IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

JUDGMENT 

(1)M/S. RADHEY STONE CRUSHER   vs. RAJ. STATE POLLUTION CONTROL BOARD AND ANR. 
   (S.B.Civil Writ Petition No.5841 of 2010) 

(2) M/S. HARYANA STONE CRUSHER  vs.  RAJ. STATE POLLUTION CONTROL BOARD AND ANR.   
   (S.B.Civil Writ Petition No. 6234 of 2010)

(3) M/S. KARAN GRIT UDHYOG   vs. RAJ. STATE POLLUTION CONTROL BOARD  
    (S.B.Civil Writ Petition No. 6235 of 2010) 

(4)M/S. ASHESHWAR GRAMODYOG  vs. RAJ. STATE POLLUTION CONTROL BOARD  
   (S.B.Civil Writ Petition No. 6236 of 2010) 
(5)M/S.V.K. STONE CRUSHER  vs. RAJ. STATE POLLUTION CONTROL BOARD  
   (S.B.Civil Writ Petition No. 6237 of 2010)  
 
Under Article 226 of the Constitution of India. 
 


Date of Order		:           July  20  , 2010 


PRESENT


  HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA

Mr.S.K.Shukla for the petitioner in SBCW 5841 of 2010
Mr. Rajeev Sogarwal for the petitioners in SBCW 6234, 6235,6236, 6237 of 2010.
Mr. N.A.Naqvi, Additional Advocate General and  Mr. Akhil Simlot for the respondents. 

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REPORTABLE BY THE COURT :

Since all these writ petitions relate to refusal to operate the Stone Crushers in villages Indroli, Angrawali,and Fatehpur in Tehsil Kaman District Bharatpur under the provisions of Section 21 A of the Air (Prevention and Control of Pollution ) Act, 1981 by the Rajasthan State Pollution Control Board and closure of the Stone Crushers in the said villages under section 31 A of the Act, they are being disposed by this common order.

SBCW 5841 OF 2010

2. In this writ petition, the petitioner M/s. Radhye Stone Crusher, prayed as under :

i) Call for the entire record of the case from the Rajasthan State Pollution Control Board.

ii) quash and set aside the impugned orders dated 5.2.2010 Annexures 6 and 7 passed by the learned Member Secretary, Rajasthan State Pollution Control Board being without jurisdiction and contrary to the law.

3. The petitioner has a stone crusher in village Indroli Tehsil Kama, District Bharatpur. The petitioner stated in the writ petition that on the application dated 2.1.2007 submitted by the petitioner, the Rajasthan State Pollution Control Board ( in short State Board) after due enquiry investigation and having satisfied that the crusher of the petitioner has taken all the required anti air pollution control measures granted its consent to establish vide its order dated 31.8.2007 under the provisions of Section 21 of the Air (Prevention and Control of Pollution ) Act, 1981 ( in short Act of 1981). The consent was granted subject to the conditions mentioned in the order. The petitioner also submitted an application for consent to operate its stone crushing plant under the provisions of section 21 of the Air Act. The State Board vide letter dated 31.8.2007 granted consent to the petitioner for operating stone crushing unit for a period upto 30.7.2008. The conditions imposed were the same conditions which were imposed while granting consent to establish. The petitioner stated in the writ petition that the authorities of the State Board forced the petitioner firm to seek consent to operate else the crusher shall be closed down. It has been given out in the petition that the petitioner submitted copies of photographs dated 28.7.2009 showing that (a) metaled road within premises of the crusher (b) vibrating screen has no holes ( c) water spraying systems (d) there exists system of cleaning and wetting of the ground in the premises of the unit (e) roads inside the premises of the unit are metaled. The petitioner submitted application for renewal of consent to operate on 11.9.2008. The unit was inspected by the Board officials on 26.9.2008. It may be mentioned that on 29.12.2008 the State Board issued a show cause notice to the petitioner that the State Government has terminated the mining lease of masonry stone in Kama and Deeg areas. Therefore, there is no lawful source of raw material to feed the stone crusher i.e. other than illicit mining. Besides, this it was mentioned that the stone crusher causes health hazards and nuisance to the pilgrims of Brij Chourasi Kos Prikarama Marg. It was mentioned in the notice as under :

1. Whereas the Air (Prevention and Control of Pollution ) Act, 1981 (hereinafter called as the Act) came into force in the whole of the State of Rajasthan w.e.f. 16.6.1981.

2. And where the Air Act was enacted to provide for the prevention and control of air pollution and for the maintaining and restoring the wholesomeness of air.

3. And whereas keeping this in view of the Air Act Rajasthan State Pollution Control Board ( hereinafter called as the Board) has been conferred powers to take such steps as are necessary for the prevention control and abatement of air pollution.

4. And whereas M/s. Radhey Stone Crusher, (hereinafter called as the industry) is engaged in production of Stone grit and discharges polluted air.

5. And whereas the State Government has terminated the mining leases of masonry stone in the Kama and Deeg area. Therefore, there is no source of raw material to feed the stone crusher except illicit mining.

6. And whereas the industry was inspected by the Board official on 26.9.2008. During the inspection it was observed that :

a) The area covered under plantation is about 15% which is not as per the norms (i.e. 33% of the area of the premises).

b) The system provided at the granulater, roller crusher and dust conveyor for water spraying was not in operative condition.

c) Acoustic enclosure not provided with the DG set.

7. And whereas the stone crusher causes health hazard and nuisance tot he pilgrims of the Brij Chaurasi Kos Parikarma Marg.

8. And whereas the stone crusher is not operating the pollution control measures regularly.

9.And whereas the State Board in order to prevent and control air pollution being caused by the industry is competent to issue any direction under section 31 A of the air act in writing to any person, officer or authority and such person, officer or authority shall be bound to comply with such directions.

The Board in view of the above, sent the notice to the petitioner requiring his objections against intended refusal of consent application and intended closure directions and was directed to submit reply within 15 days to the Environment Engineer with a copy to the Regional Office of the Board at Alwar. It may further be mentioned that a Common Committee constituted by District Collector Bharatpur inspected the petitioner's unit during 11.2.2009 to 13.2.2009. Neither the petitioner nor any of its representatives did appear before the State Board pursuant to the notice dated 29.12.2008. The State Board vide its composite letter dated 22.7.2009 refused consent to operate the crusher and issued show cause notice intending the issuance of the directions under the provisions of section 31 A of the Air Act. The petitioner assailed the orders of the State Board before this Court in S.B.Civil Writ Petition No.10826/2009. This court vide its judgment dated 8.12.2009 quashed and set aside the order dated 22.7.2009 and remitted the matter to the State Board for deciding the matter afresh. The petitioner appeared before the Chairman of the State Board and submitted written submissions on 29.12.2009.

4. The learned counsel for the petitioner averred in the writ petition that by the judgment of this court dated 8.12.2009 the State Board was directed to decide the matter by speaking order after considering the grounds taken in the reply and after providing opportunity of hearing to the petitioner. The petitioner averred that the Chairman of the State Board alone is not legally competent to hear the matter and decide it. Hearing of the matter by the Chairman tantamount to sitting over one's own judgment for the simple reason that the State Board has taken a stand that the State Board has delegated the power to issue the directions under section 31 A to the Chairman. The learned counsel argued that even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject matter.

5. The counsel for the petitioner argued that in case the impugned orders are passed under Air Act then the same requires ratification by the State Board. The learned counsel further argued that the order dated 22.7.2009 and impugned orders dated 5.2.2010 have not been placed before the next meeting of the State Board. Lastly the learned counsel stated that the State Board is defunct as Rukmani Haldiya retired on completion of age of 60. The petitioner's counsel placed reliance on Gujrat Pollution Control Board vs. Nicsulf Industries and Exports Private Limited and others (2009) 2 SCC 171, Mahabir Coke Industry and another vs. Pollution Control Board and others AIR 1998 Gauhati 10 and Animal Feeds Dairies and Chemicals Limited vs. Orissa State Prevention and Control of Pollution Board and others (AIR 1995 Orissa 84)

6. State Board filed reply to the writ petition. A preliminary objection was raised that the petitioner cannot invoke extraordinary jurisdiction of this Court for the reason that he has another alternative efficacious remedy of appeal against the impugned order passed by the State Board before the Appellate authority constituted under the provisions of Section 31 of the Act of 1981. The second objection was that nothing has been placed on record to show that the petitioner unit was operating in accordance with the conditions contained in the consent. The report of the inspection shows that the petitioner violated the terms of the consent. The report is by an expert, who is a public servant and such is directly admissible and relevant in view of section 45 of the Evidence Act. The Apex Court in Andhra Pradesh Pollution Control Board vs. M.V. Nayadu and others (1999 SCC part 2 page 718) has categorically held that in cases of pollution doctrine of reversal of proof would apply. The heavy onus is on the polluter to prove that he is not causing pollution and is meeting all the requires of law. The petitioner is not entitled for any relief in this matter. The entire nearby area where the unit of the petitioner is situated has been declared as reserved/ protected forest and there is no legal source of raw material except that for the illegal mining. Division Bench of this Court in DBCW No. 5525/2004 has given directions to the Director General of Police to create a police chowki there. These directions have been issued based on a report which shows that due to 40 crushers there is an apprehension of illegal mining. The present case is from the same area. Reiterating the facts stated by the petitioner in the writ petition, the respondents averred that the order dated 5.2.2010 passed by the Chairman is a speaking order after considering the submissions made by the petitioner. The Chairman considered all the relevant facts and arguments submitted by the petitioner and the inspection report carried out during 11.2.2009 to 13.2.2009. The respondent in their reply stated that the suspended particulate matter (SPM) is only one factor but is not the sole factor. A reading of the facts shall reveal that consent was granted on certain terms and conditions and any breach thereof is sufficient to take action against the unit. During inspection it was found that vibrator screen was not covered completely, water spraying system at the crusher and transfer points was inadequate, plantation has not been done all along the periphery of the unit to develop green belt, the system for cleaning and wetting of the ground and roads within the premises was inadequate, records regarding monthly production and raw material procured was not available at the unit and acoustic enclosrue not provided with the DG set of 320 KVA. The record regarding details of procurement of raw material and production is important in order to verify and ensure that the raw material is derived from the source of legal mining. Operation of stone crusher based on unauthorised sources perpetrates illegal mining and results into degradation of environment. Earlier action was taken against the petitioner against which writ came to be filed and the matter was remaneded. These very grounds were there in that order against which the petitioner submitted detailed reply and made oral submissions also. All the points raised on his behalf have been discussed and decided as such the petitioner cannot have any complaint with regard to principles of natural justice and opportunity of hearing. The Appellate Authority is in existence and the petitioner could have filed the appeal before it instead of preferring writ petition before this Court, thus the writ petition of the petitioner is liable to be dismissed on this count alone. Mr. Naqvi, Additional Advocate General reiterated the arguments stated in the reply and stated that the alternative remedy is available under section 31 of the Act of 1981 to the petitioner and this writ petition is liable to be rejected on account of availability of alternative remedy by filing appeal. In support of his submission he placed reliance on Vatan Press Sudarma Jaipur vs. Regional Provident Fund Commissioner S.B.Civil Writ Petition No. 9329/2005 decidedd on May 8, 2009 (LLJ 4 (2009) 276. The learned Additional Advocate General also placed reliance on A.P. Pollution Control Board vs. Prof. M.V. Nayudu (Retd. ) and others (1999) 2 SCC 718.

SBCW 6234 The petitioner installed the stone crusher in village Angrawali, Teh. Kaman, Distt. Bharatpur and got the consent to operate the stone crusher vide order dated 30.7.2007 for a period upto 31.8.2009. On 15.3.2008 a show cause notice was given to the petitioner pointing out some irregularities and directed to remove such irregularities. The petitioner filed detailed reply. The State Board gave show cause notice on 6.1.2009 for intended revocation of consent to operate and intended closure directions. The petitioner again filed detailed reply. The State Board passed order dated 22.7.2009 revoking the consent to operate the stone crusher under section 31 A of the Act of 1981. The petitioner filed writ petition before this court and this Court vide order dated 8.12.2009 allowed the writ petition and remitted the matter to the State Board for deciding the same afresh. The petitioner appeared before the Chairman State Board on 22.12.2009. The objection of the petitioner was that without conducting fresh survey of stone crusher the State Board passed order ated 18.11.2009 by which refused to give consent to operate under section 21 of the Act of 1981 and further vide order dated 5.2.2010 issued directions for closure under section 31 Aof the Act of 1981.

The State Board has not filed any reply to the writ petition.

SBCW 6235 of 2010 The petitioner installed the stone crusher in village Fatehpur. Kaman, Distt. Bharatpur and got the consent to operate the stone crusher vide order dated 8.3.2006 and extended the extention for a period upto 31.1.2010. On 15.3.2008 a show cause notice wa given to the petitioner pointing out some irregularities and directed to remove such irregularities. The petitioner filed detailed reply. The State Board gave show cause notice on 2.1.2009 for intended revocation of consent to operate intended closure directions. The petitioner again filed detailed reply. The State Board passed order dated 21.7.2009 revoking the consent to operate the stone crusher under section 31 A of the Act of 1981. The petitioner filed writ petition before this court and this Court vide order dated 8.12.2009 allowed the writ petition and remitted the matter to the State Board for deciding the same afresh. The petitioner appeared before the Chairman State Board on 22.12.2009. The objection of the petitioner was that without passing any order on the application of the renewal of consent which was expired on 31.1.2010, the State Board issued orders dated 4.2.2010 refusal to renew and directions for closure under section 31 Aof the Act of 1981.

The State Board has not filed any reply to the writ petition.

SBCW 6236 of 2010 The petitioner installed the stone crusher in village Fatehpur (Bilang), Thehail Kaman, Distt. Bharatpur and got the consent to operate the stone crusher vide order dated 22.1.2005 and extended the extention for a period upto 30.9.2009. On 15.3.2008 a show cause notice was given to the petitioner pointing out some irregularities and directed to remove such irregularities. The petitioner filed detailed reply. The State Board gave show cause notice on 2.1.2009 for intended revocation of consent to operate and intended closure directions. The petitioner again filed detailed reply. The State Board passed order dated 22.7.2009 revoking the consent to operate the stone crusher under section 31 A of the Act of 1981. The petitioner filed writ petition before this court and this Court vide order dated 8.12.2009 allowed the writ petition and remitted the matter to the State Board for deciding the same afresh. The petitioner appeared before the Chairman State Board on 22.12.2009. The objection of the petitioner was that without conducting any fresh survey of the stone crusher, the State Board passed order dated 18.11.2009 by which consent to operate under Section 21 of the Act of1981 was refused. The State Board issued further order dated 4.2.2010 issued directions for closure under section 31 A of the Act of 1981.

The State Board has not filed any reply to the writ petition.

SBCW 6237 of 2010 The petitioner installed the stone crusher in Tehsil Kaman, Distt. Bharatpur and got the consent to operate the stone crusher vide order dated 14.9.2004 and extended the extension for a period upto 31.9.2009. On 15.3.2008 a show cause notice was given to the petitioner pointing out some irregularities and directed to remove such irregularities. The petitioner filed detailed reply. The State Board gave show cause notice on 2.1.2009 for intended revocation of consent to operate intended closure directions. The petitioner again filed detailed reply. The State Board passed order dated 14.7.2009 revoking the consent to operate the stone crusher under section 31 A of the Act of 1981. The petitioner filed writ petition before this court and this Court vide order dated 8.12.2009 allowed the writ petition and remitted the matter to the State Board for deciding the same afresh. The petitioner appeared before the Chairman State Board on 22.12.2009. The objection of the petitioner was that without conducting any fresh survey of the stone crusher, the State Board passed order ated 18.11.2009 by which consent to operate under Section 21 of the Act of1981 was refused. The State Board issued further order dated 4.2.2010 issued directions for closure under section 31 A of the Act of 1981.

The State Board has not filed any reply to the writ petition.

7. I have heard the learned counsel for the parties and gone through the arguments and cases cited by them. Admittedly under section 31 of Act of 1981 any person aggrieved by an order made by the State Board under this Act may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority referred to as the Appellate Authority as the State Government may think fit to constitute. Sub section (4) of section 31 provides that on receipt of an appeal preferred under sub section (1) the Appellate Authority shall after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible. The Additional Advocate General submitted before this Court Gazette Notification dated May 10, 2010 published in Rajasthan Gazette dated May 14, 2010 where by the State Government as per the powers conferred on it under Section 28 (2) constituted appellate Authority underthe Act of 1981. Admittedly the petitioner has not filed any appeal before the Appellate Authority. In the order Anenxure 6 it was mentioned that the aforesaid order of refusal of consent is appellable before the Appellate Authority constituted by the State Government under section 31 of the Air Act. In the order Annexure-7 also it was mentioned that the aforesaid order issuing directions under section 31 (A) is appellable before the Appellate Authority constituted by the State Government under Section 31 of the Air Act. As per the ratio laid down by this court in Vatan Press Sudarma vs. Regional Provident Fund Commissioner (supra) the writ petition is not maintainable on the ground of availability of an alternate remedy. Thus the writ petitions filed by the petitioners are liable to be rejected on account of availability of alternative remedy under section 31 of the Act of 1981.

8. The respondent State Board filed detailed reply to the writ petition in S.B.Civil Writ Petition No.5841 of 2010 filed by M/s. Shri Radhey Stone Crusher. I have gone through the writ petition as well as the reply filed by the State Board and arguments raised by both the parties on merit also. The order dated 31.8.2007 was passed under the provisions of Section 21 of the Act of 1981) by the State Board, on the application dated 2.1.2007 submitted by the petitioner. The consent was given subject to the following conditions :

i)) That this consent to establish is for existing capacity, plant and process and separate consent to establish as well as consent to operate is required to be taken for anay change in process, plant and product.

ii) That water sprinkling system shall be maintained at different points of process and feed hopper so a to control the emission at source to achieve the prescribed norms.

iii) That the suspended particulate matter (SPM) contribution value at a distancve of 3 to 10 Mtrs. From controlled, isolated as well as from a unit located in a cluster should not be more than 600 ug/m.

(iv) The management shall ensure maintenance of metaled road on the ramp and also the approach road within the premises for movement of vehicles used for transportation of the finished product.

v) That you shall maintain arrangements for regular cleaning of roads and wetting of the gro9und within the premises.

(vi) That the requisite air pollution control measures shall be kept operational all the time.

vi) That for diesel generator set acoustic enclosure shall be provided to meet the prescribed norms with respect to noise as per gazette notification

vii) The industry shall keep noise level within the limit prescribed by the Central Pollution Control Board and as adopted bythe State Board as :

day time : 75 db, night time : 70 db.

Viii) that the management shall ensure tree plantation yo cover 33% of the total area of factory premises the plant species should be planted in such a way that shelterbelt are created along the periphery in wind ward as well as leeward directions. The trees should be planted at a spacing of 5 M x 5 M and another row of shrubs should be added and implemented in following manner :

a) Trees necessarily be planted along the periphery of the area in rows. The nit may also take up additional plantation on other available area such as along the roads, on unused land etc.

b) The computation of the area under tree plantation shall be done on the basis of the following norms :

* Trees species like Neem. Pipal, Jamun, Gulmohar etc. shall be deemed to cover 25 M area o nmaturity.

* Shrubs like Guavaa, Pomegranate, Jungle Jalebi etc. shall be deemed to cover an area of 9 M on maturity.

c) The area likely to be covered by the plants mentioned above shall be computed accordingly. The herbs which require continuous watering for their maintenance shall not be counted to meet the norms though they can be planted bythe management as per their need. The trees/ shrubs planted shall be mainained till they attain maturity and in case any of these die, it will be replaced by a similar species i.e. shrub by a shrub and a tree by a tree.

The petitioner also submitted application for consent to operate its stone crushing plant under the provisions of section 21 of the Air Act. The State Board vide letter dated 31.8.2007 granted consent to the petitioner for operating stone crushing unit for a period upto 30.7.2008. The conditions imposed were the same conditions which were imposed while granting consent to establish.

The petitioner submitted application for renewal of consent to operate on 11.9.2008. The unit was inspected by the Board officials on 26.9.2008. It may be mentioned that on 29.12.2008 the State Board issued a show cause notice to the petitioner that the State Government has terminated the mining leases of masonry stone in the Kama and Deeg areas. It was stated that therefore there is no lawful source of raw material to feed the stone crusher i.e. other than illicit mining. Besides this the stone crusher causes health hazards and nuisance to the pilgrims of Brij Chourasi Kos Prikarama Marg. Objection against intended refusal of consent application and intended closure directions the petitioner was directed to submit reply within 15 days to the Environment Engineer with a copy to the Regional Office of the Board at Alwar. It may further be mentioned that a Common Committee constituted by District Collector Bharatpur inspected the petitioner's unit during 11.2.2009 to 13.2.2009. The Committee noticed the following non-compliance with the conditions :

(i) Vibrator screen was not covered completely.

(ii)Water spraying system at the crusher and transfer points was inadequate.

(iii)The plantation has not been done all along the periphery of the unit to develop green belt.

(iv) The system for cleaning and wetting of the ground and roads within the premises was inadequate

(v)Records regarding monthly production and raw material procured was not available at the unit.

(vi) Acoustic enclosure not provided with the D.G. Set of 320 KVA.

It has been stated that neither the petitioner nor any of its representatives did appear before the State Board pursuant to the notice dated 29.12.2008. The State Board vide its composite letter dated 22.7.2009 refused the consent to operate the crusher and issued show cause notice intending the issuance of the directions under the provisions of section 31 A of the Air Act. The petitioner assailed the orders of the State Board before this Court in S.B.Civil Writ Petition No.10826/2009. This court vide its judgment dated 8.12.2009 quashed and set aside the order dated 22.7.2009 and remitted the matter to the State Board for deciding the matter afresh. The petitioner appeared before the Chairman of the State Board and submitted written submissions on 29.12.2009. The State Board in its order dated 5.2.2010 observed as under :

And whereas upon perusal of the record of the case and consideration of the aforesaid submissions, it transpired that :-

(i) The Chairman of the State Pollution Control Board enjoys duly delegated authority to decide upon the application for renewal of the consent to operate under t he Air Act and the member Secretary has been duly delegated the duty of signing/ endorsing the communication of the orders of the Chairman under the relevant ruels referred to at para 12(i) ogyhjid otfrt

(ii) The decision to refuse the application for consent to o;erate under the Air Act is as per the specific provisions of law and thus it cannot be said to be violative of Article 19, 21 and 300 A of the Constitution of India.

(iii) The industry has failed to satisfy that it has taken adequate measures for control of pollution and could operate its plant without violating the provisions of the Air Act as mentioned at para 12(ii) of this order.

Therefore in view of th aforesaid facts and provisins of law the application of the industry for rebewal of the consent to operate, is hereby refused, under the provisions of Section 21 of the Air Act.

Be noted that :

(i) The aforesaid order of refusal of consent shall be subject to the orders of the Hon'ble High Court in the matter of D.B.Civil Special Appeal; (Writ) No. 443/2010, Rajasthan State Pollution Control Board vs. M/s Shri Radhey Stone Crusher.

(ii)The operation of the industrial plant without the consent of the State Board is violation of the provisions of section 21 and is punishable under section 37(1) of the Air Act, with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine

(iii) The aforesaid order of refusal of consernt is appellable before the Appellate Authority constituted by the State Government under section 31 of the Air Act.

Vide another ordre dated 5.2.2010 issued directions to the petitioner Shri Radhey Stone Crusher for closure of crusher under section 31 A of the Air (Prevention and Control of Pollution ) Act, 1981.

     The Member Secretary of State Board vide its order  dated 27.3.1993 notified that the State    Board resolved as follows:   

Resolved that powers to issue directions under section 33(A) of the Water Prevention and Control of Pollution Act, 1974 and section 31 (A) of the Air Prevention and Control of Pollution Act, 1981,  are delegated to the Chairman. 
           
          Thus,  it is clear that the State Board delegated powers under section 31 (A) of the Act of 1981 to the Chairman of the State Board.       There is no question of further   ratification by the State Board. The ruling cited by the petitioner's counsel  on Gujrat Pollution Control Board vs. Nicsulf Industries and Exports Private Limited and others  (2009) 2 SCC 171 is not applicable in the instant case.   The report of the inspection show that the petitioner violated the terms of the consent. The report is by an expert, who is a public servant and such is directly admissible and relevant in view of section 45 of the Evidence Act.  The Apex Court in Andhra Pradesh  Pollution Control Board vs. M.V. Nayadu and others (1999 SCC part 2  page 718) has categorically held that in cases of pollution doctrine  of reversal of proof would apply.  The heavy onus is on the polluter to prove that he is not  causing pollution and is meeting all the requires  of law. The petitioner has not controverted the facts stated in the reply to the writ petition by way of filing rejoinder or any affidavit. The petitioner is not entitled for any relief in this matter. The entire nearby area where the unit of the petitioner is situated  has been declared as reserved/ protected   forest and there is no legal source of raw material except that from the  illegal mining.   The orders dated 5.2.2010 passed by the Chairman are speaking orders after considering the submissions made by the  petitioner. The Chairman considered all the relevant facts and arguments submitted by the petitioner and the inspection report  carried out during  11.2.2009 to 13.2.2009.  The suspended particulate mattrer (SPM) is only one factor but is not the sole factor.  A reading of the facts shall reveal that consent was granted on certain terms and  conditions  and any breach thereof is sufficient to take action against the unit. During inspection it was found that vibrator  screen was not covered completely, water spraying system at the crusher and transfer points was inadequate, plantation has  not been done all along the periphery of the unit to develop green belt,  the system for cleaning and wetting of the ground and roads within the premises was inadequate, records regarding monthly production and raw material procured was not available at the  unit and acoustic enclosrue not provided with the DG set of 320 KVA. The record regarding  details of procurement of raw material and production is important in order to  verify  and ensure that the raw material is derived from the source of legal mining.  Operation of stone crusher based on unauthorised sources perpetrates illegal  mining and  results into degradation of environment.  Action was taken against the petitioner against which writ came to be filed  and the matter was remanded.    All the points raised on   behalf  of the petitioner have been discussed and decided in the orders dated 5.2.2010, as such the petitioner cannot have any complaint with regard to principles of  natural justice and opportunity of  hearing.   The Appellate Authority  is in existence and the petitioner  could have  filed the appeal before  it instead of preferring writ petition before this Court.  
     

9. I have also gone through the averments made in the writ petitions filed by the other petitioners. In these writ petitions the State Board has not filed any reply to the writ petitions. The averments made in the writ petitions filed by the other petitioners are same and the crushers are also in the same areas. The orders passed by the State Board clearly indicate that the petitioners have been given full opportunity of submitting material but they have not made any efforts to controvert the inspection report either made by the officials of the State Board or the Committee constituted by the District Collector Bharatpur during 11.2.2009 to 13.2.2009. It is also an admitted fact that the petitioners in other writ petitions have also not availed the remedy of filing appeal before the Appellate Authority under Section 31 of the Act of 1981. The writ petitions filed by the other petitioners also deserve to be dismissed on account of availability of alternative remedy.

It may be mentioned that in Mahabir Coke Industry and another vs. Pollution Control Board and others AIR 1998 Gauhati 10, SLP was filed before the Apex Court and the Apex Court in Pollution Control Board v. Mahabir Coke Industry, (2000) 9 SCC 344, at page 345 held as under :

1. On reading the joint inspection report dated 10-11-1999, we entertained a serious doubt as to how the experts who signed the said report could say that the emission level of particulate matter of Units 1 and 2 conformed to the stipulated standard of 350 mg/Nm3, particularly when the factory is situated in a thickly-populated area. We, therefore, directed them to clarify the position. In the affidavit, now sworn to by Shri Lalit Kapoor, Senior Environmental Engineer, Central Pollution Control Board (CPCB), East Arjun Nagar, Delhi dated 4-2-2000, he has stated thus:

Thus as regards the clarification with respect to the location of the petitioner industry, it is submitted that according to the masterplan for Guwahati (land use plan 2001) the industry M/s Mahabir Coke is situated in a barsajai area, which is earmarked as public and semi-public area. Therefore, the standards of ambient air quality for SPM, 140 um/m3 (annual average) and 200 ug/m3 (24 hours) will apply. The notification of the masterplan for Guwahati was issued on 26-9-1986, whereas the industry was granted NOC for industrial use by the Municipal Corporation of Guwahati vide Memo No. GPL/150/8513, dated 6-3-1985.

2. We are disturbed to note that the three signatories (their names are: R.C. Kataria, EE, CPCB; C. Bhaduri, REE, PCB, Assam; and M.C. Choudhury, EE, CPCB) of the joint inspection report, who are seemingly experts in the filed had prima facie abdicated their duties while reporting to this Court that the industry has conformed to the stipulated standard. Parliament has chosen to repose confidence in the authorities under the Pollution Control Board, so that human beings, who are to survive by breathing air while living in thickly-habituated places located near to industries, can have a reasonably healthy life. When such authorities themselves have shown prima facie such dereliction of their duties, they must be made answerable for it. We, therefore, require them to show cause why we should not pass necessary directions in the matter.

3. Notice should go to the above three signatories of the report returnable within 4 weeks.

4. In the meanwhile we direct Unit 1 and Unit 2 to be closed down. All authorities concerned should ensure that this order of the Court is complied with strictly.

5. It is open to the industry either to conform to the required standards and inform the Court or substantiate that the facilities already installed are sufficient to keep up the required standard.

The Apex Court immediately closed down the Units and hence the ruling cited by the counsel does not help him.

The Apex Court in M.C. Mehta v. Union of India (Stone Crushing Case), 1992 Supp (2) SCC 85, cases relating to Stone crushing operation in the vicinity of Delhi, wherein the total closure of the operation ordered by Union of India and crusher owner instead of approaching the Supreme Court in the pending matters, filed writ petitions in High Court and obtained interim orders, all matters directed to be transferred to Supreme Court taking the Air Pollution matters as serious one.

Further the Apex Court in M.C. Mehta v. Union of India, (1992) 3 SCC 256, taking Air Pollution as a very serious matter, closed down the units immediately. It was observed as under :

1. We reserved judgment in these matters on April 24, 1992. We heard learned counsel for the parties at considerable length for several days. We have been taken through the provisions of the Delhi Development Act, 1957, Master Plan for Delhi published in the Gazette of India dated August 1, 1990, the Delhi Development Authority (Zoning) Regulations, 1983, the Delhi Municipal Corporation Act, 1957, the Faridabad Complex Administration (Regulations and Development) Act, 1971, the Development Plan for the Faridabad-Ballabgarh Controller Areas published in the Haryana Government Gazette dated December 17, 1991, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the National Health Policy, 1985, the Ancient Monuments Act, 1958, the National Capital Region Planning Board Act, 1985 and various other documents including reports of the Experts on air pollution and environments. The parties have submitted detailed written arguments which we have taken into consideration. We have given our thoughtful consideration to the various arguments advanced by the learned counsel for the parties.

2. We are conscious that environmental changes are the inevitable consequence of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the air, water and land to such an extent that it becomes a healthhazard for the residents of the area. We are constrained to record that Delhi Development Authority, Municipal Corporation of Delhi, Central Pollution Control Board and Delhi Pollution Control Committee have been wholly remiss in the performance of their statutory duties and have failed to protect the environments and control air pollution in the Union territory of Delhi. Utter disregard to environment has placed Delhi in an unenviable position of being the worlds third grubbiest, most polluted and unhealthy city as per a study conducted by the World Health Organisation. Needless to say that every citizen has a right to fresh air and to live in pollution-free environments.

Louise Erdrich Bigogress, an environmentalist has aptly observed that grass and sky are two canvasses into which the rich details of the earth are drawn. In 1980s, the Apex Court paid special attention to the problems of air pollution, water pollution and environmental degradation and passed a number of directions and orders to ensure that environment, ecology and wildlife should be saved, preserved and protected. Th Apex court observed that the scale of injustice occurring on the Indian soil is catastrophic. Each day hundreds of thousands of factories are functioning without pollution control devices. Thousands of Indians go to mines and undertake hazardous work without proper safety protection. Every day millions of litres of untreated raw effluents are dumped into our rivers and millions of tons of hazardous waste are simply dumped on the earth. The environment has become so degraded that instead of nurturing us it is poisoning us.

It is necessary to give a brief resume of some of the important cases decided by Apex Court. One of the earliest cases brought before the Supreme Court related to oleum gas leakage in Delhi. In order to prevent the damage being done to the environment and the life and the health of the people, the Apex Court passed a number of orders. This is well known as M.C. Mehta v. Union of India.( 1987) 1 SCC 395 The Court in this case has clearly laid down that:

31. an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no [such] harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.

In Rural Litigation and Entitlement Kendra v. State of U.P (1985 ) 2 SCC 431 the Apex Court ordered closure of all limestone quarries in the Doon Valley taking notice of the fact that limestone quarries and excavation in the area had adversely affected water springs and environmental ecology. While commenting on the closure of the limestone quarries, the Court stated that this would undoubtedly cause hardship to owners of the limestone quarries, but it is the price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment.

In the case of M.C. Mehta v. Union of India (1988 )1 SCC 471 which relates to pollution caused by the trade effluents discharged by tanneries into Ganga river in Kanpur, the Apex Court called for the report of the Committee of experts and gave directions to save the environment and ecology. It was held that:

16. In common law the Municipal Corporation can be restrained by an injunction in an action brought by a riparian owner who has suffered on account of the pollution of the water in a river caused by the Corporation by discharging into the river insufficiently treated sewage from discharging such sewage into the river. But in the present case the petitioner is not a riparian owner. He is a person interested in protecting the lives of the people who make use of the water flowing in the River Ganga and his right to maintain the petition cannot be disputed. The nuisance caused by the pollution of the River Ganga is a public nuisance, which is widespread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition has been entertained as a public interest litigation. On the facts and in the circumstances of the case, the petitioner is entitled to move the Supreme Court in order to enforce the statutory provisions which impose duties on the municipal authorities and the Boards constituted under the Water (Prevention and Control of Pollution) Act, 1974.

In in M.C. Mehta v. Kamal Nath ( 2000 ) 6 scc 213, the Apex Court was of the opinion that Articles 48-A and 51-A(g) have to be considered in the light of Article 21 of the Constitution in pollution matters and observed as under :

8. Any disturbance of the basic environment elements, namely, air, water and soil, which are necessary for life, would be hazardous to life within the meaning of Article 21.

9. In the matter of enforcement of rights under Article 21, this Court, besides enforcing the provisions of the Acts referred to above, has also given effect to fundamental rights under Articles 14 and 21 and has held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. In order to protect life, in order to protect environment and in order to protect air, water and soil from pollution, this Court, through its various judgments has given effect to the rights available, to the citizens and persons alike, under Article 21.

The Apex Court also laid emphasis on the principle of polluter pays. The Apex Court observed that pollution is a civil wrong. It is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages or compensation for restoration of the environment and ecology.

In the case of M.C. Mehta v. Union of India, (2007) 1 scc 110, the Apex Court considered the matter relating to project known as Taj Heritage Corridor Project initiated by the Government of Uttar Pradesh. One of the main purpose for which the same was undertaken was to divert River Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal and use the reclaimed land for constructing food plazas, shops and amusement activities. The Apex Court directed for a detailed enquiry which was carried out by the Central Bureau of Investigation (CBI). On the basis of the CBI report, the Apex Court directed registration of FIR and made further investigation in the matter. The Apex Court questioned the role played by the Minister for Environment, Government of Uttar Pradesh and the Chief Minister, Government of Uttar Pradesh concerned. By the intervention of the Apex Court, the said project was stalled.

The Apex court in Mohd. Haroon Ansari v. District Collector, Rangareddy District, A.P.,(2004) 1 SCC 491, a case related to stone crusher held as under :

8. We may, at once, notice that the High Court was persuaded by public interest involved in the matter in initiating proceedings on the basis of a letter sent to it. The anxiety of the High Court was further exhibited by its concern in the matter in constituting an Expert Committee and although that Expert Committee stated that a distance of 1 km is a safe distance between the site under quarry lease and the residential locality or GLSR, but in order to be safer than what the Expert Committee observed, the High Court increased the distance by another 1 km. Particularly when the assessment made by the Centre of Mining Environment, Indian School of Mines, Dhanbad, concluded that there is no impact by the quarry operations carried on by the appellants before us on GLSR or Osmansagar lake or nearby residential locality, it is unnecessary to impose condition that the distance of 1 km for carrying out the quarry activities should be converted to 2 km. The affidavit of the Pollution Control Board indicates that if proper safeguards are adopted as indicated in the said affidavit, it will not cause any air, water or noise pollution, much less dust particles which affect the water supply system in GLSR or Osmansagar lake. We, therefore, direct that the order made by the High Court is modified by directing that the distance of 1 km is a safe distance between the site of the quarry leases and the residential localities or GLSR or Osmansagar lake. The guidelines issued by the Andhra Pradesh Pollution Control Board specified 1 km to be a safe distance between crusher and human habitation from 17-1-1997. Prior to that it was only 500 metres away from the national highway and 100 metres away from the State highway, major district roads and other roads. That is why this Court granted an interim order earlier and directed that no mining and stone-crushing operations shall be carried on within a distance of 1 km from the lake or reservoir and 500 metres from human habitations. This order will hold good in respect of all such mining leases which have been granted prior to 17-12-1996. It is not necessary to advert to any other details or arguments raised in the petitions filed before the High Court or in appeals before this Court. Suffice it to observe that the impugned order of the High Court shall stand modified only to the extent indicated by us and all other terms set out by the High Court in regard to the safeguards to be adopted in maintenance of the environment shall remain intact. Further, it is certainly necessary that the appellants before carrying on any of the mining and stone-crushing activities obtain necessary clearance from the Pollution Control Board and must comply with such conditions as may be imposed by the Pollution Control Board. It is open to the Pollution Control Board to take such action as may be necessary to enforce the conditions imposed by them under the relevant statutes.

( Emphasis supplied) The Apex Court in the above case directed the appellants that before carrying on any of the mining and stone-crushing activities obtain necessary clearance from the Pollution Control Board and must comply with such conditions as may be imposed by the Pollution Control Board. It is open to the Pollution Control Board to take such action as may be necessary to enforce the conditions imposed by them under the relevant statutes.

It is an admitted fact that the petitioners in all the writ petitions have not complied with the conditions as were imposed at the time of issuing consent to establish and consent to operate the stone crushing and the State Board rightly passed the orders declining to operate the stone crushing and thereafter issued show notice to close down the units vide the impugned orders on the basis of the reports of the Committee constituted by the District Collector Bharatpur and inspection by the officials of the State Board, after hearing the petitioners.

In these writ petitions, it is an admitted fact that the consent to operate given to the petitioners by the State Board has not been extended on account of the facts enumerated above. It is also an admitted fact that the State Board gave full opportunity of hearing to the petitioners and thereafter passed the orders of closure of the stone crushers in the area in which Lacs of Pilgrims visiting day and night which is known as Brij Chourasi Kos Parikarma Marg. The petitioners have not complied with the conditions mentioned in the consent letters given by the State Board. The officials of the Pollution Board visited the places of stone crushers held by the petitioners and gave report about the deficiencies. The Committee constituted by the District Collector Bharatpur also visited the places during 11.2.2009 to 13.2.2009 and as mentioned above they gave report that the conditions mentioned in the consent letters have not been complied by them. The petitioners even have not filed rejoinder or affidavit in reply to the facts given by the State Board.

10. For these reasons, the writ petitions filed by the petitioners fail and are hereby rejected. The State Board is free to proceed in accordance with law against the petitioners. No costs.

(MAHESH CHANDRA SHARMA )J.

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