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2016 DIGILAW 2051 (ALL)

Pravish Omar v. State of U. P.

2016-05-26

UMESH CHANDRA SRIVASTAVA, V.K.SHUKLA

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JUDGMENT Pravish Omar s/o Pramod Kumar is before this Court assailing the validity of the order dated 26.8.2015, annexure 10 to the writ petition, as well as the order dated 3.9.2015, annexure 11 to the writ petition, wherein orders have been passed by the authorities concerned for seizing the premises in question wherein industry in the shape of rolling mill was being run. 2. This Court in Civil Misc. Writ Petition No. 33870 of 2010 (M/s. Manoj Mini Rice Mill & another Vs. State of U.P. & others) has taken a serious note of the matter wherein industries were being run within the precincts of the residential area in question and, accordingly, directives have been issued for ensuring compliance of the provisions of the Air Pollution Act, 1981 and other statutory provisions holding the field. The relevant extract of the said order is as follows; "Apart from the breach of the provisions of the Act of 1981, the petitioner running the rice mill in the residential area, has also violated the bye-laws of the regulated area in running the industry in the residential locality. The directions issued by the High Court in Smt. Mithilesh Jain (Supra), were accepted by the State Government in compliance of which the Chief Secretary, Government of U.P. had issued directions to all the authorities not to permit industrial or commercial activity in the residential areas contrary to the master plan. Once the interim mandamus was accepted by issuing the Government Order on 10.10.2003, the dismissal of the writ petition for non-prosecution would not take away the effect of the Government Order. The directions issued by the State Government will operate independently unless in the final judgment of the Court the interim mandamus was either recalled or that any directions to the contrary are given by the Court. We may also add here that the petitioner does not have any right given by any statute or any policy of the State Government for allotment of land and compensation for relocation of industry, at a place outside the residential area. In the present the industry is sought to be closed for causing pollution and running without consent of the U.P. Pollution Control Board under Section 21 of the Air Pollution Act, 1981, and for which an order under Section 31-A of the Act has been passed, the running of industry in the industrial area. In the present the industry is sought to be closed for causing pollution and running without consent of the U.P. Pollution Control Board under Section 21 of the Air Pollution Act, 1981, and for which an order under Section 31-A of the Act has been passed, the running of industry in the industrial area. The State is not under any obligation to provide help in re-location of polluting industries nor the petitioner has made any request to the concerned authorities or the State Government for any preferential or concessional allotment of land, and any relaxation or exemption for running the relocated industry. The writ petition is dismissed." 3. Against this judgment of this Court special leave to appeal has been filed before the Apex Court and the Apex Court on 23.9.2013 has proceeded to pass an order by dismissing the special leave to appeal but gave a general direction that all commercial and industrial activities including running of polluting industrial in the residential areas of Mirzapur are stopped and the polluting industries are shifted out of the residential areas without any delay. Relevant extract of the said order is as follows; "Though belated, we accept the request of the learned counsel and dismiss the special leave petition as withdraw. While dismissing the special leave petition, we consider it necessary to observe that the Government of Uttar Pradesh and its officer as also the Uttar Pradesh Pollution Control Board shall take active and effective step for implementation of the directions given by the High Court in Writ Petition No. 34957 of 2003 - Srimati Mithlesh Jain v. State of U.P. and others and order passed in P.I.L.Writ Petition No. 15432 of 2010 - Smt. Indira Singh v. State of U.P. and others and ensure that all commercial and industrial activities including running of polluting industrial in the residential areas of Mirzapur are stopped and the polluting industries are shifted out of the residential areas without any delay. A copy of this order be sent to the Chief Secretary to the Government of Uttar Pradesh for ensuring compliance of the directions given by the High Court in Srimati Mithlesh Jain's case and Smt. Indira Singh's case." 4. A copy of this order be sent to the Chief Secretary to the Government of Uttar Pradesh for ensuring compliance of the directions given by the High Court in Srimati Mithlesh Jain's case and Smt. Indira Singh's case." 4. Record in question is further reflecting that as far as petitioner is concerned within the residential area he has been running his industrial unit and one Sri Chand came up before this Court by preferring Writ Petition No. 5845 of 2015 and this Court keeping in view the general directives, that have been so given by the Apex Court in the case of M/s. Manoj Mini Rice Mill (supra) has proceeded to pass the following order; "Heard learned counsel for the petitioner, learned Standing Counsel for the Respondents No.1 to 5 and Dr. H.N. Tripathi for the Respondents No.6 to 8. Petitioner's submission is that in the residential area commercial activities leading to pollution is being carried out. The petitioner has stated that the Hon'ble Apex Court in its judgment dated 23.09.2013 in the case of Manoj Mini Rice Mill and another Vs. State of U.P. & others has clearly mentioned that the commercial and industrial activities including running of polluting industries in the residential area of Mirzapur should be stopped and the polluting industries should be shifted out of the residential areas without any delay. The petitioner submits that the industry in question that is being run by Pramod Kumar son of Sri Ram is a polluting industry and as such requisite steps are required to be taken. Consequently, in the facts of the case reasoned order is required to be passed by the Regional Officer, U.P. Pollution Control Board, Regional Office, Mirzapur, looking into the grievance of the petitioner by making spot inspection in presence of the incumbent against whom complaint has been made and thereafter based on the said inspection made after providing due opportunity of hearing to the aforementioned incumbent in accordance with law, the decision in question be taken. The decision should be reasoned decision and the exercise in question should be completed within next four months from the date of production of the certified copy of this order. The petitioner should move an application before the Opposite Party No.8 with all necessary details. With the above observations, the writ petition is disposed of." 5. The decision should be reasoned decision and the exercise in question should be completed within next four months from the date of production of the certified copy of this order. The petitioner should move an application before the Opposite Party No.8 with all necessary details. With the above observations, the writ petition is disposed of." 5. Pursuant to the order passed by this Court requisite exercise has been undertaken and as industry in question was placed within the residential area qua the same requisite action has been undertaken and aggrieved against the same petitioner is before this Court. 6. On the matter being taken up today Sri Nishith Yadav, Advocate, contended before us that The Air (Prevention & Control of Pollution) Act, 1981 is a self contained Act and therein against the action, so taken, appeal is to be filed before the authority provided for and here, in the present case, petitioner has not at all proceeded to file any appeal. It has also been contended that there is other remedial forum provided for in case order has passed in appeal by approaching the National Green Tribunal. 7. Consequently, in the facts of the case, once there is a self contained Act and under Section 31 and Section 31-B remedial forum has been provided for, then petitioner ought to have invoked the remedy provided for instead of rushing to this Court. The fact of the matter is that there is a prohibitory order passed by the Apex Court wherein a clear cut directive has been issued that all commercial and industrial activities including running of polluting industrial in the residential areas of Mirzapur are stopped and the polluting industries be shifted out of the residential areas and, in this backdrop, once action has been taken by the authorities concerned on the spot, then there is no occasion or reason for us to intervene in the matter. 8. Petitioner's counsel lastly contended that he has already approached the District Magistrate concerned by submitting that as far as his unit is concerned, it is already lying closed and he will not indulge in any commercial/industrial activity in future and as there is no residential premises available for him, in view of this, he should be permitted to use the residential premises in question. 9. 9. For this aspect of the matter we direct the District Magistrate, Mirzapur, to look into the grievance of the petitioner and try to remedy the same, in accordance with law, preferably within next two months from the date of receipt of certified copy of this order but at the said point of time District Magistrate, Mirzapur, should ensure that the order passed by the Apex Court in the case of M/s. Manoj Mini Rice Mill (supra) is complied with in its word and spirit not only in relation to the petitioner but in relation to all such industrial units, that are falling within the domain of order passed by the Apex Court in the district of Mirzapur. With these observations/directions, writ petition stands disposed of.