Ishrat Bhaya vs Central Pollution Control Board
2023 Latest Caselaw 2312 Guj

    C/WPPIL/33/2022                                JUDGMENT DATED: 16/03/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/WRIT PETITION (PIL) NO. 33 of 2022



FOR APPROVAL AND SIGNATURE:


HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
A.J.DESAI

and

HONOURABLE MR. JUSTICE BIREN VAISHNAV

==================================================

1     Whether Reporters of Local Papers may be allowed to               NO
      see the judgment ?

2     To be referred to the Reporter or not ?                           NO

3     Whether their Lordships wish to see the fair copy of the          NO
      judgment ?

4     Whether this case involves a substantial question of law          NO
      as to the interpretation of the Constitution of India or
      any order made thereunder ?

==================================================
                                ISHRAT BHAYA
                                    Versus
                      CENTRAL POLLUTION CONTROL BOARD
==================================================
Appearance:
MR JITENDRA MALKAN, ADVOCATE FOR
MS DEVANSHI P MALKAN(9307) for the Applicant(s) No. 1
MR BRIJESH RAMANUJ, ADVOCATE FOR
MR ANKIT SHAH(6371) for the Opponent(s) No. 1
MR RUTVIJ S OZA(5594) for the Opponent(s) No. 2
MR ANSHIN DESAI, SENIOR ADVOCATE WITH
MR BHASH H MANKAD(6258) for the Opponent(s) No. 3
==================================================




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      C/WPPIL/33/2022                          JUDGMENT DATED: 16/03/2023




 CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
       JUSTICE A.J.DESAI
       and
       HONOURABLE MR. JUSTICE BIREN VAISHNAV

                          Date : 16/03/2023
                         ORAL JUDGMENT

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)

1. By way of this petition, the petitioner who is resident of

Village: Sodasala, Taluka: Salaya, District: Devbhumi Dwarka,

has raised an issue that the private respondent No.3, i.e. Nayara

Energy Limited has its unit at Village: Vadinar Vill, District:

Devbhumi Dwarka was causing pollution by discharging

hazardous waste by not following the necessary requirement to

control the pollution which arises from such discharge.

2. It is the grievance of the petitioner that the respondent

Board has not properly calculated the amount of fine to be paid

by the private respondent company for violating several

environmental pollutants under the Environmental (Protection)

Act, 1986.

3. In response to the notice issued by this Court, Gujarat

Pollution Control Board has filed affidavit-in-reply and has

C/WPPIL/33/2022 JUDGMENT DATED: 16/03/2023

produced relevant documents opposing the allegations made

against the Board about not taking action as well as not

calculating the fine which has been imposed by the Board.

4. The private respondent company has not filed an affidavit.

5. Mr. Jitendra Malkan, learned advocate for the petitioner

would submit that the respondent company came to be

registered on 6.8.2015 and since on the same date, such

hazardous waste are remitted which causes pollution. By taking

us through a notice issued by the Board which has been

produced by the petitioner dated 6.6.2018, he would submit that

the authority has not considered the date of establishment of

the unit. However, only after visiting the unit, i.e. in the month

of May 2018, a notice came to be issued. He would further

submit that the affidavit-in-reply filed by the respondent board

is silent on this aspect and, therefore, he would submit that the

respondent board be directed to re-calculate the amount of fine

which is required to be paid by respondent No.3 and the

petition be accordingly allowed.

6. On the other hand, Mr. Brijesh Ramanuj, learned advocate

C/WPPIL/33/2022 JUDGMENT DATED: 16/03/2023

for the respondent board would submit that in the affidavit-in-

reply dated 29.7.2022 filed on behalf of the board, there was

continuous supervision and verification by a system known as

Online Continuous Emission Monitoring System (OCEMS)

installed on the basis of SMS alerts received by the board. When

the board received the SMS through said installation, the team

of the board visited the premises on 2.5.2018 and having found

some emission on the part of the private company, a notice was

issued on 6.6.2018. He would submit that after calculating

damage as per the criteria provided under various provisions

and resolutions / notifications, the company was awarded a fine

of Rs.61,20,000/-. He would submit that the said amount has

already been deposited by the respondent company. Thereafter

the board by order / communication dated 29.1.2019 decided to

close the proceedings by issuing certain directions. However, he

would further submit that the system of monitoring through

OCEMS is continuously going on by the board and he would

submit that as and when emission is found on behalf of the

respondent company, the board would take immediate action.

7. Mr. Anshin Desai, learned Senior Advocate appearing with

C/WPPIL/33/2022 JUDGMENT DATED: 16/03/2023

Mr. Bhash H. Mankad, learned advocate for the private

respondent No.3 would submit that the present petitioner is not

resident of Village: Vadinar where the plant is located. He would

submit that the petitioner is resident of another village which is

at a distance of 20 kms. and he would submit that with ulterior

motive, the present petition has been filed and that too without

verifying the orders which have been passed by the Board way

back in the year 2019. He would, therefore, submit that petition

be dismissed.

8. We have heard learned advocates for the respective

parties.

9. It has been specifically stated by the board that continuous

monitoring was made through OCEMS and when they found on

2.5.2018 about emission on the part of the company, a notice

was issued. The respondent company was asked to pay an

amount of Rs.61,20,000/- which has been deposited by the

company way back in the year 2019.

10. Accepting the same, the board has further directed to

comply with the provisions of the Environment (Protection) Act

C/WPPIL/33/2022 JUDGMENT DATED: 16/03/2023

and to ensure that uninterrupted connectivity with Pollution

Control Board survives so that monitoring can be made through

OCEMS.

11. The submission made by Mr. Malkan, learned advocate for

the petitioner that the unit was established in the year 2015 and

the company was found emitting hazardous elements and the

levy of fines should be considered from that day, cannot be

accepted without any cogent material produced by the

petitioner or the case put forward by the Gujarat Pollution

Control Board that the continuous monitoring was made

through OCEMS system.

12. Hence, we do not find any reason to continue this writ

petition and particularly when the board is monitoring day-to-

day with regard to the pollution. The petition stands dismissed.

Notice is discharged.

(A.J.DESAI, ACJ)

(BIREN VAISHNAV, J) Bharat