JUDGMENT Choudhary S.N. Mishra, J.

1. In this writ application the petitioner Jugal Kishore Modi, Proprietor of Bharat Minerals Grinding industries, has questioned the legality of the order dated 28th December, 1994, passed by the respondent Executive Officer of Madhupur Municipality. Whereby the licence of the petitioner's industry has been cancelled and further directed to close the industry within three days. Copy of the aforesaid order is made Annexure-1 to this writ application.

2. The petitioner is the proprietor of Bharat Minerals Grinding Industries situated at Madhupur in the district of Deoghar, which was registered in the year 1978 bearing registration No. 46035 S.P.A. under Rules 4 to 10 of the Bihar Factories Rules and Section 6(1)(d) of the Factories Act, 1948 by the Chief Inspector of Factories, Department of Labour and Employment and the said registration is being renewed from time to time by the respondent authority after payment of requisite renewal fees. Copy of the licence renewed till 1994 and the deposits having been made from time to time are made Annexures 2, 3 and 4 respectively to this writ application. It is alleged that the firm of the petitioner was registered after proper verification of site and location and after going through the legal formalities by the Chief Inspector of Factories of Bihar. The said firm was also registered by the Government of Bihar, Directorate torate of industries as a small scale industries by order dated 20th November, 1978, bearing registration No. 03/14/01971/PM T/S. S.I. of D.I.C. dated 20.11.1978. Copy of the said registration certificate is made Annexure-5 to this writ application. It is stated that the petitioner submitted a proposal for setting up another stone crusher for crushing stone in the same premises before the General Manager, District Industries Centre, Deoghar and the said General Manager, after due enquiry and proper verification of the site and location, has approved the proposal vide his letter dated 3.2.1984. Copy of the said letter is made Annexure-6 to this writ application. Accordingly, the said stone crushing unit was granted licence in terms of Section 259 for the Bihar and Orissa Municipal Act (hereinafter referred to as the Act') on 31.3.1981 and the said licence has been renewed up to 1994-95 on payment of requisite fee for renewal (Annexure-7).

3. In this case a counter affidavit has been filed on behalf of respondents 3 and 4, Municipal authorities, wherein, Inter aha It is stated that pursuant to the complaint received from the Headmistress of the neighbouring Anchl Devi Government Middle School on 6.7.1994 to the effect that the petitioner's industry produces a lot of stone power, dust and other pollution, as a result the children and the teachers of the school feeling suffocation because of the dust that is being spread in processing of the stone crushing. It is alleged that after having received the said complaint from the Headmistress as well as the general public, notice was issued to the petitioner to show cause within 15 days as to why his licence be not cancelled on account of pollution created by the industry in the neighbouring area. Copy of the said notice is made Annexure-8 to the counter affidavit. It is submitted that in spite of notice having been issued to the petitioner, no show cause has been filed and, ultimately, the respondent authority has passed the impugned order. It has also been alleged that the petitioner has obtained the licence for the year 1994 by the office clerk without knowledge of the competent authority, which is illegal and, accordingly, the licence of the petitioner has been cancelled. Specific statement has been made in paragraph 18 to the effect that the Municipal authority has not granted licence to the petitioner for the year 1994-95 but the petitioner has committed a fraud upon the authority in getting licence by the office clerk without any knowledge to the competent authority.

4. In this connection reference may be made to the order dated 23.10.97 wherefrom it appears that earlier the Bihar State Pollution Control Board has passed the order under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. From the order it appears that the Pollution Control Board has given consent subject to certain conditions. Accordingly, this Court by the said order directed the counsel appearing on behalf of Pollution Control Board Mr. Karn to ascertain whether the conditions mentioned in the consent order have been fulfilled. On a request made by Mr. Karn the case was adjourned with a direction to file a report after having duly inspected by the officials of the Pollution Control Board. Pursuant thereto a counter affidavit has been filed on behalf Chairman, Bihar State Pollution Control Board, Patna, wherein, inter alia, it is stated that the inspection) of the industry, in question, was made on 2.11.96 by the Chairman of the Board himself and he submitted a report to the effect that the industry has complied with all the conditions imposed in the earlier consent order and has made necessary arrangements in suppressing dust by hanging gunny bags at the initial end of rotary screen. It is further alleged that the industry has also manually sprinkled water on stone before crushing in order to reduce the dust generation. It is further alleged that the concerned industry has also raised southern side wall to the extent of 12' height in order to prevent the carry over of the dust. It is further alleged in the report that the concerned industry has also developed a green belt as per the condition imposed in the Emission Control Order and the Chairman has also come to the conclusion that the noise level at the school was found to be within the tolerance limit. The report of the Chairman of the Pollution Control Board is made Annexure A to the counter affidavit.

5. Learned Counsel for the petitioner has challenged the impugned order on the ground firstly that the respondent Executive Officer of the Municipality has no jurisdiction to pass such order directing the petitioner to close the industry it is further submitted that the order under challenge has been passed without issuing notice to the petitioner which is contrary to the provisions made under Section 260 of the Act. It is further submitted that the reason assigned for cancellation of the licence is non est, inasmuch as, the Chairman of the Pollution Control Board as well as the Chairman of the Municipality themselves have inspected the factory and found that all necessary precaution have been taken by the petitioner in order to prevent the pollution in the area. According to the report it is submitted that there is no question of creating pollution even though the licence granted to the petitioner has been cancelled by the respondent Executive Officer on such ground which is wholly illegal and uncalled for.

6. In order to appreciate the contention of the leaned counsel Section 259 and 260 of the Act are to be noticed which envisaged that no place shall be used without a licence granted by the Commissioners after such local enquiry as they may deem necessary, which may be renewed from year to year with respect to the trades and businesses mentioned therein. The stone crushing business, in my opinion, will come within the mischief of Sub-section XIV of Section 259 of the Act and, as such, the Municipal authority is fully competent to pass such order. Section 260 of the Act envisaged that if it is shown to the satisfaction of the Commissioners that any place licensed under Section 259 is a nuisance to the neighbourhood the Commissioner will give notice to the occupier to discontinue the use of such place within one month after the date of such notice. It is true that from the order under challenge it does not appear that any such notice was issued to the petitioner before passing the impugned order albeit in the counter affidavit filed on behalf of the Municipality it is alleged that such notice was issued to the petitioner. Copy of the said notice dated 7.7.94 is made Annexure-C to the counter affidavit filed by the Municipality. However, this fact is being denied by the learned Counsel for the petitioner and specific statement has been made in paragraph 14 of the writ application to the effect that no notice was ever served upon the petitioner before passing the impugned order. As regards the last submission on that reason mentioned in the order for closing the factory is a non est, inasmuch as the various reports submitted after due enquiry will go to show that the petitioner has already taken necessary precaution to prevent the pollution. In course of argument learned Counsel for the petitioner has drawn attention of the Court to the letter dated 10.3.95 written by the Chairman of the Municipality to the Executive Officer of the said Municipality stating therein that he along with Vice-Chairman has inspected the industry. In question and found the allegation of the Headmistress as well as the general public wholly baseless as the petitioner has taken steps for preventing and/or causing and pollution and, accordingly, he directed the respondent Executive Officer to withdraw the order passed by him directing the petitioner to close his industry.

7. I have heard the learned Counsel for the petitioner, State as well as the counsel appearing on behalf of the Bihar State Pollution Control Board. No one appears on behalf of the respondent Municipality, Perused the materials on record. After having gone through the entire materials on record, I am of the view, that the reason assigned by the respondent Executive Officer in cancelling the licence of the petitioner is not sustainable in the eye of law, inasmuch as, from the report submitted by the Chairman of the Pollution Control Board as well as the Chairman of the Municipality it appears that the petitioner's unit is not spreading pollution and all necessary steps have already been taken by the petitioner, details whereof have been mentioned in the report itself, which have been mentiched in the order passed hereinabove. Therefore, in my view, the very ground for cancelling the licence of the petitioner is non est in the facts and circumstances of this case. As regards the allegation that the petitioner after committing fraud upon the Municipal authority has obtained the licence, which has been denied by the learned Counsel for the petitioner with reference to the various documents annexed to this writ application, at this stage, I am not inclined to express any opinion having regard to the disputed question of fact involved. However, it will be open for the respondent authority to enquire into the matter with reference to the materials available on recorded and after giving an opportunity to the petitioner of being heard will take a final decision in the matter, without being prejudiced by the order of this Court.

8. In the result, the order dated 28.11.1994 passed by the respondent Executive Officer, is hereby quashed and this writ application is allowed to the extent indicated above but without any cost.