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2016 DIGILAW 337 (JK)

Ab. Hamid Wani v. State of J&K

2016-06-29

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This public interest litigation is filed by the petitioners, who are residents of Mantaki and Seerbagh Colony of Khrew, contending that huge industrial pollution is being caused by the Cement plants of respondent Nos. 12 to 18 as the said Cement plants do not adhere to the norms which are provided for abatement of pollution caused by the cement plants. The activities which are undertaken for manufacturing of cement is querying of lime stone and the burning of fuel and chemical compounds which are hazardous. The carrying capacity of the air of suspended particulate matter (SPM) has crossed the threshold point resulting in great threat to the lives of people of the area including flora and fauna. According to the petitioners, the Pollution Control Board has not taken steps to check the pollution and prevent causing of pollution by the Cement Plants. Hence the petitioners have approached this Court by filing this writ petition, praying to issue writ of mandamus, directing the official respondents to stop commissioning of new Cement plants with carrying capacity of 600 metric tones, namely, Mehboob Cement Project at Wuyun Khrew and to prevent, control and abate the environmental pollution caused by existing cement plants which are owned Dy. the Government and other private persons, by directing them to adhere to the safety measures which are undertaken by them when NOCs are issued and to cancel/withdraw the NOCs of the Cement Plants which violate the safety measures required to control abate and prevent the air pollution and for directing the official respondents to conduct detailed survey of the area and other ancillary reliefs. When the matter was heard by this Court on 15.03.2016, an interim direction was issued to the authorities of the Pollution Control Board to inspect the cement factories and submit the report before this Court. Pursuant to the said direction issued, inspection report with regard to the Cement units operating in the area, stating that Cement Units of Khrew and Khanomoh belt are regularly inspected by the Board and status of these units as observed during the inspection made on 10.03.2016 by the team of scientists and technical officers in respect of pollution control devices installed, pollution control measures adopted, status of consent and self monitoring reports etc. The report was filed before this Court along with the status report on 27.05.2016. The report was filed before this Court along with the status report on 27.05.2016. In the inspection report the status of the Cement Plants of respondent Nos. 12 to 17 is stated as follows:- "Respondent No. 12: (M/S Green Land Cements) The Plant has been commissioned in the year 2013 of 100 TPD at Wuyun area and is of Vertical Shaft type. The Consent under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 has been granted by the Board and was valid up to September, 2014. The renewal of consent in under process. In the remarks column it is stated that the crushing section is under renovation. Housekeeping needs improvement besides plantation needs to be enhanced and internal roads to be black topped. Respondent No. 13: (M/S J.K.C.L. Khrew) The Plant has been commissioned in the year 1981 with capacity of GOO TDP with expansion of 600 TDP in the year 2010 and is of rotary type. The Consent under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 has been granted by the Board and was valid up to March, 2014. The renewal of consent in under process. In the remarks column it is stated that the Electrostatic Precipitator is not functional effectively, the pollution machinery needs to be repaired/replaced on regular interval. The plantation needs enhancement. Stock yard needs to be fully covered. Compound wall needs to be constructed fully to the adequate height of more than 10 feet around the unit. Water sprinkling in and around the premises needs on regular basis. Respondent No. 14: (M/S TCI Max) The Plant has been commissioned in the year 2010 with capacity of 1000 TDP and is of rotary type. The Consent under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 has been granted by the Board and was valid up to April, 2016. In the remarks column it is stated that the pollution control devices were found installed in every section of the Plant and have been found adequate but pollution control measures needs further strengthening in respect of plantation, regular water sprinkling on daily basis to prevent dust emission and compound walling needs to be constructed all around the Unit. In the remarks column it is stated that the pollution control devices were found installed in every section of the Plant and have been found adequate but pollution control measures needs further strengthening in respect of plantation, regular water sprinkling on daily basis to prevent dust emission and compound walling needs to be constructed all around the Unit. Respondent No. 15: (M/S Cemtac Cements) The Plant has been commissioned in the year 2008 with capacity of 200 TDP and is of Vertical Shaft type. The Consent under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 has been granted by the Board and was valid up to September, 2015. The renewal of consent in under process. In the remarks column it is stated that the pollution control devices were found installed in every section of the Plant and have been found adequate but needs to increase the operational efficiency and plug all the leakages, besides enhancing plantation, water sprinkling on regular basis, construction of compound wall and improvement in housekeeping is further required. Respondent No. 16 (M/S Dawar Cements) The Plant has been commissioned in the year 2009 with capacity of 200 TDP and is of Vertical Shaft type. The Consent under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 has been granted by the Board and was valid up to December, 2014. In the remarks column it is stated that the pollution control devices were found installed in every section of the Plant but needs to increase the operational efficiency and plug all the leakages. Besides needs of enhancement of plantation, black topping of internal road, proper covering of stock yard, water sprinkling on regular basis and construction of compound wall all around the unit and improvement in housekeeping in required. Respondent No. 17 (Itifaq Cements) The Plant has been commissioned in the year 2009 with capacity of 200 TDP and is of Vertical Shaft type. The Consent under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 has been granted by the Board and was valid up to March, 2015. In the remarks column it is stated that the pollution control devices were found installed in every section of the Plant but needs to increase the operational efficiency and plug all the leakages. In the remarks column it is stated that the pollution control devices were found installed in every section of the Plant but needs to increase the operational efficiency and plug all the leakages. There is need of enhancement of plantation, proper covering of stock yard, water sprinkling on regular basis and construction of compound wall all around the unit in required. However, no report regarding respondent No. 18 has been filed by the Pollution Control Board and the said Cement Plant is pending on the stage of proposal. Even according to the reply filed by 18th respondent, the matter is pending with the State Environment Department for granting environmental clearance." 2. The learned counsel appearing for the petitioners argued that even though the Pollution Control Board, has pointed out certain defects that the pollution norms have not been satisfied by the Cement Plants, yet they are allowed to run the Units due to which the area in question is polluted which is causing health hazard. 3. The respective learned counsels appearing for the Cement Units argued that all the Units are running with consent issued by the Pollution Control Board and they are maintaining the plants by observing all the pollution control devices and in case the Cement Units are ordered to be closed the people at large will be put to serious hardships as the cement prices will go up as the cement which is required for construction activities of the buildings by both government and private persons have to be purchased from outside the State which will hamper the sustainable development of the State and prayed for dismissing the writ petition. 4. The learned Additional Advocate General, appearing for the Pollution Control Board, argued that inspection team of Scientific and Technical Officers will periodically inspect the Cement Plants to verify as to whether the Cement Plants are adhering to the standards to be maintained for pollution level at the permissible limits. 5. The learned counsel appearing for the petitioners in reply to the submissions made by learned counsel for the respondents, submitted that even if the existing Cement Plants are allowed to continue by observing the standards to maintain the pollution level at the permissible level, the official respondents may be restrained from giving permission and consent for establishing the new Units to prevent further pollution in the area. 6. 6. We have considered the respective submissions and perused the inspection report. 7. As stated above, the Officers of the Pollution Control Board, during their inspection on 10.03.2016 have found certain defects in the Cement Plants with regard to controlling of pollution and all the Cement Plants were given consent initially and they are operating on the premise that they have applied for renewal of the consent. 8. As of now the Units are not in possession of valid consent orders issued by the Pollution Control Board. The said units/cement plants are running their units on deemed continuing consent under Section 21 of the Air (Prevention & Control of Pollution) Act, 1981. Having regard to the inspection report, pointing out certain deficiencies in controlling pollution, the Pollution Control Board is bound to consider respective renewal application submitted by each of the Cement Plants expeditiously and while considering the renewal of the consent to the Cement Plants the authorities of the Pollution Control Board must again inspect and verify as to whether the defects/remarks noticed during the inspection conducted on 10.03.2016 have been removed and all the norms are satisfied to prevent pollution beyond the permissible limit and only on recording the satisfaction of the defects/remarks mentioned in the inspection report or to be pointed out as of now, the Board may issue the renewal of consent. While passing orders the Pollution Board shall bear in mind the mandate of Section 22 of the Act which reads thus:- "22. Persons carrying on industry, etc., not to allow emission of air pollutants in excess of the standards laid down by the State Board:- No person operating any industrial plant, in any air pollution control area shall discharge or cause or permit to be discharged the emission of any air pollutant in excess of the standards laid down by the State Board under clause (g) of sub-section (1) of section 17." 9. The Cement Plants, namely, respondent Nos. The Cement Plants, namely, respondent Nos. 12 to 17 are thus permitted to remove the defects pointed in the remarks column, as early as possible and not later than two months and submit their compliance statements before the authorities of the Pollution Control Board and on receipt of the compliance statement, the team of Scientific and Technical Officers of the Pollution Control Board shall visit the respective Cement Plant and record their satisfaction or otherwise and shall sent their report to the Pollution Control Board for consideration of renewal of the consent. The team, as above mentioned, shall inspect the Cement Plants and submit their report within a period of three weeks from the date of submission of compliance statement by the Cement Plants and the Pollution Control Board shall consider and decide the eligibility and renewal of the consent and pass orders on merits within two weeks thereafter. 10. It is made clear that in case the remarks/defects are not removed/complied with, the Cement Plants shall not be granted renewal of consent by the Pollution Control Board. Insofar as the 18th respondent is concerned, as the plant is not functional, after getting clearance from the competent authorities as well as the Pollution Control Board, the respective authorities shall visit the proposed plant and after getting proper permission and consent alone the 18th respondent shall have the Cement Plant functional. 11. Insofar as the submission of learned counsel for the petitioners that the authorities may be restrained from giving permission/consent to establish new Cement Plants in the area is concerned, a blanket order of restraint order cannot be issued, which may hamper the sustainable development of the State. Similar issue was considered by Hon'ble the Supreme Court in several decisions and it was held that while balancing the environmental issues, sustainable development must be the fundamental concept of Indian law. The said position is stated in the decision of Hon'ble the Supreme Court reported in (2013) 6 SCC 620 , (G. Sundarrajan v. Union of India and Ors.). In paragraph Nos. 238, 239 and 240, it is held thus :- "238.......Promotion of development and protection of environment are to be harmonized at the same time. 238.1. In Intellectuals Forum v. State of A.P. (2006) 3 SCC 549 it has been held that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. 238, 239 and 240, it is held thus :- "238.......Promotion of development and protection of environment are to be harmonized at the same time. 238.1. In Intellectuals Forum v. State of A.P. (2006) 3 SCC 549 it has been held that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What is required to be prescribed is the principle of sustainable development and find a balance between the developmental needs and the environmental degradation. 238.2. In Bombay Dying & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group (2006) 3 SCC 434, while dealing with the concept of sustainable development and planned development vis-à-vis Article 21 of the Constitution, a two-Judge Bench has opined thus :- "251. It is often felt that in the process of encouraging development the environment gets sidelined. However, with major threats to the environment, such as climate change, depletion of natural resources, the eutrophication of water systems and biodiversity and global warming, the need to protect the environment has become a priority. At the same time, it is also necessary to promote development. The harmonisation of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines "sustainable development" as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs." 238.3. In M.C. Mehta v. Union of India (2004) 12 SCC 118 , while stating about sustainable development and the needs of the present without compromising the ability of the future generation to meet their own needs, this Court has expressed thus :- "46. The definition of "sustainable development" which Brundtland gave more than 3 decades back still holds good. The phrase covers the development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. The definition of "sustainable development" which Brundtland gave more than 3 decades back still holds good. The phrase covers the development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. In Narmada Bachao Andolan v. Union of India this Court observed that sustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. [See Chairman Barton: The Status of the Precautionary Principle in Australia (Vol. 22, 1998, Harv. Envtt. Law Review, p. 509 at p. 549-A) as referred to in para 28 in A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718 ." 238.4. In Tirupur Dyeing Factory Owners Association v. Noyyal River Ayacutdars Protection Association (2009) 9 SCC 737 , while dealing with the concept of sustainable development, the Court has observed as under :- "26. The concept of "sustainable development" has been explained that it covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs. It means the development, that can take place and which can be sustained by nature/ecology with or without mitigation. Therefore, in such matters, the required standard is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. The development of the industries, irrigation resources and power projects are necessary to improve employment opportunities and generation of revenue, therefore, cannot be ignored. In such eventuality, a balance has to be struck for the reason that if the activity is allowed to go on, there may be irreparable damage to the environment and there may be irreparable damage to the economic interest. A similar view has been reiterated by this Court in T.N. Godavarman Thirumulpad (104) v. Union of India (2008) 2 SCC 222 and M.C. Mehta v. Union of India (2009) 6 SCC 142 ." 238.5. In T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v. Union of India, (2002) 10 SCC 606 , this Court observed that :- "35. A similar view has been reiterated by this Court in T.N. Godavarman Thirumulpad (104) v. Union of India (2008) 2 SCC 222 and M.C. Mehta v. Union of India (2009) 6 SCC 142 ." 238.5. In T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v. Union of India, (2002) 10 SCC 606 , this Court observed that :- "35. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship." 238.6. In Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 , a three-Judge Bench, while dealing with the public projects and policies, has opined that the court does not become the approving authority of such policies. Thereafter, the Bench observed thus :- "234....... Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government." 239. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. 240. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society........" 12. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society........" 12. Applying the principles laid down in the above cited decisions, such a prayer cannot be granted. However, it is made clear that if any person is approaching the Pollution Control Board or any other authority for establishing a Cement Plant, before granting permission or consent, the authorities as well as the Pollution Control Board shall satisfy with regard to the location as to whether establishment of a Cement Plant will cause pollution to the detriment of inhabitants as it is not conducive to establish the Cement Plant in a thickly populated area. The permission/consent may be granted only if the proposed Plant is in an isolated place where inhabitation is very less and such request can be considered and permission/consent may be granted only after observing all the legal requirements of controlling pollution level. The writ petition is disposed of with above directions. No costs.