IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2331 of 2009 Drishtee Foundation (an NGO), having its registered office at First Floor, 1397, Dr. Mukherjee Nagar, P.S. Mukherji Nagar, Delhi and Head Office at A-11, Sector-02, P.S.-Sector-20, Noida, District-Gautam Budha Nagar, Uttar Pradesh, through its President Mrs. Mamta Mishra, W/o-Late S.K. Mishra, permanent resident of 3/17, Sri Krishnapuri, P.S.-Sri Krishnapuri, Town and District-Patna. -Petitioner. VERSUS 1. Bihar State Pollution Control Board through its Chairman, Beltron Bhawan, Shastri Nagar, P.S.-Shastri Nagar, Town and District-Patna, PIN-800023. 2. The Member-Secretary, Bihar State Pollution Control Board, Beltron Bhawan, Shastri Nagar, P.S.-Shastri Nagar, Town and District-Patna, PIN- 800023. 3. Ministry of Environment & Forests through its Secretary, Union of India, New Delhi. 4. Central Pollution Control Board through its Chairman, Parivesh Bhawan, CBD-cum-Office Complex East Arjun Nagar, Delhi-110032. -Respondents. ****** For the Petitioner : Mr. Chitranjan Sinha, Sr. Adv. Mr. Rupesh Deo & Mr. Sudhir Kr. Upadhyay. For the Bihar Pollution : Mr. Shivendra Kishore Control Board For the Central Pollution : Mr. R.B. Mahto, Sr. Adv. Control Board Mrs. Binita Singh. For Respondent No.3 : Mr. Sharad Kumar Sinha. ****** 05 25.11.2009 How an entrepreneur in this State is at times harassed by State organization is exemplified by this case, much to the dismay of this Court and much against the so called Industrial Policy of the present government in this State. The petitioner lured by the much advertised single window system policy in this State for industrialization, thought of setting up an industry. It made an application under the single window system. The so called single window system was to have officials from different statutory Boards, Corporations and Authorities at one place so that in stead of industrialists running - 2 - from pillar to post and office to office seeking one permission after another and being exhausted midway they were required to sit and apply at one place with all officials coming to that place and sorting out all his problems. His only mistake was that he had faith in the new governmental policy and the new system being evolved. After some meetings, when he explained his whole project, he was given a permission to set up and start the unit, only for the carpet to be pulled under his feet. The day he started the unit he was slapped with punitive notices and prohibition order from the State Pollution Control Board, pointing out that he had not made any application to the State Pollution Control Board nor had got consent to set up and operate such an industry. The unit became a virtually still born child aborted even before the full term. This brought the petitioner to this Court at the first instance. What amazed this Court in those proceedings being C.W.J.C. No.9077 of 2007 was that the Chairman of the State Pollution Control Board was an invitee and an active participant in all meetings where petitioner’s industry was concerned. At no point of time the Chairman ever raised any objection of any sort regarding any objection to setting up and operating such industry, probably waiting for the opportune moment to strangle the industry. He successfully did so. After industry had invested over Rs.30 lacs and before it could get out of his net that he spread, he had the industry shut down. There is no explanation as to what he was doing in all those meetings under single window system, apart - 3 - from laying net to catch the fish. This Court was apparently disgusted with the attitude on the plea of non-compliance of statutory provision. This Court could do little to rescue the fish from the net thrown by the State Pollution Control Board. The entire single window system collapsed like house of cards. The writ petition was disposed of by judgment and order dated 12.11.2007, noticing the said unfortunate facts, but being helpless directing the petitioner to make requisite application of which he was never told in the single window system, as it was not possible for this Court to give direction to circumvent the law, even though, the person responsible was the Chairman of the State Pollution Control Board. After the writ petition was disposed of starts another table tennis game. A conditional permission was granted limited to 12 months by the Bihar State Pollution Control Board with certain conditionalties not to operate the industry but to set it up only. Petitioner complied with those conditionalties. This time someone (agnate) made complaint to the Ministry of Environment and Forest, Government of India directly. The same is then referred to the Central Pollution Control Board. State Pollution Control Board in the meantime corresponds with the Central Pollution Control Board. Some of the relevant observations in the correspondences are quoted hereunder:- “……..Kindly refer to the letters mentioned under reference. It may be noted that CPCB has restricted the - 4 - gassifier plant to be located in residential area and which should be ensured by BSPCB. It would be obvious from the Board’s letter (ref.iii), that Board has granted consent to establish subject to certain conditions on the 15th of Feb, 2008, keeping the green category of industry in view. The location of Industry is in a rural area with no house in 20 meter radius all around except the building of the plant itself…... ” This letter dated 29.10.2008 of Member Secretary of the Bihar State Pollution Control Board to the Member Secretary, Central Pollution Control Board. Then again the same Officer writes to the Ministry of Environment and Forest under his letter dated 08.07.2008, which is quoted as under :- “……2. That the proponent has installed the Bio-Gasifier, dual fuel D.G. set and bamboo cutting machine in the village-Saurath, Distt.- Madhubani, but it can not be said to be in the midst of thickly populated village, because in the radius of 100 meters from the unit, there is a population of about 100 - 5 - residents only……….. 6. That, the apprehension of gases likely to be exploded, is unfounded, because the gas generated in the gasifire shall not be stored, but will be injected direct to the generator engine……..” Now, the first thing this Court would observe is how relevant are these issues after permission to establish is given. It is like saying you establish industry at the place you have sought to and once it is established we would decide its suitability or not is an absurdity at its best. Petitioner was permitted to establish the unit in a rural area as a green industry. Once it made investments of over Rs.30 lacs, now both the Boards are corresponding whether it could be established in that area or not. Why the permission was at all granted in the first place and for what consideration, if not to lay trap for the unwary industry which is now stuck with investment. Now, what the icing on the cake. The Central Pollution Control Board ultimately finds that there is hardly anything it has to do in the matter, it makes its final recommendation. “…….Recommendations 1. Though CPCB/Ministry of Environment & Forests has not notified any guidelines for sitting of the gasifier, however, considering its hazardous - 6 - nature and proneness to accident and explosion, the operation of gasifier should not be permitted in the residential area inside the village. 2. While giving clearance for installation of any gasifier irrespective of the location, provisions of (i) the Hazardous Wastes (Management, Handling & Transboundary Movement) Rules, 2008; (ii) the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989, as amended to date; and the Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996, should also be taken into consideration. 3. State Board can implement the CPCB’s comments (which have already been communicated by MoEF), on its own because this does not require any guidance from the CPCB. 4. The unit should take all necessary measures for pollution control and - 7 - environmental protection as stipulated in the consent condition of the State Board besides implementing measures to prevent any accident.” A Reference to these recommendations would show that they are not directly referable to any of the power and jurisdiction of the Central Pollution Control Board. The first recommendation is with regard to residential area inside the village. The correspondences of the State Pollution Control Board in that regard, I have already quoted above, but in stead of making any positive recommendation a very vague generalized recommendation is made, which is capable of interpretation and misinterpretation suiting the situation. Then, it talks about various other statutory provisions, again it does not point out any deficiency or any shortcoming. Then, it says that the State Pollution Control Board can implement the Central Pollution Control Board’s comments on its own because that it was not sought any guidance from the Central Pollution Control Board, then it makes benevolent statement. The unit should take steps for environmental protection. Again most vague statement. Here, we are dealing with a specific case and not generalized policy implementation statement. The specific case was totally forgotten. These recommendations were made by the Central Pollution Control Board. Now, we come to the State Pollution Control Board’s - 8 - counter affidavit. This counter affidavit was affidavited on 20.03.2009. In paragraph 39 of the State Pollution Control Board’s counter affidavit, this is what is said, which is quoted hereunder:- “…….That it is stated and submitted that as soon as the final report from CPCB is received, the State Board will consider and dispose of the application of the petitioner for “Consent-to- Operate” dated 27/10/2008 in accordance with law……..” The Central Pollution Control Board in its affidavit clearly admits that they were directed by this Court on 18.02.2009 to submit the final recommendation and that is how these recommendations were made. Where these recommendations vanished is anybody’s guess because when and how it was sent by the Central Pollution Control Board is not disclosed. The State Pollution Control Board states that it has never received the same. This is a ping-pong game that goes on. Unfortunately, it is the industry, which is being rocked around mercilessly and no one comes in way to help except this Court. The lethal manner in which all steps are being taken to mutilate the industry is evident from this fact. Instead of assisting industrial growth, suggesting ways and means to protect environment, the power which has been vested for a good purpose is being utilized in a colorable manner to strangulate an industry, as evident from the recommendations of - 9 - the Central Pollution Control Board. There is nothing specific against the unit. Still the State Pollution Board is waiting for something to turn up from somewhere for them to issue the permission finally even though this Court ordered in 2007 for completion of formality. We are end of 2009 and the formalities are yet to be completed. The investment of the petitioner is dead wood for no fault of his. The only fault was he relies on State Government Policy of so called single window system. The question is, where to we go from here. The Central Pollution Control Board has thrown up his hands. It has no further objections. The counsel for the State Pollution Control Board says that it is unable to comprehend with any clarity the recommendation of the Central Pollution Control Board and as such is unable to act. The result is, again wasting time of this Court and a new litigation. Now, in the Court the learned counsel for the State Pollution Control Board takes the stand on being asked by the Court to point out to any of the deficiency because of which permission to run is not being given, as there is no such communication to the petitioner. In the entire counter affidavit of the State Pollution Control Board all that is said (without any document to support) the various “not to do” directions but not one “what to do direction”, no specific deficiency could be pointed out. Now, learned counsel for the State Pollution Control Board takes a firm stand. His stand is that the industry cannot be - 10 - permitted to be established and run in village area. I think that is a vague plea. No such communication is issued to the petitioner. Then the Court liked to know as to why consent to establish was at all granted in the first place. Once consent to establish is granted and that too after a unit has invested more than Rs.30 lacs, if the unit is to now move, first the State Pollution Control Board would have to fully compensated by paying damages to the Industrial Unit because they granted consent to establish. They cannot play hide and seek with an industry. At the time of grant of permission to establish all these objections could have been raised and permission could be refused and that stage the industry could have blamed itself. But permission to establish was given nevertheless. Therefore, seeing these facts in light of communication of State Pollution Control Board itself, to the Central Pollution Control Board, as quoted above, in relation to location of the unit, would show that it is only pretence of an excuse for some non bona fide purpose being raised now at this stage. Nothing more remains. Mr. Chitranjan Sinha, learned counsel for the petitioner submits that when the letter of consent to establish was issued by the State Pollution Control Board with certain conditions, all those conditions have been specifically complied with. In the counter affidavit of the Central Pollution Control Board or for that matter in the State Pollution Control Board, it has not been averred that any of those conditions have not been complied and petitioner has been noticed in that regard, still - 11 - consent to run is not being granted. These facts only show that if there be any reason it is not a bona fide and genuine reason. The reason lies somewhere else. Nothing having been brought on record to show that petitioner’s application or unit suffers from any deficiency in compliance with any legal requirement, the only direction this Court can now give is to issue a mandamus to the State Pollution Control Board to issue a no-objection certificate to run the unit, in other words, consent to operate. If there were bona fides in the stand of State Pollution Control Board, they would have specified the deficiencies and communicated them for removal by the petitioner. Even at this stage that is not done. Hence, the mandamus aforesaid. In view of the facts, which have been noticed above, in the facts and circumstances, I award cost of Rs.10,000/- as against the respondent-State Pollution Control Board, to be paid to the petitioner, within two weeks from today and receipt filed thereof, in this Court. The mandamus to be complied within four weeks from today. The writ petition is allowed, as aforesaid. Trivedi/ (Navaniti Prasad Singh, J.)