JUDGMENT Sunil Ambwani, J.

1. Heard Sri D. R. S. Chauhan for petitioner and Dr. H. N. Tripathi for respondent Nos. 2 and 3.

2. Petitioner has challenged the order dated 28.12.2001 passed by the Principal Secretary, U.P. Pollution Control Board and the another dated 11.12.2001 passed by the Appellate Authority by which he has been directed to change the site of brickkiln at an appropriate place, after following the requirements of Air (Prevention and Control of Pollution) Act, 1981.

3. One Sri Kamlesh Kumar Singh made complaints against petitioners for causing pollution to the neighbouring village by their brickkiln. In Writ Petition No. 4189 of 2001, a Division Bench of this Court by its order dated 5.2.2001 directed the U.P. Pollution Control Board to dispose of his representation in accordance with law, preferably within six weeks from the date of communication. An inspection was made and that after giving notice to petitioner industry and hearing them on 19.3.2001, it was found that petitioner is running a brick-kiln by a fixed chimney. Village abadi is situate towards north within 100 metres and that the brick-kiln has been established without informing and taking no objection certificate from the U.P. Pollution Control Board which is an offence under Section 37/39 of the Act. It was also found that the Regional Office, Varanasi, had rejected an application for issuing no objection certificate on 24.2.2001. Petitioners were as such, directed to immediately close the brick-kiln and that the competent authority was required to stop the supply of water, coal, etc. A direction was also issued to the petitioner to change the site after applying for a no objection certificate in accordance with law.

4. Petitioner preferred an appeal before the Appellate Authority under Section 31 of the Act. The appeal was considered on its merits. The Appellate Authority considered the fact that petitioner's licence has been renewed by the Zila Parishad for the year 2000-01 and that petitioner had made considerable investment and that since it will take sometime before the industry can be relocated, the appellant was required to give an affidavit of undertaking that he will relocate the industry before 30.6.2002. The petitioner submitted the required affidavit of undertaking on 10.12.2001 upon which an order was passed by the appellate authority on 11.12.2001, staying the operation of the order dated 18.4.2001 upto 30.6.2002 with a direction that petitioner will relocate the industry before 30.6.2002 after complying with the provisions of the Act. It was made clear that the order will become operative with effect from 30.6.2002.

5. Petitioner did not challenge the appellate order. He however, made a fresh application for inspection. It appears that the officers of the Board carried out an inspection on 25.6.2002 and made a favourable recommendation in favour of the petitioner. The regional officer, however, required the petitioner to file a copy of the order of the appellate authority by which the petitioners were allowed to run the brick-kiln only upto 30.6.2002 and after it was supplied, an order has been passed on 2.9.2002 refusing to grant no objection certificate on the ground that the matter has already been decided by the Appellate Authority.

6. Counsel for the petitioner submits that on fresh inspection, his brick-kiln has been found by the inspecting party to be a non-polluting unit. He has relied upon a Division Bench judgment of this Court dated 31.3.2003 in Writ Petition No. 12288 of 2003, Krishna Int Udyog v. Collector/District Magistrate, Sant Ravi Das Nagar (Bhadohi) and Ors., by which this Court has directed respondent No. 4, i.e., Union of India, through Secretary, Environment and Forests. New Delhi, to take final decision on the representation of the Federation of All India Brick and Tile Manufacturers for extending time for change over from moving chimney to fixed chimney till 30.6.2003. Petitioner further submits that the affidavit of undertaking was given subject to the condition that the air pollution is being caused and public is being inconvenienced. Since in a later inspection, it was found that the chimney is not causing any pollution, there is no justification to direct relocation.

7. Dr. H. N. Tripathi, on the other hand, submits that under orders of this Court in Writ Petition No. 1726 of 1998 and other connected writ petitions dated 4.9.1998. Rais Ahmad v. State of U.P. and Ors., all the brick kilns are required to obtain a no objection certificates. This Court in Krishna Int Udyog v. Collector/District Magistrate and Ors., had granted only two months' time to the brick-kilns having moving chimneys or till the representation is decided for changing over to fixed chimneys. This order has, however, no application to the present case inasmuch as the petitioner's brickkiln was found to be established within 100 metres from the abadi towards north and was found causing pollution. This order was passed noting down the fact found in the inspection that the brick-kiln has a fixed chimney. Considering all the aspects and looking into the investment made by the petitioner, the Appellate Authority permitted the petitioner to continue the brick-kiln only upto 30.6.2002. Having obtained the order in appeal and having reaped benefit out of the same, the petitioner cannot be allowed to challenge the orders after a period of one year. He has failed to carry out the undertaking and has not pleaded any changed circumstances for reconsideration of the matter.

8. I inquired from the counsel for the petitioner repeatedly whether he has carried out any structural changes in the brick-kiln. Sri D. R. S. Chauhan was fair enough to state that no changes have been carried out, but the brick-kiln was never causing any pollution and that fresh inspection report dated 25.6.2002 has confirmed this fact.

9. The order of the Appellate Authority has become final. The petitioner gave an undertaking and took benefit under the same by operating the brick-kiln upto 30.6.2002. The fresh inspection has only given the width of the pit and the height of the fixed chimney which has been found to meet the standards laid by C.B.R.I. It has further been found that no settling chamber has to be constructed and that the gaseous discharge is in accordance with the standards of the Pollution Board. The inspection, however, has not taken into account that the brick-kiln is in close proximity of the village and that its gaseous emission will cause pollution and inconvenience to the villagers. There has been no change in construction, chimney or other factors on which the previous orders were passed. It is true that petitioner's affidavit was conditional. However, it was accepted by the Appellate Authority and that the order of relocation was passed giving more than six months period to the petitioner. Having accepted the said order, the petitioner cannot be allowed to challenge the same, on the same facts.

 10.   The      writ      petition      is, accordingly, dismissed.