BRMSCO Garments Private Ltd. v. Kerala State Pollution Control Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944** **WP(C) NO. 31326 OF 2022** **PETITIONER:** **BRMSCO GARMENTS PRIVATE LTD. REPRESENTED BY ITS MANAGING DIRECTOR ANCHALPETTY(PO), ONAKUR VILLLAGE, PAMPAKUDA GRAMA PANCHAYAT, ERNAKULAM -686667. REPRESENTED BY ITS MANAGING DIRECTOR T.K.VIJAYAN.** **BY ADVS. PHILIP J.VETTICKATTU SAJITHA GEORGE NEENU BERNATH** ## **RESPONDENTS:** - **1 THE KERALA STATE POLLUTION CONTROL BOARD PATTOM.P.O, TRIVANDRUM, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM - 695004.** - **2 THE DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, PUZHAKKARAKAVU ROAD, THOTTUMKALPEEDIKA, MUVATTUPUZHA - 686661. PRESENT ADDRESS: PUTHENCRUZ, CHOONDI POLICE STATION, KOCHI-MADURAI-TONDI POINT ROAD, AIKARANAD SOUTH-682308.** - **3 UNION OF INDIA, MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, REPRESENTED BY ITS SECRETARY, INDIRA PARYAVARANBHAVAN, JORBAGH ROAD, NEW DELHI - 110003.** W.P.(C) No.31326/2022 : 2 : **4 ONAKKUR PARISTHITHI SAMRAKSHANA SAMITHY, REG.NO.ER 155/08, ANCHALPETTY.P.O, PAMPAKKUDA, ERNAKULAM, REPRESENTED BY ITS PRESIDENT, ARBAHAM PAUL, S/.O.V.P.POULOSE.** **BY ADVS. SRI.SAHASRANAMAN P.B., FOR R4. SMT.DEEPA NARAYANAN, SR. GOVERNMENT PLEADER SRI.T.NAVEEN , SC FOR R1 SRI.S.MANU, DSGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.31326/2022 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.31326 of 2022 ````````````````````````````````````````````````````````````` _Dated this the 10[th] day of January, 2023_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner is aggrieved by Ext.P11 order of the National Green Tribunal, Southern Zone, Chennai, whereby the petitioner has been restrained from operating the Industrial Unit from 10.00 p.m. to 06.00 a.m. 2. The petitioner is an incorporated Company engaged in the business of manufacturing of Poly Propylene woven Sacks. The petitioner is running the Industrial Unit after obtaining all requisite statutory licences including Consent to Operate from the Kerala State Pollution Control Board. While so, the 4[th] respondent filed O.A. No.262/2020 before the National Green Tribunal alleging that the petitioner’s Unit causes grave sound pollution. W.P.(C) No.31326/2022 : 4 : 3. The petitioner appeared before the Tribunal and filed a detailed reply. The petitioner submitted that the 4[th] respondent is an imposter. The Certificate issued by the Pollution Control Board would show that the sound level in the industrial premises is 62.7 dB(A) which is within the permissible limit. The Pollution Control Board had required the petitioner to take certain additional steps, which were taken. At the instance of the Tribunal, the Board conducted a further inspection and it was found that the Unit is satisfying sound levels prescribed by the Noise Pollution (Regulation and Control) Rules, 2000. However, the Tribunal passed orders restraining the petitioner from operating the Unit from 10.00 p.m. to 06.00 a.m. 4. The counsel for the petitioner argued that the finding of the Tribunal that the O.A. is maintainable is wrong. There was no prayer for restraining the operation of the Industrial Unit during night time. The petitioner was not put to notice about the intention of the Tribunal to impose such restraint. Rule 7 of the Rules provides that a person can file W.P.(C) No.31326/2022 : 5 : a complaint only if noise level exceeds the ambient noise standard by 10 dB(A). The ambient air quality standards for the area is 55 dB and 45 dB during day and night time respectively. The noise level of the petitioner's Unit has not exceeded 65/55 dB. The petitioner’s Industrial Unit is functioning after obtaining all statutory Licences/Permits/Consents. Hence, the order of the Tribunal is illegal and unsustainable, argued the counsel for the petitioner. 5. I have heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent-Kerala State Pollution Control Board, the learned Senior Government Pleader appearing for the 2[nd] respondent, the learned Deputy Solicitor General of India appearing for the 3[rd] respondent-Union of India and the learned counsel appearing for the 4[th] respondent. 6. The fact that the petitioner holds all requisite statutory Licences, Permits and Consents to run the manufacturing industry for production of Poly Propylene, is W.P.(C) No.31326/2022 : 6 : evident. The dispute relates to the sound pollution being generated by the petitioner’s Industrial Unit. 7. The National Green Tribunal noted that the ambient air quality that is permissible is 55 dB(A) in the day time and 45 dB(A) in the night time. In any case, the noise level shall not exceed 10 dB(A) above the ambient noise standards for the area or 75 dB(A) whichever is lower. The Tribunal noted that in _**Farhad K. Wadia v. Union of India and others** [(2009) 2 SCC 422],_ the Hon’ble Apex Court has held that the interference by the Court in respect of noise pollution is premised on the basis that a citizen has certain rights being “necessity of silence”, “necessity of sleep”, “process during sleep” and “rest”, which are biological necessities and essential for health. 8. The Tribunal also referred to the judgments of the Hon’ble Apex Court in _**In Re: Ramlila Maidan Incident** [(2012) 5 SCC 1],_ _**In Re: Noise Pollution** [(2005) 5 SCC 733],_ _**In Re: Noise Pollution** [(2005) 8 SCC 796] and_ _**Church of God (Full Gospel) in India v. KKR Majestic**_ W.P.(C) No.31326/2022 : 7 : _**Colony Welfare Association** [(2000) 7 SCC 282]_ and held that there is need for regulating sound pollution which is likely to have great health impact. 9. The Tribunal found that on the basis of the directions of the Tribunal, the State Pollution Control Board had conducted the noise level test and submitted a report, wherein it was noted that the sound level was above 70 dB(A). In the subsequent report of the Pollution Control Board dated 18.06.2021, the Board found that the sound level is within the permissible limits. The Board had suggested limiting the working hours. The Tribunal categorically found that there is necessity for providing restriction of operation of the Unit during night hours. It was under the afore circumstances that the Tribunal restrained the petitioner from operating the Unit during night hours. 10. The prayer of the 4[th] respondent in the OA filed by them included a prayer for orders to stop the generation of noise. Therefore, I do not find any error in the order of the Tribunal restricting night time operation of the petitioner’s W.P.(C) No.31326/2022 : 8 : Industrial Unit. I also find that the Tribunal has rightly found for reasons recorded in the order, that the 4[th] respondent can maintain the Original Application before the Tribunal. Under the circumstances, I find that the writ petition is without any merit and consequently, the writ petition is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/06.01.2023 W.P.(C) No.31326/2022 : 9 : ## **APPENDIX OF WP(C) 31326/2022** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF CONSENT TO OPERATE RENEWED FOR THE CURRENT PERIOD DATED 21/09/2018 RENEWED UPTO 30/06/2003 EXHIBIT P2 TRUE COPY OF THE LICENSE ISSUED BY THE PANCHAYAT DATED 01/04/2022 WHICH IS VALID UPTO 31/03/2027 EXHIBIT P3 TRUE COPY OF EXPLOSIVE LICENSE ISSUED BY THE FACTORIES AND BOILERS DEPARTMENT DATED 7/12/2020 WHICH IS VALID UPTO 31/12/2025 EXHIBIT P4 TRUE COPY OF THE NOC ISSUED BY THE FIRE AND RESCUE DEPARTMENT DATED 20/05/2022 AND VALID FOR ONE YEAR EXHIBIT P5 TRUE COPY OF THE UDYAM REGISTRATION CERTIFICATE ISSUED BY THE GOVERNMENT EXHIBIT P6 TRUE COPY OF ISO CERTIFICATE ISSUED TO THE PETITIONER DATED 21/08/2018 EXHIBIT P6(A) TRUE COPY OF RELEVANT PAGES OF REGISTER SHOWING REMITTANCE OF EMPLOYEES CONTRIBUTION EXHIBIT P7 TRUE COPY OF ORIGINAL APPLICATION NO.262/2020. EXHIBIT P8 TRUE COPY OF DIRECTIONS ISSUED BY THE POLLUTION CONTROL BOARD DT.25/01/2021. EXHIBIT P9 TRUE COPY OF COMPLIANCE REPORT SUBMITTED BY THE PETITIONER BEFORE THE PCB DT.12/04/2021. EXHIBIT P9(A) TRUE COPY OF ADDITIONAL COMPLIANCE REPORT OF THE PETITIONER DT.12/04/2021. EXHIBIT P10 TRUE COPY OF REPORT FILED BY THE POLLUTION CONTROL BOARD BEFORE THE TRIBUNAL. EXHIBIT P11 TRUE COPY OF JUDGMENT PASSED BY THE TRIBUNAL, TRIBUNAL IN O.A.262/2020 DT.26/09/2022.** W.P.(C) No.31326/2022 : 10 : |**EXHIBIT P12**|**TRUE COPY OF THE RELEVANT PAGES OF**| |---|---| ||**WORK ORDER ISSUED BY THE MILMA**| ||**DT.29/10/2021**| |**EXHIBIT P12(A)**|**TRUE COPY OF THE RELEVANT PAGES OF**| ||**ANOTHER WORK ORDER ISSUED BY THE MILMA**| ||**DT.29/10/2021**| |**EXHIBIT P13**|**TRUE COPY OF THE RELEVANT PAGES OF**| ||**WORK ORDER ISSUED BY THE KERALA FEEDS**| ||**LTD.DT.19/10/2021.**|