1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT (1) M/s Bahubali Stone Crusher Vs. Rajasthan State Pollution Control Board 4. (S.B. Civil Writ Petition No.2593/2010) (2) M/s Virendra Grit Udhyog Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3428/2010) (3) M/s Som Grit Udhyog Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3371/2010) (4) M/s Vinayak Grit Udhyog Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3370/2010) (5) M/s Satguru Gram Udhyog Samiti Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3369/2010) (6) M/s Guru Dayal Stone Crusher Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3368/2010) (7) M/s Shri Hanuman Grit Udhyog Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3367/2010) (8) M/s Mittal Stone Udhyog Unit-II Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3219/2010) (9) M/s Shri Krishna Gramodyog Vikas Samiti Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3218/2010) (10) M/s Shriji Gramodyog Samiti Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3728/2010) (11) M/s Bansal Grit Udhyog Vs. Rajasthan State Pollution Control Board 4 & Anr. (S.B. Civil Writ Petition No.4078/2010) (12) M/s Bhole Baba Grit Udhyog Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3214/2010) 2 (13) M/s Vimal Grit Udhyog Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.3727/2010) (14) M/s Jagdamba Grit Udhyog Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.4008/2010) (15) M/s P.S. Grit Udhyog Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.4009/2010) (16) M/s Nandshwar Gramodyog Vikas Samiti Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.4010/2010) (17) M/s Sangam Grit Udhyog Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.4019/2010) (18) M/s Maa Vaishno Gramodyog Vikas Samiti Vs. Rajasthan State Pollution Control Board. (S.B. Civil Writ Petition No.4020/2010) (19) M/s Rao Jogendra Grit Udhyog Vs. Rajasthan State Pollution Control Board 4 & Anr. (S.B. Civil Writ Petition No.4079/2010) (20) M/s Asha Stone Crusher Vs. Rajasthan State Pollution Control Board 4 & Anr. (S.B. Civil Writ Petition No.4451/2010) (21) M/s Rao Yogendra Grit Udhyog Vs. Rajasthan State Pollution Control Board 4 & Anr. (S.B. Civil Writ Petition No.4452/2010) S.B. Civil Writ Petitions under Article 226 of the Constitution of India. REPORTABLE Date of Order :- August 20, 2010 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Sunil Nath ] Mr.Rajeev Sogarwal ] Mr.Arvind Soni ] for the petitioners. Mr.S.K. Shukla ] Mr.Akhil Simlote, for the respondents. 3 (1) With the closure of their stone crushers, with the threat to their right to livelihood, the petitioners, the owners of the stone crushers, have rushed to this Court for protection. Since through these petitions, the petitioners have challenged two orders, both dated 04.02.2010, passed by the Rajasthan State Pollution Control Board ('the Board', for short), these petitions are being decided by this common judgment. However, for the sake of clarity, the facts from S.B. Civil Writ Petition No.2593/2010, M/s Bahubali Stone Crusher Vs. Rajasthan State Pollution Control Board, are being narrated hereinafter. (2) It is the case of the petitioner-firm that it had established an industrial unit for production of grit stone at village Bolkhera, Tehsil Kaman, District Bharatpur. The petitioner-firm was not only duly registered with the Board, but vide order dated 15.05.2004, the Board had granted the consent to operate to the petitioner-firm for its unit. The said consent was valid till 30.04.2009. From 15.05.2004 till 15.03.2008, the petitioner claims that it had been running its unit in accordance with the requirement of the Air (Prevention and Control of Pollution) Act, 1981 ('the Act', for short), and according to the conditions imposed by the Board. However, the District Collector, Bharatpur had constituted a Committee for inspecting the various stone crushers operating in the Bharatpur District. According to the report of the said Committee, certain deficiencies were discovered at the petitioner's unit. 4 Therefore, the Board issued a notice dated 15.03.2008, under Section 21(4) of the Act, wherein certain deficiencies were pointed out, and it was indicated by the Board that it is likely to revoke the consent to operate unless the deficiencies pointed out were not addressed to. Immediately on 27.03.2008, the petitioner filed its preliminary objections and requested that the copy of the inspection report be given to it so that it could file a substantial reply. Despite the fact that the copy of the inspection report was not given to the petitioner, on 29.03.2008, the petitioner still filed a detailed reply to the show cause notice. (3) From 29.03.2008 till 02.01.2009, i.e. for almost ten months, the Board maintained a studied silence over the entire issue. However, on 02.01.2009, the Board issued another notice to the petitioner. This notice was under Section 31A of the Act. The Board pointed out another set of deficiencies and threatened to revoke the consent order and to direct the closure of the unit. Again the petitioner requested that the relevant documents, on which the Board was relying upon for issuing the said notice, should be supplied to it. However, even this request fell on deaf ears. (4) Meanwhile, on 12.01.2009 the petitioner filed an application under Section 21 of the Act, for renewal of the consent order, as the petitioner's consent order was about to expire on 30.04.2009. 5 According to the petitioner, despite the said application, the Board did not take any concrete steps for considering the said application. Instead, the Board issued an order dated 21.07.2009 under Sections 21 and 31A of the Act, refusing to extend the consent to operate, and directing the petitioner to close its unit immediately. Since the petitioner was aggrieved by the said order, it filed a writ petition before this Court, namely S.B. Civil Writ Petition No.9991/2009. Like the petitioner, other owners of the stone crushing unit had received similar orders. Hence, they, too, filed similar petitions before this Court. While deciding all the petitions by a common judgment, on 08.12.2009. this Court passed the following order : While following the Constitution Bench judgment of the Hon'ble Supreme Court in S.N. Mukherjee's case (supra), all these writ petitions are hereby allowed and orders impugned in these writ petitions, passed by the Rajasthan State Pollution Control Board for closure are hereby quashed and set aside. The matter is hereby remitted to the Rajasthan State Pollution Control Board for deciding the same afresh and all the petitioners are directed to appear before the Pollution Control Board on 22.12.2009 and the State Pollution Control Board is directed to decide the matter after considering the grounds taken in the reply and after providing opportunity of hearing to the petitioners, by speaking order. 6 (5) In pursuance of the directions of this Court, on 29.12.2009 the petitioner submitted a detailed reply along with the relevant documents before the Board. However, vide order dated 04.02.2010, the Board has refused to grant consent under Section 21 of the Act to the petitioner. Moreover, vide another order, also dated 04.02.2010, issued under Section 31A of the Act, the Board has directed the petitioner and the District Collector, Bharatpur, the Executive Engineer, Jaipur Vidhyut Vitran Nigam Limited, Deeg, District Bharatpur, and the Regional Officer of the Board to immediately close the petitioner's industrial unit. Similar orders have been passed in the case of other petitioners, hence all these petitions before this Court. (6) Mr. Akhil Simlote, the learned counsel for the Board, has questioned the maintainability of the present petitions on the ground that Section 31 of the Act provides that “any person aggrieved by an order made by the State Board may..... prefer an appeal before the Appellate Authority constituted by the State Government”. Thus, according to the learned counsel, the petitioners have an alternate remedy available to them. Hence, the present petitions are not maintainable before this Court. (7) On the other hand, Mr. Sunil Nath, the learned counsel for the petitioner, and other learned counsel, have contended that at the relevant time when the impugned orders were passed, the Appellate 7 Authority was not functioning. Therefore, they had no other option, but to directly approach this Court under its writ jurisdiction. Secondly, the scheme of the Act reveals that the Act makes a distinction between “an order” passed by the State Board and “the directions” issued by it. While Section 31 of the Act provides a right to file an appeal against “an order”, the said Section does not provide the right to file an appeal against “the directions” issued under Section 31A of the Act. In case, the legislature in its wisdom wanted to bestow the right to file an appeal against “the directions”, then Section 31 of the Act would have included the word “directions”. However, the said word is conspicuously missing from Section 31 of the Act. Therefore, the said word cannot be read and cannot be inserted by a judicial interpretation. To do so would be to violate the phraseology of Section 31 of the Act. Moreover, in case the word “directions” were to be read as part of the word “order” use in Section 31 of the Act, then there is no reason why the power to issue directions has been enumerated below Section 31 of the Act, namely in Section 31A of the Act. Thus, clearly the right to file an appeal against “directions” issued by the Board does not exist under the Act. Thirdly, in the alternative, the existence of an alternative remedy is not an absolute bar to a person approaching the High Court under its writ jurisdiction. In case an order has been passed in violation of principles of nature justice, then the aggrieved party would be entitled to invoke the writ jurisdiction of the High Court. In order to buttress 8 this contention, the learned counsels have relied upon the cases of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. [(1998) 8 SCC 1], Popcorn Entertainment & Anr. Vs. City Industrial Development Corpn. & Anr. [(2007) 9 SCC 593], and M.P. State Agro Industries Development Corpn. Ltd. & Anr. Vs. Jahan Khan [(2007) 10 SCC 88]. According to the learned counsel, one of the requirements of principles of natural justice is that a quasi-judicial or judicial body must pass a speaking order. But the impugned orders dated 04.02.2010 are non-speaking orders. Therefore, they violate the principles of natural justice. Hence, the petitioners are justified in invoking the writ jurisdiction of this Court. They are further justified in invoking the writ jurisdiction as their right to livelihood and their right to life guaranteed by Article 19 and Article 21 of the Constitution of India, respectively, are apparently being threatened. (8) Heard the learned counsel for the parties on the preliminary objection. (9) Section 17 of the Act lays down the functions of the State Board. Section 17(e) of the Act empowers the Board to inspect, at all reasonable time, any control equipment, industrial plant or manufacturing process and to give, by order, such directions to such persons as it may consider necessary to take steps for the prevention, control or abatement of air pollution. 9 (10) Section 21 of the Act prevents a person from establishing or operating any industrial plant in the air pollution control area without the previous consent of the Board. Section 21 Sub-clause (4) empowers the Board to either grant or to refuse to grant the consent by passing an appropriate order. The proviso to the Sub-clause (4) of Section 21 of the Act also empowers the Board to cancel a consent before the expiry of the period for which it had been granted in case the conditions for grant of consent are not fulfilled. (11) Section 31 of the Act is as under : 31. Appeals: (1) 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 (hereinafter referred to as the Appellate Authority) as the State Government may think fit to constitute : Provided that the Appellate Authority may entertain the appeal after the expiry of the said period of thirty days if such authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2). The Appellate Authority shall consist of a single person or three persons as the State Government may think fit to be appointed by the State Government. (3) The form and the manner in which an appeal may be preferred under sub- section (1), the fees payable for such appeal and the procedure to be followed by the Appellate Authority shall be such as may be prescribed. (4) 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. 10 31A. Power to give directions :- Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions. Explanation.- For the avoidance of doubts, it is hereby declared that the power to issue directions under this section, includes the power to direct- (a) the closure, prohibition or regulation of any industry, operation or process ; or (b) the stoppage or regulation of supply of electricity, water or any other service. (12) A bare perusal of these provisions clearly reveals that Section 17 of the Act empowers the Board to give directions through orders. Thus, it makes the orders as the genus and the directions as species. It is not necessary that all orders would contain directions. This is apparent from Section 21 of the Act wherein the power to give orders is contained. According to Section 21 of the Act, the Board has the power to grant order for consent to operate a unit, the power to revoke or to renew the said consent. Thus, Section 21 of the Act clearly stipulates that while an order can be passed, the said order need not contain any directions. The distinction between “an order” and “a direction” is further apparent from a comparison between Sections 21 and 31A of the Act. Section 31A of the Act empowers the Board to give 11 specific directions to any person, officer or authority and such person is bound to comply with such “directions”. Hence, the Act itself distinguishes between “an order” and “a direction”. Interestingly Section 31 of the Act grants the right to file an appeal only against “an order”. The said Section does not grant the right to file an appeal against “directions”. For, the said Section does not use the word “direction”, but merely uses the word “order”. Since the Act makes a distinction between the words “order” and “direction”, since Section 31 of the Act uses merely the word “order”, therefore, the word “direction” cannot be read into Section 31 of the Act. In case the word “direction” were to be read into Section 31 of the Act, it would violate the language of the said Section. Moreover, a word cannot be inserted into a provision through judicial interpretation. For, to do so, would be to amend a law – a power not granted to the Courts. Lastly, it is to be noted that Section 31A of the Act which contains only the power to give “direction” is placed below Section 31 of the Act which confers the power to file an appeal against “an order”. In case the legislature in its wisdom wanted to bestow the right to file an appeal against “a direction”, then Section 31A of the Act should have preceded and not followed Section 31 of the Act. Thus, the Scheme of the Act is very clear that while Section 31 of the Act gives the right to file an appeal against “an order”, Section 31 of the Act cannot be interpreted to bestow the right to file an appeal against “directions”. Therefore, the learned 12 counsel for the Board is unjustified in claiming that the petitioners had a right to file an appeal against “directions” issued under Section 31A of the Act in the impugned order dated 04.02.2010. (13) Moreover, both the parties are ad idem that at the relevant time when the impugned orders were passed, the Appellate Authority was not functioning. In fact, the Appellate Authority has been constituted by the Government only on May 10th, 2010, whereas the petitions were filed on 17th February, 2010. Since the Appellate Authority was not functioning at the relevant time, the petitioners had no other option, but to invoke the writ jurisdiction of this Court. Thus, they cannot be faulted for having sought the refuge of this Court. (14) It is, indeed, a settled position of law that the existence of an alternate remedy does not bar a person from invoking the writ jurisdiction of a High Court. In fact, the bar is merely a self-imposed restriction by the judiciary upon its plenary powers. In the case of Whirlpool Corporation (supra), in paras 14 and 15 of the report, the Hon'ble Supreme Court had observed as under : The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, 13 prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (15) Thus, where a case falls under one or more of the circumstances mentioned above, the aggrieved person would be entitled to invoke the writ jurisdiction of this Court. As shall be discussed hereinunder, one of the grounds for attacking the impugned orders is that the principles of natural justice have been violated. Moreover, the petitioners have consistently pleaded that their fundamental rights under Articles 19 and 21 of the Constitution of India are being violated by the Board. Since both the principles of natural justice and the fundamental rights have been violated, as shall be demonstrated hereinbelow, the petitioners were certainly justified in invoking the writ jurisdiction of this Court. 14 (16) For the reasons mentioned above, the preliminary objection is unacceptable, and the writ petitions are certainly maintainable. (17) Mr. Sunil Nath and the other learned counsels for the petitioners, have raised similar contentions before this Court which are as under : (18) Dealing with the order dated 04.02.2010 passed under Section 21 of the Act, they have contended that Section 21 of the Act empowers the Board to grant consent to operate, to renew or to revoke the said consent order. Moreover, the said section provides a procedure which the Board is legally bound to follow before exercising the three powers mentioned above. Despite the fact that the petitioners had applied for the renewal of their consent order, the Board has refused to renew the consent order without following the procedure under Section 21 of the Act. Secondly, the Board has confused between the power to renew and the power to revoke the consent order. For example, in the case of M/s Bahubali Stone Crusher, the petitioner had applied for renewal of the consent to operate. However, the order dated 04.02.2010 passed under Section 21 of the Act makes it abundantly clear that the power to renew has been refused ostensibly on the ground that the petitioner who is not fulfilling the deficiencies pointed out by the Board in its notices issued previously. However, in case the petitioners failed to 15 remove the deficiencies, then the power of revocation can be exercised and not the power to refuse renewal of consent order. The order dated 04.02.2.10 passed under Section 21 of the Act suffers from the virus of non-application of mind and colorable exercise of power. Thirdly, the said order is based on surmises and conjunctures. Thus, it is legally untenable. (19) While challenging the directions given vide order dated 04.02.2010, passed under Section 31A of the Act, the learned counsel have raised the following contentions : firstly, according to the judgment of this Court dated 08.12.2009, the Board was directed to decide the case “afresh”. However, the Board has relied on its previous notices, and has dealt with the replies which were submitted earlier by the petitioners. Therefore, it has failed to decide the case “afresh”. Secondly, between the period 21.07.2009 and 04.02.2010, i.e. within seven months, much water had flown. Therefore, prior to issuing any directions under Section 31A of the Act, the Board, in fact, should have inspected the respective sites and should have issued fresh notices if any deficiencies were discovered. However, the Board has failed to do so. Instead relying on the previous notices and the replies thereto, it has passed the impugned order dated 04.02.2010. Thirdly, the notices issued by the Board on 16 different dates, namely 15.03.2008 and 02.01.2009, are not only vague, but most importantly are self- contradictory. According to the notice dated 15.03.2008, the petitioner, M/s Bahubali Stone Crusher, was informed that the exhaust pipe attached to DG Set is not of required height. However, in notice dated 02.01.2009, there was not a single word about any deficiency with regard to the DG Set. Yet, in the order dated 21.07.2009, the Board claimed that “acoustic enclosure was not provided with the DG Set of 320 KVA”. Fourthly, the notice dated 02.01.2009 is based on surmises and conjuncture, for example, merely because the State Government has terminated the mining lease in Kaman and Deeg areas of District Bharatpur, the Board has presumed that “there is no other source of raw material to feed the stone crushers except through illicit mining”. Moreover, without any evidentiary basis, the Board has claimed that the stone crushers are causing health hazard and nuisance to the pilgrims of the Brij Chorasi Kos Parikrama Marg. Furthermore, it has claimed that the stone crushers are not operating the pollution control measures regularly without specifying the particular pollution control measures which were not being observed while operating the unit. Thus, the notice is equivocal. Fifthly, since the notice was unclear, the petitioners were not informed of the exact case which 17 they had to meet out. Sixthly, although the Board claims that inspections were carried out and the order dated 21.07.2009 was passed on the basis of these inspections, but the fact remains that the inspections were carried out subsequent to the notice dated 02.01.2009. Seventhly and most importantly, despite the repeated request of the petitioners for supplying copies of the inspection report, the inspection report was never given to the petitioners. Therefore, the petitioners continue to be in the dark with regard to the case that they are supposed to