w w w . L a w y e r S e r v i c e s . i n



M/s.Alloy Steel Rolling Mills v/s West Bengal Pollution Control Board


Company & Directors' Information:- V M T STEEL ROLLING MILLS PRIVATE LIMITED [Active] CIN = U27105TZ1995PTC005753

Company & Directors' Information:- WEST INDIA STEEL CO LTD [Active] CIN = U27105KL1961PLC001951

Company & Directors' Information:- T K STEEL ROLLING MILLS PRIVATE LIMITED [Active] CIN = U27104PB1972PTC004608

Company & Directors' Information:- J S B STEEL ROLLING MILLS PRIVATE LIMITED [Active] CIN = U27107RJ1994PTC008161

Company & Directors' Information:- R P K ALLOY STEEL PRIVATE LIMITED [Active] CIN = U27104TN1989PTC016867

Company & Directors' Information:- M. P. ALLOY PRIVATE LIMITED [Strike Off] CIN = U28111UP1995PTC018405

Company & Directors' Information:- INDIA BOARD MILLS PVT LTD [Strike Off] CIN = U21097WB1963PTC025960

Company & Directors' Information:- J D ALLOY STEEL PVT LTD [Active] CIN = U27106CH1981PTC004509

Company & Directors' Information:- A L STEEL ROLLING MILLS PVT LTD [Strike Off] CIN = U99999UP1963PTC002965

Company & Directors' Information:- THE STEEL CORPORATION OF BENGAL LTD [Strike Off] CIN = U27106WB1937PLC008995

Company & Directors' Information:- STEEL MILLS OF INDIA PVT LTD [Strike Off] CIN = U27109WB1955PTC022703

Company & Directors' Information:- B D K ALLOY PRIVATE LIMITED [Amalgamated] CIN = U27106KA1973PTC002355

Company & Directors' Information:- J V STEEL ROLLING MILLS PRIVATE LIMITED [Amalgamated] CIN = U99999TN1972PTC006159

    W.P. 2098 Of 2004

    Decided On, 28 June 2005

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE CHIEF JUSTICE MR. VIKAS SHRIDHAR SIRPURKAR & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY

    For the Appearing Parties: Saptangshu Basu, Debojyoti Basu, M.C. Das, Advocates.



Judgment Text

GANGULY, J.


(1.) This writ petition has been filed challenging an order dated 23th March, 2004 passed by the Pollution Control Appellate Authority, West Bengal (hereinafter called Authority).


(2.) By the said order, the appeal of the writ petitioner was dismissed and the writ petitioner was directed to change over within four months from the coal fired system to the cleaner fuel system of either oil or gas. The appeal before the authority was directed against an order dated 31st August. 2001 passed by the Senior Environmental Engineer of the West Bengal Pollution Control Board (hereinafter called 'the Board).


(3.) From the Board's order dated 31st August, 2001 it appears that while the Board was monitoring air quality in Kolkata and its metropolitan area for sometime, it became imperative for the Board to take step for improvement of the air quality. The Board accordingly decided that no coal fired rolling mill will operate within the metropolis of Kolkata and such mills should operate only by using cleaner fuel, namely oil or gas and a period of six months time will be given for such change over to cleaner fuel. The Board also fixed the emission standard for rolling mills for Particulate Matter at 150 mg./Nm3 irrespective of its capacity. In view of such decision by the Board, the writ petitiner was asked to submit a time-bound action plan for such change over in order to comply with Board's decision within 30th September, 2001.


(4.) The petitioner challenged the aforesaid direction of the Board before the Authority by filing an original application, which was registered as A-45 of 2001 and in connection with the said application, the Authority granted an order for maintenance of status guo and the said order was continued from time to time.


(5.) Ultimately, the authority, by a Judgment and Order dated 23rd March, 2004, dismissed the appeal filed by the writ petitioner and the writ petitioner was allowed four months time to change over from the coal fired system to cleaner fuel, either oil or gas and the petitioner was asked to submit a time-bound action plan to the Board towards compliance within one month from the date of order of the authority. It was made clear that in the event of non-compliance, the Board will take action in accordance with law.


(6.) Against the said order of the Authority dated 23rd March, 2004, a Special Leave Petition was filed before the Hon'ble Supreme Court, which came up for hearing before a Bench of the Hon'ble Supreme Court on 5th May, 2004. On that day, the learned Judges of the Hon'ble Supreme Court were pleased to issue notice making it returnable in the 2nd week of July 2004 and in the meanwhile the direction by the Authority for filing of the action plan by the writ petitioner was stayed.


(7.) The matter came up for hearing before the Hon'ble Supreme Court on 16.11.04. On that day, the Hon'ble Supreme Court was pleased to dismiss the application, inter alia, on the ground that the writ petitioner should have approached the High Court instead of filing a Special Leave Petition before the Hon'ble Supreme Court. The Hon'ble Supreme Court was, therefore, pleased to dismiss the said Special Leave Petition with liberty to the writ petitioner to approach the High Court. The Hon'ble Supreme Court did not express any opinion on the merits of the case and left the matter to be decided by the High Court in accordance with law. Thereafter, this writ petition was filed, being W.P. No. 2098 of 2004.


(8.) We heard the learned Counsel for the parties at length. In course of submissions, the main ground on which the learned Counsel for the writ petitioner attacked the order of the said Authority is that it upheld the order of the Board dated 31st August, 2001 which was passed without any recording of reason.


(9.) It is not in dispute that the said order of the Board was passed in terms of provision of Rule 3(2) of the Environment (Protection) Rules, 1986 (hereinafter referred to as the 'said Rules'). The learned Counsel submitted that under Rule 3(2) of the said Rules, the Board may specify certain measures in respect of use of energy. But, this can be done only after recording reason in writing. The learned Counsel submitted that, in the instant case, no such reason appears in the order of the Board. The learned Counsel also referred to a copy of the order of the Board dated 11th May, 2001 and submitted that in the said order, the Board fixed the emission standard for particulate matter for boilers and rolling mills operating with the Kolkata Metropolitan Area at 150mg/Nm3 as the emission level.


(10.) The learned Counsel relied on the interim report submitted by Mechanical Engineering Department of Consultancy (Cell), Shibpur, in the month of April 2002 and also the final report in the month of July 2002. The learned Counsel for the writ petitioner submitted on the basis of those reports and contended that the emission level of SPM for the coal fired furnace at the writ petitioner's unit was 115.14 mg/Nm3 while forthe oil fired furnace it was 121.67 mg/Nm3 and the emission level of SO2 for the former was 0.311 mg/Nm3, while that for the latter it was 42.3 mg/Nm3. On the basis of the said report, it was submitted on behalf of the writ petitioner, that the emission level of SO2 for the oil-fired furnace is much higher than the omission level of SO2 for coal fired furnace. It was also submitted that the emission level of Participate Matter for its coal-fired furnace fitted with pollution control device is well within the permissible limit of 150 mg/Nm3.


(11.) The writ petitioner also relied on a Test Certificate of Das and Associates, which shows the emission level of Particulate Matter for coal-fired furnance as 124 mg/Nm3 and since the same is quite below the maximum standard of 150, there is no reason why the writ petitioner should accept the direction for change over as per the order of the Board. The learned counsel for the writ petitioner also referred to the concept of precautionary principle and for the said purpose, relied on a decision of the Hon'ble Supreme Court in the case of A.P. Pollution Control Board v. Prof. M.V.Nayudu (Retd.) and Others, reported in 1999 (2) SCC 718.


(12.) Relying on the said judgment, the learned Counsel for the writ petitioner submitted that the concept of environmental pollution has undergone a sea change from the previous concept of Nature absorbing pollution to the present concept of pre-cautionary principle. The learned Counsel also submitted that as a result of the change in principle, the concept of onus of proof has also changed. The learned Counsel also submitted that in view of the aforesaid proposition, in the instant case, the order of the Board, which has been affirmed by the said Authority, should not be uphold by the Court and the Court should allow the writ petitioner to continue its operation on the basis of its coal-fired furnace with its pollution control device.


(13.) The learned Counsel forthe Board, on the other hand, submitted that the Board has taken a policy decision on 11th May, 2001 under Rule 3(2) of the said Rules after considering the report of the Expert Committee. The Board appointed an Expert Committee underthe Chairmanship of Prof. S. K. Sanyal, Dean, Faculty of Engineering and Technology, Jadavpur University. The other Members of the said Committee are Prof. S. Saha, Head, Department of Mechanical Engineering, Jadavpur University, Prof. S. Dutta, of the Department of Chemical Engineering, Jadavpur University, Prof. A. Ghosh, Department of Geology, Jadavpur University, S. Kar, Joint Director, Directorate of Cottage and Small Scale Industries, Govt. of West Bengal, S. Ghosh, Senior Environment Officer, Department of Environment, Govt. of West Bengal, A Biswas, Head, National Environmental Engineering Research Institute, Kolkata Zonal Laboratory, B.R.Naidu, Head, Eastern Zonal Office, Kolkata Central Pollution Control Board and Dr. D. Chakraborty, Chief Scientist, West Bengal Pollution Control Board and Prof. S. Sanyal was the Chairman of the said Committee.


(14.) In the first meeting of the said Committee held on 27th March, 2001 the officials of the Board made a presentation before the Members of the said Committee on the air quality of Kolkata, Howrah and other areas of Kolkata Metropolitan Area and also the extent of health hazards created by air pollutants and the effect of Specially Particulate Matter (SPM) on the air qualiity of Kolkata Metropolitan Area.


(15.) In the second meeting of the said Committee held on 31st March, 2001, the Members of the said Committee held a detailed discussion on relevant aspects of the matter and it was resolved that the prevailing standard of particulate emission should be controlled and stringent measures should be taken for improvement of air quality in the concerned areas. The members of the Expert Committee visited several units of different categories of factories in different areas on 17th April, 2001 and 19th April, 2001 for assessment of the environmental situations. Based on such visits of representative to industrial units and followed by detailed discussion, the said Committee gave its recommendation in the meeting held on 23rd April, 2001. The Board accepted those recommendations and the order of the Board issued in the month of May 2001 is just an outcome of such acceptance of recommendations by the Expert Committee.


(16.) The learned Counsel for the Board submitted that the policy decision was taken on the basis of the detailed finding of the high powered Expert Committee. About Steel Rolling Mills, the following recommendations were made by the Expert Committee :- "For Rolling Mills the general emission standard for particulate emission is applicable which is 150 mg/Nm.3 Howrah Rolling Mills could achieve this standard by changing coal fired furnace to oil fired ones. As the above approach has given satisfactory result in improving air quality in Howrah in earjy '90s it is recommended that the Board may consider to make it mandatory for Howrah Rolling Mills to use only cleaner fuel (Oil or Gas) and not coal."


(17.) In so far as the attack of the writ petitioner on the ground of nondisclosure of reason in the policy decision is concerned, this Court finds that the said attack is without much substance. In the policy decision of the Board dated 11th May, 2001, it is clear that the Board has considered the fact that there is high concentration of particulate matter in the ambient air of Kolkata Metropolis, and which leads to respiratory morbidity and mortality of human beings in Kolkata and Kolkata Metropolitan Area. The Board therefore accepted the recommendations of the Committee about emission standard for various coal fired installations. The Board thus formed the opinion that various coal fired installation like boiler mills contribute significantly towards high particulate level in kolkata and kolkata Metropolitan Area. In the background of these reasons, and the recommendations of the Committee, the Board passed its decision under Rule 3(2) of the said Rules for compliance with National Ambient Air Quality Standard. In order to achieve the standard, the Steel Rolling Mills are required to use cleaner fuel, which is either oil or gas.


(18.) Reading the said policy decision of the Board, this Court finds that ample reasons, which are required to be given in support of the said policy decision, have been recorded. Thus, the requirement of giving reason under Rule 3(2) of the said Rules, has been satisfied by the Board in the said policy decision. In the background of these, facts this Court cannot hold that the policy decision of the Board is bad for non-compliance with the provisions of Rule 3(2) of the said Rules.


(19.) Now coming to the question of the report, which has been relied on by the writ

petitioner and the Test Report of Das and Associates, this Court finds that the Authority has rightly come to the conclusion that the report of Das and Associates and of Bengal Engineering College cannot be relied upon as the emission level of particulate matter is not uniform in the tests held by Das and Associates and Bengal Engineering College. The Authority opined that there are many variable factors like quality of coal, fluctuation of operational efficiency. These factors may control the emission level at different period of operations and the Authority has rightly come to the conclusion that these factors are subject to change and variation.


(20.) Therefore, in order to come to a general uniform policy the Board has taken a policy decision in order to maintain a fixed emission standard by insisting on the user of cleaner fuel like oil or gas instead of coal. The said Authority also held, and this Court is of the opinion that it has rightly held, that use of coal invariably adds to pollution level. It is no doubt true that the Bengal Engineering College has given a report on the basis of the functioning of the writ petitioner's unit only but the same is not a general report. In this connection, the inconsistency, which has been pointed out, by the Authority in its order, in the report of the Bengal Engineering College is accepted by this Court as having been correctly pointed out. This Court is in favour of accepting the decision taken by the Board, which is a policy decision. In this connection, it may also be noted that the National Environmental Action Plan has also submitted a report in the month of June, 2003 on the basis of the report furnished by the Expert Committee constituted by the Ministry of Environment and Forests, Govt. of India. The said report identifies Howrah as a critically polluted area and in its report also, it was suggested that clear fuels like natural gas and furnace oil should be used by the small-scale units.


(21.) Therefore, this Court finds that the decision of the Board is based on the report of the Expert Committee as also on the recommendation of the National Body. The said recommendation is backed by the suggestion of National Environmental Engineering and Research Institute (NEERI). The report of NEERI is that in Kolkata region, coal constitutes the prima facie central source of both domestic and industrial pollution and generates air pollution. The report of NEERI is that such pollution can be reduced with the replacement of coal by other sources, such as gas or oil. Therefore, this Court cannot hold that the policy decision taken by the Board and which has been affirmed by the said Authority is either arbitrary and unreasonable.


(22.) In matters of policy decision, especially when such policy decision is based on the report of a high-powered Expert Committee and against the Members of such Committee there is no allegation of bias, it is very difficult for the Court to interfere, unless the policy decision is ex facie unreasonable and perverse. Rather this Court finds that the policy decision has been taken in furtherance of public interest and in order to prevent further degradation of air quality in or around Kolkata Metropolitan Area.


(23.) Now coming to the question of precautionary principle and the burden of proof, this Court finds that the precautionary principle is a concept, which is a part of the doctrine of Sustainable Development in Environmental Jurisprudence. This precautionary principle is akin to the principle of Polluter pays and the Hon'ble Supreme Court in Vellore Citizens Welfare Forum v. Union of India and Ors., reported in 1996 (5) SCC 647, held at page 659 Para 13 of the report, that both precautionary principle and polluter pays principle have been accepted as part of the law of the land. The Hon'ble Supreme Court came to this conclusion on a conjoint reading of the provisions of Article 21 along with Articles 47, 48-A and 51-A(g) of the Constitution of India.


(24.) In Paragraph 11 at page 658 of the report, the learned Judges in Vellore Citizens (supra) elaborated the principle to indicate that the State Government and the statutory authorities must anticipate, prevent and eradicate the causes of environmental degradation in a case where there are threats of serious damages. It was further stated that, in such a case, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The learned Judges also held that, in such a case, the onus of proof is on the developer to show or justify that his action is environmentally benign. These principles have been accepted expressly by the Hon'ble Supreme Court subsequently in the case of M. C. Mehta v. Union of India and Ors., reported in 2002 (4) SCC 356. In Paragraph 10 of the judgment at page 364 of the report, the learned Judges have quoted the observations in the case of Vellore Citizens (supra).


(25.) In the case of A. P. Pollution Control Board (supra) cited by the learned Counsel for the writ petitioner, these principles came up for consideration and the decision of the Hon'ble Supreme Court in Vellore Citizens has been referred to.


(26.) In Paragraph 33 of the judgment in A.P. Pollution Control Board, the learned Judges have referred to the precautionary principle in details and the learned Judges have laid down that a basic shift in the approach to environmental protection occurred between 1972 and 1982. The learned Judges have noted that earlier the concept was based on the assimilative capacity rule, which was derived from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. Under the said principle, it was assumed that science can provide policy makers with the information and means, necessary to avoid encroaching upon the capacity of the environment to assimilate impacts. The said principle presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But, later on, the emphasis shifted to precautionary principle, which was reiterated in the Rio Conferenc

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e of 1992 in its Principle No.15, which is as follows :- "Priaciple 15.-In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing cost-effective measures to prevent environmental degradation." (27.) The learned Judges also referred to the formulation by Chairman, Barton which appeared in Vol. 22, Harvard Environmental Law Review (1998), Page 509. The learned Judges quoted the observations of the famous jurist at page 574 and pointed out that it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm to environment. While explaining the said principle, the leaned Judges held that this precautionary principle in its turn has led to a special burden of proof in environmental cases and such burden is placed on those who want to change the status quo, (See para 37, page 734 of the report). (28.) In this case the burden has been adequately discharged by the Board. The policy decision of the Board is based on the report of the Expert Committee. The report of that high-powered Committee could not be at all assailed by the learned Counsel for the writ petitioner. Therefore, the Board introduced its new policy-decision relying on a very authentic and reliable report of the Expert Committee and as noted above nothing has been shown by the writ petitioner to indicate that the decision of the Expert Committee is either biased or perverse. Therefore, this Court is unable to interfere with the policy-decision taken by the Board. In fact, no such case for interference has been made out. (29.) For the reasons aforesaid, this Court dismisses the writ petition and affirms the order of the Authority and also the policy-decision of the Board. The writ petition is, thus, dismissed as above. There will be, however, no order as to costs.
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