TaxTMI 
TaxTMI 
2017 (10) TMI 1546
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....ustrial wastes generated in the factory are radioactive wastes coming within the purview of the Atomic Energy Act. Therefore, it is contended that, the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 (hereinafter referred to as 'HW Rules') do not govern the manner of disposal of such wastes. For disposal of the wastes generated by the unit of the appellant, they have the necessary authorization from the Atomic Energy Regulatory Board. For the purpose, they have established disposal sites within their premises in terms of the licence and plan approved by the Atomic Energy Regulatory Board. 3. While so, as per an order passed by the Supreme Court in W.P(C) No. 657 of 1995, a Committee called the Supreme Court Monitoring Committee on Hazardous Wastes ('Monitoring Committee' for short) was constituted for the purpose of ensuring that the directions issued by the Supreme Court from time to time in the said writ petition were implemented effectively and in a timely manner. The Monitoring Committee was given the liberty to co-opt a representative of the State Government or the State Pollution Control Board or any other person or authority as member of the ....
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....Thereafter, a personal hearing was conducted and by Ext.P10, they were directed to make the payments. Ext.P10 was followed by Ext. P11 pointing out that there were mistakes with respect to the recording of the minutes. Subsequently, a meeting with the Minister for Health, State of Kerala was held on 18.5.2009 which was attended by the representatives of the appellant. Thereafter, by Ext.P12 proceedings dated 29.5.2009 the appellant was directed to pay Rs. 1.25 Lakhs per month as their share of the recurring charges for the Eloor Drinking Water Supply Scheme. It was challenging Ext.P12 that the appellant had filed the writ petition. 6. According to the appellant, the industrial wastes generated by it come within the general definition of radioactive wastes under the Atomic Energy Act. Such wastes have been specifically excluded from the purview of the HW Rules. The Monitoring Committee was constituted for the purpose of monitoring the discharge of wastes under the HW Rules. Therefore, the Monitoring Committee has no authority to initiate any action in relation to the wastes discharged by the appellant. The proceedings Ext.P12 were issued by the 2 respondent in compliance with the....
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....for laying the pipes carrying drinking water. The FACT had offered to supply drinking water at a highly subsidized rate. However, there was no means of meeting the recurring charges for such supply of water. It was the said recurring charges, that the industries located in each locality were ordered to share. Thus recurring charges for the supply of drinking water to Panchayat Wards that are affected by the existence of the four major industries were directed to be borne by the said industries including the appellant. Accordingly, the appellant has been paying the said amount, on a monthly basis. The Monitoring Committee has in its report, Ext.P5 found that, the contamination of Kuzhikandam Thodu and nearby areas was caused by effluents from the FACT, IRE (appellant), HIL and Merchem. Therefore, the cost of clean up would have to be recovered from them. The said finding has not been challenged by the appellant. It was as part of implementation of the directions of the Monitoring Committee to clean up the river that the impugned order Ext.P5 has also been issued. The contention that, the appellant does not discharge any effluents to Kuzhikandam Thodu was disputed. According to the 2....
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....nt had no statutory power to issue Ext.P12 No authority has found that the appellant's industrial unit was a polluter. There is no finding in Ext.P12 regarding the violation of any order or condition imposed by the 2 respondent. In the absence of any allegation of infraction of any order, direction or statutory provision, it is contended that, the appellant ought not to have been saddled with a liability to pay the recurring charges for supply of drinking water to the local residents. Referring to Ext.P12, it is pointed out that the said order has been passed on the basis of a direction issued by the Monitoring Committee. Therefore, this is a clear case of the statutory authority acting under dictation, it is contended. The initial demand for sharing the infrastructural cost was accepted by the appellant recognizing their Corporate Social Responsibility. However, by Ext.P12 the recurring costs for supply of drinking water has also been imposed on them. Though the charges were demanded initially only for a period of two years, the payments are continuing till date. According to the learned counsel, the appellants cannot be compelled to continue the payments indefinitely. The cou....
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....the appellant cannot shirk the responsibility for the pollution that is caused. The learned Single Judge has, for the above reasons, found the impugned action to be justified. There are no grounds to interfere with the same, according to the learned counsel. 13. We have also heard the Government Pleader, who appears for the first respondent. The first respondent has filed an affidavit in this appeal producing Ext. P1, the consent issued by the 2 respondent to the appellant. According to the first respondent, the Government has not granted permission to any of the industries in the Eloor-Edayar industrial area, particularly to the appellant herein, to discharge effluents from their factories into the Periyar river. The industrial department has also not given any such permission. The power to regulate all matters relating to the discharge of solid, liquid and gaseous wastes as well as noise is vested in the 2 respondent. The 2 respondent has issued a consent, Annexure R2(a). According to the learned Government Pleader also, there are no grounds to interfere with the judgment appealed against. 14. Heard. The Monitoring Committee in this case was set up by the Supreme Court as p....
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....ay 2004 that requires water to be supplied to communities affected by industrial wastes, the Committee directs the State of Kerala and the industrial units of Hindustan Coca Cola, Binani Zinc, Kerala Mines and Minerals and Kerala Newsprint to ensure that water supply through pipeline is delivered to the residences of all the affected communities in the vicinities of these units. The present arrangement delivering water in tankers or in a few public locations though public taps is unacceptable. The KPCB is directed to set up four committees under KPCB Regional Officers in these places to create a register of persons affected and to ensure that the above companies install a piped water supply to the residences of all the persons so affected. Action plan for compliance of this direction shall be submitted within two weeks. Action shall be completed within six months." 16. On the basis of the above direction, a Local Area Environment Committee (LAEC for short) was initially set up inter alia, for the purpose of conducting an environment audit, to visit each industrial unit and to ensure that the control measures were properly implemented, to ensure that a proper material balance was....
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....e cognizance or entertain any challenge connected with the implementation of the order passed by this Court on 14 October, 2003." 18. It is clear from the above that, the Monitoring Committee was constituted by the Apex Court with the object of ensuring that there was proper implementation of the terms regulating the handling and disposal of hazardous wastes by industrial units. The Monitoring Committee was constituted with the object of ensuring an effective implementation, having found that the statutory regulatory bodies had not been effective in achieving the said object. The consequence, as noticed by Ext.P2 order, has been an escalation in pollution at various parts of the country. It was taking note of the said alarming situation that the Monitoring Committee was directed to submit quarterly reports to the Apex Court itself, with a direction that no authority in the country shall entertain a challenge against any action of the Monitoring Committee. The Monitoring Committee was therefore not a mere fact finding body constituted by the Apex Court for ascertaining the factual scenario with respect to pollution. On the contrary, it was intended to effectuate and implement the....
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.... safeguard the forests and wildlife of the country. 51-A. (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures." Apart from the constitutional mandate to protect and improve the environment there are plenty of post-independence legislations on the subject but more relevant enactments for our purpose are: the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment (Protection) Act, 1986 (the Environment Act). The Water Act provides for the constitution of the Central Pollution Control Board by the Central Government and the constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. It also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provi....
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....for ensuring proper implementation of the control measures against pollution. The Supreme Court has directed them to function in accordance with the stipulations contained in Ext.P2 order. If any such stipulation has been violated as contended, the remedy of the appellant is to approach the Apex Court with such complaint. We are not satisfied that the action taken pursuant to the direction of the Monitoring Committee could be described as "acting under dictation". 21. A further contention of the appellant is that, the Apex Court in Ext.P2 was only concerned with hazardous wastes coming within the scope of HW Rules. The radioactive wastes generated by the appellant being exempt under the said Rules, do not come within the scope of the authority of the Monitoring Committee. According to the appellant, they have obtained Ext.P1, authorization under the Atomic Energy Act. Therefore, there is no justification for the liability imposed on them by Ext.P12 As already noticed above, Annexure R2(a) is a copy of the consent issued to the appellant by the 2 respondent. A perusal of the said consent shows that apart from radioactive wastes, the appellant was also generating hazardous wastes.....