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Prima Facie Impugned Show Cause Notices Issued In Haste Without Jurisdiction; Bombay HC Stays 62 Notices Issued By MPCB To Textile Units In Non-Conforming Zone [Read Order]

Nitish Kashyap
9 July 2020 5:20 AM GMT
Prima Facie Impugned Show Cause Notices Issued In Haste Without Jurisdiction; Bombay HC Stays 62 Notices Issued By MPCB To Textile Units In Non-Conforming Zone [Read Order]
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The Bombay High Court on Tuesday stayed a total of 62 show cause notices all dated May 18, 2020, issued to textile manufacturers by Maharashtra Pollution Control Board (MPCB) for refusal of application for consent to operate under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.

Division bench of Justice Ujjal Bhuyan and Justice Riyaz Chagla concluded that the notices were issued in haste and without jurisdiction. Court directed the State and MPCB not to take any coercive action against the industrial units of the petitioners.

Petitioner's counsel Advocate Manoj Harit submitted that the impugned notices issued by the MPCB are wholly illegal and arbitrary besides being oppressive. There is no violation of any of the conditions imposed while granting consent to operate. On the alleged ground that industrial units of the petitioners are located in non-conforming zone, respondents could not have withheld issuance of extension or fresh consent to operate the industrial units, Adv Manoj argued.

Moreover, issuance of such show cause notice that too by providing only 15 days' time limit for reply during this pandemic reflects a totally mechanical approach of the respondents, Adv Manoj asserted.

The pollution control board had instructed M/s. Reliable Sizing Works to submit a adequacy report of pollution control system from NEERI / IIT, Mumbai and also to submit necessary permission (NOC) issued by the City Engineer of the Municipal Corporation with recommendation to operate the industry in the said location.

Getting reports from NEERI or IIT, Mumbai within such a short span of time during this pandemic is impossible. Thus, the impugned show cause notices dated May 18 must be stayed and respondents may be directed not to take any coercive steps like disconnection of electricity, water and other basic amenities to the industrial units of the petitioner, Adv Manoj contended.

Whereas, appearing on behalf of the state pollution control board, Advocate RV Govilkar opposed admission of the writ petition as well as prayer for stay on the notices. He submitted that in compliance with the principles of natural justice, the impugned show cause notices have been issued. It is for the petitioners to respond to the show cause notices and satisfy the statutory authority about the fulfillment of conditions for grant of consent to operate. Therefore, the writ petition is premature, Govilkar said.

The bench noted that all the 62 show cause notices to textile manufacturers are identical. Therefore, one of the show cause notices was taken up for consideration, the notice issued to Reliable Sizing Works by the Regional Officer, Nashik, Maharashtra Pollution Control Board, Regional Office, Nashik.

M/s. Reliable Sizing Works had applied for grant of consent to operate under Section 26 of the Water Act and under section 21 of the Air Act. Furthermore, the Malegaon Municipal Corporation had informed that Reliable Sizing was operating its industry in non-conforming zone. Regional Officer then referred to an order of the National Green Tribunal dated January 21, 2020 in Mohammad Yusuf Abdullah Shaikh Vs. State of Maharashtra wherein it was held that industries in non-conforming area are to be removed.

MPCB placed reliance on NGT's order dated January 21 in their affidavit. Court said that as per the said order, NGT had directed MPCB to take effective steps to enforce the law and stringent monitoring for protection of the environment. In this connection, need for co-ordination amongst different agencies was stressed upon so as to ensure that the plastic related activities units, sizing units, yarn dying units, etc. are removed from non-conforming area.

It was further submitted before the Court that the Board had issued closure directions on September 3, 2019 to such industrial units. This was followed by orders of sealing passed by the Corporation. These were challenged by the petitioners before the High Court in a writ petition. High Court passed an order dated March 11, 2020 directing MPCB and the Corporation to complete the exercise of verification in accordance with law within the next three months.

Pursuant to the said order, MPCB had requested the Corporation in a letter dated March 18, 2020 to submit the present status with respect to industrial units located in conforming / non-conforming area with recommendation for grant of consent to operate. Reply of the Corporation is yet to be received.

Court examined two similar sections in the Water Act and Air Act, Section 33A of the Water Act and Section 31A of the Air Act both deal with general power of MPCB to give directions.

The bench observed-

"It is not the case of the Board that petitioners have not complied with the conditions under section 25(4) of the Water Act and section 21(5) of the Air Act. The power to direct closure or regulate operation of an industry under section 33A of the Water Act and section 31A of the Air Act are subject to provisions of the respective Acts."

Though these two provisions start with a non obstante clause, the same is vis-a-vis any other law but subject to the provisions of the two Acts. In other words, section 33A of the Water Act and section 31A of the Air Act are governed by the provisions of the respective two Acts. It is not an unguided power to be exercised dehors the provisions of the two Acts."

Moreover, the bench also concluded from the affidavit filed on behalf of the respondents that reply from the Corporation regarding verification of existence of industrial units within non-conforming zone is still awaited-

"In such circumstances, the Board ought to have sought for further time from this Court to comply with the directions dated 11.03.2020. Instead of doing that, the Board straightway issued the impugned show cause notices."

Finally, granting a stay on all impugned notices, Court said-

"That being the position, a prima facie view can be taken that the impugned show cause notices have been issued without jurisdiction and that too hastily"

In addition to this, Adv Manoj pointed out a circular of the MPCB dated March 1, 2016 regarding implementation of enforcement policy. As per the MPCB's notification dated February 29, 2016, MPCB will carry out cumulative and comprehensive environmental impact study in appropriate cases to identify various factors responsible for causing damage to the environment through reputed institutions like IIT, Powai; NEERI, etc. to decide remedial and restoration measures.

The bench noted that MPCB has also taken effective measures with regard to "Make-in-India Initiative" under the State of Maharashtra for expediting statutory permissions like, auto renewal scheme on the basis of self certification applicable for all category of industries, more particularly for green and orange category industries; besides refusal of consent or revocation of consent shall be taken up only when there is continual non-compliance in spite of sufficient opportunities and extension of time granted by the Board.

Thus a notice was issued to the board returnable in six weeks. The next date of hearing is August 18, 2020.

Case Number: WP-ASDB-LD-VC-69 of 2020

Case Name: Reliable Sizing Works and others Vs. State of Maharashtra and others.

Coram: Ujjal Bhuyan and Riyaz I Chagla JJ

Counsel: Adv Manoj Harit for the petitioners, Adv RV Govilkar for MPCBand AGP Neha Bhide for the State

Click Here To Download Order

[Read Order]

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