IN THE HIGH COURT OF KERALA, AT ERNAKULAM

 

PRESENT

 

THE HONOURABLE MR.JUSTICE K.A.ABDUL GAFOOR

 

TUESDAY, THE 31ST AUGUST, 2004/9TH BHADRA 1926

 

 

 

W.P.(C).No…..2 5 8 6 6……OF 2004-D

 

 

PETITIONER:

 

 MESSRS.MERCHEM LIMITED, 2ND FLOOR, MALANKARA CENTRE, M.G.ROAD, KOCHI-35, REPRESENTED BY ITS DIRECTOR MR.RAJU.

 

BY ADV. SRI.V.GIRI.

 

RESPONDENTS:

 

  1. THE KERALA STATE POLLUTION CONTROL BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MEMBER SECRETARY,  THIRUVANANTHAPURAM.

 

  1. THE CHAIRMAN, KERALA STATE POLLUTION CONTROL BOARD, THIRUVANANTHAPURAM.

 

BY SC SRI.BABU JOSEPH KURUVATHAZHA.

 

 

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31-8-2004 a/w WP(C).No.25832/2004 & CONN. CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

 

 

K.A.ABDUL GAFOOR, J.

 

 

 

 

WP(C).Nos.25829, 25830, 25845, 25831, 25832, 25849 AND 25866 OF 2004

 

 

DATED THIS THE 31ST DAY OF AUGUST, 2004.

O R D E R

 

 

  1. These writ petitions are filed by certain industrial Establishments in Ernakulam District.   They are faced with a direction from State Pollution Control Board, Ext.P8 in W.P.(C). No.25829/2004, Ext.P4 in W.P.(C).25830/2004, Ext.P4 in W.P.(CO.25831/2004, Ext.P8 in W.P.(C).256832 of 2004, Ext.P9 in W.P.(C).25845/2004, Ext.P4 in W.P.(C).24849 of 2004 and Ext.P14 in W.P.(C).25866/.2004.  These directions have been issued by the State Pollution control Board.  It is stated therein that it is in compliance with the direction of the Supreme Court of India that these directions were issued.  These directions call upon concerned factories to close down the functioning forthwith as it has been noticed that there was violation of the conditions contained authorization issued in terms of Hazardous Wastes (Management and Handling) Rules, 1989, framed under Sections 6, 8 and 25 of Environment Protection Act, 1986.  It is submitted that all these factories have been given authorization by State Pollution Control Board, after due enquiry and after complying with the conditions as required by pollution Control Board.  If any violation is noticed, before issuing closure notice, it is incumbent on the Pollution Control Board to issue draft proposals  regarding closure, obtain explanation of the persons concerned, hear them and pass appropriate orders if the necessary protections have not been taken by the factories concerned.  The procedure is as provided in Rule 4 of the Environment Protection Rules, 1986.  Such procedure had not been followed before the impugned directions have been issued.

 

  1. It is further submitted that the order of the Supreme Court dated 14-10-2003 does not have direct application to the petitioners who have been already issued with the authorizations and in their case, the procedure under Rule 4 as mentioned above, shall be followed.  Direction from the Supreme Court is in respect of the factories covered by the report of the High Power Committee.  The petitioners are not included in the said report. Even if the petitioners are covered by the Supreme Court directions, the Supreme Court has not dispensed with the statutory procedures.  Therefore the impugned direction is invalid and liable to be set aside it is submitted.

 

  1. The standing counsel for the Pollution Control Board submitted that the impugned directions issued to the petitioners can be treated as the notice envisaged under Rule 4 of the Environment Protection Rules and the procedure in terms of the said Rule shall be followed scrupulously. This submission is recorded.  Accordingly, the original petitions are disposed of as follows:-

 

  1. The respective impugned directions, Ext.P8 in W.P.(C).25829/2004, Ext.P4 in W.P(C).25830/2004, Ext.P4. in W.P.(C).25831/2004, Ext.P.8 in W.P.(C).25832 of 2004, Ext.P9 in W.P.(C).25845/2004, Ext.P4 in W.P.(C).24849 of 2004 and Ext.P14 in W.P.(C).25866/2004, shall be taken as proposed direction in terms of Rule 4(3)(a) of Environment (Protection) Rules, 1986.

 

  1. The petitioners will have fifteen days time from the date of service of the respective directions, to file their objections.  Those who have already filed objection, can very well supplement it within the aforesaid time frame.  Thereupon the Pollution Control Board shall, after hearing the respective petitioners, pass appropriate orders, in terms of Sub Rule 4 of Rule 4 of the Environment (Protection) Rules, 1986.  Such order shall be passed within the time frame provided in the said provision.

 

  1. But, at the same time, the petitioner in W.P.(C).25829 of 2004 shall see that the leakage from closed ponds as well as from the new one causing ground water contamination, if any because of the alleged improper handling of hazardous wastes shall be averted forthwith, if not already done.  The Environmental Engineer of the Kerala State Pollution Control Board shall pay weekly visits to that petitioner’s premises and inspect whether such contamination is subsisting or recurring.  In case it is so, certainly an independent stop memo to stop the functioning of the factory can be issued by the Environmental Engineer.

 

  1. The petitioner in W.P.(C).25830 of 2004 shall see that the sludge from the affluent treatment plant dumped in the open yard shall not erode into Periyar directly or indirectly and that damage to the hazardous waste. storage tank constructed near the Periyar shall be rectified if not already, done and shall see that the sludge shall not find its way direct to the river.  The Environmental Engineer of the Kerala State Pollution Control Board shall pay weekly visit to the premises of the said petitioner and shall see that this direction is complied with.  In case of any violation, he will be free to issue a stop memo to stop the functioning of the factory independent of the directions impugned.

 

  1. So far as the petitioner in W.P©.25849 of 2004 is concerned, it shall see that the red earth covered to the retaining wall for the entire length of the river side to separate the land filled area from the river is maintained in tact.  The environmental engineer of the Kerala State Pollution Control Board shall in this case also pay a visit every week to the premises of the factory of the petitioner and see that it is kept in tact and if there is any violation, separate stop memo be issued to stop the functioning of the factory.

 

  1. In all the cases as the impugned directions are considered as only draft proposals, the factories can be continued to function subject to the conditions specified in paragraph 3 to 5 above and subject to the order to be passed in terms of Sub Rule 4 of Rule 4 of Environment (Protection) Rules.

 

  1. In order to avoid a flood gate of continued litigation of similar nature, it is only appropriate that Pollution Control Board shall see that similar notices issued without following the statutory procedure shall be treated only as proposals and appropriate procedures in terms of Rule 4 mentioned above shall be followed.

 

The Writ petitions are closed as above.

 

 

 

                                                                    Sd/-  K.A.ABDUL GAFOOR, JUDGE.

 

//True Copy//

 

Sd/-

Examiner.