Madras High Court
Angala Parameswari Blue Metals vs The Chairman on 20 July, 2023
Author: S.S. Sundar
Bench: S.S. Sundar
WP.No.22743/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 01.02.2024 Delivered on 12.04.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
WP.No.22743/2023
and
WMP.Nos.22914 & 22915/2023
Angala Parameswari Blue Metals
Proprietor, Mr.P.Subramani ... Petitioner
Vs.
1.The Chairman
Tamil Nadu Pollution Control Board
No.76, Anna Salai, Guindy
Chennai 600 032.
2.The District Environmental Engineer
Tamil Nadu Pollution Control Board
Plot No.140A, SIPCOT Industrial Complex
Hosur 635 126.
3.The Superintending Engineer
Krishnagiri, TANGEDCO.
1
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WP.No.22743/2023
4.The Assistant Engineer
O&M, Shoolagiri, TANGEDCO.
5.Kuthavakkam Realtors Pvt. Ltd.,
rep.by its Authorised Signatory
Mr.S.Narasimhan, Poly House Towers
5th Floor, SPIC Annexe, #88,
Mount Road, Guindy, Chennai 600 032.
6.Muniraj ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of certiorari calling for the records of order dated
20.07.2023 passed by the National Green Tribunal [SZ] Chennai in Appeal
No.03 of 2023 confirming the order of the Appellate Authority in Appeal
No.75 of 2022 and set aside the same and consequently, quash the order
issued by the 1st respondent Board in
Proc.No.TNPCB/T2/F.019156/Closure/Air/2022 dated 22.08.2022.
For Petitioner : Mr.K.S.Viswanathan, Senior counsel
for Mr.G.M.Ananthakumar
For RR1 & 2 : Mr.P.S.Raman, Advocate General
assisted by Mr.V.Gunasekar,
Standing Counsel for TNPCB
For RR 3 & 4 : Mr.S.Madhusudhanan
Standing counsel
For R5 : Mr.Srinath Sridevan
Standing counsel
For R6 : Mr.T.Mohan, Standing counsel
for Mr.M.S.Seshadri
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WP.No.22743/2023
ORDER
S.S.SUNDAR, J., (1)This writ petition is filed seeking for issuance of a writ of certiorari to quash the order passed by the 1st respondent dated 22.08.2022. (2)The petitioner is a Stone Crushing Industry operating in Kamandoddi Village, Soolagiri Taluk, Krishnagiri District in an extent of 5.77 acres. It is admitted by the petitioner that originally, the Crusher Unit was established by another individual in the name of M/s.Balaji Blue Metals in the year 2003 and the said Industry had obtained consent to operate from the board on 06.07.2005 with the capacity of 12 tons per day. (3)The petitioner purchased the industry from M/s.Sri Balaji Blue Metals vide registered Sale Deed dated 16.02.2005 and is running the Stone Crusher Unit in the name M/s.Angala Parameswari Blue Metals. The petitioner was running the Unit till 2018 only with the capacity of 12 tons per day. However, in the year 2018, the petitioner obtained consent for expansion of the Unit by increasing the capacity of the Blue Metal Jelly together with M-Sand manufacturing by order dated 06.06.2018 issued by the Tamil Nadu Pollution Control Board [TNPCB] with the capacity of 3 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 4000 tons per day. The petitioner also obtained lease from the Government for running a quarry unit in the same survey number. It is not in dispute that the petitioner has obtained environmental clearance for the quarry at S.No.1236/2 in Kamandoddi village. However, problem started when the respondents 5 and 6 objected for running the quarry and Crusher Units of the petitioner for the reason that the petitioner's Crushing Unit and Quarry site lie within the prohibited distance of 500 meter from the residential colony. While the petitioner submitted a representation to the Town and Country Planning authorities, not to entertain any approval for layouts in and around the Crushing Unit, respondents 5 and 6 have submitted repeated representations and complaints to the TNPCB stating that the dust pollution on account of operation of petitioner's Crushing Unit and Quarry is unbearable and the petitioner cannot be permitted to quarry or having Crushing Unit as several residential units of villagers are located within 300 meters from the Crusher. Since the stone crusher was in operation from 2005, the petitioner has been contending that establishment of residential houses after the establishment of Crusher Unit is prohibited and the objection of residents cannot be entertained. When 4 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 the petitioner applied for renewal of consent on 28.12.2021, the application ws returned on 12.05.2022 and the petitioner was called upon to produce authenticated document showing that there is no habitation within 500 meters from the Crusher. Subsequently, TNPCB passed an order of closure on 22.08.2022 with a direction to disconnect the power supply, not only on the ground that the petitioner's Crusher is located within 300 meters from residential houses, but also on the ground that the petitioner has failed to adhere to the norms and failed to satisfy the requirements for getting consent.
(4)The petitioner thereafter preferred an appeal before the Appellate Authority challenging the order of closure dated 22.08.2022. Though the Appellate Authority granted interim order, subsequently, respondents 5 and 6 got themselves impleaded before the Appellate Authority and the Appellate Authority confirmed the order of closure. Aggrieved by the same, the petitioner filed an appeal in Appeal No.3/2023 before the National Green Tribunal, [SZ], Chennai, raising several grounds. (5)The National Green Tribunal, vide order dated 20.07.2023, confirmed the order of Appellate authority holding that NGT found no error in the 5 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 order of the Appellate Authority. Referring to the Board Proceedings dated 02.07.2004, the National Green Tribunal also found that the Stone Crusher established by the petitioner which is located within 300 meter from the inhabited site, is not permissible. Aggrieved by the same, the present writ petition is filed by the petitioner.
(6)The case of TNPCB as well as other respondents have been duly considered by the Appellate Authority as well by the National Green Tribunal, which is impugned in the writ petition.
(7)This Court heard and considered the lengthy arguments made by the learned Senior Counsel appearing for the petitioner ; learned Advocate General appearing for respondents 1 and 2, the learned Senior counsels appearing for respondents 5 and 6 and the learned Standing counsel for respondents 3 and 4.
(8)The submissions of the learned Senior Counsel for the petitioner can be summarised as follows:-
The Impugned Order is in violation of principles of natural justice inasmuch as the Board had never served the materials and documents relied upon by the Board while ordering 6 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 closure. Since a fair opportunity was not afforded to the petitioner before passing the order of closure, the closure order is liable to be quashed on this short ground.
The petitioner Unit was established in the year 2005 and consent to operate was issued to the petitioner after verification of certificates and revenue records. The Impugned Order of closure on the basis of developments that had taken palce much after the establishment of Crusher is against the principle of estoppel and legitimate expectation.
The petitioner is running a quarry unit with proper environmental clearance for the very same survey number and when the petitioner is given permission to quarry and operate Crushing Unit which depends on the quarry license, the closure of Crushing Unit on the objection raised by respondents 5 and 6, two decades after the establishment of Crusher, is improper and invalid.
The Certificate issued by the Tahsildar, from the year 2006, showing that there is no residential area within the prescribed 7 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 distance of 500 meters is not challenged by anyone or proved to be fake before any Forum. Hence, the conclusion by the National Green Tribunal that permission cannot be granted to stone quarry which is located within 500 meters of radius from human habitat is not appropriate.
500 meter radius specified in Board Proceedings will apply only if the habitation is approved. Since there was no residential units within 500 meters radius at the time when the petitioner's Crusher was established in 2005, the petitioner's Crushing Unit cannot be directed to be closed on account of subsequent development in the vicinity.
Respondents 4 and 5 have not raised any objection till 2018 even though they are aware of the fact that the petitioner's Crushing Unit was in operation from 2005. The 5th respondent for the first time submitted complaints in the years 2019 and 2020 which cannot be countenanced by virtue of limitation under Sections 14 and 15[3] of the National Green Tribunal Act, 2010. Since the petitioner has complied with all the air 8 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 pollution control measures, the petitioner's Unit cannot be closed.
Since the petitioner Unit is running for 17 years with heavy financial commitments with the approval of TNPCB by giving employment to more than 60 employees, the closure order for the reasons stated therein are not sustainable.
(9)The learned Senior counsel appearing for the 5 th respondent submitted that the writ petition itself is not maintainable as it does not fall within the parameters laid down in the case of Madhya Pradesh High Court Advocates' Bar Association Vs. Union of India reported in 2022 LiveLaw SC 494. Learned Senior counsel then relied upon the counter affidavit filed by the 5th respondent indicating that 'A' Register prepared during 1984-1986 under UDR scheme shows that lands in S.NO.22/2 is classified as 'Natham' and S.No.22 is immediately abutting S.No.1236/2 where the writ petitioner has set up the Crusher. The learned Senior counsel referred to the fact that the capacity of the Crushing Unit was just 12 tons per day in the year 2005 and the petitioner went for expansion only in the year 2018. The 5 th respondent is a Real Estate Promoter, who 9 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 has developed the land as layouts and the development in the residential [existing] area of the village has been seriously affected. The learned senior counsel then referred to BP.No.4, dated 02.07.2004 and submitted that a stone crusher within 500 meter of any inhabited site is prohibited.
Since the fact that the petitioner's Unit is within 300 meter of inhabited sites, the order of closure issued by the TNPCB as confirmed by the Appellate Authority as well as the National Green Tribunal, is unassailable. He also submitted that the petitioner was given sufficient opportunity by the Pollution Control Board. Since the private respondents got impleaded only before the Appellate Authority, there is no question of violation of principles of natural justice when the statutory Forums have only considered the objections on the basis of documents after affording reasonable opportunity.
(10)The learned Senior counsel further referred to the fact that the petitioner has been operating the Crushing Unit in violation of the Tamil Nadu Mines and Minerals Concession Rules, 1959. He then pointed out that the closure order was also on other grounds as the petitioner failed to provide Green cover, failed to carry out water sprinkling device to 10 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 suppress dust, failed to provide fencing around the mining area along with the red flag and for using illegal electronic detonators for blasting. (11)The learned Senior counsel further referred to the fact that despite sufficient opportunity being given to the petitioner, the petitioner failed to produce any document or reports by way of certificate from the National Remote Sensing Agency, Anna University, to evidence that there was no inhabited site at the time of setting up of Crushing Unit. He then pointed out that the petitioner has no vested right to pollute and the order impugned, cannot be assailed for the grounds raised in the affidavit filed by the petitioner in the writ petition.
(12)The 6th respondent is a resident of Dinnur Village in Hosur District. The father of the 6th respondent was given assignment of house site in the year 1988. Though the assignment was in the name of the father of the 6th respondent, the learned Senior counsel appearing for the 6th respondent submitted that the assignment was on 13.08.1988 and therefore, the contention of the petitioner that the crusher was not within the prohibited distance of 500 meters from the inhabited site, is false and this would only show that the petitioner has obtained consent without producing the 'A' 11 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 Register which would clinchingly show the residential settlement in the entire survey field, i.e., S.No.22.
(13)Mr.P.S.Raman, learned Advocate General appearing for respondents 1 and 2 also, referring to the orders passed by the TNPCB and the various violations, submitted that the order of the Tribunal is perfectly in order and valid having regard to the factual findings recorded therein. The petitioner's predecessor applied for consent to establish the Crushing Unit in the year 2005 and obtained consent vide order dated 06.07.2005 for the production of Blue Metal Jally with the capacity of 12 tons per day. The original consent was not on the basis of any document but by mere assumption. The petitioner relied upon the certificate issued by the Tahsildar, Hosur, dated 17.01.2006 showing that the property in S.No.1236/2 in Kamandoddi village belongs to the petitioner. The certificate of the Tahsildar is to the effect that there is no objection for the petitioner to establish a stone Crusher on the premise that there is no 'Grama Natham' residential occupation or schools or National Highways within 500 meters from S.No.1236/2 in Kamandoddi village. This Court is unable to find on what basis, the consent or no objection was given to 12 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 the petitioner's predecessor in interest when the neighbouring survey number is classified as natham.
(14)Even in the year 1992, based on the Report of the Committee constituted by TNPCB, pursuant to the orders of this Court, the Pollution Control Board has passed order that no Stone Crushing Unit should be located within 500 meters from any National Highway or State Highway or primary residential area or mixed residential area or of places of public and religious importance. Subsequently, vide BP.No.4 dated 02.07.2004, fixed new criteria for fresh Stone Crushing Unit explaining what is an 'inhabited site'.
(15)Inhabited Site has been defined in the following lines:-
''Inhabited Site shall mean a village site or town site or a house site as referred to in the revenue records or a house site or layout approved by a Local Body or Town or Country or Metropolitan Planning Authority, where the said Body or Authority is created under a statue and empowered to approve such an area as a house site or layout area [as desired in Rule 35 of Tamil Nadu Minor Minerals Concession Rules, 1959].'' 13 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 (16)The 6th respondent has produced before this Court, typed set of documents, showing that his father was given assignment on 13.08.1988 in respect of an extent of 5 cents of land in S.No.22/2 in Dinnur Village.
The fact that the 6th respondent is paying house tax even before the existence of the Crushing Unit is evident from a few documents produced by the 6th respondent. The 6th respondent has obtained Ration Card, Voter's ID, Aadhar Card and electricity service connection showing his address in the house put up by him. It is the specific case of the 6 th respondent that the residential building constructed by him in S.No.22/2, was assigned in favour of the petitioner's father in the year 1988. (17)The 5th respondent has produced before this Court, a typed set of documents showing that the 5th respondent has made several complaints against the petitioner's Crushing Unit. Further, the learned Standing counsel appearing for the 5th respondent has produced before this Court, the revenue documents to show that there are more than 25 houses in S.No.22/2 which is classified as 'Grama Natham'. He has also produced before this Cout, the 'A' Register prepared during UDR. The 'A' Register prepared for Attakurikki Village shows that S.No.22/2 is referred to as 14 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 Dhinnur Grama Natham.
(18)The 6th respondent further produced before this Court 'Natham Settlement' to show that almost the entire survey field namely S.No.22, in Atttakurikki Village has been registered as house site and rough patta has been issued to several individuals during Natham Settlement. (19)Any part of the village of which houses of ryots are built, is classified as 'Natham'. Except the Tahsildar's Certificate, no other documents is filed by the petitioner. From the documents filed by the private respondents, particularly, the 'A' Register, this Court is of the view that the certificate issued by the Tahsildar is not on the basis of field inspection and appears to have been obtained without even looking into the revenue records. (20)The petitioner was unable to produce the electronic data which would show that there was no residential units within the prohibited distance of 500 meters even at the time when the consent was originally obtained in the year 2005. The issue has to be considered not only from the petitioner's perspective but also in the larger interest of public. Assuming that there was no residential building within 500 meters when the petitioner's predecessor in interest commenced the crusher unit or 15 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 quarrying operation, there was no consent as such by any of the individual land owners who are within the prescribed distance of 500 meters. There was no requirement of hearing all the land owners within 500 meters. Merely because there was no construction at a time when the petitioner's predecessor was granted consent, the Court cannot deprive the legitimate rights of private owners who have their lands within the prescribed distance of 500 meters. If we accept the argument of the learned counsel for the petitioner, we deprive the property rights of true owners who are in possession of their lands within the prescribed distance of 500 meters, guaranteed under Article 330-A of the Constitution of India. The owners of the property cannot be prevented from exercising their right of ownership over their lands by putting up construction merely because license is granted to an individual to carry on quarry operation without the consent of such land owners. There cannot be an estoppel against the land owners when their objection is based on their right guaranteed under Article 300-A of the Constitution.
(21)As on date, there is no valid license or consent obtained by the petitioner for running the Crusher. The petitioner was unable to produce NRSS 16 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 certificate. From the dates and events, it is seen that the petitioner's Unit obtained consent through the previous owner without reference to any material or document relating to the distance criteria. The original consent was to operate Crushing Unit with the capacity of 12 tons per day. Only in the year 2018, the petitioner sought for consent for expansion increasing its capacity from 12 tons per day to 4000 metric ton per day. From the year 2022, no consent was given to the petitioner, not only on the ground that the petitioner's Unit is within the prohibited distance of 300 meters from human habitation, but also for reasons that the petitioner has not adhered to pollution norms. It is not in dispute that respondents 5 and 6 impleaded only before the Appellate Authority. The petitioner knew the stand taken by respondents 5 and 6 and their prime objection for establishment of Stone Crushing Unit as the said Unit is within the prohibited distance from the residential plots. The fact that the Unit was in operation even after refusal to grant of renewal, is evident from the Inspection Report dated 26.07.2022. At the time of inspection, it was found that [1]no air pollution control measures was in place [2]no sprinkling of water activity is provided by the petitioner ; [3]no green belt 17 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 development. The petitioner has not provided any device to control dust emissions. Therefore the Closure Order was on various grounds apart from referring to the Board Proceedings in BP.No.4 dated 02.07.2004. WHETHER THE ORDER IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE:-
(22)The petitioner was furnished with copies of all the documents that are relied upon by respondents 5 and 6 before the Appellate Authority. The petitioner has not disputed the fact that as on date, there are several residential houses which are within 300 meters from the Crushing Unit. It is the contention of the petitioner that the development by layouts was not there at the time when the consent was obtained in the year 2005. The petitioner had ample opportunity to apply for revenue documents to discredit all the documents filed by private respondents earlier. Unless the petitioner is put to serious prejudice, he cannot canvass that no opportunity was given to the petitioner. Having regard to the admitted fact that the petitioner has not filed any verifiable material or document while challenging the specific finding of TNPCB that human habitation was in existence within 300 meters from the Crushing Unit, this Court is 18 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 unable to appreciate the contention of the learned Senior counsel appearing for the petitioner that proper opportunity was not given to the petitioner. The Settlement 'A' Register itself is sufficient to non-suit the petitioner. The plot purchased by the 6 th respondent as well as the residential layout promoted by the 6th respondent are within 300 meters.
Merely because the petitioner who was permitted to operate the Crushing Unit for about 11 years without any check, the petitioner cannot claim any vested right to pollute the environment.
(23)It is to be noted that there is no estoppel against the statute. The norms prescribed by the TNPCB are statutory in character and there cannot be an estoppel against the statute.
(24)Despite several documents have been filed by the private respondents to show the character of land, the petitioner has no other document except the same old Tahsildar's certificate which does not indicate any field inspection. A Tahsildar's Report contrary to revenue records or without reference to 'A' Register is fraudulent.
Whether the Doctrine of Legitimate Expectation or Principle of Estoppel would help the petitioner to challenge the order of closure 19 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 confirmed by the Appellate Authority as well as the National Green Tribunal:
(25)The learned Senior Counsel appearing for the petitioner relied upon the order of Consent granted in favour of the previous owner in the year 2005 and the order of Consent granted to the petitioner on 30.05.2007. Though it is admitted that there was renewal till 2022, respondents 5 and 6 had raised their objections only when the petitioner went for an expansion from 12 tons per day to 4000 tons per day in the year 2018. The fact that the private respondents have made several representations and objections from the year 2019 is not in dispute. The principle of estoppel or doctrine of legitimate expectation is based on equity. When the Government or the instrumentalities of the Government is dealing with the rights of citizens, they are expected to be fair. Merely because the petitioner was permitted to operate quarry or crusher contrary to the Regulations, that will not confer any privilege or right in favour of the petitioner by applying the doctrine of legitimate expectation.
(26)The learned counsel for the petitioner relied upon the judgment of the 20 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 Hon'ble Supreme Court in the case of State of Jharkhand and Others Vs. Brahmputra Metallics Limited, Ranchi and Another reported in 2023 [10] SCC 634, wherein the Hon'ble Supreme Court has held as follows:-
''50. It is one thing for the State to assert that the writ petitioner had no vested right but quite another for the State to assert that it is not duty-bound to disclose its reasons for not giving effect to the exemption notification within the period that was envisaged in the Industrial Policy, 2012. Both the accountability of the State and the solemn obligation which it undertook in terms of the policy document militate against accepting such a notion of State power. The State must discard the colonial notion that it is a sovereign handing out doles at its will. Its policies give rise to legitimate expectations that the State will act according to what it puts forth in the public realm. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary State action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be 21 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 proportional to a requirement grounded in public interest. This conception of State power has been recognised by this Court in a consistent line of decisions. As an illustration, we would like to extract this Court's observations in National Buildings Construction Corpn. [National Buildings Construction Corpn. v. S. Raghunathan, (1998) 7 SCC 66 : 1998 SCC (L&S) 1770] : (SCC p. 75, para 18) “18. … The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice.”
51. Therefore, it is clear that the State had made a representation to the respondent and similarly situated industrial units under the Industrial Policy, 2012. This representation gave rise to a legitimate expectation on their behalf, that they would be offered a 50% rebate/deduction in electricity duty for the next five years. However, due to the failure to issue a notification within the stipulated time and by the grant 22 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 of the exemption only prospectively, the expectation and trust in the State stood violated. Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, we hold that such a course of action by the State is arbitrary and is violative of Article 14.'' (27)The said judgment cannot be applied in the present case to grant any relief in favour of the petitioner in view of the law settled by the Hon'ble Supreme Court on the principle 'legitimate expectation'.
(28)The Hon'ble Supreme Court in the case of State of West Bengal and Others Vs. Gitasree Dutta [Dey] reported in 2022 Live Law [SC] 527, has discussed the Doctrine of Legitimate Expectation by referring to several judgments, in the following lines:-
''10.The doctrine of “legitimate expectation” has been developed in the context of principles of natural justice. ‘Legitimate expectation’ is a public law right whereas ‘promissory estoppel’ is a private law right. The doctrine of legitimate expectation in public law is based on the principle of fairness and non- arbitrariness in governmental actions.23
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11.However, the doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted the statute. Further, the legitimate expectation cannot prevail over a policy introduced by the Government, which does not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other enforceable rights vested in the respondent. When the decision of public body is in conformity with law or is in public interest, the plea of legitimate expectation cannot be sustained. In Punjab Communications Ltd.
v. Union of India and Ors. [1999 [4] scc 727], this Court held that policy decision creating the legitimate expectation which is normally binding on the decision maker, can be changed by the decision maker in overriding public interest. It was held as under:
“37. The above survey of cases shows that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision-maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way…….” 24 https://www.mhc.tn.gov.in/judis WP.No.22743/2023
12.In Sethi Auto Service Station and Another v.
Delhi Development Authority and Others [2009 [1] SCC 180], this Court after referring to various precedents observed as under:
“32. An examination of the aforenoted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. 33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an 25 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. [Vide: Union of India v. Hindustan Development Corporation – (1993) 3 SCC 499]”
13. In Union of India v. Lt. Col. P.K. Choudhary [2016 [4] SCC 236, this Court held that the legitimate expectation, as an argument, cannot prevail over the policy introduced by the Government which does not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other enforceable rights vested in the respondents.
14.There is a necessary inter-play between the plea of legitimate expectation and Article 14. For a 26 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 decision to be non-arbitrary, the reasonable/legitimate expectations of the claimant have to be considered.
However, to decide whether the expectation of the claimant is reasonable or legitimate in the context, is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. In Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries [1993 [1] SCC 71, this Court has pointed out as under:
“8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision- making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case.
Whenever the question arises, it is to be 27 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.” (29)This Court on the examination of all the judgments apart from the judgments relied upon by the learned counsels above referred to:-
(a) 1993 [1] SCC 71 [Food Corporation of India Vs. Kamdhenu Cattle Feed Industries]
(b) 2003 [5] SCC 134 [J.P.Bansal Vs. State of Rajasthan and Others]
(c) AIR 2003 SC 3983 [Union of India and Others Vs. International Trading Co. and Others]
(d) 2009 [15] SCC 570 [Global Energy Ltd and Others Vs. Central Electricity Regulatory Commission]
(e) 2004 [6] SCC 765 [Hira Tikkoo Vs. Union Territory, Chandigarh and Others] (30)This Court examined several other judgments of the Hon'ble Supreme 28 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 Court on the Doctrine of Legitimate Expectation, found that the Doctrine of Legitimate Expectation has its genesis in the field of administrative law.
Even if a person has no enforceable right, by applying the Doctrine of Legitimate Expectation a new right was evolved and recognised based on principles of equity and fairness in action. However, such legitimate expectation should be justifiably legitimate and protectable. Since the Doctrine of Legitimate Expectation is essentially one to ensure fair play in every administrative action of the State, it may in a particular situation be enforceable as a substantive right. The question whether the expectation and the claim is reasonable or legitimate is a question of fact in each case. However, the said question cannot be decided not according to the claimants' perception but in larger public interest. The Doctrine of Legitimate Expectation cannot be applied to defeat or invalidate a legislation or an indefeasible right of public. The Doctrine cannot come in the way of public interest. In other words, if a decision has to be taken in larger interest of public, it has to prevail over private interest and there is no question of applying legitimate expectation.
(31)In assessing the dust emissions from Stone Crushing Industries and 29 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 Distance Criteria in Tamil Nadu, it has been held that a safe distance of minimum of 500 meters is required to be maintained from National Highways or State Highways or inhabited site or educational institutions or places of religious importance or public offices to avoid influence of dust emissions from the Stone Crushing Industires.. The assessment of Dust Emission from Stone Crushing Industries has been made by the TNPCB in the following lines:-
''Conclusions:-
The dust generated from stone crushing activities contains a significant amount of fine inhalable matter. The effect of fine particulate matter can be disproportionately large even though it constitutes only a small fraction of the total suspended particulate matter. The presence of a high percentage of silica in the dust and the particle size distribution further suggest that the occupational environment of the workers and surrounding areas may be hazardous to human health.
Most of the stone crushers have inadequate dust control systems. Mostly all units have neither enclosures nor water spraying arrangements. As a 30 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 result, the dust emissions are substantial which lead to adverse impacts on workers as well as the surrounding environment. The existing control measures such as dust containment enclosures, water structures [wall or net] and development of thick foliage trees around each crushing units, paving of the SCIs premises etc. The re-entrainment of settled dust from unpaved roads and surfaces is another phenomenon which seriously contributes to dust pollution in these areas which should be controlled immediately by paving the roads and surfaces inside crushing area and reducing the drop heights and covering potential fugitive dust emission sources. With these stringent control measures in practices and good housekeeping in place, it is expected that a minimum distance of 500 meters with a green belt width of 5 to 10m, with provision for adjustable wind breathing net structures as per the prevailing local meteorological conditions at the site base on the seasons, subject to the condition of meeting both the ambient air and source standards to arrest the dust pollution in and around the SCIs.'' (32)The Hon'ble Supreme Court in the case of Tejinder Kumar Jolly and 31 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 Another Vs. State of Uttarakhand and Others reported in 2021 SCC OnLine SC 1077, has held as follows:-
''11. In like cases of pre-existing industrial units, NGT in Himmat Singh Shekhawat v. State of Rajasthan , [2015 SCC OnLine NGT 846] has pertinently declared the following : (SCC OnLine NGT para 90) “90. 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 Parliament or by other authorities in furtherance to the power of delegated legislation vested in them. These legislations and directives are incapable of being compared to the legislations in the field of taxation or criminal jurisprudence. These laws have been enacted to protect the fundamental rights of the citizens. Thus, the contention that the existing 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 a hypothetical situation, not far from reality. An industrial unit which had been established and operationalised prior to 1974, 1981 and/or 1986, was granted permission under the laws in force and the unit owner had made heavy investments in making the unit operational. The Water (Prevention and Control 32 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 of Pollution) Act came into force in 1974, Air (Prevention and Control of Pollution) Act in 1981 and Environment (Protection) Act in 1986. All these Acts deal with existing units as well as the 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 penal action including, closure of industry under these Acts. The said Unit 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 risk, 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 noticed 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.” (emphasis supplied) ....
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 33 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 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. NGT was required to address the grievance on the adverse health impacts on local populace by the stone crushers. The Tribunal itself had recognised 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 area concerned.'' (33)As it has been reiterated by several judgments of the Hon'ble Supreme Court, doctrine of legitimate expectation has no role to play where the State action is in public interest unless action taken amounts to abusement of power.
(34)The Court cannot hold that the legitimate expectation will prevail over the policy of any instrumentalities of State which is in the interest of public. When a decision is non-arbitrary or cannot be challenged on the ground that it is unfair or unreasonable, there is no scope for applying doctrine of legitimate expectation. In the instant case, the decision of the 34 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 TNPCB vide BP.No.4 dated 02.07.2004 is reasonable and it is purely in public interest having regard to the assessment of dust emissions from Stone Crushing Industry.
(35)The petitioner who has failed to adhere to the norms cannot get relief under the Doctrine of Legitimate Expectation. This Court can visualize the plight of the residents in S.No.22 if the petitioner's Unit is allowed to operate their stone crushing unit and quarry operation. It is not in dispute that S.No.22 is adjacent to the survey field in which the petitioner's stone crusher quarry was in operation.
(36)The environmental laws are meant to protect the fundamental rights of the citizens and the laws have to be enforced uniformly for the existing units as well as the units which are to be established in future. The contention of the petitioner that they had established the unit long back and they were in business from the year 2005 cannot be a criteria to permit the petitioner Unit to pollute the atmosphere which would cause environmental damage which are not retrievable later. (37)As held by the Hon'ble Supreme Court, the fact that the industrial units were allowed to function for a long number of years, cannot be a reason to 35 https://www.mhc.tn.gov.in/judis WP.No.22743/2023 permit such units to pollute the atmosphere and to perpetrate. Whether the claim of respondents 5 and 6 is barred by limitation by virtue of Sections 14 and 15[3] of the National Green Tribunal Act, 2010:-
(38)It is to be noted that the petitioner has gone for expansion only in the year 2018. Thereafter, the objections were filed by respondents 5 and 6 constantly. The petitioner was not given consent after 2022 and the Pollution Control Board has already passed an order closing the petitioner's Unit. Even without a representation or objection from private respondents, the TNPCB has ample power to initiate action once the Industry is found to cause continuous pollution.
(39)In such circumstances, this Court is unable to sustain the contention of the learned Senior Counsel appearing for the petitioner relying upon Sections 14 and 15[3] of the NGT Act, 2010. The petitioner has filed an appeal as against the order of closure before the NGT and there is no limitation for the TNPCB to take action if a particular industry is prohibited or cannot be permitted for violation of pollution control norms.36
https://www.mhc.tn.gov.in/judis WP.No.22743/2023 (40)None of the other submissions of the learned Senior Counsel appearing for the petitioner merit consideration in view of the facts admitted and recorded by the TNPCB as well as NGT.
(41)In view of the conclusions reached above, this Court finds no merit in the writ petition. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
[S.S.S.R., J.] [N.S., J.]
12.04.2024
AP
Internet : Yes
Neutral Citation: Yes
37
https://www.mhc.tn.gov.in/judis
WP.No.22743/2023
To
1.The Chairman
Tamil Nadu Pollution Control Board
No.76, Anna Salai, Guindy
Chennai 600 032.
2.The District Environmental Engineer
Tamil Nadu Pollution Control Board
Plot No.140A, SIPCOT Industrial Complex
Hosur 635 126.
3.The Superintending Engineer
Krishnagiri, TANGEDCO.
4.The Assistant Engineer
O&M, Shoolagiri, TANGEDCO.
5.The Authorised Signatory
Kuthavakkam Realtors Pvt. Ltd.,
Mr.S.Narasimhan, Poly House Towers
5th Floor, SPIC Annexe, #88,
Mount Road, Guindy, Chennai 600 032.
38
https://www.mhc.tn.gov.in/judis
WP.No.22743/2023
S.S. SUNDAR, J.,
and
N.SENTHILKUMAR, J.,
AP
Order in
WP.No.22743/2023
12.04.2024
39
https://www.mhc.tn.gov.in/judis