IN THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)


                           Writ Petition (C) No. 6336/2003

1.      Smt. Ratni Devi Jalan,
        W/O. Late Chouthmal Jalan
        Proprietor of M/s. Ashok Flour Mill,
        Hem Baruah Road, Fancy Bazar, Ward No.30,
        P.O. Guwahati, District : Kamrup, Assam.                     - Petitioner.

                         -Versus-

1.      The Gauhati Municipal Corporation (GMC),
        Pan Bazar, Guwahati.
2.      The Commissioner, Gauhati Municipal Corporation,
        Pan Bazar, Guwahati.
3.      The Joint Commissioner, Gauhati Municipal Corporation,
        Pan Bazar, Guwahati.
4.      Sri Dindayal Agarwal @ Jalan,
        S/o. Late Bhaniram Agarwal,
        Resident of Guwahati, District : Kamrup, Assam.
5.      The Member Secretary,
        Assam Pollution Control Board, Guwahati.                     -Respondents.

BEFORE HON'BLE MR JUSTICE HRISHIKESH ROY For the Petitioner: Mr. OP Bhati, Mr. A. Biswas & Mr. R. Kalita, Advocates.

For the Respondents: Mr. S. Bora, standing counsel, GMC, Mr. S. Banik, Advocate for the complainant (R4) Mr. PJ Phukan, standing counsel, PCB (R5).

Date of hearing & judgment:             16.07.2015.

                           JUDGEMENT AND ORDER (ORAL)

Heard Mr. O.P. Bhati, the learned counsel appearing for the petitioner. The respondent Nos.1--3 are represented by Mr. S. Bora, the standing counsel for the Gauhati Municipal Corporation (in short 'the GMC'). The complainant (respondent No.4) is represented by the learned counsel Mr. S. Banik. Mr. PJ Phukan, the standing counsel, Assam Pollution Control Board (in short 'the PCB') appears for the respondent No.5.

2. The petitioner is a grinding mill operating in the Fancy Bazar locality of Guwahati and a complaint against the mill was given by the neighbouring residents on 25.2.1991, where it was alleged that the mill operation is generating noise and air pollution in the area. The complainants requested for action by the municipal authorities and when there was no response, a second complaint was filed individually on 31.8.1996 by the respondent No.4 for removal of the public nuisance. Then a show cause notice was issued by the GMC on 7.3.1997 and eventually when it was found that the mill was causing pollution in the neighbourhood, the Joint Commissioner, GMC through the impugned notice dated 17.7.2003 (Annexure-B) directed the petitioner to either close the mill or to shift it to a less congested area.

3. Assailing the legality of the order passed by the Joint Commissioner, GMC, Mr. O.P. Bhati, learned counsel submits that a purported inquiry was conducted in breach of the principles of audi alteram partem and therefore the same can't be the basis for the impugned notice. Next he refers to the monitoring of the pollution level conducted on 27.9.2011 by the PCB and projects that the noise level (near the residence of the complainant) is 63.1 and 61.7 respectively and these readings are within the permissible standard of 65, stipulated for commercial areas.

4. Mr. PJ Phukan, the standing counsel for the PCB in his turn refers to the analysis report of the monitoring done on 16.8.2012 and 17.8.2012 to project that the particulate matter or PM10 in the mill premises was found to be at the level of 109, whereas the upper limit is 100 and therefore on this aspect, the pollution level is beyond the permissible limit.

5. The learned standing counsel for the GMC Mr. S. Bora on the other hand submits that under Section 273 of the Gauhati Municipal Corporation Act, 1971 (hereinafter referred to as the 'the GMC Act'), a factory can operate only with due permission of the Commissioner, GMC and whenever a factory unit is causing nuisance to the neighbourhood, the GMC authorities can direct shifting of such unit under Sub-Section (3) of Section 273 of the GMC Act.

6. Representing the complainant (respondent No.4), Mr. S. Banik, learned counsel submits that the monitoring exercise was carried out by the PCB without the presence of the complainant and therefore he argues that the correct distance between the factory and the complainant's premises was not taken into account and thus an inaccurate reading was made by the PCB. He further submits that unless the Writ Petition (C) No.6336/2003 Page 2 of 4 mill conforms to the prescribed pollution standards, it should not be permitted to operate in the thickly inhabited commercial area of the city.

7. The learned counsel for the petitioner has submitted at the Bar that the trade license of M/s. Ashok Flour Mill was renewed upto 31.3.2015 and the petitioner has already applied for renewal for the coming year. He further submits that the PCB has given due 'consent to operate' under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 and the petitioner has already applied for updated consent to operate, in accordance with the applicable norms.

8. The analysis report of the ambient air quality furnished by the Chief Environment Scientist on 22.8.2012 indicates that the air quality under PM10 is found to be at 109 in August, 2012, whereas the maximum permissible limit is pegged at

100. But at the same time, the precise contribution of the petitioner to the poor air quality could not be determined (as can be gathered from the note of the Chief Environment Scientist of the PCB), because the petitioner not installed stack emission monitoring mechanism in their mill. Only when such a system is installed, the extent of pollutants generated by the petitioner mill in the neighbourhood can be assessed and without such mechanism, it can't be affirmatively said that the petitioner unit is the sole contributory to the negative air quality, in the area.

9. Confronted with the above situation, Mr. O.P. Bhati, learned counsel submits that the petitioner is ready to install at their own cost the stack emission monitoring system in their flour mill for which reasonable time may be granted. In response, the standing counsel for the PCB submits that it will be more objective to test the air quality after the stack emission monitoring system is installed in the flour mill, so that their contribution to the pollution level can be scientifically assessed.

10. Taking the above factors into account and noting that that the impugned closure notice was issued on 17.7.2003 (Annexure-B), without affording a fair opportunity to the petitioner, this case is disposed of with the following directions:-

(i) The petitioner at her cost shall install the stack emission monitoring system in the mill premises, as per the requirement of the PCB, within 8 weeks.

(ii) The ambient air quality and the noise level should then be monitored in and around the mill premises on 30.9.2015. This exercise should be done in presence of all concerned, including the complainant.

(iii) If the ambient air quality is beyond the permissible limit, the PCB may either direct the petitioner to take remedial measure to conform to the permissible limit or in the event the petitioner fails to meet the prescribed standard, the PCB may order for closure of the mill in accordance with the law. If the petitioner is able to adhere to the prescribed standard under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, they should be allowed to continue or/otherwise, the authorities are at liberty to take appropriate action against the petitioner's mill.

(iv) At the same time, it is made clear that the mill should operate only with valid permission/trade license, of the GMC authorities.

(v) The impugned notice dated 17.7.2003 (Annexure-B), issued by the Joint Commissioner, GMC is quashed, as this notice was issued without affording a fair opportunity to the petitioner. No cost.

11. With the above order, the petition stands disposed of to the extent indicated.

JUDGE Barman.