IN THE HIGH COURT OF KARNATAKA
G.C.BHARUKA, J.
AIR 1998 KARNATAKA 281
K. Muniswamy Gowda Vs. State of Karnataka
ORDER;- The petitioners, in substance are seeking an appropriate writ or
direction against the respondents for shutting down of the rice mill set up by
the 8th respondent, which is situated contiguous to the residential house of the
petitioners causing health hazards by emitting husk and dust in the entire
atimosphere surrounding the area, resulting in violation of the fundamental
right of the petitioners as also the Pollution Control Laws.
MATERIAL FACTS
2. The petitioners are having their residential house in Gandhinagar lying
within the territorial jurisdiction of Kolar Town Municipality. Pursuant to
grain of permit dated 18-9-1993 (Annexure 'D') issued under Section 5 of the
Rice Milling (Regulation) Act, 1958 (in short the 'Rice Milling Act' only) the
8th respondent has established a sheller type ricemilling industry next to the
house of the petitioners. Subsequently, he has also been granted license dated
22/28-2-1994 under the said Act which was valid up to 31-12-1994. Thereafter,
the same was renewed by the Deputy Commissioner by his order dated 16-6-1995
(Annexure 'B') for the period 1-1-1995 to 31-12-1997 with certain conditions to
be noticed hereunder. However, this order was modified in some material aspects
by the subsequent order dated 31-8-1995 (Annexure 'A'), the legality whereof has
been called in question by the petitioners in the present proceedings.
3. It is a matter of record that even before grant of licence to the 8th
respondent, the petitioners, on 18-12-1993 had lodged their written objection
with the respondent-Deputy Commissioner on the ground that the running of the
proposed industry would cause intolerable disturbance and pollution. Keeping in
view the said objection, the then Deputy Commissioner made a spot inspection of
the Mill on 29-1-1994 in the presence of the 8th respondent as well as the
petitioners and in order to remedy the grievance of the petitioners certain
directions like raising of walls to 18 feet, downing the face of the hose pipe,
etc., were given, to which the owner of the mill agreed. But it seems the down
facing of the hose pipe proved insufficient for arresting the air pollution
caused by the Industry. Therefore, the petitioner No.1, who is also suffering
from Bronchitislung decase and the pollution caused by the industry was
aggravating the same causing major health hazard, made another application dated
7-2-1995 to the Deputy Commissioner requesting for closure of shifting of the
industry.
4. Pursuant to the said application, the Deputy Commissioner conducted another
spot inspection on 18-5-1995 along with the Health and Family Welfare Officer.
The facts ascertained ruing inspection, as noticed by the respondent. Deputy
Commissioner in his order dated 31-8-1995 (Annexure A) are to the following
effect:-
"at the time of spot inspection in the campound of objector's house on the back
yard, it is found that paddy husk and bard is accumulated and heap of husk and
bard is found in the place.
The dust and husk due to operation of the industry is spread over on the entire
plaints, green vegetation in the compound of objections.
I have visited the premises of the Industry. the Milloperator Venkateshappu and
other workers were present. In front of the Industry, about 60-70 feet open
space is found with adjoining industry building. The operation of the Mill had
just then stopped. Inside the Mill there is a passage of 18 x 20 feet and 25 x
80 feet without roof. Inside it is found that paddy husk is stored which has
been thrown out from the main pipe of the Industry. The owner has built 15 feet
wall. In the said building 7 coconut trees were found out of which 6 are already
dead remaining one is on the verge of destruction. By this I can assess the
damage caused by Air pollution on the coconut plantation. There is one tiled
roof shed on which the entire paddy husk is accumulated. Behind the objector's
house, on the trees and plantation the paddy husk and dust in extensive manner
is accumulated. It is found and confirmed at the time of my inspection."
5. Accordingly, the Deputy commissioner while granting the renewal of the
license by his order dated 16-6-1995 (Annexure B) passed the following operative
order:-
"I have carefully examined all the points and conditions by establishing and
running the Rice Milling Industry by emanating dust and husk, it causes enormous
Air Pollution. Added to this no precautionary conditions are taken for running
such industry. The objector has suffered serious inconvenience as found and
confirmed by my spot Inspection. It is found absolutely true and correct and the
Housing and Urban Development Department's Order of stay is in operation. The
owner of the Industry shall not cause nuisance, pollution to the public. Hence,
to the designated place the Industry shall be shifted within clear 30 days from
this date of order as per Rice Milling Industry (Regulation) Act Section 7(1)(b)
and (2) it is ordered."
6. Quite strangely despite the said facts, subsequentlyby his impugned order
dated 31-8-1995 (Annexure A), the same Deputy Commissioner having been persuaded
by the owner of the Rice Mill (respondent No.8), altered the said condition of
shifting by inter also, relying on the notification, dazted 10-3-1982 (Annexure
C) issued by the respondent Karnataka State Pollution Board purporting to grant
exemption to certain dustries including the Rice Milling Industries (Sl.No.52)
keeping those outside the purview of the Water (Prevention and Control of
Pollution) Act, 1971 (in short the Water Act) and the Air (Prevention and
Control of Pollution) Act, 1981 (in short 'the Air Act') subject to certain
conditions. On the strength of this order, the 8th respondent continued with its
rice milling operations even at the predicament of the petitioners which forced
them to move this Court for redressal of their grievances by raising some
far-reaching and important questions of law having bearing on the very object,
purpose and operation of pollution laws like the Water Act and Air Act.
7. In the present case, the 8th respondent who has been represented by
Sri.U.L.Narayana Rao, has exerted his right to run rice mill even during
pollution caused by it by wielding the Notification dated 10-3-1992 (Annex.'C')
issued by the respondent Pollution Board as a sheet anchor. According to him,
the Pollution Board has given a free license to the rice millers to run their
industry even at the cost of Pollution Prevention Laws and by degying the
fundamental rights directive principles and duties enshrined in the Articles 21,
48A and 51A of the Constitution of India.
8. In the case of Subhas Kumar V. State of Bihar, 1991 (1) SCC 509; (AIR 1991 SC
420), it has been judicially recognized by the Supreme Court that "that Rights
to live is a hfundamental right under Article 21 of the Constitution and it
includes the right of enjoyment of pollution free water and air for full
enjoyment of life." Similarly, in the case of Virender Gaur v. State of Haryana
1995 (2) SCC 577; (1995 AIR SCW 121), this very enunciation has more cloquently
been profounded by deelaring that (Para 7)--
"Article 48A in Part IV, (Directive Principles) brought by the Constitution 42nd
Amendment Act, 1976, enjoins that "the State shall endeavour to protect and
improve the environment and to safegard the forests and wild life of the
country", Article 47 further imposes the duty on State to improve public health
as its primary duty, Article 51A(g) imposes "a fundamental duty" on every
citizen of India to "protect and improve the natural environment including
forests, lakes, rivers and wild life and to have compassion for living
creatures. The word 'environment' is of broad spectrum which brings within its
ambit "hygienic atmosphere and ecological balance". It is, therefore, not only
the duty of the State but also the duty of every citizen to maintain hygienic
environment. The State, in particular has duty in that behalf and to shed its
extravagant unbridled sovereign power and to forge in its policy to maintain
ecological balance and hygienic environment. Article 21 protects rights to life
as a fundamental right. Enjoyment olife and its attainment including their right
to life with human dignity encompasses within its ambit, the protection and
preservation of environment, econological balance free from pollution of air and
water, sanitation without which life cannot be enjoyed. Any contra acts or
actions would cause enviroinmental polution. Environmenta, ecological, air,
water pollution, etc. should be regarded as amounting to violation of Article
21. Therefore, hygienic environment is an integral facet of right of healthy
life and it would be impossible to life with human dignity without a human and
healthy environment. Environmental protection, therefore, has now become a
matter of grave concern for human existence. Promoting environmental protection
implies maintenance of the environment as a whole comprising the man-made and
the natural environment. Therefore, there is a constitutional imperative on the
State Government and the municipalities, not only to ensure and safeguard proper
environment but also an imperative duty to take adequate measures to promote,
protect and improve, both the man made and the natural environment."
9. The parliament being alive to the said requirements of providing pollution
fee environment has enacted laws like the Water Act, Air Act and Environment
(Protection) Act, 1986, to ensure among other things the preservation of quality
of environment and control of pollution.
10. For the purpose of the present case. I am more concerned with the Air Act.
Therefore I will be dealing with the provisions thereof in some what greater
detail.
AIR (Prevention and Control of Pollution) Act, 1981.
11. Section 2 of the Act, is the definition clause. The material definitions
are--
"Section 2. Defintions:-
(a) "air pollution" means any solid, liquid or gaseous substance (including
noise) present in the atmosphere in such concentration as may be or tend to be
injurious to human beings or other living creatures or plants or property or
environment;
(b) "air pollution" means the presence in the atmosphere of any air pollutant;
(c) ..... ..... ....
(h) "chimney" includes any structure with an opening or outlet from or through
ehich any air pollutant may be emitted.
(j) "emission" means any solid or liquid or gaseous substance coming out of any
chimney duct of flue or any other under;
(k) "industrial plant" means any plant used for any industrial or trade purposes
and emitting any air pollution into the atmosphere;
(l) -- -- --
12. Section 17 of the Act, provides for the functionof the State Boards, which
reads as follows:-
"Functions of State Boards, -
(1) Subject to the provisions of this act, and without prejudice to the
performance of its functions, if any, under the Water (Prevention and Control of
Pollution) Act, 1974 (6 of 1974), the functions of a State Board shall be:-
(a) to plan a comprehensive program for the prevention, control or abatement of
air pollution and to secure the execution thereof;
(b) to advice the State Government or any matter concerning the prevention,
control or abatement of air pollution;
(c) to collect and disseminate information relating to air pollution;
(d) to colaborate with the Central Board in organizing the training of person
engaged or to be engaged in programmes relating to prevention, control or
abatement of air pollution and to organize mass-education programe relating
thereto;
(e) to inspect, at all reasonable times, any control equipment, industrial plant
or manufacturing process and to give, by order, such directions to such persons
as it may consider necessary to take steps for the prevention, control or
abatement of air pollution;
(f) to inspect air pollution control areas at such interval as it may think
necessary, assess the quality of air therein and take steps for the prevention,
control or abatement of air pollution in such areas;
(g) to lay down, in consultation with the Central Board and having regard to the
standards, for the quality of air laid down by the Central Board, standards for
emission of air pollutant into the atmosphere from industrial plats and
automobiles or for the discharge of any air pollutant into the atmosphere from
any other source whatsover not being a ship or an aircraft.
Provided that different standard for emission may be laid down under the clause
for different industrial plans having regard to the quantity and composition of
emission of air pollutants into the atmosphere from such industrial plants;
(h) to advise the State Government withrespect to the suitability of any
premises or location for carrying on any industry which is likely to cause air
pollution;
(i) to perform such other functions as may be prescribed or as may, from time to
time, be entrusted to it by the Central Board or the State Government;
(j) to do such other things and to perform such other acts as it may think
necessary for the proper discharge of its functions and generally for the
purpose of carrying into effect the purposes of this Act.
(2) n A State Board may establish or recognize a laboratory or laboratiries to
enable the State Board to perform its functions under this section efficiently;
13. Section 18 of the Act, empoers the Board to give directions, which is to the
following effect-
"Power to give directions:-
(1) In the performance of its functions under this Act-
(a) the Central Board shall be bound by such directions in writing as the
Central Government may give to it; and
(b) every sState Board shall be bound by such directions in writing as the
Central board or the State Government may give to it;
Provided that where a direction given by the State Government is inconsistent
with the direction given by the Central Board, the matter shall be referred to
the Central Government for its decision.
14. under the purported powers as contained under Section 18(1)(b) of the Air
Act, the State Government under its letter dated 18-2-1992 authorised/granted
prior approval directed the Pollution Board to exempt certain small
scale/cottage industries (within) the purview of the Water and the Air Acts.
15. It will be apt to reproduce the contents of the said letter for a better
appreciation of State Government's approach in pollution control matters. The
letter reads thus:-
GOVERNMENT OF KARNATAKA
nO.dee.140 ENV 90
Karnataka Government Secretariat
7th Floor, IV stage
M.S.Building, Bangalore-560 001
Dated 18th February, 1992
From
The Secretary to Government of Karnataka,
Department of Ecology and Environment.
To
The Chairman,
Karnataka State Pollution Control Board,
M.G.Road, Bangalore-1.
Sir,
Sub:- Keeping certain small scale and cottage industries
outside the purview of the Water (Prevention and
Control of Pollution) Act, 1974 and the Air (Pre-
vention and Control of Pollution) Act, 1981.
--------------------------------------------------
I am directed to invite reference to the Government letter of even number dated
17-6-1991 regarding keeping certain small scale and cottage industries outside
the purview of Water (Prevention and Control of Pollution) Act, 1974 and Air
(Prevention and Control of Pollution) Act, 1981.
Your attention is invited to the discussions of the meeting held on 11-2-1992 at
11.00 a.m. in the Chambers of the Commissioner and Secretary to Government,
Department of Ecology and Environment in which the representatives of the
Industries Department and the Chairman, Karnataka State Pollution Control Board
were also present.
It was agreed that the Karnataka State Pollution Control Board may be authorised
by the State Government to issue necessary notification keeping certain small
scale and cottage industries, as recommended by the Board, outside the purview
of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention
and Control of Pollution) act, 1981 as has been done by the Tamil Nadu Pollution
Control Board.
I am therefore to convey approval of Government to the effect that the Board may
issue necessary notification on the same lines as was done by the Timil Nadu
Pollution Control Board incorporating necessary conditions as has been done by
the said Board and indicating that the concession extended shall be valid until
further orders.
Yours faithfully.
Sd/-
(KANNAN KUTTIKVLAVIL)
UNDER SECRETARY TO GOVERNMENT
DEPT. OF ECOLOGY AND ENVIRONMENT
16. Accordingly, keeping in view the aforesaid letter, the State Board issued a
notification dated 10-3-1992 (Annexure 'C') keeping the suggested small
scale/cottage industries numbering about 115 including "Rice Mill Industries"
outside the purview of the AIR Act. The said notification is to the following
effect:-
NOTIFICATION
Sub:- Keeping certain small scale and cottage industries
outside the purview of the Water/Prevention and
Control of Pollution) Act, 1974 and the Air (Pre-
vention and Control of Pollution) Act, 1981.
Ref:- Government letter No.DEE/140/ENV/90/DATED 18-2-1992.
----------------------------------------------------
Pursuant to the decision taken in the 71st meeting of the Karnataka Control
Board held on 7-5-1990 and the Communication reported from the government of
Karnataka in Department of Ecology and Environment in No.DEE/140/ENV/90 dated
18-2-1992, the State Board hereby notified the small scale and cottage
industries indicated in the schedule attached to the notification, keeping them
outside the purview of the Water (Prevention and Control of Pollution) Act, 1971
and the Air (Prevention and Control of Pollution) Act, 1981 subject to the
following conditions and until further notification.
(i) the number of workers in the industry shall be less than 20.
(ii) industry employing more than 20 workers shall obtain the consent of the
Board and comply with the required fomalities.
(iii) it should conform to the land use classification by the competent
authority.
(iv) if any industry mentioned in the schedule creates conditions that generate
any type of pollution or if there is any objection from the surounding community
and if on verification, it is found that such objection has such substance, the
facility given to the industry would be withdrawn.
(v) any act of omission/commission on the part of the units listed in the
schedule resulting in pollution or violation of standard prescribed by the Board
will not bind/control the Board from taking Air (Prevention and Control of
Pollution) Act, 1981 as amended in 1987 and the Water (Orevention and Control of
Pollution) Act, 1973.
Sd/-
MEMBER-SECRETARY
17. Now let me examine whether it was competent on the part of the Board to
grant exemption, to any industrial plant emitting air polluants, from the
provisions of the Air Act.
18. A plan reading of Section 18(1)(b) of the Air act unquestionably manifests
that the State Board shall be bound by only such directions issued by the State
Government which pertain to the discharge of functions assigned to the State
Board under Section 17 of the Air Act. It is also amply clear that neither the
State Government can issue any directions which has no nexus with the functions
assigned to the Board nor the Board is bound to follow any such directions.
19. In the said background it has to be ascertained as to whether under the
provisions of the Air Act, the State Board has been assigned with the fuctions
to exempt any industrial plant from the provisions of the said Act comditionally
or unconditionally. At least, on my reading of the provisions of the Act with
minute details. I do not find any provisions under which the Parliament has
vested any discretion with the State Board to grant exemption to any particular
industrial plant or class of plants. A reading of Section 17 of the Air Act,
which sets out of the functions of the State Board, clearly envisages that the
functions assigned to the State Board are meant for taking such steps as may
further the object of the Act in effectively controlling the air pollution
caused by the industries. No clause of the said section, on for that sake any
provision of the Air Act has empowered the State Board to keep any industrial
plant out of the purview of the Act if it causeair pollution. Any authority to
grant exemption assumed by the State Board can be held only to be derogatory to
the object and express provisions of the Act. Nonetheless, it has done to by
exempting 115 industrial plants under its resolution dated 7-5-1990 under the
purported directions of the State Government which had been notified to the
public on 10-3-1992. I may emphatically state here that whether any particular
industrial plant falls within the purview of the Air Act or not, has to be
adjudged with reference to the provisions of the Act itself which provides that
the Act will apply to only such industries which emit air pollution. Therefore,
if any industry is not emitting any air pollutant, then ipso facto the
provisions of the Act will have no application to it. But, if it its emitting
air pollutants, irrespective of its extent then neither the State Government nor
the State Board has any competence to keep such industries may be cottage. Small
Scale or Tiny to keep them out of the purview of the, Act. Accordingly,
notification dated 10-3-1002 (Annex. 'C') issued by the State Board granting
exemption in respect of certain industrial plants is declared as ultra vires its
powers and functions and is accordingly quashed.
20. Under Section 19, the Board has the power to declare air pollution control
areas. The relevent portions reads as under -
"Section 19- Power to declare Air Pollution Control Areas-
(1) The State Government may, after consultation with the State Board, by
notification in the Offical Gazette, declare in such manner as may be
prescribed, any area or areas within the State as air pollution countrol area or
areas for the purposes of this Act."
21. Section 21 of the Act provides certain restrictions on use of certain
industrial plants, which reads as:-
"Restrictions on use of certain industrial plants:-
(1) Subject to the provisions of this section, no person shall without the
previous consent of the State Board establish or operate any industrial plant in
an air pollution control area;
Provided that a person operating any industrial plant in any air pollution
control area immediately before the commencement of Section 9 of the Air
(Prevention and Control of Pollution) Amendment Act, 1987, for which no consent
was necessary prior to such commencement, may continue to do so for a period of
three months from such commencement or, if he has made an application for such
consent within the said period of three months, till the disposal of such
application."
22 Section 22 of the Act further restrict the persons carrying on industry etc.,
not to allow emission of air pollutants in excess of the standards laid down by
the State Board, which reads thus:-
"No person operating any industrial plant, in any air pollution control area
shall discharge or cause or permit to be discharged the emission of any air
pollutant in excess of the standards laid down by the State Board under clause
(g) of sub-section (1) of Section 17."
23. Pursuant to the powers under Section 19 of the Air (Prevention and Control
of Pollution) Act, 1981 (in short the 'Air Act' only), the State Government
under its notification No.SO/893 dated 1-6-1988 has declared the whole State of
Karnataka as a "Air Pollution Control Area". As such all the industrial plants
are mandatorily required to abide by S.21 of the Act.
24. Section 21(1) of the Act, reads as follows:-
"Restriction on use of certain industrialo pants.-(1) Subject to the provisions
of this section, no person shall, without the previous consent of the State
Board, establish or operate any industrial plant in an air pollutant control
area;
Provided that a person operating any industrial plant in any air pollution
control area immediately before the commencement of S.9 of the Air (Prevention
and Control of Pollution) Amendment Act, 1987, for which no consent was
necessary prior to such commencement, may continue to do so for a period of
three months from such commencement or, if he has made an application for such
consent within the said period of three months, till the disposal of such
application."
25. In may be noticed here that the said sub-section of Section 21(1) of the Air
Act was substituted by Section 9 of the Air (Prevention and Control of
Pollution) Act, 1987 and pursuant to the notification issued by the Central
Government under Section 1(2) of this amending Act, the substituted sub-section
(1) of Section 21, has come into force with effect from 1-4-1988 (See Gazette of
India dated 28-3-1988, part II, S.3(ii) Ext.P2] As such even the industrial
plants which were in operation before the said date were required to obtain the
consent of the State Board as required under the said provisions.
26. Acombined reading of Section 21(1) with the definitions of 'air polutant'
and 'air pollution' and 'industrial plant' manifests the primary intention to
the parliament to the effect the if any industrial plant as understood in common
parliance is emitting any solid, liquid or gaseous substance including noise in
the atmosphere in such concentration as may be or tend to become injuries to
human beings or other living creatures, or plants or property, or environment,
then the operation thereof cannot be continued except with the consent of the
State Pollution Board, which can be granted only subject to the conditions
enumerated under sub-section (5) of S.21 of the Air Act.
27. In the present case as found by the Deputy Commissioner, it is beyond any
spell of doubt that the Rice Milling Industry run by the 8th respondent is
emitting air pulluants in the form of husk and dust in the atmosphere, which has
tended to cause injury to the property of the petitioners, apart from being
injuries to the environment, and detrimental to the physical comfort and health
of the petitioners. Therefore, the said rice milling plant is an "industrial
plant" within the meaning of the Air Act and the same cannot be operated, except
with the consent of the State Pollution Board as envisaged under Section 21 of
the Air Act.
28. In the present case, admittedly the 8th respondent has not obtained any
consent from the Pollution Board. According to the 8th respondent, as disclosed
in the statement of objections, he has not obtained the said consent in view of
the resolution dated 10-3-1992 issued by the State Pollution Control Board. In
the said resolution, several industries including the rice buller and flour mill
(Sl.No.52) have been exempted from the provisions of the Air Act. The said
resolution of the State Pollution Control Board has already been declared as
ultra vires and inoperative by me, since neither the State Government nor the
State Pollution Board has any power to exempt any industrial plant from the
operation of the Air Act.
29. To conclude, the notification D/- 10-3-1992 (Ann. 'C') of the State
Pollution Board is declared ultra vires its powers and functions under the Air
Act and as such nonest in the eye of law. The 8th respondent cannot in law run
its rice milling industrial plant, unless he obtains consent from the State
Pollution Board under S.21 of the Air Act as noticed above. As such they are
directed to stop the running of the said industry forthwith. In the present
case, this facts as noticed above eloquently speaks of the mental and physical
torture suffered by the petitioners because of the arbitrary and
unconstitutional actions of the respondents. In the case of Coromon Cause v.
Union of India, 1996 (6) SCC 593, it has been held by the Supreme Court that
they legal position that exemplary damages can be awarded in a case where action
of a public servant is oppressive, arbitrary or unconstitutional is
unexceptional." Keeping in view the facts of the present case and the arbitrary
manner in which the State Government or its servants, the State Pollution Board
and the 8th respondents has acted to the utter detriment of the petitioners. I
feel that they must suffer exemplary damages so that the executive officers and
the statutory boards may feel the necessary of acting in a more responsible
manner in consonance with the object and requirements of legislative Acts.
30. The writ petition is accordingly allowed with cost and exemplary damages
assessed at Rs.21,000/- to be paid equally that is Rs.7,000/-, each by the
first, second and the eight respondents, by crossed bank draft drawn in favour
of the first petitioner within three weeks from today under registered post.
Petition allowed.