M/S S. S. Industries vs Ut Of J&K And Others
2022 Latest Caselaw 1522 j&K

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                 AT JAMMU

                                           Pronounced on : 29.10.2022

                                           WP(C) No. 102/2021
                                            CM Nos. 568/2021 & 7518/2021



         M/s S. S. Industries, Shanker                       ..... Petitioner
         Colony, Gangayal


                         Through: Mr. Anil Sethi, Advocate &
                                  Mr. Rajat Sudan, Advocate


                  Vs


         UT of J&K and others                             ..... Respondents

,


                         Through:    Mr. Ravinder Gupta, AAG for R- 1 and
                                                                        4
                                    Mr. Dewakar Sharma, Dy. AG

         Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE

                                         JUDGMENT

1) Heard learned counsel for the parties, perused the

pleadings along with the annexures thereto and also the

original record produced by the respondent no. 2

concerning the matter.

2) The petitioner, ever since its coming into existence as

a business concern, seems to be bent upon to act more in

conflict mood rather than in conformity mode with the

provisions of law governing pollution related permissions

for the purpose of running an industrial concern and for

that has even felt no hesitation to hoodwink the authorities

concerned and even this court as well.

3) The petitioner is claimed to be a proprietorship

concern set up by its promotor Summit Kour and which got

itself registered on 12.01.2018 as a Micro Scale Industrial

Unit. For the purpose of site for its industry related activity,

the petitioner came to hire on rent basis a ground-floor

accommodation of building situated at Plot no. 529,

backside of Chinar Biscuit, Shankar Colony, Gangyal

Jammu. The premises hired by the petitioner on lease basis

is from the husband of its proprietor Smt. Sumit Kour. The

petitioner intended to carry on manufacturing of Polythene

Carry-bags (above 50 microns specification) .

4) For the purpose of carrying on such industrial activity,

the petitioner was required to avail pollution related

permissions from the J&K State Pollution Control Board and

for that purpose on 26.09.2018 applied online for consent

to establish (CTE) followed by an online application filed on

06.10.2018 for consent to operate (CTO) before the

respondent no. 2. Both the said applications came to be

rejected by the respondent no. 2 vide its decisions dated

21.01.2019 and 02.02.2019 on the premise that the

industrial activity of the nature intended to be run by the

petitioner was not allowed in a non-conforming/residential

areas.

5) It appears that notwithstanding the rejection of its

request for issuance of consent to establish & operate its

industrial activity, the petitioner ventured to start and run

the industrial activity which immediately got the attention

of the respondent no. 2 resulting in an inspection raid on

31.01.2019 which led to seizure of 1350 kgs of banned

polythene bags from the premises of the petitioner. This

inspection and seizure of the petitioner's premises by the

respondent no. 2's officials was carried out by reference to

the provisions of the Jammu and Kashmir Non-

Biodegradable Material (Management, Handling and

Disposal) Act, 2007 read with rules frame thereunder vide

SRO 122 of 2009 dated 11.05.2009 known as J&K Non-

Biodegradable Material (Management, Handling and

Disposal) Rules, 2009, further amended vide SRO 45 of

2017 dated 03.02.2017 laying down Plastic Waste

Management Rules, 2016 whereby there is a ban on

manufacturing of polythene carry bags below 50 microns

thickness.

6) Upon the seizure of the polythene bags of the quantity

of 1350 kg, the Authorized Officer (Regional Director) of

the respondent no. 2 came to serve a notice no.

SPCB/19/1535-39 dated 06.02.2019 to the petitioner's

proprietor for appearance on 27.02.2019 as part of

statutory exercise required in furtherance of seizure so

made by the Enforcement Wing (Anti-Polythene Team) of

the respondent no. 2.

7) Finding the petitioner acting in conflict with the

pollution related provisions of law, the respondent no. 2,

vide its order no. 24-SPCB/2019 dated 15.05.2019, came to

issue a closure order of the petitioner's unit/premises

thereby bringing the unauthorised industrial activity of the

petitioner to a cease.

8) In furtherance of the seizure of the 1350 kg of banned

polythene bags effected on 31.01.2019, said seized

property came to suffer confiscation by an order no.

SPCD/RDJ/18/1/4770-73 dated 25.05.2019 passed by the

Authorized Officer (Regional Director) of the respondent

no. 2. It is worth mentioning herein that this order of

confiscation was never ever questioned/challenged at any

point of time by the petitioner.

9) On the other hand, in furtherance of closure order no.

24-SPCB/2019 dated 15.05.2019 against the petitioner's

unit/premises, the official concerned of the respondent no.

2 came to direct, by virtue of an order dated 01.06.2020 the

Sub-Divisional Magistrate, Jammu (South), to close down

the premises of the petitioner.

10) The petitioner had come to file a writ petition WP(C)

no. 1013/2020 before this Court thereby challenging

closure order no. 24-SPCB/2019 dated 15.05.2019 passed

by the respondent no. 3 read with direction dated

01.06.2020 to the Sub-Divisional Magistrate, Jammu

(South) for the physical closure of the premises of the

petitioner.

11) Said writ petition WP(C) no. 1013/2020 came to be

dealt with and disposed by this Court vide its judgement

dated 22.06.2022 wherein this Court by very clear and

categoric observations came to held that without necessary

clearance from the Pollution Control Board, be it consent to

establish or consent to operate, the unit which has the

potential of creating water and air pollution cannot be

allowed to operate and that the petitioner was operating

the unit without there being necessary clearances from the

respondent no. 2 herein and as such its operation were

required to be stopped forthwith.

12) Thus, the writ petition WP(C) no. 1013/2020 of the

petitioner failed to dislodge the closure order no. 24-

SPCB/2019 dated 15.05.2019. However, this Court in terms

of its judgement dated 22.06.2020 came to direct the

respondent no. 2 to consider application of the petitioner

for issuance of requisite consent to establish and consent to

operate orders and the same was to be done within a

period of four weeks from the date of passing of judgment

dated 22.06.2020. A fact insists to be put on mention

here that the petitioner in the present writ petition has

totally blacked out the fact of having filed the said WP(C)

no. 1013/2020 before this Court and having failed to earn

relief against closure order no. 24-SPCB/2019 dated

15.05.2019.

13) Acting in deference to the directions of this Court, as

given vide judgement dated 22.06.2020 in WP(C) no.

1013/2020, the respondent no. 2 came to consider the

matter for requisite pollution related permissions with

respect to the petitioner and vide its order no. 17-JK PCB of

2020 dated 17.07.2020 rejected the application of the

petitioner for grant of requisite permissions. This order no.

17-JK PCB of 2020 dated 17.07.2020 has not been

questioned till date by the petitioner and there is no

whisper of reference to the said order in the present writ

petition lest any challenge thereto. Without any challenge

to the said order dated 17-JK PCB of 2020 dated

17.07.2020, the act on the part of the petitioner in coming

to file the present writ petition is nothing but an act of

brazenness, to say the least, expecting this court to let the

petitioner run its industrial activity without pollution

related prior permissions.

14) In a sense, the present writ is for a mandamus unto

the respondents to let the petitioner act in violation of the

law. In fact, nothing could be more self-defeating the cause

of the petitioner than the representation dated 21.09.2020

submitted by the petitioner's proprietor Summit Kour

accompanied with her affidavit dated 31.08.2020 sworn on

01.09.2020, whereby the proprietor of the petitioner has

admitted the acts of omission and commission on its part

and tendering an unconditional apology for the production

of polythene carry bags of less than 50 microns

specification which being a banned article to be

manufactured by anyone.

15) While on the one hand, the petitioner through its

promoter was seeking to engage the attention of the

respondent no. 2 and its officials with reference to the

representation dated 01.09.2020, the petitioner kept on

stealthily operating the unit which action got the attention

of the authorities of the respondent no. 2 and the second

raid came to take place on 20.12.2020 of the premises of

the petitioner by the enforcement team of the respondent

no. 2 which resulted in second time seizure of 3025 kgs of

banned and illegal polythene carry bags less than 50

microns and re-cycled polythene granules.

16) This seizure was followed with issuance of notice no.

PCB/RDJ/A.O./20/5594-96 dated 22.12.2020 from the

Authorized Officer (Regional Director) of the respondent

no. 2 to the petitioner for appearance on 09.01.2021 with

respect to the confiscation proceedings to take place. Above

said notice was amended with a corrigendum dated

29.12.2020.

17) From the perusal of the writ petition it is not

forthcoming at all as to whether the petitioner engaged

itself in the manufacturing activity of paper napkins and

HM/LD Polythene Bags (above 50 microns) with any due

and proper permission of the State Pollution Control Board.

The omission to address any averment on this aspect by the

petitioner in its writ petition in a sense amounts to a latent

admission that the petitioner was not having any such

pollution related requisite permission/authority/approval

from the respondents' end. That being so, it may not lie at

the service of the petitioner to register any grievance to be

heard in support of grievance grant against the issuance of

the Order no. 24-SPCB/2019 dated 15.05.2019. It goes

without any saying that in case the petitioner can have due

permission/authority/approval from the State Pollution

Control Board authorities for the purpose of running its

manufacturing unit, then the same can be run on the basis

of permission so sought and possessed by the petitioner,

but in the absence of such permission, the petitioner cannot

be heard to insist that Order no. 24-SPCB/2019 dated

15.05.2019 is bad because of any procedural deficiency or

non-compliance and that is why its previous writ petition

WP(C) no. 1013/2020 had met its failure. The onus was and

is always to be upon the petitioner to show as to how

without seeking the requisite

permission/authority/approval from the respondent no. 2-

Pollution Control Board, it can afford to run its business

activity which otherwise requires the pollution related

permission.

18) It is in the background of the aforesaid facts and

circumstances that the petitioner's venture to file the

present writ petition is, infact a very crafty move as the

petitioner has sought to link the original closure order no.

24-SPCB/2019 dated 15.05.2019 of the respondent no. 2

and co-relate it with the events of second raid pursuant to

which notice no. PCB/RDJ/A.O./20/5594-96 dated

22.12.2020 relating to seizure of 3025 bags of banned

polythene bags along with recycled polythene granules

were seized from the premises of the petitioner, and

thereby challenge the two through the present writ

petition.

19) This Court laboured itself to read the present writ

petition of the petitioner for the sake of reference as to

whether the petitioner has made a reference about the fact

of having filed first writ petition WP(C) no. 1013/2020 and

its disposal by this Court in terms of judgment dated

22.06.2020, but the present writ petition is found

maintaining a stone like silence with respect to the said

aspect and that fact itself is nothing but a statement on the

mindset of the petitioner's owner/promoter that for the

sake of running the petitioner's business the modus

operandi is by hook or crook be it with the law enforcement

authorities or even with the court of law. Such a blatant

serious suppression as well as misrepresentation of facts

on the part of the petitioner stretching to the extent of

repeat of challenge to the Closure Order no. 24-SPCB/2019

dated 15.05.2019 which was upheld by this Court in the

writ petition WP(C) no. 1013/2020 of the petitioner and

still for the petitioner to come forward in the present writ

petition and claim as no. 2 relief as writ of certiorari

quashing the order no. 24-SPCB/2019 dated 15.05.2019 of

the respondent no. 2 is nothing but a brazen abuse of

process of law from the consequences of which the

petitioner cannot escape without bearing the

corresponding exemplary costs. This suppression as well as

misrepresentation of fact obviously was meant to save the

present writ petition from suffering the bar of res judicata

and as such is the sole basis constituting the dismissal of

the present writ petition of the petitioner notwithstanding

any clamouring of the petitioner that it has been denied an

opportunity of hearing before the issuance of the impugned

orders.

20) Patience to put up with the violations and the

violators of the ecological environment has now run

dry. The law needs to take charge, and in fact has taken

charge, of the situation to deal with the environment

related violations and violators impatiently and for

that the enforcers of the law need to be fast paced as in

the present case where the law enforcers have acted

with promptness and pre-emptively and this is what is

serving the call of duty to protect the

environment. Present time in which the human society

has come to drive itself, notwithstanding the credit and

claim of growth and development achieved and

attained in the course by it, it has now become every

living person's first business, without any exception, to

protect and preserve the very ecological environment

within which and by use of which the human society,

irrespective of country wise identification, was able to

journey from time of physical challenge to comfort

times of the present. Time is not only running short but

perhaps it may not be an exaggeration to say that the

time has already run short for the human society so as

to afford and allow any further pricking and poking, to

be done by any man and woman through his/her acts of

omission and commission, to the already endangered

ecological environment. Thus, it is now for the man to

mend his business to save the earth's environment than

for the Environment to mind for the man's business. In

fact, pressed and driven by the environment protection

exigency even the law makers could not escape from

naming the legislation enacted by them relating to the

environment by any other expression than a clarion

title which is "the Environment (Protection) Act, 1986".

21) The Hon'ble Supreme Court of India, being in the

forefront, in almost every case/cause dealt or being

dealt with by it relating to environment & pollution

related, and matter is letting no moment to go waste in

confirming and reconfirming that the law is positioning

itself to be on the side of the Environment than on the

side of the Man. Activation and enforcement of

environmental pollution related legal regime meant to

curb the very tendency to act in avoidance/violation of

pollution related norms and forms has to earn the legal

backing of the courts of law including the constitutional

courts in country like India where instinct and

tendency to obey law is more on omission side than on

commission side even with respect to a personal safety

meant legal norm of wearing of helmet for a person

driving two-wheeler.

22) Insofar as, with respect to confiscation proceedings in

terms of Notice no. PCB/RDJ/A.O./20/5594-96 dated

22.12.2020 it is not known as to whether the respondent

no. 2 has carried out final adjudication to order the

confiscation of the seized goods but in case the same has

not been done then surely the petitioner needs to be called

upon by the respondent no. 2 to present its case in

opposition to the confiscation and upon hearing the

objections to pass the final order. It goes without any

reminder to the respondent no. 2 that the notice to the

petitioner for appearance and state its case in the

confiscation proceedings shall be properly and timely

served so as to deny any scope of objection to the petitioner

that it was not served timely and properly by the

respondent no. 2.

23) In the backdrop of the above referred facts and

circumstances and the perspective evaluated by this court,

the present writ petition is dismissed with costs of Rs. 20,

000/-(twenty thousands) against the petitioner to be paid

within period of one month next.

24) Records be also given back to Mr. Diwakar Sharma, Dy.

AG

(Rahul Bharti) Judge Jammu 29.10.2022 Muneesh

Whether the order is speaking : Yes / No

Whether the order is reportable: Yes / No