common orders will lie before two different Appellate Authorities. Therefore, it cannot be said that in the facts of this case, there is an efficacious remedy available to the petitioners.
Moreover, prima facie, it appears to us that in the impugned orders which are subject matter of challenge in these petitions, there are no specific findings recorded regarding violation of any of the provisions of the Water Act and Air Act. The orders of closure appear to have been passed on the basis of the directions issued by the Deputy Commissioner of the District.
The learned counsel appearing for the Pollution Control Board states that the statement of objections will be filed within a period of one week from today. Sufficient time has been granted earlier. However, by way of a last chance, we grant time of one week to file the statement of objections."
5. The basic contention raised in both the petitions is that the impugned orders have been passed essentially at the instance of the Deputy Commissioner who purported to direct the Karnataka State Pollution Control Board (for short 'KSPCB') to take action. It is submitted that none of the -6- breaches of the provisions of the Water Act and Air Act have been specifically alleged and established.
6. The learned counsel appearing for KSPCB firstly submits that there is a proposal to modify the impugned orders in both the petitions and withdraw the applicability of one of the two Acts. The learned counsel also relied upon the status report filed. He pointed out certain documents from the record to show violations of the provisions of both the Acts and especially the Water Act. He submitted that in similar situation, this Court passed an order in W.P.No.13106/2018 and 13105/2018 permitting KSPCB to withdraw the applicability of one of the two Acts. He further submitted that if the application of one of the Acts is withdrawn, then surely, there will be an efficacious remedy available to the petitioners. He, would therefore, submit that no interference is called for with the impugned orders. We may note here that in both the petitions, there is also a prayer enjoining the respondents to consider the application for renewal of consent.
7. As regards the availability of efficacious remedy, there is already a finding recorded that in the facts of the case, it cannot be said that efficacious remedies are available to the petitioners inasmuch as two separate appeals will have to be -7- preferred by the petitioners against the same orders before the two different authorities. KSPCB is a creation of statute as it is established under the Water Act. To wriggle out of the observations made by this Court in the order dated 19th August 2020, now, KSPCB cannot say that it will withdraw the applicability of one of the two Acts. In the orders of this Court which were relied upon by the learned counsel appearing for KSPCB, the Court had not earlier ruled on the issue of the maintainability of the writ petitions on the ground of availability of an efficacious remedy. Secondly, in this case, there is a prima facie finding recorded about the merits of the order.
8. As stated earlier, in the impugned orders in both the petitions, it is alleged that there is a violation of Section 25/26 of the Water Act and Section 21 of the Air Act. Sections 25 and 26 of the Water Act deal with the restrictions on new outlets and new discharges and discharge of sewage or trade effluent. As far as Section 21 of the Air Act is concerned, it is a provision imposing restrictions on use of certain industrial plants. If the impugned orders in both the petitions are perused and even if the contents thereof are taken as correct, there is not even a factual allegation setting out the specific breaches -8- under the provisions of both the Acts. In both the orders, firstly, reliance is placed on the inspection report. There are three non-compliances allegedly noted at the time of inspection. The first is that the petitioners are engaged in the activity of meat trimming and preserving the same in cold storage without furnishing the legal sources of the raw materials (meat). The second objection is about the failure to provide the chimney of height of 7 metres with specifications. Third is that the house keeping in the premises of the unit needs improvement.
9. Taking the three non compliances as correct, the same do not attract either Sections 25/26 of the Water Act or Section 21 of the Air Act. Moreover, in paragraph 8, there is an allegation of illegal slaughtering of the animals in the premises of the petitioners. More particularly, paragraph 9 records that the Deputy Commissioner, Belagavi, during the meeting held with the concerned Officers directed the Regional Officer, Belagavi to take immediate action of closure.
10. Under Section 31A of the Air Act, there is a power to issue directions. Similar is the power under Section 33A of the Water Act. In absence of a specific allegation and finding recorded in the impugned order regarding the breach of the -9- provisions of the Air Act and Water Act, the orders of closure could not have been passed. Moreover, the orders of closure appear to have been passed on the basis of the direction issued by the Deputy Commissioner, who has no power to issue any such direction under the provisions of both the Air Act and Water Act.
11. Along with the status report, certain documents are placed on record, which according to the case of the respondents show that there are breaches committed by the petitioners. However, those alleged braches are not even referred in the impugned orders. Therefore, the impugned orders cannot be sustained and the same will have to be set aside. If according to the case of KSPCB, there were breaches of both the statutes committed by the petitioners, KSPCB can always initiate appropriate action in accordance with law. As regards pending applications for renewal of consent, KSPCB will have to take appropriate decision within the time fixed by this Court.
12. Accordingly, we pass the following order:
(i) We set aside the impugned order in WP.No.49489/2019 at Annexure-R, dated 14th May 2018. We
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set aside the impugned orders in WP.No.50434/2019 at Annexures-M and M1, dated 21st May 2018;
(ii) This order will not prevent the respondents from initiating proceedings in accordance with law in the event it is found that the petitioners have committed breaches of the provisions of the Air Act or Water Act;
(iii) If applications made by the petitioners for renewal of consent are pending, the same shall be decided by the concerned respondent within a period of three months from today;
(iv) We make it clear that we have made no adjudication on the question whether the petitioners have committed violation or breaches of the provisions of the Air Act or Water Act or any other law.
(v) The Petitions are disposed of on above terms.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE SN