BEFORE THE NATIONAL GREEN TRIBUNAL,
             NEW DELHI

               (PRINCIPAL BENCH)

        Thursday the 29th day of September 2011

               Appeal No. 6 and 7 of 2011



Quorum:

1. Hon'ble Justice Shri C.V. Ramulu,
   (Judicial Member)
2. Hon'ble Dr. Devendra Kumar Agrawal,
   (Expert Member)

Appeal No. 6 of 2011:

1. Kamlesh Singh s/o Shri Brijendra Singh,
   aged about 50 years, resident of Village
   Kamauli, Tehsil Unchahar , District Raibareli,
   Uttar Pradesh.
                                          .....APPELLANT

                     Versus

1. Regional Officer, U.P. Pollution Control Board,
   Regional Office, District Raibareli (U.P.).

2. M/s Nikhil Brick Field situated at Village Kamauli,



                        Page 1 of 10
      Tehsil and Police Station Unchahar, District Raibareli
     Through its Proprietor Raj Narain Maurya s/o Shri
     Fatteh R/o Village Saviyya Dhani, Post Savaiyya
     Hasan, Tehsil & P.S. Unchahar,
     District Raibareli (U.P.).
                                       ..... RESPONDENTS

Appeal No. 7 of 2011:

  1. Ram Nath s/o Late Shri Ram Pal, aged 70 years
     Resident of Village - Kalupur, Police Station and
     Tehsil Biswan, Post Sarsakhurd,
     District Sitapur, (U.P.).
                                           ..... APPELLANT
                        Versus

   1. Regional Officer, Pollution Control Board,
      Lucknow (U.P.)

   2. M/s Pankaj Brick Field, Village Kalupur,
      Tehsil Bishwan, District Sitapur through
      Its proprietor, Ram Khelawan Verma son of
      Late Sri Ram Saran Verma, resident of village
      Kalupur, Post Sirsa Khurd, Tehsil Bishwan,
      District Sitapur , Uttar Pradesh.
                                         ..... RESPONDENTS

  (Advocates appeared: In Appeal No. 6 & 7 of 2011 - Shri
  Dilip Pandey for Appellants and Shri Pradeep Mishra, &
  Shri Daleep Kumar Dhayani for Respondent No. 1 in both
  the Appeals. Shri Aditya Tiwari for Respondent No. 2 in



                           Page 2 of 10
 Appeal No. 6 of 2011 and Shri Rakesh Kumar for
Respondent No. 2 in Appeal No. 7 of 2011).



                J U D G M E N T

(Judgment delivered by the Bench) These two appeals are directed against the orders passed by the Appellate Authority, Uttar Pradesh Pollution Control Board, Respondent No. 1.

The Appeal No. 6 of 2011 is filed against the Order dated 16th May 2011 passed in the Appeal No. 4/2011 by the Appellate Authority (Uttar Pradesh Pollution Control Board i.e. Respondent No. 1) under the Air (Prevention and Pollution Control) Act 1981 and the Appeal No. 7 of 2011 is filed being aggrieved by the Order dated 20th May 2011 passed in Appeal No. 3/2011 by the Appellate Authority (Uttar Pradesh Pollution Control Board i.e. Respondent No. 1) under the Air (Prevention and Pollution Control) Act 1981.

Since, in both the Appeals, common questions of law and fact arise for consideration, they are being disposed of by this common order.

It is the case of the appellants that they are the owners of certain extents of land wherein mango trees are planted (existing) and their mango trees are being Page 3 of 10 affected by the brick kiln erected by the Respondents No. 2 in both the Appeals. Due to their close proximity, the heat generated and ash emanated from them spoils the flowering and fruiting of mango crop. Apart from this, the brick kiln is also located very close to the human habitation which results in health hazard. The authorities have not measured the distance between the mango orchards and the brick kiln. The distance between the brick kiln and the human habitation and mango orchards is against the prescribed distance under the governmental orders issued from time to time. The direction of the wind was not properly taken into consideration looking into the location of the orchard and human habitation. It is also argued that the sum total area of various owners of mango orchards within the prescribed limits from the brick kiln is also more than the prescribed limit of area under orchards. All the reports of inspection are manipulated and the authorities have blindly accepted the same.

Whereas, it is the case of the respondents that the brick kiln is located beyond the distance prescribed by the governmental orders, from the mango orchards as well as human inhabitation in both the cases. The Counsel appearing for the Pollution Control Board supported the order passed by the Appellate Authority in both the cases and stated that absolutely there is no mango orchard worth the name nearby the brick kiln erected by the Respondents No. 2, in both the cases. Reliance to this effect was placed on the site inspection reports submitted Page 4 of 10 by the representative/s of Uttar Pradesh Pollution Control Board and District Horticulture Department.

In Appeal No. 6 of 2011, it appears that the appellant is the owner of land to an extent of 0.076 acres in Survey No. 403 and 0.076 acres in Survey No. 404 of Village Kamauli, Tehsil Unchahar, District Raibareli, Uttar Pradesh and the brick kiln is located in Survey No. 429 of the same village. There are few mango trees in Survey No. 403 and 404 and there are some other mango orchards located within a distance of 300 to 400 meters from the brick kiln of M/s Nikhil Brick Field. Human habitation is around 330 meters from the brick kiln. In the prevailing wind direction of East-West where as per the prescribed government norms, the restriction is upto a distance of 1.5 km with respect to mango orchards having area of 2.5 acres; it is noted that 7-8 mango orchards having total area of more than 2.5 acres are present within the prescribed limits.

In Appeal No. 7 of 2011, it appears that the appellant is the owner of land in Survey No. 178, 173, 96, 180, 192, 189 of Kalupur Village. There are number of mango orchards near brick kiln within the restricted area over the Survey No. 118, 121, 117, 198, 351, 396 and 359 measuring about 7 acres. The Respondent No. 2 has erected a brick kiln in Survey No. 178 of Kalupur village, Tehsil Biswan, District Sitapur in Uttar Pradesh, contrary to the governmental instructions.

We have heard the learned counsel on either side and perused the documents made available on record. The following points arise for consideration:

i) Whether the brick kiln established by the respondents is causing any pollution and resulting in the damage of flowering and fruiting of the mango trees of the appellants; and

ii) Whether the appellate authority has committed any error calling for our interference.

It is the allegation of the appellant that the brick kiln in both the cases is located within a distance of 200 meters from the mango orchard of the appellant as well as other landlords of the vicinity. Similarly, in the prevailing wind direction where restriction is upto 1.5 km in respect of mango orchards, a good number of them are existing. Human habitation is also in close proximity of the brick kiln. The report furnished by the district officials dated 24.09.2007 and 08.09.2007 and District Horticulture Officer dated 01.11.2007 to the UP Pollution Control Board authority in respect of Appeal No. 6 of 2011 reveals that the distances from the brick kiln are varying. Reports in respect of Appeal No. 7 of 2011 were furnished on 10.11.2010; 07.08.2011; 09.09.2010 and 15.04.2011. It is also well accepted by the parties that the lands held by the appellant is more than 200 meters away from the lands held by the respondents. The other lands referred to in the respective appeals are far further away from the brick Page 6 of 10 kilns. During the pendency of appeal before the Appellate Authority, Pollution Control Board, Uttar Pradesh also called for a fresh report from the District Pollution Control authority of the respective districts and found that the distance between the brick kiln and the lands held by the appellants is beyond the restricted distance as per the standards fixed in case of establishment of brick kiln. Further, absolutely there is no mango orchard worth the name as defined under the instructions issued from time to time i.e. there is no orchard which is 2.5 acres in the vicinity of the brick kilns in both the cases. The human habitation is far away from the brick kilns. Thus, there is no threat for the flowering and fruiting of the mango trees, if any, available in the lands of the appellants.

The appellant and the respondents in both the cases have filed the revenue (Khasra) documents of the villages showing that the appellants are the owners of certain lands. But practically there are no mango orchards thereon belonging to them. In Appeal No. 6 of 2011, the appellant is the owner of survey No. 403 and 404 of Village Kamauli, Tehsil Unchahar, District Raibareli. As per the records, there are only three mango trees in Survey No. 403 and five mango trees in Survey No. 404. In Appeal No. 7 of 2011, the position is almost the same. Before giving consent for establishment and operation, the District Pollution Control Board authorities inspected and submitted report and even during the pendency of the appeal before the Pollution Control Board, the Page 7 of 10 Appellate Authority on its own called for a report and found the same to be in consonance with the earlier report. Further, this Tribunal also directed the appellants as well as the respondents to submit a fresh report indicating the survey nos. and the number of trees there on in the lands along with a rough sketch map held by the appellants and also the distance of the trees from the brick kilns in question. Absolutely, there is no difference between the report of the appellants and the respondents including the distance from the place of brick kilns. However, the learned counsel for appellants vehemently argued that the reports submitted to the consenting authority as well as the Appellate Authority are all managed and fabricated by the respondents brick kiln owners, at all stages as is evident from varying distances mentioned in different reports furnished by various officials. We cannot go into this aspect in a proceeding of this nature. We are of the considered opinion that the appellants have not made any case to demonstrate that the brick kilns established by the respondents is causing any damage to the mango flowering or fruiting and the Appellate Authority has not committed any error calling for our interference.

However, we have noticed that there are other fields having mango orchards in the close proximity to the brick kilns though confirmed distances of them are not readily available. Moreover, the affected parties, if any, are not before us though, the learned Counsel for the appellant stated that there is environmental threat for the Page 8 of 10 mango trees of other landlords. Therefore, the matter has to be examined in details by calling for a fresh report from the authorities concerned. We are not impressed by this submission, since, it is brought to our notice that the letter of consent given by the District Pollution Control Board authorities is valid for another two months only.

Under these circumstances, the appeal is disposed of with the following directions for compliance while granting renewal of the consent to operate is given by the Pollution Control Board authorities in favour of the Respondent brick kiln owners:

i) Before renewing the consent to operate in favour of the respondent brick kiln owners, the District Environmental Engineer concerned shall issue notices to all the landlords whose lands are located within the restricted distance from the brick kiln (as prescribed in the government order) and also the villagers of the village which fall within the restricted distance from the influence zone of the brick kilns (as prescribed in the government order) keeping in view the environmental standards.

ii) For this purpose the District Environmental Engineer shall issue a notice on the conspicuous places in the villages concerned apart from serving personal notice on the affected parties.

The notice of enquiry shall be notified by beating of drum (Dugdugi/Munadi).

iii) The appellant is at liberty to take appropriate steps as per law, if these directions are not complied while renewing the consent to operate in favour of the respondents.

The appeal stands disposed of subject to above directions.

(Dr Devendra Kumar Agrawal)               (Justice C V Ramulu)
     Expert Member                           Judicial Member




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