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Sanjay Karol, J.—Shri Ashok Thakur, Proprietor of Maheshwar Stone Washing and Crushing Industries, resident of village Kuthera, P.O. Jalari, Tehsil Nadaun, District Hamirpur, H.P. - respondent No.8, filed an application on 3.8.2010 for establishment of a stone crushing unit over Khasra No. 207/1, admeasuring 1-33-31 hcts. in Mohal Kuthera, Mauza Jalari, Tehsil Nadaun, District Hamirpur, H.P. A Joint Inspection Committee was constituted by the State Geologist - respondent No.4 to inspect the site and furnish its appraisal report. The said Committee, after conducting joint inspection submitted its site appraisal report, favouring establishment of the unit. On 11.8.2009, local Gram Panchayat i.e. Man, issued its No Objection Certificate through its Pradhan for establishment of such unit. In furtherance thereof, the H.P. State Pollution Control Board - respondent No.3 issued letter dated 8.8.2011, according consent to establish the unit subject to further permissions to be granted by the Department of Industries of the State and also obtaining permissions/ sanctions from various other departments under the provisions of various environmental laws of the land. Desh Raj petitioner No.1, Roshan Lal petitioner No.2, Shri Chander Kumar petitioner No.3, Smt. Meena Kumari petitioner No.4, Smt. Reeta Devi petitioner No.5 and Smt. Sukhan Devi petitioner No.5 approached this Court by way of present Civil Writ Petition No.7949 of 2011 praying for quashing of the said Joint Inspection Report dated 6.9.2010 as also the resolution dated 11.8.2009 passed by the concerned Gram Panchayat. This writ petition filed on 8.9.2011 was listed before the Court on 13.9.2011.
Similarly one Shri Vajinder Jain son of Shri Sudershan Jain, resident of village and Post Office Seri, Tehsil Nadaun, District Hamirpur, H.P., filed an application for establishment of a stone crushing unit over Khasra No. 1/1, admeasuring 0-20-25 hectare in Mohal Gadiyara, Mauza Jalari, Tehsil Nadaun, District Hamirpur, H.P. A joint inspection committee was constituted by the State Geologist - respondent No.4 to inspect the site and furnish its appraisal report. The said Committee, after conducting joint inspection submitted its site appraisal report favouring establishment of the unit. On 12.5.2010, local Panchayat, i.e., Jalari, issued its No Objection Certificate through its Pradhan for establishment of such unit. In furtherance thereof, the H.P. State Pollution Control Board -respondent No.3, accorded consent to establish the unit, subject to further permissions to be granted by the Department of Industries of the State and also obtaining permissions/ sanctions from various other departments under the provisions of various environmental laws of the land.
Yog Raj petitioner No.1, Smt. Santosh Kumari petitioner No.2, Om Raj petitioner No.3 and Smt. Sukha Devi petitioner No.4, approached this Court by way of Civil Writ Petition No. CWP No.7951 of 2011 praying for quashing of the said Joint Inspection Reports dated 15.7.2010 and 21.9.2010 as also the resolution dated 12.5.2010 passed by the concerned Gram Panchayat. This writ petition was filed on 9.9.2011 and listed in Court on 13.9.2011.
4 On 13.9.2011 both these petitions were directed to be listed together for hearing before us.
Noticeably both the writ petitions were filed through the very same counsel and Sukhan Devi is common petitioner in both these petitions. Significantly in both these writ petitions the Joint Inspection Committee relaxed the conditions/ parameters of distances on the ground that on the spot there exists a natural barrier. Before us, there was a serious dispute with regard to existence of such natural barrier. Consequently, on 6.1.2012 this Court constituted a Committee of Local Commissioners to visit the respective sites and after inspecting the same, furnish their report. A single report, separately dealing with both the projects stands filed by the Local Commissioners. The Local Commissioners have found that with respect to both these projects, in fact no natural barrier exists on the site as was so observed by the Joint Inspection Committee. Consequently notice was issued to the concerned officers, who conducted the joint inspection. These officers filed their affidavits explaining their perception about the word "natural barrier".
Thereafter, both these writ petitions were de-linked in terms of our order dated 20.4.2010 and heard separately.
CWP No.7951 of 2011 was heard separately and judgment reserved on 20.4.2012 whereas present writ petition being CWP No.7949 of 2011 was heard separately and judgment reserved on 11.5.2012. As such, both these petitions are being disposed of vide separate judgments.
To ensure that ecological balance is maintained within the State of Himachal Pradesh and also to protect environmental degradation and human health hazards and also to achieve the purposes and objectives of the Environmental Protection Act, 1986, by virtue of its powers delegated or otherwise, Government of Himachal Pradesh, Department of Science and Technology, issued Notification dated 29.4.2003 laying down guidelines for establishment of the stone crushing units within the State of Himachal Pradesh. Taking into consideration the topography, availability of less land and requirement to maintain the otherwise fragile ecology of the hills, following criteria for setting up of a stone crushing unit, from various points of public institution/utilities/places were laid down:-
�S.No.
Criteria
Distance
1.
Minimum distance from national highway/ Nearest state highway
100 Mts.
2.
Minimum distance from the District Headquarter
1.5 kms.
3.
Minimum distance from any town/Notified Area committee
1.00 kms.
4.
Minimum distance from Village Abadideh
250 Mts.
5.
Minimum distance from Hospital or Educational Institute
1.00 Kms.
6.
Minimum distance from Springs, Canals, reservoirs and functional water supply schemes
100 Mtrs.
7.
Minimum distance from notified Lakes and Wetlands
500 Mts.�
In terms of Clause 1.2.1 of this Notification, all distances are required to be measured, as crow flight from the highest node of the crusher conveyor belt to the outer periphery of the revenue unit or feature concerned. Clause 1.2.2 of the Notification, however, stipulates relaxation of the distances "in case of presence of any natural barrier between the site of the Unit and any of the features indicated". Clause 1.3.1 of the Notification stipulates that applicant has to apply/obtain provisional registration from the department of Industries for obtaining pre-production clearances from other Government Departments. Site where such unit is to be established by the applicant is first to be appraised and approved by a Joint Inspection Committee headed by Sub Divisional Officer (Civil) and consisting of officer or representative of Divisional Forest Officer; H.P. State Environment Protection and Pollution Control Board; Public Works Department; Irrigation and Public Health Department; Department of Tourism and Geologist or Mining officer.
Only on the basis of approval of the Committee after its visit, the State Pollution Control Board can issue consent to establish and consent to operate such Unit.
By way of a subsequent Notification dated 10.9.2004, these parameters stood amended to the following effect:-
�S.No.
Criteria
Distance for Existing Stone- Crushers (crow flight distance in meters)
Distance for Stone-Crushers to be set up in Future (crow flight distance in meters)
1
Minimum distance from National Highway or State Highway
50 (horizontal distance)
150
2.
Minimum distance from link road or other roads
---
75
3.
Minimum distance from district Head Quarter
1,500
1,500
4.
Minimum distance from Town or Notified Area Committee
1,000
1,000
5.
Minimum distance from Village- abadideh
250
500
6.
Minimum distance from hospital and educational institutions
300 (horizontal distance)
1,000
7.
Minimum distance from a spring, Canal, reservoir or functional water supply scheme
100
---
8.
Minimum distance from notified lakes and Wetlands
500
500
9.
Minimum distance from natural water spring
-----
500
10.
Minimum distance from notified Parks
-----
2000
11.
Minimum distance from Sanctuaries
-----
1000
12.
Minimum distance from bridge-site
-----
200 upstream 300 downstream
Significantly, vide very same Notification it stood clarified that where stone crushing units already stand established within the aforesaid distances, extra pollution control devices and well designed artificial barriers, to keep air and noise pollutions well within the prescribed limits shall be installed.
It is seen that Geological Wing of Department of Industries has also issued policy guidelines for control of location, installation or working of stone crushers and their registration in the State of Himachal Pradesh. It is seen that not only the owner of the unit is to strictly observe the environmental laws of the land i.e. (i) the Air (Prevention and Control of Pollution) Act, 1981 and rules framed thereunder; (ii) The Water (Prevention and Control of Pollution) Act 1974 and rules framed thereunder; (iii) The environment (Protection) 1986 and rules framed thereunder; and (iv) The Noise Pollution (Regulation and Control) Rules, 2000, but also he has to submit a return by 10th of every month and officers of various departments of the State are to consistently monitor and inspect the units. It is also seen that registration of the stone crushing unit, after obtaining consent to operate, from the Pollution Control Board, is valid for a period of two years (Form-B). The owner of the Unit has to apply (Form-A) six months, prior to the expiry of the said period, for renewal. However, if such application is not disposed of before the expiry period of registration, period of registration is deemed to be extended till an order is passed thereupon.
Coming to the facts of the instant petition, on the application of respondent No.8, State Geologist - respondent No.4, constituted a Joint Inspection Committee of the concerned Officers. Upon inspection this Joint Inspection Committee observed that except for the following, all other parameters stood fulfilled:-
Sl.No
Parameters
Minimum safe distance
Actual distance from the site
Where the site of New stone crusher fulfill the minimum requirement of the parameters or not
�V
Minimum distance from village DehAbadi
500 mts.
370 mts. AbadiDeh 320 mts. From Abadi
No.�
�XII
Minimum distance from bridge site
200 mts. U/S
Nearest corner 105 mts. Centre point 125 mts.
No.�
However, the parameters were relaxed, keeping in view the fact that "there is natural barrier in between the proposed crushing site and Deh Abadi and bridge". Hence site was approved subject to fulfillment of other statutory conditions.
Based on the aforesaid report, H.P. State Pollution Control Board issued letter of consent dated 8.6.2011, allowing the applicant to establish its stone crushing unit on the approved site. The local Panchayat i.e. Gram Panchayat, Mann, in terms of Resolution dated 11.8.2009 also issued its No Objection certificate for establishment of the said unit. In furtherance of the same, private respondent has taken steps for establishing the Unit. It appears that local people objected to the same and also made various representations (Annexure P-1 to Annexure P-5) to the concerned quarters but without any success.
The present writ petitioners have thus assailed the action of the respondents and have prayed for quashing of the Joint Inspection report conducted on 6.9.2010 (Annexure P-7) and the Resolution dated 11.8.2009 (Annexure P-9) passed by Gram Panchayat, Mann.
Notice in the petition was issued and respondents have filed their responses.
It is seen that Abadi and the stone crusher site is separated by a Khud, which is about 150 mts. in width. Now the Joint Inspection Committee took this Khud as a natural barrier. It is not in dispute that both Abadi Deh and the Unit are situated on different sides of the Khud. Now, this, in our considered view is an erroneous and incorrect interpretation of the words "natural barrier" as stipulated under Notifications dated 29.4.2003 and 10.9.2004 issued by the department of Science and Technology, Government of Himachal Pradesh, wherein various parameters of distances between the stone crushing unit and the water bodies/Abadi and other important and significant land marks have been laid down.
At this juncture we may note, that by taking the highest node of crusher conveyor belt for the purposes of measuring the distances, the Local Commissioners appointed by this Court found the distance in terms of crow flight from the said crusher site as under:-
Houses
House of Smt. Reeta Devi
279.30 meters
House of ShriDesh Raj
290 meters
Well maintained by Gram Panchayat in village
300 meters
House of Smt. Meena Kumar
400 meters
House of ShriChander Kumar
345 meters
House of Smt. Ratni Devi
435 meters
House of Smt. Sukha Devi
420 meters
House of ShriPurshotam
366 meters
Land of Sh. Roshan Lal
320 meters from Khasra No.681 and 280 meters from khasra No. 666
Bridge
Distance between from Nadaun side
140 meters Up stream
Distance from the centre of bridge
160 meters Up stream
Distance from the Sujanpur end
200 meters Up stream
Ordinarily, considering the aforesaid factual background and more particularly the understanding of the Joint Inspection Committee of the term "natural barrier", we would have intervened and allowed the writ petition, but we find that the private respondent, as has been so noticed by the Local Commissioners, has now developed the site in such a manner that the project, as proposed, if permitted to be implemented in totality, may turn out to be a stand alone project in the State and in future act as a model for all stone crushing units which are to be established within the State of Himachal Pradesh, considering various geographical and topographical limitations and factors.
We find that private respondent has excavated his plot in such a manner that he has created a box like cavity which by itself has created a physical barrier from three sides. His land is actually a hillock, which has been dug up to the base level to the extent of 20 mts. from three sides and on the remaining open side, alongside the Khud, he has constructed a retaining wall where he has stacked the debris comprising of mud, soil and stones and thereupon planted more than 5000 saplings of local species of fast growing trees. This is clearly evident from the photographs placed on record. By adopting this novel method private respondent has not only created land locked natural barriers from three sides but has also created an artificial barrier of trees on the remaining open side. This endeavour of his shall not only result into vegetative growth in the area but also act as a wind shield, protecting blowing away of the dust from the stone crusher site. Also private respondent has undertaken to cover the stone crushing machines with corrugated sheets from the top. This would further ensure that neither any dust nor any noise pollution is caused even in the immediate neighbourhood. In effect, private respondent has proposed to cover up the entire crushing unit from all sides and angles. Private respondent has already installed a handpump for the purpose of using water sprinkles at the site. Actually, he owns a large chunk of land and can develop the same so as to ensure that no environmental degradation in any manner is caused. It is also seen that width of the khud is approximately 150 meters and the houses of the petitioners are located across this Khud and that too at a higher elevation. Noticeably no Abadi Deh was found by the Local Commissioners to fall within the radius of 500 meters. It is also seen that houses of petitioners No.2, 3 and 6 are not visible from the crusher site. In any event the houses of all the petitioners do not fall within the area Abadi Deh. This is clear from the revenue record placed before us. These houses are scattered and located at different and distant places. They are not in clusters and also cannot be termed as hutments. Noticeably houses of all the petitioners are at a higher elevation from the place where the unit is sought to be established. As such term ''Abadi-deh'' cannot be extended to mean individual and scattered houses.
The approach road and the bridge are separated with two hillocks which partly constitute a natural barrier. Local Commissioners appointed by this Court have found that crusher site is visible only from the farthest end of the bridge. Local Commissioners have found that distance between the bridge from Nadaun side and crusher site is 140 meters and from Sujanpur side it is 200 meters upstream. We find that in the Joint Inspection Committee''s report the reference of nearest point is 105 meters. The Local Commissioners found that the distance is more than what was measured by the Joint Inspection Committee. Significantly, it is noticed that private respondent has developed the plot in such a manner so as to create a box type land locked space, to reduce pollution to zero level. We find that the nearest corner of bridge is separated by two hillocks, which too to a large extent constitute a natural barrier. The crusher site, from the bridge, would be visible only from one end. However, with the increase of vegetated growth of 5000 plants even from this end the Unit would not be visible.
In this background, we are of the considered view that by creating physical barriers private respondent has ensured that if a stone crushing unit is installed which will be constantly inspected and monitored by the authorities, no environmental pollution - air, water or noise can be caused in any manner whatsoever. It shall neither be a source of a nuisance nor a health hazard. We also find that private respondent has filed his affidavit expressing his willingness to set up his personal residence adjoining to the stone crushing unit.This he has done only to instill confidence in the mind of local public and to ensure that stone crushing unit does not result into any kind of pollution.
Hence, we refrain from quashing the appraisal report of the Joint Inspection Committee constituted by the State Geologist. It is seen that the concerned Panchayat or the Pradhan which had issued No Objection Certificate for establishment of the stone crusher has not been arrayed as a party in the writ petition. Be that as it may be, we leave the question of issuance of NOC by the concerned Panchayat for extraneous reasons and circumstances to be open. Significantly, private respondent has obtained No objection certificate for establishment of a stone crusher unit not only from the concerned Gram panchayat i.e. Mann but also adjoining Gram Panchayat, Faste. We may, however, clarify that consent to operate to the said unit shall be issued by the appropriate authorities only after ensuring that assurances made out by the private respondent and observations made hereinabove are fully complied with.
It is urged by the private respondent that instant proceedings, in fact have been initiated at the instance of petitioner No.1 Desh Raj. We have not dealt with this aspect of the matter. But we may also notice that private respondent has placed on record documents to show that Shri Chander Kumar petitioner No.3 and Smt. Sukhan Devi petitioner No.5 have filed affidavits expressing their no objection for installation of stone crushing unit and also stating that they were instigated by petitioner No.1 Desh Raj to file the present petition. It is also seen that petitioner No.1, petitioner No.4, petitioner No.5 and petitioner No.6 are in fact encroachers upon government lands and have constructed their houses thereupon. Proceedings for ejectment, under the relevant laws have already been initiated against petitioner Desh Raj.
With the aforesaid observations, writ petition is dismissed. Further, we are of the view that in public interest certain directions need to be issued to the duty/stake holders.
With the economic growth and increase of developmental activities within the State of Himachal Pradesh, large number of stone crushing units have been established within the State. In fact stone crushing is an industry in itself. These units are governed by the Notifications dated 29.4.2003 and 10.9.2004. Considering the long time gap, we are of the considered view that matter needs to be considered afresh by the Government/ appropriate authorities after collecting and collating all relevant material in this regard from all the concerned quarters including other States, general public and stake/duty holders and industry. Therefore, we direct the Chief Secretary to the State of Himachal Pradesh to constitute a Committee comprising of all the concerned Secretaries, including Secretary (Fishery), and examine whether existing guidelines need to be clarified/ elaborated/ amended. This shall be positively done within a period of six months from today. However, till the same is done and considering the urgency in the matter, we issue the following directions:-
i. The term ''village abadi-deh'', has to mean revenue village as defined under Revenue Laws of the State. Individual, scattered houses constructed by land owners outside the revenue village, unless they are in clusters shall not be termed as ''abadi-deh''.
ii. The spring, canal, reservoir or functional water supply scheme and natural water spring would include rivulets which are perennial in nature.
iii. While approving the site, the authorities shall take into account the impact of pollution, which the Unit is likely to cause on such water sources as also the flora and fauna.
iv. Pollution Control Board cannot be allowed to act as a mute spectator. Being a statutory regulator, it has to independently assess the impact which the project is likely to cause on the air, noise and water pollution falling within the meaning and definition of various environmental laws of the land.
v. Before permission of execution of mining lease is accorded, the Director of Industries, through its independent agencies shall verify with regard to the correctness of the report of the Joint Inspection Committee, which accorded approval for establishment of the stone crushing Unit.
vi. Certified copy of minutes of meeting of the concerned Panchayat issuing No Objection Certificate shall form part of the Certificate issued by the Pradhan of the concerned Gram Panchayat.
vii. There shall not be any automatic renewal of registration of the stone crushing unit. All statutory authorities shall ensure disposal of the applications for renewal filed by the owners of the Units within the prescribed period. Under no circumstances there shall be deemed continuation of registration of the Unit after expiry of its original period of registration. It shall be as much a duty of the owner of the Unit as it would be that of the duty holder to ensure that application for renewal is disposed of, in accordance with law, within the stipulated period of time. Disciplinary action against the defaulting officers/officials be promptly initiated.
viii. For protection and conservation of environment, so that there is minimum adverse impact and emission of pollution from the stone crushing unit, it be ensured that the unit-holder plants at least 3 rows of tall fast growing species of trees on all sides of the Unit. This would not only increase the vegetative growth of the area and make the place look beautiful but also act as a wind barrier.
ix. The Unit shall ensure that aggregate is stacked in such a manner that it does not spill over to the Highways/roads which can be cause of road accidents.
x. Sign board at a prominent place outside the stone crushing unit shall be displayed indicating the name of the owner, capacity of the unit, date of registration of the unit as also its expiry, telephone number of the owner and the concerned officer to whom public can make a complaint, if any.
Respondents-State shall ensure strict compliance of the same.