IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 1103 of 2011
M/s Shri Ganesh Minerals ...... Petitioner
Versus
The State of Jharkhand & others ...... Respondents
CORAM: HON'BLE MR. JUSTICE D.N. PATEL
For the Petitioner : M/s Prem Pujari Roy, Saurav Arun, Advocates
For the UOI : Md. Mokhtar Khan, ASGI
For the RespondentState : J.C. to Sr. S.C.I
For Respondent Nos. 3 : Mr. A.K. Pandey, Advocate
st
02/Dated: 1 July, 2011
1.
Counsel for the petitioner seeks leave to join ‘Union of India through
Ministry of Environment and Forest, New Delhi’ as party respondent no. 4.
2. Permission, as prayed for, is granted for joining the aforesaid party as
respondent no. 4.
3. Necessary amendment shall be carried out by read ink during course
of the day.
4. Notice to the newly joined party respondent no. 4.
5. Md. Mokhtar Khan, learned Assistant Solicitor General of India
waives notice on behalf of respondent no. 4 on the condition that a
copy of the writ petition with annexures shall be supplied to him
today.
6. Having heard counsel for both the sides, Rule.
7. So far as question of interim relief is concerned, looking to the facts
and circumstances of the case, especially looking to paragraph nos. 9 and
10 of the counter affidavit, filed by the Union of India in W.P. (C) No. 45 of
2011, as quoted herein below, it appears that there is, prima facie, a case in
favour of the petitioner.
“9. It is submitted that the Ministry of Environment & Forests has issued a
moratorium on 13.1.2010 restricting environmental clearances for new
polluting industries/projects in 43 critically polluted industrial clusters which
include only one cluster i.e. Dhanbad in the State of Jharkhand and not the
Barajamada industrial cluster where the iron ore crusher of the petitioner is
located.
10. It is submitted that the notification dated 27.7.2010 issued by Forest and
Environment Department, Govt. of Jharkhand, Ranchi is not in consonance
with O.M. dated 13.1.2010 issued by the Ministry of Environment & Forest.”
(Emphasis supplied)
8. The State of Jharkhand has issued a direction dated 27th July, 2010,
2.
which has been referred in the aforesaid paragraph nos. 9 and 10 of the
counter affidavit, mainly relying upon the office memorandum, issued by
the Central Government dated 13th January, 2010. Thus, it appears that the
direction issued by the State Government dated 27th July, 2010 is based
upon some misinterpretation or misreading of the office memorandum,
issued by the Central Government dated 13th January, 2010. Therefore, the
subsequent order, issued by the Jharkhand State Pollution Control Board at
Annexure2 to the memo of this petition is also sailing in the same boat,
because this order at Annexure2 has been passed in August, 2010, based
upon the direction, issued by the State of Jharkhand dated 27th July, 2010.
Thus, there is a prima facie case in favour of the present petitioner.
Moreover, looking to the requirement of Section 21(4), if there is any
breach of any of the conditions upon which, the consent was given by the
Pollution Control Board, then the State Pollution Control Board can refuse
further consent after expiry of the earlier consent. In the facts of the
present case, in advance, the State has declared its intention not to grant
consent or not to renew the consent, without pointing out, any breach of
any of the conditions. Moreover, as per the 2nd Proviso to Subsection 4 of
Section 21 of the Air (Prevention and Control of Pollution) Act, 1981,
before refusing further consent under the 1st Proviso of Subsection 4 of
Section 21, a reasonable opportunity of being heard ought to have been
given to the petitioner. Prima facie, looking to the facts of the case, it
appears that the State Government is not alleging any breach of the
condition of the consent, previously given by the respondentBoard, nor
any opportunity of being heard has been given by the respondentBoard to
the petitioner before issuing the direction, as stated in the impugned order
in August, 2010. Balance of convenience is also in favour of the petitioner
as the petitioner, which is a working unit, has never received any notice for
breach of any of the conditions, upon which the consent was previously
given by the respondentBoard and the petitioner has invested sizable
amount towards the establishment of the crushing unit. In view of these
facts, an irreparable loss will also be caused to the petitioner, if the stay, as
prayed for, is not granted.
9. I therefore, stay the operation, implementation and execution of the
impugned order, passed by the respondentsJharkhand State Pollution
3.
Control Board, dated 21st November, 2009, which is at Annexure2 to the
memo of this writ petition, till the next date of hearing.
10. Counsel for the respondentUnion of India, respondentState and
other respondents are seeking time to file their respective counter
affidavits.
11. Time, as prayed for, is granted.
12. Rule is made returnable on 25th July, 2011.
13. I hereby, direct the petitioner to continue with the iron ore crushing
activities till the next date of hearing.
14. It is expected from the Jharkhand State Pollution Control Board that
on or before the next date of hearing, it will file the counter affidavit and if
the Board is relying upon any document, copy of the same will also be filed
on or before the next date of hearing, so that the same may be considered
by this Court, on the next date of hearing.
15. This matter will be heard alongwith W.P.(C) No. 3277 of 2011.
(D.N. Patel, J)
VK/