1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT (1)M/S. RADHEY STONE CRUSHER vs. RAJ. STATE POLLUTION CONTROL BOARD AND ANR. (S.B.Civil Writ Petition No.5841 of 2010) (2) M/S. HARYANA STONE CRUSHER vs. RAJ. STATE POLLUTION CONTROL BOARD AND ANR. (S.B.Civil Writ Petition No. 6234 of 2010) (3) M/S. KARAN GRIT UDHYOG vs. RAJ. STATE POLLUTION CONTROL BOARD (S.B.Civil Writ Petition No. 6235 of 2010) (4)M/S. ASHESHWAR GRAMODYOG vs. RAJ. STATE POLLUTION CONTROL BOARD (S.B.Civil Writ Petition No. 6236 of 2010) (5)M/S.V.K. STONE CRUSHER vs. RAJ. STATE POLLUTION CONTROL BOARD (S.B.Civil Writ Petition No. 6237 of 2010) Under Article 226 of the Constitution of India. Date of Order : July 20 , 2010 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr.S.K.Shukla for the petitioner in SBCW 5841 of 2010 Mr. Rajeev Sogarwal for the petitioners in SBCW 6234, 6235,6236, 6237 of 2010. Mr. N.A.Naqvi, Additional Advocate General and Mr. Akhil Simlot for the respondents. 2 --- REPORTABLE BY THE COURT : Since all these writ petitions relate to refusal to operate the Stone Crushers in villages Indroli, Angrawali,and Fatehpur in Tehsil Kaman District Bharatpur under the provisions of Section 21 A of the Air (Prevention and Control of Pollution ) Act, 1981 by the Rajasthan State Pollution Control Board and closure of the Stone Crushers in the said villages under section 31 A of the Act, they are being disposed by this common order. SBCW 5841 OF 2010 2. In this writ petition, the petitioner M/s. Radhye Stone Crusher, prayed as under : i) Call for the entire record of the case from the Rajasthan State Pollution Control Board. ii) quash and set aside the impugned orders dated 5.2.2010 Annexures 6 and 7 passed by the learned Member Secretary, Rajasthan State Pollution Control Board being without jurisdiction and contrary to the law. 3. The petitioner has a stone crusher in village Indroli Tehsil Kama, District Bharatpur. The petitioner stated in the writ petition that on the application dated 2.1.2007 submitted by the petitioner, the Rajasthan State Pollution Control Board ( in short State Board) after due enquiry investigation and having satisfied that the crusher of the petitioner has taken all the required anti air pollution control measures granted its consent to establish vide its order dated 31.8.2007 under the provisions of Section 21 3 of the Air (Prevention and Control of Pollution ) Act, 1981 ( in short Act of 1981). The consent was granted subject to the conditions mentioned in the order. The petitioner also submitted an application for consent to operate its stone crushing plant under the provisions of section 21 of the Air Act. The State Board vide letter dated 31.8.2007 granted consent to the petitioner for operating stone crushing unit for a period upto 30.7.2008. The conditions imposed were the same conditions which were imposed while granting consent to establish. The petitioner stated in the writ petition that the authorities of the State Board forced the petitioner firm to seek consent to operate else the crusher shall be closed down. It has been given out in the petition that the petitioner submitted copies of photographs dated 28.7.2009 showing that (a) metaled road within premises of the crusher (b) vibrating screen has no holes ( c) water spraying systems (d) there exists system of cleaning and wetting of the ground in the premises of the unit (e) roads inside the premises of the unit are metaled. The petitioner submitted application for renewal of consent to operate on 11.9.2008. The unit was inspected by the Board officials on 26.9.2008. It may be mentioned that on 29.12.2008 the State Board issued a show cause notice to the petitioner that the State Government has terminated the mining lease of masonry stone in Kama and Deeg areas. Therefore, there is no lawful source of raw material to feed the stone crusher i.e. other than illicit mining. Besides, this it was mentioned that the stone crusher causes health hazards and nuisance to the pilgrims of Brij Chourasi Kos Prikarama Marg. It was mentioned in the notice as under : 1. Whereas the Air (Prevention and Control of Pollution ) Act, 1981 (hereinafter called as the “Act”) came into force in the whole of the State of Rajasthan w.e.f. 16.6.1981. 4 2. And where the Air Act was enacted to provide for the prevention and control of air pollution and for the maintaining and restoring the wholesomeness of air. 3. And whereas keeping this in view of the Air Act Rajasthan State Pollution Control Board ( hereinafter called as the “Board”) has been conferred powers to take such steps as are necessary for the prevention control and abatement of air pollution. 4. And whereas M/s. Radhey Stone Crusher, (hereinafter called as the industry) is engaged in production of Stone grit and discharges polluted air. 5. And whereas the State Government has terminated the mining leases of masonry stone in the Kama and Deeg area. Therefore, there is no source of raw material to feed the stone crusher except illicit mining. 6. And whereas the industry was inspected by the Board official on 26.9.2008. During the inspection it was observed that : a) The area covered under plantation is about 15% which is not as per the norms (i.e. 33% of the area of the premises). b) The system provided at the granulater, roller crusher and dust conveyor for water spraying was not in operative condition. c) Acoustic enclosure not provided with the DG set. 7. And whereas the stone crusher causes health hazard and nuisance tot he pilgrims of the Brij Chaurasi Kos Parikarma Marg. 8. And whereas the stone crusher is not operating the pollution control measures regularly. 9.And whereas the State Board in order to prevent and control air pollution being caused by the industry is competent to issue any direction under section 31 A of the air act in writing to any person, officer or authority and such person, officer or authority shall be bound to comply with such directions.” The Board in view of the above, sent the notice to the petitioner requiring his objections against intended refusal of consent application and intended closure directions and was directed to submit reply within 15 days to the Environment 5 Engineer with a copy to the Regional Office of the Board at Alwar. It may further be mentioned that a Common Committee constituted by District Collector Bharatpur inspected the petitioner's unit during 11.2.2009 to 13.2.2009. Neither the petitioner nor any of its representatives did appear before the State Board pursuant to the notice dated 29.12.2008. The State Board vide its composite letter dated 22.7.2009 refused consent to operate the crusher and issued show cause notice intending the issuance of the directions under the provisions of section 31 A of the Air Act. The petitioner assailed the orders of the State Board before this Court in S.B.Civil Writ Petition No.10826/2009. This court vide its judgment dated 8.12.2009 quashed and set aside the order dated 22.7.2009 and remitted the matter to the State Board for deciding the matter afresh. The petitioner appeared before the Chairman of the State Board and submitted written submissions on 29.12.2009. 4. The learned counsel for the petitioner averred in the writ petition that by the judgment of this court dated 8.12.2009 the State Board was directed to decide the matter by speaking order after considering the grounds taken in the reply and after providing opportunity of hearing to the petitioner. The petitioner averred that the Chairman of the State Board alone is not legally competent to hear the matter and decide it. Hearing of the matter by the Chairman tantamount to sitting over one's own judgment for the simple reason that the State Board has taken a stand that the State Board has delegated the power to issue the directions under section 31 A to the Chairman. The learned counsel argued that even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject matter. 6 5. The counsel for the petitioner argued that in case the impugned orders are passed under Air Act then the same requires ratification by the State Board. The learned counsel further argued that the order dated 22.7.2009 and impugned orders dated 5.2.2010 have not been placed before the next meeting of the State Board. Lastly the learned counsel stated that the State Board is defunct as Rukmani Haldiya retired on completion of age of 60. The petitioner's counsel placed reliance on Gujrat Pollution Control Board vs. Nicsulf Industries and Exports Private Limited and others (2009) 2 SCC 171, Mahabir Coke Industry and another vs. Pollution Control Board and others AIR 1998 Gauhati 10 and Animal Feeds Dairies and Chemicals Limited vs. Orissa State Prevention and Control of Pollution Board and others (AIR 1995 Orissa 84) 6. State Board filed reply to the writ petition. A preliminary objection was raised that the petitioner cannot invoke extraordinary jurisdiction of this Court for the reason that he has another alternative efficacious remedy of appeal against the impugned order passed by the State Board before the Appellate authority constituted under the provisions of Section 31 of the Act of 1981. The second objection was that nothing has been placed on record to show that the petitioner unit was operating in accordance with the conditions contained in the consent. The report of the inspection shows that the petitioner violated the terms of the consent. The report is by an expert, who is a public servant and such is directly admissible and relevant in view of section 45 of the Evidence Act. The Apex Court in Andhra Pradesh Pollution Control Board vs. M.V. Nayadu and others (1999 SCC part 2 page 718) has 7 categorically held that in cases of pollution “doctrine of reversal of proof would apply”. The heavy onus is on the polluter to prove that he is not causing pollution and is meeting all the requires of law. The petitioner is not entitled for any relief in this matter. The entire nearby area where the unit of the petitioner is situated has been declared as reserved/ protected forest and there is no legal source of raw material except that for the illegal mining. Division Bench of this Court in DBCW No. 5525/2004 has given directions to the Director General of Police to create a police chowki there. These directions have been issued based on a report which shows that due to 40 crushers there is an apprehension of illegal mining. The present case is from the same area. Reiterating the facts stated by the petitioner in the writ petition, the respondents averred that the order dated 5.2.2010 passed by the Chairman is a speaking order after considering the submissions made by the petitioner. The Chairman considered all the relevant facts and arguments submitted by the petitioner and the inspection report carried out during 11.2.2009 to 13.2.2009. The respondent in their reply stated that the suspended particulate matter (SPM) is only one factor but is not the sole factor. A reading of the facts shall reveal that consent was granted on certain terms and conditions and any breach thereof is sufficient to take action against the unit. During inspection it was found that vibrator screen was not covered completely, water spraying system at the crusher and transfer points was inadequate, plantation has not been done all along the periphery of the unit to develop green belt, the system for cleaning and wetting of the ground and roads within the premises was inadequate, records regarding monthly production and raw material procured was not available at the unit 8 and acoustic enclosrue not provided with the DG set of 320 KVA. The record regarding details of procurement of raw material and production is important in order to verify and ensure that the raw material is derived from the source of legal mining. Operation of stone crusher based on unauthorised sources perpetrates illegal mining and results into degradation of environment. Earlier action was taken against the petitioner against which writ came to be filed and the matter was remaneded. These very grounds were there in that order against which the petitioner submitted detailed reply and made oral submissions also. All the points raised on his behalf have been discussed and decided as such the petitioner cannot have any complaint with regard to principles of natural justice and opportunity of hearing. The Appellate Authority is in existence and the petitioner could have filed the appeal before it instead of preferring writ petition before this Court, thus the writ petition of the petitioner is liable to be dismissed on this count alone. Mr. Naqvi, Additional Advocate General reiterated the arguments stated in the reply and stated that the alternative remedy is available under section 31 of the Act of 1981 to the petitioner and this writ petition is liable to be rejected on account of availability of alternative remedy by filing appeal. In support of his submission he placed reliance on Vatan Press Sudarma Jaipur vs. Regional Provident Fund Commissioner S.B.Civil Writ Petition No. 9329/2005 decidedd on May 8, 2009 (LLJ 4 (2009) 276. The learned Additional Advocate General also placed reliance on A.P. Pollution Control Board vs. Prof. M.V. Nayudu (Retd. ) and others (1999) 2 SCC 718. SBCW 6234 The petitioner installed the stone crusher 9 in village Angrawali, Teh. Kaman, Distt. Bharatpur and got the consent to operate the stone crusher vide order dated 30.7.2007 for a period upto 31.8.2009. On 15.3.2008 a show cause notice was given to the petitioner pointing out some irregularities and directed to remove such irregularities. The petitioner filed detailed reply. The State Board gave show cause notice on 6.1.2009 for intended revocation of consent to operate and intended closure directions. The petitioner again filed detailed reply. The State Board passed order dated 22.7.2009 revoking the consent to operate the stone crusher under section 31 A of the Act of 1981. The petitioner filed writ petition before this court and this Court vide order dated 8.12.2009 allowed the writ petition and remitted the matter to the State Board for deciding the same afresh. The petitioner appeared before the Chairman State Board on 22.12.2009. The objection of the petitioner was that without conducting fresh survey of stone crusher the State Board passed order ated 18.11.2009 by which refused to give consent to operate under section 21 of the Act of 1981 and further vide order dated 5.2.2010 issued directions for closure under section 31 Aof the Act of 1981. The State Board has not filed any reply to the writ petition. SBCW 6235 of 2010 The petitioner installed the stone crusher in village Fatehpur. Kaman, Distt. Bharatpur and got the consent to operate the stone crusher vide order dated 8.3.2006 and extended the extention for a period upto 31.1.2010. On 15.3.2008 a show cause notice wa given to the petitioner pointing out some irregularities and directed to remove such 10 irregularities. The petitioner filed detailed reply. The State Board gave show cause notice on 2.1.2009 for intended revocation of consent to operate intended closure directions. The petitioner again filed detailed reply. The State Board passed order dated 21.7.2009 revoking the consent to operate the stone crusher under section 31 A of the Act of 1981. The petitioner filed writ petition before this court and this Court vide order dated 8.12.2009 allowed the writ petition and remitted the matter to the State Board for deciding the same afresh. The petitioner appeared before the Chairman State Board on 22.12.2009. The objection of the petitioner was that without passing any order on the application of the renewal of consent which was expired on 31.1.2010, the State Board issued orders dated 4.2.2010 refusal to renew and directions for closure under section 31 Aof the Act of 1981. The State Board has not filed any reply to the writ petition. SBCW 6236 of 2010 The petitioner installed the stone crusher in village Fatehpur (Bilang), Thehail Kaman, Distt. Bharatpur and got the consent to operate the stone crusher vide order dated 22.1.2005 and extended the extention for a period upto 30.9.2009. On 15.3.2008 a show cause notice was given to the petitioner pointing out some irregularities and directed to remove such irregularities. The petitioner filed detailed reply. The State Board gave show cause notice on 2.1.2009 for intended revocation of consent to operate and intended closure directions. The petitioner again filed detailed reply. The State Board passed order dated 11 22.7.2009 revoking the consent to operate the stone crusher under section 31 A of the Act of 1981. The petitioner filed writ petition before this court and this Court vide order dated 8.12.2009 allowed the writ petition and remitted the matter to the State Board for deciding the same afresh. The petitioner appeared before the Chairman State Board on 22.12.2009. The objection of the petitioner was that without conducting any fresh survey of the stone crusher, the State Board passed order dated 18.11.2009 by which consent to operate under Section 21 of the Act of1981 was refused. The State Board issued further order dated 4.2.2010 issued directions for closure under section 31 A of the Act of 1981. The State Board has not filed any reply to the writ petition. SBCW 6237 of 2010 The petitioner installed the stone crusher in Tehsil Kaman, Distt. Bharatpur and got the consent to operate the stone crusher vide order dated 14.9.2004 and extended the extension for a period upto 31.9.2009. On 15.3.2008 a show cause notice was given to the petitioner pointing out some irregularities and directed to remove such irregularities. The petitioner filed detailed reply. The State Board gave show cause notice on 2.1.2009 for intended revocation of consent to operate intended closure directions. The petitioner again filed detailed reply. The State Board passed order dated 14.7.2009 revoking the consent to operate the stone crusher under section 31 A of the Act of 1981. The petitioner filed writ petition before this court and this Court vide order dated 8.12.2009 allowed the writ petition and remitted 12 the matter to the State Board for deciding the same afresh. The petitioner appeared before the Chairman State Board on 22.12.2009. The objection of the petitioner was that without conducting any fresh survey of the stone crusher, the State Board passed order ated 18.11.2009 by which consent to operate under Section 21 of the Act of1981 was refused. The State Board issued further order dated 4.2.2010 issued directions for closure under section 31 A of the Act of 1981. The State Board has not filed any reply to the writ petition. 7. I have heard the learned counsel for the parties and gone through the arguments and cases cited by them. Admittedly under section 31 of Act of 1981 any person aggrieved by an order made by the State Board under this Act may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority referred to as the Appellate Authority as the State Government may think fit to constitute. Sub section (4) of section 31 provides that on receipt of an appeal preferred under sub section (1) the Appellate Authority shall after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible. The Additional Advocate General submitted before this Court Gazette Notification dated May 10, 2010 published in Rajasthan Gazette dated May 14, 2010 where by the State Government as per the powers conferred on it under Section 28 (2) constituted appellate Authority underthe Act of 1981. Admittedly the petitioner has not filed any appeal before the Appellate Authority. In the order Anenxure 6 it was mentioned that “the aforesaid order of refusal of consent is appellable before the Appellate 13 Authority constituted by the State Government under section 31 of the Air Act”. In the order Annexure-7 also it was mentioned that “the aforesaid order issuing directions under section 31 (A) is appellable before the Appellate Authority constituted by the State Government under Section 31 of the Air Act.” As per the ratio laid down by this court in Vatan Press Sudarma vs. Regional Provident Fund Commissioner (supra) the writ petition is not maintainable on the ground of availability of an alternate remedy. Thus the writ petitions filed by the petitioners are liable to be rejected on account of availability of alternative remedy under section 31 of the Act of 1981. 8. The respondent State Board filed detailed reply to the writ petition in S.B.Civil Writ Petition No.5841 of 2010 filed by M/s. Shri Radhey Stone Crusher. I have gone through the writ petition as well as the reply filed by the State Board and arguments raised by both the parties on merit also. The order dated 31.8.2007 was passed under the provisions of Section 21 of the Act of 1981) by the State Board, on the application dated 2.1.2007 submitted by the petitioner. The consent was given subject to the following conditions : i)) That this consent to establish is for existing capacity, plant and process and separate consent to establish as well as consent to operate is required to be taken for anay change in process, plant and product. ii) That water sprinkling system shall be maintained at different points of process and feed hopper so a to control the emission at source to achieve the prescribed norms. iii) That the suspended particulate matter (SPM) contribution value at a distancve of 3 to 10 Mtrs. From controlled, isolated as well as from a unit located in a cluster should not be more than 600 ug/m. (iv) The management shall ensure maintenance of metaled road on the ramp and also the approach road within the 14 premises for movement of vehicles used for transportation of the finished product. v) That you shall maintain arrangements for regular cleaning of roads and wetting of the gro9und within the premises. (vi) That the requisite air pollution control measures shall be kept operational all the time. vi) That for diesel generator set acoustic enclosure shall be provided to meet the prescribed norms with respect to noise as per gazette notification vii) The industry shall keep noise level within the limit prescribed by the Central Pollution Control Board and as adopted bythe State Board as : day time : 75 db, night time : 70 db. Viii) that the management shall ensure tree plantation yo cover 33% of the total area of factory premises the plant species should be planted in such a way that shelterbelt are created along the periphery in wind ward as well as leeward directions. The trees should be planted at a spacing of 5 M x 5 M and another row of shrubs should be added and implemented in following manner : a) Trees necessarily be planted along the periphery of the area in rows. The nit may also take up additional plantation on other available area such as along the roads, on unused land etc. b) The computation of the area under tree plantation shall be done on the basis of the following norms : * Trees species like Neem. Pipal, Jamun, Gulmohar etc. shall be deemed to cover 25 M area o nmaturity. * Shrubs like Guavaa, Pomegranate, Jungle Jalebi etc. shall be deemed to cover an area of 9 M on maturity. c) The area likely to be covered by the plants mentioned above shall be computed accordingly. The herbs which require continuous watering for their maintenance shall not be counted to meet the norms though they can be planted bythe management as per their need. The trees/ shrubs planted shall be mainained till they attain maturity and in case any of these die, it will be replaced by a similar species i.e. shrub by a shrub and a tree by a tree. The petitioner also submitted application for consent to operate its stone crushing