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2014 DIGILAW 530 (KER)

Palakkal Martin v. Ansar C.

2014-07-08

A.K.JAYASANKARAN NAMBIAR, K.M.JOSEPH

body2014
JUDGMENT : K.M. JOSEPH, J. 1. Appellant is the 2nd respondent in the writ petition. The writ petitioner, who is the 1st respondent herein, approached this Court seeking the following prayers: (i) Issue a writ of certiorari or other appropriate writ or order quashing Exts. P-1 and P-2 orders and declare that petitioner is entitled to the consent to establish Crusher Unit in Survey No. 25/1A of Nediyanga Village, Taliparamba Taluk, Kannur District taking into consideration of the fact situation as on the date of application or atleast on the date of Ext. P-3 decision of the Grama Panchayat granting installation permission; (ii) Issue a writ of mandamus or other appropriate writ or order directing the First Respondent to issue consent to establish Stone Crusher Unit in Survey No. 25/1A of Nediyanga Village, Taliparamba Taluk, Kannur District. (iii) Declare that the installation permission granted by the Single Window Clearance Board is sufficient and that the objection by the Pollution Control Board is unsustainable. 2. Ext. P-1 is the order passed by the Kerala State Pollution Control Board, hereinafter referred to as the 'Board', refusing the consent to establish a Stone Crusher Unit, for which the writ petitioner sought consent. The said order has been affirmed by the Air Appellate Authority vide Ext. P-2. The basis of Ext. P-1 order is that the appellant had put up a residential house at a distance of 130 meters from the centre of the proposed crusher unit and in view of the Circular issued dated 24-11-2009 relating to 'New sitting criteria for establishment and expansion of primary crushers' consent was declined. The Circular relating to suitability of site inter alia reads as follows: Suitability of site: 1. There should be a minimum clear distance of 200 in from the centre of the proposed primary crusher unit to the periphery of the structure of any residence, public building or place of worship. Exemption is allowed for store room and office room. 2. In cases where environmental factors such as terrain and greenery are conducive to reduce spread of pollution and where advanced technology that reduces noise and dust is employed the minimum distance may be further reduced to 150 in with stringent control measures such as 40 cm thick solid wall, false roofing, dust extraction, water impingement and settling facility. As already noticed, the said finding has been approved by the Appellate Authority also. 3. As already noticed, the said finding has been approved by the Appellate Authority also. 3. The learned Single Judge disposed of the writ petition by setting aside Exts. P-1 and P-2 and directing the 1st respondent (Board) to consider the application of the writ petitioner for establishing the metal crusher unit without reference to the existence of the building constructed by the appellant. Feeling aggrieved by the same, the appeal is filed. 4. We heard Adv. Sri K. Abdul Jawad, learned counsel for the appellant, Adv. K.V. Sohan, learned counsel for the writ petitioner and also learned counsel for the Board. 5. Learned counsel for the appellant Adv. Sri K. Abdul Jawad would submit that the statutory authorities were charged with the duty of deciding on the sanction to be granted and they have acted within the bounds of law. They have found that the building which is residential in nature was put up within the prescribed distance in terms of the sitting criteria. The learned counsel for the appellant would contend that though the distance is shown as 137 meters, on actual measurement, it is only 54 meters. He would further emphasise that the learned Single Judge has overlooked the limits of judicial review jurisdiction, which alone the learned Single Judge was entitled to exercise in a writ petition filed under Article 226 of the Constitution of India. He would submit that the learned Single Judge should have found that no ground is made out to interfere. He would submit that the authorities had formed an opinion on the basis of the materials available before them. As far as Ext. P-1 is concerned, it was based on the report of the Panchayat. As far as Ext. P-2 order of the Air Appellate Authority is concerned, the appellate authority has considered the report of the Advocate Commissioner who was appointed by the appellate authority, the effect of the order passed by the civil court which was referred to but not found to have fatal consequences in view of the nature of the interlocutory order and the nature of the discretion which is exercised by the civil court in the matter of an interlocutory application for injunction. 6. Per contra, the learned counsel for the writ petitioner would address the following submissions before us. 6. Per contra, the learned counsel for the writ petitioner would address the following submissions before us. He would submit that the Distance Rule which is adumbrated in the Circular dated 24-11-2009 is not a statutory rule. The appellant does not base his case on actual nuisance caused to him as the industry is yet to be set up. It is pointed out that the industry proposed to be set up is with modern technology and therefore the Distance Rule may not be treated as an inexorable prescription which cannot be ignored or overlooked having regard to other relevant criteria like the technology which is sought to be employed and the measures which are to be adopted. Next he would submit that Exts. P-1 and P-2 are vitiated for the reason that the authorities proceeded on the basis that the structure which has been put up by the appellant is a residential building. In this regard, he would expatiate and draw our attention to the facts which led up to Exts. P-1 and P-2. The writ petitioner in consultation with the District Industries Centre decided to establish a stone crusher in his property. He approached the basic authority (Panchayat) and submitted the application along with the site plan seeking permission for establishing the unit on 9-9-2009. The Panchayat passed a resolution dated 8-10-2009 which, according to the writ petitioner is the permission contemplated under Section 233 of the Kerala Panchayat Raj Act, 1994. Subsequently, the matter was referred to the Single Window Clearance Board. The Single Window Clearance Board called for a report from all statutory authorities. The Inspector of Factories and Boilers submitted Ext. P-4 report recommending that permission can be given and vide Ext. P-5, the Assistant Divisional Officer, Fire and Rescue Services visited the site and issued no objection Certificate for establishing the unit. That is followed by the District Medical Officer giving Ext. P-6 letter of approval dated 27-11-2009 and the Town Planner also issued Ext. P-7 dated 27-2-2010. The Single Window Clearance Board forwarded the application. Thereafter on 6-8-2010, by Ext. P-12 proceedings, the Single Window Clearance Board directed to grant permission for installation and the D & O licence to the writ petitioner as the unit has got all other clearances. Pursuant to the same, Ext. P-7 dated 27-2-2010. The Single Window Clearance Board forwarded the application. Thereafter on 6-8-2010, by Ext. P-12 proceedings, the Single Window Clearance Board directed to grant permission for installation and the D & O licence to the writ petitioner as the unit has got all other clearances. Pursuant to the same, Ext. P-16 dated 25-9-2010 was issued by the Panchayat permitting installation of machinery by the writ petitioner subject to various conditions. By Ext. P-1 dated 6-5-2010, the Pollution Control Board refused to grant consent noticing the existence of the building of the appellant. In regard to the construction of the building by the appellant, the learned counsel for the writ petitioner would draw our attention to the following facts: It is after Ext. P-3 was passed and being fully aware of the proposed establishment of the industry by the writ petitioner that with mala fide intention, the appellant made an application for a permit on 22-10-2009. This has resulted in the Board taking the stand that there was a residential building put up by the appellant which stood in the way of the consent being granted. It is therefore submitted that the structure has been put up mala fide and more importantly it cannot be treated as a residential building within the meaning of the Circular issued by the Board. In this regard, he would submit that an Advocate Commissioner was deputed and he has given a report which would clearly show that the appellant was not in possession of the residential building and that it is only a mala fide attempt to put up a structure at a particular point in his residential property with the oblique motive of preventing the writ petitioner from pursuing his right to set up the unit. The appellant filed a civil suit. In the suit, he also filed an interlocutory application. The interlocutory application was dismissed. These things have not been considered by the authorities while passing Exts. P-1 and P-2. He would also emphasise that the Board was a party to the proceedings before the Single Window Clearance Board and it is not open for it to discard the direction of the Single Window Clearance Board particularly having regard to the fact that Ext. These things have not been considered by the authorities while passing Exts. P-1 and P-2. He would also emphasise that the Board was a party to the proceedings before the Single Window Clearance Board and it is not open for it to discard the direction of the Single Window Clearance Board particularly having regard to the fact that Ext. P-9 Circular cannot be treated as made under any law and also that it is not a central law under which it could resist the direction given under the Single Window Clearance Board Act. He further draws our attention to an unreported decision in W.A. No. 880 of 2006. He would submit that this judgment is an authority for a proposition that the Circular regarding sitting criteria does not have a statutory flavour and it cannot bind the authority and the authority should therefore having regard to the modern technology proposed to be employed by the writ petitioner not have insisted upon the Distance Rule as per the sitting criteria. He draws our attention to the Rules framed under the Environment (Protection) Act, 1986. According to him, under the term 'Industry' in question, for the 'Stone crushing unit' in Serial No. 37 of Schedule I of the Environment (Protection) Rules, 1986, definite standards have been prescribed. With regard to that, he would therefore submit that Ext. P-9 Circular cannot be supported as there are no reasons given in fixing more stringent standards which alone can be supported with reference to Rule 3 of the Environment (Protection) Rules, referred to above. He also submits that this is a case where the appellant has come upon nuisance and relied on the judgment of Lord Denning in John Edward Miller and Brenda Theresa Miller v. R. Jackson and J.J. Cromerty (1977) 3 W.L.R. 20. He further implores us to have regard to the fact that huge investments have been made running into more than three crores. 7. The learned counsel for the Board would submit that there is authority to issue Ext. P-9. He traced the authority to Section 17(1)(j) of the Air (Prevention and Control of Pollution) Act, hereinafter referred to as the 'Air Act'. Learned counsel for the Board would in fact contend that there is a Complaint Committee and the Committee can in fact also relax the standards while considering applications in appropriate cases for relaxation. 8. P-9. He traced the authority to Section 17(1)(j) of the Air (Prevention and Control of Pollution) Act, hereinafter referred to as the 'Air Act'. Learned counsel for the Board would in fact contend that there is a Complaint Committee and the Committee can in fact also relax the standards while considering applications in appropriate cases for relaxation. 8. Learned counsel for the appellant in reply would contend that the submission of the writ petitioner that Ext. P-3 is a permission granted under Section 233 of the Kerala Panchayat Raj Act cannot be accepted. He draws our attention to Section 233 of the Panchayat Raj Act in this regard. He would submit that the construction of the residential building was completed on 9-12-2009 and the residential building was numbered much prior to Ext. P-16. Ext. P-16 is in the year 2010. He further contends that no construction could be made by the alleged huge amount spent on investment without even having obtained the consent to establish. He further points out Section 233(5) of the Panchayat Raj Act, which reads as follows: 233. Permission for the construction of factories and the installation of machinery.-- (1) * * * * * (2) * * * * * (3) * * * * * (4) * * * * * (5) The grant of permission under this section,-- (a) shall be subject to the conditions to be observed in respect of the replacement of machinery the levy of fees and to such restrictions and conditions as may be prescribed. (b) shall not be deemed as exempted from observing the provisions contained in Sections 235(F) and 235(H) or 235(P) and 235(Q). In terms thereof, the writ petitioner has not applied and obtained permission and without permission he could not carry out the so called constructions which have been made he points out. He would submit that as far as the Division Bench judgment is concerned, it turned on the special facts before it insofar as it related to the case of a company which was already running a crusher unit and the company wanted to put up two additional crusher units. In fact originally the consent was given on the basis of the consent given by the people of the area. In fact originally the consent was given on the basis of the consent given by the people of the area. Still further he would submit that a trial was directed to be done and more importantly it is pointed out that that is a case where the court took note of the fact that the sitting criteria which was originally 100 metres was increased to 250 metres. Thereafter the present Circular was passed by the Board prescribing the Distance Rules as we have already referred to. Therefore, no reliance can be placed on the said decision. It does not operate as a precedent. It is also not correct on the part of the Division Bench to have held that the Circular does not have statutory force having regard to the fact that the authority of the Board to issue the same is traced out to Section 17 of the Air Act. The learned counsel also draw our attention to the judgment of the Patna High Court in Bihar State Pollution Control Board and another v. Hiranand Stone Works and others, A.I.R. 2005 Patna 62 which considered the very same question. He also draws our attention to the judgment in State of U.P. and another v. Synthetics and Chemicals Ltd. and another, (1991) 4 S.C.C. 139 for the contention that the judgment of the Division Bench was in fact per incuriam insofar as it did not consider the statutory provision which enabled Ext. P-9 to be issued. He would refer to paragraphs 28 and 29 of the judgment of the Patna High Court in support of the contention to the effect that the Environment (Protection) Act is a general Act and the power of the Board to provide for sitting criteria with reference to Section 17 of the Air Act is unquestionable. 9. The learned counsel for the appellant relied on the decision in Joseph v. State of Kerala, 2003 (3) K.L.T. 296 . In reply to the same, the learned counsel for the writ petitioner pointed out our attention to the disposal of the writ appeal which proceeded on the basis of the agreement between the parties and therefore no reliance can be placed on that judgment. In reply to the same, the learned counsel for the writ petitioner pointed out our attention to the disposal of the writ appeal which proceeded on the basis of the agreement between the parties and therefore no reliance can be placed on that judgment. The learned counsel for the writ petitioner pointed out that the matters of this nature should be considered with reference to the position obtaining as on the date of the application and not on the date of consideration. He places reliance on Surendran v. District Collector 1999 (3) K.L.T. 33. Learned counsel for the writ petitioner would submit that the principles laid down in State of Kerala and another v. Six Holiday Resorts Private Limited and others, (2010) 5 S.C.C. 186 to the effect that it is the date of consideration that is relevant is distinguishable and that cannot be considered, as unlike in the said case, here the rule remained the same both on the date of application and the date of the decision. 10. The writ court exercises the powers of judicial review. The writ court does not appreciate the matter as an appellate court. The jurisdiction is essentially supervisory in nature. It asks the question whether the authority has acted unreasonably, which in turn means whether the authority has considered irrelevant matters, whether it has eschewed relevant matters, whether it has followed principles of natural justice, whether there is non-application of mind, whether where there is duty to give reasons, reasons are given and also whether the authority has entered a finding which is perverse, which means a finding which no man trained in law and informed of the fact situation would arrive at. A decision would be perverse if there are no materials to support a finding. A decision may also be challenged if it is found that the action is affected by bias, and whether requirement to impose a particular restriction or to take a particular action by the State or the authorities is contrary to the principles of proportionality which is now firmly entrenched in India. The writ court does not re-appreciate facts which are found. 11. With these prefatory remarks, we pass on to the application of the principles to the impugned orders Exts. P-1 and P-2, in the light of the arguments which have been addressed before us. The writ court does not re-appreciate facts which are found. 11. With these prefatory remarks, we pass on to the application of the principles to the impugned orders Exts. P-1 and P-2, in the light of the arguments which have been addressed before us. We would have to consider whether the learned Single Judge exceeded the limits set for a writ court. The learned Single Judge has proceeded to direct the Board to disregard the construction made by the appellant. 12. We are of the view that the arguments which were addressed before us by the learned counsel for the writ petitioner that there is malice with which the appellant proceeded to put up the construction and therefore that would vitiate the finding of the statutory authorities cannot be accepted. Firstly, we find that the arguments of the learned counsel for the writ petitioner that Ext. P-3 is permission under Section 233 of the Panchayat Raj Act is misplaced. A perusal of Section 233 of the above Act would show that the application is to be made to the Secretary, it has to be placed before the Panchayat Committee and sub-section (4) of Section 233 provides for various reports which are to be considered by the Panchayat Committee before it decides to accept or refuse the application under Section 233 of the Act. We are clear in our mind that Ext. P-3 cannot be treated as the grant of permission under Section 233 for the simple reason that the statutory reports contemplated under sub-section (4) of Section 233 in fact are made after Ext. P-3. It can be said that Ext. P-16 is the permission granted under Section 233 but by that time, the appellant had already applied for a permit and the construction is completed and it was numbered. In view of doubt regarding the nature of the construction, reference was made to the stand of the local body itself. As noted in Ext. P-1, it was reported that it was for residential purpose that the construction was made. We also notice that the appellate authority has also discussed Ext. C-1 commission report and also the interlocutory order passed by the civil court. As noted in Ext. P-1, it was reported that it was for residential purpose that the construction was made. We also notice that the appellate authority has also discussed Ext. C-1 commission report and also the interlocutory order passed by the civil court. It may be true that a reference in the commission report may show that it may not qualify as a residential house as put by the writ petitioner, as, according to him, it is a temporary shed not fit for human in habitation. Commission report shows that there is no toilet and there is only a single room apart from the verandah. The Commission report also shows the absence of water supply. The learned counsel for the writ petitioner also drew our attention to the building of the father of the appellant also in this context. 13. The sitting criteria only requires that there cannot be a residence within 150 metres (maximum relaxation permissible) from the center of the unit. What is important is that the construction must be a residential construction and intended for use. We cannot predicate for any minimum requirement in respect of a residential building and rule out a construction which may not have all the facilities which a person may contemplate. It is a relative concept. Therefore, we would think that the learned Single Judge to have embarked on an enquiry to find that it is not a residential building cannot be countenanced in the backdrop of the findings entered by the statutory authorities which cannot be treated as having been made without materials. Therefore we come to the conclusion that before the permission was obtained under Section 233, the application was moved for construction of a residential building by the appellant, a permit was obtained, and in December, 2009, the structure had come up and, therefore, by the time the question of consent came up there was a residential building. 14. We are not impressed by the contention of the writ petitioner that the unit has not started functioning and only if there is actual nuisance, the complaint of the appellant would have meaning. Prevention is better than cure. We would also refer to Article 21 of the Constitution under which every person has a right to have a clean environment. It is for the protection of the same, various laws have been made and authorities constituted. Prevention is better than cure. We would also refer to Article 21 of the Constitution under which every person has a right to have a clean environment. It is for the protection of the same, various laws have been made and authorities constituted. Section 17(1)(g) and (h) of the Air Act, which reads as follows: 17. Functions of State Boards.--(1) Subject to the provisions of this Act, and without prejudice to the performance of its functions, if any, under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), the functions of a State Board shall be-- * * * * * (g) to lay down, in consultation with the Central Board and having regard to the standards for the quality of air laid down by the Central Board, standards for emission of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any air pollution into the atmosphere from any other source whatsoever not being a ship or an aircraft: Provided that different standards for emission may be laid down under this clause for different industrial plants having regard to the quantity and composition of emission of air pollutants into the atmosphere from such industrial plants; (h) to advise the State Government with respect to the suitability of any premises or location for carrying on any industry which is likely to cause air pollution; It vests with the Board the authority of an omnibus nature or a residuary character. It vests authority with the Board to issue guidelines such as sitting criteria. It is important to notice in this regard neither before the board nor before the authority was any challenge raised by the writ petitioner to the legality or the validity of the sitting criteria or the applicability of the same otherwise to the facts of the case. The entire issue revolved round the conduct of the appellant, the construction made by him, the nature of the construction made by him and it has resulted in the refusal to grant consent by the appellate authority. Even before the learned Single Judge, there is no challenge raised to the sitting criteria. There is no case that the sitting criteria cannot be treated as an inflexible rule. In this regard, the judgment of the Division Bench is pressed into service. Even before the learned Single Judge, there is no challenge raised to the sitting criteria. There is no case that the sitting criteria cannot be treated as an inflexible rule. In this regard, the judgment of the Division Bench is pressed into service. That was a case where a crusher unit was already being operated, expansion was contemplated, additional units were put into service. There was objection. The Board intervened. We have to appreciate certain aspects. That was a case where originally the sitting criteria was 100 metres and it was further increased to 250 metres. The court in fact under an earlier judgment in a writ appeal also comments on the need for the Board to revisit the increased criteria at 250 metres. It held that with modern technology it could provide for lesser distance as the sitting criteria. We have already extracted the sitting criteria which have been made applicable in this case. A perusal of the same would show that the sitting criteria is 200 metres for a new primary crusher unit. But in regard to crusher units where modern technology are proposed to be introduced and other pollution control measures are contemplated, the discretion is given but it should not be reduced to less than 150 metres. It is with reference to the said criteria that we need to consider the present case. 15. We need to consider the case of the petitioner based on Rule 3 of the Environment (Protection) Rules. Actually this question was not raised before the learned Single Judge. This question is sought to be raised by way of an amendment application. The learned counsel for the appellant would submit that he has no objection if the court deals with the said issue without allowing the application for amendment as such. 16. Environment (Protection) Act is enacted in the year 1986. Air (Prevention and Control of Pollution) Act is enacted in the year 1981. Rule 3(1) and (2) of the Environment (Protection) Rules inter alia reads as follows: 3. Standards for emissions or discharge of environmental pollutants.--(1) For the purpose of protecting and improving the quality of the environment and preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in (Schedule I to IV). Standards for emissions or discharge of environmental pollutants.--(1) For the purpose of protecting and improving the quality of the environment and preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in (Schedule I to IV). (* * * * *) (2) Notwithstanding anything contained in sub-rule (1), the Central Board or a State Board may specify more stringent standards from those provided in (Schedule I to IV) in respect of any specific industry, operation or process depending upon the quality of the recipient system and after recording reasons therefore in writing. Based on the same, it is no doubt true that under Entry 37 dealing with Stone Crushing Unit, certain standards are prescribed. They involve implementation of certain pollution control measures which includes: (i) Implementation of the following Pollution Control measures: (a) Dust containment cum suppression system of the equipment. (b) Construction of wind breaking walls. (c) Construction of the metalled roads within the premises. (d) Regular cleaning and wetting of the ground within the premises. (e) Growing of a green belt along the periphery. Thereafter, the quantity standards for suspended particulate matter (SPM) are provided thereunder, which is as follows: (ii) Quantitative standard for the SPM: The suspended particulate matter contribution value at a distance of 40 meters from a controlled isolated as well as from a unit located in a cluster should be less than 600 mg/Nm3. The measurements are to be conducted at least twice a month for all the 12 months in a year. The learned counsel for the writ petitioner drew our attention to Annexure II (For the purpose of Part D) in respect of the guidelines in enforcing the standards specified under Schedule VI, in case of stone crushing units, the suspended PM contribution valued at a distance of 40 meters from a controlled, isolated as well as from a unit located in the cluster should be less than 600 micrograms/Nm3. These units must also adopt certain pollution control measures which reads as follows: (i) Dust containment cum suppression system for the equipment; (ii) Construction of wind breaking walls; (iii) Construction of the metalled roads within the premises; (iv) Regular cleaning and wetting of the ground within the premises; (v) Growing of a green belt along the periphery. These units must also adopt certain pollution control measures which reads as follows: (i) Dust containment cum suppression system for the equipment; (ii) Construction of wind breaking walls; (iii) Construction of the metalled roads within the premises; (iv) Regular cleaning and wetting of the ground within the premises; (v) Growing of a green belt along the periphery. Therefore, the contention appears to be that in terms of the said rule and standards prescribed, Ext. P-9, which is impugned before us, issued by the Board are unjustifiable and illegal as, if a more stringent standard is to be provided, it should be supported by recording of reasons in writing which is not the case herein. Apart from the fact that we would not know whether reasons have been given but proceeding on the basis that no reasons have been given for the purposes of this case we would still think that the authority of the Board to provide for a distance within which a stone crushing unit cannot be located as a sitting criteria cannot be dubbed as illegal or being contrary to the standards for emission. Rule 3 actually contemplates providing for standards of emissions or discharge of environmental pollutants and only if more stringent standards than are provided under Rule 3 is contemplated at the hands of the State Board inter alia that Sub-rule (2) of Rule 3 will become an obstacle. The Board has otherwise power to issue the sitting criteria. We would think that we can safely trace it to the provisions contained in Section 17(1)(j) of the Air Act and there is no conflict between the same. We do not think it will be appropriate to take away the power of the Board under the Air Act with reference to the standards for emission or discharge of environmental pollutants as contemplated under Rule 3. No doubt the criteria provides for various measures to be contemplated. But we notice that there is no reference at all to any sitting criteria or the distance to be maintained. 17. No doubt the criteria provides for various measures to be contemplated. But we notice that there is no reference at all to any sitting criteria or the distance to be maintained. 17. As far as the restriction in Rule 3 is concerned, we would think that for the purpose of deciding the matter in the manner we are doing namely without having allowed the application for amendment and in view of the stand taken by the appellant alone inviting a decision on the same, that under Schedule I, the standards are prescribed apparently with reference to the parameters. We observe prima facie having regard to the contents of the columns under Schedule I, relatable to Rule 3, the second column relates to industry, the 3rd column relates to parameters and finally there are standards. As far as "stone crushing unit" is concerned, we may notice that it came under Entry 11 initially as inserted by S.O.443 (E) dated 18-4-1987. It provides for suspended particulate matter which means that the parameter is SPM and under the last column, the standard was fixed. Then there is Entry 37. As far as Entry 37 also is concerned, it appears to relate to 'stone crushing unit'. The same was inserted with effect from 30-8-1990. Thereunder, the parameter is the same namely the 'SPM' and the standards consist of two parts which we have already indicated. We may also notice that actually Rule 3A of the Environment Protection Rules provides as follows: ((3A) (i) Notwithstanding anything contained in Sub-rules (1) and (2), on and from the 1st day of January, 1994, emission or discharge of environmental pollutants from the (industries, operations or processes other than those industries, operations or processes for which standards have been specified in Schedule I) shall not exceed the relevant parameters and standards specified in Schedule VI. Therefore, what is provided in Schedule VI is general standards for discharge of environmental pollutants. We do notice as pointed out by the learned counsel for the writ petitioner that there is reference to "stone crushing unit" and various directions are to be undertaken by the units for pollution control. Here again we notice that what is provided thereunder is for the purpose of Part D to regulate particulate matter. It was with reference to the said subject-matter again that the standards are prescribed. Here again we notice that what is provided thereunder is for the purpose of Part D to regulate particulate matter. It was with reference to the said subject-matter again that the standards are prescribed. In other words, prima facie and without finally deciding the matter in the circumstances which we have already adverted to, we would think that the contention of the writ petitioner that Ext. P-9 is illegal as it violates Rule 3(2) as it is done without reasons cannot be sustained. 18. We cannot also accept the contention of the writ petitioner that Ext. P-9 Circular is not statutory and it cannot have effect. We notice that Ext. P-9 is issued apparently based on the statutory provisions namely Clause 17 of the Air Act. We have also adverted to the circumstances which led to the issue of Ext. P-9, namely, the stand of this Court that the Board should revisit the issue of sitting criteria so that the sitting criteria could be appropriately devised so that on the one hand industrial activity/economic activity is encouraged at the same time the consent of the people living in the area are suitably obtained. That appears to be in consonance with the principles of sustainable development and also the right emanating from Article 21 of the Constitution. In other words, what the Board appears to have done would appear to be the balance of the rights under Section 19(1)(g) and the rights under Article 21. It should have a norm to guide it. We have already taken note of the argument of the learned counsel for the Board about the existence of a Complaint Committee and its overriding power and we need not say anything more and we leave it there as that is not the subject-matter of this litigation. 19. We are also not impressed by the contention of the learned counsel for the writ petitioner that it is the position obtaining as on the date of the application which should govern the matter. As far as the judgment of this Court rendered in the context of the Burial Grounds Rules is concerned, there is a provision in the Rule which declares that position as on the date of the application should prevail. There is no such provision as far as this case is concerned. As far as the judgment of this Court rendered in the context of the Burial Grounds Rules is concerned, there is a provision in the Rule which declares that position as on the date of the application should prevail. There is no such provision as far as this case is concerned. As far as the attempt by the learned counsel for the writ petitioner to distinguish the judgment of the Apex Court on the basis that in the said case there was a change in the Rule which affected the eligibility with reference to the date of the consideration of the application and therefore in this case though there is a building, which is residential, it need not detain the authorities in the matter of grant or refusal of consent, we are unable to subscribe to the said contention. The construction of a residential house in itself is a legitimate right of the owner or the person who has a right to make such construction. There is no interdiction by any law that the appellant cannot put up the construction. We have already noticed that the attempt of the writ petitioner to point out that Ext. P-3 is a permission granted under Section 233 of the Panchayat Raj Act must necessarily fail as it is not such permission. Therefore, all that had happened was the writ petitioner had made an application for the purpose of starting a unit. May be sensing that, the appellant decided to put up a residential building. The learned counsel for the writ petitioner when he was asked a question as to what could be the effect, without knowing about the move on the part of the writ petitioner to put up the industry, if a neighbour has put up a building at a location which attracted the Rule, the answer was that the decision could have been different. Therefore the alleged element of malice cannot cut at the root of the appellant's case. We are unable to agree with even proceeding on the basis that, the appellant went about applying for building permit and put up the structure knowing fully well about the proposal of the appellant which was being considered, would make a difference in law. It is not the appellant who approached this Court seeking the discretionary jurisdiction. It is the writ petitioner who sought the discretionary jurisdiction. It is not the appellant who approached this Court seeking the discretionary jurisdiction. It is the writ petitioner who sought the discretionary jurisdiction. The statutory authority--both original and appellate--had found that there was a residential building which stood in the way of the writ petitioner being granted consent on the basis of the relevant consideration, which was Ext. P-9. If the contention of the writ petitioner is to be accepted then after the unit is proposed to be set up, this will result in the freezing of the rights available to the persons in the neighbourhood to pursue any legitimate activity which they are otherwise entitled to. Such a plea cannot be countenanced by this Court. 20. The learned counsel for the writ petitioner sought to draw support from the judgment in John Edward Miller and Brenda Theresa Miller v. R. Jackson and J.J. Cromerty (1977) 3 W.L.R. 20. That was a case where for nearly 70 years, the people in the area were playing cricket. A person purchased land nearby. He sought and got an injunction for stopping playing cricket. It was then the learned Judge proceeded to consider the principle coming upon nuisance and took the view that the plaintiffs were not entitled to an order of injunction and allowed the appeal. We must notice in this case that the writ petitioner had not started his industry. He had merely made an application to the Panchayat which is made available to the Single Window Clearance Board. While the matter was being pursued, the appellant appears to have put up a structure which has been found to be a residential one by the statutory authorities in December, 2009. Petitioner's application itself for starting an industry was granted only in September, 2010, that is, nine months thereafter. It is also to be noticed that in Ext. P-16, it is provided that the writ petitioner must apply for getting building permit. We have already noticed that the argument of the learned counsel for the appellant it is without getting the building permit which is in fact mandated under Section 233 that the alleged investments were made by the writ petitioner. There is a case for the writ petitioner that the matter was delayed and the appellant put up the construction. We have already noticed that the argument of the learned counsel for the appellant it is without getting the building permit which is in fact mandated under Section 233 that the alleged investments were made by the writ petitioner. There is a case for the writ petitioner that the matter was delayed and the appellant put up the construction. The learned counsel for the writ petitioner also sought to support the said principle with reference to the judgment in Kedar Nath Agrawal (dead) and another v. Dhanraji Devi (dead) by L.Rs. and another 2004 A.I.R. SCW 5789. We notice the above case relates to the proceedings under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. We would think that it can have no application whatsoever to the present case. 21. Lastly, the learned counsel for the writ petitioner placed reliance on the judgment in Sterlite Industries (India) Ltd., and others v. Union of India and others, 2013 K.H.C. 4250 We notice that that is a case where consent orders under Air Act and Water Act was challenged before the Madras High Court. This is a case where the writ petitioner has not commissioned the plant. The consent has not been given by the Pollution Control Board. No doubt the submission of the writ petitioner is that on payment of compensation both can be allowed to exist. In the facts of the case, we are not persuaded to grant any such relief. Accordingly, on the upshot of the above discussion, the writ appeal is to be allowed and the judgment of the learned Single Judge is to be set aside. It is brought to our notice that pursuant to the judgment of the learned Single Judge consent was given. In view of our judgment setting aside the judgment of the learned Single Judge, any consequential action taken solely based on the judgment will also necessarily perish. Appeal is allowed as above.