(1) With the closure of their stone crushers, with the threat to their right to livelihood, the petitioners, the owners of the stone crushers, have rushed to this Court for protection. Since through these petitions, the petitioners have challenged two orders, both dated 04.02.2010, passed by the Rajasthan State Pollution Control Board ('the Board', for short), these petitions are being decided by this common judgment. However, for the sake of clarity, the facts from S.B. Civil Writ Petition No.2593/2010, M/s Bahubali Stone Crusher v. Rajasthan State Pollution Control Board, are being narrated hereinafter.
(2) It is the case of the petitioner-firm that it had established an industrial unit for production of grit stone at village Bolkhera, Tehsil Kaman, District Bharatpur. The petitioner-firm was not only duly registered with the Board, but vide order dated 15.05.2004, the Board had granted the consent to operate to the petitioner-firm for its unit. The said consent was valid till 30.04.2009. From 15.05.2004 till 15.03.2008, the petitioner claims that it had been running its unit in accordance with the requirement of the Air (Prevention and Control of Pollution) Act, 1981 ('the Act', for short), and according to the conditions imposed by the Board. However, the District Collector, Bharatpur had constituted a Committee for inspecting the various stone crushers operating in the Bharatpur District. According to the report of the said Committee, certain deficiencies were discovered at the petitioner's unit. Therefore, the Board issued a notice dated 15.03.2008, under Section 21(4) of the Act, wherein certain deficiencies were pointed out, and it was indicated by the Board that it is likely to revoke the consent to operate unless the deficiencies pointed out were not addressed to. Immediately on 27.03.2008, the petitioner filed its preliminary objections and requested that the copy of the inspection report be given to it so that it could file a substantial reply. Despite the fact that the copy of the inspection report was not given to the petitioner, on 29.03.2008, the petitioner still filed a detailed reply to the show cause notice.
(3) From 29.03.2008 till 02.01.2009, i.e. for almost ten months, the Board maintained a studied silence over the entire issue. However, on 02.01.2009, the Board issued another notice to the petitioner. This notice was under Section 31A of the Act. The Board pointed out another set of deficiencies and threatened to revoke the consent order and to direct the closure of the unit. Again the petitioner requested that the relevant documents, on which the Board was relying upon for issuing the said notice, should be supplied to it. However, even this request fell on deaf ears.
(4) Meanwhile, on 12.01.2009 the petitioner filed an application under Section 21 of the Act, for renewal of the consent order, as the petitioner's consent order was about to expire on 30.04.2009. According to the petitioner, despite the said application, the Board did not take any concrete steps for considering the said application. Instead, the Board issued an order dated 21.07.2009 under Sections 21 and 31A of the Act, refusing to extend the consent to operate, and directing the petitioner to close its unit immediately. Since the petitioner was aggrieved by the said order, it filed a writ petition before this Court, namely S.B. Civil Writ Petition No.9991/2009. Like the petitioner, other owners of the stone crushing unit had received similar orders. Hence, they, too, filed similar petitions before this Court. While deciding all the petitions by a common judgment, on 08.12.2009. this Court passed the following order :
While following the Constitution Bench judgment of the Hon'ble Supreme Court in S.N. Mukherjee's case (supra), all these writ petitions are hereby allowed and orders impugned in these writ petitions, passed by the Rajasthan State Pollution Control Board for closure are hereby quashed and set aside. The matter is hereby remitted to the Rajasthan State Pollution Control Board for deciding the same afresh and all the petitioners are directed to appear before the Pollution Control Board on 22.12.2009 and the State Pollution Control Board is directed to decide the matter after considering the grounds taken in the reply and after providing opportunity of hearing to the petitioners, by speaking order. (5) In pursuance of the directions of this Court, on 29.12.2009 the petitioner submitted a detailed reply along with the relevant documents before the Board. However, vide order dated 04.02.2010, the Board has refused to grant consent under Section 21 of the Act to the petitioner. Moreover, vide another order, also dated 04.02.2010, issued under Section 31A of the Act, the Board has directed the petitioner and the District Collector, Bharatpur, the Executive Engineer, Jaipur Vidhyut Vitran Nigam Limited, Deeg, District Bharatpur, and the Regional Officer of the Board to immediately close the petitioner's industrial unit. Similar orders have been passed in the case of other petitioners, hence all these petitions before this Court.
(6) Mr. Akhil Simlote, the learned counsel for the Board, has questioned the maintainability of the present petitions on the ground that Section 31 of the Act provides that any person aggrieved by an order made by the State Board may..... prefer an appeal before the Appellate Authority constituted by the State Government. Thus, according to the learned counsel, the petitioners have an alternate remedy available to them. Hence, the present petitions are not maintainable before this Court.
(7) On the other hand, Mr. Sunil Nath, the learned counsel for the petitioner, and other learned counsel, have contended that at the relevant time when the impugned orders were passed, the Appellate Authority was not functioning. Therefore, they had no other option, but to directly approach this Court under its writ jurisdiction. Secondly, the scheme of the Act reveals that the Act makes a distinction between an order passed by the State Board and the directions issued by it. While Section 31 of the Act provides a right to file an appeal against an order, the said Section does not provide the right to file an appeal against the directions issued under Section 31A of the Act. In case, the legislature in its wisdom wanted to bestow the right to file an appeal against the directions, then Section 31 of the Act would have included the word directions. However, the said word is conspicuously missing from Section 31 of the Act. Therefore, the said word cannot be read and cannot be inserted by a judicial interpretation. To do so would be to violate the phraseology of Section 31 of the Act. Moreover, in case the word directions were to be read as part of the word order use in Section 31 of the Act, then there is no reason why the power to issue directions has been enumerated below Section 31 of the Act, namely in Section 31A of the Act. Thus, clearly the right to file an appeal against directions issued by the Board does not exist under the Act. Thirdly, in the alternative, the existence of an alternative remedy is not an absolute bar to a person approaching the High Court under its writ jurisdiction. In case an order has been passed in violation of principles of nature justice, then the aggrieved party would be entitled to invoke the writ jurisdiction of the High Court. In order to buttress this contention, the learned counsels have relied upon the cases of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. [(1998) 8 SCC 1], Popcorn Entertainment & Anr. v. City Industrial Development Corpn. & Anr. [(2007) 9 SCC 593], and M.P. State Agro Industries Development Corpn. Ltd. & Anr. v. Jahan Khan [(2007) 10 SCC 88]. According to the learned counsel, one of the requirements of principles of natural justice is that a quasi-judicial or judicial body must pass a speaking order. But the impugned orders dated 04.02.2010 are non-speaking orders. Therefore, they violate the principles of natural justice. Hence, the petitioners are justified in invoking the writ jurisdiction of this Court. They are further justified in invoking the writ jurisdiction as their right to livelihood and their right to life guaranteed by Article 19 and Article 21 of the Constitution of India, respectively, are apparently being threatened.
(8) Heard the learned counsel for the parties on the preliminary objection.
(9) Section 17 of the Act lays down the functions of the State Board. Section 17(e) of the Act empowers the Board to inspect, at all reasonable time, any control equipment, industrial plant or manufacturing process and to give, by order, such directions to such persons as it may consider necessary to take steps for the prevention, control or abatement of air pollution. (10) Section 21 of the Act prevents a person from establishing or operating any industrial plant in the air pollution control area without the previous consent of the Board. Section 21 Sub-clause (4) empowers the Board to either grant or to refuse to grant the consent by passing an appropriate order. The proviso to the Sub-clause (4) of Section 21 of the Act also empowers the Board to cancel a consent before the expiry of the period for which it had been granted in case the conditions for grant of consent are not fulfilled.
(11) Section 31 of the Act is as under :
31. Appeals:
(1) Any person aggrieved by an order made by the State Board under this Act may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority (hereinafter referred to as the Appellate Authority) as the State Government may think fit to constitute : Provided that the Appellate Authority may entertain the appeal after the expiry of the said period of thirty days if such authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2). The Appellate Authority shall consist of a single person or three persons as the State Government may think fit to be appointed by the State Government.
(3) The form and the manner in which an appeal may be preferred under sub-section (1), the fees payable for such appeal and the procedure to be followed by the Appellate Authority shall be such as may be prescribed.
(4) On receipt of an appeal preferred under sub-section (1), the Appellate Authority shall, after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible.
31A. Power to give directions :-
Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions. Explanation.- For the avoidance of doubts, it is hereby declared that the power to issue directions under this section, includes the power to direct-
(a) the closure, prohibition or regulation of any industry, operation or process ; or
(b) the stoppage or regulation of supply of electricity, water or any other service.
(12) A bare perusal of these provisions clearly reveals that Section 17 of the Act empowers the Board to give directions through orders. Thus, it makes the orders as the genus and the directions as species. It is not necessary that all orders would contain directions. This is apparent from Section 21 of the Act wherein the power to give orders is contained. According to Section 21 of the Act, the Board has the power to grant order for consent to operate a unit, the power to revoke or to renew the said consent. Thus, Section 21 of the Act clearly stipulates that while an order can be passed, the said order need not contain any directions. The distinction between an order and a direction is further apparent from a comparison between Sections 21 and 31A of the Act. Section 31A of the Act empowers the Board to give specific directions to any person, officer or authority and such person is bound to comply with such directions. Hence, the Act itself distinguishes between an order and a direction. Interestingly Section 31 of the Act grants the right to file an appeal only against an order. The said Section does not grant the right to file an appeal against directions. For, the said Section does not use the word direction, but merely uses the word order. Since the Act makes a distinction between the words order and direction, since Section 31 of the Act uses merely the word order, therefore, the word direction cannot be read into Section 31 of the Act. In case the word direction were to be read into Section 31 of the Act, it would violate the language of the said Section. Moreover, a word cannot be inserted into a provision through judicial interpretation. For, to do so, would be to amend a law a power not granted to the Courts. Lastly, it is to be noted that Section 31A of the Act which contains only the power to give direction is placed below Section 31 of the Act which confers the power to file an appeal against an order. In case the legislature in its wisdom wanted to bestow the right to file an appeal against a direction, then Section 31A of the Act should have preceded and not followed Section 31 of the Act. Thus, the Scheme of the Act is very clear that while Section 31 of the Act gives the right to file an appeal against an order, Section 31 of the Act cannot be interpreted to bestow the right to file an appeal against directions. Therefore, the learned counsel for the Board is unjustified in claiming that the petitioners had a right to file an appeal against directions issued under Section 31A of the Act in the impugned order dated 04.02.2010.
(13) Moreover, both the parties are ad idem that at the relevant time when the impugned orders were passed, the Appellate Authority was not functioning. In fact, the Appellate Authority has been constituted by the Government only on May 10th, 2010, whereas the petitions were filed on 17th February, 2010. Since the Appellate Authority was not functioning at the relevant time, the petitioners had no other option, but to invoke the writ jurisdiction of this Court. Thus, they cannot be faulted for having sought the refuge of this Court.
(14) It is, indeed, a settled position of law that the existence of an alternate remedy does not bar a person from invoking the writ jurisdiction of a High Court. In fact, the bar is merely a self-imposed restriction by the judiciary upon its plenary powers. In the case of Whirlpool Corporation (supra), in paras 14 and 15 of the report, the Hon'ble Supreme Court had observed as under :
The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose.
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
(15) Thus, where a case falls under one or more of the circumstances mentioned above, the aggrieved person would be entitled to invoke the writ jurisdiction of this Court. As shall be discussed hereinunder, one of the grounds for attacking the impugned orders is that the principles of natural justice have been violated. Moreover, the petitioners have consistently pleaded that their fundamental rights under Articles 19 and 21 of the Constitution of India are being violated by the Board. Since both the principles of natural justice and the fundamental rights have been violated, as shall be demonstrated hereinbelow, the petitioners were certainly justified in invoking the writ jurisdiction of this Court.
(16) For the reasons mentioned above, the preliminary objection is unacceptable, and the writ petitions are certainly maintainable.
(17) Mr. Sunil Nath and the other learned counsels for the petitioners, have raised similar contentions before this Court which are as under :
(18) Dealing with the order dated 04.02.2010 passed under Section 21 of the Act, they have contended that Section 21 of the Act empowers the Board to grant consent to operate, to renew or to revoke the said consent order. Moreover, the said section provides a procedure which the Board is legally bound to follow before exercising the three powers mentioned above. Despite the fact that the petitioners had applied for the renewal of their consent order, the Board has refused to renew the consent order without following the procedure under Section 21 of the Act. Secondly, the Board has confused between the power to renew and the power to revoke the consent order. For example, in the case of M/s Bahubali Stone Crusher, the petitioner had applied for renewal of the consent to operate. However, the order dated 04.02.2010 passed under Section 21 of the Act makes it abundantly clear that the power to renew has been refused ostensibly on the ground that the petitioner who is not fulfilling the deficiencies pointed out by the Board in its notices issued previously. However, in case the petitioners failed to remove the deficiencies, then the power of revocation can be exercised and not the power to refuse renewal of consent order. The order dated 04.02.2.10 passed under Section 21 of the Act suffers from the virus of non-application of mind and colorable exercise of power. Thirdly, the said order is based on surmises and conjunctures. Thus, it is legally untenable.
(19) While challenging the directions given vide order dated 04.02.2010, passed under Section 31A of the Act, the learned counsel have raised the following contentions : firstly, according to the judgment of this Court dated 08.12.2009, the Board was directed to decide the case afresh. However, the Board has relied on its previous notices, and has dealt with the replies which were submitted earlier by the petitioners. Therefore, it has failed to decide the case afresh.
Secondly, between the period 21.07.2009 and 04.02.2010, i.e. within seven months, much water had flown. Therefore, prior to issuing any directions under Section 31A of the Act, the Board, in fact, should have inspected the respective sites and should have issued fresh notices if any deficiencies were discovered. However, the Board has failed to do so. Instead relying on the previous notices and the replies thereto, it has passed the impugned order dated 04.02.2010.
Thirdly, the notices issued by the Board on different dates, namely 15.03.2008 and 02.01.2009, are not only vague, but most importantly are self-contradictory. According to the notice dated 15.03.2008, the petitioner, M/s Bahubali Stone Crusher, was informed that the exhaust pipe attached to DG Set is not of required height. However, in notice dated 02.01.2009, there was not a single word about any deficiency with regard to the DG Set. Yet, in the order dated 21.07.2009, the Board claimed that acoustic enclosure was not provided with the DG Set of 320 KVA.
Fourthly, the notice dated 02.01.2009 is based on surmises and conjuncture, for example, merely because the State Government has terminated the mining lease in Kaman and Deeg areas of District Bharatpur, the Board has presumed that there is no other source of raw material to feed the stone crushers except through illicit mining. Moreover, without any evidentiary basis, the Board has claimed that the stone crushers are causing health hazard and nuisance to the pilgrims of the Brij Chorasi Kos Parikrama Marg. Furthermore, it has claimed that the stone crushers are not operating the pollution control measures regularly without specifying the particular pollution control measures which were not being observed while operating the unit. Thus, the notice is equivocal. Fifthly, since the notice was unclear, the petitioners were not informed of the exact case which they had to meet out.
Sixthly, although the Board claims that inspections were carried out and the order dated 21.07.2009 was passed on the basis of these inspections, but the fact remains that the inspections were carried out subsequent to the notice dated 02.01.2009.
Seventhly and most importantly, despite the repeated request of the petitioners for supplying copies of the inspection report, the inspection report was never given to the petitioners. Therefore, the petitioners continue to be in the dark with regard to the case that they are supposed to meet out. Since a proper notice has not been given to the petitioners, since the relevant documents were not supplied, the Board has violated the principles of natural justice.
(20) The other order also dated 04.02.2010 passed under Section 31A of the Act is based on the order dated 04.02.2010 passed under Section 21 of the Act. Since the latter order is legally untenable, the former order loses its legal foundation. Hence, even the former order is legally untenable.
(21) Article 14 of the Constitution of India requires the action of the State to be just, fair and reasonable. Article 19 of the Constitution of India permits reasonable restrictions. Article 21 of the Constitution of India permits the right to livelihood to be deprived by a procedure established by law. However, in the present case the Board has violated the procedure established by law. Hence, the Board has violated the fundamental rights under Articles 14, 19, and 21 of the Constitution of India.
(22) On the other hand, Mr. Akhil Simlote, the learned counsel for the Board, has counter pleaded that in the judgment dated 08.12.2009, this Court had granted a limited time of only 15 days to the Board to decide the cases. In such a short span of time, it was not feasible for the Board to re-inspect the industrial sites, to re-issue fresh notice and to give a full opportunity of hearing to the petitioners. Thus, the Board was justified in relying upon the earlier notices, upon replies which were already submitted by the petitioners and to give them an opportunity of oral hearing. Secondly, according to the said judgment, the Board was directed to refer to the replies which were already filed by the petitioners on an earlier occasion, and to give them opportunity of hearing. Both these conditions were fulfilled by the Board before passing the impugned orders. Thirdly, the Board has given cogent reasons for rejecting the replies filed by the petitioners and for refusing to grant the extension of consent order and for directing the closure of the unit under Sections 21 and 31A of the Act respectively. Lastly, the learned counsel has contended that other stone crushing units had challenged the order dated 05.02.2010 whereby the Board also declined to renew the consent to operate and had directed the closure of the unit immediately. Those stone crusher owners had challenged the said order by filing different writ petitions before this Court. In the case of M/s Shri Radhey Stone Crusher v. Rajasthan State Pollution Control Board & Anr. (S.B. Civil Writ Petition No.5841/2010) vide common judgment dated 20th July, 2010, this Court had dismissed their writ petitions and had upheld the order dated 05.02.2010. According to the learned counsel, the order dated 05.02.2010 and the impugned order before this Court dated 04.02.2010 are identical. Therefore, the present case is squarely covered by the case of M/s Shri Radhey Stone Crusher (Supra). Hence, he has supported the impugned orders.
(23) In rejoinder, the learned counsel for the petitioners have contended that the even if a limited time were granted to the Board to carry out the exercise by this Court, it did not prevent the Board from seeking extension of time from this Court. Moreover, the Board did not adhere to the time granted by this Court. Afterall, the impugned orders have been passed almost two months after the date of hearing. Therefore, the Board is unjustified in claiming that it was running short of time. And, thus, could not re-inspect the sites, could not re-issue the notice, could not give a full opportunity of hearing to the petitioners. Lastly, the conduct of the Board clearly shows that it has pre-judged the issue and was working with a pre-determined mind to close down the stone crusher units.
(24) Heard the learned counsel for the parties, perused the impugned orders and considered the relevant case law cited at the Bar.
(25) Section 21 of the Act is as under :
21. Restrictions on use of certain industrial plants.
(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area :
Provided that a person operating any industrial plant in any air pollution control area immediately before the commencement of section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987 (47 of 1987), for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application. (2) An application for consent of the State Board under sub-section (1) shall be accompanied by such fees as may be prescribed and shall be made in the prescribed form and shall contain the particulars of the industrial plant and such other particulars as may be prescribed : Provided that where any person, immediately before the declaration of any area as an air pollution control area, operates in such area any industrial plant, such person shall make the application under this sub-section within such period (being not less than three months from the date of such declaration) as may be prescribed and where such person makes such application, he shall be deemed to be operating such industrial plant with the consent of the State Board until the consent applied for has been refused, (3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry, shall follow such procedure as may be prescribed.
(4) Within a period of four months after the receipt of the application for consent referred to in sub-section (1), the State Board shall, by order in writing, and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse such consent. Provided that it shall be open to the State Board to cancel such consent before the expiry of the period for which it is granted or refuse further consent after such expiry if the conditions subject to which such consent has been granted are not fulfilled: Provided further that before cancelling a consent or refusing a further consent under the first provision, a reasonable opportunity of being heard shall be given to the person concerned.
(5) Every person to whom consent has been granted by the State Board under sub-section (4), shall comply with the following conditions, namely -
(i) the control equipment of such specifications as the State Board may approve in this behalf shall be installed and operated in the premises where the industry is carried on or proposed to be carried on;
(ii) the existing control equipment, if any, shall be altered or replaced in accordance with the directions of the State Board;
(iii)the control equipment referred to in clause (i) or clause (ii) shall be kept at all times in good running condition;
(iv) chimney, wherever necessary, of such specifications as the State Board may approve in this behalf shall be erected or re-erected in such premises;
(v) such other conditions as the State Board, may specify in this behalf; and
(vi) the conditions referred to in clauses (i), (ii) and (iv) shall be complied within such period as the State Board may specify in this behalf :
Provided that in the case of a person operating any industrial plant in an air pollution control area immediately before the date of declaration of such area as an air pollution control area, the period so specified shall not be less than six months : Provided further that-
(a) after the installation of any control equipment in accordance with the specifications under clause (i), or
(b) after the alteration or replacement of any control equipment in accordance with the directions of the State Board under clause (ii), or
(c) after the erection or re-erection of any chimney under clause (iv), no control equipment or chimney shall be altered or replaced or, as the case may be, erected or re-created except with the previous approval of the State Board.
(6) If due to any technological improvement or otherwise the State Board is of opinion that all or any of the conditions referred in to sub-section (5) require or requires variation (including the change of any control equipment, either in whole or in part), the State Board shall, after giving the person to whom consent has been granted an opportunity of being heard, vary all or any of such conditions and thereupon such person shall be bound to comply with the conditions as so varied. (7) Where a person to whom consent has been granted by the State Board under sub-section (4) transfers his interest in the industry to any other person, such consent shall be deemed to have been granted to such other person and he shall be bound to comply with all the conditions subject to which it was granted as if the consent was granted to him originally.
(26) A bare perusal of the provision clearly reveals that the Board is bestowed with three different powers, namely the power to grant the consent to operate, the power to renew the said consent and the power to revoke the said consent prior to the end of the term for which the consent order was given. Section 21 Sub-clause (3) imposes a legal duty that in case an application for consent is filed under Sub-Section (1), then the Board shall inquire and follow such procedure as may be prescribed. Rule 6 of the Rajasthan Air (Prevention and Control of Pollution) Rules, 1983 ('the Rules', for short) prescribes the procedure which needs to be followed by the Board while dealing an application under Section 21(1) of the Act.
(27) Section 21(4) of the Act empowers the Board to either grant the consent to operate or to refuse such a consent. However, while exercising either of the two powers, the Board is required to record its reasons for granting, for imposing the conditions, or for refusing to grant the consent. The first proviso to Section 21(4) further empowers the Board to revoke the consent to operate in case the conditions subject to which such a consent had been granted are not fulfilled. According to second Proviso before cancelling a consent or refusing a further consent (renewal of consent) a reasonable opportunity of being heard has to be given to the person concerned.
(28) Sub-section 21(5) of the Act lays down the conditions which need to be complied with by the operating unit. Since Sub-sections (6) & (7) are not relevant to the controversy involved in the present case, they are not being enumerated here in under.
(29) It is, indeed, a settled principle of law that if a procedure has been prescribed under a statute, the appropriate authority is legally bound to adhere to the said procedure. Therefore, when the petitioner, M/s Bahubali Stone Crusher, had applied for renewal of its consent order vide application dated 12.01.2009, the Board was duty bound to follow the procedure laid down by Section 21(3) of the Act read with Rule 6 of the Rules.
(30) Rule 6 of of Rules requires as under :
6. procedure for making enquiry into application for consent:-
(1) On receipt of an application for consent under Section 21, the State Board may depute any of its officers accompanied by such assistants as may be necessary, to visit and inspect any place or premises under the control of the applicant for the purpose of verifying the correctness or otherwise of the particulars furnished in the application. Such officer may for that purpose inspect any place or premises where emission from the Chimney of fugitive emission from any location within the premises of the industry as also any control device is installed in the said premises. Such officer may for that purpose, inspect any place or premises under the control of the applicant or occupier, and may require the applicant or occupier to furnish to him any plans, specifications or other data relating to control equipment or system or any parts thereof that he considers necessary.
(2) Such officer shall before visiting any premises of the applicant for the purpose of inspection under sub-rule (1) above, give notice to the applicant of his intention to do so in form II. The applicant shall furnish to such officer all informations and provide all facilities to conduct the inspection.
(3) An Officer of the Board may, before or after carrying out an inspection under sub-rule (1) above, require the applicant to furnish to him orally or in writing such additional information or clarification or to produce before him such documents, as the may consider necessary for the purpose of investigation of the application and may for that purpose summon the applicant or his authorised agent to the officer of the State Board.
(31) However, there is not an iota of evidence available on record to show that after the Board had received the application for renewal of the consent order, it had followed the said procedure. Therefore, the order dated 04.02.2010 passed under Section 21 of the Act is, clearly, untenable.
(32) Vide judgment dated 08th December, 2009, this Court had quashed and set aside the order revoking the consent order and had directed the Board to decide the cases afresh. Although it is true that this Court had granted only fifteen days, from the date of hearing, to the Board for deciding the case afresh, but nothing prevented the Board from seeking the extension of time. Moreover, the bare facts mentioned above clearly show that the impugned orders were passed not within fifteen days from the date of hearing, but two months after the date of hearing. Therefore, the Board is unjustified in claiming that it did not have sufficient time to re-inspect and to re-issue the notices to be concerned units. Once the Board was directed to decide the case afresh, it was duty bound to follow the procedure established by law. According to Section 21 of the Act read with Rule 6 of the Rules, the Board was bound to carry out an inquiry. According to Section 24 of the Act, it has the power to enter and to inspect the units; according to Section 26, it has the power to take samples of air or emission from any chimney, flue or duct or any other outlet; According to Section 27 of the Act, the Board is duty bound to give the result of the analysis of the samples taken under Section 26. Under Section 21, Proviso (i) and Proviso (ii) of Sub-section (4), the Board is duty bound to give an opportunity of hearing to the person concerned. Needless to say, the said procedure has to be followed by the Board. However, while passing the impugned order dated 04.02.2010, the Board has not followed any of these procedures. Therefore, both the impugned orders dated 04.02.2010 are legally unsustainable.
(33) A bare perusal of the order dated 04.02.2010 passed under Section 21 of the Act clearly reveals that the said order is based on the notice dated 02.01.2009 and deals with the order dated 21.07.2009 whereby the Board had refused to grant consent to operate under Section 21 of the Act and had directed the closure of the unit under Section 31A of the Act. A bare perusal of the notice dated 02.01.2009 reveals that the notice is most vague in its content. Although the Board claims that stone crushers are not operating the pollution control measures regularly, it does not reveal the particular pollution control measures which are not being followed regularly. Moreover, although the Board claims that the stone crushers are causing health hazard and nuisance to the pilgrims of the Brij Chorasi Kos Parikrama Marg, it does not delineate as to how the stone crushers are causing health hazard and nuisance to the pilgrims. (34) The purpose of giving notice to a person is to inform the person about the case that he is required to meet out. Thus, the law requires the notice to be clear, concise and certain in its contents. A vague notice is no notice in the eyes of law. For, a vague notice does not inform the person about the case which is made out against him. Therefore, a vague notice deprives the concerned person from submitting a complete and substantial reply to the notice. It is, indeed, trite to state that the very first step of the doctrine of audi alteram partem (here the other side) begins with the giving of notice. The right to submit a reply to a notice is not only part of principles of natural justice, but is also an ingredient of the constitutional mandate. Article 19 of the Constitution of India dealing with the right to livelihood, and Article 21 of the Constitution of India dealing with the right to livelihood as part of right to life state that a procedure established by the law must exist before the right to livelihood can be deprived. Section 21 of the Act imposes a legal duty upon the Board to give an opportunity of hearing. Obviously, an opportunity of hearing would entail both the service of a clear, certain and specific notice to the person concerned and an opportunity to file a concrete and substantial reply to the said notice. A bare perusal of the notice dated 02.01.2009 clearly reveals that it is a vague, unclear and a cryptic notice. Therefore, the very foundation of the order dated 04.02.2010 is extremely weak. (35) The reasoning given in the order dated 04.02.2010 passed under Section 21 of the Act is also legally acceptable. In the impugned order, the Board has observed as under :
12(ii). According to the guidelines of the State Board, issued in the year 1998, the stone crushing units have been termed as comparatively less air polluting. Nonetheless, such units have high pollution potential if they are operated without installing adequate pollution control measures. The industry was required to properly operate and maintain the pollution control measures. Consent granted by the State Board under Section 21 of the Act is not for ever (sic). It is granted for a specified period. The State Board could refuse consent to an industry where it is found that it has made default in making compliance of the provisions of the Air Act or where it is found that the pollution control measure are not adequate/as per rules/prescribed norms or where such measure are not properly maintained and operated. The State Board takes action against a defaulting industry where it fails to cure or rectify the deficiencies in the pollution control system, pointed out in the notice or continues to violate the provisions of the Air Act. The purpose of show cause notice is to secure compliance of the provisions of the Air Act. In the present case there is clear observation that the stone crusher was found wanting in the pollution control measures, as prescribed under the law, when inspection was conducted on 11.02.2009 to 13.02.2009. The reply dated 09.01.2009 submitted by the crusher pursuant to the show cause notice dated 02.01.2009 of the State Board, inter-alia, saying that it had taken requisite pollution control measures, is not convincing and the same has been found to be unsatisfactory for the reason that the crusher had not taken following pollution control measures as observed during inspection carried out on the aforesaid occasions :-
a. Record regarding monthly production and raw material procured was not available at the unit.
b. Acoustic enclosure not provided with the DG Set of 320 KVA.
(36) An analysis of this reasoning reveals certain curious facts : firstly, the show cause notice dated 02.01.2009 did not specify the pollution control measures which were not being followed by the petitioner, M/s Bahubali Stone Crusher. Secondly, the inspection was conducted on 11.02.2009 to 13.02.2009 i.e. the inspection was conducted not prior to the issuance of the notice dated 02.01.2009, but subsequent thereto. Thirdly, there is not an iota of evidence on behalf of the Board to show that the Board had given a copy of the inspection report to the petitioner, though the petitioner had requested for the same. Fourthly, according to the petitioner, the DG Set was not being utilized. In order to buttress this contention, the petitioner had submitted the electricity bill issued by the Jaipur Vidhyut Vitran Nigam Ltd. in order to show that it was utilizing the electricity connection and was not dependent on the DG Set. Despite the vagueness of the notice dated 02.01.2009, despite an inspection carried out on 11.02.2009 to 13.02.2009 subsequent to the notice dated 02.01.2009, the Board has still claimed that the petitioner had failed to carry out the pollution control measures. Lastly, and most importantly, since the impugned order was passed almost a year after the inspection carried out on 11.02.2009, there is nothing on record to show that on the date of passing of the impugned order the pollution control measures were not installed by the petitioner. Considering the fact that one year had almost lapsed, the Board was duty bound to re-inspect the unit to see if the deficiencies pointed out by it a year earlier were corrected or not. However, as mentioned above the said exercise was never carried out by the Board.
(37) In para 12(iii) of the impugned order, the Board presumes that in case the pollution control system is inadequate, it is likely to lead to air pollution. However, such a presumption cannot be made in the absence of empherical data. Since Section 24 of the Act empowers the Board to enter and to inspect a site, since Section 26 of the Act empowers the Board to take samples of air and emission from any chimney, flue or duct, since Section 27 of the Act empowers the Board to seek a report from a analyst about the quality of the air, instead of drawing the presumption in para 12(iii) of the impugned order, the Board should have collected the samples of the air or emission from an outlet. Before a unit can be penalized for causing air pollution, sufficient data should exist to establish the fact that, indeed, the unit is causing air pollution. Afterall, the right to livelihood cannot be violated on mere conjunctures and surmises. However, such empherical date is conspicuously missing in the present case.
(38) According to para 12(v) of the impugned order, the renewal of consent has been refused on the ground that since the State Government had prohibited mining activities in Kaman and Deeg Tehsils of District Bharatpur, therefore, the concerned stone crushers would be getting their raw material through illegal mining. However, again this is a presumption without any factual basis. According to the petitioner, M/s Bahubail Stone Crusher, it had entered into a contract with the suppliers of raw material from other Tehsils of District Bharatpur. Moreover, it was also receiving part of its raw material from outside the State of Rajasthan. Therefore, the presumption that stone crushers would be encouraging illegal mining cannot possibly be drawn. Again, it is a fact which should have been verified by the Board. Therefore, the basis of refusing to renew the consent order is legally unsustainable. Clearly the impugned order suffers from non-application of mind and from colorable exercise of power.
(39) Another aspect of the principle regarding audi alteram partem is that a person must be given all the relevant documents which are being used against him. However, in the present case, despite the petitioner, M/s Bahubali Stone Crusher, repeatedly requesting that the copy of the inspection report be given to it, the same was never given to the petitioner. Therefore, the principles of nature justice were obviously violated. Interestingly, the Board has not produced the said report even before this Court to substantiate its case that the petitioners had defaulted in maintaining certain pollution control measures. Therefore, an adverse inference is being drawn that the report does not buttress the case of the Board.
(40) The order dated 04.02.2010 passed under section 31A of the Act is based on the fact that the Board had refused to renew the consent to operate under Section 21 of the Act. Since the order passed under Section 21 of the Act is legally untenable, the very foundation of the order passed under Section 31A of the Act becomes non-est. Thus, the order passed under Section 31A of the Act is equally unsustainable.
(41) Every action of the State is legally required to be just, fair and reasonable. Any action which is unfair and unreasonable is an anathema to the concept of equality enshrined in Article 14 of the Constitution of India. Moreover, although Article 21 of the Constitution of India permits the State to deprive the right to livelihood, as contained in the right to 'life', but such a right can be deprived only through a procedure established by law. In the present case, as discussed above, the Board has flouted the procedure established under the Act and the Rules. Therefore, clearly the Board has violated Articles 14 and 21 of the Constitution of India. Furthermore, as the Board has placed unreasonable restriction on the business carried out by the petitioners, clearly it had violated Article 19 of the Constitution of India. Hence, the impugned orders are unsustainable.
(42) The learned counsel for the Board has heavily relied upon the judgment of M/s Shri Radhey Stone Crusher (supra) to argue that the present case is covered by the said judgment. However, a bare perusal of the said judgment clearly reveals that according to the learned Coordinate Bench, the writ petition was not maintainable as there was availability of an alternate remedy under Section 31 of the Act. Unfortunately the said observation has been made without analyzing the scheme of the Act. As discussed above, the Act makes a distinction between an order and a direction. While Section 31 bestows the right to file an appeal against an order, it does not bestow the right to file an appeal against the directions issued under Section 31A of the Act. Therefore, the observation that the directions under Section 31A are appealable is not in consonance with the scheme of the Act. Moreover, the learned Judge has overlooked the fact that the existence of the alternate remedy is not an absolute bar, ipso facto, to the invocation of a writ jurisdiction. As pointed out by the Hon'ble Supreme Court in the case of Whirlpool Corporation (supra), the said restriction is subject to certain well known exceptions. Two of the well known exceptions are : firstly violation of principles of natural justice, and secondly, the violation of any fundamental right. In the present case as discussed above, not only the principles of natural justice have been violated, but the fundamental rights under Articles 19 & 21 of the Constitution of India have equally been violated by the Board. Thus, the petitioners were justified in invoking the writ jurisdiction of this Court. This aspect of the case has been overlooked by the learned Judge. Thus, clearly the judgment in M/s Shri Radhey Stone Crusher (supra) is per incurium as the judgment has noticed neither the scheme of the Act, nor the relevant case law on the point of maintainability of the writ petition. Hence, it is not binding on this Bench.
(43) Even on the factual matrix, the present case and the case of M/s Shri Radhey Stone Crusher (supra) are on different footing. In the case of M/s Shri Radhey Stone Crusher (supra), the petitioner, therein, had submitted an application for renewal of consent to operate on 11.09.2008. Subsequently, the site was inspected on 26.09.2008 by the Board Officers. Discovering that certain pollution control measures were not being complied with, on 29.12.2008, the Board had issued a show cause notice to the petitioner. Despite the issuance of notice, the petitioner did not appear before the Board and did not reply to the said notice. Therefore, vide letter dated 22.07.2009, the Board not only refused to renew the consent order, but also directed that the unit be closed forthwith. However, in the present case, there is not a whisper of evidence to show that after the petitioner, M/s Bahubali Stone Crusher, had submitted its application on 12.01.2009 for renewal of its consent order, any inspection was carried out by the Board. Moreover, the petitioner in the present case had appeared before the Board, had submitted the reply to the notices issued by the Board, despite the fact that the petitioner was not granted a copy of the inspection report carried out by the Committee. As discussed above, both the orders dated 4.02.2010 are legally unsustainable. Therefore, on factual matrix, the present case is clearly distinguishable from the case of M/s Shri Radhey Stone Crusher (supra). Thus, the said judgment is inapplicable to the present case.
(44) The issues of environmental pollution tax the judicial imagination. For, there are conflicting interests between the operators of industrial units, on the one side, and the residents of the area, and the concern for environmental balance on the other side. Thus, it is an arena where even the angels would fear to tread. This Court is well aware of the fact that the mining in Aravali Hills is playing environmental havoc in the State of Rajasthan. Rich as Rajasthan is in stones, in different varieties of stone which are available in the State, yet on the whole, while exploiting this treasure trove, we cannot jeopardize the environmental balance. Therefore, it is imperative to balance the growth of industries, the functioning of the stone crushers, with the concern of the Board, and with the rights of the people to live in a ecologically balanced environment. Unfortunately, the petitioners have not placed enough evidence on record to prove the fact that they have adhered to the conditions imposed by the Board and are operating their stone crushing units without polluting the air. Most unfortunately, the Board has failed to marshal out the evidence to the contrary. The Board has merely made vague allegations that the stone crushers are, indeed, polluting the air, and are encouraging illegal mining in the area. In the absence of cogent and convincing evidence from both the sides, but convinced that the impugned orders are unsustainable, the this Court quashes and sets aside the impugned orders dated 04.02.2010. However, simultaneously, this Court passes the following directions : (i) The Board is directed to consider the applications filed by the petitioners under Section 21 of the Act for renewal of the consent order to operate the units within a period of four months.
(ii) During these four months, the Board is directed to issue a temporary consent to operate only for a period of one month, so that the stone crushers are in a position to operate their units for one month.
(iii) During the period in which the stone crushers operate the units, the Board is directed to inspect the sites and to examine whether the pollution control measures are being implemented in bona fide manner by the petitioner or not. Moreover, it is directed to collect the air samples, emissions, and seek the report of the concerned laboratory with regard to the quality of the air.
(iv) In case it is discovered by the Board that the petitioner is either failing to implement pollution control measures, and/or are polluting the air, then the Board is directed to immediately issue a notice to the concerned petitioner. The notice should highlight the deficiencies and defaults committed by the petitioner. Along with the notice, the inspection report as well as the report of the concerned laboratory shall be furnished to the petitioner.
(v) From the date of the receipt of the notice, the petitioner is granted one month's time to file its written replies before the Board. Thereafter within a period of one month, the Board shall give an opportunity of hearing, individually, to the petitioner. (vi) One month thereafter, the Board is directed to pass a detailed and a reasoned speaking order after considering the inspection report, the report of the concerned laboratory, the replies filed by the petitioner and the oral submissions made by the petitioner. The Board shall be free to decide whether to renew the consent to operate of the unit under Section 21 of the Act or not. The Board shall also be free to give directions to the authorities under Section 31A of the Act, if necessary.
(vii) In case the petitioners are still aggrieved by the order/directions passed by the Board under Sections 21 and 31A of the Act respectively, they shall be free to challenge the same in accordance with law.
(45) It is, indeed, well known fact that the housing industry and the construction of infrastructure require the crushed stone as a raw material. Therefore, the conflicting interest between the needs of the housing and infrastructure industries and the needs of the stone crusher owners on one side, and the fundamental right of the people, in general, to live in a pollution free environment, on the other side, has to be balanced by the State. While the State is required to encourage sustainable development of the State, it is equally essential to ensure pollution free environment for the people. Dealing with the problems of stone crusher units, other States, like Haryana, have already issued notification under Sections 5 and 7 of the Environment Protection Act and under Section 19 of the Act, as far back as 1997, and have earmarked certain areas of the State as Stone Crushers Zones. It would be in the interest of the State to issue a similar notification for the State of Rajasthan. Therefore, the State Government is directed to constitute a committee under the Chairmanship of the Chief Secretary, Government of Rajasthan, the Director, Mines and Geology as member-Secretary, with the Principal Secretary Forest, the Principal Secretary Mines, the Chairman, the Rajasthan Pollution Control Board, the Principal Secretary Revenue, and the CMD of RIICO as members of the committee. The Committee should advise the Government about declaring areas of the State as Stone Crushers Zones. The Committee shall submit its recommendation within a period of three months from the date of this judgment. The State shall consider the recommendations and pass the necessary orders within one month from the date of receiving the recommendations from the Committee. The Deputy Registrar (Judicial) is directed to send a copy of this judgment to the Chief Secretory, Government of Rajasthan for immediate implementation.
(46) With these directions, these writ petitions stand disposed of.