IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 321 of 2006 Reserved on: 19.07.2011 Decided on: 28.07.2011 M/s. Farm Fresh Foods Pvt. Ltd. …Petitioner. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Ms. Jyotsna Rewal Dua, Advocate. For the respondents: Mr. Vivek Singh Thakur, Additional Advocate General, for respondent No. 1. Mr. Suneet Goel, Advocate, for respondents No. 2 and 3. Mr. Trilok Jamwal, Advocate, for respondent No. 4. Deepak Gupta, J. The petitioner unit is a small scale industrial unit engaged in the manufacture of Precast Concrete Products like RCC Pipes, PCC Poles, Hollow Blocks etc. The petitioner admittedly has a mining lease and is also engaged in crushing of stones/grit in connection with its industry. Respondent No. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- 2, H.P. State Environment Protection and Pollution Control Board (hereinafter referred to as the Board) issued an order, Annexure P-1, directing that the electricity of the unit of the petitioner be disconnected, since the petitioner unit had violated the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 (hereinafter referred to as the Water Act and Air Act, respectively). The petitioner filed the present petition praying for quashing of this order and also prayed that the petitioner is not covered by the Water Cess Act and the Hazardous Rules. 2. It is not necessary to go into all the allegations made since during the pendency of the petition, the petitioner was granted interim relief and this Court had also directed the petitioner and respondents No. 2 & 3 to sit together and sort out their disputes. After the said meeting was held,only two disputes remain to be decided. 3. According to the respondents, since the petitioner has entered into a mining lease agreement for extraction of stones, which is the raw material for a stone crusher, the same cannot be treated as a green industry, since the stone crushers have been categorized as red category and, therefore, as per the policy guidelines notified by the State Government, the stone crusher of the petitioner requires -: 3 :- registration. On the other hand, the stand of the petitioner is that the stone crusher is only a captive unit and the entire products are used in the factory itself. Therefore, the policy guidelines are not applicable to the petitioner. The second grievance of the State is that the petitioner is required to obtain permission and authorization under The Hazardous Wastes (Management and Handling) Rules, 1989. 4. The second objection is being dealt with first. In my view, these Rules are not at all applicable to the case of the petitioner. These Rules apply only in case of industries where hazardous waste is generated. Under Rule 3 (14) of these Rules, hazardous waste has been defined as follows: “hazardous waste” means any waste which by reason of any of its physical, chemical, reactive, toxic, flammable, explosive or corrosive characteristics causes danger or is likely to cause danger to health or environment, whether alone or when in contact with other wastes or substances, and shall include- (a) wastes listed in column (3) of Schedule 1; (b) wastes having constituents listed in Schedule 2 if their concentration is equal to or more than the limit indicated in the said Schedule; and (c) wastes listed in Lists “A” and “B” of Schedule 3 (Part A) applicable only in case(s) of import or export of hazardous wastes in accordance with rules 12, 13 and 14 if they possess any of the hazardous characteristics listed in Part B of Schedule 3. The respondents have failed to point out what is the hazardous waste being generated by the petitioner. The Rules will be applicable only when hazardous waste is generated -: 4 :- and, therefore, these Rules are not applicable in the case of the petitioner. 5. As far as the first point is concerned, it would be pertinent to mention that industries have been categorized into various categories and stone crushers fall in the red category. On the other hand, the manufacture of hollow blocks, making of PCC/RCC poles and pipes is a green category industry. The contention of the petitioner is that since his end product falls in the green category, his industry should not be considered to be a red category industry. On the other hand, the stand of the State is that since the petitioner is engaged in stone crushing activity, which is a red category industry, he was required to get himself registered as per the policy framed by the Government. 6. The policy forms a part of the record. The policy also provides that for running a stone crusher, a person must have a mining lease and it is, therefore, necessary to have a mining lease. Admittedly, the petitioner has a mining lease though according to the learned counsel for the petitioner, he can operate the stone crusher after getting the raw material from other lessees of mining lease. Rule 4 of the notification clearly lays down that every stone crusher must be duly registered. Submission of the petitioner is that since the petitioner is running a stone crusher for a captive purpose, -: 5 :- namely manufacture of hollow blocks, RCC/PCC poles etc., he is not required to be registered under the police. In my view, there is no merit in this contention. 7. The policy, as existing at present, does not differentiate between different stone crushers and all stone crushers are covered by this policy. A stone crusher remains a stone crusher whether the product of the stone crusher is sold or whether it is used by the owner of the stone crusher for manufacturing certain items in the industry or unit. The policy relating to stone crushers has been laid down to safe guard the environment and all stone crushers for preparation/manufacture of concrete will create some environment problems whether the unit is a captive unit or not. 8. The petitioner has filed detailed supplementary affidavit and given the description of various types of stones, crushers, stone industries etc. The case of the petitioner also is that the petitioner is being discriminated in as much as whereas the petitioner has been asked to seek registration under the policy referred to above, many other industries including brick and tile industries, marble industries, cement industries, chemical industries and pharma industries, which are also using the crushers had not been asked to be so registered. There is merit in this contention of the petitioner. -: 6 :- One can see no rationale why stone crushers operated by the cement industries should be exempted from the policy or even stone crushers employed by the brick or marble industry are exempted. There are, however, some crushers to which this policy cannot apply such as the pharma industry where small chemicals are being crushed within the factory itself. To give another example, in diamond industry also, stone crushing may go on but that would not fall within the ambit of the policy. However, there is no manner of doubt that the policy also needs to be clarified. 9. Therefore, though the claim of the petitioner that he is not liable to get his unit registered under the policy as existing today is rejected, it is further directed that the State of Himachal Pradesh should modify/frame a fresh policy in which various types of stone crushing units, as mentioned in the affidavit of the petitioner, are kept in consideration and clear cut guidelines are laid down as to which stone crushers require registration and which crushers do not require registration. It is not for the Court to lay down policy guidelines and the State is the best judge in the matter. However, the policy must be clear cut and the policy makers, while laying down the policy, must clearly indicate by taking into consideration the size of the crushers, the volume of the stone crushing to be done, the apprehended damage to the -: 7 :- environment etc., what type of stone crushers must be registered, what stone crushers are not required to be registered and what are the parameters for setting up such stone crushers. Such policy be framed within four months from today and for that purpose the matter be listed on 5th December, 2011. 10. With these observations, the writ petition stands disposed of. No costs. (Deepak Gupta) Judge July 28, 2011 (rajni)