Gujarat High Court
M/S Balaji Processors vs State Of Gujarat on 9 April, 2018
Bench: M.R. Shah, A.Y. Kogje
C/SCA/465/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 465 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE A.Y. KOGJE sd/
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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M/S BALAJI PROCESSORS
Versus
STATE OF GUJARAT
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Appearance:
MR. S.I. NANAVATI, SENIOR ADVOCATE WITH MR. VANDAN BAXI FOR MRS
VD NANAVATI(1206) for the PETITIONER(s) No. 1,2
MR. DHAWAN JAYSWAL ASST. GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1,2
MR VAIBHAV A VYAS(2896) for the RESPONDENT(s) No. 3
MR. RONITH JOY FOR NANAVATI & CO.(7105) for the RESPONDENT(s) No.
4
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 09/04/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and order to quash and set aside the the impugned order Page 1 of 14 C/SCA/465/2016 JUDGMENT dated 07.10.2015 passed by the respondent no.3 - Gujarat Pollution Control Board (Annexure A to the petition) and to hold and declare that Notification No.SO.1260 dated 31.05.2015 does not prohibit existing business of the petitioners. The petitioners have further prayed for an appropriate writ, direction and order directing the respondent no.3 Gujarat Pollution Control Board to issue Consolidated Consent and Authorization (hereinafter referred to as the "CCA") to the petitioners Unit pursuant to its application dated 11.06.2015 upon such conditions as may be deemed appropriate and to direct the respondent no.4 to restore the power supply to the Unit of the petitioners at the location at Survey No. 57/1 & 5, Bilkha Road, Near Rama Fertilizers, Dungarpur (Padria), Dist. Junagadh.
2.0. The facts leading to the present petition in nutshell and so pleaded in the petition are as under:
2.1. That the petitioners were engaged in the business of washing of Grey Cotton Fabrics at its processing unit located at Survey No. 57/1 & 5, Bilkha Road, Near Rama Fertilizers, Dungarpur (Padria), Dist. Junagadh since 1992. That by Notification dated 31.05.2012 to conserve and protect the area around the protected areas of Girnar Wildlife Sanctuary, the said area is declared as Eco Sensitive Zone from ecological and environmental point of view.
The area in question is included in the EcoSensitive Zone declared pursuant to the Notification dated 31.05.2012. As per the said Notification dated 31.05.2012 all activities in the Girnar Eco Sensitive Zone shall be governed by the provision of Wild Life Page 2 of 14 C/SCA/465/2016 JUDGMENT (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986. Subject to the provision of Clause 3, the activities in the EcoSensitive Zone shall be regulated in accordance with Annexure III to the said Notification. That on and / or after publication of the said Notification in the official gazette, no new polluting industries shall be allowed to be set up within the EcoSensitive Zone and non polluting industries in the region may be considered with the provision of Minimum of 50 meter wide green belt.
2.2. That the respondent no.2 herein the Secretary, Girnar Sanctuary, Edo Development Committee and Deputy Forest Conservator, Junagadh Forest Department, Junagadh issued a letter in favour of respondent no.3 stating that as per the Notification dated 31.05.2012, polluting industries in Eco Sensitive Zone are prohibited. It was further stated that as unit of the petitioners falls under the EcoSensitive Zone, no further consent be given to the petitioners by GPCB respondent no.3 after it expires on 17.08.2014. Subsequently, the GPCB in reference to the above letter, addressed notice to the petitioners on 17.10.2014 whereby a copy was also marked to the respondent no.4 Electricity Company to disconnect the power supply of the petitioners unit. That respondent no.2 Secretary, Gir Sanctuary issued notice to the petitioners to produce all necessary and relevant documents pertaining to the permission from the competent authority and upon failure to do so, respondent no.2 shall declare the unit of the petitioners as illegal and take steps for closure of the unit. That vide communication dated 27.08.2014, respondent no.3 was Page 3 of 14 C/SCA/465/2016 JUDGMENT informed not to review the concerned CCA of the petitioners. It is the case on behalf of the petitioners that thereafter the petitioners made detailed representation on 09.09.2014 stating that the agriculturists in and around factory premises are taking crops from their respective lands, which could impliedly mean that water or air waste from the factory is not adversely affecting the environment. That the petitioners made further representation dated 22.09.2014 requesting to inspect the factory premises. A further representation was made on 29.09.2014 to the respondent no.2 and the petitioner undertook that within three weeks from then, they shall construct wall fencing. The electricity supply of the petitioners came to be disconnected by the respondent no.4 electricity Company on 17.10.2014.
2.3. It is the case on behalf of the petitioners that thereafter the respondent no.2 had sent a letter to the respondent no.3 (GPCB) specifically stating that as per Notification dated 31.05.2012, factory within the zone may not be permitted but in case of the petitioners if clearance as per the GPCB standards for Air and Water Pollution can be given, then Forest Department does not have objection if rest of the things are in accordance with law. That thereafter, the respondent no.3 GPCB issued a letter dated 31.01.2015 to the respondent nos. 1 and 2 seeking advise as to further course of action since the industries shall falling under Eco Sensitive Zone. That thereafter, the case of the petitioners was put before the Monitoring Committee constituted under the Government Resolution dated 31.05.2012 and to obtain appropriate permission from the Committee. That vide letter / Page 4 of 14 C/SCA/465/2016 JUDGMENT communication dated 22.03.2015, GPCB rejected the application submitted by the petitioners dated 01.12.2014 for CCA on the reasons that petitioners had not upgraded ETP and AIR Pollution Controal Measures as required by respondent no.3 GPCB. That thereafter, the petitioners again applied for CCA on 11.06.2015. It is the case on behalf of the petitioners that thereafter the petitioners made representation dated 31.08.2015 to the respondent no.2. That thereafter, GPCB by impugned communication dated 07.10.2015 has rejected the CCA Application on the reasons that unit is falling in EcoSensitive Zone and therefore, as per Forest Department letter should not be allowed to operate. Feeling aggrieved and dissatisfied wit the impugned order rejecting the CCA Application, the petitioners have preferred the present Special Civil Application under Article 226 of the Constitution of India.
3.0. Shri S.I. Nanavati, learned Senior Advocate has appeared on behalf of the petitioners , Shri Dhawan Jayswal, learned Assistant Government Pleader has appeared on behalf of the respondent no.1 and 2, Shri Vaibhav Vyas, learned advocate has appeared on behalf of the respondent no.3 and Shri Ronith Joy, learned advocate for Nanavati and Co has appeared on behalf of the respondent no.4.
4.0. Shri S.I. Nanavati, learned Senior advocate for the petitioners have vehemently submitted that the impugned decision/ order rejecting the CCA application of the petitioners on the ground that factory of the petitioners is located within the Eco Sensitive Zone is exfacie illegal and arbitrary and even contrary to the provisions of Page 5 of 14 C/SCA/465/2016 JUDGMENT Notification dated 31.05.2012.
4.1. It is further submitted by Shri Nanavati, learned counsel for the petitioners that even the impugned decision is on misinterpretation and / or misreading of the communication by the respondent no.2 dated 13.11.2014. It is submitted that the respondent no.3 has misread that the respondent no.2 has opined that the petitioners may not be allowed to operate the unit as the said location falls within the EcoSensitive Zone. It is submitted that in fact upon plain reading of communication dated 13.11.2014 it is clear that respondent no.2 has given no objection to the unit if all the standards of GPCB requirements are complied.
4.2. It is further submitted by Shri Nanavati, learned counsel for the petitioners that even otherwise the impugned decision refusing to grant CCA application to the petitioners is on misinterpretation of the provisions of the Notification dated 31.05.2012.
4.3. It is further submitted by Shri Nanavati, learned counsel for the petitioners that as such the provisions contained in Notification dated 31.05.2012, more particularly bar contained in Clause 3(1) shall not be applicable to the existing unit / Industries, existing at the time when the said notification dated 31.05.2012 was issued. It is submitted by Shri Nanavati, learned counsel for the petitioners that the wording of clause 3(1) of the Notification dated 31.05.2012 are very clear. It is submitted that as per the clause 3(1) on or after publication of the Notification in the official gazette no new polluting Industries shall be allowed to be set up Page 6 of 14 C/SCA/465/2016 JUDGMENT within the Eco Sensitive Zone. It is submitted that the same shall not be applicable with respect to the existing unit / Industries. It is submitted that the petitioners were running industry and factory since 1992 and therefore, the same cannot be said to be new polluting Industries. It is submitted that therefore, the bar contained in Notification dated 31.05.2012 shall not be applicable to the Industries like the petitioners and existing Industries.
4.4. It is further submitted by Shri Nanavati, learned counsel for the petitioners that as such after the last notice received from the GPCB on dated 22.03.2015, the unit of the petitioners has been upgraded / modified to meet the air and water pollution compliance as required by the GPCB. It is submitted that even the petitioners have also constructed the compound wall. It is submitted that despite the above, GPCB has refused to grant CCA, which is exfacie illegal.
Making above submissions, it is requested to grant the relief as prayed for.
5.0. Present petition is vehemently opposed by Shri Vaibhavh Vyas, learned advocate for the respondent no.3 GPCB and Shri Dhawan Jayswal, learned Assistant Government Pleader for the respondent nos. 1 and 2.
5.1. It is vehemently submitted by learned advocates for the respondent nos. 1 to 3 that admittedly the factory premises of the petitioners is located in the Eco Sensitive Zone declared as per the Notification dated 31.05.2012. It is submitted that factory premises Page 7 of 14 C/SCA/465/2016 JUDGMENT can be said to be and in fact is polluting unit. It is submitted that therefore, when factory unit is located in the Eco Sensitive Zone, the petitioners cannot be permitted to run the unit and therefore, the petitioners have been rightly denied the CCA.
5.2. It is vehemently submitted by learned advocates for the respondent nos. 1 to 3 that if the petitioners are permitted to run the unit, which as such is polluting unit, in that case, the object and purpose of declaring area as Eco Sensitive Zone will be frustrated.
5.3. It is vehemently submitted by learned advocates for the respondent nos. 1 to 3 that if the submission on behalf of the petitioners that clause 3(1) shall be applicable to new polluting Industries only, in that case, the object and purpose of Notification dated 31.05.2012 declaring area in question as Eco Sensitive Zone shall be frustrated. It is submitted that no polluting Industries whether in existence or new Industries shall be allowed to be set up within the Eco Sensitive Zone. It is submitted that intention of the legislature cannot be that the polluting Industries existing can be permitted to be polluted. It is submitted that therefore, the impugned decision refusing to grant CCA to the petitioners unit is absolutely just, proper and in consonance with the object and purpose of the declared area as Eco Sensitive Zone.
6.0. Heard the learned Counsels for the respective parties at length. At the outset, it is required to be noted that admittedly, the area of the petitioners unit falls within the Girnar Eco Sensitive Zone. It is to be noted that the Central Government has with the Page 8 of 14 C/SCA/465/2016 JUDGMENT prime objective of long term protection and conservation of Asiatic Lion and the rare and endangered biological diversity has declared the Girnar Reserved Forest in Junagadh Taluka and Bhesan Taluka of Jungadh District as Girnar Wildlife Sanctuary. That the Ministry of Environment and Forest, considering the extremely close vicinity of the Sanctuary to the human habitation, ongoing development activity, industrialization and mining activity around the Sanctuary, thought it fit that, the same necessitated the requirement of proper safeguards and control over such activities in view of long term wildlife conservation. Therefore, it was quite necessary to conserve and protect the area around the protected area of Girnar Wildlife Sanctuary as Eco Sensitive Zone from ecological and environment point of view. Under these circumstance, a draft Notification was issued by the Ministry of Environment and Forest under the provisions of the Environment Protection Act, 1986, which was published on 1.6.2011 whereby the objections and suggestion from all the persons likely to be affected thereby were invited. That thereafter and after considering all the objections and suggestions, Ministry of Environment and Forest, in exercise of powers conferred by subsection (1) r/w Clause (v) and Clause (xiv) of subsection (2) of Section 3 of the Environment (Protection) Act, 1986 and sub Rule(3) of Rules 5 of the Environment (Protection) Rules, 1986 notified area upto 5 kms from the boundary of the protected area of Gir Wildlife Sanctuary as Eco Sensitive Zone. The said notification provided for prohibited, regulated and permitted activities in Eco Sensitive Zone, which according to the said Notification shall be regulated in accordance with Annexure III to the said Notification. As per clause 1 of the said Notification, Page 9 of 14 C/SCA/465/2016 JUDGMENT Girnar EcoSensitive Zone shall be with a peripheral area of about 9317.58 hectare including 27 villages of Junagadh and Bhesan Talukas. The radius of EcoSensitive Zone is 05 kilometer. Upon perusal of the Annexure III to the Notification dated 31.05.2012, it is evident and cannot be disputed that, at serial no.4, it is provided that, setting of Industries causing pollution (Water, Air, Soil, Noise, etc) prohibited and therefore, the said activity cannot be permitted to be carried out within Eco Sensitive Zone. At this stage, it is required to be noted that so far as petitioners unit is concerned, Industrial Unit is engaged in the business of washing of grey cotton fabric (processing unit) and it is just adjacent to the Girnar Wildlife Sanctuary at a distance of 500 mtrs only. The said Industrial unit is a polluting unit, which causes water and air pollution. As per Clause 3(9) of the Notification dated 31.05.2012 no untreated or industrial effluent shall be permitted to be discharged into any water body or on land within the Ecosensitive Zone and the treated effluent shall meet the provisions of the Water (Prevention and Control of Pollution) Act, 1974. At this stage, some provisions of the Air (Prevention and Control of Pollution) Act; 1981, Water (Prevention and Control of Pollution) Act, 1974 and Environment (Protection) Act, 1986 are required to be referred to, which are as under:
"Section2 (a) and 2 (b), of the Air (Prevention and Control of Pollution) Act, 1981:
(a) "air pollutant" means any solid, liquid or gaseous substance [(including noise)] present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment;
(b) "air pollution" means the presence in the atmosphere of any air pollutant.Page 10 of 14
C/SCA/465/2016 JUDGMENT Section 2 (e) and 2 (k) of the Water (Prevention and Control of Pollution) Act, 1974:
(e) "pollution" means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms;
(k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any ["Industry, operation or process, or treatment and disposal system]" other than domestic sewage.
Section 2 (a) and 2 (b) of the Environment (Protection) Act, 1986:
(a) "environment" includes water, air and land and the inter relationship which exists among and between water, air and land, and human beings, other living creatures, plants, microorganism and property;
(b) "environmental pollutant" means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment."
6.2. Considering the aforesaid provisions and even otherwise, it is not disputed that unit of the petitioners can be said to be "polluting unit". Therefore, as such the petitioners Industrial unit cannot be permitted to continue in the Eco Sensitive Zone as per the Notification dated 31.05.2012. Clause 3(1) of the Notification dated 31.05.2012 which provides that on or after publication of the Notification in the official gazette no new polluting industries shall be allowed to be set up within the Eco Sensitive Zone.
6.3. However, it is the case on behalf of the petitioners that Page 11 of 14 C/SCA/465/2016 JUDGMENT Notification dated 31.05.2012, more particularly, bar contained in Clause 3(1) shall not be applicable to the existing unit like petitioner and it shall be applicable in respect of new polluting Industries only. The aforesaid submission is required to be rejected outright. If the submissions on behalf of the petitioners that bar contained in Notification dated 31.05.2012 shall be applicable only with respect to "new polluting Industries" and not to the "existing polluting unit", in that case, the object and purpose of declaring area as Eco Sensitive Zone shall be frustrated. If the submission on behalf of the petitioners is accepted, in that case, the existing polluting unit can be permitted to pollute, which cannot be the intention of the legislature. Even the aforesaid can be said to be against the object and purpose declaring the area as Eco Sensitive Zone. No polluting industries either may be existing and / or new polluting industries can be permitted to act contrary to the provisions contained in Notification dated 31.05.2012 and they cannot be permitted to pollute the area. Accepting the submission on behalf of the petitioners, shall affect and to permit such activities would affect long term wildlife conservation and shall affect ecology. Notification dated 31.05.2012 has been issued to conserve and protect the area around the protected areas of Girnar Wildlife Sanctuary, the said area is declared as Eco Sensitive Zone from ecological and environmental point of view. It is required to be noted that CCA in favour of the petitioners was upto 17.08.2014 and thereafter considering the Notification dated 31.05.2012 the same has not been further renewed and / or granted. Therefore, even with respect to the renewal of CCA which expires on 17.08.2014 clause 3(1) shall be applicable. On purposive Page 12 of 14 C/SCA/465/2016 JUDGMENT interpretation, considering the object and purpose of Notification dated 31.05.2012 and declaring area in Eco Sensitive Zone, it can be said that when an application for renewal and / or fresh application for CCA has been submitted it can safely be interpreted that as and when such an application for renewal of CCA is submitted, clause 3(1) of Notification dated 31.05.2012 shall be applicable. Under the circumstance, the impugned decision rejecting the CCA application of the petitioners is absolutely just, proper and in consonance with the object and purpose of Notification dated 31.05.2012 and same does not suffer from any arbitrariness and / or illegality.
7.0. Now, so far as the reliance placed on behalf of the petitioners upon the communication dated 13.11.2014 by the office of Deputy Conservator of Forest Department, Junagadh is concerned, by the aforesaid communication, it cannot be said that it was opined to accept the CCA application of the petitioners. Even in the said communication, it is specifically mentioned that processing unit of the petitioner is in the Eco Sensitive Zone of Girnar Wildlife Sanctuary and same is only 500 meter away from Girnar Sanctuary, there is possibility of Air and Water pollution. In last para, it is specifically mentioned that as there is possibility of Air and Water Pollution, it was opined to take appropriate decision in case, it is found that there is no Air and / or Water Pollution. As observed herein above, the Industrial Unit of the petitioners is "polluting unit" and the same is just 500 meter away from the Girnar Sanctuary, submission of the petitioners is clause 3(1) of the Notification dated 31.05.2012 shall not be applicable to the Page 13 of 14 C/SCA/465/2016 JUDGMENT existing unit prior to Notification dated 31.05.2012, which as observed herein above, cannot be accepted.
8.0. In view of the above and for the reasons stated above, the impugned decision rejecting the CCA application of the petitioners is absolutely just and proper and considering the object and purpose of the Notification dated 31.05.2012 to declare area in question as Eco Sensitive Zone and to protect Wildlife and other environment etc., present petition fail and same deserve to be dismissed and is accordingly dismissed.
sd/ (M.R. SHAH, J) sd/ (A.Y. KOGJE, J) KAUSHIK J. RATHOD Page 14 of 14