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HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No. 106/2017
MP No. 01/2017
Date of order: 18th May, 2017.
Naseer Joinery Laloo
Versus
Regional Director S.P.C.B & Ors.
Coram:
Hon'ble Mr Justice Ramalingam Sudhakar, Judge
Appearing Counsel:
For Petitioner(s ): Mr. G. R. Tantray, Adv.
For Res pondent(s ): Mr. Muzaffar Nabi Lon e, GA
Mr. Mir Majid, Adv.
(i) Whether to be approved for reporting in
Press/Media Yes/No.
(ii) Whether to be approved for reporting in
Digest/ Journal Yes/No.
(Oral)
1. The writ petitioner is running a wood based Industrial Unit
at Laloo, Shishgari Bagh, Hyderpora, Budgam from the
year 2005. It is stated that the said unit is running in a tin
shed. The unit is engaged in wood furniture and joinery.
The unit is having registration certificate dated
29.11.2005, issued by the District Industries Centre,
Budgam. The petitioner is also licensed by Jammu and
Kashmir, Forest Department for running the Secondary
Wooden Based Industrial Unit. For running the industrial
unit, petitioner is required to install the electric motor.
Based on the permissions, aforesaid, petitioner has
installed 3 hp Motor. The petitioner's unit is also
registered with the J&K Shops and Establishment Act,
1966, annexures-B & C of the writ petition.
2. The petitioners' unit is established in 8 marlas of land
falling under Survey No. 5, gifted to him by his
grandmother. It appears that with respect to the property
in question, a civil suit is pending between petitioner, his
brother, mother with his maternal uncle. According to the
petitioner, the maternal uncle in order to wreck
vengeance for initiating the litigation against them have
started to trouble the petitioner by filing complaints to
the Pollution Control Board (PCB) stating that the unit is
causing serious noise pollution and, therefore, action
should be taken. The private respondent are related and
maternal uncles of the petitioner. They are seriously pursuing the Pollution Control Board to take action so as to close the unit. On the basis of complaint, the Pollution Control Board has initiated action and have issued two notices, one annexure-E dated 03.12.2016 and second, annexure-F dated 02.01.2017. In both the notices, petitioner was directed to take necessary remedial measures and submit compliance within a time frame, failing which it was stated that legal action would be taken.
3. The petitioner, replied to the legal notice dated 10.01.2017, stating that in order to control the noise pollution allegedly caused by the 3hp motor a brick wall has to be put up by replacing the existing tin sheets. He has further stated that for replacing the tin sheet by brick wall, he is required to seek permission from Srinagar Municipal Corporation (SMC). The petitioner, therefore, pleads that till requisite permission is obtained from SMC, his unit shall not be disturbed.
4. On this premise, writ petition has been filed for the following relief:-
(a) Mandamus, commanding the official respondents, to provide an adequate and sufficient time to the petitioner to introduce the remedial measures in the shape of replacement of existing Tin Sheets by brick walling after obtaining permission from the Srinagar Municipal Corporation and after obtaining the modification of the status-quo order passed by the trial court.
(b) Mandamus, commanding the official respondents no to close the Industrial Unit of the petitioner without following the due procedure of law as provided in the Air Prevention and Control of Pollution Act, 1981.
5. After notice, on behalf of PCB, Mr. Muzaffar Nabi Lone, GA appeared but has not filed the objections on behalf of PCB. However, private respondents represented by Mr. Mir Majid, Adv. have filed their objections.
6. Considering the nature of controversy, scope of relief sought for and the reason for filing the instant writ petition and also taking into consideration the apprehensions, expressed by private respondents on the issue of noise pollution, the writ petition is admitted to hearing and taken up for final disposal in the following manner:-
(i) Admittedly, petitioner seeks time to implement the directions of the pollution control board, stating that he would construct a brick wall after obtaining approval from SMC. He has fairly stated that application is yet to be filed before the PCB and the reason for non-filing the same is that the PCB has to specify the remedial measures that should be taken so that all the directions can be addressed in one go. As a result the complaint filed by private respondents will be put to rest once for all. It appears that private respondents who are the close relatives of the petitioner seeks a pound of flesh stating that the unit should be closed forthwith since it is running without permission of PCB and also primarily on the land dispute pending in the court.
(ii) Learned counsel for the PCB while reacting to the complaint filed by private respondents has suggested the installation of PCDs/PCMs in the unit. The measures which are to be taken to arrest the pollution has to be specified by the Authority if and when a request is made by the petitioner. Petitioner is yet to seek the guidance of the PCB.
(iii) Admittedly, the unit is running on a permission, granted by various Government agencies. The only further requirement that is wanted is the approval of PCB. Therefore, the issue that arises for consideration is proper method to be adopted for ensuring proper compliance of the law on pollution control and also to enable the unit to run which is otherwise permitted by other Government departments of the State.
(iv) This Court has also to take into consideration the objections of the private respondents. Keeping all this in mind, since petitioner has already responded to the notice of the PCB stating that he will take proper measures but for want of adequate inputs from PCB, the effective control of noise and other forms of pollution has not been undertaken. In the result, petitioner is granted two weeks' time to approach the Regional Director, J&K State Pollution Control Board with an application and request appropriate instructions from the Authority as to what are the pollution control methods, to be adopted and accordingly implemented.
(v) The suggestions made by the Pollution Control Authority be implemented within the time framed, fixed by the Authority concerned.
(vi) The petitioner shall also submit an application before the SMC for grant of permission for taking up construction so as to enable the industrial unit to comply with the suggestions/directions of PCB.
(vii) The Authority (PCB) shall give necessary assistance to the petitioner, enabling him to complete the requirements of Pollution Control law for running the unit.
(viii) With respect to civil suit pending before the court below, the parties are at liberty to pursue the same on merits.
(ix) In the event, petitioner does not make an application(s) before the PCB and SMC within the time frame, prescribed by authorities the PCB Authorities are at liberty to take appropriate action as per law.
(x) The position as on date as it exists on spot to continue the above directions are complied.
(xi) The private respondents are at liberty to raise their objections before the authorities and the authorities shall provide them an opportunity of being heard in the matter at the appropriate stage.
7. The writ petition along with connected MPs is, accordingly, disposed of as above.
8. Interim, direction shall also stand vacated.
(Ramalingam Sudhakar) Judge Srinagar May 18th, 2017 "Ab. Rashid"