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2003 DIGILAW 1011 (PAT)

Hiranand Stone Works v. State Of Bihar

2003-09-15

AFTAB ALAM

body2003
Judgment 1. The petitioner which is a stone crushing unit came to this court seeking a direction to the Bihar State Pollution Control Board (the Board, hereinafter) to grant consent under the provisions of Air (Prevention & Control of Pollution) Act, 1981 for running the unit. A grievance was made that though the petitioner had complied with all its directions, the Board was sitting over the matter, unreasonably and arbitrarily withholding its consent to the petitioner. During the pendency of the case, the Board rejected the petitioners application, dated 13.11.2002 for consent and communicated its decision to the petitioner by letter no. T 1361, dated 13.5.2003 (a copy of which is at Annexure G to the counter affidavit). The petitioner then filed an amendment petition on 23.6.2003 seeking permission to challenge the Boards decision as communicated to it by the aforementioned letter. 2. From a perusal of the letter, dated 13.5.2003 it appears that the petitioners application for grant of consent was rejected on the ground that the stone crushing unit was located at a distance of 25 metres from the Bhagalpur-Kahalgaon road (now N.H. 80). This was in violation of the guide-lines issued by the Board under notification, dated October 1, 1996 that prescribed the battery limit of a stone crushing unit (along with a few others) must be minimum 200 metres from national/State highway, railway line, river and habitation. The letter mentioned another ground for rejecting the application and it was the petitioners failure to submit environmental statement under the provisions of rule 14 of the Environment (Protection) Act (sic), 1986. 3. Here it may be noted that the second ground was not indicated in the show cause notice issued to the petitioner under memo no. T 1048, dated 25.4.2003 (Annexure F) and, therefore, the rejection of the application for consent cannot be justified on that ground. 4. Now, it is to be examined how far the refusal of the Board to grant consent to the petitioner can be justified on the ground that being located at a distance of 25 metres from a road (N.H. 80) the petitioner unit did not conform to the guide-lines laid down under sections 25 and 21 of the Water (Prevention & Control of Pollution) Act. 1974 and the Air (Prevention & Control of Pollution) Act, 1981 respectively. 5. 1974 and the Air (Prevention & Control of Pollution) Act, 1981 respectively. 5. At this stage it would be necessary to take into account certain facts which are not in dispute. The petitioner unit was set up in the year, 1982 and it was granted consent by the Board for the first time in 1990. Though the guide-lines on the basis of which the Board has now rejected the petitioners application for consent were framed on October 1, 1996. the petitioner was granted consent by the Board even thereafter and the last consent order issued in its favour remained valid till 31.3.2001. According to the petitioner, after the expiry of the consent order the unit is not working and it remains inoperational. 6. It appears that on application for fresh grant of consent the Board asked the petitioner to first comply with a number of conditions, including construction of a 20 high wall around the unit, plantation of trees and installation of a water sprinkler etc. According to the petitioner, it duly complied with the direction of the Board incurring considerable expenses, but, from the submissions of Mr. Vinod Kanth, Senior Advocate appearing for the Board, it appears that the petitioner has not fully complied with all the directions given to it in that regard. 7. I am not inclined to enter into that controversy here because that is not the ground for denying consent to the petitioner vide letter dated 13.5.2003 and the validity of the Boards decision is to be judged with regard to petitioner unit being located at a distance of 25 metres from a road (now a national highway). 8. There is no denying that the Board issued notification, dated October 1, 1996 in pursuance of sections 25 and 21 respectively of the Water (Prevention & Controi of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981 (Annexure A) laying down guide-lines for the approval of the site, for the location of industrial units. Annexure 5 to the notification contains a list of major polluting industries and stone crushing unit is at serial no. 25 in this annexure. In regard to units at serial nos. 9, 18, 24 and 25, the battery limit from national/ State highway, railway line, river and habitation is fixed at a minimum of 200 metres. And apparently the petitioner unit does not conform to this limitation. 9. 25 in this annexure. In regard to units at serial nos. 9, 18, 24 and 25, the battery limit from national/ State highway, railway line, river and habitation is fixed at a minimum of 200 metres. And apparently the petitioner unit does not conform to this limitation. 9. Mr. A.K. Jain, counsel for the petitioner, however, submitted that the provisions of the notification, dated 1.10.1996 had no application to the petitioner unit for the simple reason that it was set-up long before the framing of the guide-lines and, therefore, an application for consent in regard to the petitioner unit could not be rejected on the basis of those guidelines. Mr. Jain pointed out that the opening words of the notification were : "guidelines for establishment of industries in pursuance ......" (emphasis added) Further, in the opening paragraph of the guide-lines, it was stated as follows : ".......... Board makes the guidelines as follows for the approval of sites, for the location of industrial units, new or existing with proposal for expansion........ modernisation/ diversification, (emphasis added) Para 1 of the notification dealt with the procedure for obtaining site clearance and the opening words of sub-para (1) of this paragraph were as follows : "Any person, who proposes to establish or expand or modernise or diversify any industrial unit or project in any part of the State of Bihar......." (emphasis added) Para 2 of the notification dealt with the criteria for the approval/ clearance of site and the opening words of this paragraph were as follows : "Criteria for the approval/clearance of proposed site/location in respect of new industrial unit or existing one with proposal for expansion/modernisation/ diversification which are specified in Annexures-IV and/or V, shall be as follows : (emphasis added) 10. Mr. Jain stated that the unit was in existence undeniably from long before the issuance of the notification in October, 1996 and the Board was fully aware that there was no proposal for any expansion/modernisation/diversification of the unit. Therefore, the guidelines had no application to the petitioner unit and the battery limit fixed under the guidelines would not apply in case of the petitioner. 11. The submission of Mr. Jain appears to be well founded and Mr. Shivendra Kishore and later Mr. Vinod Kanth, Sr. Therefore, the guidelines had no application to the petitioner unit and the battery limit fixed under the guidelines would not apply in case of the petitioner. 11. The submission of Mr. Jain appears to be well founded and Mr. Shivendra Kishore and later Mr. Vinod Kanth, Sr. Advocate who appeared on behalf of the Board were unable to give any satisfactory answer to the court to the question what was the need to introduce such a limitation in the guide-lines and, thus, to exclude the existing units or how with such a limitation the guide-lines could be made applicable to an existing unit that had no plan or proposal for expansion/modernisation/diversification. 12. It must, therefore, be held that the decision to reject the petitioners application is based on a ground that has no application to the case. The Boards decision as contained in the letter, dated 13.5.2003, is accordingly quashed with a direction to it to reconsider the petitioners application. It is expected that a final decision, after giving the petitioner an opportunity of hearing, shall be taken within two months from the date of receipt/production of a copy of this order in the office of the Secretary of the Board. 13. In the result, this writ petition is allowed but with no order as to costs.