IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5361 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE D.H.WAGHELA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SUO MOTU Versus MUNICIPAL COMMISSIONER, AHMEDABAD MUNICIPAL CORPORATION & OTHERS -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5361 of 1997 SUO MOTU for Petitioner MR K.V. SHELAT AND MR. NIRUPAM NANAVATI, Senior Counsel with MR SINGI for the Associations MR PRASHANT G. DESAI, for Respondent No.1 MR I.M. PANDYA for Respondent No.2 MR HARESH J. TRIVEDI, for Respondent No.3 MR G.P. JOSHI, ASSTT. GOVERNMENT PLEADER for Respondent No. 4 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE D.H.WAGHELA Date of decision: 23/09/1999 ORAL JUDGEMENT (Per R.K.Abichandani,J.) 1. This suo motu petition was initiated on the basis of a report of a Committee consisting of Mr. M.D. Pandya, made on the basis of his visits to the industrial units situated at Saijpur-Gopalpur area, Dani Limda and Shah-Alam. From the order dated 24.11.1997, by which these proceedings were commenced, it transpires that considering the report of Mr. Pandya, an order was made on 15.7.1997, pursuant to which the officers of the Gujarat Pollution Control Board and a representation of the Municipal Commissioner, collected certain information and visited the units and submitted a unit-wise report in detail, in which it was pointed out by the Advisor (Pollution Control), Ahmedabad Municipal Corporation that in all there were 69 units in Behrampura area, which did not have legal drainage connection, nor had they obtained any consent under the Water (Prevention and Control of Pollution) Act, as on 30th Sept. 97. It was also pointed out that 181 units situated in Dani Limda area were operating without legal drainage connection or a valid consent as on that date. In Saijpur - Gopalpur area, which was outside Municipal limits, there were 39 units operating without the requisite consent of the Board. Thus, in all 289 units out of 387 units surveyed by the team were found to be operating without any authorised drainage and/or outlet or without trade licence. These units were named in the order. A direction was issued by the Court under that order that all these units should be closed forthwith. A direction was also issued to the Member Secretary, Gujarat Pollution Control Board and the Municipal Commissioner to ensure that these units are closed down and the Commissioner was directed to disconnect the drainage connections and seal the outlets. The Ahmedabad Electricity Company was directed to disconnect the electricity supply to these units and to place a compliance report on the record. As regards four units which are named in paragraph 5 of the order, which were allegedly engaged in carbonising, it was ordered that they also should be closed forthwith and the AEC/GEB was directed to disconnect their electricity. All the industries situated in the areas in question were made aware about this petition by way of a public notice issued under Order 1, Rule 8 of the Code of Civil Procedure, on 23rd July, 1997 by publishing it in the Gujarat Samachar daily of 25th July, 1997. 1.1 Thereafter, on 2.12.1997 when it was pointed out by the learned Counsel appearing for the Board that some more units were engaged in carbonisation without any Effluent Treatment Plant, they were also directed to be closed down and GPCB was directed to see that they did not operate. The Ahmedabad Electricity Company/GEB was also directed to disconnect their electricity supply. On hearing the contentions on behalf of the some units, the earlier order was modified by directing that the units mentioned at serial Nos. 8, 19, 25, 31, 78, 108 and 109 of the order that was made, need not be closed under that order of the Court. The units were directed to file separate applications disclosing particulars about such units such as status of consent granted by the GPCB, position of effluent treatment plant, details of production, details of turn-over in last 3 years etc. 1.2 On 30th Dec, 1997, the Court clarified while allowing the electricity supply to be reconnected, that the units will not be entitled to utilise the energy for the purpose other than domestic purpose. On 17.1.1998, the Court made a detailed order and observed that upon a conjoint reading of the affidavits of J.M. Barot, working as Member Secretary of the GPCB and Mr. Nilesh Patel, who is the Deputy Municipal Commissioner of the AMC, alongwith the affidavit of Mr. Rama Prasad, Advisor (Pollution Control) to AMC, the Court was able to gather an impression that there were suggestions under which the units could be permitted to recommence their activity. In the affidavit of the Member Secretary of GPCB, it was stated that majority of the units were Small Scale units operating on hand process and in many of the cases, the waste water discharge was of a small quantity, ranging from 500 to 2000 litres per day. It was also stated that most of the units were discharging their effluent in the Municipal drains, since about last two decades with or without obtaining legal connections for the purpose. Taking into consideration the relevant aspects of the matter, the Court expressed an opinion in paragraph VII of the order that only those units which had taken out Civil Applications and were shown at Annexure _A should be permitted to commence their usual commercial activity, either manufacturing or processing, on a trial basis for a period of three months, during which none of the units would indulge in carbonising or silicating process. With a view to identify the units, the Court suggested a proforma to be presented by the units. For the purpose of easier location of the units, they were directed to take certain measures which included formation of an Association or Associations having a Managing Committee, a President or a Chairman to conduct the activities of the Association, which was required to submit a report specifying the particulars of its members as mentioned in the order. Then there were directions given to the units that they shall apply for: (1) Consent of the GPCB under the relevant Act or Acts as the case may be, (2) the drainage connection from AMC, (3) the building use permission, (4) the registration under the Bombay Shops and Establishments Act and the Factories Act, if required; and (5) the health permission. It was directed that such applications shall have to be expeditiously decided by the concerned authority on merits, in accordance with law. It was directed that the units shall not discharge the solids, semi-solids and or hazardous waste in any manner other than as approved by the GPCB and that they shall decide and disclose the effluent discharge point and shall notify the same to the Board. It was also directed that the units shall discharge the effluent only after treating them so as to meet the norms to be prescribed by the GPCB within a reasonable time. An undertaking was required to be filed by those units on these aspects. 1.3 Certain directions were also issued under the said order dated 17.1.1998 to the GPCB, requiring them to process the consent applications, file a report in 30 days specifying the norms attained by certain units and indicate a broad plan under which the units could be permitted to carry on their usual activities without causing environmental or ecological hazards and to indicate a broad plan under which a sustained development can be established. The AMC was also given certain directions requiring them to specify particulars regarding the damage likely to be caused to the drainage by the corrosive properties of the effluent discharged by the units in terms of pipe length and expenses within a period of sixty days. The Association, the GPCB and the AMC were directed to undertake a joint endeavour and try to evolve a formula, so that the effluent discharge problem could be solved and the units can also go ahead with the activities. The AMC, without prejudice to its rights and contentions that they are not duty bound or obliged to carry, transport or drain the industrial effluents, was directed to suggest a short term measure, the amount that could be contributed by the Association or its member units for repairs and up-keep of the drains. The units situated at Behrampura and Dani Limda were directed to deposit an amount of Rs. 5 lakhs initially through the Association or the Associations before the Ahmedabad Municipal Corporation, with a view to commence the survey and feasibility study. The contribution by the units was to be decided by their Association having regard to the manaufacturing activity of the unit and quantity and quality of the effluent discharge. The AMC was required to maintain a regular account of the amounts deposited by the units and was asked to place the technical study report when ready, on the record of this case. It was made clear that this arrangement was without prejudice to the contention canvassed on behalf of the AMC that they are not duty bound under the statute to carry the industrial effluents in the existing drains. The Court observed at that stage: "We infact do not express any opinion regarding the statutory obligations in this respect and the question is left open for consideration at the appropriate juncture." The units were permitted to clear the goods manufactured or processed during the trial production, subject to the condition that each of them would maintain the requisite account regarding its activity. The AMC and AEC were directed to reconnect the drainage and electricity connections respectively in cases in which they were disconnected and this was to be done at the cost of the respective units. 1.4 It appears that two Associations were formed pursuant to the directions given, which are known as `Behrampura Dani Limda Industries Association and Ahmedabad South Zone and Small Scale & Cottage Industries Association'. The matter kept on coming from time to time on Board and various orders came to be passed. On 6.5.1998, the Court observed that picture was not yet clear as to who are the members of the Associations. Tata Consultancy Engineers, Mumbai were to be engaged and the Court by that order observed that the terms of reference which were broad based, were sanctioned but this sanction was without prejudice to the rights and contentions of all concerned. It was then observed that " it shall be open for either the GPCB or the State to take appropriate action, according to law, against the units who are found to be operating without having obtained any orders from this Court." 1.5 By order dated 8th Dec. 1998, these two Associations were directed to be impleaded as party respondents in the main petition. As certain units were not members of the Association, they were directed to become member of one of these two Associations, within a period of ten days, failing which they would cease to have the benefits of the orders made on 8th Dec. 1998 and the earlier order dated 17.1.1998. The GPCB was ordered on 8.12.1998 to decide the applications submitted by the units as early as possible subject to the terms and conditions mentioned in the order. It was made clear that if any delay was caused on the part of the GPCB in deciding the applications, it was understood that the industrial units will not claim the benefit under the deeming fiction. The units were directed to approach the appropriate Department of the AMC through their Associations and to submit proformas, if not already submitted and the AMC was directed to decide all these applications for regularisation of this drainage connections within two weeks thereafter. It was observed: "It is understood that the AMC shall not reject any application for the drainage connection on the ground of the unit causing pollution." The units were directed to complete their own ETPs within eight weeks. The AMC was to provide necessary particulars to Tata Consultancy and obtain the project report at the earliest. Till the report came the AMC was directed to continue to carry the trade effluent in their drainage without prejudice to their rights and contentions before this Court as well as other Courts to the effect that they are under no statutory obligation to carry the industrial effluent of the units in the drainage system. It was made clear that this arrangement was also without prejudice to the rights and contentions of the industrial units, saying that under the statute the AMC was bound to do so. The Court made it clear that the industrial units cannot be permitted to discharge their trade effluent which could be either untreated or which could not meet with the norms to be prescribed by the GPCB under the terms of consent. It was further directed that the permission was limited only for a period of eight weeks and if the consent applications were decided during the time indicated, it shall be the obligation on the part of the units to see that they discharge trade effluent which should be in consonance with the consent orders to be given by the GPCB. 1.6 By order dated 22.3.1999, when attention of the Court was drawn by the learned Counsel for the Corporation that there was no compliance with the orders dated 8.12.1998, the Court gave a last opportunity to the units and adjourned the matter to 30.3.1999, enabling them to comply with the earlier directions. The Associations were directed to give particulars of the progress made by the respective member units and the GPCB was also directed to give a list regarding the consent status in respect of the units who already had made applications for its consent. It was observed that if the Associations did not comply with the directions, the Court would be constrained to pass an order including that of closure against the defaulting units and no further time would be given. 1.7 Since non-compliance of some units persisted, the Court by its order dated 30.3.1999, gave them a further opportunity which was to be the last opportunity for submitting applications to the GPCB and the AMC and adjourned the matter to 16th April, 1999. In its order dated 16th April, 1999, the Court took note of the fact that the GPCB had received 175 consent applications and 25 member units had not yet submitted such applications. These were required to be submitted by 26th April, 1999. So far the AMC was concerned, it was noted that out of 137 applications received by it, hardly five to six contained full particulars and a direction was therefore, given to the member units of the two Associations who had not submitted the necessary applications to the AMC, to submit them before 26.4.1999 and as regards the applications which did not contain sufficient particulars, a meeting was required to be convened between those who were named in the order. It was submitted by one of the Associations which had 138 members that 78 out of them had completed the ETP facilities and 3 were zero discharge units. The remaining 52 were still to establish the ETP facilities. A direction was therefore, given to them to submit necessary particulars on an affidavit, specifying the names of the member units who had completed the ETPs and a progress report by the remaining units. As regards the other Association, it was noted that only 35 of its members were having ETP facilities and that Association was also directed to file a similar affidavit. 1.8 On 10.5.99, it was again noted that certain member units of an Association had not yet filed necessary consent applications and they were given time to file them by 20.5.1999. It was observed : "Any of the member units who fail to comply with the above direction shall have to close down their industrial manufacturing and processing activity with effect from 21.5.1999." It was also observed that if the units fail to close down themselves, the GPCB officials shall commence the exercise of closing such units from 1.6.1999 at their cost. Both the Associations were directed to indicate the progress made by them for construction of ETP facilities on the next date of hearing. 1.9 In the order dated 21.6.1999, it was noted that in all 54 units had not complied with the directions contained in the order dated 10.5.99 and were liable to be closed down. The GPCB had furnished details about 51 units which had not complied with the directions contained in that order and were liable to be closed. In paragraph 5, giving one more opportunity, the Court observed : "during this period as a last chance, we further direct all those units which had so far not applied for consent, may file application for consent with necessary particulars to GPCB, failing which the units shall stand closed with effect from expiry of 15 days and we authorise the GPCB to take coercive measures to secure its closure thereafter, if so required." 1.10 On 12.7.1999, the Court noted the fact that 30 members of Dani Limda - Behrampura Industrial Associations had still not applied under the Water Act and 9 members of the Ahmedabad South Zone Small Scale and Cottage Industries Association had not at all applied for such consent. These 39 units had therefore rendered themselves liable to closure. They were therefore, directed to be closed down and the Board was required to take necessary steps in that direction. In order to have a clear picture, a direction was given by the Bench to the respective parties to furnish segregated information about the units. 1.11 Thereafter, when the matter came before this Court on 30th August, 1999, it was observed that the interim directions cannot be construed so as to freeze the provisions of law which have to be implemented. It was made clear that the earlier directions have to be construed in consonance with the exercise of powers under the Act, the nature of the power, and the manner in which it should be exercised. A direction was therefore, given to the Board and the Municipal Corporation to file affidavits stating as to what action they had taken in the matter so far in compliance with the directions issued from time to time and as to what time bound action they propose to take on the basis of the data which had been supplied. It was made clear that there cannot be a constant supervision by the Court over such matters and the Board and the Corporation were directed to give a time bound action plan in the matter in respect of the members of these two Associations, keeping in view the environment laws and the Municipal laws. Affidavits were directed to be filed by the AMC and the GPCB in this regard. It was also observed that the members of the Associations who were doing the work were required to discharge their effluent after treatment and they were bound to comply with the norms laid down by the Board and to comply with the provisions of the Act. It was observed that it is the duty of the Board to ensure such compliance and for that purpose, to maintain regular supervision and if there was any violation at any level, which empowers the Board and/or the Corporation to take action under the law, it was their duty to take such action under the law promptly to prevent pollution. It was observed that the Board and the Corporation cannot sit on the fence to see what directions were being given by the Court from time to time and that it was their primary function to discharge their duties and exercise their powers to ensure that the provisions of law are not violated and that they are properly implemented. 2. The aforesaid narration would indicate the course the matter has taken. It started on the footing of a report by Pandya Committee, indicating the hazards which were created by the working of these units within the areas in question and the Court, taking serious note of the matter, directed immediate closure. The principal two grounds were that no proper drainage connections were obtained and these units were discharging objectionable effluents without obtaining the consent of the Board or without having appropriate licences under the relevant laws. Since it was suo-motu action, it was free for all exercise and the units by their persuasion were able to turn the tables and started continuing their functioning under the Court orders, notwithstanding the fact that they had not obtained Board's Consent and most of them had not obtained any trade licence. Today therefore, the situation is that many of these units have been continuing their activities on the strength of the pendency of this suo motu petition and are carrying on their trade without the requisite licences and without obtaining the consent from the Board. The other fall out of the situation that has arisen is that the AMC and the GPCB have become virtually complacent, because, they are awaiting the directions from the Court from time to time in this suo motu petition. To illustrate this, we may at once refer to the affidavit of T.N.C. Ramaprasad, Advisor (Pollution Control) to the Municipal Corporation sworn on 6th Sept.99, in which it has been stated in paragraph 7 that "in view of the proceedings before this Court since last about two years, no further action have been taken though notices were issued to the units under Section 260 of the BPMC Act". It has been stated that because of the illegal discharge of effluent in the Municipal drains, Municipal drains are collapsing and the drainage system is being deteriorated. It is also stated that the Corporation intends to take action in respect of illegal drainage connections made by such units. It is stated that 165 units that are in Behrampura - Dani Limda area are having such illegal drainage connections. It is stated that necessary data required to be submitted by the units for preparing feasibility report by Tata Consultancy Engineering Services has not been supplied by the units and there is no progress in the work of Tata Consultancy Services. It is stated that meanwhile, illegal and unauthorised activities are being carried out, which cannot be permitted. The GPCB through its Environmental Engineer, has filed an affidavit, narrating its compliance of earlier orders made from time to time. It has stated that in compliance with the orders of the Court dated 10.5.99, it has closed down 39 industrial units. It is also stated that the Board proposes to take action under Section 5 of the Environment Protection Act, against the industrial units who have not approached the Board for consent or whose applications were earlier rejected, but were carrying on the activities without applying for the consent again. It is pointed out that in case of 84 units, the consent applications were rejected and 37 had not approached the Board for consent. 2.1 It is thus, clear that nowhere on the horizon appears any report from Tata Consultancy Services and many of the units have been functioning in contravention of the provisions of law as alleged by the AMC and the GPCB. It has become clear that any further pendency of this petition will be counter-productive and would afford protection to those who are continuing under the shelter of Court orders without obtaining necessary consent from the Board or the trade licences required under the law. The tone of