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Asked January 16, 2016

Sweet Factory Polluting the locality

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A sweet factory has grown up in my adjacent plot of land. They are polluting the locality by discharging their leftover milk products and sugar syrups in the backyard which becomes the breeding place for flies and other organisms which pose a threat to health in the adjacent area. I had once written an e-mail to the deputy commissioner but no action till date. I have no idea whether the sweet factory is a legal or illegal establishment in this area. Since it is violating the fundamental right to clean and healthy environment of a citizen, i want to stand against it. Please guide me the legal course of action I can take against them.

Answer 1

  Every factory in India is regulated by The Factories Act, 1948. S.12 (1) of The Factories Act, 1948[1] directs the factories to ensure proper disposal of their waste products to prevent any form of harm to the environment and society in whole. The sweet factory, hence, can be punished for discharging its left over milk products and sugar syrups in the backyard.  This punishment can be based upon S.92 of The Factories Act[2], wherein, there is any violation of any of the provisions of this Act by any factory, the occupier[3] and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to two years or with a fine which may extend to one lakh rupees or with both. Moreover, pollution caused by the sweet factory is an infringement of your Constitutional Fundamental Rights including your Right to Life[4] and Right to Environment. Right to life, as provided by the Indian Constitution, is interpreted by the Indian Courts to encompass a wide range of rights essential for good life of the citizens. In Subhash Kumar v. State of Bihar and Ors.[5] the Supreme Court held that Right to life is a fundamental right under Article 21 of the Constitution and  it includes the right of enjoyment of  pollution free water  and  air- for full enjoyment of life. Hence, you can approach the High Court under your Right to Constitutional Remedies. This Right to Constitutional Remedies protects Indian citizens from the infringement of their fundamental rights. One such Right to Constitutional Remedies is provided under Article 226 of the Indian Constitution[6].  Under this Article, you can approach the High Court to issue a writ of Mandamus (an order to do some specific act which a particular body is obliged to do under law) against the sugar factory for its violation of the provisions of the Factories Act, 1948 and also that of the Environment Protection Act, 1986.  Now, to file a complaint against the polluting sweet factory, you have two courses of action to choose from:- The FIRST OPTION is that you can file an FIR (First Information Report) with the nearest police station and get a copy, alongwith the filing of a complaint with the Pollution Control Board (PCB) as per the filing procedure explained below. This action can be taken only if the factory is set up in a residential area and is an illegal establishment. In case of the factory being established within the municipal boundary, municipal clearing is an essential requirement for the factory as commercial activity can be carried on only in demarcated commercial zones. If the FIR and complaint with the PCB do not bring about the required result then you can file a case before the Judicial Magistrate. The Judicial Magistrate, after taking cognizance of the case, can direct the trial court to take steps against the factory and the said authorities. The SECOND OPTION is that you can issue a complaint before the District Office as the Deputy Commissioner or the District Collector is responsible for the overall administration of the District. This action can be taken if the polluting factory is set up in an industrial area and is a legal establishment. In case of the factory being established within the industrial boundary, following are the essentials for the factory to be a legal set up-: FSSAI license (Food Safety and Standards Authority in India); No Pollution or Pollution Under Control (PUC) certificate; Registration under the Factories Act, 1948. To lodge a complaint before the Deputy Commissioner the most common practice is to go to the police station and lodge a formal written complaint against which you are to be provided a receipt which serves as a proof of your complaint. If the Deputy Commissioner fails to take any action even after issuing of a formal complaint you can approach the High Court to issue a writ of Mandamus against the Deputy Commissioner for inaction to your complaint. In case you decide to issue complaint with the PCB and the Municipal authorities instead (procedure mentioned below), mark a copy to the Deputy Commissioner. If the PCB and Municipal Authorities fail to take the needed action, the Deputy Commissioner is the authority to resort to. The prior intimation given to the Deputy Commissioner would ensure that the DC can take cognizance of their inaction and also take steps against the polluting factory within a short period of time.  If the Deputy Commissioner too fails to take the necessary actions, you can again approach the High Court to issue a writ of Mandamus against the PCB, Municipal authorities and the Deputy Commissioner for inaction to your complaint.   Issuing Complaint with the PCB: As per Rule 11 of the Environment (Protection) Rules, 1986[7] you can issue complaint with the PCB by giving notice to the respective State PCB (if you are a resident of a state) or to the Central PCB (if you are a resident of a union territory). This notice should be submitted in written form and should be sent through registered post acknowledgment due (post wherein the acknowledgement of delivery is “Registered” in the Register of the postal authority and a proof of the delivery is also given to the sender only). A period of 60 days, from the date it is first received by the authority, is allotted before which no court can take cognizance of any offence under Environment (Protection) Act, 1986. This implies that the penalty which can be imposed on the sweet factory for non-compliance with S.7 of the Environment (Projection) Act, 1984[8], cannot be taken into cognizance by the court before this period of 60 days. This provides a period of 60 days to the Pollution Control Board to take appropriate steps to curb the polluting activities of the sweet factory. Since you do not know about the legality of the sweet factory you can file an RTI (Right To Information) report under S. 2(f)[9] and 8(1)(j)[10] of the RTI Act. The RTI largely covers the workings of public organizations: however, private entities are covered under these two sections. RTI can be filed either through online portal[11] or through written procedure[12] and 30 days is the usual time limit to get the information. The easiest approach would be to lodge a complaint with the Pollution Control Board and the Deputy Commissioner directly and further the High Court if need arises. This is because the polluting act of the factory is illegal in itself and a punishable offence. The concerned authority, while carrying out their investigation would look into the legality of the factory and take steps accordingly. The end result would consistently be the termination of the polluting activity of the sweet factory. [1]Available at: http://indiankanoon.org/doc/1651517/, last accessed on 29th January, 2016. [2]Available at: http://indiankanoon.org/doc/463092/, last accessed on 29th January, 2016. [3]“Occupier” of a factory means the person who has ultimate control over the affairs of the factory; available at: http://indiankanoon.org/doc/344019/, last accessed on 29th January, 2016. [4]Article 21in the Constitution of India, 1949, Available at: http://indiankanoon.org/doc/1199182/, last accessed on 29th January, 2016. [5]Article 21in the Constitution of India, 1949, Available at: http://indiankanoon.org/doc/1199182/, last accessed on 29th January, 2016. [6]Available at: http://indiankanoon.org/doc/981147/, last accessed on 29th January, 2016. [7]Available at: http://envfor.nic.in/legis/env/env4.html, last accessed on 29th January, 2016. [8]Available at: http://indiankanoon.org/doc/75233928/, last accessed on 29th January, 2016. [9]Available at: http://indiankanoon.org/doc/1516599/, last accessed on 29th January, 2016. [10]Available at: http://indiankanoon.org/doc/223928/, last accessed on 29th January, 2016. [11]Available at: https://rtionline.gov.in/guidelines.php?request. [12]Available at: http://www.tn.gov.in/rti/procedure.htm, last accessed on 29th January, 2016.
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