Srinagar, Dec 24: The High Court (HC) of Jammu & Kashmir and Ladakh Friday quashed the order of Divisional Commissioner Kashmir declaring a Unit dealing with plastic scrap, situated at Kwaki Bazar, Qaimoh, Kulgam as public nuisance in the area and cause of pollution.
The court quashed the order after observing that the matter would have been different, had the impugned order been passed by the District Magistrate, Kulgam, or any other Executive Magistrate, specially empowered in this behalf by having resort to section 144 Cr.PC, the court observed.
Justice Sanjeev Kumar recorded that even under the Prevention of Water Pollution Act 1974 and Air Pollution Act 1981, the Divisional Commissioner or any other officer working with him, has not been given the jurisdiction to seal any Unit, which as per his or her information, may be a source of pollution.
"We have a Pollution Control Board (PCB) in position, which, under the aforesaid twin Acts, is competent to initiate appropriate action provided the activity of an offender falls within the purview of the said Acts.
Notwithstanding quashing of the said order, Justice Kumar directed that it would be competent for the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf by the government, to proceed u/s 144 Cr.PC, provided the activity, the petitioner is engaged in, i.e. collection, storing and segregation of plastic waste on his proprietary land, amounts to public nuisance or otherwise falls within the ambit of section 144 Cr.PC.
"Should the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf by the government, decide to proceed against the petitioner u/s 144 Cr.PC, in that eventuality, not only the petitioner shall be given opportunity of being heard but the entire procedure, laid down in section 144 Cr.PC, shall be strictly adhered to," the court directed.
It further directed that it is left to the PCB or any other competent authority to look into the grievance of the private respondents and take a decision as to whether the activity, the petitioner is engaged in, falls within the ambit of the Prevention of Water Pollution Act 1974, Air Pollution Act 1981 or the Rules framed thereunder or any other applicable provision of Anti Pollution Law and, therefore, requires permission to establish/operate a Unit.
Justice Kumar further directed that the request of the petitioner for permission made earlier, having been rejected once by the PCB, on the ground that the activity does not fall within its purview, shall not come in the way of the respondents, who may reconsider and take appropriate action under rules only if the activity of the petitioner falls under the ambit of such rules.
The court passed the directions in a plea filed by Abdul Salam Gurroo challenging the order issued by Divisional Commissioner, Kashmir, on August, 12, 2021 whereby the Unit of the petitioner, dealing with plastic scrap, situated at Kwaki Bazar, Qaimoh, Kulgam, has been declared public nuisance in the area and cause of pollution.
Vide the order, the Deputy Commissioner (DC), Kulgam, was directed to seal the Unit immediately and initiate appropriate action under rules against the petitioner.
The case of the petitioner is that he is a scrap dealer by occupation and runs his business on his proprietary land. It is alleged that the private respondent, who is having a property dispute with the petitioner, lodged a false and frivolous complaint with the Divisional Commissioner, Kashmir, who took cognizance of the same without providing an opportunity of being heard to the petitioner and passed the impugned order.
The petitioner challenged the order on the ground that the Divisional Commissioner, Kashmir, or the Deputy Director (E&S), working in his office, has no competence or authority to pass such order and even if it is assumed that it has such authority or competence, the order still cannot be sustained having been passed in violation of principles of natural justice.
The court of Justice Sanjeev Kumar after perusing the material on record held that neither the Divisional Commissioner, Kashmir, nor the Deputy Director (E&S), working in his office, is a District Magistrate, a Sub Divisional Magistrate or any other Executive Magistrate, specially empowered by the State Government to exercise the powers u/s 144 Cr.PC.
Indisputably, the court said, a District Magistrate or Sub Divisional Magistrate or any other Executive Magistrate, specially empowered by the State Government, may exercise power to issue orders in urgent cases, apprehending nuisance or danger to public life, by acting u/s 144 Cr.PC.
"Any order made u/s 144 Cr.PC is to remain in force only for a period of two months and if it is to be extended beyond that period, the competence lies only with the government, that too, when it deems it necessary so to do for preventing danger to human life, health or safety or preventing a fight or any affray and this can be done by the government only by issuance of a notification," the court recorded.
The court while disposing of the plea recorded that it would not be prudent to return a final finding as to the nature of activity of the petitioner, which, as per him, pertains only to the collection, storing and segregation of plastic waste and would not fall within the purview of Plastic Waste Management Rules of 2016 as amended in 2019.