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BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE) BENCH, PUNE
APPLICATION No. 07(THC)/2013(WZ)
AND
APPLICATION NO.36 (THC) OF 2013
CORAM:
Hon'ble Mr. Justice V.R. Kingaonkar
(Judicial Member)
Hon'ble Dr. Ajay A. Deshpande
(Expert Member)
APPLICATION No. 07(THC)/2013(WZ)
B E T W E E N:
Sonyabapu s/o. Tukaram Rajguru,
Aged 41 Years, Occu : Service,
R/o. Karajgaon, Tq. Newasa,
District :Ahmednagar.
....Applicant
AND
1 The State of Maharashtra,
Through : The Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai - 32.
(Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 1
2 The Divisional Commissioner,
Nashik Division, Nashik,
3 The Collector, Ahmednagar,
District :Ahmednagar,
4 The Sub-Divisional Officer,
Tq. Shrirampur, Distt :Ahmednagar,
5 The Tahsildar, Newasa,
Tq. Newasa, Distt :Ahmednagar.
6 The Maharashtra Pollution Control Board,
Sub-Regional Office,
SavitribaiPhule Commercial Market,
1st Floor, Hall No.2 &3 , Near T.V. Centre,
Savedi, Tq. &Distt :Ahmednagar,
7 Seetabai Rambhau Jorvekar,
Aged 57 Years, Occu : Business,
Resident of :Karajgaon, Tq. Newasa,
District :Ahmednagar.
...Respondents
Counsel for Applicant:
Absent - Nemo
Counsel for Respondent :
Mr. Vikas Kulkarni, Adv.
APPLICATION NO.36 (THC) OF 2013
B E T W E E N:
PRABHAKAR PRATAP PANGAVHANE
Age 70 years, Occ. Agriculture
R/oMahe-Deshmukh, TalukaKopargaon,
District Ahmednagar
Through its Power of Attorney Holder
Avinash Prabhakar Pangavhane
Age 40 Years, Occ. Agriculture,
R/o Mahe-Deshmukh, Taluka : Kopargaon,
(Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 2
District Ahmednagar.
. ........Applicant
Versus
1. State of Maharashtra
Through the Secretary,
Environment Department,
Mantralaya, Mumbai.
2. Maharashtra State Pollution
Control Board, Kalpataru Point,
3rd Floor, Opp. Cine Planet, Sion
Circle, Mumbai, Through its
Chairman
3. Sub-Regional Office,
Maharashtra Pollution Control Board
SavitribaiPhuleVyapariSankul,
Near T.V.Centre, Savedi,
Ahmednagar.
4. District Revenue, Collector,
Ahmednagar
5. Balasaheb Pundlik Kale
Age Major, Occu. Business.
6. Jaywant Tukaram Kale,
Age Major, Occu. Business.
Respondent Nos.5 & 6,
R/o Mahe-Deshmukh, Taluka Kopargoan
District Ahmednagar.
.....Respondents
Counsel for Applicant
Mr. Yogesh J.Kamat.
Counsel for Respondent(s):
Mr. D.M.Gupte and
Mrs Supriya Dangare for Respondent No.1,2, 3.
Mr. A.P. Akut for Respondent Nos.5 & 6.
(Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 3
DATE : 24th February, 2014
COMMON - JUDGMENT
1. Two Writ Petitions No. 2059 of 2013 and WP No. 9855
of 2012 have been transferred to this Tribunal by Hon'ble High
Court of Bombay, Bench at Aurangabad and thereafter have
been registered as Applications. Both these Applications involve
common issues related to pollution caused due to Brick kilns,
environmental impacts of brick kilns and operating the Brick
Kilns without necessary permissions from regulatory
authorities, including MPCB. For the sake of clarity, facts in
both these cases have been separately narrated before outlining
the Issues to be decided in these Applications.
Factsin APPLICATION No. 07(THC)/2013(WZ)
2. Applicant Sonyabapu filed Writ Petition No.2059 of 2013 seeking prohibitory injunction against Respondent No.7 Sitabai from running brick-kiln in agricultural land bearing Gat No.51/2A, admeasuring 10 Gunthas (Aars) situated at village Karajgaon under Newasa Tahsil (District Ahmednagar). Incidentally, he also challenged order dated 5th December 2012 issued by Tahsildar, Newasa, whereby Respondent No.7 Sitabai was permitted to run the brick-kiln in the said agricultural land. (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 4
3. The above Writ Petition was transferred to this Tribunal by Hon'ble High Court of Judicature at Bombay, Bench at Aurangabad by order dated October 01st, 2013. Afresh notices were issued thereafter. The pleadings were completed. The matter was thereafter heard on merits.
4. Briefly stated, case of Applicant Sonyabapu is that Respondent No.7 Sitabai is running a brick-kiln in agricultural land bearing Gat No.51/2A, situated at village Karajgaon, without obtaining valid permission of competent authority, in defiance of the statutory provisions. His father had filed Writ Petition No.2854 of 2005 in the Hon'ble High Court of Bombay, seeking relief against the illegal activities of running brick-kiln by Respondent No.7 Sitabai. That Writ Petition was, however, disposed of in view of statement made by Learned A.G.P. to the effect that the District Collector will take appropriate action against Respondent No.7 Sitabai if the brick-kiln is found to be illegal and being run without necessary permission. Still, however, no action was taken till the date.
5. Applicant Sonyabapu gave account of civil dispute which was raised by filing a suit (R.C.S.No.27 of 2005) by Respondent No.7 Sitabai against him in the Court of Learned Civil Judge (Jr.Dn.) Newasa for prohibitory injunction. By filing such a suit, she sought permanent injunction restraining him from interfering into her lawful possession over the suit property, namely, land bearing Gat No.51/2A. The suit was (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 5 decreed by the Civil Court vide its judgment and decree dated 23rd January 2009. Feeling aggrieved, Applicant Sonyabapu preferred an Appeal (R.C.A.No.14 of 2009) in the District Court, Shrirampur. He also sought stay to the injunction decree. An exparte stay order was granted by the District Court against the exparte order of stay, Respondent No.7 Sitabai has preferred Writ Petition No.5142 of 2012 in the Hon'ble High Court of Bombay, Bench at Aurangabad. That Writ Petition is still pending.
6. According to Applicant Sonyabapu, he made various complaints against illegal activities of Respondent No.7 Sitabai. By communication dated 29th June 2009, the TahsildarNewasa informed him that Respondent No.7 has not obtained any permission from the District Health Officer or Zilla Parishad Ahmednagar or Gram Panchyat Karajgaon for running of the brick-kiln. He alleges that on enquiry, he came to know that the Gram Panchyat office of village Karajgaon did not issue "No Objection Certificate (NOC)" to Respondent No.7 Sitabai for running of the brick-kiln. He gathered information that the Maharashtra Pollution Control Board (MPCB) has not granted any permission to Respondent No.7 Sitabai for running of the brick-kiln.
7. It is the case of Applicant Sonyabapu that as per the guidelines of the MPCB, set-out vide communication dated 18th February 1997, no brick-kiln can be permitted within distance (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 6 of 500 meters from residential premises or a public road. The brick-kiln of Respondent No.7 Sitabai is being run illegally in as much as it is at a distance of about 120 ft. from the nearby public road. Thus, it is being operated in violation of the guidelines issued by the MPCB. Further, the brick-kiln is being run without payment of royalty to the Government for the stock of earth (soil) that was being used for manufacturing of the bricks. Therefore, on 24th February 2012, Respondent No.7 Sitabai was directed to pay a fine of Rs.25,000/- for illegally transporting of the earth (soil) without payment of royalty, as per the communication issued by the Tahsildar, Newasa. Though, previously the Tahsildar had prohibited Respondent No.7 Sitabai from running of the brick-kiln by an order dated 13th June 2012, yet subsequently by impugned order dated 5 th December 2012, the said prohibitory order was re-called and declamped.
8. According to Applicant Sonyabapu, brick-kiln of Respondent No.7 Sitabai is surrounded by residential houses of 300 to 400 inhabitants. The life and health of the inhabitants residing around the brick-kiln is endangered due to the pollution caused on account of running of the brick-kiln by Respondent no.7 Sitabai. The Air Pollution caused due to smoke emanating from the brick-kiln has also damaged the crops in the surrounding area. The authorities have failed to take suitable action against Respondent No.7 Sitabai in spite of (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 7 various complaints made by him and other inhabitants of the locality. His right to life and right to enjoy pollution-free atmosphere is violated due to running of the brick-kiln by Respondent No.7 Sitabai. It is necessary to shut down the illegal brick-kiln in order to protect his life as well as life of other inhabitants of the locality as per protection available under Article 21 of the Constitution of India. It is in the wake of these background facts that he approached the Hon'ble High Court Bombay, Bench at Aurangabad by filing of the Writ Petition which has been transferred to this Tribunal.
9. By filing reply-Affidavit, Arun Ujagare, Tahsildar Newasa resisted the Application on behalf of Respondent Nos. 1 to 5. All the material allegations of Applicant Sonyabapu are denied by him. He submitted that the earlier order dated 13th June 2012 was recalled by impugned order dated 5-12-2012 in view of subsequent developments. He contended that since Respondent No.7 Sitabai was granted prohibitory decree by the Civil Court, as a result thereof the earlier communication was recalled. His response in the matter is, however, of no much importance.
10. On behalf of the Respondent Nos.2 and 3, the Regional Officer, Shri. Ankush Fulse, filed reply affidavit. In his affidavit, he explained that the MPCB, is not the Authority to grant Consent to establish for the bricks Kilns and the same are being regulated by the Revenue Department, the Govt. of (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 8 Maharashtra till the date. His affidavit is to the effect that the role of MPCB, is limited to the extent of monitoring air emissions and to look into the complaints of air pollution, in respect of the bricks kiln activities. The affidavit shows that the emissions in respect of impugned brick kiln were found to be normal during the course of monitoring of ambient air quality, as conducted in pursuance to the communication of the District Collector, Ahmednagar, in June, 2006. The affidavit of Shri.Ankush Fulse, is to the effect that the impugned brick kiln is adjacent to the road and is situated at a distance of about 100 mtrs from the road. The affidavit further shows that the brick kiln of Respondent No.7, Sitabai, is approximately 2 km away from the village locality of Karajgaon and is about 2 km away from the river 'Mula'. So also, it is about 250-300 mts away from the residential house of the Applicant-Sonyabapu. The brick kiln was found closed w.e.f. 7th June, 2013. The affidavit shows that the brick kiln is an old type (traditionally used) for manufacturing of bricks at the countryside and is called 'Çhamp Bhatti'.
11. The stance of the Respondent Nos.2 and 3, is that they are not the Authorities for granting permission/licence for the brick kilns and particularly, traditional type Clamp brick kilns run at the countryside.
12. By filing her reply affidavit, Respondent No.7, Sitabai, resisted the Application. She is the main contesting (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 9 party to the Application. According to her, the bricks kiln is being run since 1988, in traditional way. She submits that she is a Potter by caste and it is her family business to deal in manufacturing of the bricks. She narrated that she has obtained necessary permission for Non-Agricultural use (NA- permission) issued by the Revenue Authority for converting land Gat No.51/2A for Non-Agricultural use. She claims to have purchased the said land Gat No.51/2A, from its previous owner for valuable consideration. According to her, as per Notification of the Revenue and Forest department, the traditional Potter is permitted to remove earth, stone and murum up to the extent of 500 brass, from the bed of the Sea or from the bed of any creek, river and Nallas, in accordance with the Rules under the Mines and Mineral Regulation (Development) Act, 1957. She claims, however, to have paid royalty for procurement of the sand and the earth, for manufacturing of the bricks. According to her the bricks kiln, is being run without causing any pollution to the nearby area. Her case is that she had filed a suit bearing RCS No.27 of 2005, for perpetual injunction against the Applicant and sought injunction restraining the Applicant from running the bricks kiln business. She submits that the suit has been decreed and, therefore, the Applicant has filed various complaints including the present Application. She denied that the bricks kiln is being run without any lawful permission. She further denied that the bricks kiln is being run against the (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 10 settled parameters, as per the guidelines of the MPCB. Her contentions is that though the bricks kiln does not cause any air pollution and violation of environmental norms, yet the Applicant has filed false Application with a view to harass her. Hence, she sought dismissal of the Application.
13. No other response was filed by any other party. Nor we think that it is necessary to insist for calling any such response from them.
14. Before we proceed to consider the contentious Issues, let be it noted that the parties have already gone through one round of civil litigation. A suit bearing RCS No.27 of 2005, was filed by the Respondent No.7, Sitabai, against Applicant Sonyabapu for prohibitory injunction. The Civil Judge, Newasa, decreed that suit. It may be mentioned here that the Ld. Civil Judge, considered the question of lawful possession of Respondent No.7, Sitabai, over land Gat No.51/2A, in that suit. The decree in that suit, in fact, has no bearing in the context of the present Application. The subject matter of the present Application is the threat to the environment, which is caused, or likely to be caused due to running of the bricks kiln, particularly, due to the air pollutants discharged therefrom. The real question is whether any standards are prescribed for the traditional brick kilns called 'Çlamp (Country type) brick kilns'. Another important question is, whether the MPCB is licencing authority, under any rules for such kind of Bricks Industry. For, (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 11 the chief bone of contention raised by the Applicant is that the bricks kiln, is being run against the settled environmental norms and particularly the guidelines of the MPCB.
15. Learned Counsel for Respondent No.7 Sitabai argued that air quality Report of the MPCB was found to be as per prescribed standard when the samples were collected and examined. He referred to MPCB report dated 12-11-2006. The samples were collected on 7-1-2006. The report shows that the brick-kiln is located at a distance 2 k.m. from the village Karajgaon and is run seasonally for 5 months per year. The Report further shows that the fuel used is coal of 3 to 4 M.T. p.m. The proposal of renewal for licence was found pending with the Tahsildar. There was no Chimni fixed on brick-kiln. The report shows that there was no fugitive emission around the area. This report runs contrary to the Enquiry Report submitted by the Tahsildar, Newasa vide communication dated 29-2-2009. Moreover, the report pertaining to the samples collected in the month of January 2006 has hardly any bearing on the juxta position for the subsequent period. We have perused the photographs placed on record. We have also the perused the copies of challans filed by Respondent No.7 Sitabai. It appears, no doubt, that Respondent No.7 Sitabai has paid royalty for extraction of sand in order to run the brick-kiln. She has not however, placed on record any valid permission granted in her favour to run the brick-kiln.
(Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 12
16. We may mention at this juncture that by
communication dated 06-05-2012 bearing Tahsil/Jamin/31- 12, Tahsildar, Newasa directed Respondent No.7 Sitabai to close down the brick-kiln for the reason that the smoke emanating therefrom was causing nuisance to the inhabitants of the vicinity. The said communication further shows that the policy of the MPCB was that no permission should be granted to such old type Clamp (traditional) brick-kilns. Thus, it is amply clear that closure of said brick-kiln was ordered due to the fact that it was found to be nuisance to the residents of the vicinity due to the smoke which was found emanating there from. There is no substantial reason to deviate from such observations shown in the communication issued by the Tahsildar.
17. What appears from impugned communication dated 05-12-2012 (Ex-N) is that the Tahsildar, Newasa had withdrawn the earlier communication because the suit bearing R.C.S.No. 27/2005 was decreed and though the interim order was challenged, yet, the Tahsildar was not made a party in the suit as well as in Writ Petition No. 9131/2012. Obviously, withdrawal the previous communication was for extraneous reasons unconcerned with issue of environment and based upon the decree which was passed in the Civil Suit bearing R.C.S.No.27/2005. As stated before, the subject matter of that suit was the question of lawful possession claimed by Respondent No.7 Sitabai over land Gat No.51/2A and had no (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 13 relation with the question of environmental damage caused due to running of the brick-kiln in that land. Needless to say, the issues involved in the earlier suit and the present Application are quite distinct in nature.
18. Coming to the earlier Enquiry proceeding in the context of complaint made by Applicant Sonyabapu, a copy of Report submitted to Sub-Divisional Officer, Shrirampur Division Shrirampur on 29-2-2009 is placed on record. It appears that Executive Magistrate of Sonai conducted an inquiry into the complaint in pursuance to communication dated 25-6-2009 issued by the Sub-Divisional Officer of Shrirampur, Sub-Division. From the said report, following information may be gathered.
a) From 1992 onward Respondent no.7 Sitabai did not seek any NOC from Sarpanch of Gram Panchyat, Karajgaon.
b) There is residential locality near the said brick-
kiln. There were 35 houses in that locality in 1991 but during 2009, 70 houses were found around the brick-kiln and they are situated on eastern side of the road. The road is about 120 ft. away from the brick-kiln.
c) The brick-kiln was not in operation as was closed down in accordance with direction of the Tahsildar issued by communication dated 16-6-2002.
(Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 14
d) There are vegetables and fruit bearing plants in the adjoining areas which are likely to be damaged due to the Air Pollution caused during the running of the brick-kilns because of non-availability of free air.
(Emphasis supplied by us)
19. From the Fact Finding Report mentioned above, it is amply clear that running of the brick-kiln in land Gat No.51/2A by Respondent No.7 Sitabai, tantamounts to threat to the environment. It is not necessary to establish that actual loss or damage is caused to the environment.
FACTS OF APPLICATION NO.36 (THC) OF 2013
20. The Writ Petition No.9855 of 2012, was transferred to this Tribunal by the Hon'ble High Court of Judicature at Bombay, Bench at Aurangabad vide its order dated 20th September, 2013. This Application has been filed by the Applicant claiming that brick kilns operated by the Respondent Nos.5 and 6, have posed a serious issue of pollution and health hazard in the surrounding area and also ambient temperature has increased in the locality. It is claimed by the Applicant that he has agricultural farm in gut No.280 of village Mahe- Deshmukh, taluka Kopargaon District Ahmednagar. He has further submitted that the Respondent Nos.5 and 6 have started brick kilns in gut Nos. 278 and 277 which are adjoining to his land. The Applicant further claims that serious air pollution is (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 15 caused and also the solid waste from the brick kilns is disposed improperly and therefore there is serious environmental concern and degradation in the area and his agricultural fields are affected and also there is serious threat to the health of people residing in the surrounding.
21. The Applicant further submits that he has made complaints to the Collector as well as the MPCB (Respondent Nos.2 and 3), however, the Authorities have not taken necessary action on his complaints. The Applicant further submits that the brick kilns are being operated illegally without obtaining statutory permission from the revenue Authorities as well as the MPCB. The MPCB visit inspection report is produced on record which shows that the brick kilns have not been provided with any type of air and water pollution control system. Further village Mahe-Deshmukh is about 250-300m from the brick kilns. Further the residence of complaints (Applicant) is about 250-300. The brick kilns are along Mahe-Deshmukh to Kolgaon Thadi road. The affidavit goes on to mention that various crops like Sugarcane, Wheat, Onion were observed in the agriculture lands adjoining to the brick kilns and the brick kilns were not in operation during the visit.
22. The Respondent Nos. 2 and 3 filed affidavit dated 18th January, 2014 through Shri. Ankush S. Fulse, the Regional officer of the MPCB. The Respondents have submitted that the MPCB is not granting consent to establish and consent to (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 16 operate to the brick kilns activity and these activities are regulated by the revenue department, Govt. of Maharashtra. He has further submitted that the Respondent Board had circulated the guidelines to all the District Collectors in the State of Maharashtra, by letter dated 18.2.1997 and the guidelines can be summarized as under:
1) Coal of 10 a.m. size with less dust content shall be used as a fuel in Brick kiln. The brick kilns shall be mechanized, so as to use coal properly. Rubber, Plastics, Hazardous Wastes etc. shall not be used as fuel in Brick Kiln to avoid any toxic emission & smell nuisance.
2) Waste/Ash generated from Brick Kilns shall be recycled for brick manufacturing activity to maximum extent.
3) The Owner of the mechanized Brick Kilns shall take necessary measures to minimize the noise pollution.
4) Ash generated from the brick kilns shall be covered with bricks/tiles to avoid spreading of dust. To minimize the dust emission, water shall be sprinkled around the brick kilns and approach roads shall be made pucca.
5) Around the brick kilns double layer compound wall wish ash between layer shall be constructed and to avoid losses of heat double layer steel cover with asbestos between layer shall be provided.
6) The location of brick kiln shall be 500 meters away from the State/National High way and human habitation.
These guidelines are also placed on record.
23. The affidavit further goes on to mention that there are emissions of air pollutants from the brick kiln activity, due to (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 17 combustion of various types of fuels. The affidavit further mentions that in the area surrounded by the brick kilns, the prescribed standards laid down for ambient air quality under the provisions of Environmental Regulations needs to be complied with.
24. The Respondent No.5, submitted detailed affidavit and pleaded that the Applicant has not pleaded, much less proved, as an actual time and date of 'cause of action' and/or knowledge thereof and, therefore, the Application is not maintainable in the present form. Further the Respondents have alleged that there are ulterior motives behind this Application, and appropriate proceedings have been initiated by the Respondents against the Applicant with the concerned Authorities. However, the Tribunal is not concerned with such issues and therefore refrains from commenting on the same.
25. The Respondent No.5 submits that the Respondents are running their two (2) traditional brick kilns in gut No.278 and 279 of village Mahe-Deshmukh, taluka Kopargaon, District Ahmednagar since 2000-01. They further submit that they are running their traditional brick kilns by using fly ash, bagasse, soil, coal and wood for the brick kilns. They further submit that they have never used nor will ever use banned fuels such as Rubber, Plastic, hazardous wastes etc. for the operation of their traditional brick kilns. Solid waste generated from the bricks kilns, is again reused in the bricks kilns. It is also submitted (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 18 that there is no State and/or National Highway within 500m from traditional brick kilns of the Respondents. The Respondents, therefore, plead that they are operating their traditional brick kilns by paying necessary royalty to the revenue department and in fact, Tahasildar Kopargaon, has granted permission to the Respondents to operate their traditional brick kilns vide letter dated 29 January, 2014.
26. The Respondents further submit that gut Nos.278 and 279 in which the Respondents operate their traditional brick kilns are surrounded as under:
On or towards East : part of gut No.277 On or towards West : gut No.281 On or towards South : gut No.280 On or towards North : Road.
Copy of village map of village Mahe-Deshmukh, is also placed on record.
27. The Respondents have submitted 7x12 extracts of above lands since 1999 till the date and the Counsel for the Respondent No.5, argued on the basis of these documents that all gut numbers except gut No.280, which is owned by the Applicant, are being cultivated. He further mentioned that regular crops are being taken even in the gut Nos. 278 and 279 where the brick kilns are operational. He, therefore, argues that there is no truth in the allegations of the Applicant that the brick kilns operations have affected the agriculture fields and the (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 19 yield. He mentions that the Applicant's land is not being cultivated by the Applicants since year 2002, for the reasons best known to him and the Applicant is trying to blame the Respondents for his own inaction and negligence, which cannot permitted by any law and in equity. The Applicants have also submitted affidavits of some villagers, whom he claim to be users of this road, which is adjacent to the brick kilns on the north side, mentioning that there is no nuisance or pollution experienced while traversing through the road. The Respondents further submit that there is no human habitation within the distance of about 600m (2,000 ft) from the traditional brick kilns of the respondents and therefore, there is no question of having any adverse impact of pollution of brick kilns on the human health. The Respondents, therefore, have pleaded for dismissal of the Application with heavy costs.
28. We have heard learned Counsels for the contesting parties in both these Applications, including Counsel for the MPCB. We have perused the relevant material placed on record. We are of the opinion that the following Issues are involved in the Applications. They are:
1) Whether it can be said that the bricks kiln run by the concerned Respondents are being run in breach of the environmental norms and particularly any parameters fixed by the MPCB or under any Rules of the State Govt.?
2) Whether it is necessary to give directions to the Respondents to immediately close down the brick kiln?
(Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 20
3) Whether it is necessary to give any other directions, in order to ensure environmental protection and particularly prevention of air pollution which is likely to be caused due to running of the clamp type (Country) brick kilns, without fixation of proper norms ?
29. There is no denial to the fact that the MPCB, has issued guidelines for running of the brick kilns. The brick kilns are required to be run by obtaining necessary permission of the District Collector or any Authority to whom such power is delegated by the Collector. A communication dated 13th February, 1997, issued by the then Member Secretary of the MPCB, and addressed to the Collector, on the subject of permission to be granted to the brick kilns, would show that the safeguards and guidelines of the MPCB are required to be considered by the Authority, while granting such permission to run the brick kiln and same may be incorporated in the permission letter. The communication further shows that no separate consent by the MPCB will be necessary for running of the brick kilns. The communication is annexed with a separate note, which shows various guidelines, set out for five(5) kinds of brick kilns.
30. From the record, it appears that there are five (5) kinds of brick kilns, as shown below:
a) Clamps,
b) Movable Chimney Bull Trench Kiln (MCBTK),
c) Fixed Chimney Bull Trench Kiln (FCBTK), (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 21
d) High Draft Kilns (HDK), and
e) Vertical Shaft Brick Kiln (VSBK).
31. Admittedly, there is no particular standard fixed by the MPCB for grant of consent to traditional country type (clamp type-Bhatti) i.e. category-I brick-kilns. Nor, the MPCB initially claimed to be the authority to grant consent to establish/operate such kind of the brick-kilns. What appeared from the record is that the MPCB has issued communication to the District Collector of each district to incorporate safeguards as per those guidelines while granting permissions for establishment of the brick-kilns. The guidelines, no doubt, cannot be treated as part of the Rules. We find from the record that the Applicants in both Applications made various complaints in respect of the fugitive emissions arising from the brick-kilns run by concerned Respondents. However, MPCB has not submitted the levels of pollution and also, ambient air quality data, except one observed in 2006.
32. We have heard learned Counsel. During hearing on February 10, 2014, we have perused record of both the matters together. We have noted that Chairman, Central Pollution Control Board (CPCB) vide letter No. F.No.B-
29012/1/2012/ESS/1540, dated 4th June, 2002, has issued directions under Section 18 1(a) (b) of Water (Prevention and Control of Pollution) Act 1974, regarding classification of Industries into Red, Orange and Green categories to the State (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 22 PCBs. It is noticed from the letter that brickfields are classified as Orange Industry/Process, for grant of Consent and other relevant activities. The term 'Brickfield' has been defined by the Oxford Dictionary, as "an area of ground where bricks are made". Similarly, Free Dictionary defines the Brickfield' as "place where bricks are made and sold". It can be seen from the above that the CPCB, has already considered the brick manufacturing as an activity for which the consent under the Water and Air Pollution Act, is required and accordingly the directions have been issued to the State PCBs.
33. We brought this to the notice of counsel for MPCB and sought clarification from the MPCB, whether the directions of the CPCB dated 4.6.2012, and clarification of the entries in the said directions pertaining to bricks kilns, are applicable to the brick kilns of traditional nature i.e. Clamp type (country type) brick kilns (Bhatti). He was also asked to clarify whether any particular emission standards are prescribed or likely to be prescribed and whether any consent is necessary for such type of brick kilns from the MPCB?
34. Accordingly, the MPCB has filed additional affidavit on 17.2.2014, through Ankush S. Fulse, the Regional officer of the MPCB. The MPCB has submitted that the brick kilns (excluding fly ash bricks manufacturing using lime process), are covered under entry No.7 of the list of Orange category Units and therefore, in view of the specific categorization of the brick kilns (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 23 in Orange category, as far as consent regime is concerned, it is obligatory on the part of all the brick kilns to obtain consent form the Board. (Emphasis supplied). The affidavit further goes on to mention that the MPCB has, therefore, directed all the Regional Officers and Sub-Regional Officers to cover such type of activities under consent management by circulating CPCB directions. We have noted that this is complete change of stand taken by the MPCB, as in the earlier affidavits MPCB has stated that it is not at all concerned in the permission granting mechanism for the brick kilns and it is the revenue authority who grants them permission. However, the present affidavit has taken volte-face.
35. The affidavit of the MPCB further mentions that the MoEF has already notified the standards for bulls trench kilns (BTK), down draft kin (DDK) and necessary conditions have also been stipulated. However, the affidavit do not contain anything about the emission standards which have been prescribed or will be prescribed while considering the Applications for consent by clamp type i.e. traditional brick kilns, though it was specifically directed by the Tribunal to the MPCB to clarify the position. We, therefore, find it difficult to appreciate on what basis and circumstances; the Board has decided to cover these traditional brick kilns under the consent regime, when it has not decided any emission standards which form the core part of the Consent under the provisions of Air and Water (Prevention (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 24 and Control of Pollution) Acts. The affidavit itself mentions that unless the brick kilns obtains consent to operate (after stipulation of necessary pollution control arrangements) the brick kilns will not be allowed to operate. We find it difficult to understand such a proposition when the Board itself is not sure about the emission standards, required air pollution control system, required environmental safeguards which need to be considered in appraisal of the consent application and also, the monitoring mechanism for compliance of conditions.
36. MoEF has notified industry specific emission standards for the brick kilns under the provisions of Environmental (protection) Rules vide notification dated 22.7.2009, wherein emission standards have been specified for
(i) Bull's Trech Kiln (BTK), (ii) Down-Draft Kiln (DDK) and (iii) Vertical shaft kiln (VSK) types of the Brick kiln. This notification is salient about the emission standards for the Clamp type of Brick kiln. MoEF has further issued a office memorandum on 24.6.2013 notifying the guidelines for consideration of proposals for grant of environmental clearance under EIA notification for mining of 'Brick earth' and 'ordinary earth' which are also relevant in the instant case. Incidentally, SPCB's in Rajastan, Uttar Pradesh and Punjab have a policy to grant consent to Brick kilns under the provisions of Air Act, 1981 and Water Act, 1974. In fact, Rajastan PCB grants consent to Brick kilns under Red category i.e. highly polluting activity. (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 25
37. One of the important observations noted in the present Application relates to absence of emission standards for the clamp type traditional brick-kilns, as noted from the MPCB affidavit. MPCB has already submitted that all the brick-kilns need to obtain the Consent from MPCB under Water and Water Acts in compliance with the directions issued by CPCB. It is an admitted fact that the emission standards and also, the conditions to be incorporated in consent are essential pre- requisites for appraising the consent applications. We therefore record the necessity of stipulating the air emission standards and other conditions for environment safeguard before implementing the decision of MPCB to cover the brick kilns under consent management. This Tribunal has already ruled on the Authority for prescribing the emission standards under provisions of Air Act, 1981 in M.A.No.202 of 2013 and according, it is the State Pollution Control Board which will have to formulate and stipulate the air emission standards and other environmental safeguards for such brick kilns. In the instant case, MPCB has taken the decision based on the directions given by CPCB, and therefore it is expected that CPCB must have considered all such aspects while issuance of directions, and if such standards have already been framed by CPCB, MPCB can consider adopting the same or develop its own standards by following due process of law.
(Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 26
38. The Tribunal has to consider "Precautionary Principle" as contemplated U/s. 20 of the National Green Tribunal Act while deciding such a substantial question relating to the environmental dispute. We may refer to the observation of the Apex Court in "Vellor Citizens' Welfare Forum Vs. Union of India, "(1996) 5 SCC 647" and further explained in M.C. Mehta Vs. Union of India, "(2004) 12 SCC 118", the Apex Court observed:- "Law requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment." The Supreme Court, thereafter, observed in paragraph 26:
"26. The concept of "sustainable development" has been explained that it covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs. It means the development, that can take place and which can be sustained by nature/ecology with or without mitigation.
Therefore, in such matters, the required standard is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. The development of the industries, irrigation resources and power projects are necessary to improve employment opportunities and generations of revenue; therefore, cannot be ignored. In such eventuality, a balance has to be struck, for the reason that if the activity is allowed to go, there may be irreparable damage to the environment and there may be irreparable damage to the economic interest. A Similar view has been (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 27 reiterated by this Court in T.N. Godavaram Thirumulpad (104) vs. U.O.I. &Ors. (2008) 2 SCC 222; and M.C. Mehta vs. Union of India &Ors.(2009) 6 SCC 142".
39. Though, the MPCB has now taken a decision to issue such permission, yet, guide-lines issued by the MPCB in 1997 are ordinarily required to be followed in absence of fixation of standards for Clamp type of Brick kiln and particularly when there are no specific Rules framed for Clamp type Brick kiln by the Ministry of Environment and Forest (MoEF) or the State Government. In both cases, these guidelines are not adhered to. We are of the opinion, therefore, that the running of impugned brick-kilns is illegal activity and will have to be shut down as it poses threat to the environment to the surrounding area. We are also of the opinion that there is need to consider fixation of environmental safeguard as per Environmental (Protection) Act 1986 and/or Air Act, 1981 and also to identify the authority who is competent to issue permission for establishment/operation of such brick-kilns. We have noted that the state of Uttar Pradesh has framed certain Rules titled "Uttar Pradesh brick-kilns setting Criteria for Establishment) Rules 2012". Govt. of Andhra Pradesh has also notified guidelines for Clamp type Brick Kilns. Rajastan Pollution Control Board has also issued guidelines for Brick kilns.
40. Admittedly, the brick kilns in both these cases are operating without the necessary consent from MPCB and also, (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 28 have not provided the air pollution control arrangements, as noted by MPCB. Cumulative result of the foregoing discussion is that the Applications will have to be allowed. We deem it proper to allow the Applications with certain conditions. We direct concerned Respondent owning and operating the Brick kilns to stop running of the brick-kilns and also direct the other Respondents to ensure that such activity is closed down. However, we are not inclined to make our order operational with immediate effect because MPCB has just now came forward with a decision to cover such brick kilns under consent regime and also, MPCB has not finalized any emission standards or the requirement of air pollution control arrangements at such brick kilns besides stipulating the required safeguards.
41. Considering foregoing discussion and legal position as above, the Applications are partly allowed in terms as shown below :
a. The Brick kilns operated by concerned Respondents shall not be operated beyond 1st September 2014, without the necessary consent of MPCB.
b. MPCB shall formulate and notify the emissions standards for clamp type traditional brick kilns under the provisions of Air (P&CP) Act, 1981, within a period of 4 months following due process of law. CPCB shall provide necessary technical assistance for the same.
(Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 29 c. The State Government of Maharashtra shall consider framing of suitable Rules for brick kilns, may be on line of the Rules notified by the Uttar Pradesh viz. Uttar Pradesh Brick-kilns Setting Criteria for Establishment Rules 2012 or other Rules/guidelines prevailing in other State like State of Rajasthan, Andhra Pradesh, within next 4 months.
42. We make it clear, however, that Respondents owning and operating brick kilns will have a right to apply for permission or the consent to establish and operate the brick- kiln in their land if such Application is in accordance with relevant norms. The competent authority may consider their Application as per the norms/Rules existing as on the date of such application. In case such valid permission is granted, they may operate the brick-kiln without causing environmental damage as per the conditions that may be imposed, by avoiding environmental degradation/ nuisance/damage.
43. The Applications are accordingly allowed and disposed of. No Costs.
....................................,JM (Justice V. R. Kingaonkar) .................................., EM (Dr. Ajay. A. Deshpande) (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 30