Mahesh Chand Chopra vs J & K Pollution Control Board and Anr.

An order passed by the Jammu and Kashmir Pollution Control Board, whereby the petitioner has been called upon to not to carry on the

activity of stone crushing in the area in which he is so carrying on is the subject matter of challenge in this petition.

A notice regarding the above action was issued by the respondents on 16th Nov' 99.

The learned counsel for the petitioner submits that he is carrying this activity in pursuance of the permission granted by the Industries department

in the year 1981. This has been placed on the record as Annexure A. It is thus submitted that once this permission is granted, no impediment can

be created by the Board in question and the petitioner cannot be called upon to stop the stone crushing activity.

The first decision on the subject where the Supreme Court intervened and called upon the State authorities to see that stone crushing units do

not disturb the ecological balance is reported as M.C Metha v. Union of India, (1992) 3 SCC 256. In pursuance of this decision, the State

authorities in various parts of the country took steps with a view to see that the air pollution which is caused on account of stone crushing is

minimized and this activity is undertaken in a manner that the residential areas are not affected by it. As to how much damage is caused by stone

crushers is a matter on which a Division Bench of Punjab and Haryana High Court in the case of Ishwar Singh v. State of Haryana, AIR 1996

Punjab and Haryana 30, observed as under:

We have investigated the health problems due to the pollution caused by stone crushers in Panchkula and Surajpur areas of Haryana, in a pilot

fashion. We have examined the health status of 397 subjects working at the sites, as well as residents of the nearby area of several stone crushers.

We found a significantly high prevalence of respiratory (44.6%) and gastrointestinal (30.2%) problems. Needless to say that the problems are

similar for other places as well. The issue of health effects of environmental pollution is very important. We are aware that stone crushers are

required in the overall development of the State and the Society. But a balance has to be struck between the needs of the industry (sic) increased

costs and due to measures to minimize the health hazards; versus the issues of human health and aesthetic values. Considering the fact that health is

the supreme goal, it is essential measures and educational steps which may help in minimizing the health risk, have been suggested in this report.

The air we breathe, is a mixture of nitrogen and oxygen with minor constituents like carbon dioxide and trap gases. Pollutants are substances which

are not normally present in the air e.g. dust, smoke industrial and automobile exhaust, gaseous and particulate matter. Nature and amount of these

pollutants vary from place to place depending upon population vehicular density, location of industrial units etc.

Lungs are the major organs affected by the air pollution because of the direct contact of the respiratory track with outside atmosphere. The

spectrum of functional and pathological reactions of the lungs to various exposures is wide. Chronic Bronchitis and airways obstruction is the result

of long term exposures to air pollution. Exposure of many of the occupational and environmental pollutants can precipitate and/or aggravate

asthma. Organic matter/dusts can also cause other allergic reactions producing allergic alveolitis. Inorganic dusts may get deposited in the lungs and

produce fibrosis. This produces respiratory disability and decreased work efficiency. While anthracosis is common in coal miners, silicosis occurs

in those exposed to the silica dust namely the workers involved in mining, pottery work and sand blasting. Exposure to dust may lower the lung

defences and clearing mechanism, resulting in infections particularly tuberculosis. Some such occupational exposures may cause lung cancer as

well. Stone crushing in an important occupation in Haryana. There are plenty of stone crushers in Panchkula, Chandimandi, Surajpur, Tosham

(Bhiwani), Gurgaon and Faridabad areas Due to stone crushing a lot of thick dust is generated polluting the environment, visible dust contained

particles more than 50 u in diameter, which settle down in the nose and pharynx. Smaller particles of 510 u size remain suspended in air and are

inhaled deeper. These are deposited in tracheobronchial tree and lung parenchyma and may induce fibrosis. This causes long function impairment

and debility. These may also reactivate the old tubercular foci in the lungs. The water sources of these areas are also effected. This happens due to

the dusts deposited on exposed water courses and containers and unhygienic living conditions of the workers involved in the profession. Many

gastrointestinal and liver ailments may, therefore, be seen. There is no information available about the health status of the workers involved in stone

crushing as also of the residents of the nearby localities. From the general evidence available from similar occupations, it is quite likely that the

health status of these people is significantly impaired. Therefore, we proposed to study this problem in a pilot fashion in a limited area.

In the above case, the Punjab and Haryana High Court took notice of what was said by the Supreme Court in M.C. Mehta's case (supra). The

directions given were noticed. What was observed in para 11 of the judgement by the Division Bench is being reproduced below:

In M.C. Mehta's case (supra) decided on 15.03.1992 (1992)3 SCC 256, the Supreme Court noted that environmental changes are the inevitable

consequence of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by

polluting the air, water and land to such an extent that it become a health hazard for the residents of the area. Dealing with the case of stone

crushers located near or around Delhi, the Supreme Court observed that ""we are constrained to record that Delhi Development Authority,

Municipal Corporation of Delhi, Central Pollution Control Board and Delhi Pollution Control Committee have been wholly remiss in the

performance of their statutory duties and have failed to protect the environments and control air pollution in the Union Territory of Delhi. Utter

disregard to environment has placed Delhi in an unenviable position of being the world's third grubbiest, most polluted and unhealthy city as per a

study conducted by the World Health Organisation. Needless to say that every citizen has a right to a fresh air and to live in pollution free

environments."" The Supreme Court thereafter issued the following directions:

The mechanical stone crushers established/operating in Lal Kuan, Anand Parbat, Rajkori, Tughlakabad and in any other area of the Union

Territory of Delhi shall stop operating/functioning with effect from August 15, 1992. No stone crusher shall operate in the Union Territory of Delhi

from Au gust 15, 1992 onward.

The mechanical stone crushers established/operating in Suraj Kund, Lakhanpur, Lakharpur, Kattan, Gurukul Badkhal, Pallinangla, Sarainkhaja,

Anangpur and Ballabgarh areas of Haryana shall stop operating/functioning with effect from August 15, 1992. No stone crusher shall operate in the

above said area from August 15, 1992 onward.

The writ petitions filed by the owners/proprietors of stone crushers in the Delhi High Court which have been transferred to this Court shall stand

dismissed with no order as to costs.

The stone crushers in the Union Territory of Delhi/Faridabad Ballabgarh Complex which do not have valid licences from the authorities under

the Delhi Municipal Corporation Act, 1975/Faridabad Complex Administration (Regulations and Development Act, 1971 or from any other

authority which the law requires, shall stop functioning and operating with immediate effect.

The stone crushers, in respect of which closure orders/directions have been issued by the Central Pollution Control Board under S. 31 A of Air

(Prevention and Control of Pollution) Act, 1981 or by the Central Government Pollution under S.5 of the Environment (Protection) Act, 1986,

shall stop functioning/operating with immediate effect.

The Delhi Development Authority through its ViceChair man and Commissioner (Planning), the Delhi Municipal Corporation through its

Commissioner, Faridabad Complex Administration through its Chief Administrator, Director Town and Country Planning Department, Haryana,

Deputy Commissioner, Faridabad, Haryana Urban Development Authority through its Commissioner/Chief Executive Central Pollution Control

Board through its Member Secretary, Central Government under the Environment (Protection) Act, 1986 and the Commissioner, Police of Delhi,

are directed to ensure the compliance with our above orders.

The officers of the Town and Country Planning Department, Government of Haryana, who were present in Court, informed us that new

crushing zone"" has been approved at village Pali and the lay out plan has been prepared and is in the process of demarcation by the Haryana

Urban Development Authority. The said ""Crushing Zone"" has been set up with the object of rehabilitating the existing stone crushers who are being

stopped from functioning as a result of our orders. We, therefore, direct the State of Haryana through the Director, Town and Country Planning

Department, Haryana, Chandigarh, the Chief Administrator, Faridabad Complex Administration, the Deputy Commissioner, Faridabad and the

Haryana Urban Development Authority to demarcate, and allot the sites to the stone crushers mentioned in paras 1,2,4 and 5 above by draw of

lots or by any other fair and equitable method. We further direct these authorities to provide additional land in or around the ""crushing zone"" if there

is not sufficient land in the said zone to accommodate all the stone crushers affected by our orders. This exercise shall be completed and plots

offered to the stone crushers within a period of

six months from today. The Director, Town and Country Planning Department, Haryana, Chandgarh is further directed to sent a progress report to

Registry of this Court before July 31, 1992 in this respect.

After taking note of the aforementioned decision, the preliminary objection with regard to the maintainability of the writ petition at the instance of

a person who had initiated the litigation as Public Interest Litigation on examined. In this regard the earlier view expressed in an unreported case

was taken note of and it was observed that:

Under the normal circumstances and on the basis of the traditional rule in regard to locus standi, it is only a person who has suffered a legal injury

by reason of violation of his legal right by the impugned action, or who is likely to suffer an injury by the reasoning of threatened violation of his

legal right can alone approach the Court invoking its jurisdiction for the issuance of any of the writ Constitution of India. The basis of entitlement of

judicial redress being personal injury to property, body, mind or reputation arising from violation, actual or threatened of the legal right or legally

protected interest of the person seeking such redress, only such aggrieved person could approach the Court for the redressal of his grievance.

Thereafter, reference was made to the judgement by the Supreme Court in S.P. Gupta v. Union of India, AIR 1982 SCT 149, a decision of

Queens' Bench and the decision given in K.R. Shenoy's case. What is stated in being quoted below :

The Supreme Court in S.P. Gupta v. Union of India, AIR 1982 SC 149, held that such rule to be a 'rule of ancient vintage and it arose during an

era when private law dominated the legal scene and public law had not yet been born'. After referring to the case in Sidebotham's case (1880) 14

Ch D 458 and Reed Bowen and Co.'s case (1887) 19 QBD 174 of the English Courts, it was held ""but narrow and rigid through this rule may be,

there are few exceptions to it which have been evolved by the Courts over the years."" In KR Shenoy v. Udipi Municipality, AIR 1974 SC 2177, it

was held that against an illegal action of the local authority, a rate payer could question the action of the Municipality in granting a cinema license to

a person.

It was ultimately concluded that Public Interest Litigation can be resorted to. What was said in SP Gupta's case (supra) was quoted and is being

quoted again:

We could, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising

from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and

observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and

accelerating the pace of realization of the constitutional objective ""Law"", as pointed out by Justice Krishna Iyer in Fertilizer Corporation Kamgar

Union v. Union of India, AIR 1981'SC 344, is a social auditor and this audit function can be put into action when some one with real public

interest ignites the jurisdiction. A feeling is sometimes expressed that if we keep the door wide open for any member of the public to enter the

portals of the Court to enforce public duty or to vindicate public interest, the court will be flooded with litigation. But this fear is totally unfounded

and the argument based upon it is answered completely by the Australian Law Reforms Commission in the following words:

The idle and whimsical plaintiff a dilettante who litigates for a lark, is specter which hunts the legal literature not the court room (Prof. K.E Scott:

Standing in the Supreme Court: A Functional Analysis"" (1973) 86.

A major expressed reason for limiting standing rights is fear or a spate of actions brought by busy bodies which will unduly extend the resources of

the Courts. No argument is easier put, none more difficult to rebut. Even if the fear be justified it does not follow that present restrictions should

remain. If proper claims exist it may be necessary to provide resources for their determination. However, the issue must be considered. Over

recent years successive decisions of the United States Supreme Court have liberalized standing so as to afford a hearing to any person with a real

interest in the relevant controversy. Surveying the result in 1973 Professor Scott commented (OP Cit, 673). When the floodgates of litigation are

opened to some new class of controversy by a decision it is notable how rarely one can discern the flood that the dissenters feared.

Professor Scott went on to point out that the fliberalised standing rules had caused no significant increase in the number of actions brought, arguing

that parties will not litigate at considerable personal cost unless they have a real interest in a matter.

At the same time, it was also ob served that the Courts should be careful and should take into consideration that the person who comes to the

Court comes bonafide and not for personal gains or private profit or political motivation or other oblique considerations. The court should not

allow its process to be abused by politicians and others to delay legitimate administrative action to gain a political objective.

With regard to the question of locus standi, detailed observations were made in paragraphs 18 to 23 of the judgement by the Division Bench of

Punjab and Haryana High Court and ultimately in para 24, it was concluded as under:

The question of locus standi would not be material and the Court would allow litigation in public interest if it is found:

i. That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India and relief is sought for its enforcement;

ii. That the action complained of is palably illegal or malafide and affects the group of persons who are not in a position to protect their own interest

on account of poverty, incapacity or ignorance of law ;

iii. That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of

public duty or from violation of some provision of the Constitutional law;

iv. That such person or group of persons is not a busybody of meddlesome interloper and have not approached with malafide intention of

vindicating their personal vengeance or grievance;

v. That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objectives. Every

default on the part of the State or Public Authority being no justifiable in public in such litigation;

vi. That the litigation initiated in public interest was such that if not remedied or presented would weaken the faith of the common man in the

institution of the judiciary and democratic set up of the country;

vii. That the State action was being tried to be covered under the carpet and intended to be thrown out of technicalities;

viii. Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction

that the information laid before the Court was of such a nature which required examination;

ix. That the person approaching the Court has come with clean hands, clean heart and clean objectives;

x. That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant,

politicians, busybody or persons or groups with malafide objective of either for vindication of their personal grievance or by resorting to

blackmailing or considerations extraneous to public interest.

Regarding the air pollution and its overall affect on the wildlife, detailed observations were made by the Division Bench in para 31 of the

judgement in Ishwar Singh's case, which stand already noticed above. Ultimately, in para 46, it was concluded as under:

Under the circumstances this petition is disposed of with the following directions:

That all the private respondents who are owners of the stone crushers, shall close down their stone crushing business and shift them to the

identified zones positively within a period of one month from the date of this judgement;

The State Government shall take immediate steps for closure and shifting of stone crushers to the identified zones and issue licences only in

favour of such persons who decide to shift their business of stone crusher to the identified zones;

That all the stone crushers located at present locations shall be deemed to have been closed after one month and shall not be permitted to carry

on business of stone crusher on any ground or pretext whatsoever;

That private respondents shall not purchase and the petitioner shall not sell his land, situated in identified zones for the purposes of installation of

stone crushers or any other identical and ancillary purpose.

That the citizens of the area are authorized to prefer their claims for grant of compensation; for those persons who are proved to have suffered

due to pollution caused by stone crushers owned and managed by private respondents. Claims for such compensation may be entertained within

two months after such right is notified to the inhabitants of the area. Such claims, if preferred, shall be considered and disposed of within three

months and if any of the respondentsstone crushers is found to be responsible for making compensation, the same shall be paid by him within a

period of two months thereafter, failing which his license for carrying on stone crusher business shall be cancelled. It is expected that while issuing

the notification inviting the claims for compensation, the respondentState shall appoint an Authority for entertainment and adjudication of such

claims for compensation. It would be appreciated if the person having judicial background is appointed as such Authority;

That even though the State of Punjab has not been a party before us, yet copy of this judgement shall be served upon the Chief Secretary of

State of Punjab for taking up appropriate steps as per our observations made hereinabove.

A copy of this judement shall be sent to the Chief Secretary of Government of Himachal Pradesh and the Registrar of the High Court of

Himachal Pradesh for their information and necessary action, if so desired.

In the light of what has been stated by the Division Bench of Punjab and Haryana High Court in the aforementioned case and which

observations have been noticed above, it would be apt to notice the controversy which has been raised in this petition.

It be seen that notice dated 16th Nov' 99 i.e the notice impugned in the petition, has been issued taking into consideration the following factors

:

i. That no such unit can operate unless and until there is permission from the Pollution Control Board in terms of Section 25/26 and Section 21 of

the Water (Prevention and Control of Pollution) Act of 1974 and also the Air (Prevention and Control of Pollution) Act, 1981;

ii. That the sites where the units are being run have not been approved by the Board in question; iii. That large number of complaints have been

received that on account of pollution caused by stone crushing activity, there is a grave threat to the health and safety of the people living in these

areas;

iv. That number of notices were issued to the concerned units to perform their activities as per the Acts referred to above, but no ' steps were

taken by them.

After having heard learned counsel for the parties, I am of the opinion that no exception can be taken to the action taken by the Board in

question. As a matter of fact, the action should have been taken much earlier. The judgement was given by the Supreme Court on the subject in the

case of MC Mehta's case (supra) in the year 1992; the Pollution Control Board of the State has slept over the matter for almost seven years.

The Board, however, has not acted in pursuance of the directions of the Supreme Court and these directions are to be complied with by all

concerned. Needless to mention that the judgement given by the Supreme Court of India is the law of land in terms of Article 141 of the

Constitution of India and any disobedience of the same by anybody can lead to action under the contempt of courts act. Such is the view

expressed by the Supreme Court in the case of Dwarikesh Sugar industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and another, (1997)

6 SCC 450, wherein it was observed that ""when a position, in law, is well settled as a result of judicial pronouncement of this court, it would

amount to judicial impropriety to say at least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a

judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the

tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting

wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.

I am of the view that had the Board not taken any action, it would have been liable to contempt, but as indicated above, it having taken action

with a view to comply the judgment of the Supreme Court, it would be apt at this stage to put a stop to this. The action taken by the Board in

question is accepted. The petition is found to be without merit and is dismissed. The Board is directed to proceed further in the matter, take

necessary action within a period of two months form the date, a copy of this order is made available to it.

Registry is directed to sent a copy of this order the respondent Chairman of the J&K Pollution Control Board, Jammu.

Petition as indicated above shall stand dismissed.