Jammu & Kashmir High Court - Srinagar Bench
Ali Mohammad Sopori (Age 52 Years) S/O ... vs Ut Of J&K Through ... on 6 June, 2024
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 675/2023
Pronounced on: 06. 06 .2024
Ali Mohammad Sopori (Age 52 years) S/o Ghulam Mohammad
Sopori, R/o Goripora, Tehsil Awantipora, District Pulwama
.... Petitioner/Appellant(s)
Through: - Mr. G.M. Shah, Advocate.
V/s
1. UT of J&K through Commissioner-cum-Secretary to Government
Forest, Ecology and Environment Department, Civil Secretariat,
Srinagar/Jammu
2. Member Secretary, J&K Pollution Control Committee, Jammu
3. Regional Director, J&K Pollution Control Committee Kashmir,
Sheikh-ul-Alam Campus, Behind Govt. Silk Factory, Rajbagh, Srinagar
4. District Pollution Officer, Pollution Control Committee,
Lassipora, Pulwama
5. Deputy Commissioner/District Magistrate, Pulwama
6. Chief Engineer, Power Development Corporation Ltd. (PDCL), Kashmir
.....Respondent(s)
Through: Mr. Syed Musaib, Dy. AG.
Mr. G.A. Lone, Advocate for Intervenor
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. Petitioner seeks quashing of Order No. 173 JK PCC of 2023 dated 13.02.2023, passed by the Member Secretary J&K Pollution Control Committee, Jammu, directing immediate closure of Spice Grinding/Atta Chakki and Rice Husking Unit belonging to the petitioner situated at Goripora, District Pulwama.
02. The contention of the petitioner is that his father was operating the Shali Husking Mill under License No. 586/SH dated 20.05.1974, which was issued in his favor and periodically renewed. Following the Michal Sharma I attest to the accuracy and authenticity of this document.
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death of the petitioner's father, the said license was transferred to the petitioner by the Deputy Commissioner vide order dated 11.05.2017, and was renewed continuously. It is submitted that the unit has been operated by the petitioner for over five decades on his proprietary land falling under Khasra No. 46 in village Goripora, Tehsil Awantipora, District Pulwama. This unit serves as the sole source of income for the petitioner, his sister, and his family.
03. The respondents issued two notices, dated 12.09.2022 and 07.02.2023, to the petitioner regarding the operation of the petitioner's rice husking oil extraction unit. Although the notices have not been placed on record, the petitioner claims to have replied to them. The petitioner submitted a representation-cum-objections in response to the notice dated 07.02.2023. In this representation, the petitioner stated his readiness to comply with all the directions and requested the respondents to specify the pollution control devices he needed to install. However, the respondents, without considering his reply as a representation, passed the impugned order directing the closure of his unit.
04. The petitioner submits that he initially approached the civil Court against the order, but later learned that the jurisdiction of the civil court is barred. Therefore, he withdrew the suit and approached the respondents by drafting an appeal. The impugned order has been challenged by the petitioner on the ground that it was passed without affording him any opportunity of hearing. The respondents failed to consider his objections and passed the impugned order, which is violative of the principle of natural justice.
Michal Sharma I attest to the accuracy and authenticity of this document.
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05. He further submits that the respondents also failed to acknowledge that the unit had been operated under a valid license for more than five decades and serves as the sole source of income and sustenance for the petitioner and his family. The impugned order has violated the rights guaranteed to the petitioner under Articles 14 and 21 of the Constitution of India.
06. It is submitted that in terms of the guidelines, the consent of the respondent-Department is not required for running the Rice Husking Mill, therefore, the impugned order is without jurisdiction and that the impugned order should have been passed by the Central Board or the State Board, which consists of the Chairman and members. However, the respondents passed the impugned order on their own without providing any opportunity of being heard to the petitioner. Thus, the impugned order is unjust, unfair, arbitrary, and violates the fundamental rights of the petitioner. Consequently, the petitioner seeks the quashing of the impugned order dated 13.02.2023 and a direction to the respondents not to disturb the functioning of the unit.
07. The respondent No. 2, Pollution Control Board, in their reply, have submitted that no industrial unit can be installed or run without proper consent from the Pollution Control Board/Committee prescribed under Section 25/26 and Section 21 of the Water (Prevention & Control of Pollution) Act 1974 & Air (Prevention & Control of Pollution) Act 1981.
08. It is submitted that the unit of the petitioner was made operational without the mandatory and valid consent of the Board/Committee and also without pollution control measures/devices. The operation of the unit, being in violation of the above rules, was directed to be closed. In Michal Sharma I attest to the accuracy and authenticity of this document.
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addition to closure, the unit holder is liable for the imposition of environmental compensation as well. The order of closure was made after proper deliberation and in consideration of the fact that the unit of the petitioner failed to achieve the prescribed standard.
09. The respondents further submit that on the basis of pollution potential, a rice husking machine is classified as Green category, and obtaining consent from the respondents is mandatory, along with the adoption of pollution control mechanisms to achieve the prescribed standard of pollution. Since the petitioner failed to maintain the same, the respondents directed the closure of the unit. Notices sent to the petitioner to show reasons why legal action, including closure of their unit, should not be taken, have not been responded to by the petitioner, and the petitioner failed to obtain the mandatory consent from the J&K Pollution Control Committee/Board.
10. The petitioner appears to have established an integrated industrial unit in the village of Goripora, Tehsil Awantipora, which is a residential area. The petitioner is operating a Rice Husker Machine, Oil Extraction Spice Grinding Machine, and Atta Chakki without obtaining any consent from the J&K Pollution Control Committee. This activity is classified as green category based on pollution potential, and obtaining consent from the respondents becomes mandatory in such cases. It is admitted by the parties that this activity results in noise as well as dust pollution, which causes difficulty to the residents of the area and poses health hazards.
11. On 28.11.2022, noise monitoring of the unit was conducted, revealing that the noise generated exceeded permissible limits. The permissible noise levels in residential areas are 55 decibels during the Michal Sharma I attest to the accuracy and authenticity of this document.
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day and 45 decibels at night. According to the noise monitoring carried out, during the operation of the Mill, the noise pollution was measured at 73.5 decibels, thus violating the Air Pollution Control Act. Notices were sent to the petitioner, but the petitioner did not respond to them. In fact, the replies to the notices, as presented by the petitioner in this petition, are undated and without any receipt, indicating that the petitioner did not respond to the notices issued by the respondents. Therefore, the respondents passed the impugned order.
12. It is further argued that the Board is not competent to pass the order. According to the notification issued by the Central Pollution Control Board bearing No. C-603/J&K PCC/Legal-2021 dated 25.03.2021, the respondents submit that the Committee is now competent to deal with such cases.
13. The petitioner has further submitted that the respondents did not follow the procedures envisaged under the Water (Prevention & Control of Pollution) Act 1974 & Air (Prevention & Control of Pollution) Act 1981, as a prior notice had to be issued and samples had to be provided to him before proceedings in the matter. Since the order to close the unit has been issued on the basis of noise pollution in the area, there is nothing on record presented by the petitioner to show that the unit being run by him is producing sound within the prescribed limits under the Act. This apart, the petitioner himself admits in the petition that the respondents may be directed not to disturb the smooth functioning and status of the industrial unit operated by him.
14. The learned counsel for the petitioner has laid much emphasis on the fact that when the Rice Husking unit was set up by his father, it was Michal Sharma I attest to the accuracy and authenticity of this document.
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not in a residential area but aligned with agricultural activities. However, over time, this area has become residential, with houses being built. Therefore, as his machine was in operation before the residential area developed, he argues that he cannot now be directed to relocate it.
15. The petitioner, admittedly, is undertaking commercial activities and has set up three machines - Rice Husker Machine, Oil Extraction Spice Grinding Machine, and Atta Chakki, in an area acknowledged as a residential area. These activities are causing noise and other pollution for the residents of the area. Since the petitioner is engaged in commercial activities, and the Pollution Control Board, established in terms of the Water (Prevention & Control of Pollution) & Air (Prevention & Control of Pollution) Act 1981, is mandated to control pollution caused by activities that may harm the environment
16. Therefore, the contention that the residential area has developed later is inconsequential, as it is causing health hazards to the residents of the area. The petitioner and other commercial operators of the area would have to follow the mandate of the Act, either by installing the necessary mechanisms to keep air pollution and noise pollution at bay, failing which, they will have to face the consequences as per the Act.
17. The right to life includes the right to live in a clean environment without any pollution, including noise pollution. It would be distressing for the residents to endure noise pollution daily, which would adversely affect their physical and mental health. The pursuit of commercial gain by the party cannot take precedence over the health of the residents. In the view of the respondents, the petitioner, having referred to the reply Michal Sharma I attest to the accuracy and authenticity of this document.
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to the notice regarding the closure of the unit, cannot then turn around and claim that he was not provided with an opportunity to be heard.
18. In view of the aforementioned facts and circumstances of the case, there is no merit in this petition and the same is, accordingly, dismissed.
(Sindhu Sharma) Judge Srinagar:
06.06.2024 Michal Sharma/PS Whether approved for speaking : Yes Whether approved for reporting : Yes Michal Sharma I attest to the accuracy and authenticity of this document.Jammu 01.07.2024 10:19