Page No.# 1/7

GAHC010228012013




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C) 1083/2013

         1:ANANDRAM SAIKIA
         S/O LT. LALIT CHANDRA SAIKIA R/O VILL- HATIBAGORA, P.O.
         CHANDRAPUR, DIST. KAMRUP M, ASSAM.

         VERSUS

         1:THE STATE OF ASSAM AND 6 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
         DEPARTMENT OF ENVIRONMENT AND FOREST, DISPUR, GUWAHATI-6.


         2:DEPUTY COMMISSIONER
          KAMRUP M
          PANBAZAR
          GUWAHATI-1.

         3:ASSAM POLLUTION CONTROL BOARD
          BAMUNIMAIDAM
          REP.BY ITS CHAIRMAN.

         4:SENIOR ENVIRONMENT ENGINEER
          REGIONAL OFICE
          POLLUTION BONTROL BOARD
          GUWAHATI-21.

         5:CIRCLE OFFICER
          CHANDRAPUR REVENUE CIRCLE
          CHANDRAPUR
          DIST. KAMRUP M
         ASSAM.

         6:M/S PASHUPATI NAT BRICKS
          HAVING ITS OFFICE AT PRINCIPAL PLACE OF BUSINESS AT DHEKIABARI
         GOVALI
                                                                                          Page No.# 2/7

             P.O. CHANDRAPUR DIST. M
             PIN- 781150.

            7:SRI SANTOSH NEWAR
             S/O SABILAL NEWAR
             RESIDENT OF HAJOBARI
             P.O. CHANDRAPUR
             PIN- 781150
             PROPRIETOR OF M/S PASHUPATI NATH BRICKS

Advocate for the Petitioner    : MR.M RANA

Advocate for the Respondent : MRA K RAI

BBEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI Advocate for the Petitioners : Shri D. P. Chaliha, Senior Advocate, Shri U. P. Chaliha Advocate for the Respondents : Ms. K. Phukan, G.A., Shri P. J. Phukan, SC PCB Shri S. P. Roy, for respondent Nos. 6 & 7 Date of hearing : 13.05.2019 Date of Judgment & Order : 13-05-2019 JUDGMENT & ORDER(ORAL)

1. The Extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India has been sought to be invoked by the petitioner being aggrieved by the establishment and running of brick klin namely M/S Pashupati Nath Bricks owned by the respondent Nos. 6 & 7.

2. There is a cheaqured history of this case. Initially, the aforesaid brick klin was operated on the strength of consent order dated 14.05.2010 issued by the Pollution Control Board, Assam. That said consent order was the subject matter of complaint lodged by one organization before the Deputy Commissioner-cum- District Page No.# 3/7 Magistrate Kamrup (M). The said authority after considering the matter had passed an order dated 26.11.2010 (signed on 01.12.2010) whereby the "consent of operate" order dated 14.05.2010 was cancelled and it was directed that all brick making activity should be stopped and the structure should be removed from the site.

3. The respondent Nos. 6 & 7, as petitioners had approached this Court by filing two writ petitions namely WP(C)/6564/2010, which was against the cancellation of the No Objection Certificate (NOC) issued by the Deputy Commissioner and the second writ petition being WP(C)/185/2011 was against the cancellation of the "consent to operate" order issued by the Pollution Control Board, Assam. Both the aforesaid writ petitions were taken up for consideration by this Court and were disposed of by separate orders dated 06.03.2012. This Court, after considering all the subject matter had set aside the order dated 26.11.2010 (signed on 01.12.2010), issued by the Deputy Commissioner-cum-District Magistrate. However, liberty was granted to the said authority to issue show cause notice for cancellation of the provisional NOC granted to the petitioner (respondent Nos. 6 & 7 herein), if so advised. It was further clarified that in absence of "consent to operate" issued by the Pollution Control Board, Assam, the unit would not be allowed to operate. Likewise, the second writ petition namely, WP(C)/185/2011 was also allowed vide the order of the same date i.e. 06.03.2012, interfering with the impugned order dated 23.12.2010, by which consent to establish was withdrawn. This Court however, observed that the Pollution Control Board would be at liberty to issue show cause notice to the petitioners (respondent Nos. 6 & 7 herein) for withdrawal of "consent to establish", if so advised. As in the earlier case it was also observed that the brick klin in question would not be allowed to operate in absence of "consent to operate".

4. It is the case of the petitioner that after the orders were passed by this Court, they expected that the matter would be looked into by the District Authorities as well as by the Pollution Control Board by issuing show cause notice in which the petitioner would also get an opportunity before the said authorities. However, the petitioner could find that the unit in question had started its operation and therefore, the petitioner had submitted an application to the Pollution Control Board under the provisions of Right to Information Act.

5. The aforesaid application was responded to and the copy of the Page No.# 4/7 communication dated 15.05.2012, issued to the owner of the brick klin was furnished to the petitioner. It appears that the communication was with regard to grant of renewal of consent under (Air Prevention and Control of Pollution) Act, 1981 for the period 01.04.2012 to 31.03.2013, as per the enclosed terms and condition.

6. It is the case of the petitioner that such renewal of consent could not have been issued to the respondent Nos. 6 & 7, without giving an opportunity to the petitioner and without holding the proceeding as envisaged in the orders dated 06.03.2012, passed by this Court. Accordingly, the petitioner had approached for a direction for cancellation of the NOC as well as the consent to operate of the brick klin owned by the respondent No. 6 & 7.

7. I have heard Shri D. P. Chaliha, learned senior counsel assisted by Shir U. P. Chaliha, learned counsel appearing on behalf of the petitioner. I have also heard Ms. K. Phukan, learned State counsel, Shri P. J. Phukan, learned Standing Counsel for the Pollution Control Board of Assam and Shri S. P. Roy, learned counsel for respondent Nos. 6 & 7.

8. Shri Chaliha, learned senior counsel by referring to the order dated 06.03.2012, submits that as per the said order, it was incumbent upon the District Megistrate as well as the Pollution Control Board to initiate a proceeding by issuing a show cause notice to the respondent Nos. 6 & 7 with regard to the operation of brick klin in question. It is further been submitted that in absence of initiating such proceeding, grave prejudice have been cause to the petitioner. Even otherwise, the "consent to operate" could not have been granted without holding the proceeding as envisaged by the Court. Referring to the guidelines for establishing the brick klin more specifically those mentioned in serial No. 4 regarding location of klin, the learned senior counsel submits that as per the said guidelines, the aerial distance to brick klin should be atleast 500 meters from the areas located near registered Hospital, Schools Etc., and in the instant case, there is a school namely, Paschim Mayong High School which is admittedly within the distance of 300 meters from the brick klin in question. It is therefore, contended that even otherwise, the brick klin has been constructed by flouting the guidelines holding the field. The learned senior counsel further submits that there is another requirement that the unit should be at the minimum distance of atleast 1 Km from any wild life sanctuary and in the instant case, the distance from the Page No.# 5/7 Probitora Wild Life Sanctury is less than one kilometer.

9. On the other hand, Shri P. J. Phukan, learned Standing Counsel for Pollution Control Board submits that no direction as such were given by the orders dated 06.03.2012, passed by this Court and reading of the orders which shows only a liberty was granted to the respondent authorities. Since the matter was left on the discretion of the authorities, it was their prerogative to decide as to whether a proceeding was required to be initiated or not. In absence of positive direction to initiate a proceeding, no fault can be attributed to the authorities namely, Pollution Control Board or the Deputy Commissioner. In that view of the matter, the first submission made on behalf of the petitioner that the petitioner was deprived of an opportunity, the same cannot be sustained. Coming to the guidelines, the learned Standing counsel submits that these guidelines were formulated after establishment of the present unit and therefore, cannot have a retrospective effect. Even otherwise, by referring to inspection report which is the part of the affidavit filed by the respondent Nos. 3 & 4, the learned standing counsel Shri Phukan submits that due consideration has been made to the fact of existence of the Paschim Moyong Higher School at the distance of 300 meters from the chimney. By making specific reference to the inspection report dated 13.06.2017, the learned counsel submits that there is an due application of mind with regard to the said fact of existence of school and there is less possibility of impact of pollution in the school campus and the authority had carefully inspect the place before recommending the "consent of operate". It has also been submitted that the guidelines itself makes it clear by the Note appended after paragraph 4.6 that the guidelines given in the paragraph 4.1 to 4.6 would not be applicable for the existing brick klin which have been established with valid Consent of the Board prior to the date of issue of these guidelines. Therefore, the guidelines, as such, is not per se applicable to the case in hand.

10. Shri S. P. Roy, learned counsel for the respondent Nos. 6 & 7, has questioned the very bona fide of the petitioner in approaching this Court by invoking the equity jurisdiction under Article 226 of the Constitution of India. The learned counsel submits that the present petition has been filed only out of business rivalry as the petitioner and respondent No. 6 & 7 are from same locality. In paragraph 20 of the affidavit-in- opposition, specific reference has been made that the person Shri Haren Sakia who is Page No.# 6/7 a relative of the petitioner and who is the owner of the brick klin in the same locality. This specific averment has not been denied by the petitioner by filing any affidavit. It is further been contended that averments made in the writ petition that the petitioner is a cultivator is also incorrect and in this regard, the respondent Nos. 6 & 7 in the additional-affidavit has stated that the petitioner is actually a Supervisor in the Assam State Fertilizers and Chemicals. Though this fact may not have any material bearing in the outcome of this case, it is the contention of the learned counsel for the respondent Nos. 6 & 7 that while approaching the Court of equity, the petitioner should have come with a clean hand.

11. Endorsing the submissions made on behalf of the Assam Pollution Control Board, Shri Roy, learned Senior counsel submits that the guidelines per se is not applicable to the case in hand as the Note appearing immediately after paragraph 4.6 of the same makes it clear. As regards to the effect of pollution the brick klin in question by referring to the analysis report dated 29.12.2012, it is submitted that the concentration of pollution are within the permissible limits of the Board and therefore, the principal grievance of causing pollution appears to be incorrect.

12. In this proceeding, an affidavit-in-opposition dated 05.12.2013 is also filed by the Additional Deputy Commissioner, Kamrup wherein it has been stated that after 26.11.2010, no further NOC has been issued by the office of the Deputy Commissioner, Kamrup (M). The aforesaid statement has been clarified by Shri Phukan, learned standing counsel for Pollution Control Board by submitting that there is a distinction between consent to establish and consent to operate. The learned counsel submits that NOC from Circle Officer of the same area is mandatory requirement at the time of establishment of unit and there is no requirement while operating the unit. Therefore, the aforesaid statement made in the affidavit may not have any material bearing in the present case.

13. Shri Chaliha, learned senior counsel has placed reliance upon the judgment of this Court dated 28.10.2013 passed in WP(C)/1256/2012, wherein in paragraph 14, a broad meaning has been assigned regarding the locus of a complainant by taking into account Article 51-A of the constitution of India. There is no dispute with the proposition laid down in the said judgment with regard to the locus-standi of the petitioner but what is disputed is the bona fide of the petitioner in maintaining the Page No.# 7/7 present challenge.

14. Shri Roy, on the other hand, relies upon the decision of this Court, (2004) 3 GLR Page 61 (Pollution Control Board of Assam Vs. Jadav Shop Works and Others) and (2011) 1 GLR Page 15 (Ratul Bhagabati Vs. State of Assam and Others), wherein the power of Pollution Control Board has been explained. It has also been stated that the Board being a creation of a statue it is duty bound to follow the statue and should not be influenced by any other irrelevant or extraneous factors.

15. This Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India, has to balance the equity and has also duty bound to see the bona fide of the person approaching the Court. From the nature of the pleadings made in the affidavit-in-opposition, serious doubt arises on the bona fide of the petitioner to maintain the challenge. However, even by overlooking that aspect of the matter, even of merits, the pleadings and the materials before this Court relied upon by the petitioner does not, in the opinion of Court, make a case for interference. In that view of the matter, the instant writ petition is held to be devoid of merits and the same is dismissed.

JUDGE Comparing Assistant