Gujarat High Court
Babaubhai Noor Muhammad Shaikh vs State Of Gujarat & on 22 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17829/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17829 of 2016
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BABAUBHAI NOOR MUHAMMAD SHAIKH....Petitioner(s)
Versus
STATE OF GUJARAT & 10....Respondent(s)
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Appearance:
MR VA MANSURI, ADVOCATE for the Petitioner(s) No. 1
MS. THAKORE, ASST. GOVERNMENT PLEADER for the RESPONDENT(s)
No. 1-2
NOTICE SERVED BY DS for the RESPONDENT(s) No. 2-5
MR VAIBHAV A VYAS, ADVOCATE for the Respondent(s) No. 5
NOTICE SERVED for the RESPONDENT(s) No. 6
MR JEET J BHATT, ADVOCATE for the Respondent(s) No. 7
MR JAYANT P BHATT, ADVOCATE for the Respondent(s) No. 7
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/09/2017
ORAL ORDER
1. On 21st September, 2017, the following order was passed;
"1. By an order dated 7th September, 2017, the GPCB was directed to file an appropriate reply placing on record the report of the air samples. The GPCB was also asked to clarify whether any dusting takes place at the time of the operation of the unit or not. The GPCB was also asked, as an expert body, to clarify whether it would be advisable to permit the operation of such a unit surrounded by the agricultural fields.
2. In response to the order passed by this Court, the GPCB has filed an affidavit-in-reply, inter alia, stating as under;Page 1 of 5
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"2. In this regard, it is respectfully stated that the unit in question I.e. respondent No.7 was inspected on 4.9.2017 by the officers of the Gujarat Pollution Control Board and on that day, the samples were taken from stack attached to rotary kiln (close shed). It is respectfully stated that, the samples were also collected for monitoring of ambient air quality at a point in front of shed about 20 mtrs away from the shed. The said samples were sent for analysis. A copy of analysis report of the said samples is annexed hereto and marked as ANNEXURE0RE R/1 to this affidavit in reply.
3. It is respectfully stated that, from the persual of the analysis report, it is evident that the parameters qua particulate matters (PM) from the stack are highly exceeding the permissible limits at it was found to be 1144 MG/NM3 as against the permissible limit of 150 MG/NM3. It is respectfully stated that, Particulate Matters (PM-10) also known as Respirable Particulate Matter (RSPM) in the ambient air quality was found to be 159 microgram per normal cubic meter as against the permissible limit of 100 microgram per normal cubic meter.
4. It is respectfully stated that, during the course of inspection, few other lapses were also noticed which were in contravention to the consent to establish (CTE) granted by the Gujarat Pollution Control Board. Under these circumstances, notice was issued to respondent No.7 in exercise of powers conferred, under the Air Act, calling upon the said Unit to make its representation, if any. A copy of said notice dated 15.9.2017 is annexed hereto and marked as ANNEXURE R/2 to this affidavit in reply.
5. It is respectfully stated that, so far as the direction of this Honourable Court to the answering respondent to clarify as to whether it will be advisable to permit operation of such unit surrounded by agriculture fields is concerned, it is respectfully stated that, if the respondent No.7 unit meets with the norms prescribed by the GPCB in its Consent to Establish both at source, and in ambient air by efficient operation of air pollution control Page 2 of 5 HC-NIC Page 2 of 5 Created On Fri Sep 22 23:38:10 IST 2017 C/SCA/17829/2016 ORDER measures and environment management system as prescribed by the GPCB in its Consent to Establish, it will be possible to permit the operation of such unit surrounded by agriculture fields."
3. Mr. Bhatt, the learned counsel appearing for the respondent No.5 has filed a sur-rejoinder to the reply of the GPCB, which is ordered to be taken on record. He has tried to explain, in what circumstances, the GPCB found dusting while the unit was functional.
4. Mr. Vyas, the learned counsel appearing for the GPCB, is not available today on account of personal difficulty.
5. This Court would like to understand from the GPCB, what should be the next step in the process.
6. Post the matter on 22.09.2017 as Item No.1. Mr. Vyas is requested to remain present and assist the Court."
2. Mr. Vyas, the learned counsel appearing for the GPCB, made himself very clear that the Air Samples collected by the GPCB have failed to meet with the parameters laid down under the Rules and Regulations. According to Mr. Vyas, the Air Samples have failed to meet with the parameters because of excessive dusting taking place at the time when the unit is in operation. According to Mr. Vyas, the unit is causing both, Air as well as Soil pollution because the dust is getting settled in the earth. In fact, this is the issue in the matter.
3. Mr. Vyas submits that the GPCB issued a notice in this regard dated 15th September, 2017, which is at page-198, Annexure-R/2.
4. Mr. Bhatt points out that, upon receipt of the notice issued by the GPCB, his client has explained in writing, as to Page 3 of 5 HC-NIC Page 3 of 5 Created On Fri Sep 22 23:38:10 IST 2017 C/SCA/17829/2016 ORDER what went wrong which resulted in dusting, and why the Air Samples collected failed to meet with the parameters. The explanation offered by the private respondents herein is at page-204, wherein it is stated that they have made two modifications in the bag-house to control and keep check on the status of the bag-house.
5. The GPCB is directed to, once again, carry out the necessary inspection in this regard at the earliest so as to verify the modifications and apprise the Court whether such modifications would ultimately stop the dusting and thereby polluting the air and the soil of the adjoining agricultural fields.
6. Let there be a fresh inspection in this regard and the fresh Air Samples be collected, and the result of the same shall be placed before this Court. Prima facie, it is clear that the unit is creating a lot of pollution. It is a potential threat to the agricultural fields surrounding the same. Unless and until, all the precautions are not taken and the problem is not solved, the unit cannot be permitted to be operated. In such circumstances, only for the purpose of collecting fresh samples of Air, the unit shall be permitted to be operated and it can also be verified whether the modifications have been carried out and such modifications are, in any manner, effective to combat with the problem of pollution. The GPCB is also directed to collect the soil samples from the nearby fields and get them tested. The matter on hand is quite serious. Right to health and live in a clean environment is an important and basic human and fundamental right. Prima facie, it appears that its going to be an uphill task for the GPCB or any authority to keep a continuous monitoring, ultimately, even if the unit is Page 4 of 5 HC-NIC Page 4 of 5 Created On Fri Sep 22 23:38:10 IST 2017 C/SCA/17829/2016 ORDER permitted to be operated subject to certain terms and conditions. In such circumstances, the GPCB is, once again, called upon to give its expert opinion whether it will be feasible and advisable to permit the unit to operate even with all the conditions imposed in the consent order.
7. Post the matter on 9th November, 2017 on top of the board. This matter has been heard by this Court extensively. The same is treated as part-heard.
8. To be placed before this Court.
(J.B.PARDIWALA, J.) Vahid Page 5 of 5 HC-NIC Page 5 of 5 Created On Fri Sep 22 23:38:10 IST 2017