IN THE HIGH COURT OF JUDICATURE AT PATNA
                                Civil Writ Jurisdiction Case No.8665 of 2016
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                 M/s Shivam Int Udyog
                                                                        .... .... Petitioner/s
                                                   Versus
                 The State of Bihar & Ors
                                                                      .... .... Respondent/s
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                 Appearance :
                 For the Petitioner/s                : Mr. Kameshwar Prasad Gupta
                 For the Respondent/s                : Mr. Ashok Kr.Choudhary, AAG-13
                 For the B.S.P.C.B. and authorities : Mr. Shivendra Kishore, Sr. Adv. with
                                                       Ms. Binita Singh
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                 CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
                 ORAL ORDER

2 22-06-2016 Heard Mr. Kameshwar Prasad Gupta, learned counsel appearing for the petitioner, Mr. Ashok Kr. Choudhary, learned A.A.G.13 for the State and Mr. Shivendra Kishore, learned senior counsel for the Bihar State Pollution Control Board and its authorities assisted by Ms. Binita Singh.

Let a copy of this writ petition be also served on Mr. Rajendra Prasad who normally appears for the Mining Department, by tomorrow.

The petitioner is aggrieved by the order dated 12.1.2016 passed by the Chairman, Bihar State Pollution Control Board (hereinafter referred to as 'the Board') whereby the petitioner has been directed to stop the operation of its brick kiln situated in the district of Madhubani inter alia on grounds that it was operational without obtaining the 'consent to operate' from the 'Board' as well as without seeking 'Environmental Clearance' Patna High Court CWJC No.8665 of 2016 (2) dt.22-06-2016 2 from the State Environmental Impact Assessment Authority.

Mr. Gupta, learned counsel for the petitioner has submitted that the 'Environmental Clearance' has since been granted by the authority concerned, to the petitioner as well as several other brick kilns as is manifest from the document dated 11.4.2015 placed at Annexure-8 and the 'consent to establish' has been granted by the 'Board' vide order passed on 17.12.2015 placed at Annexure-9 subject to obtaining 'consent to operate' under section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'the Act') within 6 months. He further with reference to Annexure-6 series submits that an application seeking 'consent to operate' under section 21 of 'the Act' has been submitted by the petitioner on 13.3.2016 in compliance of the directions given in the order granting 'consent to establish' present at Annexure-9 but which has remained pending with the respondent-Board. He admits to the position that the brick kiln is awaiting the permission of 'consent to operate'.

Mr. Shivendra Kishore, learned senior counsel representing the 'Board' in response to the argument advanced by Mr. Gupta, learned counsel for the petitioner has submitted that even if the 'Environmental Clearance' has been given to the petitioner accompanied with the 'consent to establish', but until Patna High Court CWJC No.8665 of 2016 (2) dt.22-06-2016 3 such time that the permission granting 'consent to operate' is granted to petitioner under section 21 of 'the Act', the brick kiln cannot be operated. He submits that the petitioner has operated the brick kiln without an order granting 'consent to operate', which is illegal warranting the order present at Annexure-2 which is followed by the order of the District Magistrate, present at Annexure-1 dated 15.3.2016. He, however, admits that the Chairman of the 'Board' has since resigned and there has not been any fresh appointment to the said post which has delayed the disposal of the application filed by the petitioner for obtaining the 'consent to operate'.

Annexure-2 which is the order of the 'Board' puts a restraint on the operation of the brick kiln of the petitioner inter alia on three grounds set out above of which two grounds are misplaced since the petitioner has 'Environment Clearance' as well as the 'consent to establish' and has also filed a proper application for obtaining 'consent to operate' which remains pending with the respondent-Board. The laches are not on the part of the petitioner rather it is attributable to the absence of the authority concerned i.e. the Chairman of the 'Board' who is requires to dispose of such application. However since the legal prescriptions provided for operating the brick kiln are not satisfied, the restraint order issued by the 'Board' followed by Patna High Court CWJC No.8665 of 2016 (2) dt.22-06-2016 4 the order of District Magistrate, Madhubani present at Annexures 1 and 2 would call for no interference at the present stage.

Nonetheless, the application of the petitioner for obtaining 'consent to operate' requires a disposal by the 'Board' but in absence of the Chairman of the 'Board' it remains in a limbo. The answer to the issue requires to be provided by the State and this Court would require Mr. Choudhary, learned AAG-13 representing the State to inform this Court as to within the shortest possible time in which a Chairman would be provided to the 'Board'.

On suggestion of Mr. Choudhary, learned Additional Advocate General let the Chief Secretary and the Principal Secretary concerned be added as respondent nos. 12 and 13 respectively during course of the day.

Put up this matter under the heading 'For Orders' on 27.6.2016.

(Jyoti Saran, J) deepika/-

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