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2022 Supreme(Ker) 500
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.NAGARESH, J.
M/s.Vodafone Idea Ltd. – Appellant
Versus
Kerala State Pollution Control Board – Appellant
WP(C) No. 17676 of 2022
Decided on : 11-08-2022
Advocate Appeared:
For the Appellant : P.SATHISAN, DONA AUGUSTINE
For the Respondent: SRI. T.NAVEEN SC, SRI.M. JAYAKRISHNAN VAZHOOR, adv
Point of Law: Section 18 does not contemplate that State Board can function only if there is a direction issued by the Central Government or State Government or Central Board.
Headnote:
Constitution of India, 1950 - Article 47 - Indian Telegraph Act - Section 19B - Environment (Protection) Act, 1986 - Section 5 - Air (Prevention and Control of Pollution) Act, 1981 – Sections 2(k), 17(1), 31(A) and 21 - Air pollution - Licensed Telecom Service Provider - Restrictive orders - Seeking direction to respondents not to implement any restrictive orders on operation of DG (Diesel Generator) sets without specific direction in writing from Central Government in that regard and to pass restrictive orders with implementable concentration mandates alone with respect to air pollutant emissions - Air pollution challenge in India is multi-sectoral and multi-jurisdictional. Union and States and Central and State Pollution Control Boards are taking on challenge in all possible ways. Improvement of Public Health is a Directive to the State under Article 47 of Constitution. Order therefore is intended to achieve a laudable objective. It does not violate any of the fundamental or statutory rights of petitioner. (Para 30)
Findings of the Court: Court finds that there is no ambiguity in the percentage of emission sought to be controlled as per order. The figure 30% indicated in order is the targeted national level timeline reduction of air pollution. To achieve this National target, the industries and establishments like the petitioner are required to retrofit DG sets with Emission Control Devices/Equipments having a minimum specified Particulate Matter capturing efficiency of at least 70%. There is no ambiguity or uncertainty in order in that regard - Air Pollution is a silent killer. The air pollution levels in India are considered as high. Exposure to Particulate Matter 2.5 can cause deadly illnesses like lung cancer, stroke and heart diseases. The health impacts of pollution have a cost on the Nation’s economy also. Sectors such as Agriculture, Industry, Power, households and Transport, all contribute to Particulate Matter emission.
Result: writ petition dismissed
JUDGMENT :
The petitioner, who is a licensed Telecom Service Provider, is before this Court seeking to direct the respondents not to implement any restrictive orders on the operation of DG (Diesel Generator) sets without specific direction in writing from Central Government in that regard and to pass restrictive orders with implementable concentration mandates alone with respect to air pollutant emissions.
2. The petitioner is a licensed Telecom Service Provider and a Telecom Authority as per Section 19B of the Indian Telegraph Act. Their Telecom Service is rendered through Telecom Towers using technically hybrid Switching Centres across the State. Energy to switching Centres is provided by the Kerala State Electricity Board (KSEB). The Centers are provided with Battery backups with substantial storage capacity.
3. To avoid any service break in case of failure of KSEB power supply and exhausting of battery backup, the petitioner has deployed hybrid and high quality DG sets. The DG sets used by the petitioner are below par emission levels. The quality specifications and standards of these DG sets are certified by manufacturers themselves.
4. The petitioner states that the State Pollution Control Board can function and exercise its powers based on the directions issued by the Central Government alone. The restrictions on the use of certain industrial plants are specified in Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. As per Section 2(k) of the Act, industrial plant means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere. Air pollutant is 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. Restrictions on the use of industrial plants and air pollutants essentially necessitate the measurement of the concentration of air pollutants.
5. The petitioner states that the Telecom Tower and the switching centres of the petitioner cannot be treated as “plant”. Even if those are treated as plants, the essential requirement with respect to the restriction on the use of industrial plants is with respect to the concentration of emission of air pollutants. Therefore, the rudimentary requirement is the fixation of concentration of emission, contends the petitioner.
6. The 1st respondent-Kerala State Pollution Control Board issued Ext.P5 order dated 09.12.2020 mandating deduction of emission by 30% of DG sets above 500 KVA. The order does not specify any specific unit with respect to the concentration and the level to which emission concentration needs to be contained. Ext.P5 order is issued without application of mind.
7. The petitioner states that Ext.P5 order has been issued as per Section 17(1) and Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981 read with Section 5 of the Environment (Protection) Act, 1986. A reading of the said provisions would show that direction from the Central Government is an essential prerequisite for issuance of any directions like those contained in Ext.P5. Ext.P5 does not refer to any direction from the Central Government or Central Pollution Control Board.
8. The petitioner was issued with Consent to Operate after finding that the emission standards of the DG sets are impeccably within the prescribed limits. The petitioner has made huge investments in purchase and installation of these DG sets. The DG sets of the petitioner are of high-quality with least emission. Prescribing a uniform level for emission without any reference to the capacity, vintage and manufacturing qualities of the DG sets create imbroglios and implementation of the order has become impossibility.
9. The learned counsel for the petitioner argued that Ext.P5 order has been made applicable only to DG sets above 500 KVA. There is no intelligible nexus in confining the applicability of pollu
