BEFORE THE NATIONAL GREEN TRIBUNAL
                      NEW DELHI,
                  (PRINCIPAL BENCH)

                       APPEAL No. 29/2011

1. M/s Baba Bricks Field
   Village Darji Goan Lakhaiya & Charda,
   Tehsil Nanpara,
   District Bahraich,
   Uttar Pradesh

                                            Appellant/Petitioner

                                 versus

1. UP Pollution Control Board, Lucknow
   Through its Chairman, Picup Bhawan
   III Floor, B Block, Vibhuti Khand
   Gomti Nagar, Lucknow - 226 010

2. Regional Officer
   UP Pollution Control Board,
   8/2/46 Rakebganj
   Faizabad,
   Uttar Pradesh - 224 001

3. Ram Gopal
   S/o Shri Rangi la
   Village Darji Gaon Lakhaiya Charda
   Tehsil Nanpara
   District Bahraich
   Uttar Pradesh - 271 801


                                                  Respondents




                                 1
 Counsel for Appellant:
Mr. Javed Ahmad

Counsel for Respondents:
Mr. Daleep Kumar Dhayani
Mr. Pradeep Mishra

                                                JUDGMENT

PRESENT:

Justice A.S. Naidu (Acting Chairperson) Vijai Sharma (Expert Member) .....................................................................................................................

Dated: February 2nd, 2012 ..................................................................................................

JUDGMENT BY THE BENCH This Appeal is filed assailing the legality of the order dated September 12th, 2011, passed by Special Secretary, Environment Department, UP Government, in exercise of the powers conferred upon him under Section 31 of the Air (Prevention and Control of Pollution) Act 1981.

2. With a view to avoid unnecessary detail, the short facts leading to the present Appeal are as follows:

(i) The Appellant is the owner of a piece of land, Gata No. 870, situated at Village Lakhaiya Pargana Charda, Tehsil Nanpara, District Bahraich, Uttar Pradesh.

(ii) The Appellant intended to establish a Brick Kiln over the said land and filed an Application before the competent authority for granting license / no objection certificate, 2 under the Air (Prevention and Control of Pollution) Act, 1981. The authorities after due process granted no objection certificate on October 1st, 2009 for establishment of Brick Kiln.

(iii) After obtaining the no objection certificate, the Appellant, it is averred, took steps for setting up the Brick Kiln. Thereafter, it is alleged, some frivolous allegations were made by the adversaries and rivals of the Appellant before the Authorities. After receiving the complaint, the Sub-Divisional Magistrate, Nanpara, by order dated October 10th, 2009, called upon the Appellant to show cause and produce the relevant documents relating to the establishment of the Brick Kiln. The said direction was duly complied with by the Appellant, within the time prescribed.

(iv) That the Sub-Divisional Magistrate conducted a field enquiry, recorded the statements of the complainant and other villagers and being satisfied submitted a report in favour of the Appellant, to the District Magistrate. Thereafter, the Appellant established his Kiln and obtained registration certificate.

(v) While the matter stood thus, it is alleged, he received the order dated October 21st, 2009 from the Regional Officer of Uttar Pradesh Pollution Control Board (U.P PCB), Faizabad, revoking the no objection certificate granted to the Appellant. The Appellant being aggrieved, assailed the said order before the High Court of Allahabad in Writ Petition No. 11816/2009. The said writ petition was disposed of granting liberty to the petitioner to move an 3 application against the impugned order before the appropriate authority. In consonance with the direction, the Appellant, it is submitted, filed an application before U.P PCB on December 23rd, 2009. After receipt of the application from the Appellant, it appears, the Regional Officer, U.P PCB, conducted the site inspection, which revealed that the Brick Kiln in question was installed at a place other than the place for which no objection was granted. It also did not satisfy the guidelines set forth by the District Board. That apart, the Brick Kiln was set-up at a distance of 80 meters from Abadi lands with thick population. After considering the facts and circumstances, by a well discussed order dated January 19th, 2010, the U.P PCB rejected the petition filed by the Appellant and confirmed the order cancelling the no objection certificate.

(vi) The Appellant once again approached the Hon'ble High Court challenging the order passed by the Board but the Hon'ble High Court of Allahabad dismissed the application, permitting the Appellant to prefer an Appeal in accordance with law. Thereafter, the Appellant filed an appeal under Section 31(2) of the Air Act, 1981, which was registered as AIR Appeal No. 2/2010. The Appellate Authorities, as would be evident from the judgment, dated September 12th, 2011 (Annexure A-1), discussed the facts and circumstances, and came to the conclusion that the findings arrived at by the Board do not suffer from any infirmity and dismissed the Appeal.

3. The said order is impugned before this Tribunal. In the course of hearing, Mr. Javed Ahmad, Learned Counsel for the Appellant, submitted that if another opportunity is granted to the Appellant to make a fresh application for granting no objection certificate in respect of his personal lands, he would withdraw this Appeal.

4. Learned Counsel for the Respondents, however, submitted that the Appellant having misused the no objection certificate granted in his favour not only by changing the site, but also by flouting the siting criteria as evident from the findings of the authorities, under the Air Act, the present Appeal should be dismissed. It is further submitted that the Appellant not having come to the Court with clean hands, is not entitled to any relief.

5. We heard Learned Counsel for the parties at length. In view of the submissions made by Mr. Javed Ahmad, Learned Counsel appearing for the Appellant, that he does not want to press this Appeal and wants to withdraw the same, we find no reason to go into the merits of the case. Accordingly, we permit the Appellant to withdraw the Appeal, but then we grant liberty to the Appellant to file a fresh application before the competent authority in respect of the lands, that satisfy the siting criteria for a Brick Kiln. If such an application is filed enclosing all relevant documents, the competent Authority shall do well to conduct a site inspection, complete the formalities and dispose of the said application strictly in accordance with law. The said exercise should be completed as expeditiously as possible. This Appeal is accordingly disposed of as withdrawn.

Vijai Sharma                                            Justice A.S. Naidu
Expert Member                                          Acting Chairperson

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