In WP(C) No. 17676 OF 2022-KER HC-Improvement of Public Health is Directive to State under Article 47 of Constitution: Kerala HC upholds State Pollution Control Board’s order mandating deduction of emission by 30% of Diesel Generator sets above 500 KVA
Justice N. Nagaresh [11-08-2022]

Read Order: M/s.VODAFONE IDEA LTD v. KERALA STATE POLLUTION CONTROL BOARD 

LE Correspondent

Ernakulam, August 17, 2022: The Kerala High  Court has recently opined that if the State Pollution Board chooses to regulate functioning of pollutant machinery of a particular description or power, it cannot be said that non-regulation of functioning of all such machinery irrespective of description and power is bad. The Boards will be amply justified in regulating more polluting units/machinery first.

Justice N. Nagaresh dismissed the instant petition instituted by the petitioner(Vodafone Idea Ltd), a licensed Telecom Service Provider, who approached this Court seeking that directions be given to the respondents to not implement any restrictive orders on the operation of DG sets without specific direction in writing from Central Government in that regard. The Bench was of the opinion that the improvement of Public Health is a Directive to the State under Article 47 of the Constitution. 

The petitioner, a licensed Telecom Service Provider and a Telecom Authority as per Section 19B of the Indian Telegraph Act. Their Telecom Service is rendered through Telecom Towers using technically hybrid Switching Centres across the State. Energy to switch Centres is provided by the Kerala State Electricity Board (KSEB). The Centres are provided with Battery backups with substantial storage capacity. 

To avoid any service break in case of failure of KSEB power supply and exhausting of battery backup, the petitioner deployed hybrid and high quality DG sets. The DG sets used by the petitioner were below par emission levels. The quality specifications and standards of these DG sets were certified by manufacturers themselves.

The National Green Tribunal (NGT) by an order dated August 6, 2019 observed that the timeline to reduce the air pollution by 30% needs to be reduced and the target of reduction needs to be increased. It is in the above background that the Board, by invoking the powers vested under Section 17(1)(j) read with Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981 and Section 5 of the Environment (Protection) Act, 1986 issued the order mandating deduction of emission by 30% of DG sets above 500 KVA. It was this order that was under challenge. 

After hearing the submissions of the parties, the Court noted that there is no ambiguity in the percentage of emission sought to be controlled as per the order. The figure 30% indicated in Ext.P5 is the targeted national level timeline reduction of air pollution. “To achieve this National target, the industries and establishments like the petitioner are required to retrofit DG sets with Emission Control Devices/Equipments having a minimum specified Particulate Matter capturing efficiency of at least 70%. There is no ambiguity or uncertainty in Ext.P5 order in that regard”, the Court noted. 

It was further noted by the Court that Section 17(1) (j) of the Air (Prevention and Control of Pollution) Act, empowers the State Pollution Control Boards to do such acts for proper discharge of their functions. While discharging its functions, if the Board chooses to regulate functioning of pollutant machinery of a particular description or power, it cannot be said that non-regulation of functioning of all such machinery irrespective of description and power, is bad or that it has no nexus with the object. The Boards will be amply justified in regulating more polluting units/machinery first, the Court further noted. 

 In addition to the same, the Court noted that the air pollution challenge in India is multi-sectoral and multi-jurisdictional. The Union and States and the Central and State Pollution Control Boards are taking on the challenge in all possible ways. “Improvement of Public Health is a Directive to the State under Article 47 of the Constitution. Ext.P5 Order therefore is intended to achieve a laudable objective. It does not violate any of the fundamental or statutory rights of the petitioner“, the Bench said. In light of these observations, the instant petition was dismissed.