Page No.# 1/14

GAHC010065262020




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

                         Case No. : I.A.(Civil) 970/2020

         1:ROHITESWAR SAHU AND ANR
         S/O- SRI MOHAN SAHU, R/O- GARBHAGA GAON, P.O- NAHAT, DIST-
         SIVASAGAR, ASSSAM, PIN- 785662

         2: MANASH BORGOHAIN
          S/O- LATE PUTU BORGIHAIN
          R/O- VILL- DEHAJAN HABIGAON
          (SANTIPUR) DEMOW
          P.O AND P.S- DEMOW
          DIST- SIVASAGAR
         ASSAM
          PIN- 78566

         VERSUS

         1:THE STATE OF ASSAM AND 24 ORS
         REP. BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT OF ASSAM,
         ENVIRONMENT AND FOREST DEPTT, DISPUR, GUWAHATI- 06

         2:DEPUTY COMMISSIONER
          DIBRUGARH
          DIST- DIBRUGARH
         ASSAM
          PIN- 786003


         3:THE CIRCLE OFFICER
          MORAN REVENUE CIRCLE
          MORAN
          DIST- DIBRUGARH
         ASSAM
          PIN- 785670
                                                          Page No.# 2/14

4:THE POLLUTION CONTROL BOARD
ASSAM
 BAMUNIMAIDAM
 GUWAHATI- 781021


5:CHAIRMAN
THE POLLUTION CONTROL BOARD
ASSAM
 BAMUNIMAIDAM
 GUWAHATI- 781021


6:REGIONAL EXECUTIVE ENGINEER (I/C)
 REGIONAL OFFICE
 PCB
ASSAM
 BAIRAGIMATH
 P.O AND DIST- DIBRUGARH
 PIN- 786001


7:M/S TRISHUL ENTERPRISES
 SHANTIPUR
 DEMOW
 DISTRICT- SIVASAGAR
ASSAM
 PIN- 785662 REP. BY ITS PARTNER SRI ROHITESWAR SAHU AND SRI
MANASH BORGOHAIN


8:PREMA RAIDENGIA
W/O. LATE HITESWAR RAIDENGIA
 R/O. VILL NO.2 KACHARMARI GAON
 P.O. CHAKALA
 P.S. MORAN
 MOUZA - SEPON
 DIST. DIBRUGARH
ASSAM.


9:SURAJ BANIYA
 S/O- LATE SHYAM LAL BANIA
 R/O- VILL- NO.2 KACHAMARI GAON
 P.O- CHAKALIA
 P.S- MORAN
 MOUZA- SEPON
 DIST- DIBRUGARH
                                   Page No.# 3/14

ASSAM


10:MONUJ DEHINGIA
 S/O- LATE SADANANDA DEHINGIA
 R/O- VILL- NO.2 KACHAMARI GAON
 P.O- CHAKALIA
 P.S- MORAN
 MOUZA- SEPON
 DIST- DIBRUGARH
ASSAM


11:MINU KURMI
W/O- SRI GULESWAR KURMI
 R/O- VILL- NO.2 KACHAMARI GAON
 P.O- CHAKALIA
 P.S- MORAN
 MOUZA- SEPON
 DIST- DIBRUGARH
ASSAM


12:BINA KURMI
W/O- SRI PRADIP KURMI
 R/O- VILL- NO.2 KACHAMARI GAON
 P.O- CHAKALIA
 P.S- MORAN
 MOUZA- SEPON
 DIST- DIBRUGARH
ASSAM


13:PINKU MOHAN
 S/O- SRI SUNESWAR MOHAN
 R/O- VILL- NO.2 KACHAMARI GAON
 P.O- CHAKALIA
 P.S- MORAN
 MOUZA- SEPON
 DIST- DIBRUGARH
ASSAM


14:PABITRA BORUAH
 S/O- SRI PRAHLAD BORUAH
 R/O- VILL- NO.2 KACHAMARI GAON
 P.O- CHAKALIA
 P.S- MORAN
                                   Page No.# 4/14

MOUZA- SEPON
DIST- DIBRUGARH
ASSAM


15:ATUL KURMI
 S/O - LATE DEBANANDA KURMI
 R/O- VILL- NO.2 KACHAMARI GAON
 P.O- CHAKALIA
 P.S- MORAN
 MOUZA- SEPON
 DIST- DIBRUGARH
ASSAM


16:MEGHNATH KURMI
 S/O- LATE PURAN KURMI
 R/O- VILL- NO.2 KACHAMARI GAON
 P.O- CHAKALIA
 P.S- MORAN
 MOUZA- SEPON
 DIST- DIBRUGARH
ASSAM


17:DINESH KURMI
 S/O- DEBEN KURMI
 R/O- VILL- NO.2 KACHAMARI GAON
 P.O- CHAKALIA
 P.S- MORAN
 MOUZA- SEPON
 DIST- DIBRUGARH
ASSAM


18:SRIKUSHAL GARH
 S/O- LATE SUDHU GARH
 R/O- VILL- DEHAJAN DANI GAON
 P.O- DEHAJAN
 P.S- DEMOW
 MOUZA- THOWRA
 DIST- SIVASAGAR
ASSAM


19:KAMESWAR TASSA
 S/O- LATE SRIPRASHAD TASSA
 R/O- VILL- DEHAJAN DANI GAON
                                 Page No.# 5/14

P.O- DEHAJAN
P.S- DEMOW
MOUZA- THOWRA
DIST- SIVASAGAR
ASSAM


20:RATAN LAL TASSA
 S/O- SRI KALESWAR TASSA
 R/O- VILL- DEHAJAN DANI GAON
 P.O- DEHAJAN
 P.S- DEMOW
 MOUZA- THOWRA
 DIST- SIVASAGAR
ASSAM


21:JADU DAS
 S/O- LATE HIMAKANTA DAS
 R/O- VILL- DEHAJAN DANI GAON
 P.O- DEHAJAN
 P.S- DEMOW
 MOUZA- THOWRA
 DIST- SIVASAGAR
ASSAM


22:LUHIT GOGOI
 S/O- LATE LOLIT GOGOI
 R/O- VILL- DEHAJAN DANI GAON
 P.O- DEHAJAN
 P.S- DEMOW
 MOUZA- THOWRA
 DIST- SIVASAGAR
ASSAM


23:MONIKANTA GOGOI
 S/O- LATE PHINIDHAR GOGOI
 R/O- VILL- DEHAJAN DANI GAON
 P.O- DEHAJAN
 P.S- DEMOW
 MOUZA- THOWRA
 DIST- SIVASAGAR
ASSAM


24:NAYAN BHAGOWATI
                                               Page No.# 6/14

             S/O- SRI NILA BHAGOWATI
             R/O- VILL- DEHAJAN DANI GAON
             P.O- DEHAJAN
             P.S- DEMOW
             MOUZA- THOWRA
             DIST- SIVASAGAR
             ASSAM


            25:SUBHASH KURMI
             S/O- LATE KIYALU KURMI
             R/O- VILL- DEHAJAN DANI GAON
             P.O- DEHAJAN
             P.S- DEMOW
             MOUZA- THOWRA
             DIST- SIVASAGAR
            ASSA

Advocate for the Petitioner   : MR R SENSUA

Advocate for the Respondent : MR. P P DUTTA




             Linked Case : WP(C) 209/2020

            1:PREMA RAIDENGIA AND 17 ORS
            W/O- LATE HITESWAR RAIDENGIA
             R/O- VILL- NO.2 KACHAMARI GAON
             P.O- CHAKALIA
             P.S- MORAN
             MOUZA- SEPON
             DIST- DIBRUGARH
            ASSAM

            2: SURAJ BANIYA
             S/O- LATE SHYAM LAL BANIA
             R/O- VILL- NO.2 KACHAMARI GAON
             P.O- CHAKALIA
             P.S- MORAN
             MOUZA- SEPON
             DIST- DIBRUGARH
            ASSAM

             3: MONUJ DEHINGIA
                                  Page No.# 7/14

S/O- LATE SADANANDA DEHINGIA
R/O- VILL- NO.2 KACHAMARI GAON
P.O- CHAKALIA
P.S- MORAN
MOUZA- SEPON
DIST- DIBRUGARH
ASSAM

4: MINU KURMI
W/O- SRI GULESWAR KURMI
R/O- VILL- NO.2 KACHAMARI GAON
P.O- CHAKALIA
P.S- MORAN
MOUZA- SEPON
DIST- DIBRUGARH
ASSAM

5: BINA KURMI
W/O- SRI PRADIP KURMI
R/O- VILL- NO.2 KACHAMARI GAON
P.O- CHAKALIA
P.S- MORAN
MOUZA- SEPON
DIST- DIBRUGARH
ASSAM

6: PINKU MOHAN
S/O- SRI SUNESWAR MOHAN
R/O- VILL- NO.2 KACHAMARI GAON
P.O- CHAKALIA
P.S- MORAN
MOUZA- SEPON
DIST- DIBRUGARH
ASSAM

7: PABITRA BORUAH
S/O- SRI PRAHLAD BORUAH
R/O- VILL- NO.2 KACHAMARI GAON
P.O- CHAKALIA
P.S- MORAN
MOUZA- SEPON
DIST- DIBRUGARH
ASSAM

8: ATUL KURMI
S/O - LATE DEBANANDA KURMI
R/O- VILL- NO.2 KACHAMARI GAON
P.O- CHAKALIA
                                  Page No.# 8/14

P.S- MORAN
MOUZA- SEPON
DIST- DIBRUGARH
ASSAM

9: MEGHNATH KURMI
S/O- LATE PURAN KURMI
R/O- VILL- NO.2 KACHAMARI GAON
P.O- CHAKALIA
P.S- MORAN
MOUZA- SEPON
DIST- DIBRUGARH
ASSAM

10: DINESH KURMI
S/O- DEBEN KURMI
R/O- VILL- NO.2 KACHAMARI GAON
P.O- CHAKALIA
P.S- MORAN
MOUZA- SEPON
DIST- DIBRUGARH
ASSAM

11: SRIKUSHAL GARH
S/O- LATE SUDHU GARH
R/O- VILL- DEHAJAN DANI GAON
P.O- DEHAJAN
P.S- DEMOW
MOUZA- THOWRA
DIST- SIVASAGAR
ASSAM

12: KAMESWAR TASSA
S/O- LATE SRIPRASHAD TASSA
R/O- VILL- DEHAJAN DANI GAON
P.O- DEHAJAN
P.S- DEMOW
MOUZA- THOWRA
DIST- SIVASAGAR
ASSAM

13: RATAN LAL TASSA
S/O- SRI KALESWAR TASSA
R/O- VILL- DEHAJAN DANI GAON
P.O- DEHAJAN
P.S- DEMOW
MOUZA- THOWRA
DIST- SIVASAGAR
                                Page No.# 9/14

ASSAM

14: JADU DAS
S/O- LATE HIMAKANTA DAS
R/O- VILL- DEHAJAN DANI GAON
P.O- DEHAJAN
P.S- DEMOW
MOUZA- THOWRA
DIST- SIVASAGAR
ASSAM

15: LUHIT GOGOI
S/O- LATE LOLIT GOGOI
R/O- VILL- DEHAJAN DANI GAON
P.O- DEHAJAN
P.S- DEMOW
MOUZA- THOWRA
DIST- SIVASAGAR
ASSAM

16: MONIKANTA GOGOI
S/O- LATE PHINIDHAR GOGOI
R/O- VILL- DEHAJAN DANI GAON
P.O- DEHAJAN
P.S- DEMOW
MOUZA- THOWRA
DIST- SIVASAGAR
ASSAM

17: NAYAN BHAGOWATI
S/O- SRI NILA BHAGOWATI
R/O- VILL- DEHAJAN DANI GAON
P.O- DEHAJAN
P.S- DEMOW
MOUZA- THOWRA
DIST- SIVASAGAR
ASSAM

18: SUBHASH KURMI
S/O- LATE KIYALU KURMI
R/O- VILL- DEHAJAN DANI GAON
P.O- DEHAJAN
P.S- DEMOW
MOUZA- THOWRA
DIST- SIVASAGAR
ASSAM
VERSUS
                                                        Page No.# 10/14

1:THE STATE OF ASSAM AND 8 ORS
REP. BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT OF ASSAM
ENVIRONMENT AND FOREST DEPTT
DISPUR
GUWAHATI- 06

2:DEPUTY COMMISSIONER
DIBRUGARH
DIST- DIBRUGARH
ASSAM
PIN- 786003

3:THE CIRCLE OFFICER
MORAN REVENUE CIRCLE
MORAN
DIST- DIBRUGARH
ASSAM
PIN- 785670

4:THE POLLUTION CONTROL BOARD
ASSAM
BAMUNIMAIDAM
GUWAHATI- 781021

5:CHAIRMAN
THE POLLUTION CONTROL BOARD
ASSAM
BAMUNIMAIDAM
GUWAHATI- 781021

6:REGIONAL EXECUTIVE ENGINEER (I/C)
REGIONAL OFFICE
PCB
ASSAM
BAIRAGIMATH
P.O AND DIST- DIBRUGARH
PIN- 786001

7:M/S TRISHUL ENTERPRISES
SHANTIPUR
DEMOW
DISTRICT- SIVASAGAR
ASSAM
PIN- 785662 REP. BY ITS PARTNER SRI ROHITESWAR SAHU AND SRI
MANASH BORGOHAIN

8:ROHITESWAR SAHU
S/O- SRI MOHAN SAHU
                                                                                        Page No.# 11/14

              R/O- GARBHAGA GAON
              P.O- NAHAT
              DIST- SIVASAGAR
              ASSSAM
              PIN- 785662

              9:MANASH BORGOHAIN
              S/O- LATE PUTU BORGIHAIN
              R/O- VILL- DEHAJAN HABIGAON
              (SANTIPUR) DEMOW
              P.O AND P.S- DEMOW
              DIST- SIVASAGAR
              ASSAM
              PIN- 785662

              Advocate for the Petitioner : MR. P P DUTTA
              Advocate for the Respondent : GA
              ASSAM



                                  BEFORE
             HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                               ORDER

Date : 04-05-2020 Heard Mr. R Sensua, learned counsel for the applicants. Also heard Mr. PP Dutta, learned counsel for the writ petitioners and Mr. S Baruah, learned counsel for the Pollution Control Board, Assam (for short, the PCB, Assam).

2. The applicants/respondents No.8 and 9 is operating a hot mix plant with capacity of 2000 tonnes per month at No.2 Kachamari Gaon, Mouza: Sepon, under Moran Revenue Circle in the Dibrugarh district. The writ petition being WP(C)No.209/2020 is instituted by Mrs. Prema Raidengia and 17 other persons being residents of Village No.2 Kachamari Gaon seeking a direction to the authorities under the PCB, Assam to take immediate action against the pollution caused by the hot mix plant of the respondents No.8 and 9 which is located at No.2 Kachamari Gaon.

3. In paragraph 12 of the writ petition, the following grounds have been taken as to why there is a requirement for interference with the functioning of the hot mix plant of the respondents No.8 and 9:

Page No.# 12/14 "(i). The said hot mix plant is running without obtaining the necessary 'Consent to Establish' or 'Consent to Operate' from the Pollution Control Board, Assam i.e. Respondent No.4 and hence violative of Section 21 of the Air (Prevention and Control of Pollution) Act, 1981.

(ii). That the hot mix plant is established in a residential area causing pollution to the public. The local public is severely affected due to the pollution emanating from the hot mix plant.

(iii). That the land over which the industrial plant i.e. hot mix plant is being operated is an agricultural land wherein no industry can be set up.

(iv). That no permission either from local Panchayat or district Authority is obtained in running the hot mix plant."

4. A reading of paragraph 12 apparently shows that an interference with the hot mix plant is sought for on the ground that necessary consent to establish and consent to operate from the PCB, Assam is not available in respect of the hot mix plant; the hot mix plant is established in a residential area causing pollution to the public; the land over which the hot mix plant is operated is an agricultural land; and no permission either from local Panchayat or District Authorities is obtained for running the hot mix plant. Inspite of the four different grounds being taken to assail the operation of the hot mix plant, this Court by the order dated 28.02.2020 had restrained the applicants/respondents No.8 and 9 from operating the hot mix plant by taking into consideration, the first ground raised by the writ petitioners that no consent to establish and consent to operate have been obtained by the respondents No.8 and 9. In the circumstances, this interlocutory application is preferred by the respondents No.8 and 9 by bringing on record a copy of the consent to establish dated 30.11.2019 and a copy of the consent to operate dated 11.12.2019 to show that the first ground taken by the writ petitioners that the hot mix plant is being operated without the consent to establish and consent to operate is unsustainable.

5. From that point of view, we are convinced by the stand taken by the respondents No.8 and 9 as regards the existence of consent to establish and consent to operate and, therefore, the prima facie case based upon which the interim order was passed is non-existent. However, Mr. PP Dutta, learned counsel for the writ petitioners also urges upon that the consent to operate dated 11.12.2019 is only up to 31.03.2020. A perusal of the consent to operate of 11.12.2019 shows that the said consent to operate was only up to 31.03.2020 with a request to the applicant/respondents No.8 and 9 to apply Page No.# 13/14 for further consent to operate for the year 2020-2021. Accordingly, Mr. PP Dutta, learned counsel for the writ petitioners submits that even if the interim order is vacated, the petitioner would be left without consent to operate as on date.

6. We have given our consideration to the contention raised by the applicants/respondents No.8 and 9 as regards the existence of consent to operate and also with regard to the contention of the writ petitioners that the consent to operate is no longer in force as on date and there would be requirement of the respondents No.8 and 9 to apply for a further consent to operate. In the circumstances, we vacate the interim order dated 28.02.2020 in WP(C)No.209/2020 by withdrawing the restrain order in respect of operating the hot mix plant of the respondents No.8 and 9. But, however, a recall of the restrain order would not on its own entitle the respondents No.8 and 9 to begin the operation as on today inasmuch as, the earlier consent to operate was only up to 31.03.2020 requiring the said respondent to make a further application for the year 2020-2021. Accordingly, it is provided that the respondents No.8 and 9 shall make their necessary application before the PCB, Assam for grant of a further consent to operate for the year 2020-2021. In doing so, the PCB shall also take note of any application/representation being made by the writ petitioners as regards their other grounds that the hot mix plant cannot be allowed to operate in the present location, inasmuch as, it is in a residential area; it is located in an agricultural land; and no permission was obtained from the local Panchayat and District Authority. Accordingly, the respondent PCB, Assam while considering the application of the respondents No.8 and 9 for grant of a further consent to operate shall also give due consideration to the objections that may be raised by the writ petitioners in their application and thereafter pass a reasoned order thereon.

7. As the respondents No.8 and 9 are unable to operate their hot mix plant, interest of justice would further require that the decision as required by the PCB, Assam be made within a period of 30 days from the date of the application made by the respondents No.8 and 9 for grant of consent to operate. Correspondingly the writ petitioners may also submit representation before the PCB, Assam opposing the grant of such consent to operate in respect of the respondents No.8 and 9 and in the event, any such representation is filed, the same be also given its due consideration along with the application of the respondents No.8 and 9.

Page No.# 14/14

8. However, at this stage Mr. S Baruah, learned counsel for the PCB, Assam makes a statement that because of the prevailing COVID 19 situation there is a blanket order extending the consent to operate in respect of all the categories of industries up to 30.06.2020. If it is so, for opposing the operation of the hot mix plant up to 30.06.2020, the writ petitioners shall make an application raising an objection against the hot mix plant of the respondents No.8 and 9 and in the event, any such representation is made, the PCB, Assam shall give a hearing to the representative of the writ petitioners as well as to the respondents No.8 and 9 and pass a reasoned order thereon as regards the contention that the hot mix plant of the respondents No.8 and 9 is causing pollution in the locality. Irrespective of any application already made, the writ petitioners to make a fresh application and the PCB, Assam shall pass a reasoned order on such application within a period of 15 days therefrom.

9. Accordingly, it is an agreement between the parties that the above requirements of this order can also be construed to be a final adjudication in the writ petition. In view of such agreement, we are inclined to close the writ petition in the above terms, but, however, for an appropriate decision on the issues involved, both a representative of the writ petitioners as well as the respondents No.8 and 9 be given a hearing by the appropriate authority of the PCB, Assam before any reasoned order is passed.

10. Interlocutory application stands disposed of in the above terms.

JUDGE Comparing Assistant