Allowed

Sanjay Kumar v. State of Uttarakhand

NGT7 Dec 2022Original Application No. 699/2022

Case brief

AI extract

What is this about?

The National Green Tribunal held that distinguishing between perennial and non-perennial rivers for siting stone crushers is illegal under the Sustainable Development principle. It directed the State to revise the policy to maintain uniform distance norms for all water bodies and restrained respondents from functioning in prohibited zones.

What did the court decide?

Directed the State of Uttarakhand to revise its policy to do away with the distinction between perennial and non-perennial rivers for stone crusher siting; restrained respondents from functioning.

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

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Court No. 1

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Item No. 04

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

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Original Application No. 699/2022

Sanjay Kumar

Applicant

Versus

Union of India & Ors. Respondent(s)

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Date of hearing: 07.12.2022

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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. Gaurav Kumar Bansal, Advocate

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ORDER

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Grievance in this application is against arbitrary classification of streams into perennial and non-perennial rivers for the purpose of setting up of stone crushers, screening plants, etc. According to the applicant, the mining policy to the extent of such classification violates the principle of ‘Sustainable Development’ which is to be enforced by this Tribunal under Section 20 read with Section 15 of NGT Act.

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Vide order dated 27.09.2022, the Tribunal sought response of the State in the matter.

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Accordingly, the Secretary, Uttarakhand Administration has filed response dated 1.11.2022 to the effect that the matter is governed by 2020 Policy issued by the Mineral Development Department to regulate stone crushers, screening plants, mobile stone crushers, mobile

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screening plants, pulverizer plants, hot mix plants, ready-mix plants. The siting norms are based on nature of the rivers – perennial and nonperennial as follows:

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“

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*Sl.* *No.*	*Place*	*Minimum Distance of* *Stone Crusher and* *Screening Plant*
1.	Government Forest	_100 meter _
2.	(A) From the bank of Ganga River District Haridwar	1 Km.
	*(B) From the bank of perennial river in other* *plains*	*500 meter*
	_(C) From the bank of non-Perennial river _	_50 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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We have heard learned counsel for the applicant but none appears for the State though response has been filed. We thus proceed to deal with the question whether location of stone crushers and other such units at distance of 50 meters from non-perennial rivers when such establishments are prohibited upto 500 meters from perennial rivers.

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For reasons to be stated, we find it difficult to accept the rationale of the policy in laying down different distance for siting of such units on the basis of ‘perennial’ and ‘non perennial’.

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Firstly , Water (Prevention and Control of Pollution) Act, 1974, does not distinguish ‘stream’ as per definition under Section 2(j) which is reproduced below:

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“2. DEFINITIONS.

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xxx …………………………..xxx………………………….xxx (j)" stream" includes-

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(i) river;

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(ii) water course (whether flowing or for the time being dry);

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(iii) inland water (whether natural or artificial);

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(iv) sub-terranean waters;

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(v) sea or tidal waters to such extent or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf;”

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The prohibition under Section 24 against pollution of such streams applies to every stream – whether perennial or non- perennial. Same reasoning has to apply to siting criteria as need for protection of both types of streams is same.

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Secondly , as per ‘the River Ganga (Rejuvenation, Protection and Management) Authorities Order, 2016’ dated 7.10.2016 issued by MoEF&CC under Section 3 of the Environment (Protection) Act, 1986 for protection and management of river Ganga, definitions of basin, buffer area, catchment area, flood plain and riverbed do not make any distinction between perinneal and non-perinneal river, drain or water course. The same scheme needs to be followed. We further note that distances “ (A) From the bank of Ganga River District Haridwar, (B) From the bank of perennial river in other plains and (C) From the bank of nonPerennial river” mentioned in the response dated 1.11.2022 filed by the Secretary, Uttarakhand Administration are against the distances mentioned in Uttarakhand Stone Crusher Policy, 2020 as quoted in Para 11.

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Thirdly , the Tribunal has earlier dealt with an identical issue in relation to Himachal Pradesh in OA No. 358/2016, Bhag Singh vs. Union of India & Ors . Vide order dated 29.10.2018, it was held that, perennial and non-perennial rivulets could not be distinguished as adverse impact of location of stone crushers close to water bodies was same

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and protection was required not only of perennial but also non- perennial

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rivulets. Relevant observations are as follows:

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“ xxx …………………………..xxx……………………………..xxx

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8. … The rivulets of perennial nature are specifically included in the said expression but it cannot be read as excluding nonperennial water bodies. The object of the regulatory notification issued under the Environment (Protection) Act, 1986 is to protect the ecology from the adverse impact of location of a stone crusher nearby. The intention is not to permit a stone crusher within 100 meters of a water body. Importance of protection of water bodies can hardly be over-emphasized. Interpretation of a regulatory provision must be consistent with the ‘precautionary principle’ and ‘sustainable development principle’. Location of a stone crusher very close to a water body is against the principle of ‘sustainable development’ as well as the ‘precautionary principle’. The above Notification cannot be read as meaning that stone crushers can be allowed to be located just on the edge of a water body even if such water body is not perennial. Thus, the stone crushers set up within 100 meters of a water body will be illegal and in violation of Environment (Protection) Act, 1986 and the Notification issued thereunder.”

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The matter was again considered in Review Application No. 34/2019 in OA No. 358/2019, Bhag Singh vs. Union of India & Ors . in the light of observations of the Hon’ble Supreme Court, after appointing an Expert Committee. Earlier order was reiterated on 10.7.2019 as follows:

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“ xxx …………………………………xxx………………………..xxx

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4. On Appeal, the Hon’ble Supreme Court, vide order dated 07.01.2019 in Civil Appeal No. 94/2019, Himachal Grit Udyog & Ors v. U.O.I & Ors, observed that grievances put forward before the Hon’ble Supreme Court could be addressed before this Tribunal at the first instance for which the State could place before the Tribunal ‘unimpeachable scientific material’ which may provide objective basis to consider a case for modification. The operative part of the order is extracted below:

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“The Solicitor General, in support of the appeal filed by the State of Himachal Pradesh, has urged that the notification which was issued by the State on 29 May, 2014 specifically provides for a distance from perennial rivulets of 100 meters and, the order of the Tribunal amounts to an amendment of the notification. The Solicitor General has fairly urged that the State does not construe the expression “perennial rivulets” to mean a rivulet or water body which is functional every day of the year. The difficulty, in his submission, lies in the minimum distance which is required to be maintained for non-perennial water bodies. The Solicitor General submits that the direction which has

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been issued by the Tribunal would cause dislocation and if the State was made aware of the direction which the Tribunal was proposing to pass in the above terms, it could have rendered assistance in placing the ramifications for being considered.

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In our view, the nature of the grievance which has been urged before this Court, in the present civil appeals, is such as should be addressed before the Tribunal in the first instance. The State Government must base its submissions before the Tribunal on scientific data, as opposed to an ipse dixit or a priori considerations. It would be necessary for the State to place on the record before the Tribunal clear and unimpeachable scientific material which will provide an objective basis for the Tribunal to consider any case made out for modification.

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In the circumstances, we are of the view that it would be appropriate to grant liberty to both the private parties represented in the appeals as well as the State Government to move the Tribunal either by way of review or for a suitable modification of the order on the merits on which we express no opinion.

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In the meantime, we defer the enforcement of the directions which have been issued by the Tribunal by a period of three months from today so as to enable all the parties to move the Tribunal in appropriate proceedings.

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We grant liberty to the parties to move this Court afresh after the disposal of the proceedings before the Tribunal. The parties can also raise the grounds which have been raised in the present proceedings.”

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(emphasis added)

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5. In pursuance of above, the State of Himachal Pradesh and representative of Stone Crushers moved this Tribunal with the plea that the distance of 100 meters from the ‘non-perennial rivulets’ should not be made applicable in the same manner in which it is applicable to the ‘perennial rivers’ or other water bodies mentioned in the above Notification.

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6. The Tribunal considered the matter on 02.04.2019 and found it difficult to accept the submission but instead of straightway rejecting the review application, the Tribunal sought an expert opinion from a Joint Committee comprising representatives of the Central Pollution Control Board (CPCB), IIT Roorkee, Indian Institute of Soil and Water Conservation, Dehradun. It was observed:

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“9. We do not find any merit in the submission that there can be no regulation of location of stone crushers with reference to ‘non-perennial’ water bodies and distance is required to be maintained only for ‘perennial water bodies’. Adverse impact of stone crushing activity on the

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environment is well acknowledged.¹ Water bodies are to be conserved for protection of environment.² Non-perennial water bodies also need to be protected for purposes such as water harvesting, ground water recharge. Location of stone crushers too close to such water bodies certainly impacts such water bodies which need to be prevented.

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10. River bed mining for raw material for stone crushers and dumping of waste mined material back into the river affects water quality and flow of the river by adding pollutants to the river.

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11. Consent to operate is to be renewed annually and mere fact that a stone crusher is set up earlier can be no ground to allow it to continue even if it has adverse impact on environment. Moreover, the Tribunal has only interpreted the criteria laid down in the notification by an interpretation consistent with environmental norms.

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12. Thus, it may be difficult to accept the review petition in absence of any scientific material to show that location of stone crushers within 100 meters, of ‘non perennial’ water bodies will have no adverse impact on environment.”

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7. Accordingly, a report dated 19.06.2019 has been filed before this Tribunal suggesting that the distance of 100 meters prescribed for location of stone crushers should be uniformly applied to all the streams irrespective of perenniality. It will be appropriate to quote relevant observations which are as follows:

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“i) The Joint Expert Committee is of the opinion that the distance norm of 100 m prescribed for locating crushers should be uniformly applied to all the streams irrespective of perenniality. As these areas are zones of water flow, any changes to or dumping of crusher waste is likely to badly impact the quality of water for the downstream stream reaches during monsoon season.”

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8. The Committee also observed :

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“It was observed and understood that the first order streams are very small streams having very steep slope, abundant flora and fauna and are non-perennial in nature. These streams feed the larger streams during monsoon period. Some of these streams may have springs with very low to low discharge. These headwater streams flow swiftly down steep slopes with narrow V-shaped valleys eroding the stream beds and banks, in the process incurring loss of natural resources in terms of forest and fertile soil along with fauna, while providing eroded material to the depositional environments

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1 Rural Litigation And Entitlement Kendra Dehradun & Ors V. State Of U.P. & Ors., (1985) 2 SCC 431 M.C. Mehta Vs. Union of India & Ors, (1992) 3 SCC 256 ¶3

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2 Hinch Lal Tiwari vs Kamala Devi And Ors v. Kamala Devi And Ors., (2001) 6 SCC 496

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found downstream. Ecological balance may be maintained by conserving such ephemeral, mostly first order streams.

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Material Eroded from the hilly areas i.e. from headwork zone carried by the first and second order streams are transferred to the deposition zone where the slope of stream is gentle. This zone is suitable and sustainable for scientific mining of river bed material.”

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Recommendations of the Joint Expert Committee :

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In the light of the above observations, the views and recommendations of the Joint Expert Committee are as follows:

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i) The Joint Expert Committee is of the opinion that the distance norm of 100 m prescribed for locating crushers should be uniformly applied to all the streams irrespective of perenniality. As these areas are zones of water flow, any changes to or dumping of crusher waste is likely to badly impact the quality of water for the downstream stream reaches during monsoon season.

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ii) No mining/extraction activities should be carried out on first order non-perennial streams and they should be conserved with appropriate measures.

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iii) However, if small first order streams having steep gradients are levelling out on upstream side of proposed site (Plate 6) for stone crusher units, such units may be exempted from the 100 m distance norm, subject to having additional precautionary measures in place to tackle air pollution. Due to topography of the area, effluents may not enter the stream pre-empting water pollution of stream. The suggested additional precautionary measures in such cases are: i) The stone crusher units should be installed in the covered shed with proper air emission suppressing system ii) Liability of application of soil conservation measures should be with stone crusher unit holder. Sample site for demonstration of the above explanation is shown in Plate 6.

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iv) The Expert Committee is of the opinion that, in general, the following additional precautions may be taken to ensure minimal impact of operating stone crushing units irrespective of location of Stone Crusher Units· near perennial or nonperennial streams

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a) Area near deposition zone i.e. near third order stream or tail end of the second order stream should be considered for installation of stone crusher unit.

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b) Effluent generated by the unit should be clarified in lined stilling chambers constructed with in the premises of unit. The recovered silty effluent

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needs to be disposed off regularly at suitable site and at a safe distance to prevent its entry in the nearby streams. This material may be used for filling up of depressions, filling of pits for plantation or for dispersal in agriculture fields.

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c) Location of crushers must be decided after a detailed study covering hydrological, soil & water conservation environmental aspects to avoid sensitive locations, since impact of crushers is likely to affect air, water, flora and fauna.

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d) The material in streams is received from the upstream catchment area and depends on the catchment characteristics, flow pattern, rainfall distribution, and land use. Hence each river is unique in its feature and quantum of material that can be extracted will vary year to year and river/stream to stream. The committee is therefore of the opinion that distance restriction should not be the only criteria for granting the permission for locating crushers. The quantum and nature of river bed material should also be assessed for availability pre and post monsoon and quantity restriction should be applied to the identified river beds to pre-empt overexploitation for short-term economic benefit.”

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9. We have heard learned Advocate General for the State of Himachal Pradesh and learned Counsel for the stone crushers seeking review/modification of order of the Tribunal dated 29.10.2018. Learned Counsel for the CPCB has opposed the said prayer. In absence of any unimpeachable scientific material placed on record by the State of Himachal Pradesh or the stone crushers in pursuance of order of Hon'ble Supreme Court dated 15.03.2019 though a period of more than three months has gone, after hearing learned Advocate General for the State and for the stone crushers, we are unable to review or modify the earlier view that non-perennial water bodies are not covered by the prohibition of location of stone crushes within 100 meters of such bodies. Moreover, the expert opinion furnished by the Committee in pursuance of order of the Tribunal dated 02.04.2019 also suggests that restriction of distance for location of stone crushers should universally apply for ‘perennial’ as well as ‘non-perennial’ water bodies. It is not in our purview to go into the issue of exemption in certain situations subject to conditions as we are not sure whether such conditions or their enforcement is environmentally viable at any particular location.

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10. Non-perennial rivers may have different characteristics and may function very differently in maintaining hydrological and ecological balance. Non-perennial rivers is relatively sensitive to change and can easily lead to degradation of the river system. Degradation of such non perennial rivers caused by man through

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development and use of the river as a water source can result in water scarcity and climate change. All such rivers are hydrologically and ecologically sensitive and changes to their hydrological regime can have far reaching effects on the river flow and the biota that can cause dramatic negative changes .³ ”

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It may also be mentioned that the principle of siting will apply not only to units to be set up in future but also to those already set up. This aspect stands settled by the Tribunal in respect of Uttarakhand Stone Crusher Policy, 2020 vide order dated 10.5.2022 in OA No. 449/2019, Tejinder Kumar Jolly & Anr. vs. State of Uttarakhand & Ors . It was held:

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“ xxx …………………………….xxx…………………………….xxx

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2. The question is whether the stone crushers in question can be allowed to continue within prohibited distance of siting norms merely on the ground that the siting norms are subsequent to setting up of the stone crushers.

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3. Vide order dated 16.12.2021, the Tribunal observed:

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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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“
*Sl. No.*	*Place*	*Minimum*
		*Distance* of _Stone Crusher _
1.	Government Forest	_100 meter _

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3 Seely, M., Henderson, J., Heyns, P., Jacobson, P., Nakale, T., Nantanga, K. and Schachtschneider, K. 2002. Ephemeral and endorheic river systems: Their relevance and management challenges. Determining the water quality ecological Reserve for non-perennial rivers: A prototype environmental water Assessment methodology, avialable at: https://pdfs.semanticscholar.org/9dbf/e35a37671873a1db404cdda4759273706b3e.pdf

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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 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

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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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4. 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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5. We have heard learned Counsel for the parties.

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6. 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

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

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8. 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 Insti	name of the residents/ tutions	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.
_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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9. 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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10. 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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12. Fourthly, permitting estabishments within 50 meters of rivers (even non perennial) will run counter to the need for protection of floodplain zones . Issue has been earlier considered inter alia vide order dated 15.12.2020 in O.A. No. 22/2020(EZ), Dilip Kumar Samantaray vs.

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State of Odisha Board & Ors. about the legal framework and need for protection of flood plains in the interest of riverine ecology and the life and property of people. Reference was made to the judgment of the Hon’ble Supreme Court dated 30.07.2009 in D.D.A. vs. Rajendra Singh, 2009 (8) SCC 582 mentioning the significance of protecting river beds and flood plains. Reference was also made to earlier order of this Tribunal dated 13.01.2015 in OA No. 6/2012 and OA No. 300/2013, Manoj Misra vs. Union of India & Ors. reported in 2015 ALL (I) NGT REPORTER (1) (DELHI) 139, judgment of this Tribunal dated 13.07.2017 in OA No. 200/2014, M.C. Mehta vs. Union of India & Ors. reported in 2017 NGTR (3) PB 1 in the context of river Ganga. The Tribunal referred to the Notification dated 07.10.2016 issued by the Ministry of Water Resources with regard to Ganga River on the subject of protecting active flood plain areas of the river and its tributaries. Reference was also made to laws enacted on the subject in certain States including Manipur Flood Zoning Act, 1978 and the Uttarakhand Flood Plain Zoning Act, 2012. Apart from Rules/Guidelines, reference was made also to Wetland Rules and action plans prepared by River Rejuvenation Committees in all the States/UTs in pursuance of order of this Tribunal dated 21.09.2020 in OA No. 673/2018, In Re: News item published in “The Hindu” authored by Shir Jacob Koshy, titled “More river stretches are now critically polluted: CPCB to the extent of steps for protecting flood plains. The Tribunal finally observed that no project could be developed in a flood plain of the river even in absence of any statutory provision on the subject as doing so affects the riverine ecology adversely.

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There can be no dispute about jurisdiction of the Tribunal to interfere with such policy for giving effect to principle of sustainable

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development as laid down in Mantri Techzone (P) Ltd. v. Forward Foundation , (2019) 18 SCC 494, at page 518. It was held:

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“47. Section 33 of the Act provides an overriding effect to the provisions of the Act over anything inconsistent contained in any other law or in any instrument having effect by virtue of law other than this Act. This gives the Tribunal overriding powers over anything inconsistent contained in the KIAD Act, the Planning Act, the Karnataka Municipal Corporations Act, 1976 (the KMC Act); and the Revised Master Plan of Bengaluru, 2015 (RMP). A Central legislation enacted under Entry 13 of Schedule VII List I of the Constitution of India will have the overriding effect over State legislations. The corollary is that the Tribunal while providing for restoration of environment in an area, can specify buffer zones around specific lakes and waterbodies in contradiction with zoning regulations under these statutes or RMP.”

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In view of above, we hold that distinction of perennial and nonperennial for locating stone crushers or other such plants for maintaining distance is hit by the principle of ‘Sustainable Development’ under Section 20 read with Section 15 of the NGT Act, 2010 and is illegal. Accordingly, we direct the State of Uttarakhand to revisit its policy/regime to do away with such distinction for protection of all streams, water courses/rivers. This will also apply to all existing establishments.

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