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2016 DIGILAW 2355 (HP)

Manav Kalyan Sanstha v. State of Himachal Pradesh

2016-11-08

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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ORDER : Tarlok Singh Chauhan, J. CMP No.2040 of 2016. The petitioner/applicant has moved this application for producing on record additional documents which according to it are necessary for just and proper decision of the case. 2. Only respondent No.8 has contested the application and in turn placed on record plethora of documents. 3. The writ petition is only at the stage of completion of pleadings and, therefore, the application is allowed and documents accompanying the application as also the reply are taken on record and the parties shall be free to refer to them during the course of final hearing. Application stands disposed of. CMP No.8367 of 2016. 4. This application has been filed by applicant/respondent No.8 for vacation of the interim orders dated 31.03.2016 (should be 30.03.2016) whereby this Court stopped the functioning of respondent No.8 Unit. 5. The instant writ petition has been filed in so-called public interest by ‘Manav Kalyan Sanstha’ which is a registered Society under the Societies Registration Act and appeared to be aggrieved by the setting up of a Bio Medical Waste Plant by respondent No.8 at Village and Post Office, Dugiari, Tehsil and District, Kangra, H.P. The establishment of the Unit, according to the petitioner, is proposed along the Manjhi Khad and, as a result thereof, the water sources in and around Manjhi Khad would be contaminated, the ambiance and quality of air as a result of discharge of toxic smoke would be affected from the discharge out of the 30 feet chimney erected in the plant. It is averred that the Bio Medical Waste Treatment Plant is being established without proper inspection of the site and the petitioner apprehends that the provisions of Act, Rules and Guidelines governing such Bio Medical Waste will be thrown to the winds and ultimately affect the health of residents of the area, who will have to bear the brunt only because of the inaction on the part of the official respondents. 6. The petitioner alongwith the main petition filed CMP No.908 of 2015 wherein directions were sought to the effect that respondent No.8 be directed to stop the operation of the Bio Medical Waste Treatment Plant (for short ‘Plant’) during the pendency of the petition. 7. 6. The petitioner alongwith the main petition filed CMP No.908 of 2015 wherein directions were sought to the effect that respondent No.8 be directed to stop the operation of the Bio Medical Waste Treatment Plant (for short ‘Plant’) during the pendency of the petition. 7. The case appears to have been placed before the learned Vacation Judge and the following order came to be passed on 14.01.2015:- “CWP No.529 of 2015-C Notice returnable within six weeks. List thereafter. CMP No.908 of 2015. Notice in the above terms. It is made clear that while constructing the Bio Medical Waste Treatment Plant, all the mandatory requirements shall be scrupulously followed. The persons responsible for construction work shall be personally liable for any breach of The Environment (Protection) Act, 1986 and the Rules framed thereunder. It is also made clear that water sources near the place of construction, shall not be polluted.” 8. Despite the aforesaid order, the petitioner during the vacations filed another miscellaneous application being CMP No.1500 of 2015 wherein the petitioner again made a similar request for directing respondent No.8 to stop the construction work of the plant. However, in view of the earlier order dated 14.01.2015, the subsequent application i.e. CMP No.1500 of 2015 was held be not maintainable, as is evident from the order dated 16.02.2015 which reads thus:- “CMP No.1500/2015. In view of earlier order dated 14.1.2015, passed in CMP No.908/2015, the present application is not maintainable. The same is dismissed.” 9. The matter thereafter came up for consideration on 24.04.2015 and the Court directed that the pleadings be completed within four weeks. On 28.05.2015, the petition was admitted. However, despite the matter having already been admitted, it was again listed on 01.01.2016 under the head “Admission Matters After Notice”. By this time, the only changed circumstance was that respondents No. 1, 3, 5, 6, 7 and 8 had already filed their replies wherein they had opposed the petition. However, despite this the petitioner obtained order of status quo which as observed earlier had already been denied to it at the initial stage. Eventually, the case was listed on 30.03.2016 on which date respondent No.8 was restrained from operating its Unit. 10. However, despite this the petitioner obtained order of status quo which as observed earlier had already been denied to it at the initial stage. Eventually, the case was listed on 30.03.2016 on which date respondent No.8 was restrained from operating its Unit. 10. What is material at this point of time is the reply of respondent No.6, Executive Engineer, Irrigation and Public Health Department, Shahpur Division, wherein it has categorically been averred that the ‘No Objection Certificate’ to set up a Servicing- Destroy of Bio Medical Waste had been issued by it subject to the condition that existing/proposed water supply schemes and irrigation schemes will not be disturbed. It is further averred that the existing Lift Irrigation Scheme, Dehrian and LWSS, Samirpur Tiara, Phase-I, are situated approximately 1 Km. and 1.5 Km. away from the plant. It is further submitted that while granting ‘NOC’ for setting up of the above Unit as many as 33 conditions have been imposed which are required to be strictly adhered to and complied with by respondent No.8 and in case of breach, respondent No.8 would be liable for civil and criminal action or both. It is also pointed out that the Pollution Control Board has also issued ‘No Objection Certificate’ which again is subject to certain mandatory conditions which have to be complied with by respondent No.8. 11. Respondent No.8, who is the Project proponent while filing reply to the writ petition has raised preliminary submissions specifically stating therein that the project being set up by it would in no manner affect the ecology and environment of the area as the project is using highly advanced technology whereby it will destroy the bio medical waste. It is also pointed out that a lot of investment has been put into the plant and the petition has been filed only on the basis of the apprehension which stands dispelled by the inquiry ordered by the Deputy Commissioner on the complaint filed by the petitioner, copy whereof has been annexed as Annexure R-8/2 with the reply. It is further averred that it was only after obtaining all the requisite permissions and ‘No Objection Certificates’ from all the concerned authorities that respondent No.8 established the Unit and thereafter invested huge money on this plant. It is further averred that it was only after obtaining all the requisite permissions and ‘No Objection Certificates’ from all the concerned authorities that respondent No.8 established the Unit and thereafter invested huge money on this plant. Further, the work of the plant had been completed before filing of the writ petition and all the equipments, machinery and D.G. Set which are necessary for setting up the plant have already been installed in the plant and the same had been running smoothly. We have heard the learned counsel for the parties and gone through the records of the case. 12. Applicant/respondent No.8 has sought vacation of the interim orders on the ground that the petitioner has failed to point out any violation of any mandatory requirement of law. Whereas, on the other hand, applicant/respondent No.8 has obtained all the permissions, NOCs and other statutory and non-statutory clearances and after investing approximately one crore, out of which Rs. 70 lacs have been obtained by way of loan and had thereafter installed the plant. It has further been claimed that the life of the plant is hardly 5 years and had already started functioning on 26.12.2015, but had to stop its operation in view of the interim orders passed by this Court on 30.03.2016. Not only this, the monthly installment payable by applicant/respondent No.8 is Rs. 2,73,000/- per month. 13. We have gone through the contents of the writ petition and are prima facie of the view that the petitioner has not even remotely pleaded any violation of any statutory or non-statutory provisions and most of the pleas raised by it are far too general and more in the realm of speculation. Whereas, on the other hand, the specific case of the respondents, more particularly, respondent No.8 is that it had already obtained statutory and non-statutory clearances, NOCs and other requisite documents which are essential for making the Unit functional. That apart, we find that the ‘NOC’ granted by the Pollution Control Board is subject to as many as 33 conditions and we see no reason that in case respondent No.8 violates or chooses not to comply with any of these conditions, it would definitely invite action as permissible under the law. That apart, we find that the ‘NOC’ granted by the Pollution Control Board is subject to as many as 33 conditions and we see no reason that in case respondent No.8 violates or chooses not to comply with any of these conditions, it would definitely invite action as permissible under the law. In addition to that, since we are keeping the petition pending, the petitioner would always be at liberty to approach this Court in case of violation of any conditions of the NOCs/clearances, or the provisions of the various legislations or rules framed thereunder. But, for the present, we are not inclined to restrain respondent No.8 from operating the Unit, particularly, when it has obtained statutory and non-statutory clearances, NOCs etc. and also invested an amount of nearly one crore rupees. 14. Accordingly, the application is allowed and the interim order dated 30.03.2016 is vacated. However, the petitioner/non-applicant is at liberty to approach this Court in case there is serious violation on the part of respondent No.8 of any of the conditions subject to which the NOCs/clearances have been granted in its favour or in case there is violation of any statutory enactment or rules framed thereunder governing the field. Even otherwise, the permission to run the Unit shall be subject to the final outcome of this petition. The application is accordingly disposed of in the aforesaid terms.