HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Court No. - 4
 
Case :- MISC. BENCH No. - 17643 of 2019
 
Petitioner :- Riyaz Ahmad Khan (M/S R.A.K. Bricks)
 
Respondent :- State Of U.P. Thru Prin.Secy. Horticulture & Food And Ors.
 
Counsel for Petitioner :- Rahul Roshan Dubey
 
Counsel for Respondent :- C.S.C.,A.K. Verma
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Alok Mathur,J.

Rejoinder affidavit filed by the learned counsel for the petitioner, is taken on record.

Heard learned counsel for the petitioner and learned counsel representing the U.P. Pollution Control Board.

By means of this petition, a prayer has been made by the petitioner to direct the opposite parties to make an inquiry/spot inspection to be carried out by a Committee to be constituted by the headquarters of U.P. Pollution Control Board. Further prayer has been made seeking a direction from the Court to decide the application dated 31.05.2019 said to have been submitted by the petitioner, which is addressed to the Member Secretary of U.P. Pollution Control Board, Lucknow and has been annexed as Annexure No.9 to the writ petition.

The petitioner is running a brick kiln. In terms of the provision contained in Section 21 of Air (Prevention and Control of Pollution) Act, 1981, no person is entitled to operate or establish any industrial plant in an air pollution control area without previous consent of the State Pollution Control Board.

The petitioner is said to have moved an application seeking consent of Pollution Board, which was rejected on 19.08.2016. Challenging the said order dated 19.08.2016, the petitioner filed a Writ Petition bearing Writ Petition No.2219 (MB) of 2015, which was dismissed by a Division Bench of this Court, vide order dated 10.07.2018 as having been rendered infructuous for the reason that the appeal preferred by the petitioner to the State Government against the order dated 19.08.2016 was decided on 30.01.2017. The State Government had decided the said appeal in exercise of its appellate authority vested in it under Section 31 of the aforesaid Act. By the said order dated 30.01.2017, the State Government-appellate authority remanded the matter for taking decision afresh on the application submitted by the petitioner under Section 21 of the Act. On remand, the matter was again considered and accordingly, Regional Officer of the Pollution Control Board, vide his order dated 02.11.2017 again rejected the application of the petitioner moved by him under Section 21 of the Act.

It appears that instead of filing the appeal for availing the statutory remedy available to the petitioner under Section 31 of the Act against the order dated 02.11.2017, the petitioner moved some representation to the Chief Environment Officer, who vide his order dated 04.12.2017 directed the Regional Officer to reconsider the application of the petitioner.

In our earlier order, we had required the learned counsel representing the U.P. Pollution Control Board to seek instructions as to whether the Regional Officer while passing the order dated 02.11.2017 had exercised some delegated powers of the Board and in case Regional Officer had exercised such delegated powers on behalf of the Board as to how the Chief Environment Officer would have any jurisdiction to pass the order dated 04.12.2017.

In response to the said query, Sri A.K. Verma, representing the U.P. Pollution Control Board has clearly submitted that Section 15 of the Act permits the Board to delegate to the Chairman or the Member Secretary or any other officer of the Board such of its powers and functions under the Act as it may deem necessary. He has further drawn attention of the Court to the Office Memorandum dated 26.09.1991 issued by the Chairman of the Board in pursuance of certain decision taken by the Board itself whereby the authority for considering the application for grant of ''no objection' as contemplated under Section 21 of the Act was delegated to the Regional Officer of the Board in respect of 179 industries which include brick kilns.

In view of above, there is specific delegation of powers by the Board in the Regional Officer of the Board for exercising the authority under Section 15 of the Act which is otherwise vested in the Board. In this view of the matter, the order dated 02.11.2017 will be an order passed by the Board under Section 21 of the Act, though it has actually been passed by the Regional Officer under the delegated powers in terms of the provisions contained in Section 15 of the Act. Thus, we have no hesitation to hold that the order dated 02.11.2017 is well within the jurisdiction of the Regional Officer and that the order in fact would be an order or decision passed or taken by the Board itself.

Against such an order under Section 21 of the Act, the person aggrieved has been given a statutory remedy of filing an appeal before the State Government under Section 31 of the Act. The petitioner, however, instead of invoking the provision of Section 31 of the Act, moved some application to the Chief Environment Officer, who vide his order dated 04.12.2017 had directed the Regional Officer to reconsider the matter for grant of ''No Objection' afresh.

In our considered opinion, even if Chief Environment Officer is an officer superior to the Regional Officer in the administrative hierarchy amongst the officers of the Board, he was not vested any lawful authority to have passed the order dated 04.12.2017 for the reason that the order dated 02.11.2017, though was passed by the Regional Officer, however, that will be presumed to be an order passed by the Board in terms of the provision contained in Section 15 of the Act. The only remedy available to the petitioner in this regard was to invoke the appellate jurisdiction of the State Government under Section 31 of the Act, if he was aggrieved by the said order dated 02.11.2017. We, thus, observe and hold that Chief Environment Officer did not have any jurisdiction vested in him by the Act or even otherwise to have entertained any application moved by the petitioner against the order dated 02.11.2017 and hence, the order dated 04.12.2017 passed by him is absolutely without jurisdiction.

We have been informed by the learned counsel appearing for the U.P. Pollution Control Board that the Regional Officer even in pursuance of the order dated 04.12.2017 passed by the Chief Environment Officer, has passed another order on 20.12.2017 stating therein that since he is not vested with any authority of reviewing the earlier order passed on 02.11.2017, as such he is unable to reconsider the order dated 02.11.2019. A copy of the said order dated 20.12.2017 is taken on record. Learned counsel appearing for the U.P. Pollution Control Board shall supply copy of the said order dated 20.12.2017 to the learned counsel for the petitioner as well.

In view of above, remedy available to the petitioner to challenge the order dated 02.11.2017 is to invoke the provision of Section 31 of the Air (Prevention and Control of Pollution) Act, 1981. We are, thus, not inclined to interfere in this petition, which is hereby dismissed.

Before parting with the matter, we may also observe that the order of closure of the brick kiln was passed way back on 19.08.2016 for the reason that requisite consent of the U.P. Pollution Control Board or that of its delegated authority as contemplated under Section 21 of the Act, has not been obtained by the petitioner.

On being asked as to in absence of consent as required under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, as to how the petitioner is running the brick kiln, the learned counsel for the petitioner could not give any satisfactory reply except that he was running the brick kiln on the strength of the order dated 04.12.2017, which, as already observed, was passed by the Chief Environment Officer and is completely without jurisdiction. The Legislative measures by making various enactments including Environment Protection Act and Air (Prevention and Control of Pollution) Act, 1981 have been provided for by the Legislature in its wisdom for achieving certain purposes. The statement of objects and reasons for enacting Air (Prevention and Control of Pollution) Act, 1981 are that the said Act was enacted by the Parliament with a view to cope up with the problems of the Air Pollution being caused by increasing industrialization and the tendency of the majority of industries to congregate in areas which are already heavily industrialized. Thus, with a view to provide clean air to the public, parliament has taken appropriate measures by enacting the aforesaid enactments. Such measures are linked with right to life enshrined under Article 21 of the Constitution of India. Any violation of the statutory mandate entails certain civil and penal consequences.

Since we have already recorded a finding that the petitioner has been running the brick kiln in absence of consent as required under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, we observe that consequences shall follow.

However, petitioner shall be at liberty to take recourse to the appellate remedy available to him under Section 31 of Air (Prevention and Control of Pollution) Act, 1981.

Order Date :- 17.7.2019 Sanjay