Allowed

Tejinder Kumar Jolly v. State of Uttarakhand

NGT10 May 2022Original Application No. 449/2019

Case brief

AI extract

What is this about?

The National Green Tribunal examined whether pre-existing stone crushers could operate within prohibited distances mandated by the Uttarakhand Stone Crusher Policy, 2020. The Tribunal rejected the argument that siting norms do not apply to existing units, citing the precautionary principle and right to life. It directed that these units be restrained from further functioning.

What did the court decide?

Restraint imposed on M/s. Himalaya Stone Industries and M/s. Himalaya Grits from functioning further; direction to State PCB to enforce restriction and recover compensation for illegal groundwater ext

Tejinder Kumar Jolly vs State of Uttarakhand — Environment and Pollution | NGT (2022)

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Item No. 04

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(Court No. 1)

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

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(By Video Conferencing)

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Original Application No. 449/2019 (Earlier O.A. No.332/2017)

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Tejinder Kumar Jolly & Anr. Applicant(s)

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Versus

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State of Uttarakhand & Ors. Respondent(s)

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Date of hearing: 10.05.2022

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CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE PROF. A. SENTHIL VEL, EXPERT MEMBER

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Applicant: Mr. V.K. Shukla, Advocate

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Respondent(s): Mr. Rahul Verma, AAG for the State of Uttarakhand Mr. Raj Kumar, Advocate for CPCB Mr. Mukesh Verma, Advocate for UKPCB Mr. Sukumar Pattjoshi, Senior Advocate with Mr. Vivek Gupta, Advocate for R - 3 to 5

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ORDER

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The matter has been taken up in continuation of order of the Tribunal dated 16.12.2021 in the light of order of the Hon’ble Supreme Court dated 18.11.2021 in Civil Appeal No.218 of 2021, Tejinder Kumar Jolly & Anr. Vs. State of Uttarakhand & Ors, setting aside order of the Tribunal dated 27.8.2019 and remanding the matter to the Tribunal for adjudication of the issue.

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The question is whether the stone crushers in question can be allowed to continue within prohibited distance of siting norms merely on

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the ground that the siting norms are subsequent to setting up of the stone crushers.

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Vide order dated 16.12.2021, the Tribunal observed:

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“……

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5. Accordingly, we proceed on the basis that the policy applicable currently is to apply to pre existing units also. Present matter is covered by inter partes order. We find merit in the contention that the ‘Precautionary’ and ‘Sustainable Development’ principles have been held part of the domestic law of the country and referable to Article 21 of the Constitution in (1996) 5 SCC 547, Vellore Citizen Welfare Forum v. Union of India & Ors. and there can be no exemption at the discretion of any authority in favour of any unit merely on the ground that it was established earlier. Learned counsel for the applicant points out that in view of the order of Hon’ble Supreme Court, this Tribunal is required to deal with the contention of the applicant that the stone crusher cannot be allowed within 300 mtrs from the Abadi, Schools, educational institutions and hospitals, etc. Our attention has been drawn to the Uttarakhand Stone Crusher Policy, 2020 with regard to siting of stone crushers as follows:-

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“

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*Sl. No.*	*Place*	*Minimum* *Distance* of _Stone Crusher _
1.	Government Forest	100 meter
2.	_(A) From the bank of Ganga River District Haridwar _	1.5 Km.
	(B) From the bank of perennial river in other plains	1km.
	_(C) From the bank of non-Perennial river _	500 meter
5.	Religious places (Temple, Mosque, Gurudwara & Church etc.)	300 meter
6.	School, Educational Institute, Hospital, Nursing Home etc.	300 meter
7.	Distance from Population	300 meter ”

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6. It is submitted that if the stone crushers operate close to a school, the students will be adversely affected by air and noise pollution.

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7. However, learned counsel for the project proponents has opposed the above submissions. He submitted that even if the latest siting policy is to apply, the policy itself makes an exception and debars challenge by establishments or individuals who come after the units are lawfully set up, with full knowledge of functioning of such units. Only question will be compliance with environmental norms and not siting norms in such cases. He submits that this aspect has not been gone into nor this part of the policy questioned. In this regard, learned Counsel relies upon note No.3 in 2020 Policy as follows:-

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“(3) Construction of any Religious Place (Temple, Mosque, Gurudwara, Church, etc.) or School, Education institution, Hospital, Nursing Home, etc. or residential

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house of one family house of more than one families after the application of the establishment of Stone Crusher/Screening Plan, then any objection raised by them will not be taken into consideration and it will not be considered to be any hindrance in the Renewal/permission.”

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8. It is submitted that the establishment of stone crushers started in the year 1982. No establishment or house existed within the prohibited distance at that time. The applicant purchased the house for the first time in 2004, with full knowledge of the stone crushers in question.

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9. Faced with the above, learned counsel for the applicant submitted that the policy of granting exemption to pre-existing stone crushers is uncalled for and even those who come after setting up of crushers can object to their continuance or renewal of consent in view of hazardous nature of their activity. Setting up of a stone crusher cannot deny development in the area and prevent setting up of establishments or construction of houses in private properties, unless prohibited by law. The applicant having lawfully set up school can object to activity adversely affecting the students.

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10. Leaving this issue open for consideration further, it will be appropriate to require the statutory authorities to verify whether any establishment or houses existed within the prohibited distance at the time of setting up of the stone crusher. We also require the State to respond to the stand of the applicant that such blanket exemption cannot be given for all times to come to permit stone crushers at the cost of other activities not prohibited by law by exempting stone crushers in the manner as done by the above Policy. The verification of factual aspect may be undertaken by a four-member Committee comprising of CPCB, State PCB, SEIAA, Uttarakhand and the District Magistrate, Haldwani. The State PCB will be the nodal agency for coordination and compliance. The parties are at liberty to give their respective inputs to the Committee. The report may be filed within two months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. The Committee may inter-alia ascertain land use plan of the area in question and the suitability of site for continuing the stone crushers in question. The State of Uttarakhand may file its own affidavit in the matter within four weeks.”

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In pursuance of above, the joint Committee has filed its report dated 16.03.2022 to which objections have been filed by the applicant on 17.03.2022. The State has filed its response on 26.03.2022. The Project Proponent has also entered appearance though no separate response has been filed.

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We have heard learned Counsel for the parties.

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Report of the joint Committee dated 16.03.2022 does not go into the issue of compliance of siting norms which is the main issue. The report is reproduced below:

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“xxx …………………………….xxx…………………………………xxx

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The Joint Inspection Team inspected the both stone crushers and also interacted with petitioner for their inputs. Stone Crusher wise observation of Joint Inspection Team are as follows:

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1. M/S Himalaya Stone Industries, Village Phatta Bangar, Tehsil Lalkuan, Distt. Nainital (Uttarakhand):

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i) Consent to establish (CTE) was granted to the stone Crusher on 08.07.1985 by the Uttar Pradesh Pollution Control Board (UPPCB). Further, Consolidated Consent and Authorization (CCA) is renewed time to time by the Uttarakhand Pollution Control Board. Presently, CCA is valid up to 31.03.2026 for production of Stone Grits & Sand36000MT/Month through crushing and screening processes.

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ii) Fresh water requirement is meeting from tube well equipped with mechanical water meter. Necessary permission of extraction of groundwater is obtained from CGWA. Wastewater generated from screening process is sent to Mud Water Recycling System and clarified water collected in collection tank for recycling in process.

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iii) Some discrepancies were reported during joint inspection with respect to compliance of environmental norms, which have been rectified by the Unit.

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iv) The Unit has obtained renewal permission for establishment of stone crusher as per State Government Policy i.e. Uttarakhand Stone Crusher, Screening Plant. Mobile Screening Plant, Pulveriser Plant, Hotmix Plant, Readymix Plant Anugya Nitti, 2020.

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v) The Unit has obtained necessary permission for storage of subminerals existing government policy.

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2. M/S Himalaya Grits, Village Phatta Bangar, Tehsil Lalkuan, Distt. Nainital (Uttarakhand):

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i) Consent to establish (CTE) was granted to the stone Crusher on 07.02.1987 by the Uttar Pradesh Pollution Control Board (UPPCB).

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Earlier the Unit was kwon as M/S Hindustan Stone Company. Consolidated Consent and Authorization (CCA) is renewed time to time by the Uttarakhand Pollution Control Board. Presently, CCA is valid up to

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31.03.2026 for production of Stone Grits & Sand31200MT/Month through crushing and screening processes.

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ii) Fresh water requirement is meeting from tube well equipped with mechanical water meter. Necessary permission of extraction of groundwater is obtained from CGWA. Wastewater generated from screening process is sent to settling pits. Supernatant water is recycled in process.

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iii) Some discrepancies were reported during joint inspection with respect to compliance of environmental norms, which have been rectified by the Unit.

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iv) The Unit has obtained renewal permission for establishment of stone crusher as per State Government Policy i.e. Uttarakhand Stone Crusher, Screening Plant. Mobile Screening Plant, Pulveriser Plant, Hotmix Plant, Readymix Plant Anugya Nitti, 2020.

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v) The Unit has obtained necessary permission for storage of subminerals existing government policy.

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Copy of Joint Inspection Report along with Annexures 1-26 are enclosed herewith.

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Interaction with Applicant:

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Joint inspection team also visited the house of Applicant No. 1 i.e. Shri Tajender Kumar Jolly house. It was noted that Shri Tajender Kumar Jolly is not available in house and it was informed that he is out of station. Joint Inspection Team also interacted with Applicant No. 2 i.e. Shri Gulab Singh Bhandari. His house is located behind the M/S Himalaya Stone Industries and complained about noise caused by the stone crusher. He also produced the document issued by the Principal, Government Primary School, Motinagar regrading establishment of primary school. As per document said Government primary school is established in the year 1978.

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It was also informed by Applicant No. 2 that house of Shri Girish Kapoor existed before the Unit was established and nearby area including industry land belonged to Shri Girish Kapoor and land was purchased by his father Late Shri Umrao Singh Bhandari on 30.04.1983.

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Land Use and locations of Stone Crusher:

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As stated, earlier Consent to establish (CTE) to Stone crushers namely- M/S Himalaya Stone Industries (hereinafter called as Unit-1) was granted on 08.07.1985. CTE to M/S Himalaya Grits (hereinafter called as Unit-2) was granted on 07.02.1987. Land was purchased for stone crushers in the year 1984 and 1982, respectively for Unit-1 and Unit-2. It was informed that the Applicant No. 1 purchased land in the year 2004.

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It is also informed by the District Administration that said area in question is outside the limit oof Development Authority and comes under village. Therefore, no land use plan is prepared by the District Administration. It is also observed that houses are being constructed nearby Unit-1 and Unit-2 and plotting of land for house was carried out. Agricultural activity was also found near the Units.

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From the document and observation made by the Joint Inspection Team, it is evident that the area in question became industrial as well as residential, as both types of activities were observed. Both Stone Crushers have obtained renewal of permission required under the Uttarakhand Stone Crusher, Screening Plant, Mobile Screening Plant, Pulveriser Plant, Hotmix Plant, Readymix Plant Anugya Nitti, 2020., as amended.

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Said stone crushers are complying with environmental norms. Discrepancies observed by the Joint inspection team during inspection, has been rectified.”

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State of Uttarakhand has merely referred to the joint inspection report already reproduced above.

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The applicants have filed their objections to the effect that the stone crushers in question are within the prohibited distance. Relevant extracts from the objections are as follows:

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“xxx …………………………….xxx…………………………………xxx

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4. Although, the report @ Pg. 4 suggests that the Govt. Primary School, Motinagar was established in the year 1978 i.e. much prior to the establishment of Stone Crushers, however, surprisingly the committee has not mentioned in its report that the distance of the said primary school is within 100 meters from the R-4 & 5 stone crushers i.e. silence zone according to the Notification dated 09.06.2021(Pg. 319-323 of MA). Thus, both the stone crushers are operating in a Silence Zone.

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5. The report of Halka Patwari dated 7.4.2014 have been ignored which suggests that there are several houses which are within 100 meters to 300 meters from the Stone Crusher units.

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6. That the objection of the applicant to the conclusion given by the committee @ pg. 10 of the report is as under:

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a. Although the applicant provided all the documents which are part of the present MA No. 97 of 2021 i.e. 1014 pages, which contained 2 previous joint inspection report of CPCB, the report of Halka Patwari regarding distance, Noise Pollution Rules, 2000 and the Notification dated 09.06.2021 issued by State of Uttarakhand to comply the said rules, however, no observation was given by the committee on them that the stone crushers are operating within the Abadi and are surrounded by hundreds of residential houses.

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b. It has wrongly been noted that the area has become industrial area. In fact, the village in question is a residential area and the area has never been notified as industrial area.

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c. The Committee has incorrectly stated that WPPIL No. 212 of 2019 Trilok Chand Vs. State of Uttarakhand & Ors. is pending before Hon’ble High Court. In fact the said PIL is not pending and was disposed of on 05.03.2022 i.e. much before filing of the present report dated 16.03.2022, however, for reasons best known to the committee members a totally misleading information regarding said PIL has been given in the report. The contention of the Respondent Stone Crusher regarding said PIL was already rejected by Hon’ble Supreme Court. A copy of the order dated 05.03.2022 finally disposing of WPPIL No. 212 of 2019 is annexed as ANNEXURE: B.

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ADDITIONAL FACTS FOR CONSIDERATION :

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7. The Respondent No.3 is operating 2 Stone Crushers i.e. Resp.Nos.4 & 5 in a residential area, in the middle of the village abadi, Fattabangar at Haldwani, District Nainital in violation of the Govt. Stone Crusher Policy of 2020. As per said policy, the stone crusher cannot operate within 300 meters from the Abadi, Schools, Educational Institutions and Hospitals etc. The distance parameters as Uttarakhand Stone Crusher Policy, 2020are as under;

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Sl. No.	Place		Minimum Distance of Stone Crusher
5.	Religious places (Temple, Gurudwara & Church etc.)	Mosque,	300 meter
6.	School, Educational Institute, Nursing Home etc.	Hospital,	300 meter
7.	Distancefrom Population		300 meter

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This shows that the Respondent Nos. 4 & 5 are operating in violation of distance parameters.

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As per site inspection report of the Halka Patwari of the area@ Pg. 81-82 of MA, the distances of Resp.No.4&5 stone crushers from various places are as under ;

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The Inst	name of the residents/ itutions	Distance of Respondent Nos. 4 & 5 stone crusher.
1.	*Panchayat Ghar*	*Just adjacent*
2.	Jaipur Kanal Nehar	5 mtrs.
3.	Ishwari Dutt	6 mtrs.
4.	Lal Kuan Kanal	10 mtrs.
5.	*Umrao Singh (Appellant* *No.2)*	*24 mtrs.*
6.	Jaisingh Kashyap	30 mtrs.
7.	*Girish Kapoor* *(Appellant No.1)*	*30 mtrs.*
8.	_Chandrapal Negi _	35 mtrs.
9.	Kundan Singh Mehra	43 mtrs.
_10. _	Kanti Ballabh	46 mtrs.

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*11. Bhartiya Shiksha* *Niketan*	*80 mtrs.*
*12. Primary School Moti* *Nagar*	*97 mtrs.*
*13. Inter College, Moti* *Nagar*	*110rs.*

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8. As per joint inspection report dated 12.10.2017 of CPCB and State PCB filed before NGT, the Govt. Primary School, Motinagar is within 100 meter from Resp.No.4 and within 50 meters from Resp.No.5 and the house of the Appellant is at a distance of 100 meters from Respondent No. 4 and within 200 meters from Respondent No. 5. There are hundreds of other residential houses within the periphery of 300 meters from the Respondent Nos. 4 & 5 stone crushers. A copy of Joint Inspection Report dated 12.10.2017 filed by CPCB and State PCB is at Pages 141 to 151 of MA.

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9. In the Joint Inspection Report dated 12.10.2017, the CPCB & State PCB have recommended as under:

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Recommendations: 9. The Government of Uttarakhand should make policy for relocation of industrial units where new residential pockets are coming up around the existing industrial units.”

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However, despite lapse of more than 4 years the stone crushers have still not been shifted out of Abadi area.

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10. That as per Noise Pollution Rules, 2000 and as per Notification dated 09.06.2021 issued by Uttarakhand Govt. for implementation of the said Rules, ambient air quality standards in respect of Noise in a residential area cannot be more than 55dB(A) in day time and 45dB(A) at night time. However, Resp.No.4&5 stone crushers are raising noise upto 89dB(A). Whereas, even in a industrial area permitted noise level is maximum 75dB(A).

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Ambient air quality standards in respect of Noise as per Noise Pollution Rules, 2000 are as under;

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Area Code	Category of Area / Zone	Limi	ts in db(A) Leq
		Day Time	Night Time
(A)	Industrial Area	75	70
(B)	Commercial Area	65	55
(C)	*Residential Area*	55	45
(D)	*Silence Zone*	50	40

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11. As per Noise Pollution Rules, 2000 and Notification dated 09.06.2021 of the State Govt., these stone crushers are also operating in a “Silence Zone” i.e within 100 meters form the Educational Institutions, where maximum permitted Noise level is 50dB(A). Whereas, Resp.No.4&5 are admittedly operating at the parameters which are applicable only in an industrial area i.e. 75dB(A) or more.”

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We find merit in the objections of the applicants and are unable to accept the report and the stand of the State as also the stand of the Project Proponent to the effect that the stone crushers can continue to operate in violation of siting norms as siting norms will not apply to the stone crushers set up. This stand is directly hit by the directions of the Hon’ble Supreme Court and against the sustainable development and precautionary principles. The stone crushers are in the prohibited distance as per norms which have to be applied even to existing stone crushers to enforce right of habitants to clean environment which is part of right to life.

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Accordingly, we restrain M/s. Himalaya Stone Industries, Nainital and M/s. Himalaya Grits, Nainital from functioning further and direct the State PCB and District Magistrate, Nainital to enforce this direction. The State PCB may also assess and recover compensation for illegal extraction of ground water, following due process of law.

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The application is disposed of.

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A copy of this order be forwarded to State PCB and District Magistrate, Nainital by e-mail for compliance.

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Adarsh Kumar Goel, CP

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Sudhir Agarwal, JM

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Prof. A. Senthil Vel, EM

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May 10, 2022 Original Application No. 449/2019 DV

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Tejinder Kumar Jolly v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

Tejinder Kumar Jolly v. State of Uttarakhand

Case brief

What is this about?

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