Brmsco Garments Private Limited vs Kerala State Pollution Control ...
2023 Latest Caselaw 5498 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945
                   RP NO. 98 OF 2023
AGAINST THE ORDER/JUDGMENTWP(C) 31326/2022 OF HIGH COURT
                       OF KERALA
REVIEW PETITIONER/PETITIONER:


         BRMSCO GARMENTS PRIVATE LIMITED
         AGED 69 YEARS
         ANCHALPETTY (PO), ONAKUR PAMPAKUDA,
         ERNAKULAM PIN 686667,
         REPRESENTED BY ITS MANAGING DIRECTOR
         T.K. VIJAYAN.

         BY ADV PHILIP J.VETTICKATTU
RESPONDENTS/RESPONDENTS:

   1    KERALA STATE POLLUTION CONTROL BOARD
        PATTOM P.O.TRIVANDRUM,
        REPRESENTED BY ITS SECRETARY, PATTOM,
        THIRUVANANTHAPURAM - 695004

   2    THE DEPUTY SUPERINTENDENT OF POLICE
        OFFICE OF THE SUPERINTENDENT OF POLICE,
        PUZHAKKARAKAVU ROAD, THOTTUMKALPEEDIKA,
        MUVATTUPUZHA, KERALA - 686 661.

        PRESENT ADDRESS:
        PUTHENCRUZ,
        CHOONDI POLICE STATION,
        KOCHI-MADURAI-TONDI POINT ROAD,
        AIKARANAD SOUTH - 682308.
 RP No.98/2023
                            :2:


    3     UNION OF INDIA
          MINISTRY OF ENVIRONMENT,
          FOREST AND CLIMATE CHANGE,
          REPRESENTED BY ITS SECRETARY,
          INDIRA PARYAVARANBHAVAN, JORBAGH ROAD,
          NEW DELHI - 110003.

    4     ONAKKUR PARISTHITHI SAMRAKSHANA SAMITHY,
          REG.NO.ER 155/08, ANCHALPETTY P.O.,
          PAMPAKKUDA, ERNAKULAM - 686661
          REPRESENTED BY ITS PRESIDENT,
          ABRAHAM PAUL, S/O.V.P.POULOSE.

          BY ADVS.
          SRI.P.B.SAHASRANAMAN
          SRI.T.S.HARIKUMAR
          SRI.T.NAVEEN, STANDING COUNSEL
          SMT.ANIMA M, GOVERNMENT PLEADER
          SRI.S.MANU, DSGI.

     THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 02.05.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 RP No.98/2023
                                         :3:




                             N. NAGARESH, J.

            `````````````````````````````````````````````````````````````
                          R.P. No.98 of 2023
                                   in
                        W.P.(C) No.31326 of 2022

            `````````````````````````````````````````````````````````````
                   Dated this the 2nd day of May, 2023


                                   ORDER

~~~~~~

This review petition is one arising from W.P.(C)

No.31326 of 2022. The writ petitioner has filed the review

petition. The writ petition was filed by the petitioner

aggrieved by Ext.P11 order in OA No.262/2020 of the

National Green Tribunal, Southern Zone, whereby the

petitioner was restrained from operating its industrial unit

from 10 pm to 6 am.

2. The 4th respondent, which is an organisation

formed to protect environment and ecology filed OA

No.262/2020 before the National Green Tribunal, aggrieved RP No.98/2023

by the noise pollution caused on account of the petitioner's

industrial unit manufacturing plastic woven fabrics and

flexible packaging materials in Onakkoor Village of

Muvattupuzha Taluk in Kerala. The prayer made by the 4 th

respondent in the OA was to direct the Kerala State Pollution

Control Board to issue necessary directions to the 3 rd

respondent for the installation of proper tamper free

equipment for the online measurement of noise level

generated from the industrial unit of the 3 rd respondent for

the effective implementation of the Noise Pollution

(Regulation and Control) Rules, 2000 with complete access

for seeing the data by the general public including the 2 nd

respondent.

3. The National Green Tribunal in its Ext.P11

judgment came to the conclusion that there is some

necessity for providing restriction of operation of the unit and

allowing the unit to work day and night is likely to cause

health hazard in that locality. So, we feel that the 3 rd

respondent unit has to be restrained from operating the unit RP No.98/2023

between 10 pm and 6 am. Consequently, the OA was

disposed of inter alia restraining the petitioner from operating

the industrial unit from 10 pm to 6 am applying the

"precautionary principle" and also considering the health of

the people who are likely to be affected due to the possible

sound pollution that is likely to be caused on account of the

petitioner's unit.

4. Aggrieved by Ext.P11 order, the petitioner in this

review petition filed W.P.(C) No.31326/2022. This Court

considered the writ petition and found that the petitioner

holds all requisite statutory licences, permits and consents to

run the manufacturing industry for production of

polypropylene. This Court noted that the Tribunal has found

that the State Pollution Control Board had conducted noise

level test and submitted a report wherein it was noted that

the sound level was above 70 dB(A). The Tribunal has found

that there is necessity for providing restriction of operation of

the unit during night hours. Therefore, Ext.P11 order does

not suffer from any error and the Tribunal rightly restricted RP No.98/2023

night time operation of the petitioner's industrial unit.

5. The petitioner has now come up with the review

petition alleging errors apparent on the face of the records of

the case. Finding prima facie case in the facts projected by

the review petitioner, this Court passed an interim order

dated 20.01.2023 staying the operation of the judgment

dated 10.01.2023 in W.P.(C) No.31326 of 2022 and of the

judgment dated 26.09.2022 in OA No.262/2020 of the

National Green Tribunal.

6. The counsel for the review petitioner argued that

this Court has affirmed the judgment of the Tribunal imposing

restriction on working hours on the premise that the Pollution

Control Board suggested for limiting of the working hours of

the unit. In fact, the Board had not made any such

recommendation before the Tribunal. The counsel further

argued that the restriction imposed by the Board was

confined to stone crusher units and quarries only and was

not applicable to woven bag manufacturing units like the

petitioner.

RP No.98/2023

7. The 4th respondent, who is the applicant before

the Tribunal, entered appearance and resisted the review

petition. The 4th respondent submitted that if the judgment of

the National Green Tribunal contained any error as is now

urged before this Court, the petitioner ought to have filed a

review petition invoking Section 19(4)(f) of the National

Green Tribunal Act, 2010. A writ petition under Article 226

was not the remedy. The writ petition was rightly dismissed

by this Court. The petitioner still has the remedy of review

before the Tribunal open.

8. The counsel for the 4th respondent submitted that

the industrial unit of the petitioner does cause considerable

sound pollution beyond the permissible limits. Therefore, the

4th respondent had prayed for online monitoring of the

pollution levels of the petitioner's industrial unit. The Tribunal

taking into consideration the entire facts and circumstances

of the case, restrained the petitioner from running the unit

during night time. The review petition is misconceived and it

is liable to be dismissed.

RP No.98/2023

9. I have heard the learned counsel for the review

petitioner, the learned Standing Counsel for the 1 st

respondent, the learned Government Pleader representing

the 2nd respondent, the learned Deputy Solicitor General of

India representing the 3rd respondent and the learned

counsel appearing on behalf of the 4 th respondent.

10. The prayers made by the 4th respondent in the OA

were as follows:-

(i) To direct the Kerala State Pollution Control Board to issue necessary directions to the 3rd respondent for the installation of proper tamper free equipment for the online measurement of noise level generated from the industrial unit of the 3rd respondent for the effective implementation of the Noise Pollution (Regulation and Control) Rules, 2000 with complete access for seeing the data by the general public including the 2nd respondent;

(ii) To issue proper directions to the 4th respondent to issue proper authorisation or make proper changes for the implementation of the Noise Pollution (Regulation and Control) Rules, 2000 by issuing proper authorisation to launch prosecution to take congnizance of offences under Section 19 of the Environment (Protection) Act, 1986.

(iii) To direct the 2nd respondent to take proper steps required under law for the implementation of the Noise Pollution (Regulation and Control) Rules, 2000 including passing of prohibitory orders to stop the generation of noise, launching of complaint, seizing of equiqments and other steps in accordance with law against the 3rd RP No.98/2023

respondent unit and its officers responsible;

(iv) Pass such other orders or direction which this Hon'ble Tribunal may deem fit, proper and necessary in the circumstances of the case for the effective implementation of Noise Pollution (Regulation and Control) Rules, 2000.

11. The Tribunal in paragraph 43 of Ext.P11 order

found as follows:

Subsequent report filed by the State Pollution Control Board dated 18.06.2021 will go to show that the sound level was within the permissible limit after providing additional control measures for abating the noise level by the unit. They also suggested for limiting the working hours. Further, it is seen from the report that there was some noise pollution caused on account of the operation of the unit and directions were issued by the Pollution Control Board to abate the same and after compliance of the directions, the sound level has been brought down. But, as observed by the Pollution Control Board, there is some necessity for providing restriction of operation of the unit and allowing the unit to work day and night is likely to cause health hazard in that locality. So, we feel that the 3rd respondent unit has to be restrained from operating the unit between 10 pm and 6 am.

The contention of the petitioner is that the State Pollution

Control Board had not suggested limiting the working hours.

The Tribunal found that there was noise pollution caused by

the operation of the unit and directions were issued by the

Pollution Control Board to abate the same. The Tribunal RP No.98/2023

found that the Pollution Control Board has made

observations regarding necessity for providing restriction of

operation of the unit and that allowing the units to work day

and night is likely to cause health hazard. It was with these

findings that the Tribunal held that the petitioner's unit has to

be restrained from operating the unit between 10 pm and 6

am.

12. The counsel for the 4th respondent submitted that

the Tribunal happened to arrive at the afore conclusion

based on an erroneous submission made on behalf of the

Pollution Control Board.

13. In fact, a perusal of Ext.P10 report filed by the

Environmental Engineer, Kerala State Pollution Control

Board before the Tribunal would show that the Board insists

time regulation for operation of stone crusher units and

quarries only and the permitted operational timing for the

above two activities is 6 am to 6 pm and that no other time

restriction is insisted in the area in which the petitioner's unit

is functioning. The industrial unit of the petitioner is neither a RP No.98/2023

stone crusher unit nor a quarry.

14. It is evident from the judgment dated 10.01.2023

in W.P.(C) No.31326/2022 that this Court proceeded as if the

restrictions on operational timings insisted by the Pollution

Control Board for the operation of stone crusher units and

quarries would apply to the woven bag manufacturing unit of

the petitioner. This obviously is an error in the judgment.

But, at the same time, I find that the said error is seen

reflected in Ext.P11 judgment of the Tribunal also. If that be

so, the right remedy for the petitioner is to file a review

petition invoking Section 19(4)(f) of the National Green

Tribunal Act. A writ petition would not be an appropriate

remedy, in the facts and circumstances of the case.

15. Therefore, it would be only appropriate that the

petitioner is permitted to approach the Tribunal by filing

review petition against Ext.P11 judgment. If the petitioner

makes such a review petition, obviously, in considering filing

delay of the review petition, the period during which the

petitioner was prosecuting W.P.(C) No.31326 of 2022 and RP No.98/2023

R.P. No.98 of 2023 before this Court should stand excluded

treating that the petitioner was bona fide prosecuting its case

in a wrong forum.

In the facts of the case, the review petition is

allowed and the writ petition is dismissed, at the same time

permitting the petitioner to invoke Section 19(4)(f) of the

National Green Tribunal Act. In order to permit the petitioner

to invoke the review remedy and since the petitioner's unit is

a running industrial unit, the benefit of the interim order dated

20.01.2023 passed by this Court in the review petition will

stand extended for a period of one month from today.

Sd/-

N. NAGARESH, JUDGE aks/19.04.2023 RP No.98/2023

APPENDIX OF RP 98/2023

REVIEW PETITIONER'S ANNEXURES

Annexure A TRUE COPY OF THE REPORT SUBMITTED BY THE PCB BEFORE THE TRIBUNAL DATED 15/6/2021 Annexure B TRUE COPY OF THE JUDGEMENT IN OA 262/2020 DATED 26/9/2022 PASSED BY THE HON'BLE NATIONAL GREEN TRIBUNAL