Kerala High Court
Nelkadir Bone Industries vs The Kerala State Pollution Control ... on 12 November, 2024
WP(C) NO. 13008 OF 2024
& WP(C) NO. 13072 OF 2024 1 2024:KER:84199
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 12th DAY OF NOVEMBER 2024/ 21ST KARTHIKA, 1946
WP(C) NO. 13008 OF 2024
PETITIONER:
NATIONAL INDUSTRIES,
V/264 D.A., EDAYAR, MUPPATHADAM P.O.,
ERNAKULAM, REPRESENTED BY ITS PROPRIETOR
AUTHORISED SIGNATORY, PIN - 683110
BY ADVS. ASWIN GOPAKUMAR
ANWIN GOPAKUMAR
ADITYA VENUGOPALAN
MAHESH CHANDRAN
ANGITA T. MENON
SARANYA BABU
RESPONDENTS:
1 KERALA STATE POLUTION CONTROL BOARD,
HAVING ITS HEAD OFFICE AT PLAMOODY- THEKKAMOODU
ROAD, PATTOM, THIRUVANANTHAPURAM, PIN - 695004
WP(C) NO. 13008 OF 2024
& WP(C) NO. 13072 OF 2024 2 2024:KER:84199
2 THE CHIEF ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
REGIONAL OFFICE, GANDHI NAGAR, KADAVANTHARA P.O,
ERNAKULAM, PIN - 682020
3 THE ENVIRONMENTAL ENGINEER,
ENVIRONMENT SURVEILLANCE CENTRE, FACT-QR NO.S-5,
UDYOGAMANDAL P.O, ERNAKULAM, PIN - 683501
BY ADV SRI. T.NAVEEN SC, KERALA STATE POLLUTION
CONTROL BOARD,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.11.2024, ALONG WITH WP(C).13072/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 13008 OF 2024
& WP(C) NO. 13072 OF 2024 3 2024:KER:84199
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 12th DAY OF NOVEMBER 2024 / 21ST KARTHIKA, 1946
WP(C) NO. 13072 OF 2024
PETITIONER:
NELKADIR BONE INDUSTRIES,
V/264 D.A., EDAYAR, MUPPATHADAM P.O.,
ERNAKULAM , REPRESENTED BY ITS AUTHORISED
SIGNATORY MR. ABDUL LATHEEF, PIN - 683110
BY ADVS. ASWIN GOPAKUMAR
ANWIN GOPAKUMAR
ADITYA VENUGOPALAN
ANGITA T. MENON
MAHESH CHANDRAN
SARANYA BABU
RESPONDENTS:
1 THE KERALA STATE POLLUTION CONTROL BOARD,
HAVING ITS HEAD OFFICE AT PLAMOODY-THEKJAMOODU
ROAD, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY
WP(C) NO. 13008 OF 2024
& WP(C) NO. 13072 OF 2024 4 2024:KER:84199
ITS CHAIRMAN, PIN - 695004
2 THE CHIEF ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD.
REGIONAL OFFICE, GANDHI NAGAR, KADAVANTHARA
P.O., ERNAKULAM, PIN - 682020
3 THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
ENVIRONMENT SURVEILLANCE CENTRE, FACT-QR NO.
S-5, UDYOGAMANDAL P.O., ERNAKULAM, PIN - 683501
BY ADV SRI. T.NAVEEN SC, KERALA STATE POLLUTION
CONTROL BOARD,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.11.2024, ALONG WITH WP(C).13008/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 13008 OF 2024
& WP(C) NO. 13072 OF 2024 5 2024:KER:84199
JUDGMENT
The petitioners are running bone meal processing industries in the Edayar Industrial Development Area. On the basis of complaints raised by the residents of the Eloor-Edayar area and the other nearby areas regarding odour, nuisance and air pollution issues due to the functioning of the bone meal units, chicken waste rendering plants, fish oil units and rubber processing units, the Pollution Control Board decided to avail the service of an expert agency to assess the operational efficiency of bio-filters/other odour control measures provided in the 20 industries located in the industrial area. The Board had engaged CSIR- National Institute of Interdisciplinary Science and Technology (NIIST), Thiruvananthapuram, for scientific and technical intervention on such environmental issues by assessing the present status and operational efficiency of the measures to be taken in the Edayar Industrial area.
WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 6 2024:KER:84199
2. Through Ext.P1, dated 15.12.2023, the Chief Environmental Engineer had issued certain directions to all the industries regarding the remedial of foul smell on account of the running of such industries, which are as follows:
" 1. The raw materials should be brought to the processing units in closed vehicles.
2. Raw material storage area should be covered and shall be provided with suitable ventilation and shall be connected with biofilter or suitable scientific odour control system.
3. The raw materials brought to the units should be processed in the unit without any time delay in order to prevent decay and odour issues.
4. The raw materials should be brought to the cooking areas through conveyors, preferably closed conveyors.
5. A qualified and dedicated technician should be appointed for the processing unit and attached air and water pollution devices for efficient maintenance.
WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 7 2024:KER:84199
6. There should be an Effluent Treatment Plant (ETP) of adequate capacity complying with the standards prescribed by Pollution Control Board for the treatment of waste water generated in the unit.
7. The sludge from the ETP should be collected and shall be scientifically disposed off.
8. The chimney should have a stack height of min 30m with a facility for stack emission monitoring.
9.Estimation and quantifying total quantity of vapour emanating from the process need to be assessed. Suitable air pollution (odour) control unit (i.e., water scrubber, biofilter, incinerator etc.) need to be installed based on the odour emission and shall be adequate to treat the vapour formed during the process.
10. The biofilter techniques adopted in the units should be scientifically designed and approved.
11. Proper maintenance of bio-filter system should be done at regular intervals atleast of 6 months. For the maintenance of bio-filter the following details shall be ensured.
i. Need proper sizing of biofilter and loading quantity of packing material based on the process emission.
WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 8 2024:KER:84199 ii. Need proper housekeeping and maintenance of biofilter area.
iii. Selection of proper filter media which having high water holding capacity.
iv. Proper arrangement of filter media and compact packing is essential. Proper maintenance and periodic replacement of packing media is very much required. v. Proper ventilation ducting required for inlet gas stream to the biofilter. Inlet and outlet line should be properly connected to Biofilter.
vi. Biofilter should be integrated with proper humidifier or condenser system. Biofilter inlet gas temperature should be maintained. vii. Proper suction hood/ ventilation system need to be installed in processing area, cooking area, loading and unloading area which should be connected to the biofilter."
3. The petitioner did not give a reply as directed in Ext.P1, which made the Board issue Ext.P3 communication on 06.02.2024, and Ext.P4 issued on 06.03.2024 directing the petitioner to respond. Finally the petitioner submitted Ext.P5 reply on 25.03.2024, which reads as follows:
WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 9 2024:KER:84199 "I am submitting herewith the action taken to minimise the odour generated during the material handling and production process.
1.The raw material is transported to the unit in accordance with the directions of the board. Open trucks are not used for this purpose. Utmost care is taken to avoid any pollution related incidence enroute.
2.Our unit is handling flesh waste, tallow and raw bone.
The waste on receipt is immediately transferred to the cooker on first come first basis. Hood and suction are provided in the storage area and connected to the bio filter.
3.There is no storage of raw bone in our unit. Bone is stored only after cooking. After cooking there will not be any foul odour from the cooked bone. Our unit is provided with odour control spray system which is operational.
4. The production supervisors and technicians are experienced and trained to operate equipment hence the system is well operated.
5. There is no waste water generation during the production process. The thick slurry is solidified by using lime powder and is mixed with the bone meal powder and marketed as manure. For the general wash WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 10 2024:KER:84199 water septic tank and sock pit are provided.
7.Wood fired country boiler is used for boiling and cooking. The chimney is provided 30 meters above the roof level and is well maintained.
8.Odour control mechanism is provided with a 10 HP capacity blower, hoods & suction connected to conduit lines, wet scrubber, and bio filter are working in good condition.
9. Our unit is installed with a bio filter of 22.5 meter cubic volume which is well maintained periodically. The ventilation system /suction hood are functioning well."
4. The petitioner challenges Ext.P1 dated 15.12.2023, and Exts.P3 and P4 which directed them to comply with the directions in Ext.P1. It is seen from Ext.P5, the reply given by the petitioners, that their stand was that they have complied with the directions in Ext.P1. There is no averment at all in Ext.P5 that the measures suggested in Ext.P1 are either ultra vires the Act or that it is incapable of compliance. The writ petitions are filed essentially contending that the standards, which the Board attempts to secure through Ext.P1, are based on a project report mentioned as EN WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 11 2024:KER:84199 13725 (2003), a European Standard for the measurement of odour, which, according to the petitioners, is obsolete and has been withdrawn by the European Union on 23.02.2022 and is no longer applicable there.
5. The writ petitions were filed on 27.03.2024 challenging Exts.P1, P3 and P4 dated 15.12.2023, 06.02.2024 and 06.03.2024 respectively. Pending the writ petitions, noticing that the defects were not cured, closure intention notices dated 14.08.2024 and 13.08.2024 were served on the petitioners in W.P(C) No.13008/2024, and W.P(C) No.13072/2024, respectively intending to revoke the consent alleging that the defects pointed out in Ext.P1 have not been cured. The defects noted as regards the petitioner in W.P.(C) No.13008/2024 are as follows:
"Whereas inspection was conducted by board officials as per ref (3) and the following violations/defects were observed.
1. All of the vehicles used to transport raw materials to the unit were not found to be fully covered. WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 12 2024:KER:84199
2. The raw material storage area lacks adequate enclosure, proper ventilation and connection to a biofilter or an appropriate scientific odour control system.
3. Open conveyors were used to transport raw materials to the cooking areas, rather than closed conveyors.
4. Qualified and dedicated technician has not been assigned to the processing unit.
5. No ETP facility was provided for effluent treatment.
6. The chimney lacks the required stack height of 30 meters.
7.The biofilter installed in the unit was not functioning and has not received any approval.
8. The frequency of maintenance and media replacement for the biofilter was not found satisfactory. No records of periodic replacement of packing media are maintained in the unit.
9. Temperature sensor, humidifier or condenser has not been provided for biofilter.
10.The loading and unloading area does not have a suction hood installed.
11. Large quantities of cooked bones and bone powder were piled up inside the unit. Additionally, huge heap of cooked bone has been stored in the adjacent unit for the past 2-3 months."
WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 13 2024:KER:84199
6. The defects noted regarding the petitioner in W.P.(C) No.13072/2024 are as follows:
"Whereas inspection was conducted by board officials on 29.07.2024 and the following violations/defects were observed"
1. All of the vehicles used to transport raw materials to the unit were not found to be fully covered.
2.The raw material storage area lacks adequate enclosure, proper ventilation and connection to a biofilter or an appropriate scientific odour control system.
3.The raw materials delivered to the units were processed with a delay.
4. Open conveyors are used to transport raw materials to the cooking areas, rather than closed conveyors.
5. Qualified and dedicated technician has not been assigned to the processing unit.
6. The operation of ETP was found to be unsatisfactory.
7. The chimney lacks the required stack height of 30 meters.
8. The biofilter installed in your unit was not functioning and has not received approval from the board. Also the sprinkles provided in the unit were poorly designed and WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 14 2024:KER:84199 defective.
9.The frequency of maintenance and media replacement for the biofilter was not found satisfactory. No record of periodic replacement of packing media is maintained in the unit.
10. Temperature sensor, humidifier or condenser has not been provided for biofilter.
11. The loading and unloading area does not have a suction hood installed. Also the vapours were not being captured by the hood installed above the cooker. The suction facilities provided in the unit is found to be inadequate.
12. Large quantities of cooked bones and bone powder are piled up inside the unit. Additionally, huge pile of cooked bone powder has been stored here for the past 3 years, and the bone powder stored caught fire during the inspection."
7. It was specifically alleged in the above notices that the units were functioning without curing the defects noted above and accordingly show cause notices were issued as to why closure directions as per Section 33A of the Water (Prevention and Control of Pollution) Act 1974 and as per Section 31A of the Air (Prevention WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 15 2024:KER:84199 and Control of Pollution) Act, 1981 shall not be issued for the above non-compliance. The Board also has stated about an inspection conducted on 29.07.2024 to verify the compliance of the directions issued vide Ext.P1. The petitioners had submitted Annexure.R3(d) replies dated 27.08.2024 which also maintained the stand that there were no defects as alleged by the Board. There is not even a syllable as to why the petitioners are not required to comply with the directions in Ext.P1 or in the closure intention notices. The contention taken in the writ petitions was never put forth as a reply to either Ext.P1 or to Annexure R3(c), the closure intention notice. This contention is not supported by any material and was never urged before the Board to be tested or considered. Accordingly, the contentions in that regard are only to be rejected.
8. After receipt of the reply, another inspection was conducted on 04.09.2024 to verify the details mentioned in the reply. It was found that there was only partial compliance with the direction of the Board. Therefore, a request letter was sent to the WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 16 2024:KER:84199 Chairperson of the Board to get permission to close down the unit as per Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31A of the Air (Prevention and Control of Pollution) Act, 1981. It was after all these steps that the closure orders were passed on 22.10.2024 again repeating that the defects pointed out and which were stated in the closure intention notices remain uncomplied and accordingly directed the Unit to be closed down with immediate effect and report the action to the office at the earliest and also not to resume operation without obtaining written permission from the Board and without rectifying the above defects. It is submitted that except for challenging Exts.P1, P3 and P4, there is no challenge to any of the orders passed subsequently including the closure orders.
9. The reply affidavits filed in these cases claim that they were operating the units meeting all the requirements as mandated by law. The said statements are wrong in view of the affidavits/reports filed by the Pollution Control Board which clearly WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 17 2024:KER:84199 mentions the deficiencies in the units starting from Ext.P1 issued on 15.12.2023, Annexure R3(c) closure intention notice dated 14.08.2024 and the closure order dated 22.10.2024, Ext.P6. As I have already rejected the contention raised in the writ petition based on the European standards, in the absence of a challenge to the orders/actions issued by the board subsequent to the filing of the writ petitions, the contention that the defects are cured also cannot be accepted.
10. Though the learned counsel for the petitioner submits the basis for issuing the notice was based on European Standards, as stated above, there was no such plea taken either while replying to Ext.P1 or while replying to the closure intention notices. It is trite that a litigant cannot be permitted to make a volte-face, take inconsistent positions, play fast and loose, blow hot and cold, to approbate and reprobate, to the detriment of his opponent. The doctrine of approbate and reprobate applies to the conduct of parties and having replied to the notices of the Pollution Control WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 18 2024:KER:84199 Board taking a position that the defects noticed are cured, the contentions in the writ petition that they are not liable to cure the defects in either Exts.P1 to P4 or in the notices seeking revocation of consent, cannot be accepted at all. These are not contentions that can be considered for the first time in these writ petitions, more so when the petitioners had no such case at all before the Pollution Control Board. The petitioners cannot be permitted to change after taking a stand and then turn around and attack the same for the purpose of securing some other advantage. I do not find any merit in the contentions raised on behalf of the writ petitioners. It is relevant to note that no malice/malafides are alleged against any acts of the Pollution Control Board or its officials.
11. The conduct of the party not to close down the unit despite the closure order also deserves mention and it is only after the direction of this court to inspect the premises that the Board also took steps to see that the unit stopped functioning defying the closure order, which specifically directed the petitioner not to WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 19 2024:KER:84199 continue running the unit without express permission. Given the number of opportunities granted by this Court through orders dated 23-10-24, 5-11-24, and 7-11-24 to cure the defects and intimate the Board and the conduct of the party referred to above, I do not think that this is a fit case where any indulgence can be shown invoking the discretionary jurisdiction.
Needless to say the above findings are rendered dealing with the contentions raised in the writ petitions as regards the orders impugned therein. Without prejudice to the right of the petitioners to challenge the Closure Orders, if so advised, before the Appellate Forums concerned, the writ petitions are dismissed.
Sd/-
MOHAMMED NIAS C.P. JUDGE DMR/-
WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 20 2024:KER:84199 APPENDIX OF WP(C) 13072/2024 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER DATED 15.12.2023 ISSUED BY THE RESPONDENT NO. 2 Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE PROJECT REPORT ON OPERATIONAL EFFICIENCY OF INDUSTRIAL GAS BIOFILTERS Exhibit P3 TRUE COPY OF THE LETTER ISSUED BY RESPONDENT NO.3 DATED 06.02.2024 Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY RESPONDENT NO. 2 DATED 06.03.2024 Exhibit P5 TRUE COPY OF THE REPLY DATED 25.03.2024 ISSUED TO THE RESPONDENT NO. 3 Exhibit P6 CLOSURE ORDER ISSUED BY RESPONDENT NO.1 DATED 22.10.2024 Exhibit P7 A TRUE COPY OF ANALYTICAL REPORT DATED 24.11.2022 ISSUED BY THE INDIAN INSTITUTE OF SPICE RESEARCH WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 21 2024:KER:84199 Exhibit P8 A TRUE COPY OF THE LIST OF TECHNICIANS EMPLOYED BY THE PETITIONER FIRM Exhibit P9 A TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER FIRM A TRUE COPY OF THE INVOICE DATED Exhibit P10 06.11.2024 ISSUED TO THE PETITIONER EVIDENCING THE PURCHASE OF A CRUSHING MACHINE RESPONDENTS' ANNEXURES Annexure R3(a) TRUE COPY OF THE CONSENT TO OPERATE NO.
KSPCB/ESC/ICO/10041381/2023 DATED 1-12-2023, VALID UPTO 30-6-2028, ISSUED BY THE POLLUTION CONTROL BOARD.
Annexure R3(b) TRUE COPY OF THE LETTER NO P.C.B./R.O
-E.K.M/GEN-13/11 DATED 6-7-2024 ISSUED BY THE BOARD TRUE COPY OF THE CLOSURE INTENTION Annexure R3(c) NOTICE NO PCB/ESC/CO-75/06 DATED 13-8-2024 WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 22 2024:KER:84199 Annexure R3(d) TRUE COPY OF THE REPLY DATED 27-8-2024 REF NO NBI/2024-25/01 TRUE COPY OF THE LETTER NO PCB/ESC/CO- Annexure R3(e) 75/06 DATED 7- 9-2024 SENT TO THE CHAIRPERSON OF THE BOARD Annexure R3(f) TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 15-10-2024.
TRUE COPY OF THE LETTER NO.
Annexure R3(g) KSPCB/1637/2024-EE-1 DATED 21-10-2024 ISSUED BY THE CHAIRPERSON OF THE POLLUTION CONTROL BOARD.
// TRUE COPY // P.A. TO JUDGE WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 23 2024:KER:84199 APPENDIX OF WP(C) 13008/2024 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER DATED 15.12.2023 ISSUED BY THE RESPONDENT NO.2 Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE PROJECT REPORT ON OPERATIONAL EFFICIENCY OF INDUSTRIAL GAS BIOFILTERS Exhibit P3 TRUE COPY OF THE LETTER ISSUED BY RESPONDENT NO.3 DATED 06.02.2024 Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY RESPONDENT NO. 2 DATED 06.03.2024 Exhibit P5 TRUE COPY OF THE REPLY DATED 25.03.2024 Exhibit P6 TRUE COPY OF CLOSURE ORDER DATED 22.10.2024.
A TRUE COPY OF ANALYTICAL REPORT DATED 24.11.2022 ISSUED BY THE INDIAN Exhibit P7 INSTITUTE OF SPICE RESEARCH Exhibit P8 A TRUE COPY OF THE LIST OF TECHNICIANS WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 24 2024:KER:84199 EMPLOYED BY THE PETITIONER FIRM A TRUE COPY OF THE PHOTOGRAPHS OF THE Exhibit P9 PETITIONER FIRM RESPONDENTS' ANNEXURES Ext.R3(a) TRUE COPY OF THE LETTER NO. PCB/ESC/CO-
74/08 DATED 28-10-2024 ISSUED BY THE POLLUTION CONTROL BOARD.
TRUE COPY OF THE COMMUNICATION NO.
Ext.R3(b) DB/GENERAL-EDR/2024-25/128 DATED 1-11-2024 SENT BY THE KSEB, ELECTRICAL SECTION, EDAYAR.
Annexure R3(a) TRUE COPY OF THE CONSENT TO OPERATE NO.
PCB/ESC/CO/IC-109/94/18 DATED 1-7-2018 ISSUED BY THE POLLUTION CONTROL BOARD. TRUE COPY OF THE LETTER NO. PCB/RO-
EKM/JEN - 13/11 DATED 6-7-2024 ISSUED Annexure R3(b) BY THE BOARD Annexure R3(c) TRUE COPY OF THE SAID CLOSURE INTENTION WP(C) NO. 13008 OF 2024 & WP(C) NO. 13072 OF 2024 25 2024:KER:84199 NOTICE NO. PCB/ESC/CO-74/08 DATED 14-8-2024 Annexure R3(d) TRUE COPY OF THE REPLY LETTER DATED 27.08.2024 REF. NO. NI/2024-2025/02 TRUE COPY OF THE LETTER NO PCB/ESC/CO- Annexure R3(e) 74/08 DATED 10-9-2024 SENT TO THE CHAIRPERSON OF THE BOARD Annexure R3(f) TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 15-10-2024.
Annexure R3(g) TRUE COPY OF THE LETTER NO.
KSPCB/1637/2024-EE-1 DATED 21-10-2024 ISSUED BY THE CHAIRPERSON OF THE POLLUTION CONTROL BOARD.
// TRUE COPY // P.A. TO JUDGE