Supreme Court of India
Tejinder Kumar Jolly vs The State Of Uttarakhand on 18 November, 2021Author: Hrishikesh Roy

Bench: R. Subhash Reddy, Hrishikesh Roy








Hrishikesh Roy, J.

Heard Mr. V.K. Shukla, learned counsel for the

appellants. Also heard Mr. Rahul Verma, the learned

Additional Advocate General for the State/respondent

No.1, Mr. Mukesh Verma, learned counsel for Respondent

No.2 and Mr. Dhruv Mehta, learned senior counsel for

respondent Nos. 3 to 5.

2. The challenge here is to the order dated 27 th August,

2019 whereby the learned National Green Tribunal (for

short the ‘NGT’) opined that the O.A. No. 449 of 2019

registered Suo Moto by the Tribunal, would not require
Signature Not Verified

Rajni Mukhiadjudication in light of the order passed while disposing
Digitally signed by
Date: 2021.11.18
17:00:25 IST

of the O.A. No. 332 of 2017.

Page 1 of 14
3. The matter pertains to two stone crushers operated

by the respondent nos. 4 and 5 in Village Fatta Bangar at

Haldwani in Nainital District. The contention of the

appellant (based on the report dated 7th April, 2014 of

the Halka Patwari) is that the two stone crusher units

are operating in violation of the statutory environmental

norms, in close vicinity of their village and also at

near distance to the nearby schools and colleges.

4. The appellant no. 1 and his father Umrao Singh

Bhandari (now deceased) had moved the NGT for relocating

the two stone crushers alleging unbearable sufferings due

to noise and air pollution emanating from those units. A

complaint, in this regard was also filed on 10th

November, 2013 by the Principal of the Government Inter

College, Moti Nagar alleging that due to the stone

crushers operations, teaching is affected and the health

of the students and teachers of the college are

compromised. A like complaint was made to the District

Magistrate, Nainital by the appellants pointing out the

suffering of their co-villagers.

5. Following the above complaint, the Deputy Director,

Mining addressed a letter on 7th March, 2014 to the

Regional Officer, Pollution Control Board, Haldwani for

Page 2 of 14
taking necessary action. Thereafter inspection of the

area was made and the letter dated 26 th March, 2014 of

the Deputy Director (Mining) addressed to the SDM,

Haldwani indicated that the stone crushers are located in

the vicinity of residential houses and those are causing

air and noise pollution in the surrounding areas. The

report by the jurisdictional Halka Patwari indicated the

precise distance of the residential houses /

institutions, from the offending stone crusher units. It

was also revealed that both units are in close vicinity

of agricultural fields where wheat, sugar, soyabean crops

are grown. Another report of the Pollution Control Board

sent to the District Magistrate, Nainital suggest that

the respondent units do not have valid permission, under

the Water (Prevention and Control of Pollution) Act,

1981 and the Air (Prevention and Control of Pollution)

Act, 1974 and their request for permission was pending

for consideration. Moreover, the on-site inspection of

both Himalaya Stone Industries and the Himalaya Grits

reflected that acoustic enclosure on the DG set are not

installed and the stone crushers are operating beyond the

established norms and parameters.

Page 3 of 14
6. Noticing the inaction of the authorities, despite

the above reports, the appellants filed O.A. No. 332 of

2017 seeking closure /re-location of the stone crushers.

In the said proceeding, the NGT passed an interim order

on 10th August, 2017 restricting the operation of both

units during the day time from 7 a.m. to 6 p.m. This

interim order was modified on 19th September, 2017

whereby the NGT clarified that loading / unloading

operation can be carried out by the respondent units up

to 8 p.m.

7. On orders of the Tribunal, a joint inspection was

also carried out and the report thereof was placed before

the NGT. The appellants filed objection to the said

report whereafter, O.A. No. 332 of 2017 was disposed of

on 3.4.2018, with the following order :

“Heard the Learned Counsel for the
As the matter involves a short question
which is in dispute between the parties, we
propose to dispose of this Application at
this stage. After perusing the materials on
record, including the joint inspection report
filed by CPCB along with the policy of the
State Government, we pass the following

1. That Respondent No. 4 and 4(A) who are
running the stone crushing units within the
residential area/colony shall file an
undertaking before the Tribunal that as per
the policy of the State Government, they

Page 4 of 14
shall shift their stone crushing units to
some other place, beyond residential area by
30th November, 2018. The said undertaking
shall be filed within a week from today.

2. On filing of the aforesaid undertaking,
respondent-State/Pollution Control Board/its
authorities shall permit the respondent no. 4
and 4A to continue till 30th November, 2018,
subject to their compliance to all the
environmental laws.

3. In case the respondent no. 4 and 4A fail
to submit the undertaking within the time
stipulated, the respondent –State, including
Pollution Control Board, shall be free to
take steps against respondent no.4 and 4A for
removal of their stone crushing units

4. On filing of undertaking by respondent
no.4 and 4A, they would continue only upto
30th November, 2018. Thereafter, respondent-
State as well as Pollution Control Board
shall, proceed against the aforesaid
respondents, to ensure that their stone
crushing units are immediately stop and shall
not be permitted to operate.
Consequently, the Original Application
No. 332 of 2017 stands disposed of with the
aforesaid directions. There shall be no order
as to cost.”

8. The above order was challenged by respondent Nos. 3

to 5 in C.A. No. 3664 of 2018 and this Court set aside

the order and remitted the matter back to the NGT for

passing fresh speaking order, after hearing the parties.

9. The matter was listed thereafter on various dates

and in the meantime further pleadings were exchanged on

Page 5 of 14
the report of the Pollution Control Board, filed before

the NGT. The reports suggest that the noise level

emanating from both units is beyond the permissible

parameters. It is relevant to note that the subsequent

Notification issued on 09.06.2021 by the Uttarakhand

Government specifies silence zone upto 100 meters, from

educational institutions.

10. The main stand of the respondents before the NGT is

that they are old units operating since 1985 and they

should not be forced to relocate because of the later


11. In like cases of pre-existing industrial units, the

NGT in O.A. NO. 123/2014 (Himmat Singh Shekhawat Vs.

State of Rajasthan & Ors.) has pertinently declared the


“the environmental laws are laws enacted
for the benefit of public at large. They
are socio-beneficial legislation enacted
to protect the environment for the benefit
of the public at large. It is in
discharge of their constitutional
obligation that such laws have been
enacted by the parliament or by other
authorities in furtherance to the power of
delegated legislation wasted in them.
These legislations and directives are
incapable of being compared to the
legislation in the field of taxation or
criminal jurisprudence. These laws have
been enacted to protect the fundamental

Page 6 of 14
rights of the citizens. Thus, the
contention that the existing mining mine
holders would not be required to comply
with the requirements of environmental
laws, cannot be accepted. To
illustratively examine this aspect, we may
take hypothetical situation, not far from
reality. An industrial unit which had
been established and operationalized prior
to 1974, 1981 and/or 1986, was granted
permission under the laws in force and the
unit owner had made heavy investment in
making the unit operational. The Water
Act came into force in 1974, Air Act in
1981 and Environment Protection Act in
1986. All these acts deal with existing
units as well as units which are to be
established in future. These laws granted
time to the existing units to take all
anti-pollution measures and obtain the
consent of the respective pollution
control boards to continue its operation.
Failure to do so, could invite panel
action including, closure of industry
under these acts. The said units should
not be permitted to contend that since it
was an existing unit, it has earned a
right to pollute the environment and cause
environmental pollution, putting the life
of the others at risks, on the ground that
it was an existing unit and was operating
in accordance with law. Such a
contention, if raised, would have to be
notice only to be rejected. Similarly,
these Notifications or Office Memorandums,
having been issued under the environmental
laws, would equally apply to the existing
industries as well. The directions
contained in these notifications and
office memorandums which are otherwise
valid, would equally operate to the
existing mines as well as the newly
undertaken mining activities.”

Page 7 of 14
12. On 11.12.2018, after the Supreme Court remand, the

NGT passed a fresh order disposing of the O.A. No.

332/2017 whereby the onus was shifted to the State

Government to assess the functioning of the stone

crushers and in the event, they are found violating any

of the environmental norms, steps were to be taken for

closure of the offending units. The Government was also

asked to submit a compliance report to the NGT which was

directed to be registered as a fresh O.A. as soon as the

same is received.

13. The appellants then endeavored to ensure compliance

of the NGT’s directions in their O.A. No. 332 of 2017 but

when those efforts yielded nothing, they were compelled

to file the EP No. 2/2018 in the O.A. No. 332/2017, for

executing the NGT’s order dated 11.12.2018.

14. The Uttarakhand Government thereafter on 21.2.2019

filed a Report by way of an affidavit together with two

Joint Inspection Reports dated 1.1.2019 and 1.2.2019

respectively. In the report dated 1.2.2019, several

violations by the respondent units were highlighted but

steps were not taken to shut those down as per the NGT’s

earlier directions.

Page 8 of 14
15. The aforesaid Government Report dated 21.2.2019 was

then registered as a fresh O.A. No. 449/2019 in the NGT.

As the Report of the State Government led to registration

of a fresh OA, the appellants withdrew their Execution

Application No. 2/2018 in the earlier O.A. No. 332/2017.

16. Noticing the continued inaction of the State

Government, despite the adverse finding in the Report

submitted to the NGT on 21.2.2019, the appellants moved

this Court by filing the Civil Appeal Diary No.

11823/2019. The said matter was disposed of by this

Court on 15.4.2019 with the following Order:

“We do not find any good ground to
interfere with the impugned order passed
by the National Green Tribunal, the
Tribunal having directed the State
Government to assess the functioning of
respondents private units and in case the
said units are found violating the
policies dated 19.11.2016 and 20.11.2018,
to take appropriate action.”

17. Thereafter on 26.08.2019 when the O.A. No. 449/2019

was posted for hearing, the NGT passed the following

order under an erroneous impression: –

“The Learned Counsel for the
applicant submits that he may be
permitted to withdraw this original
application, so as to pursue his remedy
elsewhere, in accordance to law.

Page 9 of 14
Consequently, original application
no. 449/2019 is dismissed, as withdrawn.

Thereafter, the Learned Counsel for
respondent Mr. Vivek Gupta appeared and
submitted that the original application
filed by the applicant was O.A.
(332/2017) whereas the present O.A.
(449/2019) has been registered by the
office after receiving the report.
Therefore, the Counsel for the original
applicant is not to withdraw the original
application (449/2019) as the same has
not been filed by the original applicant.

In view of the above, list this case
in Court tomorrow i.e. 27th August,

18. As noted above, since the O.A. No. 449/2019 was not

filed by the appellants (who had filed the earlier O.A

No. 332/2017, which was already disposed of by the NGT),

it was observed that the withdrawal of the O.A. No.

449/2019 at the instance of the appellants was not proper

and accordingly, the said O.A. was directed to be listed

on the next date i.e. 27.08.2019. When the matter was

listed next on 27.08.2019, the following order came to be

passed which is the subject matter of challenge in this


“On account of some factual
misunderstanding, an order was passed
yesterday. However, after having come to
know the fact that original application
(449/2019) is not the one filed by the
applicant but has been so registered by the

Page 10 of 14
office on receipt of the report by the
respondents, in light of the order passed
while disposing original application
(332/2017), we ordered to list the matter in
court again.

We have perused the contents of the
original application (449/2019) and in the
facts and circumstances of the case, we are
of the view that no further adjudication is

Consequently, original application
(449/2019) stands disposed of, with no order
as to cost.”

19. The impugned order of the NGT, as extracted above,

clearly suggests that the O.A. No. 449/2019, which was

registered in pursuance to the adverse Govt. Report

against the respondents-stone crushers, was never

adjudicated on merit. The issues were never taken to its

logical end despite the clear finding in the Government

Report that the respondents 4 & 5 are operating in

violation of the Government Policy and the Environmental

norms and ameliorative steps were needed. The contesting

counsel for the parties are in agreement on the aspect

that the NGT should have decided the O.A. 449/2019 on

merit, instead of closing the proceeding, as a disposed

of matter. Decision on merit was particularly expected

since the NGT itself on 11.12.2018 (while disposing of

Page 11 of 14
O.A. No. 332/2017), had directed the State Government to

assess the functioning of the stone crushers, and to take

action for their closure in the event they are found

violating any of the policy parameters or environmental

norms. To facilitate appropriate action, the fresh O.A.

No. 449/2019 was directed to be registered, soon after

the Government Report was produced before the NGT.

20. There can be no quarrel with the proposition that

public interest would warrant action against polluting

units. This is equally applicable to those industrial

units which have been functioning since long. Adherence

to the environmental and pollution norms cannot be

compromised for factual misunderstandings or due to

cryptic determination. Orders which have direct

repercussions on the right to clean environment must

surely be the outcome of careful scrutiny and substantive

deliberation, as per the applicable facts. The NGT was

required to address the grievance on the adverse health

impacts on local populace by the stone crushers. The

Tribunal itself had recognized that orders were necessary

to resolve the issue. The factual determination had

reflected the need to ensure heightened compliance with

the environmental norms for the concerned area. On

13.01.2015 in the related O.A. No. 123 of 2014 (Himmat

Page 12 of 14
Singh Shekhawat Vs. State of Rajasthan), the Tribunal

made it clear that even the pre-existing units must fall

in line. As noted before, the subsequent O.A. 449/2019

was ordered to be registered for consideration of the

report requisitioned by the NGT itself. It was also

clarified that the O.A. 449/2019 was based upon the

Report furnished to the Tribunal. In this backdrop, the

action needed on the Report, should have been indicated.

At the very least, the Tribunal would be expected to

ascertain whether substantial compliance of its earlier

orders was made by the two stone crushing units of the


21. We are therefore of the opinion that the view taken

in the impugned order to the effect that the O.A.

No.449/2019 does not require adjudication, does not

appear to be in order and the same is therefore set

aside. Consequently, the O.A. No.449/2019 is restored

and ordered to be adjudicated on merit. The NGT should

however render its decision without being influenced by

the observations made in this judgment. It is ordered

accordingly. The appeal stands allowed, leaving the

parties to bear their own cost.


Page 13 of 14
New Delhi;
November 18, 2021

Page 14 of 14


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