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2010 Supreme(Ori) 463
2010 (II) OLR — 703
V. GOPALA GOWDA,CJ. AND INDRAJIT MAHANTY, J.
M/s. Trishakti Stone Crushing Unit(In WPC No. 9101/2009)
M/s. Ugratara Stone Crusher(In WPC No. 9102/2009)
M/s. Mahavir Stone Crusher(In WPC No. 9103/2009)
M/s. Unique Stone Crusher(In WPC No. 9104/2009)
M/s. Nilanchan Stone Crusher(In WPC No. 9105/2009)
M/s. Utkal Stone Chips Company(In WPC No. 9106/2009)
M/s. Bijay Stone Crushing Unit(In WPC No. 9107/2009)
M/s. Konark Stone
(Agarwal Stone Product)(In WPC No. 9108/2009)
M/s. Maa Tarini Stone Crusher(In WPC No. 9109/2009)
M/s. Roy Stone Company(In WPC No. 9133/2009)
M/s. Kalika Stone Crusher Unit(In WPC No. 9303/2009)
M/s. Mahadev Stone Crusher (In WPC No. 9304/2009)
M/s. Pooja Stone Crusher Unit(In WPC No. 9305/2009)
M/s. Granite Products(In WPC No. 9372/2009)
...Petitioners
Versus
State of Orissa & others...Opp. Parties
M/s. Jagannath Stones(In WPC No. 10546/2009)
M/s. Ashok Kumar Pattnaik(In WPC No. 10296/2009)
...Petitioners
Versus
State of Orissa and others...Opp. Parties
M/s. Jaiguru Stone Crusher Unit(In WPC No. 10740/2009)
M/s. Sahu Stone & Co.(In WPC No. 10741/2009)
M/s. Kukumina Stone Crusher(In WPC No. 10742/2009)
M/s. Mahalaxmi Stone Crushing Unit(In WPC No. 10743/2009)
M/s. Eastern Stone Product(In WPC No. 10744/2009) ...Petitioners
Versus
State of Orissa and others...Opp. Parties
W.P.(C) Nos. 9101, 9102, 9103, 9104, 9105, 9106, 9107, 9108, 9109, 9133, 9303, 9304, 9305, 9372, 10546, 10296, 10740, 10741, 10742, 10743, 10744 of 2009
(In W.P.(C) Nos. 9101, 9102, 9103, 9104, 9105, 9106, 9107, 9108, 9109, 9133, 9303, 9304, 9305 & 9372 of 2009)
Decided on 4th August, 2010.
For Petitioner:M/s. U.C. Pattnaik, B. Sahoo, S.S. Ray-2, B. Mohanty & A. Tripathy
For Opp. party Nos. 1,2,3 & 5:M/s. Mr. C.A. Rao, S.P. Mohanty, P. Lenka, M. Barik, T. Ray, S. Roy & B.B. Panda
For Opp. party No.4:None
Headnote:CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Stone Crushing Units - Quashing of notice of closure - Providing with an alternate site - Writ - Blatant violation of air pollution norms continue unabated till today - No justifiable legal ground to entertain the challenge to the notices of closure - Prayer for providing with alternate site ought to be considered favourably, especially since not only this crushing units provides a source of livelihood to its owners or operators but also a source of livelihood to thousands of labourers who work at such crusher units - Keeping with the interest of the promotions of such stone crushing units as well as their workmen direction issued and action to be taken indicated - Further directed that the direction shall not be limited to the petitioners but stands extended to all similar non-complaint stone crushing units operating throughout the State of Orissa as on date.
JUDGMENT
I. MAHANTY, J. — In this batch of writ petitions, petitioners who have set up Stone Crushing Units at various places within the State of Orissa have prayed for being provided with an alternate site by the Orissa Industrial Infrastructural Development Corporation or any of the State body or authorities on payment of costs and also to quash the notice of closure issued by the State Pollution Control Board, Orissa and/or to keep the same in abeyance till alternate site is provided to the petitioners.
2. Mr. Y. Das, learned Senior Counsel appearing for the petitioner on the outset submitted that although he had appeared for the petitioners in those batch of writ petitions, he had no instructions in the matter and sought for the permission of the Court to address the Court as an amicus curiae. Learned Senior Counsel limited his prayer to seeking a direction to the State and/or authorities to provide the petitioners with alternate sites complying with the requirements as stipulated by the State Pollution Control Board, within a limited period.
3. Mr. S.P. Mohanty, learned counsel appearing for the State Pollution Board, Orissa vehemently argued that the present writ petitions are not maintainable and ought to be rejected outright since the issues/contentions raised in the present batch of writ petitions are covered by earlier judgment of this Court, in W.P(C) No. 5503 of 2007 and others dismissed by judgment dated 27.1.2009. He asserted that most of the petitioners in this batch had also challenged the notification dated 17/18.7.2002 issued by the Government of Orissa in the Forest and Environment Department in exercise of power conferred by Sub-section (i) of Section 19 of the Air (Prevention and Control of Pollution) Act, 1981. The said prayer of the petitioners and others were rejected and the writ petition was dismissed vide judgment dated 27.1.2009.
In this aspect, reliance was placed by the petitioners on a judgment of the Supreme Court in the case of State of Uttar Pradesh v. Nawab Hussain, AIR 1977 Supreme Court 1680 as well as the judgment of this High Court in the case of Dr. Gyan Guru Das v. Central Vigilance Commissioner and others, 2008 (Supp.-I) OLR 790 in order to substantiate his contention that, it is the well settled principle of law that a plea raised/not raised in the earlier writ petition could not be questioned in a subsequent writ petition since such consideration is barred by the principle of Constructive Res Judicata.
4. In the light of the aforesaid submissions and on perus¬ing the pleadings as well as the documents appended thereto, there is no dispute that the petitioners herein had challenged the notification issued by the Government of Orissa, declaring the entire State of Orissa as AIR Pollution Control Area vide judgment dated 27.1.2009. A Division Bench of this Court dis¬missed W.P.(C) No. 16442 of 2005 and a batch of similar cases and came to uphold the validity of the notification declaring the entire State as Air Pollution Control Area as well as the “siting criteria” fixed by the State. The Court also did not find any merit in the prayer of the petitioner to quash the order of sealing the units and accordingly the batch of writ petitions stand dismissed.
After dismissal of the aforesaid batch of writ petitions, the present petitioners once again have filed the present batch of writ petitions with the prayer as noted hereinabove and an interim order was passed by the order dated 16.7.2009 directing that till the next listing of the case, no coercive action shall be taken against the petitioners and this order has been extended from time to time.
At the very outset, in the circumstances as noted hereina¬bove, we are compelled to note our absolute concern with the manner in which the petitioners’ crushing units continue to operate in wanton disregard to all cannons of law in the face of the closure notices issued by the State Pollution Control Board, Orissa as well as the directions of this
