HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Chief Justice's Court
 

 
Case :- WRIT - C No. - 35840 of 2019
 

 
Petitioner :- M/S Maha Laxmi Stone Crushing
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Devbrat Mukherjee
 
Counsel for Respondent :- C.S.C.,Hari Nath Tripathi
 

 
with 
 

 
Case :- WRIT - C No. - 34461 of 2019
 

 
Petitioner :- M/S Maha Laxmi Stone Crushing Company
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Devbrat Mukherjee
 
Counsel for Respondent :- C.S.C.,Hari Nath Tripathi
 

 
with 
 

 
Case :- WRIT - C No. - 34148 of 2019
 

 
Petitioner :- M/S New Ma Sharda Stone Mill
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Devbrat Mukherjee
 
Counsel for Respondent :- C.S.C.,Hari Nath Tripathi
 

 
Hon'ble Govind Mathur,Chief Justice
 
Hon'ble Vivek Varma,J.

(Delivered by Hon'ble Govind Mathur, C.J.) The petitioner Unit is involved in operation of mini stone crusher since 2009. The Unit aforesaid was ordered to be closed by the Uttar Pradesh Pollution Control Board (hereinafter referred to as "Board") on 19.02.2015 for violation of certain environmental conditions and the conditions necessary to operate the crusher. The Appellate Authority invoking the powers under Section 31(2) of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as "Act, 1981") examined validity of the order aforesaid and set aside the same vide judgment dated 23.09.2015.

Suffice to state that during pendency of the appeal aforesaid, an inspection of the Unit was carried out by the Regional Officer of the Board on 13.08.2015. In the inspection report, a recommendation was also made for discharge of the closure order subject to fulfilling the certain conditions by the petitioner.

Pointing out certain deficiencies including that the Unit is situated at a distance of 13 meters from middle point of National Highway-76 (hereinafter referred to as "NH-76") and also opposite to certain residential houses, the petitioner was called upon to explain as to why it be not closed and further why necessary orders be not passed to disconnect electricity, water supply and other usual facilities. The response to the notice was given on 18.04.2016, but noting was stated therein relating to location of the Unit which was said to be situated at the distance of 13 meters from the middle point of the NH-76.

An inspection of the Unit was again made by the Regional Officer on 28.06.2017. The Regional Officer made a recommendation for conditional withdrawal of notice served upon the petitioner as per provisions of Section 31A of the Act, 1981. A joint team of the Board and the District Administration, Chitrakoot again inspected the Unit on 12.01.2019 and a recommendation was made for conditional withdrawal of the notice. This team while making such condition reiterated that the Stone Crushing Unit is situated within the radius of 100 meters from the middle point of NH-76.

It would be appropriate to state that as per the applicable norms, no Stone Crushing Unit could have been established within the radius of 100 meters from the middle point of a National Highway.

The Regional Officer of the Board, Banda by a letter dated 06.04.2019 conveyed to the Chief Environment Officer (Circle-II), Lucknow about installation of a device by the petitioner Unit for pollution control in accordance with the applicable guidelines. Accordingly, a recommendation was also made to withdraw the closure order passed by the competent Authority as per Section 31A of the Act, 1981. Acting upon the letter dated 06.04.2019, the Chief Environment Officer (Circle-II), Lucknow by the letter dated 11.04.2019 asked the petitioner to satisfy certain deficiencies. The letter aforesaid reads as follows :-

"mijksDr fo"k;d vius i= la[;k&960@dk-crkvks dk fu{ksi.k fnukad 06-04-2019 dk lanHkZ xzg.k djus dk d"V djsa] ftlds }kjk lanfHkZr m|ksx dks ok;q ¼çnw"k.k fuokj.k rFkk fu;a=.k½ vf/kfu;e] 1981 dh /kkjk 31&, ds varxZr tkjh dkj.k crkvks uksfVl 30-03-2018 ds laca/k esa vk[;k çkIr gSA vk[;kuqlkj m|ksx jk"Vªh; jktekxZ ls fu/kkZfjr 500 ehVj ds lkis{k yxHkx 100 ehVj dh nwjh ij vkcknh ds e/; fLFkr gSA vki }kjk m|ksx dks vU;= mi;qDr LFky dk p;u dj cksMZ ls vukifRr çek.k i= çkIr dj fu/kkZfjr le;kof/k ds vanj ;Fkk'kh?kz LFkkukarfjr fd;s tkus gsrq uksVjh 'kIkFk i= tek djus dk mYys[k fd;k x;k gS] ijUrq mDr vk[;k ds lkFk layXu ugha gSA lkFk gh m|ksx ls u;s i;kZoj.kh; n`f"V ls mi;qDr LFky ij LFkkukarj.k gsrq le;c) dk;ZØe Hkh çkIr ugha gSA m|ksx cksMZ ls lgefr çkIr fd;s fcuk lapkfyr gS rFkk orZeku esa lgefr vkosnu dh fLFkfr Hkh Li"V ugha gSA m|ksx ds fo:) le;≤ ij f'kdk;rsa Hkh çkIr gksrh jgha gSA vki }kjk çsf"kr fujh{k.k vk[;k ds lkFk okafNr ,fEc;UV ,;j ekWfuVfjax fjiksVZ Hkh layXudj çsf"kr ugha dh xbZ gSA vkidks iwoZ esa Hkh dkj.k crkvks uksfVl ds lanHkZ esa iw.kZ rF;ksa lfgr vk[;k çsf"kr djus gsrq funsZf'kr fd;k x;k Fkk] ijUrq vki }kjk çsf"kr vk[;k;sa iw.kZ o lqLi"V ugha gS] ftlds dkj.k m|ksx dks tkjh dkj.k crkvks uksfVl ij lle; fu.kZ; fy;k tkuk lEHko ugha gks ik;k gSA çdj.k ij vuko';d foyEc gqvk gS] tks vR;Ur [ksntud gS rFkk vkids drZO;ksa ds çfr mnklhurk dk |ksrd gSA vr% vkidks funZsf'kr fd;k tkrk gS fd m|ksx ds çdj.k ij mijksDrkuqlkj iw.kZ Li"V vk[;k] m|ksx dks vU;= mi;qDr LFky dk p;u dj cksMZ ls vukifRr çek.k i= çkIr dj fu/kkZfjr le;kof/k ds vanj ;Fkk'kh?kz LFkkukarfjr fd;s tkus gsrq uksVjh 'kiFk i=] le;c) çLrko] ,fEc;UV ,;j ekWfuVfjax fjiksVZ ,oa LFkkfir çnw"k.k fu;a=.k O;oLFkkvksa ds uohure QksVksxzk¶l ,d lIrkg ds vanj cksMZ eq[;ky; çsf"kr djuk lqfuf'pr djsa] ftlls m|ksx ds çdj.k ij vfxze dk;Zokgh fd;k tkuk laHko gks ldsA d`i;k uksV djsa fd m|ksx dks tkjh dkj.k crkvks uksfVl ds laca/k esa iw.kZ rF;ksa lfgr vk[;k çkIr u gksus ij gq, foyEc ds vki Lo;a mRrjnk;h gksxsaA"

"Kindly have reference of your letter No. 960/Show Cause Notice served on 06.04.2019, related to the aforementioned subject, by which a report with respect to show cause notice dated 30.03.2018 issued under the provision of 31-A of the Air (Prevention and Control of Pollution) Act, 1981 to the industry concerned, has been received. As per the report, the industry, as against the prescribed distance of 500 metre from the National Highway, is situated at the distance of only 100 metre and in the midst of human settlement. For the expeditious shifting of industry elsewhere after selecting the proper location, the notary affidavit is mentioned to have been submitted by you, but the same is not annexed to the report. Simultaneously, a time bound schedule to shift the industry to a suitable place considering the environmental aspects has not been received as well. The industry is being run without obtaining clearance from the Board and status of the application for clearance is not clear as well. Complaints against the industry is being received too from time to time. With the inspection of the report sent by you, the desired ambient air monitoring report has also not been attached and sent. With reference to show cause notice earlier too, you were directed to send report with full facts, but the reports sent by you are neither complete nor clear, because of which the decision over the show cause notice issued to the industry has not been possible to be taken in time. Unnecessary delay over the matter has been caused, which is highly deplorable and is reflective of your indifference to duties.

Hence, you, as regards the industry, are directed to ensure sending a complete and clear report as above; a notary affidavit as soon as possible within the fixed time period with respect to shifting of the industry after obtaining no objection certificate from the Board after having selected the another proper place; time bound proposal; ambient air monitoring report; and latest photographs of the established pollution control systems to the Board headquarters within a week, so that further action could be taken on the matter of the industry. Kindly note that, in the event of not getting complete report with full facts with respect to the show cause notice issued to the industry, you will yourself be held responsible for any delay."

(English Translation by the Court) It appears that the petitioner instead of acting as per the letter dated 11.04.2019 got the Unit again inspected on 03.05.2019, a report thereof was sent to the Chief Environment Officer, Circle-II. In this report also, the Inspecting Team noticed violation of distance provision for stone crushers from the middle point of a national highway.

It would also be appropriate to mention that the Chief Environment Officer, Circle-II during pendency of the petition for writ passed the order dated 16.08.2019 closing down the Unit and also withdrawing electricity and water supply. The petitioner then filed a petition for writ, i.e., Writ-C No. 25970 of 2019 that came to be disposed of by the order dated 19.08.2019. The order aforesaid reads as under :

"Heard Sri Devbrat Mukherjee, learned counsel for the petitioner, Sri Rajiv Singh, learned Standing Counsel for the State respondents and Dr. H.N. Tripathi, learned counsel for the respondent nos.2, 3 & 4.

According to the learned counsel for the petitioner there is already a recommendation of the Inspection Committee dated 05.04.2019 withdrawing the sealing order dated 13.07.2016 as the petitioner unit has corrected the deficiencies. It is further the case of the petitioner that soon thereafter the Regional Officer who was one of the members of the Inspection Team has made recommendation dated 17.06.2019, that the sealing order may not be withdrawn as the petitioner unit is situate within the minimum prescribed distance from the National Highway and needs to be shifted.

Although the petitioner has prayed for quashing of the recommendation dated 17.06.2019, but, in our considered opinion, as the Chief Environment Officer of the U.P. Pollution Control Board has to take a decision, we are not inclined to consider the case on merits as such we, provide that the Chief Environment Officer, U.P. Pollution Control Board while dealing with the recommendations dated 05.04.2019 and 17.06.2019 will also take into consideration any detailed objection which the petitioner may file along with a certified copy of this order and pass a detailed order specifically dealing with the issue as to whether the guidelines relating to the minimum distance of setting up of crusher units within 500 meters from the National Highway is applicable for setting up/ coming up new units or the existing units prior to the framing of the guidelines.

Dr. H.N. Tripathi, learned counsel for the respondent Pollution Control Board has submitted that decision would be taken within two weeks from the date petitioner submits representation along with certified copy of this order.

In view of the above this petition is disposed of with liberty to the petitioner to submit a detailed representation along with certified copy of this order and within a period of two weeks thereafter the Chief Environment Officer, U.P. Pollution Control Board, Zone-2, Lucknow will take an appropriate decision, strictly in accordance to law, and also in the light off observations made above."

In pursuance of the order passed by this Court, the petitioner submitted a detailed representation dated 03.09.2019. The Chief Environment Officer, Circle-II considered and disposed of the same under an order dated 17.09.2019. The Chief Environment Officer, Circle-II did not find any justification to amend, withdraw or recall the order dated 16.08.2019. Being aggrieved by the same, instant petition for writ is preferred.

The argument advanced by learned counsel for the petitioner is that the order impugned dated 17.09.2019 is bad being in violation of principles of natural justice and also on the count of discrimination. As per the petitioner, certain other Stone Crushing Units situated within radius of 100 meters from the middle point of the National Highway are operational and no punitive action has been taken against those Units. It is asserted that the petitioner was/is ready and willing to shift the Unit, but no reasonable time for that has been given. According to learned counsel for the petitioner, the Unit may be shifted beyond the prescribed distance within a period of two years.

A counter affidavit to the petition for writ has been filed on behalf of respondents - Uttar Pradesh Pollution Control Board. According to the respondents-Board, the petitioner failed to adhere the conditions prescribed and, as such, there is no justification to recall the closure order.

Heard learned counsels and considered the arguments advanced.

The first submission of learned counsel for the petitioner is that no opportunity of hearing was accorded to him before taking any action as per provisions of Section 31A of the Act, 1981.

We do not find any merit with the arguments advanced. As already stated, the first notice was served upon the petitioner in the year 2015. In the notice aforesaid, it was made clear that the petitioner Unit is situated at a distance of 13 meters from the middle point of the NH-76 and opposite to that, certain residential houses are situated. While responding the notice, not even a single word is stated by the petitioner in relation to the objection aforesaid. An inspection of the Unit was made on 12.01.2019 and in report of that too it was stated that the Unit is situated within the radius of 100 meters from the middle point of the NH-76. This fact was reiterated in the letter dated 06.04.2019 also. The Chief Environment Officer, Circle-II in its notice dated 11.04.2019, in quite unambiguous terms, asked for the details relating to location of the Stone Crushing Unit. The petitioner, while responding the same, demanded some time for shifting the Unit, but no efforts were made by him in that regard. In such circumstance, the order dated 16.08.2019 was passed.

A Division Bench of this Court while deciding Writ-C No. 25970 of 2019 vide order dated 19.08.2019 left it open for the petitioner to submit a representation with regard to distance of the Unit from the middle point of the national highway. On going through the order dated 19.08.2019 passed by the Division Bench of this Court, it appears that the petitioner much emphasized about application of the distance norms for existing Units and, therefore, a direction was given to examine the representation of the petitioner from that angle.

On going through the norms applicable, it is apparent that the existing Units were required to be shifted within a period of one year from the date the guidelines were prescribed. The petitioner Unit instead of adhering the norms prescribed emphasized that the norms are not applicable, which is apparently ill-founded.

In entirety, it can very well be said that since 2015, the petitioner Unit is not taking due care of the applicable norms and, despite several notices, is not making any effort to shift the Unit. The petitioner has now demanded two years' further time to shift its Unit, but that cannot be given by keeping the Stone Crushing Unit in operation. As a matter of fact, the petitioner continued its operations in contravention of the applicable norms for years together and, i.e., to be stopped and has been rightly stopped by the respondents under the order dated 16.08.2019.

So far as the arguments advanced with regard to discrimination is concerned, suffice to state that there is no concept of negative equality. This Court while exercising powers under Article 226 of the Constitution of India is not supposed to pass any order that perpetuates an illegality.

In view of whatever stated above, this petition for writ is having no merit, hence is dismissed.

Order Date :- 10.12.2019 Shubham (Vivek Varma, J.) (Govind Mathur, C.J.)