National Green Tribunal
Michael Lambert Jehan vs Central Pollution Control Board on 30 May, 2022
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Appeal No. 24 of 2020 (SZ)
(Through Video Conference)
IN THE MATTER OF
Michael Lambert Jehan,
S/o James,
No. 12, Duraisamy Reddy Street,
West Tambaram,
Chennai- 600045.
...Appellant(s)
Versus
1. Tamil Nadu Pollution Control Board,
Rep by its Chairman,
No. 76, Mount Salai, Guindy,
Chennai-600032
2. The District Environmental Engineer,
TNPCB, Maraimalai Adigalar Street, Maraimalai Nagar,
Chengalpattu District- 603209
3. M/s Letraco Kid Leather,
Rep by its Partner,
S.F> No. 148/1-4, Vandalur-Kelambakkam Road,
Melakottaiyur Village, Thiruporur Taluk,
Kanchipuram District- 600127
...Respondent(s)
For Appellant(s): Mr. Michael Lambert Jehan, Appellant in Person
For Respondent(s): Mr. Sai Sathya Jith For R1 and R2
Mr. K.S. Viswanathan for R3
Judgment Reserved on: 2nd May, 2022
Judgment Pronounced on: 30th May, 2022
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Justice Smt. Pushpa Sathyanarayana, Judicial Member
1. The captioned appeal is directed against the order in Appeal No. 80 of 2019 passed by the Appellate Authority, Tamil Nadu Pollution Control Board on 25.02.2020 and consequently directed the Tamil Nadu Pollution 1 Control Board to enforce its closure and disconnection of electricity by order dated 06.12.2019.
2. The 3rd respondent is a tannery, which has been discharging smoke and stink thereby polluting the air causing impact on the environment. They were also dumping hazardous chemicals through public drainage system in the Melakottaiyur Lake thus polluting the drinking and ground water. The toxic effluents and hazardous chemicals that are let into the Melakottaiyur Lake has contaminated the ground water by percolation.
3. The appellant also has alleged noise pollution from the tannery. Yet another objection raised by the appellant was that the 3 rd respondent tannery is situated within the prohibited site notified by the Archaeology Department of Tamil Nadu and it is on the State highway within 200 meters away from the lake. The further allegation is that the 3rd respondent, tannery has been functioning without the consent.
4. On the above said grounds, the appellant had earlier filed Original Application No. 06 of 2018 before this Tribunal seeking a direction to the authorities for maintaining Melakottaiyur Lake and village free from any pollution or contamination by the 3rd respondent.
5. The Pollution Control Board has submitted a report stating that there was no damage to the soil and to the Melakottaiyur Lake on account of violations alleged by the appellant. In view of the same no remedial measure is required to be taken. However, the Pollution Control Board has levied Environmental Compensation as per the guidelines of the Central Pollution Control Board amounting to Rs. 23, 40,000/- on account of non-compliance of directions previously issued by the Pollution Control Board. The Board also had issued a closure notice and stoppage of power supply in its proceedings dated 06.12.2019.
6. Aggrieved by the same an appeal was preferred by the 3 rd respondent against the order passed under Section 33 (A) of the Water (Prevention and control of Pollution) Act, 1974 and Section 31(A) of the Air (Prevention and control of Pollution) Act, 1981. The Appellate Authority in its order dated 25.02.2020 had observed that out of 7 deficiencies pointed out by the Board, excepting two defects all others were complied with. One of the direction is to dismantle the solar evaporation pan and to install mechanical evaporator followed by 80 FD and the other 2 direction was to comply with payment of Environmental Compensation of Rs.23,40,000/-.
7. The Pollution Control Board had further mentioned that the appellant unit had purchased the machineries and the civil installation work had already been done. The Board also, by its proceedings no. MS. 63 dated 26.11.2019 had extended the time granted to switch over to mechanical evaporator followed by 80 FD to all the IETPs and CETPs upto 31.03.2020 with the condition that the existing solar evaporation pan shall be dismantled completely after commissioning of the mechanical evaporator followed by 80 FD. The Board had fairly admitted that the 3rd respondent was not issued with any show cause notice for levying compensation or any demand notice for levying the compensation, thus denying them the opportunity to submit their case which is in violation of principle of natural justice.
8. In view of the submission made by the Tamil Nadu Pollution Control Board, the Appellate Authority had set aside the order and directed the Tamil Nadu Pollution Control Board to revoke the closure direction and restore the power supply to the 3rd respondent. The 3rd respondent was also inspected on 31.10.2020 and it was found that the unit was under
operation carrying out the drying process and the installation of mechanical evaporator and 80 FD was completed and the trail run was under progress. Therefore, the Appellate Authority had set aside the order passed by the Pollution Control Board.
9. To be noted is that the Board had also issued Consent to Operate (CTO) vide Board‟s Proceeding no. 1025/MMN/RS/DEE/TNPCB/MMN/W&A/2021 dated 11.01.2021.
10. The report of the Tamil Nadu Pollution Control was objected to by the appellant contending as follows:
1. When no soil samples were collected by the Tamil Nadu Pollution Control Board and no test was conducted in this regard it had reported that there is no soil damage.
2. The PH content in the lake was 9.22 which is above the permissible range which would evidence that the water is polluted in the Melakottaiyur Lake.
3. The appellant was not made a party in any of the proceedings by the Board.3
4. The orders were issued under Section 33 (A) of the Water (Prevention and control of Pollution) Act, 1974 and Section 31(A) of the Air (Prevention and control of Pollution) Act, 1981. An appeal is provided under Section 33(B) of the Water Act and there is no appeal provided under the Air Act.
5. The Board did not consider the proximity of the 3 rd respondent unit under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. Besides the EB transformer, DG Set Room, Visitors Room and Effluent Treatment Plant etc are all following under the regulated area.
11. In response to the objections, Tamil Nadu Pollution Control Board has also given written reply stating that the 3rd respondent has been disposing the solid waste generated after obtaining due Authorisation from the Tamil Nadu Pollution Control Board under Hazardous Waste Management Rules and the authorisation of which is valid till 03.10.2022. Prior to the purchase of the unit by the 3rd respondent, the erstwhile owner had been carrying on the tannery business from the year 2000. Thus, the Pollution Control Board had periodically renewed their consent on payment of renewal fees and complying with the conditions imposed.
12. The Tamil Nadu Pollution Control Board also pointed out that the appellant who was also running a leather industry in the adjacent premise till the year 2014 was unable to continue his business for various reasons. The above appeal is filed out of business rivalry and to spoil the reputation of the 3rd respondent.
13. The 3rd respondent had also installed an ETP and online monitoring system apart from providing various pollution control measures. Additionally the industry has been using imported membrane on maintenance contract. The unit has also installed Zero Liquid Discharge (ZLD) apart from rain water harvesting system. In the year 2019, the Tamil Nadu Pollution Control Board has granted 6 months time to all units to switch over to the mechanical evaporator and now the 3rd respondent had also switched over to the mechanical evaporator after dismantling the solar evaporation pan.
14. The 3rd respondent had also filed a reply stating that the appellant was also running a leather industry in the adjacent property since 2014 and could not continue thereafter. Therefore, he made false complaints to the Tamil Nadu Pollution Control Board regarding the 3rd respondent unit. Not stopping with that, Original Application No. 6 of 2018 was filed before 4 this Tribunal for various reliefs including the closure of the 3rd respondent unit.
15. The Tribunal issued several directions including inspection of the unit, filing of the status report and also action taken report. A compliance report was filed by the 3rd respondent on 25.11.2019. In the meanwhile, Tamil Nadu Pollution Control Board itself had in its proceedings B.P. No. 13 dated 22.04.2019 extended the time limit t install the mechanical evaporation plant. While O.A. No. 06 of 2018 was pending before this Tribunal, a closure order dated 06.12.2019 of the 3rd respondent was issued. Therefore, I.A. No. 34 of 2019 was filed by the 3 rd respondent seeking for interim stay of all further proceedings. However, this Tribunal had closed both the O.A. No. 06 of 2018 as well as the I.A. No. 34 of 2019 leaving it open to the 3rd respondent to go before the Appellate Authority by availing the statutory remedy.
16. Accordingly, Appeal 80 of 2019 was filed before the Appellate Authority challenging the closure order passed under Water and Air Acts. Before the Appellate Authority the 3rd respondent had submitted a compliance report except the installation of multi effect evaporator for which the time is extended by the Board itself. Now that the unit had installed the mechanical evaporator all the defects by the Board was complied with and the only question that remains to be answered is the levy of environmental compensation.
17. So far as the levy of compensation is concerned, admittedly there was no show-cause notice issued preceding the levy. The Appellate Authority also took note of the said fact and set aside the same as there was no show-cause notice or a demand, hence the Appellate Authority had rightly set aside the levy of environmental compensation.
18. The next question relates to the maintainability of the appeal. Under Section 31 of the Air Act any person aggrieved by an order made by the State Board under this Act within 30 days prefer an appeal to the Appellate Authority. There is no ambiguity in the above but the order now appealed against is the one that was passed under Section 31(A) of Air (Prevention and Control of Pollution) Act, 1981.
19. Section 31 (A) empowers the Board in exercise of its powers and performance of its functions under this Act to issue any direction 5 including the closure or operation or process and the stoppage or regulation of supply of electricity, water or any other service.
20. It is argued that the powers given under Section 31(A) for the closure and stoppage of the supply of electricity are in addition to the functions and powers given under Section 17 and 18 of the Act.
21. Though an appeal is provided against the order passed under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974, no appeal is available to any order passed under Section 31 (A) of the Air (Prevention and Control of Pollution) Act, 1981. This aspect has been discussed in Tamil Nadu Pollution Control Board Vs. Sterlite Industries (India) Limited & Ors [(2019) 19 SCC 479] "35.It is, therefore, clear that no such provisions, as are contained in the UK Acts, being present in any of the Acts that we are concerned with, such leapfrog appeals to the NGT would necessarily be without jurisdiction. (II) Re: Orders passed under section 33-A of the water act and section 31-A of the air act"
22. The Learned Counsel appearing for Tamil Nadu Pollution Control Board submitted that the direction issued by the Board is akin to show-cause notice and when the 3rd respondent failed to comply with the same, the Board had rightly taken action close down the unit. "34. Directions.--(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 time within which it shall be compiled 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 an 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 any industry, operation or process and is sought to be issued 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 designated 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 the objections, if any, or from the date up to which an opportunity is given to the person, officer or authority to file objections whichever is earlier, after considering the objection, if any, received from the person, officer or authority sought to be directed and for reasons to be recorded in writing, confirm, modify or decide not to issue the proposed direction.6
(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.
(7) Every notice or direction required to be issued under this rule shall be deemed to be duly served,--
(a) Where the person to be served is a company, if the document is addressed in the name of the company at its registered office or at its principal office or place of business and is either--
(i) sent by registered post; or
(ii) delivered at its registered office or at the principal office or place of business;
(b) Where the person to be served is an officer serving Government, if the document is addressed to the person and a copy thereof is endorsed to his Head of the Department and also to the Secretary to the Government as the case may be, incharge of the Department in which for the time being the business relating to the Department in which the officer is employed in transacted and is either--
(i) sent by registered post, or
(ii) is given or tendered to him;
(c) In any other case, if the document is addressed to the person to be served and--
(i) is given or tendered to him, or
(ii) if such person cannot be found is affixed on some conspicuous part of his last known place of residence or business or is given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building, if any, to which it relates, or
(iii) is sent by registered post to that person."
23. The Rule 34 referred above provides a complete scheme for issuing any direction under Section 33 (A) of the Water (Prevention and Control of Pollution) Act, 1974. However, in the present case the said scheme has not been followed as the appellant has not been served with the show- cause notice along with the copy of the proposed directions nor the appellant has been communicated as has been admitted by the Board. Therefore, the impugned order of the Appellate Authority cannot be faulted.
24. Section 31 (A) provides certain powers to give directions by the Board. These powers are in addition to the powers enumerated under Section 17, 21 to 27. This is because the powers given under Section 17 are not exhaustive and these additional general powers are conferred upon the Board.
25. On the contrary powers under Section 33 (A) of the Water (Prevention and Control of Pollution) Act, 1974 are directly appealable to National Green Tribunal and this power is consciously not given under the Air (Prevention and Control of Pollution) Act, 1981. In the instant case what is under challenge is a composite order. What would be the remedy 7 available in such a scenario is already decided by the Hon‟ble Supreme Court in Tamil Nadu Pollution Control Board Vs. Sterlite Industries (India) Limited & Ors [(2019) 19 SCC 479] "36. 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 33-B of the Water Act and Section 31-B 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 33-B(c) of the Water Act read with Section 16(c) of the NGT Act make it clear that directions issued under Section 33-A of the Water Act are appealable to the NGT, directions issued under Section 31-A of the Air Act are not so appealable. In fact, the statutory scheme is that directions given under Section 31-A 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 31-A of the Air Act is nothing but an "order", and would, therefore, be appealable as such under Section 31-B 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 31- A in Section 31-B 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 31-A 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 31-A 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 33-A of the Water Act contains an identical explanation to that contained in Section 31-A 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.
837. Shri Sundaram then cited Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC
27. In this judgment, the High Court had struck down Regulation 104 of the Maharashtra Secondary and Higher Secondary Boards Regulations, 1977, by which, no re-evaluation of an answer book given in an examination can be undertaken. In setting aside the High Court judgment, this Court stated that the process of re-evaluation of answer papers is extremely time consuming, would involve several thousand man-hours, and is bound to throw the entire system out of gear. Further, it is in public interest that the results of public examinations, when published, should have some finality attached to them [see paragraph 27]. It is in this context that this Court held:
"29. ...... It is equally important that the Court should also, as far as possible, avoid any decision orinterpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice."
To bodily lift the aforesaid sentence and apply it to the fact situation here would be a huge leap which we are not prepared to make.Further, given the statutory scheme as aforesaid, it is not possible for us to provide an appeal where there is none in the guise of making an appellate system workable in practice.
38. Shri Sundaram then relied upon this Court's judgments in Galada Power & Telecommunication Ltd. v. United India Insurance Co. Ltd., (2016) 14 SCC 161 and Allokam Peddabbayya v. Allahabad Bank, (2017) 8 SCC 272 for the proposition that the right of appeal is a statutory right, and like all other statutory rights, it can be waived, unless its waiver is detrimental to public interest. The question in these appeals is not whether an appellant may waive a statutory right of appeal. The question is whether the NGT, which is only invested with the jurisdiction of entertaining an appeal from an order of an appellate authority, is jurisdictionally capable of entertaining an appeal directly from the original authority. It is clear, as has been held by us, that the NGT possesses no such jurisdiction.
26. It is argued by the Learned Counsel for 3rd respondent that any decision is only an authority for what it actually decided and placed his reliance on 2017 (16) SCC 605, Royal Medical Trust vs. Union of India. It was argued that the Judgement in Sterlite‟s case has to be read as applicable to the facts of that particular case since the generality of the expressions which may be found there are not intended to be expositions of the whole law but are qualified only for the particular facts of the case.
27. Further it was argued that what is of the essence in a judgement is its ratio and not every observation made in the judgement. Therefore according to the Learned Counsel for 3rd respondent a) the question that came up for consideration was the maintainability of the appeal before National Green Tribunal under Section 16 of the National Green Tribunal Act, 2010 against a proceeding under Section 31 (A) of the Air (Prevention and Control of Pollution) Act, 1981. Whereas in the instant case the maintainability is with reference to the appeal before the Appellate Authority. Therefore the two issues are different from each other. b) The decision of Hon‟ble Apex Court is incidental to the main issue therein. c) The Hon‟ble Supreme Court only had made a reference 9 that "in the absence of any mention of Section 31(A) in Section 31(B) of the Air (Prevention and Control of Pollution) Act, 1981, given the statutory scheme as aforesaid makes it clear that even this argument must be rejected". The above observation was general in nature and beyond the core point of determination.
28. We do see some force in the above argument. Though the Air and Water Act operate in the sphere of environmental protection, they are wholly different and independent legislations. Basically, the appeal provisions in both the Acts vary. Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 is wider in scope whereas Section 28 of Water (Prevention and Control of Pollution) Act, 1974 provides remedy only against specific proceedings under Section 25 to 27. Likewise there‟s a Revision before the State Government provided in the Water Act. Whereas no such scheme is available in the Air Act. Thus the legislative principles are totally different between Air and Water Acts. However, after the advent of National Green Tribunal Act, 2010 an appeal is provided under Section 16 against orders passed under Section 13, 29 to 33 (A). Thus the legislation has consciously not provided an appeal remedy against order passed under Section 31 (A) of the Air (Prevention and Control of Pollution) Act, 1981 while including Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974.
29. The difficulty arose in this case because of the Composite order passed by the Board and the Appellate Authority. If the Board had passed two independent orders under Air and Water Act the above confusion would not have arisen. As discussed supra, the order passed under Section 31(A) is in addition to the powers given in Section 17. Therefore, it can be deemed as an order passed appealable under Section 31. It‟s trite that a judgement is not to be read as a statute, it‟s a constitutional mandate that orders/Judgements of Hon‟ble Supreme Court have binding effect. Even presuming for argument‟s sake that the findings in Sterlite case are obiter dicta and not ratio decidendi, the test has to be done only by revisiting the said decision by the Hon‟ble Supreme Court itself.
30. The above decision of „Sterlite Case‟ is binding on the Tribunal for the reason that it is made with particular reference to National Green Tribunal Act, 2010 and directed the aggrieved party to approach the Hon‟ble High Court. Though it may be argued that it is only a direction 10 and not a judgement to be binding, it is after elaborate discussion on the statutory scheme of the Air and Water Acts. Thus, following Para 45 and 46 of the judgement in Sterlite case, the appeal before the National Green Tribunal is not maintainable against the Air (Prevention and Control of Pollution) Act, 1981 as the National Green Tribunal is not vested with any specific power.
31. Therefore, when the impugned orders are composite in nature and incapable of being split the appeals are not maintainable before the Appellate Authority. In view of the „Sterlite Case‟ though alternative remedy of appeal is maintainable under the Water (Prevention and Control of Pollution) Act, 1974, the order of Pollution Control Board being a composite one, it will not preclude the appellant from challenging under Article 226. Therefore, we set aside the order dated 25.02.2022 in Appeal No. 80 of 2019 and restore the order dated 06.12.2019 of the Tamil Nadu Pollution Control Board.
32. There will be no order as to costs.
33. With the above observations and directions, the appeal is disposed of.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No Appeal No. 24/2020(SZ) 30th May, 2022. (AM) 11 Before the National Green Tribunal Southern Zone (Chennai) Appeal No. 24 of 2020 Michael Lambert Jehan Vs. Tamil Nadu Pollution Control Board and Ors.
Appeal No. 24/2020(SZ) 30th May, 2022. (AM) 12