1. W.P.(C) No.41275/2018 has been filed by two industrial companies seeking to set aside Exts.P3 and P4 integrated consent issued by the Kerala State Pollution Control Board to the extent they restrain operation of furnace of the industrial units from 10 p.m. to 6 a.m. W.P.(C) No.4576/2019 has been filed by two permanent residents of Kanjikode in Palakkad District challenging Exts.P40 and P41 integrated consents issued to the petitioners in W.P.(C) No.41275/2018 in its entirety. Since both these writ petitions relate to the alleged pollution caused by the petitioner companies in W.P.(C) No.41275/2018, they are being heard and disposed of together. Parties are referred to in this judgment, as they are arrayed in W.P.(C) No.41275/2018, for convenience.
2. The facts revealed from the pleadings show that M/s. Paragon Steels Private Limited and M/s. S.M.M Steel Re-Rolling Mills Private Limited, the petitioners in W.P.(C) No.41275/2018, are running steel re-rolling mills in the Industrial Development Area, Kanjikode in Palakkad District. The units were established in the year 1995 and 1996. Those units were originally run by one Mr. M. Paramasivam. Consequent to a resolution plan approved by the Company Law Tribunal under Section 31 of the Insolvency and Bankruptcy Code, 2016, the units have now come under the ownership of the petitioners in W.P.(C) No.41275/2018.
3. The petitioner companies state that these units situate in an Industrial Development Area which originally housed 40 different industrial units. On account of various adverse circumstances, 25 units have been closed and at present, only 15 units including two of the petitioners, are functioning. Each unit is liable to remit a minimum electricity charge of ?20,00,000/- to KSEB every month. The electricitytariff during peak hours (6 a.m. to 10 p.m.) is ?8.25 and duringoff peak time (10 p.m. to 6 a.m.), it is ?4.125. The units arefunctioning under the monitoring of the Pollution Control Board. The Pollution Control Board has issued Exts.P3 and P4 renewal of integrated consent to operate, on 27.11.2018. However, in those consents, a condition has been stipulated that operation of furnace as well as loading and unloading activities shall not be carried out during night time (10 p.m. to 6 a.m.). Petitioners state that they are not doing any loading or unloading activities during night time. However, the condition in the integrated consent restraining functioning of the factory during night time not only causes huge financial burden on the units towards energy charges but also discriminates the industrial units. The units are located in an approved Industrial Development Area and pollution norms relating to industrial areas should be made applicable to the units. Petitioners, therefore, pray that Exts.P3 and P4 integrated consents be set aside to the extent they restrain the operation of the furnace of the units, from 10 p.m. to 6 a.m.
4. W.P.(C) No.4576/2019 has been filed by additional 3rd and 4th respondents in W.P.(C) No.41275/2018. Additional 3rd and 4th respondents state that they are permanent residents of Kanjikode. Additional 3rd respondent owns 15.75 cents of land and it shares the boundary of the industrial unit of the 1st petitioner. Additional 4th respondent owns 7 cents of land where he resides and the said house is hardly at a distance of 30 meters from the two units. They state that the two industrial units of the petitioners have been established in violation of the distance criteria and the industries are causing heavy air and sound pollution. The units are engaged in production of steel ingots. Shredded steel scrap and sponge iron are used as raw materials. The process involves shelting of the said raw materials. Unloading of the scrap and tearing down the same by the units, cause loud and unbearable noise pollution in the locality and such scrap is unloaded during night hours. The pollution control measures installed in the units are not working properly. Due to the pollution, the members of the families of additional 3rd and 4th respondents suffer from various respiration ailments. Though the Environmental Engineer of the Pollution Control Board issued show cause notice to the units on 13.04.2016, no effective steps were taken to improve the air quality. Inspections conducted in 2016 found that online stack monitoring system was not functioning.
5. Additional respondents 3 and 4 further contend that no effective steps were seen taken to reduce the sound and air pollution and the pollution is still persisting. When renewal of the consent was refused by the Pollution Control Board, the units filed W.P.(C) Nos.6924/2017 and 7193/2017, and by Exts.P24 and P25 judgments, this Court directed the Pollution Control Board to examine the issue of pollution and take a decision in the matter. Pursuant to Exts.P24 and P25 judgments, the industrial units made some make shift arrangements and managed to obtain renewal of consent. Even thereafter, sound and air pollution continued to persist. They contended that issuance of Exts.P40 and P41 renewal of consent is improper, mala fide, ultra vires and per se illegal. They have an unbridled right under Article 21 of the Constitution of India to live in a clean environment. They have no alternate efficacious remedy. The conditions laid down in the impugned consent letters violate the provision of the Air (Prevention and Control of Pollution) Act, 1981 and the Noise Pollution (Regulation and Control) Rules, 2000. The conditions prescribed by the Pollution Control Board are consistently violated. There is heavy emission of black smoke by the units. Scrap metal are still unloaded in a careless manner causing considerable noise pollution. The permission granted to the units to operate near the residence of the petitioners in W.P.(C) No.4576/2019 is in violation of the dictum laid down by this Court in Mumthas K.O. v. Steel and Industrial Forgings Ltd. & Others [W.P.(C) No.9289/2015]. The impugned renewal of consent letters, viz. Exts.P40 and P41, are therefore liable to be set aside and steps should be initiated to prosecute the industrial units for violating provisions of the Air (Prevention and Control of Pollution) Act, 1981.
6. The Environmental Engineer, Kerala State Pollution Control Board, Palakkad, filed a report dated 16.01.2019 in W.P.(C) No.41275/2018. The report noted that the main pollutant from the industry is the emission of particulate matter (PM) from the furnace. The air pollution control devices installed in the unit to attain the emission standards, are gas cooler, primary bag filter, secondary bag filter, two-stage ventury scrubber, moisture separator and scrubbed water re-circulation system, which are in place. The emissions are released to the air through a chimney of 30 meters height. The Environmental Engineer noted that if all the air pollution control devices are operated satisfactorily, the air pollutants will be within the limits of emission standards. Water used for the scrubbing and cooling is completely re-circulated. The solid waste generated are moved from the unit regularly. The unit has installed TOD-type electricity meter exclusively for recording the electricity consumption of the air pollution control devices and it would ensure monitoring the functioning of the devices.
7. The Environmental Engineer noted that there are many residences around the unit within a distance of 100 meters. Complaints have been received from the residents. The main problem not solved by the units is frequent fugitive emission and noise created during the operation of furnace and while unloading steel scrap particularly at night hours. In order to alleviate the noise pollution, the Board instructed the units not to operate and unload scrap during night hours. However, the units never came up with a foolproof arrangement to avoid such pollution and they continued to operate at night time also, based on interim orders of this Court. The Environmental Engineer further stated that during the sound level monitoring conducted by the Board on 08.12.2017, it was found that the equivalent sound level obtained was Leqt = 61.8 dB(A). The instantaneous sound generated while unloading scraps was found in the range of 85-90 dB(A). The ambient air quality standards as per the Noise Pollution (Regulation and Control) Rules, 2000, during night time is 70 Leqt. limits in dB(A) in industrial area and 45 Leqt. limits in dB(A) in residential area. Since the particulate matter exceed ambient air quality standards, it was considered fit to restrict the time of operation of the units. The restriction is justified in the facts of the case.
8. The learned counsel for the petitioners contended that neither the Environment (Protection) Act, 1986 nor the Air (Prevention and Control of Pollution) Act, 1981 authorises the Pollution Control Board to order closure of a running industrial unit in an industrial area from 10 p.m. to 6 a.m. As long as pollution parameters are within the permissible limits, there is no justification in the restriction. Such time-restrictions cannot be imposed for the further reason that the units in question are situated in an Industrial Development Area. The restrictive conditions offend Articles 14 and 19(1)(g) of the Constitution. The Pollution Control Board has not conducted any study on the allegation of pollution resulting in health hazard and for that reason also, the night-time restriction is illegal, urged the learned counsel for the petitioners.
9. The counsel for additional respondents 3 and 4, who have filed W.P.(C) No.4576/2019, argued that applications of the petitioners for renewal of consent were rejected as per Exts.P38 and P39 in W.P.(C) No.4576/2019 and grant of consent subsequently is totally illegal and unwarranted. Additional respondents 3 and 4 and their families have a right to live in unpolluted environment, which has been violated offending Article 21 of the Constitution. Exts.P15 to P23, P33, P34 and P42 (in W.P.(C) No.4576/2019) would show that the petitioners are violating the conditions laid down by the Pollution Control Board. The petitioners continue to cause fugitive emissions from their units and are using contaminated scrap to manufacture steel ingots, in gross violation of the norms prescribed by the Pollution Control Board. Still, the Board has renewed their consent. The 2nd petitioner in W.P.(C) No.41275/2018 appears not to possess requisite certificate under the Hazardous Wastes (Management, Handling & Transboundary Movement) Rules, 2008. The petitioners are liable to be stopped from running their units for that reason also, contended the learned counsel for additional respondents 3 and 4.
10. Heard the learned counsel for the petitioners, learned Government Pleader representing the 1st respondent, the learned Standing Counsel for the Pollution Control Board and the learned counsel for additional respondents 3 and 4 / petitioners in W.P.(C) No.4576/2019.
11. The prime ground urged by the petitioners is that the Pollution Control Board has no authority to order closure of a running industrial unit during night time. Section 7 of the Environment (Protection) Act, 1986 provides that no person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed. Environmental pollutant means any solid or gaseous substance present in such concentration as may be or tend to be injurious to health. The industrial units of the petitioners emit particulate matters (PM) from their furnace. The Central Government, in exercise of its powers under Sections 6 and 25 of the Environment (Protection) Act, 1986, has framed Noise Pollution (Regulation and Control) Rules, 2000. The said Rules, 2000 prescribe different ambient air quality standards in respect of noise for day-time and night-time for different areas/zones. The report dated 16.01.2019 filed by the Environmental Engineer clearly states that observed value of sound level of the units during nights exceeded the permissible limits under the Rules, 2000. When the duly framed statutory rules prescribe different air quality standards for day-time and night-time, necessarily the Pollution Control Board, which is authorised to enforce the pollution control norms, has authority to direct that an industry not satisfying the air quality standards prescribed for the night-time, shall not function during night-time. The argument to the contrary, on behalf of the petitioners, is therefore only to be rejected.
12. Another argument of the petitioners is that since the industrial units in question are situated in an industrial area, parameters prescribed for residential areas cannot be thrust upon the petitioners. In the case on hand, the Environmental Engineer has reported that there are many residences around the units, within a distance of 100 meters and the nearest residence will be less than 10 meters distance. The Environment (Protection) Act, 1986 is intended to provide for the protection and improvement of environment and for the prevention of hazards to human beings, other living creatures, plants and property. The Act and the Rules made thereunder, therefore, provide for separate parameters and norms for industrial and residential areas. Section 6(2)(a) and (b) of the Act, 1986 empowers the Central Government to make rules to regulate the standards of quality of air, water or soil for various areas and purposes and to prescribe the maximum allowable limits of concentration of various environmental pollutants including noise for different areas. What is sought to be achieved by the Act, 1986 and Rules, is to strive for and achieve certain minimised pollution levels in industrial, residential and other areas/zones. Therefore, no industrial unit can claim that it need to comply only with the parameters prescribed for industrial area, though the noise or emissions from the industry results in pollution of the nearby residential area violating the parameters prescribed for the residential area. An industry though functioning in an industrial area, cannot function in such a manner resulting in violation of pollution control norms and parameters prescribed for nearby residential areas.
13. The petitioners have not established with sufficient materials that other industrial units functioning in the Industrial Development Area and which are permitted to function at night, are also similarly situated and those units also violate norms and parameters in nearby residential area. The arguments of the petitioners based on Articles 14 and 19(1)(g) are therefore without any factual foundation. The contention of the petitioners on lack of study by the Pollution Control Board on the resultant health hazard, is also unsustainable. To pursue the statutory mandate under Section 3 of the Environmental Protection Act, the authorities have statutorily prescribed parameters and permissible pollution limits and there will be a statutory presumption that violation of pollution control parameters will result in health hazard. Separate studies on the actual health hazard caused by individual industrial units, are therefore unnecessary. Exts.P3 and P4, renewal of integrated consent to operate, issued by the Kerala State Pollution Control Board are therefore not liable to be interfered with and to that extent, the writ petition filed by the petitioners is liable to be dismissed.
14. As regards W.P.(C) No.4576/2019 filed by additional 3rd and 4th respondents, the argument that the industrial units do not satisfy the distance criteria, cannot be accepted since admittedly the units are functioning inside an approved Industrial Development Area. It is alleged that pollution control norms are being violated. The report filed by the Environmental Engineer indicates that the petitioners have installed air pollution control devices like gas cooler, primary bag filter, secondary bag filter, two-stage ventury scrubber, moisture separator and scrubbed water re-circulation system. The air pollution chimney installed is at 30 meters height. Water used for scrubbing and cooling is completely re-circulated. Solid waste is removed regularly. According to the Environmental Engineer, the TOD-type electricity meter installed exclusively for recording electricity consumption of air pollution devices will ensure continuous running of the devices, through monit
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oring by inspecting officials. 15. The sound level obtained from the units shows that the sound level exceeded the limits prescribed for night-time for residential areas. It is for the said reason that the integrated consent issued to the units imposes restrictions to night-time operations. Taking into account all the above facts, there is no reason to hold that the units create air or sound pollution beyond the permissible limits. Additional respondents 3 and 4 have a case that the units consistently violate the conditions even now. If these units still violate the conditions, it will be open to additional respondents 3 and 4 to bring the same to the notice to the Pollution Control Board. There is no reason to believe that the Board will not act, if such violations are noticed. For the aforesaid reasons, Exts.P40 and P41 integrated consents in W.P.(C) No.4576/2019 are not liable to be interfered with. 16. The petitioners face a genuine issue inasmuch as the night-time power tariff is almost fifty percent less than the day-time tariff and the night-time restriction imposed by the Pollution Control Board will not only adversely affect productivity but also financial viability, if not profitability. Therefore, if the petitioners take necessary steps to bring down the sound pollution caused by their units within the parameters prescribed and thereafter make applications to lift the restriction, the 2nd respondent shall consider such applications, in accordance with law. The 2nd respondent also shall look into the complaints, if any, made by additional respondents 3 and 4, regarding persistent violation of conditions in the integrated consent issued by the Board and ensure that the units are functioning without violating the conditions. Writ petitions are disposed of with the above directions.