BEFORE THE NATIONAL GREEN TRIBUNAL
                  PRINCIPAL BENCH
                     NEW DELHI
                      ..............

               APPLICATION NO. 96 OF 2012

In the matter of :
M/s. DRG Grate Udhyog                            .....Appellant

                             Versus
1. State of M.P.
Through its Principal Secretary,
Department of Aawas and Prayavaran, Vallabh Bhavan,
Bhopal (M.P.)

2. Pollution Control Board,
Through its Chairman, Bhopal (M.P.)

3. The Regional Officer, M.P. Pollution Board,
Dindayal Nagar, Housing Board Colony,
Gwalior, (M.P.)
                                                 .......Respondents
Counsel for Applicant :
Mr. Anuj Puri, for the Advocate.

Counsel for Respondents :
Ms. Archi Agnihotri, for Ms. Vibha Datta Makhija Advocates, for
Respondent No.1.

Mr. Rahul Shrivastav, Advocate, for Respondent No.2 & 3.

                          JUDGMENT

PRESENT :

Hon'ble Mr. Justice Swatanter Kumar (Chairperson) Hon'ble Mr. Justice U.D. Salvi (Judicial Member) Hon'ble Dr.D.K. Agrawal (Expert Member) Hon'ble Prof. A.R. Yousuf (Expert Member) Hon'ble Dr. R.C.Trivedi (Expert Member) Dated : May 09, 2013 JUSTICE SWATANTER KUMAR, (CHAIRPERSON) A simple question of some legal significance as to the meaning and interpretation of the expression 'residential area' arises for consideration of the Tribunal in the present case. The relevant facts giving rise to the present application, are that the 1 applicant firm is a partnership concern and Mr. Manish Kumar Mittal is one of the partners of this partnership firm, who has instituted the present application. This partnership concern carries on the business of stone crushing. It sought to establish a stone crushing unit at Bilaua, Tehsil Dabra, District Gwalior. The applicant made inquiries and was informed by the Panchayat about a suitable piece of land for the same so that he could obtain a 'no objection certificate' from the Department concerned. Based upon the inquiries made, the applicant vide a registered sale deed dated, 13th October, 2010, purchased the land for establishing a stone crushing unit. He obtained a certificate from the Gram Panchayat for the availability of the land in question situated merely 600 metres away from the residential area. After purchasing the land, diversion of the land was done under the provisions of M.P. Land Revenue Code, 1959. The applicant claims to have obtained permission from the District Trade and Industry Centre, Gwalior on 28th October, 2010. The applicant then got a project report prepared and invested a huge amount in purchasing the machines for the stone crushing unit. On 1st June, 2011, the petitioner applied for 'no objection certificate' from the Madhya Pradesh Pollution Control Board, (for short the Board). The Regional Officer of the Board vide their letter dated 11th August, 2011, denied the petitioner the grant of no objection certificate on the ground that a school was existing at a distance of 450 metres from the site of the stone crusher and as per the guidelines issued by the Board, the same could not be permitted. 2 Under these guidelines, the minimum distance between a residential area and a stone crushing unit is to be 500 metres.

2. The only reason given for rejection of the grant of consent of the Board was in view of the guidelines issued by the Board in furtherance to its meeting dated, 5th January, 2004. Aggrieved by the order of the Board dated, 11th August, 2011 and that of the appellate authority dated, 13th December, 2011, the applicant has challenged the correctness and legality of these orders, inter alia, but primarily on the following grounds:

(a) The guidelines do not have the force of law and are, therefore, incapable of being made the basis for declining the consent by the Board, which exercises its powers in terms of Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (for short "the Air Act"). The Board discharges statutory functions and is bound by the provisions of the law alone.

(b) The expression 'residential area' used in the guidelines does not include running of a school. Thus, the limitation of 500 metres, as imposed by the guidelines is not applicable to the case of the applicant in the face of the admitted facts.

(c) The guidelines issued by various other State Pollution Control Boards specifically provide for inclusion of schools or educational institutions, which are conspicuous by their absence in the guidelines issued by the Board. What is not specifically provided for cannot be read into the provisions by implication, particularly when this amounts to a restriction or prohibition upon the right of the applicant to carry on business.

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3. Reply has been filed on behalf of the respondent. The facts are not disputed by the respondent. However, on the question of law, the respondent seriously disputed the correctness of the contentions of the applicant. According to the respondent, these guidelines have been framed in furtherance to the judgment of the Supreme Court in the case of Kennedy Valley Welfare Association v. Ceylon Repatriates Labourers Welfare and Service Society & Others 2000(2) SCALE 143. They are binding on all concerned and the applicant cannot get away from the limitations and restrictions provided under the guidelines formulated by the Board. It is further averred in the reply that there are two schools situated in the area which are located within a distance of 500m from the said stone crushing unit - (i) Government Primary School, Chirpura, which was established in the year 1974 and operates in an area of nearly 2,000 sq.m., having 125 students, and (ii) Government Middle School, which was established in the year 2003 and has 65 students on its roll from 6th to 8th standard. The schools thus, were operating much prior to the date on which the applicant had even proposed to establish his stone crushing unit at the premises in question. Admittedly, the applicant applied for the consent on 1st June, 2011 and cannot take advantage of his own wrong.

4. In view of the contentions raised with reference to the facts noticed supra, we must first refer to the relevant extracts of the guidelines, dated 5th January, 2004 that have been framed by the Board. They read as under:

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"GUIDELINE OF M.P. POLLUTION CONTROL BOARD FOR CONTROLLING POLLUTION FROM STONE CRUSHERS.

During the meeting of Regional Officers held on 05/01/2004, the 100 days action plan was discussed. The matter of siting and pollution control in stone crushers was also one of the issues. The Regional Officer, Sagar & Gwalior had been instructed to formulate the necessary guidelines keeping in view the various prevailing guidelines in different State Pollution Control Boards [SPCBs). Both the officers collected some of the guidelines from various SPCBs viz. Tamil Nadu State Pollution Control Board, A.P. Pollution Control Board and Karnataka Pollution Control Board. Also the recommendation by NPC, New Delhi has been also collected. Keeping in view the various above guidelines and the scenario of the Stone Crushers of M.P. State, following guidelines are prepared for necessary action.

A Siting of Stone Crushers:

1. The distance between the crusher boundaries and the boundary of the National/State Highways shall be as specified below in case of new installations. S.No. Cluster/Crusher Distance Between Green Crusher/Cluster, Belt area National/State at the Highways Periphery 01 Single Crusher 100 mts. 05 mts.

    02      100 Crusher       150 mts.           10 mts.
    03      25 Crusher        250 mts.           30 mts.
    04      50 Crusher        300 mts.           50 mts.

Note: The crusher boundary implies the line joining all emission sources such as jaw crusher, conveyer belt head rotary screen etc. in the crushing unit.

2. If the distance between two crushers is more than 100 mts., it will be considered as a single crusher. If, the distance between the crusher boundaries is less than 100 mts., it will be considered as a cluster.

3. In respect of Residential area, No Stone crushing industries are to be allowed to operate within 500 mts from Residential area as per the orders of Hon'ble Supreme Court 5 of India in the Civil Appeal No. 10732/1995 dated 25/04/06.

4. The stone crusher shall obtain NOC from local body/Gramsabha in prescribed form [Enclosure -1].

5. Existing crushers which are near the National or State Highway and not meeting the above criteria should provide a 15 to 20 feet wall on all the three sides [parallel to National/State Highway and both the sides] and up to the length to be stipulated on the alignment of road and boundary of the crusher.

B Air Pollution Control Measures:

1. Screening of Crushed Material:

i. The screen should be enclosed with M.S. Sheets and a fan connected with motor to extract the dust generated during screening operation should be installed. Dust should be vented into a chamber wherein water sprinklers shall be provided for dust suppression.

ii. Dust conveyor and dropping of dust and zero gitti on to the ground from the conveyors:

A telescopic chute should be provided at the end of dropping zero gitti and dust/fines. Suitable water sprinkling system shall be provided to reduce the dust emission.

iii. Raw Material unloading and Conveying:

[a] Temporary water sprinklers shall be provided at the time of unloading from the truck/tipper.

[b] The unit should provide water sprinklers on the conveyor carrying raw material from bunker/bin to the crusher. The water should be sprayed in the form of mist with the help of a motor.

2. Existing stone crushers should develop green belt of 5 mtrs. width all around the premises for improvement of environment in general.

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3. Periodical cleaning of the water spray nozzles should be carried out to avoid chocking.

4. Fine dust accumulated in the crushing area should be periodically cleaned and the dumps should be covered with tarpaulin to arrest erosion by wind.

5. The approach road should be properly developed and should be sprayed with water.

Similarly the approach road to individual crushers should be made in good conditions and watered.

6. The drop height of the processed material should be kept at a minimum during loading and unloading.

7. Conveyer chute should be provided at the discharge points.

8. As an occupational safety, all the workers should be provided with nose masks.

9. The green belt will restrict the spread of particulate matter and trees should be evergreen high foliage type like neem, tamarind, mango and any other local varieties are recommended.

10. Ornamental trees like Ashoka along the roads on both sides leading to the crushers area should be encouraged to improve the aesthetics of the working environment.

11. The stone crushers should be located within quarry or near the quarry areas."

Discussion on merits

5. After having noticed the factual matrix of the case and the guidelines formulated by the Board, the legality of which is in question in the present application, we shall now proceed to deal with the respective contentions raised on behalf of the applicant.

6. It is the contention of the applicant that the said guidelines do not have the force of law and thus, cannot be a relevant 7 consideration for declining the consent by the Board. No doubt, the Board is a creation of the statute and is bound by the provisions of the statute itself. However, it cannot perform any act, which the law by which it is created, does not so permit. In this regard, we must refer to certain provisions of the Air Act. The Air Act was enacted with the object to provide for prevention, control and abatement of pollution caused by air. For prevention and control of the same, the Pollution Control Boards were constituted by assigning them such powers and functions as are necessary for achievement of the above objectives. To put it precisely, the primary and the sole object of the legislature in constituting such Boards under the provisions of the Air Act was, firstly, to put a check on air pollution and secondly, to ensure the preservation of the quality of air and providing the same to the citizens of the country. The provisions of Section 17 of the Air Act state the functions, which the State Boards are expected to perform, subject to the provisions of the Air Act and without prejudice to the performance of its functions, if any, under the Water (Prevention and Control of Pollution) Act, 1974. The legislature, in its wisdom envisaged various specific functions to be performed by the Boards under clauses (a) to (i) of sub-section (1) of Section 17 of the Air Act. Clause (j) of sub-section (1) of Section 17 of the Air Act is the residuary power of the Board, which is of wide amplitude and empowers the Board to do such other things and to perform such other acts, as it may deem necessary for the proper discharge of its functions, and generally for the purpose of carrying into effect the purposes of this Act. 8 This residuary function of the Board thus has a dual purpose - (i) to discharge its functions more appropriately as a whole, and (ii) to carry out the purposes of the Air Act. Whatever is incumbent in the interest of achievement of these two objects, the Board would be deemed to have been vested with such powers. There shall be a direct nexus between the things or acts under the statute that the Board in exercise of its residuary powers intends to do or perform for its own purposes. This nexus is essential, but once such nexus is established and the action of the Board is found to be in public interest and in consonance with the object of the Act, the courts would be reluctant to take a view that such an action or thing was beyond the scope of the power vested in the Board under Section 17(1)(j) of the Air Act.

7. In the present case, the guidelines have been issued by the Board in discharge of its functions to ensure prevention and control of air pollution, that may be caused due to operation of stone crushers. These guidelines have been framed by the Board for its own purposes as well as for the general public, the members of which may be interested in establishing and carrying on the business of stone crushing. It cannot be disputed that the operation of stone crushers results invariably in discharge of various air pollutants into the air. Thus, regulating and controlling operation of the same is essential to ensure maintenance of the prescribed standards in relation to air quality. These guidelines are binding on the Board as well as on the interested individuals and they are uniformly applicable to all concerned.

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8. At this stage, we may now make a reference to the judgment of the Supreme Court in the case of Kennedy Valley Welfare Association (supra) where the Supreme Court, not only upheld the judgment of the Ld. Single Judge of the High Court of Madras, that had accepted the recommendations of an Expert Committee thereby, banning operation of stone crushers and quarries within a radius of 500 metres of residential area and in 'paragraph 5' of the judgment, the Supreme Court itself imposed that restriction. Paragraph 5 of the judgment reads as under:

"...No quarrying of blue metal shall be permitted within 500 meters of the residential area and permitted only if they are beyond the limit of 500 meters of the residential area and strictly follow the procedures required by the Mines and Safety regulations. Such quarrying, however, can be allowed by the respondent-State only at such- places and in such area which do not in any manner endanger human life and if there is any likelihood of danger to any grass or plant. In such cases the state Government after satisfying about the requirement of the community at large may surrender the need of the environment to a limited extent.

*** We have examined the recommendations of the Committee, we are of the view that the learned Single Judge rightly accepted the report of the Committee and issued the directions banning operation of Stone-Crushers and quarries within the radius of 500 meters of the residential area. The Division Bench was not justified in reducing the area restriction from 500 meters to 50 meters in respect of the quarries. The Division Bench also issued further directions in modification of the directions issued by the learned Single Judge which were not warranted in the facts of the case."

9. The above direction, issued by the Supreme Court of India, is the law of the land and is binding on all concerned, in terms of Articles 141 and 142 of the Constitution of India. 10

10. After declaration of law by the Supreme Court in Kennedy Valley Welfare Association (supra) in the year 2000, the Madhya Pradesh Pollution Control Board met on 5th January, 2004. While preparing a 100-day Action Plan, it took into consideration the guidelines prepared by other Pollution Control Boards of the country, and issued the questioned guidelines, specifically taking note of the scenario of the stone crushers in the State of Madhya Pradesh, the extent of pollution being caused by them and the necessity for issuing such guidelines. The guidelines issued by the State Board specifically refers to the Civil Appeal No. 10732 of 1995, as decided by the Supreme Court i.e. in Kennedy Valley Welfare Association (supra). In fact, it was with an intention to comply with the directions of the Supreme Court that the Board formulated the guidelines in question.

11. The stone crushers are required to take consent of the Pollution Control Board for carrying on their activities. It will even otherwise be just, fair and in the interest of the administration and transparency that such guidelines are framed and are made public, so that all concerned are aware of the same. This itself would help in eliminating the element of arbitrariness in exercise of the powers by the Board. Thus, for these reasons, we have no hesitation in holding that the above guidelines dated, 5th January, 2004 issued by the Board are valid, have the force of law and are binding on all concerned.

12. Having rejected the first contention put up on behalf of the applicant, it will, in our view, be convenient to discuss the contentions (b) and (c) raised on behalf of the applicant together. 11

13. The applicability of 'paragraph 3' of the guidelines issued by the MP Pollution Control Board dated, 5th January, 2004 will depend upon the interpretation of the expression 'residential area' in that paragraph. In fact, the meaning and interpretation of the same is the core controversy in the present case. In order to illustratively understand the connotation of the expression 'residential area' it is necessary to explain the word 'residence' first. The Black's Dictionary, 8th ed. says 'residence' means bodily presence of inhabitants in a given place.

14. The Supreme Court in Jeewanti Pandey v. Kishan Chandra (1981)4 SCC 517 held that the word 'resides' is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation. The dictionary meaning of the word 'resides' denotes the place where a person or where his family eats, drinks or sleeps.

15. The Wharton Law Lexicon explains the expression 'residence' as a concept that may be transitory. It reads as under:

"Even when qualified by the word 'ordinarily', the word 'resident' would not result in construction having the effect of a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being 'ordinarily resident' at a particular place is incapable of ensuring nexus between him and the place in question. Kuldip Nayar v. Union of India AIR 2006 SC 3127.

Residence, is flexible and must be construed according to the object and intent of the particular legislation where it may be found. It must be something more that occupation during occasional usual visits within the local limits of the court, more specially when there is residence outside those limits marked with a considerable 12 measure of continuance, Paster J. S. Singh v. Jyotsana Singh, AIR 1982 MP 122 [See Divorce Act, 1989, Section 3 (3)].

Residence, is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of 'residence'. There are two classifications of the meaning of the word 'residence'. First is the in the form of permanent and temporary residence and the second classification is based on de facto and de jure residence. De facto residence is also to be understood as a place where one regularly resides as different to the places where he is connected to by mere ancestral connections or political connections or connection by marriage, Bhagwan Dass v. Kamal Abrol, AIR 2005 SC 2583.

Residence, may be defined as one who resides in place or one who dwells in place for considerable period of time. One who merely works in certain locality or place of casual visit are different from place of 'residence' Bhagwan Dass v. Kamal Abrol, AIR 2005 SC 2583.

Abode; also the continuance of a person or vicar on his benefice. It is upon the supposition of residence that the law styles every parochial minister an incumbent.

By the (English) Pluralities Act 1838 (1 & 2 Vict.c.106), repealing former Acts, every spiritual person (with exception for heads of houses in the universities and others) holding a benefice, which comprises all parochial churches, perpetual curacies, chapels, and church or chapel districts, if with cure of souls, shall reside on his benefice, in the house of residence; and if he absent himself (without licence from the bishop, grantable by s.43 for incapacity of mind or body, or illness of wife or child for six months) for more than three months in any year, he shall forfeit, unless resident at some other of his benefices, a certain portion of the value of his benefice. It is further provided that annual returns of residents and non-residents must be made to the Sovereign in Council; and that in case of non-residents, the 13 bishop, instead of enforcing the penalties, may issue a monition, to be followed up by an order to reside; and in case of non-compliance, may sequester the profits of the benefice and apply them to the purposes in the Act specified."

16. From the above detailed explanation and meaning given to these expressions, it is clear that in common usage and in different decisions, many definitions have been attributed to the word 'residence'. It is difficult to give an exact definition and explanation for the term 'residence' as it is flexible and elastic in nature and it must be read in conjunction with the relevant provision where it appears and the object that it seeks to achieve. Having explained these expressions, the significant corollary thereto, is as to how such expressions shall, when appearing in a social legislation, be construed. The Air Act is a welfare legislation and is intended to protect the citizenry against pollution of air. Right to clean environment is now recognised as a fundamental right within the ambit of Article 21 of the Constitution of India. In that sense, it is even a beneficial legislation as it is intended to provide benefits to the society by ensuring prevention and control of air pollution. In the case of social welfare and even beneficial legislation, it is always advisable to adopt the principle of purposive construction. This doctrine helps in providing an interpretation to such a provision that the legislature actually intended including attainment of the object of the statute. At this stage, we may usefully refer to "Principles of Statutory Interpretation" by Justice G.P. Singh, 13th ed. 2012 where it has been stated as follows:

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"A mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficent legislation to futility. As stated in IYER. J "to be literal in meaning is to see the skin and miss the soul."The judicial key to construction is the composite perception of the deha and dehi of the provision. Even in construing enactments such as those prescribing a period of limitation for initiation of proceedings where the purpose is only to intimate the people that after lapse of a certain time from a certain event a proceeding will not be entertained and where a strict grammatical construction is normally the only safe guide., a literal and mechanical construction may have to be disregarded if it conflicts with some essential requirement of fair play and natural justice which the Legislature never intended to throw overboard. Similarly in a taxing statute provisions enacted to prevent tax evasion are given a liberal construction to effectuate the purpose of suppressing tax evasion although provisions imposing a charge are construed strictly where being no apriori liability to pay a tax and the purpose of charging section being only to levy a charge on persons and activities brought within its clear terms."

17. The principles were further stated in this very book as under:

"Liberal construction was recently adopted in interpreting Section 123 (c) of the Railways Act 1989 which defines 'untoward accident' to include 'accidental falling of a passenger from a train carrying passengers'. The question is the case was whether the expression 'untoward accident' as defined will also cover the case of a passenger who fell down and died while trying to board the train and his dependants will be entitled to compensation under Section 124A of the Act. In answering this question in the affirmative the Court said: No doubt, it is possible that two interpretations can be given to the expression 'accidental felling of a passenger from a train carrying passengers', the first being that it only applies when a person has actually got inside the train and thereafter falls from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do. Since 15 the provision for compensation in Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and a technical one. Hence, in our opinion the latter of the abovementioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred. It has also been held by the Court that in the case of a social benefit oriented legislation like the Consumer Protection Act, the provisions of the Act have to be considered as broadly as possible in favour of the consumer in order to achieve the purpose of the enactment but without doing violence to the language.

The normal rule of interpretation of statute is that normally courts would not add or subtract words in the process of interpretation. However, this principle is subject to a rare exception. The exception is that courts can correct obvious drafting errors and so in suitable cases, the courts will add or omit or substitute words but before interpreting a statute in this way, the courts must always ensure three matters - (i) intended purpose of the statute in question (ii) intention and presumption of the Parliament to give effect to that purpose in the provisions in question, and (iii) the substance of the provisions the Parliament would have made although errors had been noticed (Refer Inco Europe Limited v. First Choice Distribution 2000(2) All England Reports 109-115)."

18. The Indian courts have also permitted departure from the rule of literal construction so as to avoid the statute becoming meaningless. Normally, it is not allowable to read words in a statute which are not there but where the alternative allows either by supplying words which appear to have been accidentally omitted or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words - Surjit Singh v. Union of India 1991(2) SCC 87 and Surajul Sunni Board v. Union of India AIR 1959 SC 198.

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19. Useful reference can also be made to the dictum of the Supreme Court in relation to interpretation of Social Welfare Association in the case of Hindustan Lever Limited v. Ashok Vishnu Kate and Ors. (1996)ILLJ899SC where the court held as under:

"41. In this connection, we may usefully turn to the decision of this Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, (1985)IILLJ539SC wherein Chinnappa Reddy, J., in para 4 of the Report has made the following observations:

The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to liliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the 'colour', the 'content' and the context of such statutes (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations."

20. From the analysis of the above principle, it is crystal clear that in the case of a social or beneficial legislation, the Court or Tribunals are to adopt a liberal and purposive construction as the above rule of literal construction. Social or beneficial legislation is intended to achieve a much greater purpose and the very purpose of enacting such law could be frustrated by application 17 of stringent rules of construction. The purpose, in the present case, is to ensure clear and pollution-free air quality to the citizens of the country, and therefore, it is necessary to regulate carrying on of such businesses which cause or which are likely to cause pollution of air. Carrying on a business, trade or profession is a fundamental right guaranteed to an individual in terms of Article 19(1)(g) of the Constitution of India but such a right is subject to reasonable restrictions and limitations. The concept of limitations and reasonable restrictions is not only inbuilt in the Constitutional scheme of India but is specifically incorporated in different Articles of the Constitution with emphasis on sub-clause 6 of Article 19(1). Thus, the applicant cannot contend that he has the right to carry on the business of stone crushing, free of restrictions and limitations. Restrictions may be imposed by law that is in force or which may be enacted by the State in the interest of general public. The restrictions, inter alia, and in particular relate to technical qualifications of carrying on any profession, business or trade. The restriction imposed in relation to adherence to prescribed parameters of emissions under the Air Act thus is a restriction made by law, as the Supreme Court held in the case of N.D. Jayal v. Union of India (2004) 9 SCC 362. The concept of welfare, in a Constitutional democracy, does not mean that we only have to strive for fulfilment of political theory - greatest good of greatest number. Our motto from Vedic times has been Sarva Jan Hitay Sarva Jan Sukhay i.e. benefit of all and happiness of all.

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21. Thus, while interpreting the expressions used by the Board in its guidelines for discharging its statutory functions, these have to be construed liberally, and if necessary, the Tribunal may even supply the requisite and necessary words or read the words with such expanded meaning that would help in furthering the cause of the statute for the larger public good. Now let us revert to examination of the expression 'residential area'. 'Residential area' obviously means an area which is being used for residence. In other words, it is an area where people reside. Residence is not an expression that can be interpreted or explained in isolation. It must essentially relate to 'human activity'. Human activity is of essence for understanding or even explaining the expression 'residential area'. The ethos of this expression are activities performed by human beings where they spend time, breath or sit for a reasonable time. Residential area can hardly be imagined de hors the human activity. Human activity is the essence and all regular and frequent activities in the case of living beings performed by individuals would ultimately connote the premises as a residential area. The expression 'residential area', read in the context of the guidelines dated, 5th January, 2004, cannot be given a meaning which would result in frustrating their very object and purpose, and also of the relevant provisions of law. The purpose of providing a distance of 500 metres from the residential area is to protect the human beings living in that area and not the buildings per se. The Supreme Court of India upheld such restriction of banning operations of stone crushers and quarries within the radius of 500 metres of the residential area. 19 Even in its judgment, the Supreme Court used the expression 'residential area' in its generic sense.

22. Schools, where large number of young children spend larger part of their day in the normal and regular course of their lives to receive education would be an area that would essentially fall in the expression 'residential area'. The guidelines have to be read collectively and in conjunction with the provisions of the Air Act. On a conjunctive reading, it becomes obvious that the purpose is to protect human beings from their health being adversely affected as a result of contamination of air by running of stone crushers at a distance shorter than 500 metres. Education is a normal feature of human living. The children spend a considerable amount of time in the classrooms and also in the open area around their schools. It is a matter of common knowledge that even in small villages, classes are held in the open area. In other words, the students spend 5 to 6 hours daily in their schools.

23. At this stage, we notice some of the adverse impacts of such activity, which have been scientifically analysed, in relation to air and noise pollution with specific reference to children. Children are prone to higher effects of air pollution than adults as they consume much larger quantity of air per unit body weight that exposes them to higher degree of air pollution. Max Kilber, as early as in 1932, invented the theory of "Inverse Size Matter Metabolic Rate Law". This theory supports what we have stated above. Thus, adverse environmental impacts of running of stone crushing units in the vicinity of a school cannot be ignored or 20 ousted on the plea of it not being covered under as residential area.

24. Similarly, the noise generated by the stone crushers will adversely affect the concentration level of children. Such activity is likely to hamper their ultimate performance. Noise has a 'masking' effect. Although a subdued noise is understandable in a quiet room, it is difficult to understand even a raised voice in noisy environment, like working of a stone crusher. This drowning or 'masking' occurs as a result of excitation of auditory nerve cells. In other words, it affects the understanding, concentration and capacity of the children to attentively listen to the lectures of their teachers. Persistent noise has long-term as well as short-term effects on health of children.

25. The activities of the teachers, students and rest of the staff in such institutions satisfy the basic ingredients of a 'residential area'. Such activities get adversely affected by the air and noise pollution resulting from carrying on of activities like stone crushing within a short distance. The purpose of including 'residential area' within the ambit of the prohibition is to safeguard human existence from the ill effects of environmental pollution in those areas. All of them have the fundamental right in terms of Article 21 of the Constitution to breathe fresh air that is free of pollution. The right of the applicant to carry on the business of stone crushing is subject to limitations of law. He cannot find an escape from complying with the law on such flimsy grounds. His private interest must give in to the public interest of the students, teachers and staff at large. The conflict 21 between public interest and private interest has to be resolved on the touch stone of the maxim Salus populi est suprema lex.

26. The framers of the guidelines have not used the words educational, religious or other institutions in 'paragraph 3' of the guidelines dated 5th January, 2004. This necessarily does not follow that they intended to specifically exclude all these expressions from the ambit of residential area. In our considered view, the expression 'residential area' read in context with the other paragraphs of the guidelines, its object and the statutory provision of the Air Act does not justify exclusion, specific or even implied. This expression has to be construed as inclusive of what ought to have been spelt out by the framers of the guidelines. The Tribunal shall have to supply the gaps which are necessary for attaining the object and purpose not only of the guidelines but the Air Act itself. Hence, reading into such institutions where effective human activity is carried on in its normal course and persons spend considerable time in such institutions, would by necessary implication be the part of the extended connotation of residential area. Thus, we will give liberal construction to the expression 'residential area' used in paragraph 3 of the guidelines dated 5th January, 2004 and read into the said expression being inclusive of school activity or educational activity.

27. While referring to the prescribed classification of industries, a feeble attempt was made by the learned counsel appearing for the applicant to claim that the stone crushing unit was a non- polluting one. According to him, the Board classifies the industries into red, the orange and green categories. The 22 contention is that the applicant does not fall in red category i.e. seriously polluting industry but falls in orange category under item No.22 and thus is a moderate polluter. After taking the requisite measures for preventing pollution, the industry should be permitted to carry on its business despite the condition of 500 metres, as elucidated in the guidelines afore referred. This contention, however, does not impress us once there is a prohibition which is not only in the form of restriction under the guidelines dated, 5th January, 2004 but is even completely prohibitive under the judgment of the Supreme Court in the case of the Kennedy Valley Welfare Association (supra). Thus, we have no hesitation to reject this contention of the applicant as well.

28. Lastly, it was contended that different State Boards in the country had used different and specific expressions wherever the Boards wanted to include educational institutions to which the prohibitions/restrictions provided in the guidelines were applicable. Unlike other Boards, the Board of Madhya Pradesh has not specifically included educational institutions in 'para 3' of the guidelines dated, 5th January, 2004. The said restriction cannot be applied in the case of the applicant. The Tamil Nadu Pollution Control Board has also not specifically used the expression 'educational activity'. However, it has used the word places of public importance. The Karnataka State Pollution Control Board, while placing such restrictions, has used the word 'school/educational institution' along with other places. The Punjab Pollution Control Board has specifically used the words 'educational institutions' along with other places and has also 23 reduced the distance to 300 metres. While relying upon such clauses contained in different guidelines of various Boards, the contention of the applicant is that the specific exclusion of the expression 'educational institution' renders the restriction under the guidelines non-applicable against the applicant. The restriction is incapable of being applied against the applicant. This contention is again equally without merit. After the judgment of the Supreme Court in the case of Kennedy Valley Welfare Association (supra) this controversy is rendered completely irrelevant. Uniformity in the language of the guidelines issued by different Boards would help the cause but that would not ipso facto be of any advantage to the applicant. The applicant is bound by the law as declared by the Supreme Court as well as by 'clause 3' of the guidelines dated, 5th January, 2004, issued by the Madhya Pradesh Pollution Control Board. We have held that the residential area would deem to include an educational activity. It cannot be excluded on any of the premises advanced by the applicant. The applicant must not, therefore, be permitted to carry on the stone crushing activity within 500 metres of the school area. It is an admitted position before us that the distance between two schools and the stone crushing unit of the applicant is less than 500 metres. Emission of dust and other particles from the stone crushing is inevitable. Its adverse impact on the health of the young children, teachers and staff is indisputable. Thus, we see no reason to interfere with the order of the Board dated 11th August, 2011 and that of the appellate authority dated 13th December, 2011. For the reasons afore recorded, we find no 24 merits in the present application (appeal). The same is dismissed while, however, leaving the parties to bear their own costs.

Justice Swatanter Kumar Chairperson Justice U.D. Salvi Judicial Member Dr. D.K. Agrawal Expert Member Prof. A.R. Yousuf Expert Member Dr. R.C. Trivedi Expert Member New Delhi May 09, 2013 25