High Court · 2009

Heard Mr. MH Rajborbhuiya, learned counsel for the petitioner, Mrs. HM P hukan, learned State counsel appearing for the State respondents and Mr. S. Baru ah, learned Standing counsel for the Pollution Control Board. Mr. Baruah submits that he is no longer representing the Control Board. However, counter has been filed in this petition by the respondents. The petitioner owns a bakery under the name and style of Monosa Bakery a t Silchar town. Since the bakery in its usual course of operation emit smoke, th e petitioner obtained necessary consent to run the bakery from the State Polluti on Control Board as per provision of the Act. The petitioner is paying the conse nt fee to run the bakery since 1993 till 1999 and the same was deposited on 2.1 .99 by a cheque dated 2.1.99 which was duly accepted by the respondent Board. Th e petitioner also paid the consent fee which is one of the conditions and requir ement to run the bakery industry for the period upto 2007-08 and prayed for rene wal of the consent. Accordingly, consent was renewed accepting the fee till the year 9.7.08 and payment for obtaining consent order for the period 2007-08 was made on 9.7.08 which was duly accepted by the Board. While the petitioner was op erating his bakery industry, on all a sudden a notice was issued to the petition er by the Senior Environmental Engineer, respondent No.4 on 6.1.09 showing caus e as to why the bakery would not be closed for violation of Section 21 of Air (P revention and Control) Act, 1981 on the ground that a complaint has been receive d from the people of the locality intimating to the effect that there is every likelihood of breaking out of fire and smoke emitted from the bakery causing di sturbance to the people of the locality. It is further stated in the said notice that the petitioner has not applied for the consent to operate as per provisio n of the aforesaid Act. The said notice was issued as per Section 31-A of Air (P revention & Control of Pollution) Act, 1981. Upon receipt of the said notice, th e petitioner submitted his reply on 22.1.09 denying the allegations. It is also mentioned in the reply that the consent for the year 2007-08 was applied on 22.7 .08 by paying the necessary fees and there is no lapse in my part in depositing the govt. fees in time. The allegation regarding apprehension of outbreak of fi re of the local people is also baseless, concocted and emission of smoke from th e bakery causing hazardous in the area is also denied in the said reply. It is s tated in the said reply that along with the reply submitted by the petitioner, t he petitioner also deposited the necessary fee for issuance of consent for the y ear 2008-09 and 2009-10 by two separate drafts. Although as per show cause notic e dated 36.1.09 the petitioner was to submit his reply within 15 days from the d ate of receipt of the same but there was delay of one day in submitting the same and the petitioner submitted his reply on 22.1.09. Upon receipt of the reply fr om the petitioner, Senior Environmental Engineer, respondent No.4 passed the imp ugned order dated 28.1.09 by which the petitioner was directed to close down his bakery forthwith and the said direction was issued uinder Section 31-A of the A ct. Mr. Rajborbhuiya, learned counsel submits that the allegation made by the local people before the Deputy Commissioner is the source of objection by th e respondent/Board. However, referring to the Annexure -4 of the petition dated 30.11.98 it is submitted by the petitioner that the aforesaid allegation raised by the people of the locality runs contrary to the tents of the said letter whic h was written by as many as 39 people of the locality indicating that they are in no way disturbed from the establishment of the bakery nor any hazardous has c aused to them or to their children from the bakery. It is further submitted that on 21.1.09, the Asstt. Engineer of the Pollution Control Board inspected the ba kery of the petitioner and directed him to raise the height of the chimney upto 60 ft. from the ground level. It is also stated in the inspection report that th e petitioner has not applied for consent to operate the bakery for the period 20 08-09 and suggested for closure of the bakery. It is submitted by the learned co unsel that that said report again runs contrary to the report submitted by the R egional Executive Engineer dated 18.12.98 which discloses that upon verification of the bakery of the petitioner by a team of Technical & Scientific personnel o f the Board that during initial burning of the fuel, no visible objectionable em ission from the bakery was found and there was no bad smell emitted and the offi ce is keeping close watch. Learned counsel further contended that initial height of the Chimney of the bakery was not up to the permissible limit but later it h as been raised and now it is 40 ft. above from the ground level and the official s of the respondent authority visited the place after such raising the height o f the chimney of the bakery and being satisfied consent order was issued in favo ur of the petitioner. In the counter of the board it is disclosed that the petit ioner has not applied for the consent for the period of 2008-09. In the counter , however, no where it is stated that the smoke was sent for analysis to know t he gravity of pollution. From close perusal of the pleadings vis-à-vis oral su bmission of the petitioner it discloses that the petitioner is running the baker y since 1993 and necessary consent has also been given to him till 2007-08. Unde r the Pollution Control Act, consent is given to the industry only after being s atisfied with the compliance of all the necessary requirement of law and Act. Fr om the issuance of the said consent order for the period till 2008-09 it is pres umed that the petitioner’s industry has complied with all the requirement of pro visions of law so far it relates to the control of pollution. For the purpose o f obtaining consent for the period 2008-09, the petitioner applied for the same and deposited the necessary fees but after passing of the impugned order the sa me was returned. It is seen that the petitioner has raised the height of the ch imney installed in the bakery industry from earlier one and it is stated that t he present height of the chimney is 40 ft. Turning to the impugned order we find that the reply submitted by the petitioner was not accepted on the ground that the reply was not filed within time. Of course, there was one day delay but that does not mean that the respondent should ignore the reply so furnished by the p etitioner and it ought to have been considered on merit and merely saying that t he reply is not satisfactory one will not serve the purpose. The Board has not d isclosed its mind on what count the reply submitted by the petitioner is not s atisfactory one. The impugned order also does not disclose about the sufficiency or the requirement of height of the chimney as per provision of Act. That apart , the smoke in question has not been analyzed to understand and know the nature, gravity and extent of pollution. The petitioner was granted the consent to run the bakery till 2007-08. It appears that the respondent authorities are actuated by the complaint lodged by the private people of the locality before the Deputy Commissioner, rather than the requirement of law. In view of the above discussion, the impugned order dated 28.1.09 is no t sustainable in law and accordingly set aside and quashed. The matter is remand ed back to the concerned respondent authority for deciding afresh the reply furn ished by the petitioner along with the subsequent facts as has been highlighted in this proceedings. The authority shall dispose of the said reply of the petiti oner by taking note of the fact that the height of the chimney installed in the bakery has been raised to the extent of 40 ft. from the ground level. At this st age Mr. Rajborbhuiya submits that even now the petitioner is prepared to raise t he height of the chimney further, if so required by the Act and as directed by the Board. The whole purpose of the Act is not to close the industry but to regulat e it and make it pollution free. The respondent authority must look into the fac t that the impugned order is passed in the true spirit of the Act. While disposi ng the reply of the petitioner, the petitioner shall be given appropriate opport unity of personal hearing. It is further made clear that petitioner be given opp ortunity to take steps for fulfilling the requirement of law in running the bake ry since the bakery of the petitioner is in the stage of closure. The aforesaid reply of the petitioner shall be considered and disposed of within a period of n ot later then three weeks from the date of receipt of the copy of this order. With the above direction, this writ petition stands allowed to the exten t as indicated above.