IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 152 of 2008 (M/S) M/s Amit Gram Udyog Sansthan, Village Banjarawala, Haridwar and another. …… Petitioners. Versus Environment Appellate Authority, Dehradun [Established under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act 1974], Dehradun and another. … Respondents. WITH (1) Writ Petition No. 151 of 2008 (M/S) M/s Gangotri Gram Udyog Sansthan, Shaidwala Grant, Haridwar and another. …… Petitioners. Versus Environment Appellate Authority, Dehradun [Established under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act 1974], Dehradun and another. … Respondents. (2) Writ Petition No. 153 of 2008 (M/S) M/s Garhwal Stone Crusher Sansthan, Village Banjare Wala, Haridwar and another. …… Petitioners. Versus Environment Appellate Authority, Dehradun [Established under Air (Prevention and Control of Pollution)Act, 1981 and Water (Prevention and Control of Pollution) Act 1974], Dehradun and another. … Respondents. (3) Writ Petition No. 154 of 2008 (M/S) M/s Durga Gram Udyog Samiti, Banjare wala, Haridwar and another. …… Petitioners. Versus 2 Environment Appellate Authority, Dehradun [Established under Air (Prevention and Control of Pollution)Act, 1981 and Water (Prevention and Control of Pollution) Act 1974], Dehradun and another. … Respondents. (4) Writ Petition No. 155 of 2008 (M/S) M/s Shiv Shakti Gramo Udyog Sansthan, Brahm Niketan, Gill Colony, Saharanpur and another. …… Petitioners. Versus Environment Appellate Authority, Dehradun [Established under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act 1974], Dehradun and another. … Respondents. Date July 31, 2008. Hon’ble B.S.Verma, J. Sri Alok Singh, Senior Advocate, with Sri Aditya Singh, learned counsel for the petitioners and Sri Sudhir Kumar, learned counsel for the respondents. Since the controversy involved in all these five writ petitions is similar, therefore, for the sake of convenience all these writ petitions are being decided by the common order. Writ Petition No. 152 of 2008 (M/S) has been filed for the following reliefs:- a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 13-04-2007 passed by respondent no.2 and judgment/order dated 4-1-2008, passed by respondent no.1 in Appeal No. 1 of 2007 (U/S 31 Air (Prevention and Control of Pollution) Act, 1981) and Appeal No. 8 of 2007 3 (U/S 28, Water (Prevention and Control of Pollution) Act 1974) [Annexure nos. 1 and 2 respectively]. b) Issue a writ, order or direction in the nature of certiorari quashing the condition of putting prohibition that no Stone Crusher shall be established/run within 5 kms. from the boundary of Rajaji National Park, as mentioned in condition no. 22 of NOC dated 28.1.03 (Annexure no. 4 herein). c) Issue mandamus commanding the respondent no. 2 to issue No-Objection Certificate to the petitioners having ignored condition no. 22 of NOC dated 28.1.03 (Annexure no. 4 herein) putting restriction not to establish Stone Crusher within 5 kms. from the Rajaji National Park. d) Issue, any other order or direction which this Hon’ble High Court may deem fit and proper in the facts and circumstances of the case. e) To award cost of the petition to the petitioner. According to the petitioners, petitioner no. 1 has established Stone Crusher in village Banjara Wala on 28-1-2003 after having obtained No Objection certificate from the Pollution Control Board as well as from the District Magistrate, District Industrial Centre and Forest Department, vide Annexure No. 4. The petitioners have taken all the measures to stop pollution as required by Pollution Control Board. Writ Petition No. 151 of 2008 (M/S) has been filed for the following reliefs:- a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 13-04-2007 passed by respondent no.2 and judgment/order dated 4-1-2008, passed by respondent no.1 in Appeal No. 4 of 2007 (U/S 31 Air (Prevention and Control of Pollution) Act, 1981) and Appeal No. 10 of 2007 (U/S 28, Water (Prevention and Control of Pollution) Act 1974) [Annexure nos. 1 and 2 respectively]. 4 b) Issue a writ, order or direction in the nature of certiorari quashing the condition of putting prohibition that no Stone Crusher shall be established/run within 5 kms. from the boundary of Rajaji National Park, as mentioned in condition no. 13 of NOC dated 21.6.03 (Annexure no. 4 herein). c) Issue mandamus commanding the respondent no. 2 to issue No-Objection Certificate to the petitioners having ignored condition no. 13 of NOC dated 21-6-03 (Annexure no. 4 herein) putting restriction not to establish Stone Crusher within 5 kms. from the Rajaji National Park. d) Issue, any other order or direction which this Hon’ble High Court may deem fit and proper in the facts and circumstances of the case. e) To award cost of the petition to the petitioner. According to the petitioners, petitioner no. 1 has established Stone Crusher in village Banjara Wala on 21-6-2003 after having obtained No Objection certificate from the Pollution Control Board as well as from the District Magistrate, District Industrial Centre and Forest Department, vide Annexure No. 4. The petitioners have taken all the measures to stop pollution as required by Pollution Control Board. Writ Petition No. 153 of 2008 (M/S) has been filed for the following reliefs:- a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 13-04-2007 passed by respondent no.2 and judgment/order dated 4-1-2008, passed by respondent no.1 in Appeal No. 2 of 2007 (U/S 31 Air (Prevention and Control of Pollution) Act, 1981) and Appeal No. 7 of 2007 (U/S 28, Water (Prevention and Control of Pollution) Act 1974) [Annexure nos. 1 and 2 respectively]. b) Issue a writ, order or direction in the nature of certiorari quashing the condition of putting prohibition that no 5 Stone Crusher shall be established/run within 5 kms. from the boundary of Rajaji National Park, as mentioned in condition no. 15 of NOC dated 2-8-02 (Annexure no. 4 herein). c) Issue mandamus commanding the respondent no. 2 to issue No-Objection Certificate to the petitioners having ignored condition no. 15 of NOC dated 2-8-02 (Annexure no. 4 herein) putting restriction not to establish Stone Crusher within 5 kms. from the Rajaji National Park. d) Issue, any other order or direction which this Hon’ble High Court may deem fit and proper in the facts and circumstances of the case. e) To award cost of the petition to the petitioner. According to the petitioners, petitioner no. 1 has established Stone Crusher in village Banjara Wala on 2-8-2002 after having obtained No Objection certificate from the Pollution Control Board as well as from the District Magistrate, District Industrial Centre and Forest Department, vide Annexure No. 4. The petitioners have taken all the measures to stop pollution as required by Pollution Control Board. Writ Petition No. 154 of 2008 (M/S) has been filed for the following reliefs:- a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 13-04-2007 passed by respondent no.2 and judgment/order dated 4-1-2008, passed by respondent no.1 in Appeal No. 6 of 2007 (U/S 31 Air (Prevention and Control of Pollution) Act, 1981) and Appeal No. 12 of 2007 (U/S 28, Water (Prevention and Control of Pollution) Act 1974) [Annexure nos. 1 and 2 respectively]. b) Issue a writ, order or direction in the nature of certiorari quashing the condition of putting prohibition that no Stone Crusher shall be established/run within 5 kms. from the 6 boundary of Rajaji National Park, as mentioned in condition no. 15 of NOC dated 22-3-2001 (Annexure no. 4 herein). c) Issue mandamus commanding the respondent no. 2 to issue No-Objection Certificate to the petitioners having ignored condition no. 15 of NOC dated 22-3-2001 (Annexure no. 4 herein) putting restriction not to establish Stone Crusher within 5 kms. from the Rajaji National Park. d) Issue, any other order or direction which this Hon’ble High Court may deem fit and proper in the facts and circumstances of the case. e) To award cost of the petition to the petitioner. According to the petitioners, petitioner no. 1 has established Stone Crusher in village Banjara Wala on 22-3-2001 after having obtained No Objection certificate from the Pollution Control Board as well as from the District Magistrate, District Industrial Centre and Forest Department, vide Annexure No. 4. The petitioners have taken all the measures to stop pollution as required by Pollution Control Board. Writ Petition No. 155 of 2008 (M/S) has been filed for the following reliefs:- a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 13-04-2007 passed by respondent no.2 and judgment/order dated 4-1-2008, passed by respondent no.1 in Appeal No. 5 of 2007 (U/S 31 Air (Prevention and Control of Pollution) Act, 1981) and Appeal No. 11 of 2007 (U/S 28, Water (Prevention and Control of Pollution) Act 1974) [Annexure nos. 1 and 2 respectively]. b) Issue a writ, order or direction in the nature of certiorari quashing the condition of putting prohibition that no Stone Crusher shall be established/run within 5 kms. from the boundary of Rajaji National Park, as mentioned in condition no. 15 of NOC dated 26-3-02 (Annexure no. 4 herein). 7 c) Issue mandamus commanding the respondent no. 2 to issue No-Objection Certificate to the petitioners having ignored condition no. 15 of NOC dated 26-3-02 (Annexure no. 4 herein) putting restriction not to establish Stone Crusher within 5 kms. from the Rajaji National Park. d) Issue, any other order or direction which this Hon’ble High Court may deem fit and proper in the facts and circumstances of the case. e) To award cost of the petition to the petitioner. According to the petitioners, petitioner no. 1 has established Stone Crusher in village Banjara Wala on 26-3-2002 after having obtained No Objection certificate from the Pollution Control Board as well as from the District Magistrate, District Industrial Centre and Forest Department, vide Annexure No. 4. The petitioners have taken all the measures to stop pollution as required by Pollution Control Board. The impugned orders have been challenged on the ground that no area from the boundary of Rajaji National Park has been declared as eco-fragile zone by the Central Government prohibiting industries and Stone Crushers. It has been further stated in paragraph no. 11 of the writ petition that stone crushers are not being deployed in the protected area in gross violation of Wild Life Protection Act, Forest (Conservation) Act and Environment Protection Act. Petitioners have further stated that no notification was issued by the Central Government under Section 3 of the Environment Protection Act read with Rule 5 of the Environment Protection Rules, 1986 and the power to issue lies with the Central Government imposing prohibitions or restriction in any particular area and till date, no such restriction or prohibition has been imposed regarding the setting up and running of the stone crushers around the Rajaji National Park in District Haridwar within 5 kms. 8 According to the petitioners, the Central Government in exercise of power under Section 3(2)(v) of Environment Protection Act, 1986 read with Rule 5 of the Environment Protection Act, 1986 has not issued any notification prohibiting the stone crusher in the area. The petitioners have also filed supplementary affidavit. In paragraph nos. 4 and 5, the following averments have been made:- “4. That petitioner, during the pendency of the present petition, could lay hand on NOC dated 29-04-06 and 7-04-06 granted to two different Stone Crushers viz. M/s Altaika Industries (Stone Crusher) and M/s Friends Kalyan Samiti and in both the No- Objection Certificates, no condition is mentioned that Stone Crusher could be established and operated only beyond 5 km. from the boundary of Rajaji National Park. The treatment given by respondent no. 2 to the petitioner is not only arbitrary, but same is unjustified and discriminatory in nature and violates the basic spirit of Article 14 of the Constitution of India. Copies of NO-Objection Certificates obtained by Sri Jasveer Singh under the Right to Information Act. True and correct copies of the information obtained by Jasveer Singh under Right to Information Act is being hereby marked and annexed as ANNEXURE NO. S-1(Colly.). 5. That deponent respectfully submits that M/s Friends Kalyan Samiti is operating Stone Crusher in the same village while M/s M/s Altaika Industries is operating Stone Crusher in village Daulatpur within 5 kms. from the boundary of Rajaji National Park. Had there been any restriction to establish and run Stone Crusher within 5 kms., No-objection certificate could not have granted to two different units as mentioned in previous paragraph. As stated earlier, since Central Govt. has not declared Eco-Fragile Zone as required under Section 3 of Environment Protection Act, 1986 read with Rule 5 of Environment Protection Rules, 1986 and policy of 9 State Govt. dated 17-10-02 speaking about distance of 500 mts., hence, no restriction of 5 km. could have been imposed by respondent no.2 in the matter of the petitioner.” On behalf of the respondents, counter affidavit has been filed. In paragraph no. 5, the following averments have been made:- “5. That contents of para 3, 4 and 5 of the writ petition are not admitted as written. Any entrepreneur, desirous of setting up any industry, has to seek consent from the respondent no.2 and has to observe all the terms and conditions of such consent while establishing the industry. After the industry is established, the entrepreneur is further required to obtain consent for running the industry. If the terms and conditions of the consent to establish the industry are observed, the consent to operate is granted by the respondent no. 2. However it is submitted that the consent granted by the respondent no. 2 can be revoked at any time, if the respondent no. 2 is satisfied that the consent was obtained by the industrialist by concealing material facts or supplying false information. It is further submitted that the respondent no. 2 can impose terms and conditions in the consent, according to the nature of the industry to be established, surrounding environment and the protection required for inhibiting population and nature. The alleged consent order dated 20.7.06 has been obtained by playing fraud upon the respondent Board since the terms and conditions as stated in the consent to establish order/NOC have been violated especially the condition imposed regarding distance of 5 kms from Rajaji National Park was violated apart from violation of other conditions and accordingly impugned directions have been issued. The respondents rely upon their W.S./Objections filed before the Ld. Appellate Authority marked and annexed herewith as annexure- CA-1.A and the letter for consent to establish & its terms & conditions.” 10 Rejoinder Affidavit has been filed by the petitioners, wherein it has been stated that all the terms and conditions of the NOC/consent have been observed by petitioners and they have neither concealed any material facts nor have supplied any false information. The petitioner no. 1 has established stone crusher in village Banjara Wala on 28-1-2003 after having obtained No- objection certificate from the Pollution Control Board as well as from the District Magistrate, District Industrial Centre and Forest Department. The team of experts conducted test of ambient air monitoring and the emission were found within prescribed norms. It was also stated that the Central Pollution Control Board has prescribed 5 measures to be taken by the Stone Crushers for running the stone crushers- (1) Dust containment cum suppression system for the equipment, (ii) construction of wind breaking walls, (iii) construction of the metalled roads within the premises, (iv) regular cleaning and wetting of the ground within the premises, (v) growing of a green belt along the periphery. It was further stated that till now no such notification has been passed by the Central Government that no mining or crushing activity shall be carried on in Eco Fragile Zone notified by National Board of Wild Life around Rajaji National Park and that the stone crusher of the petitioners does not fall within Eco-Fragile Zone. NO area from the boundary of Rajaji National Park has been declared as eco-fragile zone by the Central Government prohibiting industries and Stone Crushers. It has also been stated that the State of Uttarakhand has set up an industrial area, namely, S.I.D.C.U.L. within 1-2 kms. of the Rajaji National Park. In paragraph no. 5 of the rejoinder affidavit, it has been stated that the State of Uttarakhand vide their mining policy, issued on 17.10.02 has decided to permit the Stone Crushers which are at least 500 Mts. Away from school /college /hospital /temple/bridge/canal and further from any river/protected forest and National Highway and State Highways. In paragraph no. 8 of the rejoinder affidavit, it has been stated that the respondent no. 2 is not competent to impose any restriction not to establish/run Stone Crushers within 5 kms. from the boundary of Rajaji National Park. 11 The restriction, if any, can be imposed only by Central Government or by State Government as the case may be. I have heard learned counsel for the parties and perused the record including the memo of writ petitions, supplementary affidavit, the counter affidavits and the rejoinder affidavits along with their annexures. The controversy to be decided in the present petitions is whether the Central Government has power to issue notification to impose such condition or the respondent no. 2-Pollution Board itself can impose restrictions about particular area, i.e. within 5 kms. from the boundary of Rajaji National Park. Learned counsel for the petitioners has relied upon the provision of Section 3 of the Environment (Protection) Act 1986, which reads as under:- “3. Power of Central Government to take measures to protect and improve environment.-(1) Subject to the provisions of this Act, the Central Governments shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and improving the quality of the environment and preventing, controlling and abating environmental pollution. (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely: (i) co-ordination of actions by the State Governments, officers and other authorities- (a) under this Act, or the rules made thereunder; or (b) under any other law for the time being in force which is relatable to the objects of this Act; 12 (ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution; (iii) laying down standards for the quality of environment in its various aspects; (iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever: Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources; (v) restriction of areas in which any industries, operations, or processes, or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards; (vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents; (vii) laying down procedures and safeguards for the handling of hazardous substances; (viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution; (ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution; (x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials and substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution; (xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act; 13 (xii) collection and dissemination of information in respect of matters relating to environmental pollution; (xiii) prevention of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution; (xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act. (3) The Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under Sec. 5 of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures.” Rule 5 of the Environment (Protection) Rules, 1986, reads as under:- “5. Prohibition and restriction on the location of industries and the carrying on processes and operations in different areas.- (i) Standards for quality of environment in its various aspects laid down for an area. (ii) The maximum allowable limits of concentration of various environment pollutants (including noise) for an area. (iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted. 14 (iv) The topographic and climatic features of an area. (v) The biological diversity of the area which, in the opinion of the Central Government, needs to be preserved: (vi) Environmentally compatible land use. (vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted. (viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified, as such under the Wild Life (Protection) Act, 1972, or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international conference, association or other body. (ix) Proximity to human settlements. (x) Any other factors as may be considered by the Central Government to be relevant to the protection of the environment in an area. (2) While prohibiting or restricting the location of industries and carrying on of processes and operartions in an area, the Central Government shall follow the procedure hereinafter laid down. (3)(a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on of processes and operations in an area, it may by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so. (b) Every notification under Cl.(a) shall give a brief description of the area, the industries, operations, processes in the area about which such notification pertains and also specify that reasons for the imposition of prohibition or restrictions on the location of the industries and carrying on of processes or operations in that area. (c) Any person interested in filing an objection against the imposition of prohibition or restriction on carrying on of processes or operations as notified under Cl.(a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette. (d) The Central Government shall, within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette, consider all the objections received against such notification and may within [three hundred and sixty five