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2020 Supreme(Ker) 1036
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. Manikumar, S.P. Chaly, JJ.
Thrissur Corporation - Appellants
Vs.
Kerala State Pollution Control Board and Ors. - Respondent
W.A. No. 2572 of 2019
Decided On : 09-06-2020
For the Appellant : Santhosh P. Poduval, Adv.
For the Respondents: T. Naveen, SC and Aravinda Kumar Babu, Sr. GP
The court emphasized the importance of providing an opportunity for the appellant to be heard before imposing compensation, highlighting the principles of natural justice and fairness in administrative proceedings.
Headnote:
Environment Protection Act - Pollution Control Board's Direction - Section 5 of Environment Protection Act, 1986 - Rule 22 of Solid Waste Management Rules, 2016 - National Green Tribunal's Clarifications - [FACT OF THE CASE] The appellant, Thrissur Corporation, challenged the direction issued by the Pollution Control Board imposing compensation for non-compliance with Solid Waste Management Rules, 2016, based on National Green Tribunal's clarifications. [FINDING OF THE COURT] The court found that the Pollution Control Board's order was passed without providing an opportunity of hearing to the appellant, violating the principles of natural justice. [ISSUES] The key issues were the authority of the Pollution Control Board to impose compensation and the lack of opportunity for the appellant to contest the proceedings. [RATIO DECIDENDI] The court held that the Pollution Control Board's order was arbitrary and unfair due to the lack of opportunity for the appellant to be heard. [FINAL DECISION] The court set aside the Pollution Control Board's order and directed the Chairman to provide the appellant an opportunity to be heard.
JUDGMENT :
S. Manikumar, C.J.
1. Instant writ appeal is filed against judgment dated 26.11.2019 passed in W.P.(C) No. 30789 of 2019, by which, writ court closed the writ petition without granting any relief sought for by Thrissur Corporation, represented by its Secretary, writ petitioner/appellant, but leaving liberty to the Corporation to approach National Green Tribunal appropriately, either by filing a statutory appeal or by impleading themselves in the original application or by doing both.
2. Short facts leading to the appeal are as under:
The Chairman, Kerala State Pollution Control Board, Thiruvananthapuram, (respondent No. 2) has issued a direction under Section 5 of the Environment (Protection) Act, 1986 dated 21.10.2019 (Exhibit-P1) imposing compensation of Rs. 4,56,60,000/- to Thrissur Corporation (appellant) for the period 22.11.2018 to 31.07.2019, for non-compliance of Rule 22 of the Solid Waste Management Rules, 2016. In Exhibit-P1, the 2nd respondent has referred to various orders passed by the National Green Tribunal, New Delhi, clarifying that apart from prosecution, statutory authorities under the Environmental (Protection) Act in exercise of their incidental powers shall collect prescribed scale of compensation from the polluters on the "polluter pay's principle". It was also noted that National Green Tribunal in the order dated 22.11.2018 in O.A. No. 353 of 2016 has observed that statutory authorities are entitled to assess and recover damages by applying polluter pay's principle in exercise of incidental powers to protect environment.
3. Appellant has contended that the Environmental (Protection) Act, 1986 or Solid Waste Management Rules, 2006 do not provide assessing or imposing compensation upon local authorities for the delay in providing facilities and in carrying out the activities prescribed in the rules. Appellant has further contended that a clarification made by the National Green Tribunal shall not clothe the Pollution Control Board with any power which is not otherwise provided under the Act. Challenging the authority of Kerala State Pollution Control Board, i.e. 2nd respondent, to issue such a direction (Exhibit-P1) on the basis of certain clarifications made by the National Green Tribunal, instant writ petition has been filed seeking for issuance of a writ of certiorari or other appropriate writ order or direction, quashing Exhibit-P1 order dated 21.10.2019 issued by the Kerala State Pollution Control Board, respondent No. 2.
4. After considering the rival contentions, writ court by the impugned judgment, closed the writ petition by observing thus:
"Resultantly, I close this Writ Petition without granting any of the reliefs sought for, but leaving liberty to the petitioner to approach the NGT appropriately, either by filing a statutory appeal or by impleading themselves in the Original Application or by doing both.
Needless to say, until such time as the statutory period for filing an appeal, as fixed under Section 16 of the NGT Act expires, the interim order granted by this Court will continue to be in operation; and consequentially, all further action being pursued by the Pollution Control Board, based on Ext. P1, shall stand interdicted, so as to enable the Corporation to approach the NGT without the threat of imminent action."
5. Being aggrieved, instant writ appeal has been filed contending that,- the judgment passed by the writ court refusing to entertain the writ petition relegating the petitioner to seek alternate remedy of appeal without considering the specific pleadings to the effect that such an appeal is not efficacious, is improper. According to the appellant, Exhibit P1 direction has been issued specifically in compliance with the direction issued by National Green Tribunal; that there is reference in Exhibit P1 direction to certain findings of the Tribunal, to the effect that
