Residents Of Village Chey Chey Thang v. State Of J. &K.
2007-12-12
MANSOOR AHMAD MIR
body2007
DigiLaw.ai
1. Petitioners have filed this petition in a representative capacity on the grounds that the respondent no. 5 has installed a stone crusher in the residential area of village Chey Chey Thang, Kanoor, Kargil and operating it in violation of the norms set up by the State Pollution Control Board, without obtaining requisite permission. Petitioners have approached the concerned authorities and respondent no. 3 after examining the matter, ordered stopping of the installation/operation of the stone crusher in terms of order dated 20-8-2007, contained in annexure-PC to the writ petition. It is also averred that despite the order of respondent no. 3 dated 20-8-2007, respondent no. 5 has not stopped installation/operation of the stone crusher. The petitioners have sought indulgence of the Court to command the respondent no. 5 to stop the installation and operation of the stone crusher so as to provide the inhabitants of the area pollution free environment and also for quashing of any consent granted by respondent no. 3, on the grounds taken in the writ petition. 2. Respondents have filed their replies and resisted the writ petition. In order to decide the controversy involved in the petition, it is necessary to notice the brief resume of the case. 3. In order to fulfill the demands of the Government of Jammu and Kashmir for providing sufficient power supply to the people of the area, Government of India, has sanctioned a Mega Hydro Electric Power Project of 44 KWs under the name and style of Chutak Hydro Electric Project at Chautak Kanoor, Kargil, at the cost of Rs. 1600 Crores. The project is to be completed within 48 months i.e. by or before end of 2008. The National Hydro Power Corporation (NHPC) assigned the execution of civil works to the respondent no. 5 at the cost of Rs. 410 crores. The respondent no. 5 in order to execute the assigned work within the stipulated period, required crushed stones and other allied material. The Company - respondent no. 5 sought permission for installation of a temporary stone crusher and its operation, so as to take the Project to its logical end. It appears that the petitioners made a representation before respondent no.
5 in order to execute the assigned work within the stipulated period, required crushed stones and other allied material. The Company - respondent no. 5 sought permission for installation of a temporary stone crusher and its operation, so as to take the Project to its logical end. It appears that the petitioners made a representation before respondent no. 3 in which order dated 20-8-2007, came to be passed, which reads as under:- "Whereas, the Hindustan construction company Ltd. Chutak HE Project Kargil is constructing a stone crusher and batching plant adjacent to the village Chey Chey Thang. 1. Whereas the construction is illegal. 2. Whereas the construction shall be highly dangerous for the local inhabitants. 3. Whereas, the undersigned inspected the site in the afternoon of 8-8-2007 and reported the matter to the Pollution Control Board vide this office No. FDK/07/755 dated 10-8-2007 for stopping the construction unless the matter is finalized by a special committee. In view of the above, it is ordered for stopping the construction till the mater is finalized by the Pollution Control Board." 4. In terms of the said order, concerned authorities directed Assistant Commissioner (Revenue), Kargl to visit the spot. Accordingly on visiting the spot, the Assistant Commissioner reported that the huts have been illegally constructed by the villagers-petitioners on state land and directed the Tehsildar Kargil to stop the illegal construction of the huts. Respondents 2 and 3 after proper verification asked the respondent no. 5 to execute an undertaking to the effect that after completion of the project, the stone crusher is to be dismantled - annexures-R3 and R4 to the objections filed by respondents 1 to 4. After fulfilling the requisite formalities, the respondent no. 3 addressed a communication dated 3-9-2007 to the respondent no. 2 to allow the respondent no. 5 to establish a temporary stone crusher and its operation, subject to the guidelines/General conditions contained in Annex ure-R/1, relevant at running page 13. In terms of order dated 6-10-2007 contained in annexure-R/6 to the objections, respondent no. 3 allowed the respondent no. 5 to test run the crushing plant for four days from 7-10-2007 to 10-10-2007. The Pollution Control Board granted permission for operation of a temporary stone crusher in terms of its consent order dated 7-9-2007 contained in annexure-R/1 to the objections filed by respondents 1 to 4. Respondent no.
3 allowed the respondent no. 5 to test run the crushing plant for four days from 7-10-2007 to 10-10-2007. The Pollution Control Board granted permission for operation of a temporary stone crusher in terms of its consent order dated 7-9-2007 contained in annexure-R/1 to the objections filed by respondents 1 to 4. Respondent no. 3 also addressed a communication dated 1-11-2007 to respondent no. 4, with the report that the illegal constructions raised by some of the villagers/petitioners near the stone crusher are on State land and no habitation is within 50 meters distance of the stone crusher. He has also conveyed his no objection for establishing/operating the stone crusher. It is profitable to reproduce paras 2 to 6 of the letter hereunder:- 1. Due to the complaints submitted to this office by the residents of the Chey Chey Thang village inspection was done and it is found that some of the constructions were close to the Stone crusher unit raised by the HCC. Then the u/s issued the order vide this office No. FDK/07/811-14 dated 20-8-2007 to stop the construction of the stone crusher till the matter is finalized by a committee. 2. In the mean while meeting of the Environment Committee was held in the chamber of the Deputy Commissioner/CEO, LAHDC, Kargil on 22-8-2007 to look into the matter. The ACR, Kargil was instructed in the meeting by the Deputy Commissioner/CEO, LAHDC, Kargil to verify the status of the land and find out whether the huts constructed nearby are in the state land or the private land. 3. Then the ACR verified and submitted the report vide his No. DC-K/LAC-Illegal/Land/2007/NHPC dated 29-8-2007 that the construction of the structures near the stone crushers are illegal and are in the state land. 4. Since the huts constructed are in the state land and illegal, there is no habitation within 50 m distance of the stone crusher. 5. Further the HCC has assured in the proposal that the stone crushing unit uses wet process and does not cause dust emission, there is no objection at present under rules to dislocate or stop the construction." 5. Respondents 2 and 3 have also stated that establishment of the stone crusher and its operation does not violate any of the required conditions in any manner.
Respondents 2 and 3 have also stated that establishment of the stone crusher and its operation does not violate any of the required conditions in any manner. Respondents 1 to 4 have further stated that the illegal hutments which came to be erected illegally on the State land allotted to the NHPC for establishing of the Mega Power Project. 6. Heard learned counsel for the parties at length. Admit. With the consent of learned counsel for the parties, the petition is taken up for final adjudication. 7. It appears that requisite permission came to be granted by the concerned authorities, as required under rules for establishing and operating a stone crusher. The respondents have specifically averred that the respondent no. 5 has fulfilled all the norms and conditions which are required for its establishment. The respondent no. 5 is executing civil works on behalf of NHPC in order to establish the Mega Power Project. The stone crusher is temporary one and is required to be established and made operational only for a limited purpose, till respondent no. 5 executes the civil work/civil project allotted to it by NHPC. Respondent no. 5 has also executed an undertaking that it will take all measures in order to provide pollution free environment to all the inhabitants. The establishment of the stone crusher and its operation is subject to the conditions laid down in the order contained in annexure-R/1 to the objections filed by respondents 1 and 4. The concerned authorities have to make tests after every six months in terms of general condition no. 9 contained in annexure-R/1 supra. 8. It seems that the petitioner banked their case on the order dated 20-8-2007 passed by respondent no. 3 (annexure-PC). The order dated 20-8-2007 has been superseded by another order dated 6-10-2007, as same was subject to the finalization by a special committee. As per pleadings, Special Committee came to be constituted and all the facts and circumstances came to be taken in view and the respondents came to the conclusion that the establishment of the stone crusher and its operation does not in any way affect the rights and interests of the petitioners and also not in any way causing any pollution here and there. 9. It is in place to mention here that the petitioners have concealed the fact that after respondent no.
9. It is in place to mention here that the petitioners have concealed the fact that after respondent no. 3 passed the order dated 20-8-2007, the competent authorities convened a meeting and conducted spot verification and passed orders contained in annexures R/1, R/3, R/4, R/5, R/6 and R/7. The writ petition came to be presented before this court on 27-9-2007 and the requisite permission came to be granted on 7-9-2007 i.e. well before the filing of the petition. There is not a whisper about these orders in the writ petition and it appears that the petitioners have deliberately concealed the said facts i.e. granting of permission/consent/NOC on 7-9-2007 by the competent authorities. 10. Petitioners have specifically pleaded in the petition that the stone crusher in question is within 50 meters of distance from their residential houses. Respondents have specifically pleaded that they have raised the constructions illegally on the said land and the concerned authorities have directed the Tehsildar Kargil to stop the said illegal constructions and also take action as warranted under law. They have also pleaded that the said land is allotted to NHPC for establishing the Project. Petitioners have not denied these facts in any way. It is in place to mention here that NHPC is not a party to the writ petition. 11. The court has to take into view the interests of public at large. The Electric Project is aimed at to fulfill/cater the needs of the public. The equitable relief could not be granted in favour of the petitioners who are alleged encroachers and have allegedly raised illegal constructions on the State land, allotted to the NHPC for construction of the project. 12. For the reasons detailed above, the writ petition being without merit is dismissed in limine. However, respondents shall ensure that the respondent no. 5 shall adhere to the conditions contained in annexure-R/1 with the objections filed by respondents 1 to 4, relevant at page 13. Interim direction also stands vacated.