Supreme Court - Daily Orders
Himachal Grit Udyog vs Union Of India on 7 January, 2019
Bench: D.Y. Chandrachud, Hemant Gupta
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2019
(Diary No(s).45033/2018)
HIMACHAL GRIT UDYOG & ORS. APPELLANT(s)
VERSUS
UNION OF INDIA & ORS. RESPONDENT(s)
WITH
CIVIL APPEAL NO.94/2019
O R D E R
Permission to file appeal granted.
Exemption from filing C/C of the impugned judgment and exemption from filing O.T. granted. Against the judgment of the National Green Tribunal dated 29 October, 2018, two civil appeals have been filed. The first civil appeal1 is by private individuals who are operating stone crushing units. The companion civil appeal2 has been filed by the State of Himachal Pradesh, in support of which the Solicitor General of India has appeared, assisted by the Advocate General for the State of Himachal Pradesh.
Mr. Dhruv Mehta, senior counsel has appeared on behalf of the stone crushing units.
Signature Not VerifiedThe record before the Court indicates that a Digitally signed by DEEPAK GUGLANI Date: 2019.01.09 16:00:29 IST Reason: notification dated 29 April, 2003 was issued by the 1 Civil Appeal @ Diary No(s).45033/2018 2 CIVIL APPEAL NO.94/2019 2 Government of Himachal Pradesh in exercise of power conferred by Section 5 of the Environment (Protection) Act, 1985, by which siting guidelines were issued for stone crushing units. Under Clause 1.1, a table was set out, in which at item No.6, the minimum distance from springs, canals, reservoirs and functional water supply schemes was fixed at 100 meters.
On 10 September, 2004, the earlier notification was amended. Items 7 and 8 of the amended notification were in the following terms:
Sr.N. Criteria Distance for Distance for Existing Stone-Crushers Stone-Crushers to be set up (crow flight in Future distance in (crow flight meters) distance in meters)
7. Minimum distance from 100 __ a spring, canal, reservoir or functional wateer scheme 8. Minimum distance from 500 500 notified lakes and Wetlands The High Court of Himachal Pradesh, in a judgment dated 1 June, 2012 in CWP No.7949 of 2011, observed that in view of the time which had elapsed following the earlier notifications, it was appropriate for the Government to consider the matter afresh. However, until this exercise was carried out, the High Court issued directions. Among them was that:3
“ii. The spring, canal, reservoir or functional water supply scheme and natural water spring would include rivulets which are perennial in nature.” Following the above judgment of the High Court, the State Government issued a notification on 29 May, 2014. Item 8 of the table contained in Clause 1.1 prescribes a minimum distance of 100 meters from springs, canals, functional water supply schemes including reservoirs, while item 14 provides for a minimum distance from canals and perennial rivulets of 100 meters. The National Green Tribunal has applied the precautionary principle and the principle of sustainable development to hold that the above notification cannot be read to mean that stone crushers can be located just on the edge of a water body even if it is not perennial. Hence, a direction has been issued that the consent to operate granted to any stone crusher in the State of Himachal Pradesh within 100 meters of a water body will stand quashed.
The grievance of the stone crushing units is that many of them have been in operation for well over two decades and their perspective could not be placed before the Tribunal in the absence of their being impleaded as party to the proceedings.
The Solicitor General, in support of the appeal filed by the State of Himachal Pradesh, has urged that the 4 notification which was issued by the State on 29 May, 2014 specifically provides for a distance from perennial rivulets of 100 meters and, the order of the Tribunal amounts to an amendment of the notification. The Solicitor General has fairly urged that the State does not construe the expression “perennial rivulets” to mean a rivulet or water body which is functional every day of the year. The difficulty, in his submission, lies in the minimum distance which is required to be maintained for non-perennial water bodies. The Solicitor General submits that the direction which has been issued by the Tribunal would cause dislocation and if the State was made aware of the direction which the Tribunal was proposing to pass in the above terms, it could have rendered assistance in placing the ramifications for being considered.
In our view, the nature of the grievance which has been urged before this Court, in the present civil appeals, is such as should be addressed before the Tribunal in the first instance. The State Government must base its submissions before the Tribunal on scientific data, as opposed to an ipse dixit or a priori considerations. It would be necessary for the State to place on the record before the Tribunal clear and unimpeachable scientific material which will provide an objective basis for the Tribunal to consider any case made out for modification.5
In the circumstances, we are of the view that it would be appropriate to grant liberty to both the private parties represented in the appeals as well as the State Government to move the Tribunal either by way of review or for a suitable modification of the order on the merits on which we express no opinion.
In the meantime, we defer the enforcement of the directions which have been issued by the Tribunal by a period of three months from today so as to enable all the parties to move the Tribunal in appropriate proceedings. We grant liberty to the parties to move this Court afresh after the disposal of the proceedings before the Tribunal. The parties can also raise the grounds which have been raised in the present proceedings. The appeals are disposed of in the above terms. No costs.
.............................J. (DR. DHANANJAYA Y. CHANDRACHUD) .............................J. (HEMANT GUPTA) NEW DELHI JANUARY 07, 2019 6 ITEM NO.17+66 COURT NO.11 SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CIVIL APPEAL Diary No(s).45033/2018 HIMACHAL GRIT UDYOG & ORS. Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s) (WITH IA No.175095/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.175097/2018-STAY APPLICATION and IA No.175090/2018-PERMISSION TO FILE APPEAL) WITH CIVIL APPEAL NO.94/2019 (WITH APPLN.(S) FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT, STAY APPLICATION, EXEMPTION FROM FILING O.T. AND PERMISSION TO FILE ADDITIONAL DOCUMENTS) Date : 07-01-2019 These appeals were called on for hearing today. CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE HEMANT GUPTA For Petitioner(s) Mr. Dhruv Mehta, Sr. Adv.
Mr. Rishi Malhotra, AOR Mr. Utkarsh Singh, Adv.
Mr. Tushar Mehta, SG Mr. Ashok Sharma, Adv. Gen. Mr. Vikas Mahajan, AAG Mr. Vinod Sharma, Adv.
Mr. Ajay Marwah, Adv.
For Respondent(s) Mr. Tushar Mehta, SG Mr. Ashok Sharma, Adv. Gen. Mr. Vikas Mahajan, AAG Mr. Vinod Sharma, Adv.
UPON hearing the counsel the Court made the following O R D E R Permission to file appeal granted. 7 Exemption from filing C/C of the impugned judgment and exemption from filing O.T. granted. The appeals are disposed of in terms of the signed order. No costs.
Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
AR-CUM-PS COURT MASTER
(Signed order is placed on the file)