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Uday Kumar Crushings Rep. By Its … vs A.P. Pollution Control Board, … on 11 December, 1995

Andhra High Court
Uday Kumar Crushings Rep. By Its … vs A.P. Pollution Control Board, … on 11 December, 1995
Equivalent citations: 1996 (1) ALT 470
Bench: M H Ansari


JUDGMENT

Mohammed Habeeb Shams Ansari, J.

1. The matter in controvery is one arising under AIR (prevention and Control of Pollution Act) 1981 (for short “The Act”). The Petitioner has in this Writ Petition challenged the orders dated 22-11-1995 issued by the 1st respondent to the petitioner to stop all industrial activities with immediate effect from the date of the said order.

2. The Act was enacted to provide for the prevention, control and abatement of air pollution and to take appropriate steps for the preservation of the natural resources of the Earth, which among other things, include the preservation of the quality of air and control of air pollution and matters connected therewith. Under Section 3 of the Act, the Central Board has been constituted and under Sections 4 and 5 State Boards have been constituted. Under Section 16, the functions of the Central Board have been enumerated while under Section 17, the functions of the State Board are specified which inter alia include powers to inspect any Control Equipment, Industrial plant for manufacturing process and to give by order such direction to such persons as it may consider necessary to take steps for prevention, control or abatement of air pollution to inspect air pollution control areas, assess the quality of air therein and take steps for prevention or abatement of air pollution in such areas, to lay down standards for emission of air pollutants into atmosphere from industrial plants etc., Section 19 of the Act empowers the State Government to declare areas within the State as air pollution control area or areas for the purposes of the Act. Section 21 of the Act lays down the restrictions for establishment or operation of any industrial plant in an air pollution control area. The said Section 21 in so far as it is relevant for the purpose of these proceedings is extracted :

21 (1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area:

provided that a person operating any industrial plant in any air pollution control area immediately before the commencement of Section 9 of the Air (Prevention and Control of Pollution) Amendment Act,1987, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application.

(3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in Sub-section(1) and in making any such inquiry, shall follow such procedure as may be prescribed.

(4) within a period of four months after the receipt of the application for consent referred to in Sub-section (1), the State Board shall, by order in writing, and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse consent.

Section 37of the Act lays down that whoever fails to comply with the provisions of Section 21 shall be punishable with imprisonment and in case the failure continues, with a fine.

3. In so far as establishment of any industrial unit in the pollution control area is concerned Section 21 mandates that no person shall without the previous consent of the State Board establish or operate any industrial plant in an air pollution control area. The procedure prescribed for obtaining such consent has been laid down in the said Section and the rules made thereunder. The normal procedure being that before establishing an industrial unit, consent of the establishment is to be obtained from the State Board. After completition of erection of building, plant etc., the State Board issues the second no objection certificate for undertaking the trial run to know the efficacy of air pollution control equipment etc., and thereafter the State Board grants consent subject to such terms and conditions as are required in the individual cases. The petitioner, in the instant case, established the stone crushing unit after obtaining approval from the Town Planning authorties – Medical and Health, Office of Gram Panchayat for establishing the said unit. The petitioner applied for a no objection certificate under Section 21 from the State Board vide the petitioner’s application dated 29-6-1994. According to the petitioner, the respondents neither communicated any rejection nor approval and instead issued orders under Section 31A of the Act for closing down the industry, which is the order impugned in these proceedings. The respondents on the other hand countered the said allegations in the counter affidavit filed on behalf of Respondent No. 1 wherein it is stated that the petitioner has not complied with the requirements of obtaining the consent of the State Board and established the Stone Crushing Unit without obtaining such consent and that the application submitted for consent of the State Board by the petitioner was rejected through the Orders dated 8-7-1994 and the same not having been questioned or appealed against by the petitioner, the same have become final. Sri S.V. Bhatt, learned appearing for the respondent contended that the operation of the petitioner’s unit is illegal and liable for penal action under Section 37 of the Act.

4. Firstly, Sri C. Malla Reddy, learned counsel for the petitioner contended that by virtue of the proviso to Section 21, extracted above, the petitioner is entitled to carry on its operation in view of the fact that an application for such consent has been made. I cannot accept the said contention and in my view the proviso has no application to the petitioner’s case. The proviso is applicable to industries which were in existence before the commencement of Section 9 of the Act and continuing to operate after the Act has come into force shall be entitled to carry on its operations for a period of three months or till the disposal of the application made under Section 21 is pending consideration. The proviso is in the nature of a Transitory provision and is applicable to industrial plants established prior to the Act coming into force.

5. Sri C. Malla Reddy, learned counsel for the petitioner contended that the petitioner has taken all necessary steps so as to prevent air pollution, if any, caused due to running of the said unit and that the petitioner is prepared to abide by all or any conditions imposed by the respondents. Sri C. Malla Reddy, adverting to the contention of the 1st respondent that the Board shall not allow any stone crusher unit within 500 mts. of any National High Way and that for the said reason, the consent in respect of the Petitioner’s unit was rejected on 8-7-1994 contended that the aforesaid contention of the first respondent is not tenable since there are three other industries in the area operating stone crushing units and that there are no complaints of whatever nature either from any public or any public authority. It was further contended that the impuged order has the effect of violating the fundamental rights under Articles 14,19 and 21 of the Constitution of India.

6. As noticed, the Act is intended to provide for prevention, control and abatement of air pollution for the establishment. Section 21 regulates establishment and operation of industrial plants in air pollution control area enjoining that no person shall without the previous consent of the State Board establish or operate any industrial plant in an air pollution control area and under Sub-clause (4) thereof, the State Board after considering the application grant consent applied for subject to such terms and conditions and for such period as may be specified in the order, or refuse consent. The right to carry on trade or business envisaged under Article 19(1) (g) is subject to statutory regulation. When the statute prescribes restrictions subject to conditions specified therein to establish or continue to operate even the existing industrial plants situated within the air pollution control area, the right to carry on trade or business is subject to the provisions of the Act. Section 21 of the Act puts a restrictions on the right to establish or operate any industrial plants in the pollution control area except with the consent of the State Board and subject to certain conditions as may be specified in the order granting consent. The avowed object of the Act being the preservation of the natural resources of the Earth which among other things include the preservation of the quality of the air and control of air pollution, is a matter of great public interest. It is evident that the Act intends to impose restrictions and controls on establishment of industries or industrial plant in air pollution control areas and the same has to be held to be founded in public interest. The individual interest of the petitioner has therefore to yield to the said public interest. The petitioner has not complied with the requirements prescribed in Section 21 of the Act and has established the unit without obtaining consent of the State Board. The contention of learned counsel for the petitioner that the petitioner had applied for such consent and not having received the same nor any rejection order cannot for that reason be absolved of the requirements of the provisions contained in Section 21 of the Act. The petitioner does not have any right to establish the industrial unit without previous consent of the Board. The establishment of the Crushing Unit by the petitioner is thus one without a valid consent. The petitioner cannot therefore be permitted, in public interest to continue to operate the industrial unit which has been established in contravention of Section 21 of the Act. The impunged order is one based under Section 31A of the Act which empowers the State board to direct the closure of any industry and stoppage of supply of electricity.

7. In the circumstances, it has been to be held that the petitioner cannot be permitted to continue the operation of the Stone crushing unit and the petitioner cannot seek judicial assistance in that behalf.

8. However, the contention of Sri C. Malla Reddy, learned counsel for the petitioner that the impugned order has been issued without affording an opportunity of hearing the petitioner and that the same is in violation of principles of natural justice, merit some consideration especially in view of the averments made in the affidavit filed in support of the Writ petition and reiterated by Sri C. Malla Reddy, learned counsel for the petitioner that the petitioner has already taken necessary steps so as to prevent air pollution and that the petitioner is prepared to abide all or any conditions imposed by the respondents.

9. In the circumstances, this Writ Petition is disposed of at the admission stage with a direction to the respondents to consider the request of the petitioner and to examine the feasibility or otherwise of grant of consent after inspecting the facilities and the equipment installed by the petitioner for controlling air pollution. The petitioner shall accordingly be afforded an opportunity of being heard in the matter and also placing such material as the petitioner may consider necessary for consideration of the matters before the 1st respondent who shall deal with and dispose of the same expeditiously and in accordance with law. The contention of the learned counsel for the petitioner that the guidelines restricting establishment of stone crushing units within 500 mts from the National High Way do not have statutory force, can also be raised before and considered by the 1st respondent. However,pending enquiry, as already held, the petitioner is not entitled to any relief in this Writ Petition for enabling the Petitioner to operate the stone crushing unit.

10. Accordingly, this Writ Petitioner is disposed of to be debted with a direction to the respondents to conduct an enquiry in respect of the petitioner’ unit and if considered appropriate or feasible to grant the consent for operating the stone crushing unit subject to such conditions as may be appropriate and in accordance with law within a period of two months from the date of receipt of a copy of this Order and for that purpose, the petitioner shall co-operate with the respondent authorities for expeditious disposal of the said enquiry.

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