MAA TARINI INDUSTRIES LTD. REPRESENTED THROUGH ITS DIRECTOR HANUMAN KHEDARIA, BALANDA, ROURKELA, DIST. SUNDARGARH Vs. MEMBER SECRETARY, STATE POLLUTION CONTROL BOARD, ORISSA, BHUBANESWAR

JUDGEMENT

(1.) THE appellant, which is a company registered under the Indian Companies Act and is engaged in manufacture of sponge iron in its plant set up at Balanda in the district of Sundargarh, has preferred this appeal under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (in short 'Air Act') against the order dated 16.11.2010 passed by respondent No.1 -the State Pollution Control Board, Orissa, ('the Board' hereinafter) vide Annexure -9, refusing to modify the condition attached to the order granting consent to establish in respect of its 4th DRI (Director Reduced Iron) Kiln with a capacity of 100 TPD (Ton Per Day) by exempting it from obtaining the environment clearance as per the EIA (Environment Impact Assessment) Notification dated 14.9.2006, with the prayer to set aside the said order in Annexure -9 and to direct the respondents to issue consent to establish by modifying Office Memorandum No.4153 -Ind -II -NOC -3427 dated 11.3.2010 (Annexure -7) to the extent of allowing the appellant to establish its 4th kiln without environmental clearance.

(2.) THE case of the appellant -Industry, as delineated in the memorandum of appeal, is that with a view of expand its existing sponge iron plant located at Balanda, the appellant made an application to the Board on 30.10.2004 for grant of consent to establish 3rd and 4th Kiln with a capacity of 100 x 2 TPD and Induction Furnace by depositing the required consent fee. The Board considering the said application of the appellant granted consent to establish 3rd kiln with 100 TPD capacity and Induction Furnace with 6 tonnes capacity with the usual conditions, vide Office Memorandum dated 5.5.2006 (Annexure -3). According to the appellant, although it furnished the detailed information including the land details as required in the prescribed application submitted in Form -IV for grant of consent to establish under Section 25 of the Water (prevention and Control of Pollution) Act and Section 21 of the Air Act on 30.10.2004, vide Annexure -2 series, the Board granted consent to establish only for 3rd kiln by the order dated 5.5.2006 (Annexure -3) and no decision for grant of such consent for 4th kiln was taken despite its request made by letter dated 23.8.2005 in Annexure -4. Long thereafter the Board by letter dated 25.7.2008 intimated the appellant about non -consideration of its application for 4th kiln on the ground that the appellant did not have adequate land for the said kiln. The appellant in response to the aforesaid communication submitted additional land documents for an area of AC.8.42 to the Board by letter dated 26.7.2008 with a request to grant consent to establish 4th DRI kiln soon. Despite the aforesaid communications, which are annexed as Annexure -5 series, the Board by order dated 11.3.2010 in Annexure -7 granted consent to establish in respect of 4th DRI Kiln with 1 x 100 TPD capacity but attached a special condition which required the appellant to obtain environmental clearance in terms of the EIA notification of 2006. The aforesaid action of the Board in attaching the condition requiring the appellant to obtain environmental clearance is the subject -matter of challenge in the present appeal.

(3.) SHRI B.P. Tripathy, learned counsel for the appellant, contended that the application submitted by the appellant on 30.10.2004 for grant of consent to establish in respect of 3rd and 4th kiln with required information including the details of the land vide Annexure -2 series was received by the Board on 2.11.2004. The revised project report was also received by the Board on 19.3.2005, The Board instead of granting consent only for 3rd kiln, vide Annexure -3, should have granted or refused consent for 4th kiln within four months in terms of Sub -section (4) of Section 21 of the Air Act, which required the Board to grant consent applied subject to such conditions and for such period, as may be specified in the order, or refuse consent, within a period of four months from the date of receipt of the application. The same having not been done within the statutory period of four months, the application of the appellant would be deemed to have been granted without any condition and, therefore, the condition attached to the consent order dated 11.3.2010 (Annexure -7) requiring the appellant to obtain environmental clearance as per EIA notification of 2006 is illegal and arbitrary. The learned counsel further contended that if the consent for the 4th kiln would have been granted while granting consent for the 3rd kiln on 5.5.2006 vide Annexure -3, then the appellant would not have been required to obtain environmental clearance as sponge iron units/DRI kilns were not under the purview of 1994 EIA Notification, which was then in force, and the environment clearance as per 2006 EIA Notification, which came into force from 14.9.2006, was not required to be taken. It was also contended that inadequacy of land, which was the sole ground for non -consideration of grant of consent to establish the 4th kiln was for the first time raised by the Board and as such as per the settled position of law the same cannot be sustained in the eye of law. In support of his contention, Shri Tripathy relied upon a decision of the Hon'ble Karnataka High Court in the case of M/s. Vijayanagar Educational Trust v. Karnataka State Pollution Control Board, Bangalore, reported in AIR 2002 Karnataka 123, wherein it was held that in the absence of any order passed within the statutory period of six months regarding grant or refusal of consent, it would be deemed to have been granted without any condition as per Section 25 (7) of the Water (PCP) Act.