Jammu & Kashmir High Court - Srinagar Bench

M/S G.R.G. Infra Cone Pvt. Ltd vs State Of J&K And Others on 20 April, 2024

Author: Sindhu Sharma

Bench: Sindhu Sharma

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                         OWP No. 1027/2015
                                                            IA No. 01/2015

                                                 Reserved on:   07.12.2023
                                                 Pronounced on: 20.04.2024

M/s G.R.G. Infra Cone Pvt. Ltd.                     .... Petitioner/Appellant(s)
and others

                            Through:-   Mr. Nisar Ahmad Bhat, Advocate.

                   V/s

State of J&K and others                                     .....Respondent(s)

                            Through:-   Mr. Jehangir Dar, G.A.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                                 JUDGMENT

01. Petitioners, by way of present petition, seek a direction to the

respondents to allow them to operate their units strictly in accordance with

the registration certificates as well as other orders. They also seek a

direction to the respondents not to cause any interference with the smooth

operation of their units.

02. The contention of the petitioners is that they had applied for the

installation of stone crushers at Duroo Shrai Nallah, Tehsil Tangmarg,

District Baramulla, and were granted permission to operate the same.

After the requisite permission, they have taken land on rent, executed

lease deed and invested huge amount in the installation of their units,

mobilised man and machinery. They have also taken financial assistance

from other institutions, and set up their units, which are in operation for

more than nine years.

03. The units of the petitioners were registered with the Industries

Department where after the State Pollution Control Board issued consent

orders and NOCs were also issued in their favour by the other

departments for installation of units at Shrai Nallah Tangmarg. The

operations in unit were being done smoothly in accordance with the terms

and conditions of the orders allowing them to operate their units, when the

respondents without any cause started creating hurdles in the operation of

their units. The petitioners submit that their units are duly registered and

have acquired clearance of all the departments including State Pollution

Control Board. The requisite devices to control water, noise and air

pollution have also been installed. In view of these facts, the respondents

after inspection of their units have renewed the consent to operate order in

their favour.

04. The respondents, instead of allowing the petitioners to operate

their units as per the orders of the competent authority are creating hurdles

in their smooth functioning, as such, the petitioners were left with no

other recourse but to approach this Court by way of present petition

seeking a direction to the respondents to allow them to operate their units

smoothly.

05. The respondent Nos. 1 and 5 in their objections submit that the

petitioners have established their units of Stone Crushers at Duroo Shrai

Nallah, Tehsil Tangmarg, District Baramulla in violation to the rules and

regulations laid down under the J&K Water Resources (Regulation &

Management) Act, 2010. It is also submitted that this writ petition is not

maintainable in view of the directions passed by this Court in PIL No.

02/2014 titled 'Molvi Peer Noor Ul Haque vs. Chief Engineer and others'.

06. The respondent-Irrigation and Flood Control Department has not

issued any NOC, which was pre-requisite for establishment of the unit. In the

absence of the same, the petitioners cannot continue the operation of Stone

Crushers in the aforesaid area. It is also submitted that the revenue

authorities were approached by the petitioners for demarcation of land and

the revenue authorities held the land was taken by Masjid Shareef

unauthorisedly and had no authority to lease the Government land.

07. The respondents submit that these units are extracting material from

nallah banks/bed which is endangering banks as well as inhabitants of the

area. They are a severe threat to the Nallah Course and the Water Body and

also the obstruction is caused by these units in the flow of water which can

increase the threat to the embankments of the Nallah considerably thereby

threatening the life and property of the inhabitants residing nearby the same.

08. The respondent No. 9-General Manager, District Industries Centre,

Baramullah, in his objections, has submitted that number of Stone Crushers

in the State are operating illegally, without proper authorization and

clearances from various departments and it was also observed in certain

cases that the Stone Crushers are located within the Nallah beds or on

Kahcharai/State land and in order to regulate this trade till the pendency of

the State Level Policy, the Government of Jammu and Kashmir issued

certain guidelines through Industries and Commerce Department in order to

regulate registration of the Stone Crusher units by providing that no

registration of the unit shall be done by the DIC concerned without following

clearances:

"a) NOC from the Deputy Commissioner regarding ownership of land, distance from schools, hospital and habitation etc.

b) NOC from the State Pollution Control Board (SPCB) regarding pollution control.

c) NOC from the Geology and Mining Department regarding location, feasibility and availability of raw material, i.e., sand, bajri stones and boulders etc.

d) NOC from the Forest Department.

e) NOC from the Irrigation and Flood Control Department.

f) NOC from the Fisheries Department."

09. In view of the aforesaid conditions, the NOC from the Deputy

Commissioner concerned, and Irrigation and Flood Control Department with

respect to ownership of land is of prime importance and since the petitioners‟

units are established on State land, therefore, they cannot be allowed to run

their units, as such, this petition is liable to be dismissed.

10. The petitioners have placed on record their consent to renewal with

regard to setting up of Stone Crushers in Duroo Shrai Nallah, Tehsil

Tangmarg, District Baramulla. All these consent orders by the J&K State

Pollution Control Board are valid till September, 2015. Learned counsel

for the petitioners, however, submits that these orders have been extended

from time to time. This Court vide order dated 11.06.2015 had directed as

under: -

"Meanwhile, subject to objections and till next date of hearing before the Bench, parties to maintain status quo with reference to allowing the petitioners to operate their business in accordance with law."

11. In terms of order dated 11.06.2015, protection was granted to the

petitioners regarding operation of their business in accordance with law is

concerned.

12. The respondents have also placed on record S.O. 60, dated

23.02.2021. In exercise of powers conferred under Section 15 and Section

23C of the Mines and Minerals (Development and Regulation) Act, 1957,

(Central Act No. 67 of 1957), have set up rules known as „Jammu and

Kashmir Stone Crushers/Hot and Wet Mixing Plants Regulation Rules,

2021‟. In terms of this S.O, the „General Requirements‟ of a Stone Crusher

are mentioned in Rule 3, which reads as under:

"3. General Requirements.-- (1) A Stone Crusher/Hot and Wet Mixing Plant is not a mining unit but a processor of minerals obtained from a source with a valid mineral concession. Such units shall be regulated by laws, rules and other provisions applicable to industrial units.

(2) No permission/license would be needed by a Stone Crusher/Hot and Wet Mixing Plant from the Mining Department except where it also engages in mining, which activity shall be regulated by laws/rules applicable to mining. (3) Stone Crusher/Hot and Wet Mixing Plant shall establish/operate only on securing:-

(i) Consent to establish/operate from the Jammu and Kashmir Pollution Control Board issued as per the procedure/ guidelines and sitting criteria prescribed by the Jammu and Kashmir Pollution Control Board;

(ii) No Objection Certificate from Deputy Commissioner concerned regarding title verification of land and its usage; and

(iii) Registration with the District Industries Centre (DIC) if the unit holder intends to avail any incentives available in the Industrial Policy."

13. In view of this S.O, the stone crusher who are regulating by law

can operate only when NOC from the Deputy Commissioner regarding

title verification of land and its usage is of paramount consideration before

obtaining the consent to operate.

14. Rule 10 of the said S.O. deals with the units which were existing

prior to commencement of Jammu and Kashmir Minor Mineral

Exploitation and Processing Rules, 2017. The same is reproduced as under:

"10. Units existing prior to the commencement of the Jammu and Kashmir Minor Mineral Exploitation and Processing Rules, 2017.-- Notwithstanding anything contained in these rules, an unlicensed Crusher Unit/Hot and Wet Mixing Plant existing before the

commencement of the Jammu and Kashmir Minor Mineral Exploitation and Processing Rules, 2017 having valid consent to operate from the Jammu and Kashmir Pollution Control Board shall be allowed to operate. However, after expiry of consent to operate, it shall have to obtain fresh permission as per Rule 3(3)(ii) as one time requirement."

15. In case for units, which were granted the consent to operate was

given to them before the promulgation of Jammu and Kashmir Minor

Mineral Exploitation and Processing Rules, 2017, and in terms of the said

rules, they had to seek a mandatory consent to operate in terms of the

Rules of 2017, which have been repealed and now, they had to seek consent

in terms of S.O. 60, dated 23.02.2021.

16. Rule 3 provide for the general requirements and similarly Rule 10

reads as under: -

3.General Requirements.--(1) A Stone Crusher/Hot and Wet Mixing Plant is not a mining unit but a processor of minerals obtained from a source with a valid mineral concession. Such units shall be regulated by laws, rules and other provisions applicable to industrial units. (2) No permission/license would be needed by a Stone Crusher/Hot and Wet Mixing Plant from the Mining Department except where it also engages in mining, which activity shall be regulated by laws/rules applicable to mining. (3) Stone Crusher/Hot and Wet Mixing Plant shall establish/operate only on securing,-- (i) Consent to establish/operate from the Jammu and Kashmir Pollution Control Board issued as per the procedure/ guidelines and siting criteria prescribed by the Jammu and Kashmir Pollution Control Board ; (ii) No Objection Certificate from Deputy Commissioner concerned regarding title verification of land and its usage ; and (iii) Registration with the District Industries Centre (DIC) if the unit holder intends to avail any incentives available in the Industrial Policy.

10.Units existing prior to the commencement of the Jammu and Kashmir Minor Mineral Exploitation and Processing Rules, 2017.--Notwithstanding anything contained in these rules, an unlicensed Crusher Unit/Hot and Wet Mixing Plant existing before the commencement of the Jammu and Kashmir Minor Mineral Exploitation and Processing Rules, 2017 having valid consent to operate from the Jammu and Kashmir Pollution Control Board shall be allowed to operate. However, after

expiry of consent to operate, it shall have to obtain fresh permission as per Rule 3(3)(ii) as one time requirement.

17. The petitioners, instead of approaching the respondents for requisite

permission to operate has approached this Court seeking a direction to the

respondents to allow them to operate their units as per the registration

certificate and other orders and also not to interfere in their operations, which

cannot be granted to them.

18. In view of the aforesaid fact and circumstances give above, the there

is no merit in this petition and the same is accordingly dismissed.

(Sindhu Sharma) Judge

Jammu: