Anand Singh Negi & Anr. ..... ... vs State Of Uttarakhand & Ors
2022 Latest Caselaw 1244 UK

        IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL

                Writ Petition (PIL) No. 104 of 2019

Anand Singh Negi & Anr.                             ..... Petitioners

                                   Versus

State of Uttarakhand & Ors.                         .....Respondents

Present:
      Mr. Dushyant Mainali, the learned counsel for the petitioners.
      Mr. A.S. Rawat, the learned Special Senior Counsel with Mr. C.S.
      Rawat, the learned Chief Standing Counsel for the State.
      Mr. Aditya Pratap Singh, the learned counsel for respondent nos.
      2 and 3.
      Mr. Sanjay Upadhyaya, the learned counsel and Mr. D. Barthwal
      and Mr. Savmitra Jaiswal, the learned counsel for respondent
      no. 7.
      Mr. Rajeev Bhatt, the learned counsel for respondent no. 8.

                     Date of hearing : 20.04.2022

Coram:        Sri S.K. Mishra, ACJ.
              Sri R.C. Khulbe, J.

Upon hearing the learned counsel for the parties, this Court made the following judgment: (Per: Sri S.K.Mishra, ACJ.)

Mr. R. Meenakshisundaram, Secretary, Industrial Development Department, Government of Uttarakhand, is present as per the direction passed by this Court.

2. This public interest litigation has been filed with the following prayers:-

i. Issue a writ order or direction in the nature of mandamus directing and calling upon the respondent nos. 1 to 5 not to permit establishment of any stone crusher, stone crusher mineral stock in Village Sakkhanpur, Tehsil Ramnagar District Nainital on the strength of any permission to establish issued by the State Government or any other authority without there being any prior to consent to establish issued by the Uttarakhand Environment Protection and Pollution Control Board after due inspection of the site in terms of provisions of Air (Prevention and Control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974 in favour of such establishment

ii. Issue a writ order or direction in the nature of mandamus directing the respondent no. 2 and 3 not to issue consent to operate in favour of any of the stone crushers throughout the State of Uttarakhand who have not obtained consent to establish froim the respondent no. 2 before establishment of stone crusher plant and not to treat the permission to establish issued by the State Government or any other authority as a substitute of consent to establish provided under Air (Prevention and control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974.

iii. Issue a writ order or direction in the nature of mandamus directing the respondent no. 2,3 and 8 to take stern action against the respondent no. 7 and all other such industries throughout the State of Uttarakhand who have taken steps of establishment of stone crushers at their sites in absence of any prior consent to establish been issued in their favour by the respondent no. 2 under the provisions of Air (Prevention and control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974.

iv. Issue a writ order or direction in the nature of mandamus directing the respondent no. 2 and 8 to issue appropriate guidelines, suggestions for location of industries specially stone crushers in the State of Uttarakhand by exercising their powers under Environment Protection Act 1986 and rules there under.

3. It is apparent from the record that the controversy between the parties at this stage is whether the State Government can issue a letter of intent prior to issuance of no objection certificate, consent to establish and consent to operate a polluting unit in the State of Uttarakhand by the State Pollution Control Board and, whether the order passed by the State Government on 22.06.2018 is in teeth of the provisions of law guiding the field specially the provisions of Water(Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981.

4. It is not disputed at this stage that these issues were before the National Green Tribunal, New Delhi, as well as before the Hon'ble Supreme Court, though not by the present petitioner but on applications filed by some other villagers, and it is also not disputed at this stage that the Hon'ble Supreme Court as well as the National Green Tribunal has not interfered with the order passed by the State Government. Now, the issue relates to two questions mentioned above.

5. Firstly, it is seen that Section 17 of both the Act (mentioned above) provide for functioning of the State Board. Clause (n) provides that the State Board shall advise to the State Government with respect to the location of any industry to carrying on of which is likely to pollute a stream, well, water or air. The general practise adopted in the State of Uttarakhand is whenever polluting unit one like a stone crusher is proposed to be established in a place then the aspirants shall apply to the State of Uttarakhand and the concerned department, shall, after following the procedure established by law shall issue a letter of intent.

6. In this case, the letter of intent appears at page 55 but in our opinion it is not properly worded as it has been reflected in the order that the private respondent has a license to establish and operate stone crusher for five years subject to certain conditions. However, it is brought to our notice that in the meantime, the State

of Uttarakhand has changed its format and now they have specifically given the letter of intent with a condition that they shall before establishing and operating a stone crusher shall obtain consent to establish and consent to operate from the State Pollution Control Board.

7. We have carefully considered the argument of Mr. Dushyant Mainali, the learned counsel for the petitioner and we are of the opinion that the law do not prescribe that even before identifying any land or site for establishment of stone crusher, no objection certificate from the State Pollution Control Board is required. The no objection certificate in the shape of consent to establish and consent to operate is required before establishing and operating stone crusher. The State Government has an authority to give letter of intent subject to the condition that project proponent shall obtain consent to establish and operate even prior to establishing and operating unit. So we are of the considered view that this contention raised by the learned counsel for the petitioner is not tenable.

8. The second contention is regarding the wording of the letter of intent. It is brought to our notice by the Secretary, Industrial Development Department, that in the meantime the State of Uttarakhand has changed its format , and, therefore, there is no need to pass any mandamus against the State of Uttarakhand. The Secretary of the concerned department has explained

the situation to us as prevailing at present. We, therefore, direct the Secretary, Industrial Development Department, Government of Uttarakhand to re-issue the letter of intent i.e. Annexure-2 dated 22.06.2018 in favour of respondent no. 7 .

9. Mr. Aditya Pratap Singh, the learned counsel for the State Pollution Control Board would also bring to our notice and submits on instructions that the letter of consent to establish and consent to operate has been issued in favour of respondent no. 7 by the Pollution Control Board as per the order dated 26.07.2021 and it is valid upto 31.03.2023.

10. In that view of the matter, there is no further issue need to be decided in this case. We do not find any further merit in the writ (PIL). The writ (PIL) is, therefore, dismissed.

11. The personal attendance of the Secretary, Industrial Development Department, Government of Uttarakhand, is dispensed with.

12. Pending application, if any, stands disposed of.

(Ramesh Chandra Khulbe, J.) (Sanjaya Kumar Mishra, ACJ.)

PV