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2011 DIGILAW 432 (UTT)

Preet Kumar v. State of Uttarakhand

2011-07-13

BARIN GHOSH, SERVESH KUMAR GUPTA

body2011
JUDGMENT BARIN GHOSH, C.J. (ORAL) 1. Right from the year 2001, the State Government, as is depicted from its various policies, is of the view that a stone crushing unit should not be within 500 metres from a river. The word ‘river’ has been used in all its policies. The State is not only having rivers, but it has other water bodies. In the policies, there is no mention of these water bodies. The policy of the State must be understood in that background. While 500 metres distance is to be maintained, when there is existence of a river, but such distance is not required to be maintained, when the water body is a lake, is not acceptable. In the circumstances, the logical conclusion would be that the word ‘river’, used in the policy, denotes water bodies of importance to the people. 2. In the writ petition, filed in the nature of a public interest litigation by the villagers of Kharmasa and Pratappur, they have contended that the private respondents are proposing to install a stone crushing unit at a place situated 100 metres away from river Bahela and 200 metres away from river/nala known as Pathri and about 350 metres away from an irrigation canal. It has been stated that river Bahela is the perennial source of water for the cultivators and source of drinking water for their animals. It has been stated that irrigation canal is also for cultivating their land. 3. The State Government filed a counter affidavit on 8.8.2006, where nothing was stated as regards the aforementioned contentions on the part of the writ petitioners. Lateron the State Government filed yet another counter affidavit, where it was stated that river Bahela is approximately 100 metres away from the stone crusher, and a river/nala known as Pathri is adjacent to the site of the stone crusher. It was also stated that the irrigation canal is about 350 metres away from the site of the stone crusher. Despite having had stated so, it was contended that District Magistrate has rightly issued the ‘No Objection Certificate’ for establishment of the said stone crusher. With that it was added that the policy/guidelines issued by the State Government have no statutory force. Despite having had stated so, it was contended that District Magistrate has rightly issued the ‘No Objection Certificate’ for establishment of the said stone crusher. With that it was added that the policy/guidelines issued by the State Government have no statutory force. In other words, since there was nothing to justify the ‘No Objection’ given for establishment of the said stone crushing unit, and despite the ‘No Objection’ being contrary to the policy of the Government, it was contended in the said affidavit that the policy has no statutory force, meaning thereby the same can be avoided at the sweet will of the officers of the State. 4. Private respondents have filed a counter affidavit. In the said affidavit, it has been stated that there is a canal, which emerges from Tumaria dam and the same is at a distance of 200 metres from the stone crushing unit to be installed. It has been stated that Bahela river is a canal. It has also been stated that Pathri river is a canal and the same also emanates from Tumaria dam. Although it has been stated that those canals have been constructed by the Irrigation Department for providing irrigation facilities to the agriculturists, but it has not been stated that Bahela river is also one of those canals, which has been constructed by the Irrigation Department. Be that as it may, it has not been denied that all those three water bodies are within 500 metres from the site of the stone crushing unit. With the said affidavit, a letter dated 14.6.2006 of Executive Engineer, Irrigation Division, Kashipur, written to the petitioner no. 1, has been annexed. In the said letter, it was stated that in response to the queries raised by the petitioner no. 1, enquires were conducted, whereupon it transpired that Bahela river is about 60 metres from the boundary of the said stone crushing unit and that Pratappur canal is situated about 150 metres away therefrom and Pathri river is about 200 metres away from the same place and that Kharmasa canal is about 350 metres away. It was also stated that in that regard, no information has been furnished by the Irrigation Department to any authority till date. It was also stated that at present, all bridges over the canals, situated in the locality, are in good condition. It was also stated that in that regard, no information has been furnished by the Irrigation Department to any authority till date. It was also stated that at present, all bridges over the canals, situated in the locality, are in good condition. Lastly, it was stated that nearby rivers are fed with water from Tumaria dam, wherefrom water is supplied to the canals of the region. 5. From the aforesaid letter, it is clear that the Executive Engineer, Irrigation Department identified two of the water bodies as the irrigation canals and the remaining two as rivers. He stated that water in these rivers come from Tumaria dam. It was contended by and on behalf of the private respondents that in such view of the matter, the water bodies concerned, being not rivers, but being, in fact, irrigation canals, the policy of the Government did not prevent the District Magistrate to issue the ‘No Objection’. From this letter, which has been relied by the private respondents, it is crystal clear that all these four water bodies are live water bodies, required everyday by the people living in the vicinity. If such a water body has not been addressed in the policy framed, we fail to understand what the policy attempted to address? Our conclusion would be that the policy, being aware that water is life of living being, prevented establishment of stone crushing units within 500 metres from all and every living water body and, accordingly, the District Magistrate had no authority, in law, to grant the ‘No Objection, in the instant case, as the site of the stone crushing unit is surrounded by four live water bodies catering to day-to-day need of the people and other living beings residing in the vicinity. 6. The learned Counsel for the State has drawn our attention to the policy of the Government dated 3.7.2008, where a proviso has been added, in terms whereof, The State Government, in the event establishment of a stone crushing unit is in the interest of the Government, can permit establishment of such stone crushing unit within 500 metres of a water body. Establishment of a stone crushing unit, for the interest of State Government being sine qua non of the proviso, but since neither the policy nor the pleadings has explained how a stone crushing unit can be in the interest of the Government, we feel that the purpose of introducing the said proviso was to empower people like the District Magistrate, who granted the ‘No Objection’ in the instant case, to issue ‘No Objections’ without bothering to take into account the well-being of the quality of life of the people of the State. While, therefore, we allow the writ petition and quash the ‘No Objection’ granted in favour of the private respondents by the District Magistrate, entitling the private respondents to establish the stone crushing unit, in question, we restrain the State Government to act on the basis of said proviso until, by a policy, the State Government makes it absolutely clear under what circumstances establishment of a stone crushing unit may be in the interest of the State Government.