JUDGMENT B.P. DAS, CHAIRMAN — M/s. Balaji Stones represented by its Power of Attorney Shri Virendra Kumar Magoo has filed this appeal under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (‘Air Act’ hereinafter) with a prayer to set aside the order bearing no.2991 dated 14.12.2010, vide Annexure-16, by which the Regional Officer, State Pollution Control Board, Rourkela, has directed the Proprietress of the appellant firm, Smt. Kailash Magoo, to close down the operation of her stone crusher unit forthwith. The appellant has also prayed for a direction to the State Pollution Control Board (‘the Board’) hereinafter to grant consent to operate the crusher unit taking into consideration the report of the Tahasildar, Kuarmunda, dated 3.3.2009 and the field inquiry-cum-inspection report of the Revenue Inspector, Kalunga, dated 28.2.2009, vide Annexures 9 and 10 respectively. The aforesaid closure order has been passed mainly on the ground that the appellant was operating the stone crusher unit without consent of the Board and without furnishing siting clearance certificate from the collector and District Magistrate, Sundargarh, in terms of the revised siting criteria issued by the Forest & Environment Department vide order dated 6.8.2010 and in view of the general directions issued by the Hon’ble High Court in its judgment dated 4.8.2010 rendered in W.P.(C) No.9101 of 2009 (*Trishakti Stone Crusher v. State of Orissa) to the effect that all the polluting stone crushing units, which are operating without complying with the siting criteria and without approval of the Board, would all stop functioning in the State of Orissa forthwith and that the District Administration as well as the Police authorities were to assist the Board in effecting closure of all such non-compliant stone crushing units immediately and file a compliance report before the Court by 6.9.2010 and the consequent public notice issued by the Board and published on 28.8.2010 in the Oriya and English dailies to stop operation of the stone crusher units forthwith. 2.The case of the appellant as delineated in the memorandum of appeal reveals that M/s. Balaji Stones is a proprietorship concern and its Proprietress Smt. Kailash Magoo was granted a stone quarry lease on 30.4.1987 under the Orissa Minor Mineral Concession Rules,1983 over an area of 12 acres in village Garjan under Panposh Tahasil at Kuarmunda, now under Lathikata Tahasil, in the district of Sundargarh, to carry on the business of mining, crushing and transporting boulders, ballast, road metal and stone chips and the lease deed was executed with the State Govt. on 1.8.1987 initially for a period of seven years. The said lease was renewed from time to time. The last of such lease was renewed for a period of five years and the lease deed executed on 2.8.2007 vide Annexure-8 is subsisting till 1.8.2012. Under the lease deed, the lessee has been granted liberties, powers and privileges, inter alia, to use the leasehold land to carry on all operations necessary for extraction, collection, stacking, processing, transport and disposal of minor mineral/minerals lease in natural or in processed/converted form and also to install machineries. Within the aforesaid leasehold area, the appellant set up a stone crusher unit over an area of Ac.2.00 under Khata no.204, Plot no.820/1, in the year 1989-90 for processing/converting the quarried stones and the power supply to the said unit was given on 12.10.1989. The appellant unit which was duly registered as a Small Scale Industries (SSI) unit under the D.I.C., Rourkela, vide the permanent registration certificate dated 20.6.1990 (Annexure-1) commenced its business on 2.4.1990. Consequent upon issuance of the notice dated 1.2.2007 by the Board vide Annexure-4 directing the stone crusher units operating in Orissa to comply with the siting criteria as indicated therein, the appellant filed an application dated 21.2.2007 before the Collector and District Magistrate, Sundargarh, vide Annexure-5, for grant of siting clearance certificate. Though no objection certificate was granted by the Garjan Gram Panchayat on 27.6.2007 for setting up the stone crusher unit, vide Annexure-6, the Collector and District Magistrate did not process the said application of the appellant till 5.5.2009. On 27.2.2009 the Board inspected the appellant’s unit and submitted its report recommending to consider issuance of siting clearance certificate basing on the report of the Tahasildar, Kuarmunda regarding actual measurement to the nearby village and thereafter for consent to operate. On 27.2.2009 the Board inspected the appellant’s unit and submitted its report recommending to consider issuance of siting clearance certificate basing on the report of the Tahasildar, Kuarmunda regarding actual measurement to the nearby village and thereafter for consent to operate. The Board submitted the aforesaid report to the Collector and District Magistrate by letter dated 26.3.2009 vide Annexure-14. The Tahasildar, Panposh, on 3.3.2009 submitted spot verification-cum-inspection report to the Deputy Collector, Revenue, Sundargarh, vide Annexure-9, stating that the site is located at about 3 Kms. away from N.H.23 and 4 Kms. away from S.H. 10, and further 1.5 Kms. away from the nearest Basti to village Garjan. It is also stated therein that the appellant is free from public objection in view of the NOC issued by the Garjan Gram Panchayat. Since the Collector did not process the application for grant of siting clearance certificate, the appellant filed W.P.(C) No.5226 of 2009 and the Hon’ble High Court by its order dated 5.5.2009 disposed of the said writ petition with a direction to the Collector to consider the application of the appellant and dispose of the same by a reasoned order keeping in view the reports of the R.I. and the Tahasildar, vide Annexure-12. Thereafter the Collector by order dated 10.6.2009, vide Annexure-11, rejected the application filed by the appellant on 21.2.2007 for issue of siting clearance certificate on the ground that the Government reserved the right of settling the concerned Sairat source on annual auction basis to the highest bidder and as the appellant has no long term claim over the Sairat source, even though, according to the appellant, the report of the R.I., Kalunga dated 28.2.2009 (Annexure-10) and the report of the Tahasildar, Panposh, dated 3.3.2009 (Annexure-9) were in favour of its unit and as per the aforesaid reports, the appellant unit satisfied the siting criteria notified by the State Govt. and the said reports have not been disputed either by the Collector or the Board. According to the appellant, its unit was also running in a most efficient manner and had been adopting the pollution control measures in terms of the Air Act and the O.M.M.C. Rules, 2004 and other Rules and guidelines framed thereunder. and the said reports have not been disputed either by the Collector or the Board. According to the appellant, its unit was also running in a most efficient manner and had been adopting the pollution control measures in terms of the Air Act and the O.M.M.C. Rules, 2004 and other Rules and guidelines framed thereunder. Further, the order passed by the Collector is erroneous because instead of deciding the application of the appellant for grant of siting clearance certificate on compliance of the siting criteria as indicated in the notice dated 1.2.2007 (Annexure-4) and as notified by the Forest and Environment Department in the order dated 13.5.1998, as amended by order dated 1.8.2006, in relation to establishment of stone crusher units in the State, he completely diverted the question and decided the same considering the fact that the appellant has no long term claim over the sairat source and the Govt. has reserved the right of settling the said sairat source on annual auction basis to the highest bidder. After rejection of the application for issue of siting clearance certificate by the Collector, the appellant submitted an application to the Board with all relevant documents for grant of consent to operate till 1.8.2012 along with the letter dated 16.9.2010, vide Annexure-13 series, after publication of the notice dated 28.8.2010 of the Board in the newspapers on 29.8.2010. The appellant in the aforesaid letter indicated that after grant of renewal of the stone quarry beyond 1.8.2012, extension/renewal of consent to operate order beyond 1.8.2012 would be made. It is alleged that the Board without affording an opportunity of hearing has passed the impugned order dated 14.12.2010 vide Annexure-16 for closure of the unit. The appellant had also challenged the impugned closure order passed by the Board in Annexure-16 so also the order of the Collector dated 10.6.2009 rejecting appellant’s application for issue of siting clearance certificate in Annexure-11 in W.P.(C) No.9432 of 2009, which was disposed of by the Hon’ble High Court by order dated 4.5.2011 directing this Authority to examine the correctness of the same and pass order on merits as expeditiously as possible. Shri Patnaik, learned counsel for the appellant, contended that the closure order in Annexure-16 having been passed without affording an opportunity of hearing and in violation of the principle of natural justice is liable to be set aside and in this regard the placed reliance on a decision of this Authority in Biswaranjan Sahoo v. Regional Officer, reported in 2010 (II) OLR 696 , and the decision of the Hon’ble Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597 . 3.The Board in response to the appeal memo has filed a written note of submissions. As to the allegation of the appellant that no opportunity was given before issuing the impugned closure notice in Annexure-16 in terms of second proviso to Section 21 (4) of the Air Act, it is submitted by the Board that since the aforesaid proviso envisages that a reasonable opportunity of being heard shall be given to the person concerned before cancelling a consent or refusing a further consent under the first proviso, the same is not at all applicable to the case of the appellant as its case is neither a case of cancellation of consent or refusal of further consent since the appellant had not obtained consent to operate from the Board by then. Therefore, the question of grant of opportunity of hearing as indicated in the second proviso to Section 21(4) is not attracted to the case of the appellant. Shri Pattajoshi, learned Law Officer appearing for the Board, submitted that prior to declaration of the entire State of Orissa as Air Pollution Control Area with effect from 18.7.2002, the stone crusher units were regulated through a siting criteria notified by the Forest and Environment Department under Section 5 of the Environment (Protection) Act, 1986 vide the order dated 13.5.1998 which was amended vide the order dated 1.6.2006. Now the said siting criteria has been revised by order dated 6.8.2010 and as per the Board’s circular dated 7.8.2007, annexed as Annexure-C/1 to the written notes of submission, the consent to establish/operate stone crusher unit shall be considered on the basis of the certificate of the Collector and District Magistrate of the concerned district on compliance of the conditions of the siting criteria as notified by the State Govt. Since the appellant failed to submit the siting clearance certificate from the Collector, the Board is legally correct in refusing to grant consent to operate and in issuing the impugned closure order vide Annexure-16. 4.The Collector has refused to grant the siting clearance certificate in favour of the appellant vide Annexure-11 holding that ‘as siting criteria certificate issues clearance over the land from the revenue point of view and as the case land is an existing sairat source over which the petitioner cannot make any long term claim as after the period of the existing short term lease the source is liable to be subsequently settled with different highest bidders through annual auction as per the Government guidelines in the matter, a sitting criteria certificate cannot be granted to the petitioner. Therefore, the prayer of the petitioner for issue of a sitting criteria certificate in her favour is rejected as the government reserves the right of settling the concerned sairat source on annual auction basis to the highest bidder and as such the petitioner has no long term claim over the sairat source. The reason advanced by the Collector to reject the siting clearance certificate is totally untenable and illegal because he has completely diverted the issue from considering the conditions imposed by the State Govt. in their order dated 13.5.1998 as amended vide order dated 1.6.2006 prescribing the guidelines for setting up of stone crusher units despite the clear cut recommendations made by the Tahasildar and the Revenue Inspector in favour of the appellant and proceeded to reject the application of the appellant on the ground that the appellant has no long term claim over the sairat source. That apart, the Board also vide its letter dated 26.3.2009 (Annexure-14) while forwarding the inspection report dated 27.2.2009 to the Collector recommended to consider the siting clearance certificate on the basis of the report of the Tahasildar. The disposal of the application of the appellant by the Collector is also not in strict compliance of the order dated 5.5.2009 passed in W.P.(C) No.5226 of 2009 wherein the Hon’ble High Court clearly directed to pass a reasoned order keeping in view the reports of the R.I. and the Tahasildar in accordance with law on its own merit. The disposal of the application of the appellant by the Collector is also not in strict compliance of the order dated 5.5.2009 passed in W.P.(C) No.5226 of 2009 wherein the Hon’ble High Court clearly directed to pass a reasoned order keeping in view the reports of the R.I. and the Tahasildar in accordance with law on its own merit. So far as the contention of the appellant that the Board has violated the principle of natural justice in not affording any opportunity of hearing before passing the impugned closure direction vide Annexure-16 and ignoring the statutory provision made in the second proviso to Section 21(4) of the Air Act, the same is not tenable firstly because Annexure-16 was issued pursuant to the general directions passed by the Hon’ble High Court in the judgment rendered in W.P.(C) No.9101 of 2009, reported in 2010 (II) OLR 703 (M/s. Trishakti Stone Crushing Unit v. State of Orissa) and the public notice issued by the Board and published in the local Oriya and English dailies vide Annexure-D/1 series to the written notes of submission and secondly, since the case of the appellant is neither cancellation of consent or refusal of further consent, question of affording opportunity of hearing in terms of second proviso to Section 21(4) of the Air Act is not attracted. The decisions cited by the learned counsel for the appellant, namely, Biswaranjan Sahoo and Maneka Gandhi (supra) on principle of natural justice, are not applicable to the case of the appellant. 5.For the aforesaid reasons, we direct the Collector and District Magistrate, Sundargarh, to consider the application of the appellant for grant of siting clearance certificate upto the lease period, i.e., 1.8.2012, afresh on the basis of the conditions stipulated in the order dated 6.8.2010 of the Forest and Environment Department, which superseded its earlier order dated 13.5.1998 and amended vide order dated 1.8.2006, keeping in view the reports of the concerned Tahasildar and the Revenue Inspector. The aforesaid exercise shall be completed within fifteen days from the date of receipt of this order and in the event of grant of siting clearance certificate by the Collector, the Board shall pass appropriate order on the application filed by the appellant for grant of consent to operate vide Annexure-13 series within fifteen days thereafter in terms of the ratio decidendi of the decision in Trishakti Stone Crusher (supra). 6.The appeal is disposed of with the aforesaid directions and observations. PROF. G.B. BEHERA, MEMBERI agree. DR. C.R. MOHAPATRA, MEMBERI agree. Appeal disposed of with direction.