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2019 DIGILAW 338 (UTT)

Manmohan Singh v. State of Uttarakhand

2019-05-15

R.C.KHULBE, RAMESH RANGANATHAN

body2019
JUDGMENT : Ramesh Ranganathan, J. 1. Heard Sri S.R.S. Gill, learned counsel for the appellant, Ms. Prabha Nainthani, learned Brief Holder appearing on behalf of the State Government, Sri Aditya Pratap Singh, learned counsel for the Uttarakhand Environment Protection and Pollution Control Board, and Sri Piyush Garg, learned counsel for the 5th respondent. 2. While two petitioners filed Writ Petition (M/S) No. 939 of 2013, it is the first petitioner alone who has preferred this appeal aggrieved by the order passed by the learned Single Judge on 02.11.2018 dismissing the writ petition as not-maintainable. 3. Writ Petition (M/S) No. 939 of 2013 was filed seeking a writ of mandamus directing respondent nos. 1 to 4 not to allow the 5th respondent to install a stone-crusher unit over land bearing Khata Nos. 1, 11 and 16, and Khata Khatauni Nos. 81, 53 & 54 of Kishanpur village, Bajpur tehsil, Udham Singh Nagar district; and for a writ of certiorari to quash the license granted, by the District Magistrate, to the 5th respondent on 30.08.2012. 4. The first petitioner is, admittedly, a person residing in the vicinity of the stone-crusher established by the 5th respondent. He was, therefore, entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution of India complaining that the stone- crusher unit, established by the 5th respondent, is in violation of the guidelines framed by the Government of Uttarakhand. 5. In the order under appeal, the learned Single Judge observed that it is only a person acting bona fide, and having sufficient interest in the proceedings of the public interest litigation, who would alone have locus standi to approach the Court complaining of violation of fundamental rights, and infraction of statutory provisions, and not for personal gain or private profit; the present petition was not a public interest litigation, and it appeared more or less based on some personal hidden agenda or perhaps for settling scores; the requirement of locus standi, of a party to a litigation, was mandatory; and the legal capacity of the party to any litigation, in relation to any specific remedy sought for, should be primarily ascertained. 6. The learned Single Judge, thereafter, observed that the writ petition was not maintainable before this Court in as much as the petitioners had an alternative and efficacious remedy for redressal of their grievances before the competent civil court. 6. The learned Single Judge, thereafter, observed that the writ petition was not maintainable before this Court in as much as the petitioners had an alternative and efficacious remedy for redressal of their grievances before the competent civil court. Holding that the writ petition was not maintainable, the learned Single Judge dismissed the writ petition. 7. We find considerable force in the submission of Sri S.R.S. Gill, learned counsel for the appellant-first petitioner, that the learned Single Judge had erred in non-suiting the appellant-first petitioner on the ground that the writ petition as filed was not maintainable. Inaction of Government officials can also be questioned in writ proceedings under Article 226 of the Constitution of India. The appellant-first petitioner is, admittedly, residing in proximity to the stone-crusher unit. He would, thereof, be a person aggrieved if the grant of license to the 5th respondent is in violation of the policy formulated by the State Government from time to time; and, since the petitioners can approach this Court, complaining of violation of his fundamental rights, he cannot, ordinarily, be relegated to avail the remedy of filing a civil suit before the civil court of competent jurisdiction. 8. The appellant-first petitioner is undisputedly a person aggrieved, since he resides in close vicinity to the stone-crusher. The learned Single Judge has, in Paragraph 7 of the order under appeal, held that the petitioners have a personal hidden agenda, and that the writ petition was filed for settling scores. The order under appeal does not disclose the reasons for recording such a finding. We are satisfied, therefore, that the learned Single Judge ought not to have non-suited the appellant-first petitioner on the ground of maintainability of the writ petition, and the observation regarding the petitioners having a personal hidden agenda, or that they have filed the writ petition to settle personal scores, is not based on any reasons assigned in the order under appeal. The observation made in Paragraph-7, of the order impugned in this appeal, must be, and is accordingly, set aside. 9. While we were, initially, inclined to set aside the order under appeal, and remand the matter to the learned Single Judge for consideration of the matter afresh and in accordance with law, elaborate submissions were put forth both on behalf of the appellant-first petitioner by Sri S.R.S. Gill, and on behalf of the 5th respondent by Sri Piyush Garg. 9. While we were, initially, inclined to set aside the order under appeal, and remand the matter to the learned Single Judge for consideration of the matter afresh and in accordance with law, elaborate submissions were put forth both on behalf of the appellant-first petitioner by Sri S.R.S. Gill, and on behalf of the 5th respondent by Sri Piyush Garg. We have, therefore, examined the rival claims, put forth by learned counsel on either side, on merits. 10. While a stone-crusher license was granted to the 5th respondent on 11th June, 2009, they were granted consent for establishment on 11.04.2012, and consent to operate on 20.11.2013. When the 5th respondent was granted a license in the year 2009, the policy then in force was the Uttrakhand Stone Crusher, Screening Plant and Pulvariser Licensing Policy, 2008. Clause (2) thereof related to the place of stone-crushers, and Clause (2) (b) stipulated that the stone-crusher should be established at least at a distance of 50 meters from the boundary wall of the premises. Clause (2)(d) stipulated that the stone-crushers should be established at least at a distance of 500 meters from the boundary of the river or the canal or at such a place where there may be no possibility of any illegal mining by the stone-crusher, or its use in illegal mining. The 2008 Policy restricts location of the stone-crushers to a distance beyond 500 meters from the boundary of a river or canal, and does not stipulate any distance requirement to be maintained from residential units. 11. Clause (4) of the 2011 Policy prescribes standards for stone-crushers, and stipulates that the minimum distance from the stone-crusher equipment to a residential area (more than one family or more than one house) should be more than 500 meters. In the present case, the location of the stone-crusher equipment is, admittedly, at a distance of 585 meters from the appellant-first petitioner's residential unit. 12. Clause (8) (b) of the 2011 Policy stipulated that the stone-crusher equipment should have been established in the middle of the boundary wall of the campus. Since emphasis is placed by Sri S.R.S. Gill, learned counsel for the appellant-first petitioner, on Clause (8)(b) of the 2011 Policy, it is necessary for us to examine whether the appellant-first petitioner can be said to be aggrieved by the non-fulfillment of this condition by the 5th respondent. Since emphasis is placed by Sri S.R.S. Gill, learned counsel for the appellant-first petitioner, on Clause (8)(b) of the 2011 Policy, it is necessary for us to examine whether the appellant-first petitioner can be said to be aggrieved by the non-fulfillment of this condition by the 5th respondent. It is not in dispute that the stone-crusher unit of the fifth respondent is not located in the middle of the boundary wall of the campus. 13. The submission of Sri S.R.S. Gill, learned counsel for the appellant-first petitioner, is that, if the stone-crusher unit had been established in the middle of the boundary wall, its distance would, then, have fallen below 500 meters from the appellant-first petitioner's residence; and, in such an event, it would have fallen foul of the 2011 Policy. 14. It is difficult for us to agree with this submission that non-adherence to this condition by the 5th respondent, and their having located the stone-crusher equipment at a place beyond the middle of the boundary wall of the campus, has resulted in their equipment being located at a distance of more than 500 meters from the appellant-first petitioner's residential unit. 15. Since the 5th respondent has, by locating their stone-crusher equipment at a location beyond the middle of the boundary wall, ensured compliance with the condition stipulated in Clause (4) (6), of the equipment being located at a distance of more than 500 meters from the residential area, the appellant-first petitioner cannot be said to be aggrieved thereby. In any event, this stipulation was relaxed in the 2015 Policy, whereunder the distance between a stone-crusher and a residential unit was reduced from 500 to 300 meters. Further the 2016 Policy, which is the policy in force as on date, stipulated, in Clause (6)(1) thereof, that the owners of the stone-crusher should establish the equipment of their stone-crusher unit, within the boundary wall of the campus. All that is now required, in terms of the 2016 Policy, is that the stone-crushers should be located within a boundary wall, and not necessarily in the middle of the boundary wall. 16. The policies issued by the State Government, from time to time, also prescribe a green-belt to be established around the stone-crusher unit. All that is now required, in terms of the 2016 Policy, is that the stone-crushers should be located within a boundary wall, and not necessarily in the middle of the boundary wall. 16. The policies issued by the State Government, from time to time, also prescribe a green-belt to be established around the stone-crusher unit. While Clause 8(h) of the 2008 Policy required a green-belt of 7 to 10 meters width in three rows of trees capable of preventing development of dust particles, this requirement was modified in the 2016 Policy. Clause 6(6) of the 2016 Policy stipulates that, in order to stop dust particles all around, the operator should develop a green-belt of trees and preserve them. 17. While the 5th respondent claims to have a green-belt of 85 meters, the inspection caused, pursuant to the orders passed by this Court, discloses the green-belt, according to the Advocate Commissioner, to be 56 meters. Even if the Advocate Commissioner's report were to be relied upon, and it were to be held that the actual green-belt on the subject land is only 56 meters, it is far more than the requirement of 7 to 10 meters green-belt as stipulated in the 2008 Policy. 18. While Sri Aditya Pratap Singh, learned counsel for the Uttarakhand Environment Protection and Pollution Control Board, would submit that the inspection caused, by the Uttarakhand Environment Protection and Pollution Control Board, discloses that a green-belt has been developed of eighty meters width, in four rows around the stone crusher, suffice it to hold that the green-belt area around the stone-crusher is far more than the minimum requirement stipulated in the policy. 19. While a feeble attempt is made by Sri S.R.S. Gill, learned counsel for the appellant-first petitioner, that there are other houses in the vicinity of the stone-crusher which may fall within 500 meters from the stone-crusher unit, this allegation is denied by Sri Piyush Gargh, learned counsel for the 5th respondent. It is relevant, in this context, to note that the appellant- first petitioner has not invoked the public interest jurisdiction of this Court, and has filed this writ petition as a person aggrieved. It is relevant, in this context, to note that the appellant- first petitioner has not invoked the public interest jurisdiction of this Court, and has filed this writ petition as a person aggrieved. If any other person is aggrieved by the inaction of the State Government to ensure adherence, by the 5th respondent, of the policies issued by it from time to time, it is always open to him/her to invoke the jurisdiction of this Court. That would not, however, justify the appellant-first petitioner espousing their cause in a writ petition filed by him as a person aggrieved, and not as a public interest litigation. 20. We are satisfied, therefore, that the official respondents cannot be faulted for not taking action against the 5th respondent, since the 5th respondent has not been shown to have violated the conditions stipulated in the stone-crusher policies issued, by the Government of Uttarakhand, from time to time. 21. Subject to the modification of the order under appeal, as indicated hereinabove, the special appeal fails and is, accordingly, dismissed. No costs.