Jammu & Kashmir High Court - Srinagar Bench
Mohammad Ismail Bhat vs U.T Of J&K And Ors on 25 July, 2022
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
S. No. 9
Regular
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 1543/2021
Mohammad Ismail Bhat ...Petitioner(s)
Through: Mr. Sajid Irfan, Advocate
Vs.
U.T of J&K and Ors. ...Respondent(s)
Through: Mr. F.A. Bhat, AAG.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
25.07.2022
1. Petitioner in this petition is aggrieved of and has challenged the order dated 24th December, 2020, passed by J&K Pollution Control Board, as also the order No. , DCB/Legal/2020/1075-78, dated 31st December, passed by Additional District Magistrate, Bandipora 2020, whereby, the J&K Pollution Control Board, has found the petitioner unit having been established without seeking prior consent to establish and consent to operate under the Air (Prevention of Control of Pollution) Act 1981, and has directed the District Magistrate to close down the Rice Husking Unit established by the petitioner Mohammad Ismail Bhat at Watpora, Qazipora Bandipora. The office of the Deputy Commissioner has passed the consequential order. Both these orders are assailed by the petitioner primarily on the ground that the unit of the petitioner runs on electric energy and, therefore, does not have any potential to create air or noise pollution.
2. Learned counsel appearing for the petitioner submits that respondent Pollution Control Board does not have jurisdiction to issue him any notice, nor could the respondent Pollution Control Board, by acting arbitrarily deprive the petitioner of his right of livelihood, which is a fundamental right under Article 21 of the Constitution of India.
3. On being put on notice J&K Pollution Control Board has filed its reply affidavit. In the reply affidavit it is submitted by respondent Pollution Control Board, that the unit of the petitioner falls in "Orange" category on the basis of its pollution potential as per UCM Guidelines devised by Central Pollution Control Board, and, therefore, nobody is entitled to establish the Rice Husking Unit without first obtaining permission to establish and permission to operate the unit as per the provisions of Air (Prevention of Control of Pollution) Act 1981 ["the Act of 1981"] and Water (Prevention of Control of Pollution) Act 1974["the Act of 1974"]. It is thus submitted by the respondent Pollution Control Board that by the impugned communication the Board has put the petitioner on notice, and asked him to show cause as to why the unit of petitioner be not closed. As the petitioner failed to respond, therefore, respondents were constrained to act under the provisions of the law.
4. Heard learned counsel for the parties and perused the material on record, I am of the view that the unit of the petitioner, i.e. Rice Husking Unit, admittedly falls in the "Orange" category in view of its potential to cause pollution. This is evident from UCM Guidelines issued by the Central Pollution Control Board, relevant extract whereof, is appended by the learned counsel for the respondents with the objections filed by it. It is not in dispute that the unit of the petitioner does not have a valid consent to establish and consent to operate from the competent authorities of the J&K Pollution Control Board. The plea of the petitioner is that he has been running this unit since 1970 and, therefore, he does not have to comply with the provisions of the Act of 1974, and the Act of 1981. Once the petitioners‟ unit, i.e. Rice Husking Unit falls under the „orange category‟, there is no escape from fulfilling the mandate of law and running of Rice Husking Unit only after obtaining requisite consent from the appropriate Pollution Control Board. The petitioner having failed to obtain consent to establish and consent to operate from the J&K Pollution Control Board, cannot be permitted to run his Rice Husking Unit, which admittedly has the potential to cause pollution. Right of livelihood envisaged under Article 21 of the Constitution of India and claimed by petitioner asserted be claimed when it has the effect of taking away similar right of so many people residing in the vicinity of the unit.
5. For the foregoing reasons, the petition is dismissed. The petitioner however, is left free to approach to the J&K Pollution Control Board authorities to seek permission to establish the unit and consent to operate it in terms of the Act of 1974, and the Act of 1981 and relevant Rules and Regulations framed thereunder.
(SANJEEV KUMAR) JUDGE SRINAGAR 25.07.2022 "Mir Arif"