Sagar Chand vs State of J&K

Mr. Bansi Lal Bhat, J.—Petitioners, who are residents of village Chann Tatiyal and Kote Qasba Tehsil Hiranagar District Kathua being owners

of agricultural land in the villages and depending on agriculture for livelihood, are aggrieved of installation of a stone crusher in village Chak Baldana

Panchayat Salan by respondent No. 11 under the name and style of M/s Baba Brahma Stone crusher. It is averred in the petition that No

Objection Certificates-""NOC(s)"" were issued by different authorities/departments in favour of respondent No. 11 without verifying the position on

spot. Petitioners claim to have raised the issue before such authorities whereupon the Deputy Commissioner Kathua immediately stopped the

construction of stone crusher. Aggrieved thereof, respondent No. 1 filed OWP No. 1611/2012 while OWP No. 1715/2012, came to be filed by

one Mohd. Kalo. Both writ petitions were clubbed together and the writ Court vide its order directed Conservator of Forests Jammu Kathua

Range to visit the spot and indicate the location of stone crusher and its distance from the demarcated forest. It is further averred in the petition that

as per report of Conservator of Forests, the stone crusher was located at a distance of less than 500 mts. from the demarcated forest. Deputy

Commissioner submitted his report stating therein that the installation of stone crusher does not conform to the norms fixed by the State. The writ

petitions were disposed of by directing the competent authority to reconsider the issue for grant of NOC(s) and permission for installation of stone

crusher and take decision within period of four weeks. Thus, the impugned orders in both petitions came to be set aside and competent authority

was left free to reconsider the entire issue. Meanwhile, status quo was directed to be maintained. It is further averred in the petition that the unit has

not been provisionally registered after expiry of its provisional registration which was valid upto March, 2013 and none of the Departments has

issued NOC in favour of respondent No. 11. DFO Kathua is said to have communicated to respondent No. 10 and the Pollution Control Board

that the installation of the stone crusher at the proposed site is totally against the norms as the distance of stone crusher from the demarcated forest

is less than 500 mts. whereas in terms of the norms it should be 1 kilometer away from the demarcated forest. It is further averred that only

respondent No. 10 had issued notice to petitioners at the stage of submission of documents. However, petitioners were shocked to find that in

terms of consent order No. 1409/2014 respondent No. 11 has been granted permission for installation of stone crusher at the proposed site. The

said consent order issued by respondent Nos. 3 and 4 is said to be totally against the norms and in violation of the judgment passed by this Court

in the two writ petitions. The impugned consent order is assailed as being violative of the legal rights of petitioners besides being violative of the

criteria governing installation of stone crushers.

Right of respondents other than respondent Nos. 5 and 11 to file reply stands closed. Respondent No. 5-the Deputy Commissioner has filed

objections pleading therein that as per report of DFO Kathua the aerial distance of the site of the stone crusher from the nearest boundary line of

demarcated forest is 498 mts. and no NOC has been issued in favour of respondent No. 11. It is further pleaded that as per report of BMO the

residential houses are situated very near to the site of stone crusher approximate distance being 200 mts. The stone crusher, as per report of

Tehsildar is non-functional. As per report of General Manager DIC Kathua the stone crusher was provisionally registered with his office on

24.03.2011 and the said registration has expired on 23.03.2013 which has not been renewed till date. No NOC has been issued from office of

Deputy Commissioner Kathua in favour of respondent No. 11. It is further pleaded that no permission can be granted as residential houses are

located barely at a distance of 200 mts. from the site of stone crusher which will cause health hazard to the local inhabitants.

Respondent No. 11 has filed objections contesting the petition on the ground that the location of stone crusher is at a distance of about 2 kms

from residences, and agricultural lands of petitioners, thus, no damage will be caused to their person and property. It is further pleaded that the unit

was registered by District Industries Center on 25.03.2011 after obtaining NOC(s) from concerned authorities/departments. Orders passed by

Deputy Commissioner stopping installation of stone crusher were questioned in OWP Nos. 1611/2012 and 1715/2012. Both petitions were

disposed of by order dated 15.05.2013 directing competent authority to reconsider the issue of grant of NOC(s) and permission. The Deputy

Commissioner Kathua called upon General Manager District Industries Center Kathua to consider grant of permission/NOC for stone crusher

after hearing all interested parties. General Manager DIC informed all the parties and called objections from various departments. As none

attended or responded, order dated 03.09.2013 was passed certifying the existing registration. It is further pleaded that the Pollution Control

Board had adhered to the norms while issuing the NOC. The order dated 03.09.2013 passed by respondent No. 10 has not been questioned and

the consent order (Renewal) dated 06.02.2014 allowing period of installation upto August, 2014 has been lawfully issued. The remedy of

petitioners lies in approaching the Board with a complaint against the consent order. However, the instant writ is not maintainable.

Heard learned counsel for the parties.

Installation of stone crusher in question became the issue involved in OWP(s) 1611/2012 and 1715/2012, the former filed by respondent No.

11 herein whereas NOC issued by various authorities in favour of respondent No. 11 herein was called in question in OWP No. 1715/2012. The

two petitions were clubbed for hearing and disposed of by a common order dated 15.05.2013 in the following terms:

The competent authority(s) will re-consider the issue for grant of NOC(s) and permission for installation of Stone Crusher in favour of the

petitioner in OWP No. 1611/2012. While considering and taking decision, petitioners in both the petitions and other interested persons shall be

given an opportunity of hearing and the material produced the parties in support of their respective claim shall also be considered. The competent

authority(s) to take decision within a period of four weeks' from the date copy of this order is served upon it. The impugned orders in both the

petitions are set aside, leaving the authorities free to reconsider the entire issue in accordance with law and Government Order occupying the field.

The District Level committee constituted for the purpose shall be responsible to comply with the aforementioned directions. Till the decision is

taken by the Committee constituted for the purpose, status quo in respect of construction/installation of Stone Crusher shall be maintained.

Communication from Tehsildar HQA to Deputy Commissioner Kathua dated 17.07.2013 to General Manager DIC Kathua required the latter

to consider the grant of permission/NOC for stone crusher after hearing all the interested parties. This communication forming Annexure R-1 to the

objections filed by respondent No. 11 is a sequel to the order dated 15.05.2013 passed by this Court while disposing of OWP Nos. 16/11/2012

& 1715/2012. Annexure R-2 is the order passed by General Manager DIC Kathua. Its perusal brings it to fore that the General Manager had

called all interested parties to attend his office on 27.08.2013 along with material evidence and different Departments were asked to intimate any

objection to NOC(s) already issued by them in favour of respondent No. 11. However, none except the petitioners attended the office of General

Manager DIC Kathua and no response was received from any Department. It was observed in the order that the Unit has been provisionally

registered on 25.03.2011 for crushing of stone and sand after obtaining requisite NOC(s) from different Departments as per norms. From a plain

reading of this order it appears that the General Manager District Industries Center Kathua has not recorded any finding in regard to the validity of

NOC(s) granted by various departments previously in favour of respondent No. 11 which had already been set aside by this Court in terms of

order dated 15.05.2013 and were required to be reconsidered. Granting of provisional registration in terms of order dated 25.03.2011 pursuant

to the NOC(s) which had been set aside would be of no consequence. The provisional registration, otherwise also, was for a limited period of two

years and had expired by efflux of time. Objections filed by respondent No. 5 subsequent thereto are emphatic on the point that the aerial distance

of the site of the stone crusher in question from nearby boundary line of demarcated forest is 498 mts. as reported by DFO Kathua and no NOC

has been issued from his office in favour of respondent No. 11. The Deputy Commissioner has taken note of the report submitted by BMO to the

effect that the residential houses are situated approximately at a distance of 200 mts. from the site of the stone crusher. He also noticed that the

provisional registration of stone crusher of respondent No. 11 had expired on 23.03.2013 and the same had not been renewed thereafter. He has

stated in unambiguous terms that no NOC has been issued in favour of respondent No. 11 from the office of Deputy Commissioner Kathua and no

such permission can be granted in view of health hazard posed by its operation to the local residents living hardly at a distance of 200 mts.

Compliance report filed by Conservator of Forests in terms of order dated 01.03.2013 brings it to fore that the distance of the stone crusher in

question from demarcated forest is less than 500 mts. The distance appears to have been measured using all scientific methods including GPS,

Google Earth, GT sheet method and direct physical method. To be precise, the report submitted by DFO Kathua forming Annexure-H to the

petition specifies such distance as 498 mts. This communication appears to be addressed to General Manager DIC Kathua clearly specifying that

the distance involved was barely 498 mts. and not 1 km as stated in the NOC issued earlier and that the provisional registration on the basis of

previously issued NOC could not be granted. Annexure-I is the communication dated 15.04.2014 from DFO Kathua to one Kalu Khan stating

therein that no distance certificate had been issued apart from the report submitted by Conservator of Forests to this Court. Annexure-J is the

copy of revised sitting criteria for stone crushers by virtue whereof no stone crusher can be allowed to operate within the limits of 1 km of forest

land figuring at Serial No. 7.

It appears that the directions passed by this Court in terms of order dated 15.05.2013 have not been scrupulously adhered to and attempt has

been made to gloss over the truth. Merely because various Departments had failed to respond would not justify the conclusion that such

Departments had no objection in granting NOC to the installation of stone crusher in question. The report submitted by the Deputy Commissioner,

Conservator of Forests and the DFO clearly states that the aerial distance from the edge/pillar of the demarcated forest to the site of stone crusher

in question was less than 500 mts. and did not satisfy the sitting criteria for installation of stone crushers which required a minimum distance of 1 km

from the proposed site of stone crusher upto the forest land. Issuing of the NOC by any of the departments as also the issue of permission to install

the stone crusher would, in the given circumstances, play havoc with the ecology, destroy the forests, retard the growth of trees, damage the soil

and adversely impact the flora and fauna. The air pollution caused by operation of the stone crusher at the given site would seriously jeopardise

public health as the local residents, whose houses are reported to be located approximately at a distance of 200 mts. from the site of the stone

crusher, would be exposed to the dust and polluted air posing serious health hazard. That apart, the agricultural land would also be destroyed by

the thick layer of dust caused by the operation of the stone crusher which would render the land barren and unsuitable for growing crops.

The issues raised in these petitions are of serious concern for petitioners besides serious apprehension to the green wealth of the State. The

material placed on record clearly demonstrates that besides hazard to the health of the local residents, ecology, environment and the forests located

barely within 500 mts. of the site of stone crusher in question, would be seriously affected. The consent order issued by respondent No. 3 and 4,

thus, cannot be supported and the same is liable to be quashed. Respondents are also liable to be directed not to allow the respondent No. 1 to

install the stone crusher at the proposed site. The petitions are allowed and writs in the nature of certiorari and mandamus in terms of the prayer are

accordingly issued.

Disposed of.