Dismissed

Kasim Alayan v. the Water/Air Appellate Authority

NGT8 Jan 2025Appeal No. 35/2024

Case brief

AI extract

What is this about?

Appeal against withdrawal of 'Consent to Operate' for a saw mill due to alleged increase in power capacity and failure to maintain siting criteria. NGT directed the PCB to re-inspect and issue consent if compliant, allowing operation while imposing liability for the power increase violation.

What did the court decide?

Issue CONSENT TO OPERATE after re-inspection within 6 weeks; PCB may impose damages for unauthorized power increase.

Kasim Alayan vs the Water/Air Appellate Authority — Environment and Pollution | NGT (2025)

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BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI

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Wednesday the 8th day of January, 2025.

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Appeal No. 35 of 2024(SZ) &

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Appeal No. 36 of 2024(SZ)
(Through Video Conference)

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IN THE MATTER OF

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Kasim Alayan,
S/o Hamsa, Alayan,
House, Kootukulam,
Alanallur P.O,
Palakkad- 678601
...Appellant(s)
Versus
1. Kerala State Pollution Control Board,
Pattom, Thiruvananthapuram- 695 004.
2. The Environmental Engineer,
Kerala Pollution Control Board,
District Office, Palakkad- 678 001.
3. The Secretary,
Alanallur Grama Panchayat,
Alanallur P.O. Palakkad- 678601.
4. Abdul Rasheed Alayan,
S/o Hamsa, Alayan House,
Alanallur, P.O. Palakkad- 678 601.
...Respondent(s)
(In both cases)
For Appellant(s): M/s. G. Anandakrishnan, S. Haroon AL
Rasheed & A. Umapathy.
For Respondent(s): Mrs. V.K. Rema Smrithi for R1 & R2.
Mr. V.R. Rekesh for R4.
Judgment Reserved on: 17 th December, 2024.

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CORAM :

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HON’BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER HON’BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER

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JUDGMENT

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Delivered by Smt. Justice Pushpa Sathyanarayana , Judicial Member

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The appeals are directed against the common judgment of the Water/Air Appellate Authority, Thiruvananthapuram dated 01.07.2023 passed in Appeal Nos. 21 and 22 of 2022.

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The issue involves operation of the saw mill owned by the appellant. The said saw mill is situated in S.F. No. 112/2 of Alanallur Village. The appellant has taken it on lease from his father for 15 years and after partition the property fell to the share of the appellant. The unit is having an area of 231.681 sq.m. The appellant also has obtained D&O license from Alanallur Grama Panchayat and started a unit in the year 1995. The license of the saw mill from Divisional Forest Officer was obtained on 23.11.2021 which is valid till 16.11.2026. Permission from the KSEB to operate 36 HP is also available. The Pollution Control Board has granted ‘Consent to Operate’ on 01.11.2015.

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While so the 4th respondent, who is none other than the brother of the appellant gave a complaint before the 3rd respondent alleging violation and pollution in the operation of the saw mill. A notice was issued to the appellant on 14.09.2022 directing the appellant to shift the machinery to a distance of 25m away from the house of the 4th respondent and to stop the functioning of the saw mill till the replacement of the machinery.

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The 2nd respondent also issued a show cause notice on 13.10.2022 for which a reply was given by the appellant. Without giving an opportunity of personal hearing even though the appellant had asked for one, the impugned order was passed withdrawing the ‘Consent to Operate’ granted. The case of the appellant is that the unit was started in the year 1995 and had been peacefully operating the unit with all the necessary approvals and license in place. The 4th respondent, who is the brother of the appellant, constructed a house in the year 2008 adjacent to the property and started complaining about the functioning of the unit which was causing pollution. Based on the complaint, the consent granted by the Pollution Control Board was withdrawn.

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The Pollution Control Board has filed its reply stating that the appellant had obtained the ‘Consent to Operate’ the saw mill on 18.09.2015. The Pollution Control Board has specifically stated that the saw mill being an old unit before the guidelines were issued, the siting criteria is not applicable to them. However, when the total power required in the unit was 21 HP, the appellant had operated with 36 HP without getting the consent from the Board. Therefore, it is complained by the 4th respondent that the unit had expanded and installed new machinery near to his house and the expansion of the machinery was without permission from the Board. Hence, the ‘Consent to Operate’ was withdrawn. The 4th respondent complained that the appellant had violated the condition by enhancing the capacity of the machinery to 36 HP and is operating close to his residence. Based on his complaint the consent was withdrawn.

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An Appeal was preferred by the appellant under the Air (Prevention and Control of Pollution) 1981 and the Water (Prevention and Control of Pollution) Act, 1974 and a common Judgment was passed by the Water/Air Appellate Authority, Thiruvananthapuram recording the statement that the Pollution Control Board has no objection for continuing the operation of the unit after shifting it to a place at his land in conformity with the legal norms. Aggrieved by the said order, the above appeals are filed.

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The appellant had filed original lease deed dated 14.05.1998 executed by his father in his favour in respect to the land on which the saw mill was constructed. The Alanallur Gram Panchayat has issued a license in favour of the appellant for installing 36 HP Electric Motor for the purpose of running a saw mill on 04.05.2000. After filing of the appeals, a report was filed by the Pollution Control Board stating that the appellant had applied for ‘Consent to Operate’ the saw mill on 18.09.2015 with showing total power required for the unit is 21 HP. Being an old unit, the siting criteria for saw mill was not made applicable and the house of the complainant, namely, the 4th respondent was shown as 34 m from the centre of the building. Therefore, ‘Consent to Operate’ dated 01.11.2015 was issued to the appellant which was renewed on 17.12.2021 and is valid upto 31.08.2026. While so, the Secretary of Alanallur Panchayat had forwarded a complaint against the saw mill on 26.07.2022. Based on the complaint, the saw mill was inspected on 11.08.2022. The allegation was that the unit had expanded and installed new machinery which has increased pollution. During the inspection, it was found that the distance from boundary and from the complainant house shown as site plan

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attached with the consent application was different from the actual distance available. Therefore, the Pollution Control Board had inferred that the unit had expanded its business without prior permission of the Board. The enclosure was also found to be inadequate. Hence, the show cause notice was issued on 19.08.2022 for withdrawal of the consent. A reply was given by the appellant on 05.09.2022 wherein it was admitted that the unit was operating with 36 HP from 2000-2001 and that he has not made any expansion.

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It was also found that the appellant had stated that band saw was installed in 2017 after obtaining the consent in 2015. Therefore, it was clear that at the time of granting the consent in 2015, the appellant had installed a Re-saw-16 HP, Planer-5HP, Total 21 HP only. Hence, it was found that the expansion of the machinery happened without permission of the Board. A show cause notice was issued to the appellant on 13.10.2022 to withdraw the consent for violation.

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However, in the reply, the appellant had stated that he had not installed any new machinery after obtaining the consent. The Board had once again conducted an inspection on 11.10.2022. Upon inspection it was found that the Board instruction to replace the saw mill has not been complied with. Therefore, order dated 31.10.2022 was issued to the appellant withdrawing the consent to operate for having violated the consent conditions and not complying with the Board’s direction.

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It is admitted by the Board that siting criteria for plywood industries including saw mill which shall be as per circular No. PCB/T4/115/1997 dated 20.07.2011 is not applicable to the appellant industry as it was commenced much prior to that. Further, it is stated that the saw mill industry is no more a ‘Orange’ category industry but it comes under ‘Green’ category. The violation alleged seems to be the increase in the HP. The license issued by the DFO, Mannarkkad in favour of the appellant from the year 2017 seems to be for 35 HP. This license is also valid till 2026. However, admittedly the appellant had not obtained consent to increase the power from 21 to 35 HP.

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The appellant seems to have approached the Hon’ble High Court of Kerala in W.P. (C) No. 39803 of 2022 aggrieved by the withdrawal of the consent to operate. The Hon’ble High Court also has found that the appellant was issued with NOC by the DFO, Mannarkkad as early as on 16.12.1995. The license issued to the appellant is valid till 16.10.2026. The ‘Consent to Operate’ issued by the Pollution Control Board is also valid till 30.06.2026. The license issued by Alanallur Gram Panchayat certifies that the appellant is using motor upto 36 HP. The license issued by the Gram Panchayat was valid till 31.03.2023.

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The Appellate Authority found that the appellant cannot be allowed to operate the unit as the same would adversely affect the health and safety of the 4^th respondent and he has not maintained the siting criteria. When the Pollution Control Board has specifically stated that the siting criteria would be applicable only from 20.07.2011 and as the unit has been functioning from 1995, the

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same would not be extended to the existing units. The only violation is the increase in the HP without the consent of the Pollution Control Board.

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Even in the renewal of the ‘Consent to Operate’ issued on 17.12.2021 which is valid till 31.08.2026, the category of the unit is mentioned as ‘Green’. In the above factual circumstances, it would be appropriate for the Pollution Control Board to inspect the unit once again to verify whether the same is in compliance of all the norms and conditions and if found correct, issue the ‘Consent

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to Operate’. The appellant is specifically directed to comply with

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all the requirements and the conditions imposed by the Pollution Control Board.

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It is open to the Pollution Control Board to impose damages for enhancing the HP without the consent for the period of violation.

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Accordingly, the appeals are disposed of with above directions. Let

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the entire exercise be complied within a period of 06 weeks.

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............................................................J.M.

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(Smt. Justice Pushpa Sathyanarayana) .......................................E.M.

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(Dr. Satyagopal Korlapati) Internet – Yes/No

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All India NGT Reporter – Yes/No

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Appeal No.35/2024(SZ)& Appeal No. 36/2024(SZ) 8th January, 2025.(AM)

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Before the National Green Tribunal Southern Zone (Chennai)

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Appeal No. 35 of 2024(SZ)
&
Appeal No.36 of 2024(SZ)
Kasim Alayan
Vs.
Kerala PCB & Ors.
Appeal No. 35/2024(SZ)&
Appeal No. 36/2024(SZ)
8th January,2025. (AM)

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Kasim Alayan v. the Water/Air Appellate Authority

Case brief

What is this about?

What did the court decide?

Kasim Alayan v. the Water/Air Appellate Authority

Case brief

What is this about?

What did the court decide?

What the court decided

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Parties & counsel

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