JUDGMENT A.S. Naidu, J.

1. This writ application under Article 226 of the Constitution of India has been brought about by the inhabitants of village Dungura and its nearby villages situated in the district of Balasore by way of public interest litigation and raises some important questions concerning the true scope and ambit of environmental protection. The petitioners are aggrieved by the permission accorded by the Collector, Balasore to opposite party No. 6 for installing and operating a 'Stone Crusher Unit' within, according to the petitioners, a thickly populated village area, without taking note of the environmental hazards and consequential damage to the crops which may be caused due to installation and operation of the said Stone Crusher. The petitioners seek protection of life and livelihood of the inhabitants of the locality and pray for commanding the opposite party-authorities to cancel the permission so granted and to restrain opposite party No. 6 from establishing and operating the Stone Crusher Unit.

2. The petitioners have alleged in the writ application that the inhabitants of four Grama Panchayats mostly depend on agriculture. In or around the place, where permission is accorded to opposite party No. 6 to instal the Stone Crusher, a vast area of about 500 hects. of agricultural land is situated. These lands are highly fertile and the crops will be badly damaged if the dust particles coming out of the Crusher are permitted to accumulate on the agricultural field. Installation of the Crusher Unit by opposite party No. 6 will also cause air pollution leading to different diseases. The petitioners further allege that the authorities without observing the required paraphernalia and without sacrosanctly following the provisions of law, on the basis of certain reports submitted by the persons interested, accorded the permission. The Pollution Control Board, whose permission is mandatorily required to be obtained before installation of Crusher Units, has neither supervised the unit nor has accorded permission. It is also alleged that the villagers have submitted a representation before the Collector, Balasore ventilating their grievance, but unfortunately no action has been taken.

3. After receiving the Rule issued by this Court, a Counter-affidavit has been filed by opposite parties 1 to 3, namely, the Collector, Balasore; the Tahsildar, Soro; and Block Development Officer, Khaira. A further counter-affidavit has also been filed by opposite party No. 6, in whose favour the permission to run the Crusher unit has been accorded. The Chairman of the State Pollution Control Board has also filed a counter-affidavit.

Opposite party No. 6, who is the main contestant in the case, strongly repudiated the allegations made in the writ application. It is specifically averred that before according permission, all necessary paraphernalia were sacrosanctly followed by opposite parties 1 to 4, in as much as they visited the place where the Crusher Unit was going to be established. They also conducted a survey and basing upon the report submitted by the revenue authorities as well as the field staff and after due application of mind and being satisfied that installation of the Crusher Unit at the location would not in any way cause any hindrance either to agricultural operation or health hazard to the local inhabitants, accorded necessary permission. It is submitted by opposite party No. 6 that after surveying the location which was fit for establishing the Stone Crusher, he purchased Ac. 0.81 decimals of land by registered documents from a Sthitiban Raiyat for the purpose of establishing the Stone Crusher on February 2, 2001. Thereafter he filed an application before the Collector, Balasore for according permission to instal the Crusher Unit. On 24th April, 2001, a joint enquiry was conducted by the statutory authorities, i.e. The Tahsildar, Soro; Regional Officer I/C. of State Pollution Control Board, Bhubaneswar; Inspector of Factories and Boiler, Balasore and the Assistant Manager (SS). D.I.C., Balasore and the following facts revealed in the said enquiry ;

1. Distance from National National Highway-V is and State Highways - morethan 10 Kms away.

 2. Distance from nearby The nearby villages
    town or village and         Manoharpur, Goliha,
    human habitation -          Kantabania, Goliha
                                Madhab and Indipur are                                                       more than one Km away.
3.  Existence of any Stone Nil
    Crushing Unit within
    half Kilometre.  
 

4. On the basis of the aforesaid factual aspects, installation of the Crusher Unit was recommended subject to adoption of the Pollution Control measures and compliance with the environmental quality standards stipulated in the Environment (Protection) Rules, 1986 and subject to other compliance, such as installing :

1. Dust containment-cum-suppression system of the equipment.

2. Construction of wind-breaking walls.

3. Construction of metalled roads within the premises.

4. Regular cleaning and wetting of the ground.

5. Growth of thick green belt along the periphery of the unit.

6. The contribution value of suspended particulate matters at a distance of 40 m. away from the unit shall be less than 600 micrograms/cu. meter; and

7. Conversion of land u/s. 8A of the O.L.R. Act, 1960.

5. After the recommendation was made by the said enquiry committee, vide Annexure D/5, opposite party No. 6 applied to the O.L.R. authorities for conversion of the land from agricultural category to industrial category under Section 8-A of the O.L.R. Act. He also obtained the certificate of registration of a small scale industrial unit from the D.I.C., Balasore. He applied for quarry licence and the same was granted on 12th June, 2001, He incurred loan from the Orissa State Financial Corporation, purchased the machinery and other ancillary equipments, and also obtained electricity connection. It is averred that he incurred a loan of Rs. 10.81 lakhs from the Orissa State Financial Corporation and apart from depositing Rs. 37,108.00 as service connection charges with the Electricity Department, incurred other expenses.

6. Opposite party Nos. 1 to 3 in their counter-affidavit have specifically averred that after conducting a field enquiry by an expert committee and examining the pros and cons like distance from the nearby villages (habitation) and other surrounding agricultural lands, as well as other mandatory requirements, and being satisfied that there was absolutely no hindrance if the Stone Crusher Unit would be established at the site in question, the permission was accorded subject to pollution control measures as enumerated in the recommendation letter. It is submitted that opposite party No. 6 was required to adopt the following measures after installation of the Crusher Unit :

1. Dust containment-cum-suppression system for the equipment was to be established to stop the flow of dust.

2. Wind-breaking walls surrounding the Crushing Machine was to be constructed to prevent flow of dust.

3. Within the premises, metalled road was to be constructed.

4. Regular cleaning and wetting of the ground within the premises was to be made.

5. Growing of thick green belt within the premises and along the periphery was to be raised.

6. Necessary permission for conversion of agricultural land for non-agricultural use was to be obtained by opposite party No. 6 from the Tahsildar, Soro under the provisions of the O.L.R. Act.

7. The unit holder must take necessary safety precautionary measures of the workmen.

8. The operation of the Unit would not be associated with any or nearby unauthorised quarry and blasting activities; and

9. The contribution value of suspended particulate matters (SPM) at a distance of 40 metres away from the unit would contain less than 600 microgram/cubic metres and that should not disturb the National Ambient Air Quality Standard of particulate matters of 200 microgram/ cubic metres.

It is also submitted that if opposite party No. 6 will fail to comply with any of the conditions stipulated in the order, the permission will be liable to be withdrawn. The assertions made in the writ application are denied by the authorities.

7. The Pollution Control Board has filed a separate counter-affidavit inter alia submitting that the villages around the place where the Crusher Unit is scheduled to be set up do not come within the air pollution control area as declared by the State Government after consultation with the State Pollution Control Board in exercise of the powers conferred under Sub-section (1) of Section 19 of the Air (Prevention and Control of Pollution) Act, 1981. It is also averred that for setting up the Crusher Unit in the scheduled village prior permission is not mandatory and only after the unit starts functioning, the Pollution Control Board is to inspect the unit and find out whether all the pollution control measures and precautions have been complied with or not. It is also averred that if in course of inspection it is detected that the unit is not satisfying the pollution measures, necessary action as contemplated under the Rules would be initiated and the unit may be directed to be closed.

8. In course of arguments, several other affidavits, counter-affidavits and rejoinder-affidavits were filed by the parties, thereby enlarging the scope of the writ application. Mr. S. P. Misra, learned counsel for the petitioners, filed a map and submitted that the Crusher Unit in question is proposed to be established in the midst of the local habitats and agricultural fields. On the other hand, Mr. K. N. Jena, learned counsel for opposite party No. 6, strongly denied the said facts and emphatically submitted that there is no human habitation within 100 metres from the place where the unit is proposed to be established. Both the counsel have not only filed voluminous documents, but have also filed affidavits contradicting each other's submissions. Mr. Misra strongly criticised the way the enquiry was conducted and brought to our notice different contradictory notings made in course of field enquiry as well as in the report, vis-a-vis the order of recommendation. It is also contended by Mr. Misra that the authorities have not followed the procedure while according permission to convert the status of the land from 'Agricultural' to 'Industrial' under Section 8A of the O.L.R. Act, in as much as the land was converted first and thereafter permission was sought for.

Mr. Jena submitted that the application for permission under Section 8-A of the O.L.R. Act was made only after the recommendation, as the same was a condition precedent. The permission was accorded by the O.L.R, authorities in accordance with law and no irregularities have been committed. It is also submitted that the order passed by the O.L.R. authorities is beyond the scope of this writ petition.

Mr. Jena also forcefully submitted that the authorities have discharge their duties in their regular course of business and any criticism is not only un-called for, but the same should be ignored. It is submitted that opposite party No. 6 is a bona fide Small Scale Industrialist who has incurred huge loan for establishing the unit after the permission was accorded. Thus any interference at this stage would cause great prejudice to him.

9. Mr. P.K. Mohanty, learned Addl. Govt. Advocate, while supporting the reports submitted by the concerned authorities as well as the recommendation made by the committee consisting of senior officers, once again reiterated that the permission so granted is a conditional one, subject to fulfilment of certain mandatory requirements to avoid pollution. Opposite party No. 6 is required to sacrosanctly follow the stipulations made in the order of permission, and any violation of the said conditions would entail cancellation of the permission. It was submitted that if the conditions imposed in the permission order are satisfied, there would be absolutely no threat to the environment, nor any infringement of the air pollution norms.

10. Mr. Alekh Chandra Mohanty, learned counsel appearing for the Pollution Control Board, also submitted that the Board would inspect the unit intermittently and if any of the norms are flouted, or if there is a threat to the environment, the Board has the right to direct the unit to be closed down.

11. Mr. Misra, learned counsel for the petitioners, relying upon the decisions reported in AIR 1992 Orissa 225 (M. C. Mehta v. State of Orissa): AIR 1999 SC 812 (A. P. Pollution Control Board v. Prof. M.V. Nayudu and Ors.) 80 (1995) CLT 588 (Samsad Khan v. Agrawal Graphite Industries and Ors.); and 1996(2) OLR 546 (Bhawani Shankar Satpathy v. State of Orissa) strenuously submitted that this Court should direct constitution of a Committee to make an indepth study of the problem before allowing opposite party No. 6 to establish the unit. Mr. Jena, relying upon the decision in A. P. Pollution Control Board v. Prof. M.V. Nayudu and Ors., AIR 1999 SC 812 (supra) submitted that the provisions for prevention of pollution and environment pollution are only regulatory in nature. In this era of rapid growth of industries, to keep pace with the modern world, a balance has to be struck by courts while dealing with the problem of industrial growth, vis-a-vis the environmental hazards. It is asserted that keeping pace with the development of the country and also keeping in mind the ratio of different decisions, the authorities, while permitting opposite party No. 6 to set up the Crusher Unit, have laid down the conditions which would take care of the environment and prevent air pollution. Thus, according to Mr. Jena, absolutely no illegality or irregularity has been committed by the concerned authorities in according permission to opposite party No. 6 to instal the Crusher Unit. It is also alleged that the petitioners wanted certain illegal gratification from opposite party No. 6 and as the latter did not succumb to the same, the present writ application has been filed with an avowed oblique motive of harassing opposite party No. 6 in the garb of public interest litigation, though in fact there is no threat to the crops or to the environment.

12. We have carefully heard the learned counsel for the parties who strenuously took us through the documents filed in the case. The questions raised by the petitioners, if correct, are of great importance, particularly since installation of a Crusher Unit in the midst of human habitats and paddy fields, would not only cause health hazard, but would also cripple the agriculture. The documents relied upon by the parties reveal conflicting opinions regarding the topographical situation of the proposed Crusher Unit. The question is more factual in nature than legal. While exercising our jurisdiction under Article 226 of the Constitution, we feel it is not possible for us to effectively adjudicate the inter se conflicts with regard to factual aspects, like the situation of the Unit.

13. In that view of the matter, we feel that it would be just and proper and also equitable to direct the Collector, opposite party No. 1, to consider as to whether permission can be accorded to opposite party No. 6 to instal the Crusher Unit at the site suggested. If necessary, a high level committee consisting of the experts concerned, should visit the spot after giving notice to opposite party No. 6 and others and conduct enquiry at the spot. After hearing all the parties and taking into consideration the topographical and geographical situation of the proposed site, it would pass necessary orders in accordance with law. The State Pollution Control Board, opposite party No. 4, shall also depute a responsible officer to take part in the enquiry to be conducted by the Committee. The question of according permission to establish the Crusher Unit by opposite party No. 6 shall be subject to result of such enquiry.

In view of the fact that the matter is pending since long, in order to avoid prejudice being caused to any of the parties, we direct that the entire exercise should be culminated within three months of communication of this order. Opposite party No. 6 shall not operate the Crusher Unit till the enquiry is completed and unless and until permission is found to be possible and it is actually granted.

The writ petition is allowed to the above extent.

P.K. Balasubramanyan, C.J.

14. I agree.

I would like to add that the concerned authority under the Orissa Land Reforms Act should ensure that permission for conversion is obtained first before conversion itself takes place. In the present case, that appears to have happened. It should also seriously consider the impact on the adjacent agricultural lands before permission for such a non-agricultural purpose is given.