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Supreme Court of India
Tejinder Kumar Jolly vs The State Of Uttarakhand on 18 November, 2021Author: Hrishikesh Roy
Bench: R. Subhash Reddy, Hrishikesh Roy
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 218 OF 2021
TEJINDER KUMAR JOLLY & ANR. APPELLANT(S)
VERSUS
THE STATE OF UTTARAKHAND & ORS. RESPONDENT(S)
J U D G M E N T
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
Reason:
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
parties.
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
directions:
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
immediately.
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
developments.
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
following:
“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,
2019.”
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
proceeding:-
“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
required.
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
respondents.
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.
…………………J.
(R. SUBHASH REDDY)
Page 13 of 14
…………………J.
(HRISHIKESH ROY)
New Delhi;
November 18, 2021
Page 14 of 14
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