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TMI Blog2004 (12) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Application No. 14813 and 14819 of 2004 and P.M. Thakkar, Ravindra Shah, Kanan R. Shah and Arunkumar Varma, Advs. for Respondent No. 5 in Special Civil Application No. 14813 of 2004 and S.N. Shelat, Adv. General and Ahsish Desai, AGP for Respondents Nos. 1 and 2 P.M. Thakkar, Ravindra Shah and Arun Kumar Varma, Advs. for Respondent No. 7 in Special Civil Application No. 14819 of 2004 JUDGMENT K.A. Puj, J. 1. Since common issues are involved in all these three Special Civil Applications and since the prayers made therein are almost same and similar, all the three Special Civil Applications are being disposed of by this common judgment and order. 2. At the joint request of the parties, all the three matters are finally heard at length at the admission stage and they are being finally disposed of. 3. All the three petitions are filed by way of Public Interest Litigations under Article 226 of the Constitution of India. The first petition, being Special Civil Application No. 14460 of 2004, is argued at length by all the learned counsels appearing for the respective parties. The learned counsel appearing for the petitioners in Special Civil Applications No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 2,50,000 TPA for the manufacture of Ductile Iron Spun Pipes/Cast Iron Spun Pipes, LASW steel pipes, Spiral steel pipes, ERW steel pipes and Hot frame steel pipes including Ductile Iron Pipe Fittings and Ductile Iron Casting and further observing that the Ministry of Environment and Forests accorded environmental clearance to the said project under the provisions of EIA Notification dated 27th January, 1994 as amended subsequently, subject to strict compliance of specific and general conditions laid down therein. 5. It is this action of the respondent No. 1 which is challenged in the present petitions. 6. The petitioners have, inter alia, prayed, in these petitions, for a declaration to the effect that the ex post facto approval dated 21st October, 2004 is null and void and that the respondent No. 5's project comprising of Blast Furnace and the pipe manufacturing facilities is an integrated project and that the DI/CI spun pipe manufacturing facilities forming part of the respondent No. 5's project is a foundry. The petitioners have also prayed for a writ in the nature of mandamus to the respondent No. 5 to demolish/destroy the existing buildings/factory/plant at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Electro Steel Casting Limited (ESCL). The petition is nothing but the result of business rivalry and has been sponsored by the said company. In support of this contention, Mr. Vakil has submitted that the said ESCL is the largest manufacturer of Cast Iron/Ductile Iron pipe in the country and has been able to create and maintain its monopoly in the said field by adopting all kinds of measures. He has further submitted that one Shri Shanti Swaroop, who has been joined as Consultant to the petitioner No. 2 - NGO, was working as Advisor on retainership basis since the year 1997 with the said company and he operated from the office of the said company at New Delhi. Mr. Vakil has further submitted that the petitioner No. 1 who has signed the present petition in his capacity as Project Director of the petitioner No. 2 NGO has been shown as a resident of the same address as that of Shri Shanti Swaroop in the present petition. He has further submitted that the petitioner No. 1 was Advisor/Consultant of the said company between the period November-December, 2003 to March-April, 2004 and was looking after marketing activities of the said company in the States of Madhya Pradesh and Chhattisga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf as well as the minute book that the petitioner No. 1 was appointed by the Governing Body of the petitioner No. 2 for filing the present petition. Mr. Kapur has further submitted that there is no iota of evidence to show that the present petition was filed at the instance or behest of ESCL, as alleged by the respondent No. 5. He has denied any relationship of office bearers or the Board of Trustees of the petitioner No. 1 with the personnel of ESCL and even if there is such relationship, it has no bearing so far as the present petition is concerned. With regard to alternative remedy, Mr. Kapur has submitted that the authority is not yet properly constituted as the post of Chairman is still vacant. The appellate authority has no power to grant interim relief and even otherwise, the alternative remedy is not a matter of compulsion. He has further submitted that despite there being an alternative remedy, the Court has ample power to entertain the petition where there is violation of fundamental right or there is violation of principles of natural justice or there is total lack of jurisdiction in the authority who passes such order which is under challenge. He has, therefore, submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 5 is intending to use an induction furnace for melting pig iron and steel as well as for holding superheating liquid metal, the respondent No. 5 has not applied for the environmental clearance for using such induction furnace, being a foundry. He has submitted that as far as Entry No. 32 of Schedule-I of Environment (Protection) Rules, 1986 is concerned, the standards for emission or discharge of environmental pollutants in respect of foundries were specified. He has further submitted that all establishments using any of the three furnaces namely, Cupola, arc or induction, for melting pig iron and steel as well as holding and superheating the metals are foundries per se. Mr. Kapur has further submitted that the Ductile Iron and Cast Iron pipe produced by centrifugal casting processes and other casting processes such as sand, mould etc. are typical foundry products and are finished as per the end use requirement. He has further submitted that the respondent No. 5 uses induction furnace for melting pig iron and steel scrap which, in turn, is used in centrifugal casting process. The centrifugal casting process is one of the methods of casting and is a foundry process. Mr. Kapu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aboratory) stating that a unit with induction furnace with centrifugally cast pipes cannot be taken as a foundry unit, is not the correct one. In support of his submissions, Mr. Kapur has relied on the opinion of Mr. S.P. Oudhia as well as on the relevant extract from Metallusters Reference and Guide compiled and edited by Ezra L. Kotzim. He has also relied on the opinion of Professor A.K. Chakrabarti stating that the projection of centrifugally cast iron ductile iron pipes, cast and ductile iron fittings and castings are all described as a foundry activity and the plants are called foundry works. He has, therefore, submitted that the respondent No. 1 should have given due weightage to the expert's opinion produced before him by the petitioners alongwith their representation. Mr. Kapur has submitted that despite enough material being available with the respondent No. 1, he has not correctly decided the jurisdictional fact. In this connection, he relied on the decision of the Hon'ble Supreme Court in the case of RAZA TEXTILES Ltd. v. INCOME TAX OFFICER reported in (1973) 1 SCC 633 , wherein the Hon'ble Supreme Court has held that no authority, much less a quasi-judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament enacted the anti-pollution laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and Notification issued thereunder contained provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will, in turn, lead to a lawless society. Violation of anti-pollution laws not only degrades quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations. 14. Mr. Kapur has further submitted that despite the specific request having been made by the petitioners in their representation to grant personal hearing, the respondent No. 1 has rejected the represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kapur has strongly urged that the reliefs prayed for in this petition are required to be granted and the petitions be allowed accordingly. 16. Mr. A.K. Clerk, the learned advocate appearing as an intervener as well as for the petitioner in Special Civil Application No. 14813 of 2004 has, more or less, adopted the arguments of Mr. Kapur. In addition to that, Mr. Clerk has submitted that the Respondent No. 5 has submitted two EIA Reports i.e. January Report and May Report. There are lot of deviations in these two Reports. No public hearing was given in respect of May Report and clearance for Blast Furnace was based on May Report. He has, therefore, submitted that the order dated 21st October, 2004 is illegal, without jurisdiction and, therefore, deserves to be vitiated. 17. Mr. Amit Panchal, the learned advocate appearing as an intervener as well as for the petitioner in Special Civil Application No. 14819 of 2004 has filed brief submissions in writing which are almost on the line of arguments made by Mr. Kapur. While objecting to the ex post facto clearance for blast furnace, Mr. Panchal has relied on the decision of the Hon'ble Supreme Court in the case of M.C. MEHTA v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and restriction and location of the industry and carrying on of processes and operation in different areas. Rule 3 provides for standards for emission or discharge of environment pollutants from various operations or processes as would be specified in Schedule-I to IV. Rule 5(1) provides that the Central Government may take into consideration factors enumerated therein while prohibiting or restricting of the industry and carrying on all processes and operations in different areas. 19. Mr. Vakil has further submitted that it is for the first time, by virtue of the Notification dated 27th January, 1994, as amended from time to time, issued under Sections 3(1) and 3(2)(V) of the Act and Rule 5(3)(d) of the Rules, the Central Government directed that from the date of publication of the said Notification in the Official Gazette expansion or modernization of any activity or new project listed in Schedule-I of the Notification shall not be undertaken in any part of India unless it has been accorded environmental clearance by the Central Government. Mr. Vakil has submitted that so far as the new project is concerned, prohibition was against undertaking the project, meaning thereby, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission. He has further submitted that the permission cannot cure illegality but lack of permission can certainly be cured by grant of such permission. Mr. Vakil has, therefore, submitted that the Respondent No. 5 has not carried out any construction in violation of the Notification and the Respondent No. 5 has not commenced carrying on any processes or operation in its project before obtaining environmental clearance certificate. The environmental clearance certificate granted by the Central Government cannot , therefore, be considered as ex post facto clearance and no prayer for demolition of the construction can be entertained. 22. Mr. Vakil has further submitted that the Respondent No. 5's project falls within the ambit of Entry No. 13(a) of the Schedule-I of the Notification dated 27th January, 1994, which refers to primary metallurgical industry such as production of iron and steel, aluminium, copper, zinc, lead and furnace alloys. It does not fall in Entry No. 28 thereof, which refers to Foundries (Individual) , as alleged by the petitioners. He has further submitted that blast furnace project is covered by Entry No. 13(a). Entry No. 28 lists Foundries (Individual) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lectric meter it produced magnetic field, which allows current of a suitable weightage and frequency to be supplied to the coil of the furnace. The magnetic field so created is used for melting or heating the metal. In this process, there is no emission of pollutants. 23. Mr. Vakil has further submitted that there are in all 86 entries in Schedule-I of the Rules. All the items mentioned in these entries do not require EIA clearance. Entry No. 32 of Schedule-I refers to Foundries in general, which includes cupola, Arc furnaces and induction furnaces. It merely prescribes the standard and emission. In Schedule-I of the Notification dated 27th January, 1994, there are 30 entries only and clearance is required only in respect of those items which are mentioned therein. Foundries (Individual) covered by Entry No. 28 of Schedule-I of the Notification are not same as Foundries covered by Entry No. 32 of Schedule-I of the Rules, as otherwise, there is no need to separately mention Arc furnace in Entry No. 13(b) of Schedule-I of the Notification. Mr. Vakil has further submitted that it is not possible to ignore the word individual or assign any other meaning to it as attempted by Mr. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances of each case. Mr. Vakil has further relied on the decision of the Hon'ble Supreme Court in the case of POSTGRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH and Anr. v. A.P. WASAN and Ors. reported in (2003) 5 SCC 321 , wherein the grievance of Respondent No. 1 (employee) in his writ petition before the High Court was against the appellant Institute and its alleged policy of promotion of Technologist Grade II sectionwise instead of cadrewise. It was for the appellant Institute to have justified its action. Justification would serve to protect the interests of other employees if it were legally sustainable. If it is not legally sustainable, it must be negated and not hearing employees who may be affected as a result of rejection of the justification, would not vitiate such negation. 25. As far as reasons are concerned, Mr. Vakil has submitted that from the internal notings produced by the petitioners without disclosing the source, it is obvious that reasons are recorded on the file. Order of this court talks about the communication of decision and not the reasons on which decision was based. He has, therefore, submitted that there is no violation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... melting furnaces commonly used in foundries are electric-arc, induction, crucible and cupolas. Induction furnaces are especially useful in smaller foundries and produce composition controlled smaller melts. There are two basic types. The coreless induction furnace consists of a crucible completely surrounded with a water-cooled copper coil through which high frequency current passes. Because there is a strong electromagnetic stirring action during induction heating, this type of furnace has excellent mixing characteristics for alloying and adding new charge of metal. The other type is called a core or channel furnace which uses low frequency (as low as 60 Hz) and has a coil that surrounds only a small portion of the unit. It is commonly used in non-ferrous foundries and is particularly suitable for superheating (heating above normal casting temperature to improve fluidity), holding (keeping the molten metal at a constant temperature for a period of time, thus making it suitable for die-casting applications), and duplexing (using two furnaces, such as melting the metal in one furnace and transferring to another). Mr. Shelat has, therefore, submitted that such an induction furnace ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be dismissed with exemplary costs. 31. Mr. Jitendra Malkan, the learned Senior Standing Counsel appearing for Respondent No. 1 - Union of India, submitted that the petitioners have got an alternative efficacious remedy by way of filing an appeal before the National Appellate Authority. He has further submitted that though the Chairman's post is still vacant, Vice-chairman is already appointed who is competent to deal with the grievance raised by the petitioners in these petitions. Mr. Malkan has further submitted that the Respondent No. 1 has considered the proposal of Respondent No. 5 on merits and in accordance with the Procedure laid down in EIA Notification dated 27th January, 1994. Mr. Malkan has denied that the Ministry of Environment Forests has granted ex post facto environmental clearance as alleged by the petitioners. Mr. Malkan has further submitted that even if any default is committed by the Respondent No. 5, the State Government has already taken action against it by invoking powers Under Section 19 of the Environment (Protection) Act, 1986. Mr. Malkan has further submitted that once the public hearing is over under the prescribed procedure, thee is no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarge of environmental pollutants specified for the foundries indicate the particulate matter limits from the induction furnace which is used as a melting unit in the foundry. Mr. Malkan has further submitted that with regard to manufacturing of DI and CI pipes by centrifugal spinning process, the Respondent No. 1 has obtained opinion of an expert from National Metallurgical Laboratory that a unit with induction furnace with centrifugal cast pipes cannot be taken as foundry unit, since there is no moulding line in the centrifugal cast. Mr. Malkan has further submitted that as per the expert opinion from NML, NOC granted by GPCB on 5th January, 2004 for the items i.e. ductile iron fittings and ductile iron castings have to be made in foundries only. Thus, while according environmental clearance to Respondent No. 5 for Blast Furnace, the above aspect has been taken care of by stipulating a specific condition that the said two items will not be manufactured by the Respondent No. 5 without obtaining environmental clearance. Mr. Malkan has further submitted that the GPCB has been advised by the Respondent No. 1 vide its letter dated 21st October, 2004, not to grant consent to operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness rivalry between the said ESCL and the Respondent No. 5 and since the said ESCL is in the habit of sponsoring such petitions, we do not concur with the view of the present petitioners that there is a real and genuine public interest involved in the litigation. It is difficult to believe that they have approached this court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration, as observed by the Hon'ble Supreme Court in that case. 37. There is one more reason to arrive at this conclusion. The petitioners in the first petition have produced certain official notings from the Government files alongwith the petition, without disclosing their source of possession. The petitioners are not supposed to have any access to these official notings as they are not public documents. Despite the petitioners being in possession of these official notings, they have prayed for in the petition that appropriate writ, order or direction be issued for the production of all relevant records pertaining to the impugned order. On our direction to the Respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onment Forests has mainly relied on the opinion of three members' committee consisting of Dr. K.K. Mishra, Emeritus Scientist, National Meteorological Laboratory, Jamshedpur, Dr. Sen Gupta, Member-Secretary, Central Pollution Control Board, Delhi and Mr. Y.V. Jhala, Director, Wild Life Institute of India, Dehradun. According to Dr. Mishra's opinion, in the manufacture of spun pipe, the liquid metal is poured into revolving water cooled steel moulds and is not a typical foundry operation in strict sense. A parallel can be drawn from the ingot casting by teeming steel into cast iron ingot moulds. There is no moulding line in the centrifugal castings. A very minor core is to be put at the ends to form the socket ends. He was also of the view that the spun pipe plants are usually referred separately from the foundries as such. After giving certain examples, he expressed an opinion that a unit with induction furnace with centrifugally cast pipes cannot be taken as a foundry unit. However, Ductile Iron Castings and Ductile Iron Pipe Fittings have to be made in the foundry only. Based on this opinion, and since the Respondent No. 5, vide its communication dated 8th October, 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is settled position in law that judicial review of decision-making process and not the decision, is permissible. We cannot sit in appeal over the decision of competent authorities. While taking decision of granting clearance to Blast Furnace, the Respondent No. 1 has incorporated several conditions and safeguards and subject to them, the clearance was ordered to be operated. In condition No.(vii) of Specific Conditions, it is made clear that the company shall not take up any foundry activity relating to manufacturing of Ductile Iron Pipe Fittings and Ductile Iron Casting as mentioned at Items No. 3 and 4 of NOC granted by the GPCB vide their letter dated 5th January, 2004 without prior environmental clearance. This is an indicative of the fact that MOEF believed that foundry work was not to be done by virtue of exclusion of these two items 3 and 4. However, the induction furnace which is one of the types of foundries under Rule 32 of the said Rules was to be used under the project for manufacture of all the four items i.e. D.I. Spun Pipes, D.I. Cast Pipes, D.I. Fittings and D.I. Castings. There is therefore, no logic or rational basis in not incorporating the items of Ductile Iro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CATION AND RESEARCH SOCIETY v. UNION OF INDIA (supra). 43. It is further to be noted that Dr. Y.V. Jhala, Director of Wild Life Institute of India, has opined, keeping in mind the ecology of the area, that the site location is over 15 km distance from any protected area. The area is within the range of several endangered species and some endemic species. However, none of these species are restricted to this region of Mundra, Kutch. The Project located in area earmarked for development is not likely to be detrimental to the populations of these species. Over and above this, the Respondent No. 1 has also found that seismicity aspect of the project has been looked into by the Expert Committee (Industry). MECON has given a certificate that civil and structural design work has been carried out as per IS:1893-2002 and that the blast furnace will withstand the earthquake. The Respondent No. 5 has submitted Disaster Management Plan in the contingency of the earthquake in the region. Therefore, the Respondent No. 1 was of the view that there was no need to appoint NEERI or any other agency to examine the seismicity aspect. 44. With this, the only issue which remains to be dealt with i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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