Gauhati High Court
WA/6/2020 on 10 August, 2021
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia, Manash Ranjan Pathak
GAHC010264402019
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
WRIT APPEAL NO.6 OF 2020
M/s T.G. Enterprise, represented by
its Director P. Tohevi Awomi, Aiko
Building, 5th Floor, Opposite Town
Hall, Bank Colony, Dimapur,
Nagaland.
........Appellant
-Versus-
1. New Socunoma Village,
represented by Shri Salew Seyie,
Chairman, New Socunoma Village
Council, PO: Medziphema, Dimapur,
Nagaland.
2. The State of Nagaland,
represented through the Chief
Secretary to the Government of
Nagaland, Kohima.
3. The Principal Secretary,
Department of Environment, Forests
and Climate Change, Nagaland,
Kohima.
4. The Deputy Commissioner,
Dimapur, Nagaland.
5. The Additional Deputy
Commissioner, Medziphema,
Dimapur, Nagaland.
-2-
6. The Nagaland Pollution Control
Board, represented by its Member
Secretary, Signal Point, Dimapur,
Nagaland.
7. Shri Mhiesisato Vupru, New
Socunoma Village, PO:
Medziphema, Dimapur, Nagaland.
........Respondents
For the Writ Appellant : Mr. A. Dasgupta,
Senior Advocate.
For Respondent No.1 : Mr. J. Roy,
Advocate.
For Respondent No.6 : Mr. T. Islam,
Advocate.
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
Date of hearing and
Judgment and order : 10th August, 2021.
JUDGMENT & ORDER (ORAL)
(Sudhanshu Dhulia, CJ) The matter is taken up through video conferencing.
2. Heard Mr. A. Dasgupta, learned senior counsel for the appellant. Also heard Mr. J. Roy, learned counsel appearing for the respondent No.1 and Mr. T. Islam, learned counsel appearing for the respondent No.6.
3. This is an appeal filed by the appellant challenging the order dated 27.09.2019 passed by the learned Single -3- Judge in WP(C) No.43/2019, by which the learned Single Judge has given the finding that the present appellant had no authority to run a Stone Crushing Unit inside a village in Nagaland, namely, New Socunoma Village, as there was no sanction or permission from the concerned Village Council in favour of the writ appellant and the sanction/ permission taken from the Nagaland Pollution Control Board was on the basis of a document, which was actually not a No Objection Certificate (NOC) from the Village Council and, therefore, since the very basis of grant of sanction to the writ appellant was wrong, the writ appeal was allowed and the following directions were issued:-
"12. There is no dispute on the fact that for setting up of Stone Crushing Unit, the industrial unit intending to set up the same has to obtain consent certificate from the Nagaland Pollution Control Board. Further, there is also no dispute on the fact that one of the mandatory requirements for issuing consent certificate by the Nagaland Pollution Control Board is NOC from a local body and in this case it is the Village Council. Section 21 of the Village Council Act, 1978 which has been already reproduced above makes it clear that the Village Council is a body corporate having perpetual succession and common seal and the same can only be used by its Chairman. Therefore, anything said and done by the Council has to be through its Chairman and not any other. The Head GB no where in the Act is the authorised person to act on behalf or in the name of the Village Council. Therefore, the NOC to be issued by the Village Council of the petitioner for issuance of the consent certificate by the Nagaland Pollution Control Board should and can only be issued by the Chairman of the Village Council and not by the Head G.B. This being the legal position concerning the issue involved, the certificate issued by the Head GB has no validity in the eye of law and in consequence, the consent certificate issued based on the same also cannot be valid in law. However, since the time period for which the consent certificate was issued has expired, there is no need of quashing or setting aside the same.-4-
13. Coming to the impugned order passed by the ADC Medziphema which runs into several pages, it may be stated that the same was passed on the premises that the NOC issued by the Head GB of the village and the consent certificate issued by the Nagaland Pollution Control Board were valid in law. Since the very premise on which the order was passed, as stated above, are found to be not legally valid, the order of the ADC Medziphema is without any foundation to stand on. Therefore, it cannot be sustained or upheld.
14. In view of the above discussions, the impugned orders i.e. Inspection Report dated 16/03/2019 and the order dated 25/03/2013 passed by the ADC Medziphema are quashed and set aside.
15. For further running of the Stone Crushing Unit, the private respondent has to obtain NOC from the right authority and thereafter apply for consent certificate from the Nagaland Pollution Control Board.
16. the writ petition is disposed of."
Aggrieved, the writ appellant has preferred the present writ appeal.
4. The appellant before this Court, in order to open a Stone Crushing Unit in New Socunoma Village, applied for sanction from Nagaland Pollution Control Board.
5. The learned counsel for the concerned Village Council as well as the counsel for the Nagaland Pollution Control Board would argue that before the concerned Pollution Control Board grants sanction/permission for opening of a Stone Crushing Unit, amongst various No Objection Certificates and documents, the applicant also has to obtain a No Objection Certificate from the concerned -5- Village Council where such Stone Crushing Unit is to be opened.
6. At this juncture, we may add that the Special Conditions with respect to the State of Nagaland are given under Article 371A of the Constitution of India. A Village Council is an important authority which governs and looks after the affairs of a village in the State of Nagaland. Each village has its own Village Council. The Village Councils in Nagaland are governed by an Act known as the Nagaland Village and Area Councils Act, 1978 (Nagaland Act No.1 of 1979). Section 31 of the said Act states that every recognized village in Nagaland shall have a Village Council. The constitution of a Village Council is given in Section 42, which stipulates that a Village Council shall consist of members chosen by the Villagers. Under Section 7 of the Act, the members of the Village Council chooses its Chairman. Under Section 21 of the Act, all work is done on behalf of the Village Council by its Chairman. There are wide powers given under the said Act to a Village Council. Section 12 of this Act reads as under:-
1 3. Constitution - Every recognised Village shall have a Village Council.
Explanation :- Village means and includes an area recognised as a Village as such by the Government of Nagaland. An area in order to be a Village under this Act shall fulfil the following conditions namely:-
(a) The land in the area belong to the population of that area or given to them by the Government of Nagaland, if the land in question is a Government land or is given to them by the lawful owner of the land; and
(b) The Village is established according to the usage and customary practice of the population of the area.
2 4. A Village Council shall consist of members, chosen by villagers in accordance with the prevailing customary practice; and usages, the same being approved by the State Government, provided that hereditory village Chiefs GBs and Angs shall be Ex-officio Members of such Council and shall have voting right.
-6-"12. The Village Council shall have the following powers and duties:-
(1) to formulate Village Development Schemes, to supervise proper maintenance of water supply, roads, forest, education and other welfare activities;
(2) to help various Government agencies in carrying out development works in the village;
(3) to take development works on its own initiative or on request by the Government;
(4) to borrow money from the Government, Banks or financial institutions for application in the development and welfare work of the village and to repay the same with or without interest as the case may be;
(5) to apply for and receive grant-in-aid donations, subsidies from the Government or any agencies;
(6) to provide security for due repayment of loan received by any permanent resident of the village from the Government, Bank or financial institution;
(7) to lend money from its funds to deserving permanent residents of the village and to obtain repayment thereof with or without interest;
(8) to forfeit the security of the individual borrower on his default in repayment of loan advanced to him or on his commission of a breach of any of the terms of loan agreement entered into by him with the Council and to dispose of such security by public auction or by private sale;
(9) to enter into any loan agreement with the Government Bank and financial institutions or a permanent resident of the village;
(10) to realise registration fees for each litigation within its jurisdiction;
(11) to raise fund for utility service within the Village by passing a resolution subject to the approval of the State Government;
Provided that all monetary transactions shall be conducted through a scheduled Bank or the Nagaland State Co-operative bank;
(12) To constitute Village Development Board."
-7-7. A No Objection Certificate in this case had to be taken from the Chairman of New Socunoma Village Council. Admittedly, this No Objection Certificate was not taken from the Chairman of the said Village Council but from a Member of the Village Council who is the Gaon Burah. As we can see, in Section 4 of the Act, the Gaon Burah or the Village Headman is only one of the members of a Village Council. He is a member in an ex-officio capacity. All the same, Section 21 of the Act clearly stipulates that all work on behalf of the Village Council shall be done by the Chairman. Section 21 of the Act reads as under:-
"21. Every Village Council shall be a body, corporate by the name of the village for which it is constituted and shall have perpetual succession and a common seal and shall by the said name use and be used through its Chairman, with power to acquire, hold and dispose of property, both movable and immovable and to contract and do all other things necessary for the purpose as this Act."
8. For reason best known to the Pollution Control Board, on the basis of the certificate which was admittedly issued by a member of the Village Council and not by the Chairman, sanction was given by the Nagaland Pollution Control Board to the present appellant to run a Stone Crushing Unit in New Socunoma Village. When actual operation of the Stone Crushing Unit started, it was very strongly objected by the concerned villagers as they were totally against the installation and operation of a Stone Crushing Unit inside their village. According to the villagers, a Stone Crusher not only pollutes air but was also causing noise and water pollution. Further, it was also a threat to -8- humans and livestock survival, apart from a threat to employment in agricultural. Their main objection was also that the No Objection Certificate was obtained by fraud. Faced with these objections from the local villagers, the present appellant approached the Additional Deputy Commissioner of the District. Under the Act, the Additional Deputy Commissioner has control over all the Village Councils in the area. These powers are given under Section 22 of the Act, which reads as under:-
"22. Subject to the general superintendent of the State Government/the Deputy Commissioner/the Additional Deputy Commissioner/Sub-Division Officer (Civil) in-charge of the Sub-Division, Extra Assistant Commissioner or Circle Officer shall have control over all the Village Councils within his jurisdiction."
9. The Additional Deputy Commissioner after hearing both the parties, allowed the present appellant to run the Stone Crushing Unit with certain conditions, which are as follows:-
"1. Mandatory production of Pollution Free Certificate from the concerned authority as and when required.
2. Mandatory sample treatment of the treated effluent at least once in a year from the laboratory recognised by the Nagaland Pollution Control Board (NPCB) and to conform to the limits and conditions stipulated by the NPCB.
3. Operation of the stone crusher unit only from 6AM to 6PM.
4. No water and land pollution affecting the agricultural land in the vicinity.
5. No oil spillage and other health hazardous pollutants resulting from the operation of the machine affecting the villagers."-9-
10. This order dated 06.02.2019 and the permission to run the Stone Crushing Unit was challenged by the Village Council before the Kohima Bench of this Court in WP(C) No.15(K)/2019 (New Socunoma Village -Vs- State of Nagaland & Ors.). The learned Single Judge of this Court disposed of the said writ petition by passing the following orders:-
"6. In view of the above, the matter is remanded to the Additional Deputy Commissioner, Medziphema to re- consider afresh and pass a speaking order with reasons as regard to various objections and plea raised by the petitioner against setting up of Stone Crusher Unit by respondent No.6 by hearing both the petitioner as well as respondent No.6 as expeditiously as possible preferably within a period of one month.
7. The impugned order dated 6/2/2019 is accordingly, set aside so that the Additional Deputy Commissioner may pass a fresh speaking order after hearing the parties as indicated above.
8. Writ petition is disposed of accordingly.
9. Copies of this order may be furnished to the learned counsel for the parties."
11. Thereafter, the Additional Deputy Commissioner again heard the matter and passed an order on 25.03.2019 again allowing the writ appellant to run the Stone Crushing Unit with certain conditions. This time the Village Council challenged this permission and the order of the Additional Deputy Commissioner yet again in a writ petition being WP(C) No.43/2019, which was heard by the learned Single Judge at the Kohima Bench of this Court. The learned Single Judge was of the opinion that the Stone Crushing Unit cannot be allowed to run without sanction from the -10- Pollution Control Board and in this case, although the sanction has been given by the Pollution Control Board, but it was based on a non-existing No Objection Certificate. The No Objection Certificate of the Village Council is not a No Objection Certificate in the eye of law, inasmuch as such a certificate could only be issued by the Chairman of the Village Council but in the instant case, admittedly it was issued by a village Gaon Burah, who is only a member of the Village Council (Section 3 of the Act). Under Section 21 of the Act, such a certificate could only be given by the Chairman. Therefore, the writ petition was allowed with the directions as referred above.
12. Mr. A. Dasgupta, learned senior counsel for the appellant has challenged the order of the learned Single Judge primarily on the ground that there is no provision under the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1974 under which a No Objection Certificate is mandatory, inasmuch as this can only come if the Rules are framed by the State Government under Section 54 of the Air (Prevention and Control of Pollution) Act, 1981 on certain areas, which includes Section 54(2)(l) and no such Rules have been framed in the State of Nagaland. Moreover, he would argue that even if permission was not taken from the Chairman, but it has come in the initial order of the Additional Deputy Commissioner that after such permission was given by a member, the Chairman and other Members of the Council had visited the site and -11- having inspected the site, they raised no objection or made a complaint before the Pollution Control Board or even before any other higher authority and, therefore, it can be presumed that they had given their sanction for the Stone Crushing Unit.
13. In our opinion, the above arguments of a deemed sanction/NOC by the Village Council is based on pure conjectures and surmises. There is nothing on record to show that the Chairman has given a sanction to run the Stone Crushing Unit. The admitted position is that No Objection Certificate of the Village Council was never taken by the appellant. The permission given by the Pollution Control Board was thus obtained fraudulently. The Board also to our mind failed to exercise its statutory duty, as it did not examine the matter diligently. The consent order of the Pollution Control Board, which is at Page 67 of the present writ appeal in fact has no relevance at all. The writ appellant cannot be allowed to run a Stone Crushing Unit in a village in Nagaland without permission and No Objection Certificate of the concerned Village Council, i.e. of New Socunoma Village Council.
14. We must at this juncture note that Village Council is extremely important local body in Nagaland. Nagaland has a distinct system of village administration, with important powers and functions given to a Village Council, as we have seen in the preceding paragraphs. With nearly 75% of people in Nagaland residing in villages, a Village -12- Council has been given these important powers. These powers have to be exercised in accordance with law. The order of a Village Council is carried out in the name of its Chairman and not in the name of Gaon Burah of village, who though an important functionary of a village, is not himself a Village Council.
15. That being the position, we find no merit in this writ appeal. We are totally in agreement with the findings arrived at by the learned Single Judge.
16. The appeal is dismissed.
17. Under these circumstances, we direct the concerned Deputy Commissioner of Nagaland to ensure that the Stone Crushing Unit is dismantled within a period of three months from today.
JUDGE CHIEF JUSTICE M. Sharma Comparing Assistant