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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH LUCKNOW AFR RESERVED ON 25.11.2013 CIRCULATED ON 13.12.2013 DELIVERED ON 20.12.2013 Case :- MISC. BENCH No. - 2986 of 2011 Petitioner :- Shiv Shanker Yadav And Ors. Respondent :- State Of U.P.Through Prin. Secy. Deptt. Of Environment Civil Counsel for Petitioner :- Sudhir Kumar Pandey,I.P.Singh,Vishal Singh Counsel for Respondent :- C.S.C, Anurag Shukla,Mohd.Aslam Khan,Shiv Ji Shukla Hon'ble Devi Prasad Singh,J.
Hon'ble Vishnu Chandra Gupta,J.
[Delivered by Hon'ble Mr. Justice Devi Prasad Singh]
1. Petition under Article 226 of the Constitution of India has been preferred being aggrieved with ""no objection certificate"" issued by U.P. Pollution Control Board (in short hereinafter referred as Board) to respondent No.10 and 11 to run the brick-kiln in utter disregard to statutory provisions and Rules regulating the conditions provided for the purpose. Respondent No.11, Shri Jai Prakash, who according to the petitioner's counsel, is Vidhan Sabha Prabhari of the Amethi Ruling Party of the State of U.P. entered into an agreement for lease of land bearing Gata No. 529, village Mochawa, Police Station, Amethi, District, Chhatrapati Sahu Ji Maharaj Nagar, U.P. The said agreement was registered on 15th May, 2010 in the office of Sub-Registrar, Amethi. Admittedly, land belongs to Shri Vijay Kumar Singh, Shri Bhola Singh and Shri Samarjeet Singh, S/o Sri Tej Bahadur Singh, who have given it on lease rent for the period of 20 years to Sri Jai Prakash subject to payment of Rs.15,000/- as annual rent. However, a case has been set-up in para-6 of the counter affidavit that since opposite party No. 11 could not run the brick-kiln, he let out on rent for the period of ten years on yearly rent of Rs.15,000/- to the respondent No. 10. After obtaining the land from the respondent No.10, respondent No.11 started to construct the brick-kiln, which seems to opposed by the petitioners on the ground that brick-kiln is situated within the prohibited distance provided by the Rules of Zila Parishad, which is being followed by Board. Though in appeal, the license as well as "no objection certificate" was set-aside by the appellate authority, but later on fresh "no objection certificate" was granted by the Board and brick-kiln was energized sometimes after March, 2011. Respondent no. 10 and 11, purported to restart the brick kiln on the basis of ""no objection certificate"" issued by the Board. Accordingly, a prayer has been made for quashing of ""no objection certificate"" granted by the Board.
2. While assailing the opening of brick-kiln by respondents Nos. 10 and 11, the petitioner stated that brick-kiln is situated within the distance of 200 meter from the abadi of village Mochwa. The school, grove land or orchard are also situated within the prohibited distance.
3. Against the grant of first ""no objection certificate"" to run the brick-kiln, the petitioner had filed a writ petition No. 6653 (M/B) of 2010, in which, by order dated 10.08.2010, this Court had directed the statutory appellate authority to decide the controversy treating the memo of the writ petition as an appeal. The petitioner, along with copy of memo of writ petition and order dated 10.08.2010 of this Court passed in the aforesaid writ petition, had filed an appeal No. 17 of 2010, under Section 31 (2) of the Air (Pollution & Control) Act, 1981. However, the Appellate Authority had not decided the appeal within the stipulated period of two months as provided by this Court and the respondent Nos. 10 and 11 completed the construction of brick-kiln over Gata No. 521.
4. Subject to aforesaid backdrop, the petitioner had filed another writ petition No. 170 (M/B) of 2011 in this Court. In the said writ petition, this Court, by order dated 07.1.2011, directed the District Magistrate as well as Superintendent of Police of the District to restrain the respondent Nos. 10 and 11 from starting the brick-kiln. The order dated 7.1.2011 passed by this Court directing the authorities not to permit to function the brick-kiln, has been filed as Annexure No. 9 to the writ petition. The operative portion of the order dated 07.1.2011 is reproduced as under:-
"In the meantime, in case Abadi land is situated less than the distance of 200 metres, then the district authorities i.e., District Magistrate and the Superintendent of Police concerned, shall ensure that brick kiln of private respondent does not function at the place in question."
5. While passing the aforesaid interim order, this Court also directed the Board as to why Rules have not been framed and how the Board has granted ""no objection certificate"" in spite of the fact that brick-kiln is situated at the distance of 137 meter from abadi land in violation of Rules as well as the order passed by this Court in one other case, bearing FAFO No. 208 of 2010, decided on 7.3.2010. After receipt of interim order dated 7.1.2011, spot inspection was done by four Lekhpal and one Revenue Inspector in pursuance to the order passed by the District Authorities. A detailed report was submitted by the revenue authorities on 22.1.2011 to the Sub-Divisional Magistrate, Tehsil Amethi of the district. Copy of the report has been filed as Annexure 10 to the writ petition along with sketch map. The report in its totality is reproduced as under :-
" egksn;] d`i;k ekuuh; mPpU;k;ky; y[kum [k.M ihB y[kum nk;j fjV ;kfpdk la[;k 170(MB) 2011 /kqzojkt flag cuke mRrj izns'k vU; esa ikfjr vkns'k fnukad 07@01@2011 ds vuqikyu gsrq vkids vkns'k fnukad 21@01@2011 ds dze esa iqu% LFky ij {kss=h; ys[kiky o vU; ys[kikyksa ds lkFk igqWpdkj layXu utjh uD'kk esa iznf'kZr fookfnr HkV~Bk xkVk la[;k 529 dh fpeuh dks dsUnz fcUnq ekudj iqu% lhekadu djk;k x;k A HkV~Vk fpeuh ls cUnksoLr vkcknh xkVk la[;k 502 dh nwjh utjh uD'kk esa iznf'kZr AS203 ehVj eq[; vkcknh dk ifjpeh nf{k.kh fljk ij fLFkr gS rFkk iwohZ nf{k.kh dksuk utjh uD'kk esa iznf'kZr AD=170 ehVj ij fLFkr gSA bZV HkV~Bs ls izkbejh ikB'kkyk ekspok dh nwjh utjh uD'kk esa iznf'kZr AM=213 ehVj ij fLFkr gSA fo|ky; Hkh layXu utjh uD'kk esa iznf'kZr AM lhekdau ls 200 ehVj ls vf/kd dh f=T;k esa ik;k x;k gS A orZeku le; esa ;kph /kqzojkt flag vkbZ0Vh0vkbZ jk;cjsyh esa dk;Zjr gksuk crk;k x;k A budk edku rFkk buds HkkbZ dk uo fufeZr edku vkcknh xkVk la[;k 543 esa fLFkr gS A ftlls fookfnr bZV HkV~Bs dh fpeuh lhekadu djus ij layXu utjh uD'kk esa iznf'kZr AB=137 o BC=26 ehVj ij ik;k x;k A mYys[kuh; fookfnr bZV HkV~Bs ds vxy cxy layXu utjh uD'kk esa iznf'kZr uki dh xbZ ftlds vuqlkj A ls B=137 ehVj Bls C=26 ehVj AM=213 ehVj BD=76 ehVj C ls D 46 ehVj D ls S=132 ehVj S ls A 203 ehVj B ls S=208 ehVj A ls D=170 ehVj ik;h x;h A IykV la[;k 543 esa ;kph dk edku 137 ehVj ij nwjh ij fLFkr gS ;g edku iqjkuk izrhr ugha gksrk gS Avk[;k voyksdukFkZ ,oa vko';d dk;Zokgh gsrq izsf"krA"
6. From perusal of the aforesaid report, there appears to be no reason to disbelieve the petitioner's contention that brick-kiln is situated at the distance of 170 meter towards South-East and the distance of primary pathshala is 213 meters. The newly constructed house of petitioner and his brother bearing plot no. 543 is situated at the distance of 137 and 26 meters from brick kiln. However, the main abadi land is situated at the distance of 137 meters.
7. It appears that another inspection was done by Tehsildar, Amethi in pursuance to the petitioners' complaint dated 9.6.2010, who submitted a report that mango orchard and the abadi land are situated within the distance of 200 hundred meters from the brick-kiln. A copy of the report submitted by the Tehsildar, Amethi, which was forwarded to Additional District Magistrate/Finance & Revenue, Amethi by Sub Division Magistrate, has been filed as Annexure No. 11 to the writ petition. The report of the Deputy Collector in its totality is reproduced as under:
"d`i;k layXu izkFkZuk i= /kzqojkt flag] fnukad 09-06-2010 ij i`"Bkfdar vkns'k ds vuqikyu esa f'kdk;r dh tkpW dh x;h rFkk izkFkZuk i= ds lkFk layXu vfHkys[k o ek0 mPp U;k;ky; ds layXu vkns'k 12-05-2010 tks izkFkhZ }kjk lk{; ds :i esa layXu fd;k x;k gS A dk Hkh voyksdu fd;k x;k layXu utjh UD'kk esa yky jax fpfUgr xkVk la0 529 tks cStw lqr egkjkt nhu o fot; dqekj flag] Hkksyk flag] lejthr flag lqrx.k rstcgknqj ds uke jktLo vfHkys[kksa esa vfdar gS] esa HkV~Bk fuekZ.k Jh fot; dqekj ;kno eSllZ Mh0,u0Vh0 fczd QhYM xzke lsokiqj iksLV if'pe }kjk ftyk N-lk-ek- uxj ds uke ls fd;k tk jgk gS] LFkfy; tkWp esa ;g ik;k x;k gS fd xkVk la[;k 529 esa Hkh ckx fLFkr gS rFkk vxy cxy ds uEcj 516] 528]536] 527] 523]524]542]541]544]545 vkfn esa isM fLFkr gSa tks ckx dh 'kdy esa fLFkr gS A f'kdk;rdrkZ dh vkcknh HkV~Bs ls 137 ehVj dh nwjh ij gS] RkFkk izkFkhZ dh ckx yxHkx 100 eh0 dh nwjh ij fLFkr gS A xkWo esa fLFkr fon~;ky; xkVk l0 557 esa fLFkr gS ftldh nwjh HkV~Bs ls yxHkx 213 ehVj ij gS A fuekZ.kk/khu HkV~Bk eSllZ Mh0,u0Vh0 fczd QhYM izksijkbVlZ fot; dqekj ;kno iq= jke vo/k ;kno xzke lsokiqj iksLV if'pe }kjk vesBh ls tkWp ds le; muls HkV~Bs dh fpeuh ls iznw"k.k ds fy, fu;a=.k cksMZ dh vuqefr lanHkZ la0 513@,u0vks0lh0&912@5@0&11 fnukad 05-07-2010 izLrqr fd;k x;k gS] ftlesa fcUnq la0 7 ij Hkh HkV~Bs dh LFkkiuk vkcknh lkoZtfud bekjr] vLirky] fon~;ky;] isVzksy iEi bR;kfn ls U;wure 200 eh0 ls vf/kd nwjh ij fd;k tk;s] dk mYys[k fd;k x;k gS muds }kjk izLrqr ftyk iapk;r vuqefr la0 418 fnukad viBuh; izLrqr fd;k x;k gS ftlesa ;g mYys[k gS fd 300 eh0 dh f=T;k ,dy ;k la;qDr :i ls dksbZ vke dh ckr n`f"Vxr ugha gqvk tcfd layXu utjh uD'kk ,oa vk[;k ls Li"V gS fd fuekZ.kk/khu HkV~Bs ds f=T;k esa ckx vkSj vkcknh fLFkfr gS rFkk izkFkhZ dk edku Hkh mDr ifjf/k esa fLFkj gS A vr% layXu tkap vk[;k o layXu i{kksa }kjk izLrqr Nk;k izfr lk{;ksa lfgr vk[;k vko';d fu.kZ; gsrq izf"krA layXud&dqy 26 odZ gLrk{kj viBuh;
7@8@10 rglhynku vesBh vij ftykf/kdkjh foRr ,oa jktLo egksn; dh lsok esa rglhynkj dh vk[;k vko';d dk;Zokgh gsrq lknj izsf"krA g0&viBuh;
miftykf/kdkjh vesBh N=ifr lkgwth egkjkt uxj"
8. It is relevant to take note of the other material fact that Sub-Divisional Magistrate himself had made an inspection and submitted a report dated 20.12.2010 after receipt of complaint to Additional District Magistrate and drawn attention to the information given to the petitioner under Right to Information Act as well as relevant guidelines required for issuance of ""no objection certificate"". The relevant portion of the report of Sub-Divisional Magistrate dated 20.12.2010 is reproduced as under:
"vkosnd }kjk tu lwpuk vf/kdkj vf/kfu;e&2005 ds rgr {ks=k vf/kdkjh }kjk izsf"kr tu lwpuk dh izfr izLrqr fd;k x;k gS ftlesa fuEu lwpuk iznku dh x;h gS%& 01& orZeku esa ,u0vks0lh0 tkjh djus dk vk/kkj ftyk iapk;r xkbM ykbu gS A 02& ,u0vk0lh0 tkjh djrs le; LFky fujh{kd fd;k x;k gS A 03& HkV~Bk ls iwjc&if'pe 1-5 fdeh0 ,ao mRrj&nf{k.k 300 ehVj esa ckx ugha gksuh pkfg,A 04& HkV~Bk ls 300 ehVj dh f=T;k ls vkcknh ugha gksuh pkfg,A 05& HkV~Bk ls 200 ehVj dh f=T;k esa fon~;ky; ugha gksuk pkfg, a mijksdr fu;esak ds vkyksd esa LFky fujh{k.k fd;k x;k ftlls Li"V gS fd%& ø1À iz'uxr bZV HkV~Bk esa vkcknh 137 ehVj dh nwjh ij gS A tcfd fu;e gS fd bZV HkVBs vkcknh ls 200 ehVj ds vUnj u cuk;k tk;s A ø2À iz'uxr bZV] HkV~Bk ds vke dk ckx iwjc&if'pe] mRrj&nf{k.k esa 100 ehVj dh nwjh ij fLFkr gS A tcfd fu;e gS fd vke ds ckxku ls bZV] HkV~Bk dh nwjh iwoZ if'pe fn'kk esa 1-5 fdeh0 rFkk mRrj&nf{k.k fn'kk esa 300 ehVj ls de ugha gksuk pkfg, A mijksDr ls Li"V gS fd iz'uxr bZV] HkV~Bk dh ykblsUl ftyk iapk;r foHkkx ls tkjh fd;k tkrk gS A vk[;k vko';d dk;Zokgh gsrq lknj lsok esa izsf"kr gS A layXud% mijksDrkuqlkj A g0 viBuh;
vt; dqekj miftykf/kdkjh vesBh tuin lh0,l0,e0uxjA
9. It appears that interim order dated 7.1.2011 passed by this Court in the aforesaid writ petition no. 170 (M/B) of 2011 was not complied with; hence, the petitioner had filed the contempt petition. However, in the meantime, Appeal No. 17 of 2010 (supra) was allowed by the Appellate Authority by an order dated 17.2.2011 and ""no objection certificate"" granted to the respondents Nos. 10 and 11 to run the brick-kiln was found to be illegal, hence rejected. A copy of the order of the statutory appellate authority dated 17.2.2011 has been filed as Annexure No. 2 to the writ petition. The Appellate Authority has considered the report of the Lekhpal, Tehsildar and Sub Divisional Magistrate (supra) and formed opinion that the brick-kiln is situated within the prohibited area. The operative portion of the order dated 17.2.2011 passed by the appellate authority is reproduced as under:
" vkns'k mi;qZDr laoh{k.k ds vk/kkj ij Jh /kzqo jkt flag }kjk izLrqr vihy la0 17@2010 Lohdkj djrs gq,] foi{kh la0 2 {ks=h; vf/kdkjh] {ks=h; dk;kZy; m0iz0 iznw"k.k fu;a=.k cksMZ jk;cjsyh }kjk] foi{kh la0 3 es0 Mh0,u0Vh0 fczd QhYM xzke&ekspok rglhy vesBh ftyk N=ifr lkgw th egkjkt uxj ds i{k esa i;kZoj.kh; n`f"Vdks.k ls fuxZfer vukifRr izek.k i= fn0 05-07-2010 dks fujLr fd;k tkrk gS A fnukad% 17 Qjojh] 2011 g0 viBuh;
¼ Mk0 ,l0 ,l0 flag½ vihyh; izkf/kdkjhA "
10. It appears that on account of appellate order, the writ petition No. 170 (M/B) of 2011 was dismissed as infructuous by this Court on 04.03.2011 (Annexure No.13). Feeling aggrieved with the appellate order (supra), the respondent No.11 filed a writ petition No. 1248 (M/S) of 2011, in which, no interim order was granted by this Court (Annexure Nos. 15 & 16). Being no interim order passed by this Court and for some unforeseen reasons, respondent No.11 had filed an application for withdrawal of writ petition No. 1248 (M/S) of 2011, which was preferred against the appellate order (supra). A copy of the withdrawal application has been filed as Annexure No. 17 to the writ petition.
11. It appears that the orders passed by this Court as well as appellate orders were not complied with and respondent Nos. 10 and 11 continued to run the brick-kiln. The Board, while communicating decision with regards to "no objection certificate" vide its letter dated 03.12.2010, had informed the petitioner that ""no objection certificate"" has been issued in pursuance to Zila Parishad Rules, which is adopted and applicable in the business. Letter dated 03.12.2010, which is annexed as Annexure No. 21, is reproduced as under:-
"lslsok esa] Jh /kzqojkt flag iq= Jh vo/k ujs'k flag fu0 xzke&ekspok] ij0 o rg0&vesBh] ftyk&N=ifr 'kkgwth egkjkt uxj A fo"k;% lwpuk dk vf/kdkj vf/kfu;e&2005 ds lac/ka esa A egksn;] mi;qZDr fo"k;d vki }kjk izsf"kr i= tks bl dk;kZy; esa fnukad 09&11&2010 dks izkIr gqvk gS A mDr ds ek/;e ls okafNr lwpuk fcUnqlkj fuEuor gS& 1& orZeku esa ,u0vks0lh0 tkjh djus dk vk/kkj ftyk iapk;r dh xkbM ykbu gSA 2& ,u0vks0lh0 tkjh djrs le; LFky fujh{k.k fd;k x;k gS A 3& HkVBk ls iwjc&if'pe esa 1-5 fdeh0 ,oa mRrj&nf{k.k esa 300 eh0 esa ckx ugha gksuh pkfg,A 4& HkVBk ls 200 eh0 dh f=T;k esa vkcknh ugha gksuk pkfg, A 5& HkVBk ls 200 eh0 dh f=T;k esa fo|ky; ugha gksuk pkfg, A vki }kjk vius i= esa es0 Mh0,u0Vh0 fczd QhYM] izks0 Jh fot; dqekj ;kno fuoklh lsokiqj dks bl dk;kZy; }kjk fuxZr vukifRr izek.k i= la0 513@,u0vks0lh0&912@,l@10&11] fnukWd 05&07&2010 dk mYys[k fd;k x;k gS] bl laca/k esa Hkh voxr djkuk gS fd mDr bZV HkVBs dk fuxZr vukifRr izek.k i=] ftyk iapk;r] lqYrkuiqj }kjk fuxZr izek.k i= ftlesa mDr bZV HkVBk LFky ftyk iapk;r dh xkbM ykbu ds vuq:i gksus dh iqf"V ds mijkUr fuxZr gS A Hkonh;
¼dqynhi feJ½ {ks=h; vf/kdkjh 03&12&2010 "
12. Learned counsel for the petitioner while inviting attention towards Rule framed under Section 143 of the Uttar Pradesh Kshetra Samiti and Zila Parishad Adhiniyam, 1961, which is admittedly applicable with regard to present controversy. The relevant portion of the Rule filed as Annexure-22 of the writ petition is reproduced as under:-
" la'kksf/kr mifof/k;kW& 1- dksbZ Hkh O;fDr] dEiuh] ikVZujf'ki QeZ ;k vU; laaLFkk] jktdh; foHkkx jkt ljdkj ds }kjk fn, x, Bsds ds Bsdsnkj ;k LFkkuh; laLFkk,a vkfn tuin jk;cjsyh ds xzkeh.k {ks=ksa esa bZV HkV~Bk] Vk;yl] [kiM+k] pwuk o lq[khZ vkfn fcuk ftyk ifj"kn jk;cjsyh ls ykblasl izkIr fd, u cuk;s xk u Qwdsxk vkSj u cuok;sxk vkSj u Qqdok;sxk A 2-bu mifof/k;ksa ds vUrZxr fn;k tkus okyk vuqKk i= fuEufyf[kr 'krksZa ij fn;k tk;sxkA ¼v½ vkcknh] lkoZtfud bekjr] vLirky] fo}ky; ,slh bZekjrs vFkok LFkku tks Toyar'khy inkFkZ ,d= djus ds iz;ksx esa yk;s tkrs gSa ls bZV] HkV~Bk] VkbZYl] vFkok [kiMk] pwuk o lq[khZ 200 ehVj dh nwjh ds vanu u cuk;k ;k Qwdk tk;sxk u gh cuok;k ;k Qqdok;k tk;sxkA ¼c½ lkoZtfud] jk"Vz~h; rFkk jktekxZ ds e/; ls 50 ehVj] vU; ekxksaZ ds e/; ls 25 ehVj ds Hkhrj fdlh HkV~Bs dk fuekZ.k ugha fd;k tk;sxk vkSj bZV] VkbYl] [kiMk] pwuk ;k lq[khZ vkfn Qwdk tk;sxk vkSj u viBuh; [kiMk] vkfn ,df=r fd;k tk;sxk vkSj mlds cukus o fuekZ.k djus ;k Qwdus dk iz;Ru fd;k tk;sxk A ¼l&1½ vke ds ckx ls iwoZ&if'pe fn'kk esa bZVksa ds HkV~Bksa dh nwjh 1-5 fdyksehVj ls de ugha gksuh pkfg, A mRrj&nf{k.k esa ;g nwjh 300 ehVj ls de ugha gksuh pkfg, A ¼l&2½ mijksDr fu/kkZfjr nwjh dsoy viBuh; ns'kh o dyeh ckxksa ij ykxw gksxha] ftldk {ks=Qy vdsys vFkok dbZ ckxksa dk la;qDr :i ls k tk;sxk tks ,d nwljs ls feysa gksa A eq[; vf/kdkjh vFkok muds }kjk vf/kd`r ftyk ifj"kn ds dk;kZf/kdkjh ykblsaflx vf/kdkjh gksxsa A 3- bu mifof/k;ksa ds vUrxZr ykxlsal dh vof/k izR;sd o"kZ 1 vDVwcj ls 30 flrEcj rd gksxh A"
13. Learned counsel for the petitioner submits that in spite of the fact that appeal was allowed and various reports indicate that brick kiln is running within the prohibited area and "no objection certificate" dated 5.7.2010 has been rejected in view of appellate order, respondents no. 10 and 11 proceeded to continue with their brick kiln. During the pendency of the writ petition this court also appointed Advocate Commissioner to make spot inspection. The Advocate Commissioner had submitted his report dated 10.4.2011. Relevant portion from the report of Advocate Commissioner is reproduced as under:-
"The distance of the grove of the petitioner from the Brick Kiln-
Gata no 546 and 652, are recorded in the name of Sri Avadh Naresh Singh, Father of the petitioner no. 3 and Grand Father of the petitioner no. 2, situated at North East direction from the Brick Kiln-
A. Gata no. 546 (Area 0.310 hec.)- (marked as "P" in the Map) Distance from Brick kiln-178 meters Containing 35 Amla Trees.
B. Gata no. 652 (Area 0.300 hec.)-(marked as 'Q' in the Map) Distance from Brick Kiln-197 meters Containing 25 Mango Trees, 36 Amla Tree.
Apart from the Petitioners grove, at South East direction from the Brick Kiln in various Gata nos several trees of different variety are present in the shape of Grove, the nearest gata nos are-
C. Gata no 699 and 698 (Area 0.107 and 0.420 hec. respectively)-(marked as "o" in the Map), distance from Brick Kiln-117 meres containing 21 Mango, 9 Mahua, 3 Jamun, 2 Neem and 1 Pipal Tree.
D. Gata no. 685 (Area 0.200 hec.)-(marked as "P" in the Map), Distance from Brick Kiln-100 meters Containing 12 Mango, 4 Mahua, and 1 Neem Tree.
At the East end of the Gata Nos 685, 698, 699 there are about 125 trees of different variety (Mango, Mahua, and Jamun etc.) are present in various gatas collectively.
2.the distance of the petitioner's house from the Brick Kiln-
A. The house of the petitioner no 3 (Marked as "B' in the map)-Distance from Brick Kiln-138.2 meters.
B. The house of Rajwant Singh (Brother of the petitioner no 3 and Father of the petitioner no 2)(Marked as 'C' in the map)-Distance from Brick Kiln 167 meters.
C. The house of the petitioner no 1 is situated in village abadi situated at North from the points "D,G and H" as shown in the map.
3. Assessed life of the Petitioner's House along with the description of the nature of the house.
A. House of the Petitioner no 3 (marked as "B" in the map)-Old, Plastered inside and outside, doors and windows are installed and family of the petitioner no 3 is resides there. (photograph encloses as Enclosure no. 2) B. House of Rajwant Singh (Brother of the petitioner no 3 and Father of the petitioner no 2) (Marked as 'C' in the map)-New under construction House, Plastered inside and outside, doors and windows are not installed and no one resides there. (photograph enclosed as Enclosure no 3)
4. The distance of the Abadi from the Brick Kiln from all the required angle-
A. The House of the petitioner no 3 is situated at slightly North-East direction from the Brick Kiln (Marked as 'B' in map)-138.2 meters B. The House of Sri Sukhlal S/o Jethu is situated at North direction from the Brick kiln (Marked as "D" in map)-171.5 meters C.The House of the Smt Rajpati W/o Late Inderpal is situated at North-West direction from the Brick kiln (Marked as "H" in map)-226.4 meters D. The House of Sri Ramcharan S/O Sri Ramasrey is situated at mid point of North (D) and North-West point (H) from the Brick Kiln (Marked as 'G' in map-181.2 meters Village abadi is present at North direction from the point "D,G and H".
E. At West direction from the brick kiln a building, containing 4 rooms in a row without door/shutter, chairs tables and a blackboard is present in one room, with a Board of "Veena Vadini Shishu gyan mandir" is present (Marked as "K" in map)-185 meters (Photograph enclosed as Enclosure no 4) There is one Kaccha House and a tube well room is present at North from the building (K) and a P.C.O. is present at South from the building.
At 34.3 meters West from the above noted building Singly house of Sri Triveni Dhuria is also present (Marked as "L" in map) distance from Brick Kiln-185+34.3=219.3 Meters.
F. The House of Sri Sripal situated at South-West direction from the Brick Kiln (Marked as "M" in map)(situated at Maheshpur a Hamlet of Village Mochwa) distance from Brick Klin-229 meters Besides the above some other points have also been observed on the spot--
I.A primary School is situated at north direction from the brick klin (Marked as "E" in map), Distance from Brick Kiln-217 Meters.
II.A Demolished Kaccha structure is present in front of the house of the petitioner no 3. (photograph enclosed as Enclosure no 5) III.House of Sri Sangram Singh is situated at East direction from the house of the petitoner no 3 (Marked as "F" in map). (Photograph has also been enclosed as Enclosure no. 5) IV.The distance between the house of petitioner no. 3 (B) and Rajwant Singh (C) is 28.20 meters.
V.The distance between the house of Rajwant Singh (C) and Sukhlal (D) is 59.7.meters.
VI.In an arch from West to South, from the Brick Kiln there are about 150 trees of different variety (Mango, Jamun etc.) are present on adjacent gatas of the brick kiln.
VII.There is a tree line behind the house of the petitioner no 3 containing 6 Mango tree, 1 Pipal tree, 2 Bamboo Tree, and eucalyptus trees (Marked as 'J' in map), Distance from Brick Kiln-108.6 Meters.
In view of the above the inspection report is submitted, for kind perusal, before the Hon'ble High Court."
14. From the plain reading of Advocate Commissioner's report it appears that the brick kiln is situated within the prohibited area as notified under Zila Parishad Adhiniyam(supra), which has been adopted by the "Board". One unusual feature which has been brought on record is that in spite of dismissal of appeal another "no objection certificate" was issued and in pursuance thereof respondent no. 11 is running the brick kiln. This fact pleaded in writ petition has not been denied while filing counter affidavit. Instead of complying with the order passed by this court, Board had issued "no objection certificate" again to respondent no. 11 to run the brick kiln. Such action on the part of "Board" is disturbing and antithesis to rule of law.
15. Attention has been invited towards one earlier judgment of this court passed in FAFO No. 208 of 2010. While considering the appeal it was found that Board had not framed rules in pursuance to relevant act. Ultimately in pursuance to judgement and order dated 17.3.2012 which has been upheld by Hon'ble Supreme Court of India and SLP has been dismissed, respondent took decision to frame rules. In pursuance to aforesaid judgement of this Court of which one of us was Member (Justice Devi Prasad Singh) rules have been framed and notified on 27.6.2012. Rule has been given effect from the date of publication i.e. 27.6.2012 and being prospective effect it seems to not applicable to adjudicate the present controversy. However, for convenience Rule 2 of the Rule containing conditions to run brick kiln is reproduced as under:-
"2. Subject to provisions of the Uttar Pradesh Promotion and Protection of Fruit Trees (Regulation of Harmful Establishment and Housing Schemes) Act, 1985, a brick kiln shall not be established which does not fulfill the following conditions:-
(i)a brick kiln shall not be established with in a distance of 5.0 kilometers from the area of a Muncipal Council or Municipal Corporation. subject to the above restrictions a brick kiln shall be established at least 500 meters away from residential area having population of more than 150 persons or more than 20 houses whether kachha or pucca;
(ii)a brick kilns not be established at a place within the distance of 1.0 kilometer from registered hospital, school, public building, religious places or a place from where flammable substances are stored; a brick kiln shall not be established within a radius of 5.0 kilometers in notified sensitive area of a zoo, wild life sanctuaries historic monuments, museum and the like:
Provided that in case of Taj Trapezium Zone Area (T.T.Z.) the directions/guidelines given by the Supreme Court from time to time, shall apply;
(iii)a brick kiln shall not be established within a distance of 200 meters from the sides of the railway tracks;
(iv)a brick kiln shall not be established within a distance of 300 meters from both sides of the National and State Highways;
(v)a brick kiln shall not be established within a distance of 100 meters from both sides of a main district road/public works department roads;
(vi)a brick kiln shall not be established within 800 meters froma brick kiln already established;
(vii)a brick kiln should not be allowed to install in the 'Buffer Zone' of a notified fruit belt area as defined in 'The Uttar Pradesh Promotion and Protection of Fruit Trees (Regulation of Harmful Establishments and Housing Schemes) Act, 1985' and the restriction made by the competent authority concerned or decision of court on case to case basis, if any.
Distance from sides of mango orchard/Mixed fruits (Mango and other) Orchard (having at least 100 fruiting trees) joint nursery from brick kiln shall not be less than 800 meters in each direction. The mentioned distances are applicable irrespective of the variety/type of fruit area individually or collectively should not be less than 2.5 acre."
16. In spite of the aforesaid notified rule since controversy relate back to period prior to it, we have to look into it in pursuance to rules framed by the Zila Parishad referred in the preceding paras being adopted by the Board.
17. To sum up, from the bye-laws regulating the establishment of brick kiln etc. during the period in question, no brick kiln could have been established within 200 meter of abadi, public building, hospital, school. Further no brick kiln could have been established from east and west side of mango grove within the distance of 1.5 Kilometer and on north-south side within the distance of 300 meters.
18. The report of different revenue authorities including the Advocate Commissioner appointed by this Court seems to reveal that not only the petitioner's house is situated within 200 meter but house of other villagers existing in the abadi like Shri Sukhlal, Smt. Rajpati and Sri Ramcharan (supra) are situated within the distance of 200 meter. Similarly, the distance of brick kiln from mango groove is also within the radius of 300 meter (supra).
19. Thus, from the material on record, there appears to be no room of doubt that the brick kiln established by respondent no. 10 and 11 is situated within the prohibited distance and in violation of rules.
20. Learned counsel for the respondents tried to make out a case with submission that distance should be measured from the mid of village.
Argument advanced by learned counsel for the private respondents seems to be misconceived. The prohibition with regard to establishment of brick kiln beyond the distance provided by the rule is to save citizen from pollution and variety of disease. Hence, distance must be measured from the outer skirt of the abadi land to secure the interest of each and every village/citizen.
21. Learned counsel for the petitioner has invited attention to number of problems from which the citizen may suffer because of emission from brick kiln. The emission from brick kiln is in the form of Sulphur Dioxide, Carbon monoxide, Oxides of nitrogen and Ash and ethylene etc. The effect of these pollutant as pointed out by the petitioner's counsel are as under:-
Sl. No. Pollutants of Brick Kiln Fatal Diseases cause to human beings
11. Sulphur Dioxide (SO2) Breathing rate increase while breathing itself becomes less deep and a general feeling of air starvation is experienced-some even show signs of Bronchial spasms and asthmatic are badly affected. Any So2 which oxidizes to SO3 may dissolve in the body fluids to form H2S04, a very strong and corrosive acid.
2. Carbon monoxide (CO) CO combines with the haemoglobin in the blood to form cargboxy haemoglobin and when about half of the hemoglobin of the blood is used up, death ensues as the carboxy hamemoglobin is useless for respiratory purposes. Person poisoned by carbon monoxide exhibit a characterisitc bright pink colour of the fresh due to the presence of carboxy haemoglobin in the blood.
3. Oxides of nitrogen (NO2) & Ash Prolonged exposure of human beings to even low concentration of oxides of nitrogen, can cause a chronic irritation of the respiratory tract, headech, loss of appetite and corrosion of teeth, Nitric Oxides reacts with air to form brown nitrogen dioxide which is very poisonous.
4. Ethylene Eye irritation as a result of photochemical reaction with nitrogen oxides and ozone
22. Learned counsel for the petitioner argued that consumption of coal in the brick kiln emerges (38 times per cent 5 by weight) 0.4536 Kg. Sulphur Dioxide (SO2) per burning of 1000 Kg.
23. Now it is well settled proposition of law that right to life, right to quality of life, right of fresh air, right of unpolluted water are all basic rights protected by Article 21 of the Constitution of India vide (2003) 6 SCC 1 Kapila Hingorani versus State of Bihar, AIR 1991 SC 1902 Bangalore Medical Trust versus M.S. Muddappa and others, 2001 Vol. 6 SCC 496 Hinch Lal Tiwari versus Kamala Devi, AIR 2007 SC 1046 Milkman Colony Vikas Samiti versus State of Rajasthan and others and 2006 Vol. 13 SCC 382 Nagar Nigam versus Al Faheem Meat Export (P) Limited.
24. Since, fundamental right to inhale fresh air is available to each and every villager, distance should be measured from the edge of abadi land or from the outskirt of abadi where houses are situated. It may be relevant to point out that fundamental right protected by Article 21 of the Constitution of India is available to citizens collectively as well as individually. Construction of brick kiln at later stage within prohibited area of individual house shall also not be permissible. Of course, in case, some construction is raised after the establishment of brick kiln in that event it is for the Board to take a decision keeping in view the facts and circumstances of each case and ground realities to secure the interest of citizen.
25. In (1996) 5 SCC 647, Vellore Citizens' Welfare Forum Vs. Union of India and others, Hon'ble Supreme Court had reiterated the judicially evolve principle "polluter pay" as well as "sustainable development". With regard to sustainable development their Lordship (three Member Bench) of Supreme Court in Vellore's case (supra) observed as under:-
11. Some of the salient principles of "Sustainable Development", as culled-out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Nature Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the vies that "The Precautionary Principle" and "The Polluter Pays" principle are essential features of "Sustainable Development". The "Precautionary Principle" - in the context of the municipal law - means:
(i) Environment measures - by the State Government and the statutory Authorities must anticipate, prevent' and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage lack of scientific certainly should not be used as the reason for postponing, measures to prevent environmental depredation.
(iii)The "Onus of proof" is on the actor or the developer/industrial to show that his action is environmentally benign."
26. While considering the principle of "polluter pay", their Lordship has considered Articles 47, 48A and 51A(g) of the Constitution of India and made following observations:-
"12. "The Polluter Pays" principle has been held to be a sound principle by this Court Indian Council for Enviro-Legal Action vs. Union of India J.T. 1996 (2) 196. The Court observed, "We are of the opinion that any principle evolved in this 'behalf should be simple practical and suited to the conditions obtaining in this country". The Court ruled that "Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on".
Consequently the polluting industries are "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". The "Polluter Pays" principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
13. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48A and 51A(g) of the Constitution are as under:
"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, The State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48A. (g) Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.51A.(g) To protect and improve the natural environment including forests, takes, rivers and wild life, and to have compassion for living creatures."
Apart from the constitutional mandate to protect and improve the environment there are plenty of post independence legislations on the subject but more relevant enactments for our purpose are: The Water (Prevention and Control of Pollution Act 1974 (the Water Act), The Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment Protection Act 1986 (the Environment Act). The Water Act provides for the constitution of the Central Pollution Control Board by the Central Government and the constitution of one State Pollution Control boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use or streams and wells for disposal of polluting matters. Also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board.
Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the later Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve the quality of the air and to prevent. control and abate air pollution in the country. We shall deal with the Environment Act in the later part of this judgement.
14. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.
27. The principle of "polluter pay" has been reiterated by Hon'ble Supreme Court in a case reported in 2005 (10) SCC 510, Research Foundation for Science Technology and National Resources Policy Vs. Union of India and another. Their Lordship held that community participation for protection of environment and human health is a right which flows from Article 21 of the Constitution of India.
28. In 2008 (2) SCC 222, T.N.Godavarman Thirumulpad (104) Vs. Union of India and others while considering the question with regard to sustainable development and to check the damages to the environment and ecology, Hon'ble Supreme Court observed as under:-
"As a matter of preface, we may state that adherence to the principles of sustainable development is now a constitutional requirement. How much damage to the environment and ecology has got to be decided on the facts of each case. While applying the principle of sustainable development one must bear in mind that development which meets the needs of the present without compromising the ability of the future generations to meet their own needs is sustainable development. Therefore, courts are required to balance development needs witht he protection of the environment and ecology. It is the duty of the State under our Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity (See A.P. Pollution Control Board Vs. Prof. M.V. Nayudu)"
29. In 2009 (6) SCC 142, M.C.Mehta Vs. Union of India and others again their Lordship has shown deep concern towards the deteriorating environmental condition of the country.
30. Learned counsel for the private respondent nos. 9 and 10 tried to defend the action of Board as well as their own action to run brick kiln and stated that according to their expert the running of brick kiln at the place in question does not pollute the atmosphere.
Argument advanced by learned counsel for the respondent does not seem to help them for the reason that establishment of brick kiln within the prohibited distance could not have been done. Violation of statutory provision does not permit the Board either to grant licence to run brick kiln or permit the private respondent to run brick kiln under the garb of expert's report that no pollution caused in the vicinity from the emission of brick kiln. Question is of the compliance of statutory mandate (supra).
31. In the present case, in spite of different opinion submitted by different revenue authorities and Advocate Commissioner at different time and cancellation of "no objection certificate" by the appellate forum (supra) followed by the interim order passed by this Court (supra) again Board had granted licence to run brick kiln. Such action on the part of Board seems to be not only suffer from vice of arbitrariness but also seems to be based on extraneous reasons and considerations. An inference may be drawn that authorities of the Board acted for unforeseen reasons to help the private respondent no. 10 and 11 to establish brick kiln more so when the appellate authority had cancelled "no objection certificate" by detailed reasoned judgement (supra).
32. The collusive act of the Board and respondent nos. 10 and 11 also seems to borne out from material on record. When this court had not granted interim order in the writ petition filed against the appellate order, later on it was withdrawn and things were settled between respondent nos. 10, 11 and the Board with the outcome of fresh "no objection certificate" Such action on the part of Board and respondent no. 10 and 11 not only amounts to violation of well considered appellate order but also blatant abuse of power by the authorities of the Board.
33. The methodology adopted by the "Board" in collusion with respondent nos. 10 and 11 is disturbing and deprecated. Government must look into such instances and appropriate provision be made to check the abuse of power by the U.P. Pollution Control Board and its authorities. Board play very important role to protect the environment and maintain ecological balance. Hence, it shall be appropriate that the functioning of the Board must be screened by the Vigilance Department and other surveillance agencies.
34. The material on record not only makes out a case for exemplary costs in view of law settled by Hon'ble Supreme Court in the case reported in Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353 ,A. Shanmugam v. Ariya Kshetriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and others, (2012) 6 SCC 430 ,Centre For Public Interest Litigation and others v. Union of India and others, (2012) 3 SCC 1 .
35. In view of above, writ petition deserves to be allowed.
(1) Writ petition is allowed with costs. A writ in the nature of certiorari is issued, quashing the "no objection certificate" granted by respondent no. 2 and 3 in favour of respondent 10 and 11 to run the brick kiln in question with consequential benefits.
A writ in the nature of mandamus is issued directing the respondent no.1 to 9 to stop the brick kiln expeditiously, say within a period of one week. Learned Chief Standing counsel shall communicate the order immediately.
(II) Costs of Rs. 5,00000/- (Five lacs) is imposed on respondent no. 2 and 3 and respondent no. 10 and 11 out of which an amount of Rs. 3,00000/- (three lacs) shall be deposited by respondent no. 10 and 11 and Rs. 2,00000/- (two lacs) by respondent no. 2 and 3. The petitioner shall be entitled to withdraw an amount of Rs. 3,00000/-(three lacs) and rest of Rs.2,00000/- (two lacs) shall be remitted to Mediation and Conciliation Center High Court, Lucknow Bench, Lucknow. In case, cost is not deposited within two months then it shall be recovered as arrears of land revenue from the respondent no. 2,3,10 and 11. Registry to take follow up action.
36. Cost paid by the 'Board' shall be recovered from its employees who are responsible in issuing second "no objection certificate" to respondent no. 10 and 11 (supra). Registry to take follow up action.
(Justice Vishnu Chandra Gupta) (Justice Devi Prasad Singh)
Order Date :- 20.12.2013
Madhu