IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 3823 of 2011
M/s Budhdeo Minerals, Singhbhum West ...... Petitioner
Versus
The State of Jharkhand & others ...... Respondents
CORAM: HON'BLE MR. JUSTICE D.N. PATEL
For the Petitioner : Mr. Vishal Kumar Tiwari, Advocate
For the RespondentState : J.C. to A.G.
For Respondent Nos. 4 & 5 : Mr. A.K. Pandey, Advocate
For the UOI : Md. Mokhtar Khan, ASGI
th
02/Dated: 15 July, 2011
1.
Having heard counsel for both the sides, Rule.
2. 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)
3. The State of Jharkhand has issued a direction dated 27th July, 2010,
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
Annexure4 to the memo of this petition is also sailing in the same boat,
because the impugned order passed in August, 2010, based upon the
direction, issued by the State of Jharkhand dated 27th July, 2010. Thus,
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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.
4. I therefore stay the operation, implementation and execution of the
impugned order, passed by the respondentsJharkhand State Pollution
Control Board, dated 30th August, 2010, which is at Annexure4 to the
memo of this writ petition, till the next date of hearing.
5. Counsel for the respondentUnion of India, respondentState and other
respondents are seeking time to file their respective counter affidavits.
6. Time, as prayed for, is granted.
7. Rule is made returnable on 25th July, 2011.
8. I hereby, direct the petitioner to continue with the iron ore crushing
activities till the next date of hearing.
9. 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
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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.
10. This matter will be heard along with W.P.(C) No. 3277 of 2011.
(D.N. Patel, J.)
NKC