Marble Murti Hast Kalaa Sanstha vs Kailash Chand Sharma

The delay in filing the instant appeal of 274 days, in the facts and circumstances, stands condoned.

Heard counsel for the appellant.

Instant intra-court appeal has been preferred against order of the ld. Single Judge dt. 12.12.2013 along with an application seeking leave of this court to file the instant special appeal as they were not party before the ld. Single Judge and their rights have been adversely affected by the directions issued by the ld. Single Judge under the order impugned.

Before we may examine the application of the present appellant seeking leave of this court and consider it appropriate to reproduce the final directions issued by the ld. Single Judge to the District Collect, Jaipur; Chief Executive Officer, Municipal Corporation, Jaipur; and so also the Rajasthan State Pollution Control Board under the order impugned dt. 12.12.2013 which read ad infra:-

"Petitioners who are residents of Tejaji Nagar and Srigopal Nagar, Gopalpura Byepass, Jaipur are aggrieved by the inaction of the respondent-State authorities in not taking any action against the industrial activities carried out in their respective colony by certain persons. Learned counsel has cited number of photographs showing that large size blocks of marbles and stones are brought adjoining their houses, proving identical activities. It is contended that cranes and cutters are being used on vast scale and such activities goes on not only in day, but also in night. The petitioners made complaint to the State Pollution Control Board, which has submitted its report to the District Collector, Jaipur. According to that report, the area in question is having not only air pollution, but also noise pollution, much excess of the prescribed level. Even then the respondents are not taking any action.

Petitioners in this connection may approach the District Collector, Jaipur and the Chief Executive Officer, Municipal Corporation, and also the Rajasthan State Pollution Control Board, who have a duty to ensure enforcement of law relating to Air Pollution and Noise Pollution and also that no industrial/commercial activity if not permitted by local law in the area in question is carried out contrary to law. The appropriate action shall be taken on representation of the petitioner within two months from the date such representation is made.

The writ petition is disposed of."

The writ petition was jointly filed by five local residents of Tejaji Nagar and Srigopal Nagar, Gopalpura Bypass, Jaipur with the grievance that these are residential areas, as alleged in the master plan, and the petitioners are having their residential houses in the subject areas in question. However, industrial activities are going on in the subject areas in question which create noise pollution/air pollution and such activities are not permissible under the law but State Authorities are not taking appropriate action either the District Collector, Jaipur; or the Chief Executive Officer, Municipal Corporation, Jaipur; and so also the Rajasthan State Pollution Control Board, who are duty bound to ensure enforcement of law relating to the subject areas in question.

When the writ petition came up for admission, the ld. Single Judge after taking note of the grievance of the petitioners, as there was no adverse order passed for either side by the concerned authorities and so also taking note of their complaint, was prima facie of the view that let the concerned State Authorities who are supposed to ensure enforcement of law may take appropriate action in the matter and industrial/commercial activity, if not permitted by local law in question, is carried out contrary to law that may immediately be stopped and further directed that the representation made by the writ petitioners be decided in accordance with law.

From the very perusal of the order impugned, we find that no prima facie view or finding has been recorded by the ld. Single Judge under the order impugned, however, the complaint of the petitioners has been left out to be examined by the concerned authorities i.e. District Collector, Jaipur; Chief Executive Officer, Municipal Corporation, Jaipur; and the Rajasthan State Pollution Control Board, who are otherwise also duty bound to ensure enforcement of law and that is the minimal which is expected from the concerned State Authorities.

The present appellant who is claiming itself to be a registered society i.e. Marble Murti Hast Kalaa Sanstha filed the instant special appeal seeking leave of this court on the premise that without affording any opportunity of hearing, straightway orders have been passed for their removal from the place which is occupied by them under the law from last 15-20 years and that is the reason for which they are being compelled to approach this court in assailing the so-called alleged innocuous directions/findings recorded by the ld. Single Judge under order impugned dt. 12.12.2013. One of such notice served upon their member Prem Prakash by the Zonal Commissioner, Civil Line Zone, Municipal Corporation, Jaipur dt. 21.05.2014 is placed on record to show that such notices are being issued invariably to the members of the appellant-Society without holding any inquiry and providing an opportunity of hearing to the individual.

Mr. Kamlakar Sharma, Senior Counsel submits that after the order impugned passed by the ld. Single Judge dt. 12.12.2013, the State Authorities are not examining the matter independently as to whether the activities undertaken by the incumbent is permissible under the law or not. However, they have availed a separate remedy by filing a writ petition before the ld. Single Judge of this court but as long as the order impugned passed by the ld. Single Judge remains, what is being prayed for by the members of the society will remain an empty formality and will not get any relief which they are otherwise entitled for.

The ld. Single Judge while passing the order impugned dt. 12.12.2013 took note of the grievance raised by the local residents of Tejaji Nagar and Srigopal Nagar, Gopalpura Bypass, Jaipur about the alleged activities going on in the nearby area but still has not recorded any finding or made any observation in regard to the complaint made by the petitioners and left it open to be independently examined by the District Collector, Jaipur; Chief Executive Officer, Municipal Corporation, Jaipur; and the Rajasthan State Pollution Control Board, who are duty bound to ensure enforcement of law and that is otherwise expected by each of the concerned State Authorities to enforce local laws in its true spirit and we do not find any substance in the submission made by the counsel that rights of the members of present appellant-Society in any manner, by the observations made by the ld. Single Judge under order impugned dt. 12.12.2013, are going to be adversely affected.

As regards notice served by the Zonal Commissioner dt. 21.05.2014, copy whereof is placed on record, the individual upon whom the notice has been served is always at liberty to avail remedy which the law permits to him.

We do not find any substance in the submissions made seeking leave of this court in assailing the order impugned passed by the ld. Single Judge dt. 12.12.2013 on the complaint made to us.

Consequently, the misc. application seeking leave of this court to file the instant appeal stand dismissed and as a consequence the appeal is accordingly dismissed.