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


                  Application No. 4/2013 (THC)
                        30th APRIL, 2013


CORAM:


  1. Hon'ble Shri Justice V.R. Kingaonkar
     (Judicial Member)

  2. Hon'ble Dr. P.C. Mishra
     (Expert Member)

  3. Hon'ble Shri P.S. Rao
     (Expert Member)

  4. Hon'ble Shri Ranjan Chatterjee
     (Expert Member)



B E T W E E N:


       1. Gurdial Singh, son of Charan Singh R/o Lamba Pind Bye
          Pass, Jalandhar;


       2. Sudesh Kumar, son of Satpat, R/o 40-A, S.D. College, Old
          Jawahar Nagar, Jalandhar
                                                      ....Appellants


                               AND



                                                                     1
 1. State of Punjab
  through its Principal Secretary
  Department of Science, Technology and Environment, Mini
  Secretariat, Sector 9, Chandigarh


2. Punjab Pollution Control Board, Vatavaran Bhawan,
  Nabha Road, Patiala through its Chairman


3. Senior Environmental Engineer,
  Punjab Pollution Control Board
  Zonal Officer, 16-17,
  Shaheed Udham Singh Nagar,
  Jalandhar


4. Chief Engineer (operations),
  Punjab State Power Corporation Ltd.
  Jalandhar


5. The District Food & Supply Controller
  Jalandhar.


6. Baldev Raj, BKO, Village Sheikhe,
  Old Hoshiarpur Road,
  Jalandhar
  (presently residing at 264,New Jawahar
  Nagar ,Jalandhar)
                                             .........Respondents


                                                            2
      (Advocates appeared:: Mr. A.R. Thakkar along with Ms.
     Durgesh Bali Advocates for Appellants, Mr. Ashish Verma
     along with Mr.Anup Singh Advocates for Respondent No. 1, 3
     and 4, Mr. Rajesh Kr. Pandey, Advocate for Respondent No.
     5)


                             J U D G M E N T

1. This is an Appeal preferred by two inhabitants of Jalandhar, Punjab, challenging the common order dated 14th August, 2012, passed by the Appellate Authority, constituted under the Air (Prevention and Control of Pollution) Act, 1981 (for short, Air Act), and the Water (Prevention and Control of Pollution) Act, 1974 (for short, Water Act), in Appeal Nos. 14 & 15 of 2012. Those were two different appeals, preferred by Mr. Baldev Raj, (Respondent No. 6) against the orders dated 18.02.2012 and 09.04.2012 passed by the Punjab Pollution Control Board (for short, PPCB). The first order, passed by the PPCB, under sections 21 and 22 of the Air (Prevention and Control of Pollution) Act, 1981, was for refusal to extend the consent to operate the brick kiln under the Air Act. The Second Order was passed under section 31 of the Air Act giving direction to disconnect electricity supply and also to District Food and Supply controller (for Short, 3 DFSC) to revoke license of the Brick Kiln of Baldev Raj (Respondent No. 6).

2. A brief survey of certain undisputed facts may be taken at the outset. Baldev Raj (Respondent No. 6) was operating a Brick kiln since about 1978.The PPCB had issued "consent to operate" order in favour of Baldev Raj under the Air Act on 02.09.2003. That consent was valid till 31.03.2013.

3. The said consent was cancelled on 7.10.2004 on the ground that Mr. Baldev Raj (Respondent No. 6) was not using 25% of fly ash as per the mandate of the notification dt. 14.9.1999 as amended on 17.8.2003.

4. The notification dt. 14.9.1999 was issued by the Ministry of Environment and Forests (for Short, MoEF), Government of India, which mandates that a manufacturer of clay bricks must use at least 25% of fly ash generated from Thermal Power Plants as ingredient of the bricks. That notification was challenged by way of Writ Petition No. 19398 of 2004 filed before the Hon'ble High Court of Punjab and Haryana by a group of brick kiln owners. The Hon'ble High Court of Punjab and Haryana directed the PPCB that no coercive action shall be taken against the brick kiln owners. The consent for brick kiln of Mr. Baldev Raj was withdrawn, in the meanwhile, in accordance with the notification issued by the MoEF.

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5. The Respondent No.6 again applied for consent which was granted vide order no.490 dt.17.12.2004 with a validity period up to 16.6.2005. Even after the expiry of the consent to operate i.e from 16.6.2005,the Respondent No. 6 did not apply for grant of consent and continued to run the Brick Kiln in violation of the Air Act.

6. The license granted by DFSC (Respondent No. 5), purports to show that the brick kiln was set up on the land bearing Khasra Nos. 19/4, 16, 24/2 and 25 situated at village Seikhe, Tehsil and District Jalandhar. The brick kiln in question is now inoperative and closed down.

7. Briefly stated, the case by present appellant is that though license was granted by the DFSC to operate brick kiln on a particular piece of land i.e. khasra Nos. 19/4, 16, 24/2 and 25, yet Baldev Raj is not exclusive owner of the said land. The land is owned by Co-sharers including themselves and Baldev Raj. The "consent to operate" was obtained prior to issuance of the license, in favour of Baldev Raj by the DFSC. The brick kiln was being operated in the midst of residential locality of Jalandhar. It is causing air pollution and is detrimental to the health of the residents of the surrounding area. The brick kiln was being operated in blatant violation of conditions of the consent granted by the PPCB as well as the code and practice prescribed in this behalf. The brick kiln emanated excessive polluted air as the SPM level was 5 found to be much higher than the prescribed standards of 500mg/Nm3. Hence, they lodged a complaint against Mr. Baldev Raj to the PPCB. The PPCB collected stack air samples from the Brick Kiln. The analysis of such samples was done in Government laboratory which revealed that the SPM level is much higher than the prescribed standards. The PPCB issued a Show Cause Notice to Baldev Raj. Thereafter vide order dated 09.04.2012 the PPCB directed closure of the brick kiln. The PPCB also gave further directions to disconnect electricity supply of the brick kiln and to DFSC to revoke the license granted for the brick kiln.

8. Feeling aggrieved by the said two orders dated 18.02.2012 and 09.04.2012, Baldev Raj, BKO, (Respondent No. 6), preferred two separate Appeals bearing Appeal No. 14 and 15 of 2012 before the Appellate Authority constituted under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act 1981 by the Government of Punjab. The Parties were heard through the Learned Counsel and the appeals were allowed by the Appellate Authority.

9. Though served, Baldev Raj, BKO, (Respondent No. 6), failed to appear before this Tribunal.

10. We have heard learned Counsel. As stated before, Respondent No. 6, Baldev Raj, BKO remained absent during the hearing. Mr. A. K. 6 Thakkar, learned Counsel appearing for the appellants, argued that the brick kiln was found to be a polluting unit. He argued that the stack emission was found to be much beyond the prescribed limit. He contended that on two occasions, i.e. on 17.2.2011 and 3.2.2012, the PPCB collected samples from the unit and found that the concentration of SPM in the stack emission was 780 and 1072 mg/Nm3 respectively against the prescribed limit of 500mg/Nm3. The Learned Counsel submitted that Baldev Raj (Respondent No. 6) did not cooperate with the officers of the PPCB while collecting the samples. He argued that the action of the official PPCB in collecting and analysing the samples should have been appreciated and accepted by the Appellate Authority. He further argued that the credibility of PPCB cannot be undermined by the Appellate Authority. Finally, he argued that the Appellate Authority should have called upon the Board to monitor the emission level, including the sampling and testing procedure in case the consent to operate is again granted for the brick kiln of Baldev Raj. The Counsel appearing for Respondent No. 1, 2, 3 and 4 supported the contentions of Learned Counsel, Mr. A.R. Thakkar.

11. We have perused the relevant documents placed on record. We have carefully considered the orders of the PPCB as well as that of the Appellate Authority.

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12. It appears that the PPCB granted consent to operate the brick kiln on 27/12/2010. The consent was valid till 23.12.2011. Further it appears that no further consent was granted by the PPCB to operate the brick kiln. On the basis of appellants' complaint dated 31/01/2011 the officials of PPCB conducted inspection of the brick kiln on 17/02/2011. At the relevant time, stack samples were collected in the presence of Baldev Raj, but he refused to sign on the container of the samples. The samples were forwarded to Government approved laboratory for analysis. It was found from the analysis report that Suspended Particulate Matter (SPM) level was 780mg/Nm3. Obviously, it was much above the prescribed standards of 500mg/Nm3.A show cause notice was therefore issued by the PPCB on 14/2/2011 calling upon Baldev Raj (Respondent No. 6) as to why appropriate action shall not be taken against him for operating the polluting Brick Kiln unit. Baldev Raj (Respondent No. 6) submitted a reply to the show cause notice stating that his brick kiln was not causing any pollution since he had installed pollution control device. In order to verify the fact situation the officers of PPCB made second visit to the brick kiln unit of Mr. Baldev Raj (Respondent No. 6). It was found that the conditions put forth, while granting consent to operate the unit, were not being complied with by Baldev Raj. So, another show cause notice was issued to him on 12/10/2011. It appears that 8 Baldev Raj appeared in person before PPCB and requested for another inspection by a different team. Accordingly, PPCB constituted another team of officials and the newly constituted team visited the unit of Baldev Raj on 23/11/2011. The Members of the inspecting team noted the following deficiencies:-

(i) Though, a monkey ladder was provided for collecting samples, yet it was not adequate;

(ii) The Diesel Generator (DG) set was under operation without providing any canopy;

(iii) Coal crushing machine was not available at site ;

However, the inspection team was not able to collect the samples of the stack emissions because the brick kiln was not in operation. Eventually, on 03/02/2012, the stack samples were collected. The laboratory of State Board analysed the samples and reported that the concentration of Suspended Particulate Matter (SPM) level was 1072 mg/Nm3 against the prescribed standards of 500 mg/Nm3 . As a result of this report the PPCB again issued show cause notice, heard Mr. Baldev Raj personally and passed orders dated 18/02/2012 refusing to grant further consent to operate the brick kiln. Another order dated 9th April, 2012, under section 31 (A) of the Air Act, was also issued to 9 stop the operation of brick kiln on account of violation of the conditions while granting consent to operate the unit.

13. Perusal of the impugned order of the Appellate Authority revealed that there was confusion in the minds of the members of the Appellate Authority. The appellate Authority observed:

"The submissions made by the counsel for the appellant and record available on the file revealed that the report at Annexure P- 24 contains cuttings and changes which are not explained. The sample was collected on 3.2.2012 but the analysis report revealed two different dates of receipt of sample as 4.2.2012 and 9.2.2012 which itself is contradictory. Moreover, the samples were tested on13.2.2012 after the lapse of period of 9 days and the test was signed and dispatched on 14.02.2012 but there are cuttings on the date of dispatch which could be another date. It seems that Board did not follow a transparent procedure while collecting and analysing the samples, and did not follow the provisions of section 26(3) (d), which prescribe that the person taking the samples shall send, without delay, the container or containers to the laboratory. The provisions of sections 26 & 27 of the Air Act have also not been complied with."

14. What appears from the above mentioned reasons, recorded by the Appellate Authority, is that the sampling procedure adopted by the PPCB was not believed by the Appellate Authority. The Appellate Authority did not call for the records of the government testing laboratory in order to find out the date of receipt of samples and date of testing thereof . The Appellate 10 Authority only quoted Section 26(3) (d) of the Air Act and opined that, it was not duly compiled with. The Section 26(3)(d) is attracted only when the collected sample container is to be signed by both the persons, one who is taking the sample and other being the occupier of his agent. Thereafter, such samples have to be dispatched without any delay, to the laboratory established or recognised by the said Pollution Control Board.

15. In our opinion clause (d), sub-section (3) of Section 26 is applicable only when clause (b), sub-section (4), Section 26 is not attracted. The clause (4)(b) of Section 26 states the following:

"in a case where the occupier or his agent is present at the time of taking the sample but refuses to sign the marked and sealed container or containers of the sample of emission as required under clause ( c) of the sub-section (3), the marked and sealed container or containers shall be signed by person taking the samples and ........".

When the PPCB came out with a case stating that the sample was taken in the presence of Mr. Baldev Raj, who refused to sign the container, the version of PPCB could not have been discarded by the Appellate Authority. In case of Tatyasaheb Kore Warana S.S.K ltd Vs Sharad Baburao Patil, (2011) 12 SCC 543, 11 the Apex Court held that the Maharashtra Pollution Control Board, being a statutory authority, cannot be disbelieved on factual issues of installation of ESPs. In other words, due credibility should be given to the act of PPCB when there is conflict between the version of a private person and that of officials of PPCB. We find that the Appellate Authority did not prescribe sufficient reasons to dislodge the findings derived after analysis of the samples collected on the two occasions by the PPCB. The Appellate Authority passed sweeping remarks while discarding the reports of the analysis and findings of the PPCB.

16. The Government of Punjab had issued an order dated 06.10.1998, a copy thereof is placed on record. This order is titled as "Punjab Control of Bricks Supplies, price and Distribution Control Order, 1998". Clause (3) of the said order prohibits manufacturing and selling etc. of bricks without licence. It also provides certain norms to be followed at the time of granting licence. Clause (5) empowers the District Magistrate to refuse the grant or renewal of licence.

17. It appears that the question "whether brick kiln operating in an area less than of 5,00 hectares requires Environmental Clearance" is being considered by the Apex Court. The brick kiln was to be closed down as per the directions of Hon'ble High 12 Court of Punjab and Haryana. We are of the opinion that the Appellate Authority failed to consider the conduct of Baldev Raj (Respondent No. 6) that he was non-cooperative during the process of collection of samples by the officials of PPCB. He refused to sign containers of the samples and sought inspection by separate inspecting party of the PPCB and he did not explain why he did not sign the container of the samples. In this way, adverse action should have been taken against him. Considering, the forgoing discussion, we are of the opinion that impugned order of the Appellate Authority is improper, illegal and unsustainable. The matter does not stop here. The impugned order shows that it has been signed and delivered by two members of the Appellate Authority. The Section 31 (2) of the Air Act is reproduced below for ready reference.

31(2). The Appellate Authority shall consist of a single person or three persons as the State Government may think it fit to be appointed by the State Government.

The Section 28 (2) of the Water Act is also reproduced below for ready reference.

28(2). An Appellate Authority shall consist of a single person or three persons as the State Government may think it fit to be appointed by that State Government. 13

18. The Sub-clause (2) of Section 31 of the Air Act and Sub- clause (2) of Section 28 of the Water Act make it explicit that the Appellate Authority shall consist of a single Member or three Members appointed by the State Government. It does not mention a two Member Authority to function as Appellate Authority. The intention of legislature appears that the decision can be taken either by a single Member or by three Members. If a decision is taken by single member authority, then it becomes final decision of the authority. If it is the decision of a three member authority, there is inherent provision to mitigate any difficulty arising due to difference of opinion, i.e. if one of the members disagrees the opinion of the rest of the two Members will prevail and can be treated as a majority decision of the Appellate Authority. This is not possible if only two members are appointed because if there is a divergence of opinion among them, there is no third member to overcome the difficulty. Under the above circumstances, the meeting of the authority attended by two members is one more reason as to why the impugned order is liable to be quashed.

19. For the reasons aforestated, we are inclined to allow the appeal and set aside the common order passed by the Appellate Authority. Hence, the Appeal is allowed and impugned order is 14 set aside. It follows that both the orders dt. 18.02.2012 and 09.04.2012, passed by the PPCB, shall be restored and become operative. The Appeal is accordingly disposed of, with no order as to costs.

.........................................., JM (V. R. Kingaonkar) ........................................., EM (Dr.P.C. Mishra) ........................................., EM (P.S. Rao) ........................................., EM (Ranjan Chatterjee) 15