lN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION c No. ' V3 OF 2009 PETITIONER Shivaji Suryavanshi aged about 45 years, S/o Shri Vishnu Suryavanshi, Occupation- Business Man R/o Subhash Nagar, Gondpara, Bilaspur, Chhattisgarh VERSUS RESPONDENTS - 1. State of Chhattisgarh, Through Secretary, Government of Chhattisgarh, Department of Urban Administration, DKS Bhawan, Mantralaya, Raipur, Chhattisgarh Commissioner, Municipal Corporation, District Bilaspur, Chhattisgarh Joint Commissioner, Municipal Corporation District Bilaspur, Chhattisgarh Collector, Bilaspur, District Bilaspur, Chhattisgarh Regional Officer Chhattisgarh Paryavaran Sanrakshan Mandal, District Bilaspur, Chhattisgarh. RIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT OR WRITS IN THE NATURE OF *A‘A‘_i*——_ MANDAMUS CERTIORARI ,~ PROHIBITION DIRECTION OR DIRECTIONS, ORDERS OR ORDERS OR THE LIKE W w ‘\~_\_~ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA J. Writ Petition lCl NO.7431 of 2009 N FOR PRONOUNCEMENT OF ORDER ON /5)%JULY 2011 Sdl- Manindra Mohan Shrivastava Petitioner Shivaji Suryawanshi Versus Resgondents State of Chhattisgarh and Others @ HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench: Hon’ble Shri Manindra Mohan ShrivastavaLJ. Writ Petition (C) NO.7431 of 2009 Petitioner Shivaji Suryawanshi Versus State of Chhattisgarh and Others (Writ Petition under Article 226 of the Constitution oi India) Present — Shri Pramod Verma Senior Advocate With Shri Raghvendra Verma counsel for the petitioner Shri V V S Murthy, Deputy Advocate General With Shri Suryakant Mishra Panel Lawyer for the State/respondents No 1 & 4 Shri A. S. Kachhawaha, counsel for respondents No.2 & 3/Municipal Corporation. Shri Sudhir Bajpai, counsel for respondent No 5 Respondents ORDER (Pronounced on l> -O7-2011) By this petition under Article 226 of the Constitution of lndia, the petitioner has called in question the correctness, validity and legality of notice dated 21-10- 2009 and 12-1 1-2009 filed collectively as Annexure P-1, by which, the petitioner has been required to remove from the existing site-Gold and Silver Refinery. 2. Facts necessary for decision of the case are that the petitioner is running a gold and silver refinery for the last 20 years in the name of Dhanlaxmi Silver Refinery at Gondpara, Bilaspur. According to the petitioner, the area is known for carrying out refinery work and there are more than 14 refinery shops in the same 'E area. Refinery work is being carried out by the petitioner since 1992, after obtaining registration certificate as is required under Shop and Establishment {i Act, 1958, issued to him on 25-02-1992 (Annexure P-2). The petitioner has got i, his certificate renewed from time to time and same is valid up to the year 2012, which is evident from Annexure P-3. The petitioner has also obtained license from the Municipal Corporation for carrying out trade of gold and silver refinery issued on 02—07—2009 (Annexure P-‘4). The petitioner is also a registered member of Bilaspur Sarafa Association, which is evident from cemficate (Annexure P-5). He holds Iife membership and certificate cf membership (Annexure P-6) issued to him by Chhattisgarh Chamber of Commerce and industries, Raipur (CG). On 21-10-2009, the petitioner received a notice issued by the Health Inspector, Zone-H, Municipal Corporation, Bilaspur stating that the petitioner is using chemical and also using hard coke as fuel for running his refinery activity, which is resulting in emission of dangerous gas adversely affecting the health and safety of the residents in the, vicinity. Therefore, the petitioner should remove his trade/occupation in 24 hours, failing which, action would be taken under Section 248 of the Municipal Corporation Act, 1956 and penalty would be imposed. It was followed by another notice dated 12-11-2009 (Annexure P-1), by which, referring to letter dated 05-09-2009 issued by the office of Regional Office, Chhattisgarh Environment Pollution Control Board, the petitioner was required to shift his refinery from the existing place immediately and submit compliance report, failing which, his license be treated as having been cancelled. 3. Assailing the aforesaid action of the respondent—Corporation and its authorities, learned Senior Counsel for the petitioner argued that the action of the respondent is without the authority of law. it is contended that there is no absolute prohibition to carry out trade activities of gold and silver refinery work, but the same is regulated in public interest. The petitioner has obtained iicense‘ for carrying out his activity and as long as license exists in his favour and is not ‘cancelled in the manner prescribed under the law, the petitioner is entitled to continue with the activity. it is next contended that the notice has been issued to the petitioner without affording him any opportunity of hearing and without supplying any material to show that the activity of the petitioner is in violation of any Municipal Laws, Rules or Bye Laws made thereunder or any other law for ' . the time being in force regulating such activity. it is-then submitted that the notice dated 21-10-2009 has been issued by the Health inspector, who is not ' competent and has no jurisdiction to issue such a notice. it is also submitted that the notice dated 12-11-2009 has been issued in a mechanical manner without due applicatien of mind only at the dictates of the Pollution Board. 4. On the other hand, submission of learned counsel for the respondent- Corporation is that several complaints from the public, who are residents of the area, were received, in which, it was stated that in the course of gold and silver melting and refinery, dangerous gas are being emitted from the premises, which is causing nuisance and adversely affected the health of the residents of that area. lt is also submitted that on such complaints being made, the Additional District Magistrate vide his memo dated 26-08-2009 (Annexure R-2/4) intimated to the Sub Divisional Magistrate to take action against the petitioner under the provisions of Environment Protection Act. The complaints resulted in request made to the environment conservation authority to inspect the premises, .whereafter the inspection was made by the officers of the respondent No.5 and a report was submitted vide covering letter dated 09-07-2009 (Annexure R—2/3). Further, vide memo dated 05-09-2009 (Annexure R-2/2), the Corporation was also advised to get the refinery removed from the area looking to the pollution, which is being caused. lt was in this background that the petitioner was issued notice under Section 248 of the Municipal Corporation Act, 1956 (ln short “the Act of 1956") to stop the activity and shift its refinery to some other place away- from the present premises. Learned counsel for the respondent-Corporation further submitted that the petitioner has been proceeded against because the petitioner did not comply with the terms and conditions of license and various statutory conditions contained in Bilaspur Municipal Corporation Dangerous and Offensive Trades and Factories Premises Licensing Byelaws, 1983 (in short “the Byelaws of 1983”). It is also submitted that the petitioner has alternative remedy of appeal under Section 403 of the Act of 1956. lt is also submitted that the yj petitioner had created nuisance as defined under Section 5 Sub Section (40) of the Act of 1956, notices were issued to the petitioner. \ W5 5. Learned counsel for the respondent No.5-i30llution Control Board ha submitted that complaints of the resident of the area, where refineries were running, were made, and those complaints were fonrvarded by the Collector to .the respondent No.5. The Sub Divisional Magistrate vide his letter dated 14-05-2009 required the respondent No.5 to inspect the site and Submit report. Thereafter, a team was constituted and inspection was made. In view of the inspection made and report prepared, it was suggested to shift the refinery of the petitioner as well as other refineries situated and running in the area to some other suitable area. Vide letter dated 09-07-2009, a report was sent to the Collector and Sub Divisional Magistrate. Vide letter dated 05-09-2009, the Corporation was also advised to take appropriate action for removing the refinery and shifting it to some other place. ' 6. On 01-07-2010, this Court had directed the official respondent No.5 to inspect the spot and submit report. In compliance of the order of the Court, a team was constituted, which inspected the spot and submitted report dated 16-07-2010, placed on record as Annexure R-5/6. Thereafter, a report (Annexure R—5/A) was submitted by the Regional Officer of the Environment Protection Board in compliance of Court order dated 21-07-2010. 7. In order to protect public health and safety, regulatory provisions have been made under the Act of 1956, contained in Chapter XVII of the Act of 1956. Section 248 of the Act of 1956seeks to regulate dangerous and offensive trades by providing that except in accordance with the provisions of this Act, no person shall carry on or allowed to be carried on any premises any trade, manufacture, industry or operation mentioned in any (byelaws) under the Act as dangerous to life, health or property or as likely to create a nuisance, either from its nature or by reason of the manner in which the conditions under which the same may be / carried on. In exercise of powers conferred under sub section (1) of Section 403 of the Act of 1956, the State Government has framed byelaws to regulate the ,acti‘vities of dangerous and offensive trades and factories known as Bilaspur s ‘ Municipal Corporation Dangerous and Offensive Trédes and Factories Premises Licensing Byeiaws, 1983. The Bye Iaws contain statutory provision with regard to grant of terms and conditions of license and various terms and conditions, under which such trades and activities could be carried out. Schedule I Clause 5(a) referable to byelaw 2(c) of the aforesaid byelaws mentions metal moulding factory covered under the specified dangerous trade activities. Therefore, the provisions contained in Section 248 of the Act of 1956 read with the provision r contained in the byelaws of 1983 seek to regulate the specified dangerous and offensive trades one of that being metal moulding factories. It is not in dispute that the shop, which is being carried on by the petitioner, relates to moulding and melting of gold and silver by using chemical and hard coke, which is evident from various report of officials of Environment Conservation Board, which have been - placed on record by respondents No.2 & 3 and 5. Therefore, such activity could not be carried on without there being appropriate license in that regard. 8. The petitioner has clearly stated in the writ petition that he has been issued license under the provisions of byelaws. A copy of the license has also been placed on record by the petitioner as Annexure P-4. A perusal of the license shows that the same has been issued under the byelaws framed under the Act of 1956. Once a license has been issued in favour of the petitioner, the petitioner is entitled to run and carry on the trade of moulding and melting gold ' and silver refinery, because provision of Section 248 of the Act of 1956 read with provisions contained in the byelaws of 1983, do not completely prohibit carrying on such activity, but merely seek to regulate such activity. The activity'is sought to be regulated by prescribing that no such activity shall be carried on, until license has been granted by the Corporation, upon fulfillment of the conditions prescribed in the byelaws of 1983. The provisions contained in the byelaws lay . down the conditions, subject to which, the activity could be carried on. Therefore, once a license has been issued in favour of the petitioner, the petitioner is entitled to run and carry on the activity of melting and moulding of gold and silver refinery. my: ‘r q 9. The provisions contained in byelaws 37 of the Byelaws of 1983 dearly provide that if the licensee contravenes any provisions of these byelaws or orders passed by any competent authority, the Commissioner shall have power to suspend or cancel the license. Therefore, the Commissioner is empowered to suspend or to cancel the license. However. in the present case, respondent do no say that they have drawn cancellation proceedings under the provisions of byelaw 37 of the Byelaws of 1983 and cancelled the license of the petitioner. This would mean that the statutory license issued in favour of the petitioner still exists and in force. 10. The notice dated 21-10-2009 and 12-11-2009 (Annexure P-1) goes to show that the respondent-Corporation authorities have directed the petitioner to remove/shift his refinery to some other place on the ground that emission of dangerous gas by using chemical and hard coke is causing pollution and adversely affecting the public health. The Corporation along with its return has placed on record inspection report dated 09-07—2009 (Annexure R-2/3) and letter dated 05-09-2009 (Annexure R-2/2), which shows that the officials of the respondent—Environment Protection Board authority inspected the spot and advised the Corporation to shift the refinery to some other place. Thereafter, the respdndent—Corporation issued notice to the petitioner. The inspection report (Annexure R—2/3) shows that the inspection team found that the emission of dangerous gas may adversely affect the residents of the area. Pursuant to the order passed by this court on 01-07-2010, a report has been submitted before this Court filed as Annexure R-5/6, in which, it has been recorded that the emission of dangerous gas and smoke is adversely affecting the health of residents of that area and on such complaint being made, the Committee 'recorded that possibility of adverse effect to the health of the residents of the area by emission of dangerous gas and smokes, cannot be ruled out. The aforesaid two reports do not give a clear picture but only reflected the complaints. Specific report with regard to pollution level has not been,'contained in the 5?x ;x ‘r/4. s aforesaid two reports, but later on, another inspection report dated 18-11-2010 has been filed as Annexure R-5/A. The report is specific on the contents of air on various parameters. The aforesaid reports show that ievel of poiiution was found to be according to the prescribed standards. It would, therefore, appear that there are various reports and the last report dated 18-1 1-2010 (Annexure R—5/A) does not prove the allegation regarding pollution. The report, however, further shows that in the residential area, such factory should not be allowed, which affects the. residents of the area. t 11. If the respondent-Corporation intends to stop the activity, which is being run by the petioner under a valid license issued in his favour, the only course ti pen f the respondet-Corporation is to draw appropriate proceedings for o or n cancellion of lice, as provided under byel 37 of the Byla of 1983, by at nse aw ew ' givig proper opportunity o hring to the petitioner. Whatever material has been n f ea colected by the respondent-Corporation n the form of complaints and repot cf l i r the Pollution ntrol Board includi the report, which has be ubmitted before Co ng en s this Court, may be relvant in taking a decision to whether the petitioner has e as contraveed the terms nd conditions of the license or the conditions specified in n a e byelaws of 1983, so as to wnt cancellation of his license. However, only on the ba cmplaint and letters suitted by publc and the reports sis of o bm the i submitte by the Environmnt Protection Board, the petitioner could not be asked d e to remove his activity by the aministration of the respondent—Corporation, as d long as license subsists i favour of the petitioner. The spondent-Corporation n re has failed o establih y placing sufficient material on rord that the license of t s b ec the petitioner has been cancelled in accordace with the prescribed procedure n under the byelaws. 12. In view of foregoing, the impugned notices are clearly illegal and in excess of authority under the law. The impugned notice dated 21-10-2009 and 12-11- 2009 filed collectively as Annexure P-1 are hereby quashed and the respondents ‘arejrestrained from interfering with the petitioner’s trade and activity of melting jéxy _ .‘v,/_’ M th arra ,., and moulding gold and silver refinery. Howevef’, in case, the respondent- ‘ contained in byelaw 37 of the Byeiaws of 1983. 13. The petition is accordingly allowed to the extent and in the manner indicated above. No order as to costs. X Sd/— Manindra Mohan Shrivastava Judge Tumane