Bikash Dey and 5 Ors v. The State of Assam and 8 Ors

PageoNo.#o1/10 GAHC010200552023 ooooooo undefined ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWA/367/2023o BIKASHoDEYoANDo5oORS.o S/OoBIRESHoCH.oDEY,oOCCUPATION-oFARMER,oVILL.-oRAJYESWARPURo PART-1,oP.S.-oLALA,oP.O.-oBORBOND,oDIST.-oHAILAKANDIo(ASSAM),oPIN-o 788151. 2:oSOUMITRAoDEY oS/OoSUKHENDRAoCH.oDEY oVILLAGE-o oOCCUPATION oFARMER o VILL.-oRAJYESWARPURoPART-1 oP.S.-oLALA oP.O.-oBORBOND oDIST.-oHAILAKANDIo(ASSAM) oPIN-o788151. 3:oJAMALoUDDINoLASKAR oS/OoSURMANoALIoLASKAR o VILL.-oRAJYESWARPURoPART-1 oP.S.-oLALA oP.O.-oBORBOND oDIST.-oHAILAKANDIo(ASSAM) oPIN-o788151. 4:oHUSSAINoALIoLASKAR oS/OoLT.oMUSSOBBIRoALI oLASKAR o VILL.-oRAJYESWARPURoPART-1 oP.S.-oLALA oP.O.-oBORBOND oDIST.-oHAILAKANDIo(ASSAM) PageoNo.#o2/10 oPIN-o788151. 5:oDIDARULoISLAMoLASKAR oS/OoATABURoRH.oLASKAR o VILL.-oRAJYESWARPURoPART-1 oP.S.-oLALA oP.O.-oBORBOND oDIST.-oHAILAKANDIo(ASSAM) oPIN-o788151. 6:oSAHIDULoALOMoBORBHUIYA oS/OoSAFIKURoRH.oBORBHUIYA o VILL.-oRAJYESWARPURoPART-1 oP.S.-oLALA oP.O.-oBORBOND oDIST.-oHAILAKANDIo(ASSAM) oPIN-o788151o VERSUSo THEoSTATEoOFoASSAMoANDo8oORS.o REP.oBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVT.oOFoASSAM,o ENVIRONMENToANDoFORESToDEPTT.,oDISPUR,oGUWAHATI-o6. 2:THEoCOMMISSIONER oTOoTHEoGOVT.oOFoASSAM o DEPTT.oOFoAGRICULTURE oDISPUR oGUWAHATI-o6. 3:THEoPOLLUTIONoCONTROLoBOARDoOFoASSAM oREP.oBYoITSoCHAIRMAN oBAMUNIMAIDAM oGUWAHATI-o781021. 4:THEoDEPUTYoCOMMISSIONER oHAILAKANDI oASSAM oPIN-o788151. 5:THEoASSTT.oSETTLEMENToOFFICER oLALAoCIRCLE oHAILAKANDI oPIN-o788151. Page No.# 3/10 6:THE POLLUTION BOARD SILCHAR ASSAM REP. BY ITS CHAIRMAN CACHAR SILCHAR PIN-788002. 7:THE SUPERINTENDENT OF POLICE HAILAKANDI PIN-788151. 8:THE DISTRICT INDUSTRY OFFICER DIC CACHAR SILCHAR PIN-788002. 9:SUBIR MODAK S/O ROMON CH. MODAK OCCUPATION-BUSINESS VILL.- LALA TOWN WARD NO.- 4 P.S.- LALA P.O.- LALA CENTRAL ROAD HAILAKANDI PIN-788163 For the appellants : Ms. B. Devi, Ms. S. Bora, Advocates For the respondents : Ms. D. Dutta, Advocate For respondent Nos.3 & 6 Mr. N. Das, Govt. Advocate, Assam, for respondent Nos.4,5,7 Mr. S.K. Ghosh, Advocate for Respondent No.9

Page No.# 4/10 – B E F O R E – HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON'BLE MR. JUSTICE KAUSHIK GOSWAMI 09-12-2024 (Vijay Bishnoi, C.J.) This writ appeal is preferred on behalf of the appellants being aggrieved with the judgment and order dated 05.08.2023 passed by the learned Single Judge in WP(C) 4917/2022 and WP(C) 2791/2019.

¶2The brief facts of the case are that the appellants approached the Writ Court raising a grievance that the Pollution Control Board (PCB), Assam had illegally issued consent in favour of Subir Modak, who was respondent No.9 and respondent No.7, respectively, to establish and to operate a brick kiln on the private patta land situated in village Rajyeswerpur Part-I, P.S.- Lala, Borbond in the district of Hailakandi, on the ground that the brick kiln was set up on the agricultural land without converting the land to non-agricultural land and also without obtaining the NOC from the villagers. The claim of the appellants was resisted by the State counsel as well as by the counsel for the PCB and the counsel for the private respondent, Subir Modak. The learned Single Judge, after hearing the counsel for the parties, has disposed of those writ petitions by the impugned judgment and order. The relevant extract of the impugned judgment and order is reproduced hereunder: "10. I have considered the submissions made at the Bar and have also carefully gone through the materials available on record.

¶11The first objection raised by the petitioners' counsel is on account of the Page No.# 5/10 fact that the brick klin has been established over agricultural land. There can be no doubt or dispute about the fact that in view of the provisions of section 3 and 4 of the Act of 2015 as well as the Rule 3 of the Assam brick klin Establishment and Regulation Rules, 2013, a brick klin cannot be established over agricultural land. However, the fact remains that in this case, there is a certificate issued by the Assistant Settlement Officer certifying that the land over which the brick klin of the private respondent has been established, can no longer be considered as agricultural land. The exercise of re-notifying the land as non-agricultural land was, however, pending for the reasons mentioned in the said certificate. Therefore, it cannot be said that the brick klin of the petitioner was permitted to be established on a plot of agricultural land. Rather, it appears that the land was no longer treated as agricultural land by the concerned authorities themselves.

¶12Coming to the next objection raised by the petitioners' counsel to the effect that 'NOC' from the villagers were not obtained before issuing the "consent to establish", the said allegation is also found to be incorrect from the materials available on record. As has been mentioned above, I find that there is a 'NoC' obtained from the Secretary of the Gaon Panchayat on 06/08/2018 and the said document has been taken into account by the PCB while issuing the "consent to establish" and/or "consent to operate". Moreover, the assertion of the learned Standing Counsel, PCB that the public hearing was duly conducted in this case, also could not be denied by the petitioners' counsel.

¶13It would further be pertinent to mention herein that by filing affidavit dated 10/09/2019 in WP(C) 2791/2019, the respondent no. 4 i.e. the Additional Deputy Commissioner, Hailakandi has categorically stated that the allegations made by the petitioners are incorrect. The averments made in paragraphs 4 and 5 of the said affidavit would be relevant and, therefore, are being reproduced herein below for ready reference :- "4. That as regards to the statements made in paragraph 3 of the writ petition, the deponent begs to state that it is a fact a plot of land measuring 8 Bigha, 5 Katha, 5 Chatak covered by Dag No. 218 & 517 of 2 nd RS Patta No. 16 & 136 respectively of Mouza Rajyeswsarpur Pt-I, Porgona Hailakandi in respect of Brick klin under the title 'A-one Brick Industry' us under possession of Page No.# 6/10 Sri Subir Modok, S/o. Lt. Raman Chandra Modok which he owned by right of purchase vide Registered Deed.

As regards representation dated 20/09/2018 filed by the petitioner the matter has enquired into through the Circle Officer and Assistant Settlement Officer, Lala and it is revealed from the enquiry that the proprietor has obtained a certificate of "Consent to Establish' from the Pollution Control Board and also obtained Non-Agricultural Certificate & Distance Certificate from the Assistant Settlement Officer, Lala.

¶5That as regards to the statements made in paragraph 4 of the writ petition, the deponent begs to state that it is a fact that Sri Bikash Dey, President of Sri Laxmi Agricultural Service Group stating that the respondent no. 7 i.e. Subir Modok is destroying agricultural land by installing Brick klin industry. But the proprietor of the Brick klin submitted a certificate of 'Consent to Establish" issued by the Pollution Control Board, and Non-Agricultural Certificate and Distance Certificate issued by the Assistant Settlement Officer, Lala, Non Objection Certificate issued by the Secretary, Purbokitterbond Rajyeswarpur G.P. and written consent in support of installation of Brick klin."

¶14The petitioners have not filed any rejoinder affidavit controverting the assertions made in the counter affidavit. As such, the above statements of the respondent no. 4 would have to be taken on their face value by this Court. If that be so, the basic allegation brought against the private respondent clearly stand negated in the face of the record.

¶15I also find from the counter affidavit that on being asked to appear before the office of the respondent no. 4 for clarification, he had failed to appear, as a result of which, the clarification on the queries made by one of the petitioner under the RTI petition, cannot be obtained.

¶16Be that as it may, the fact remains that 'consent to establish" and "consent to operate" a brick klin can be issued by the PCB only after the applicant fulfills the requirement of the provisions of the Air (Prevention and Control of Pollution) Act, 1981 more particularly, section 21 of the said Act. At any stage, if it is found that the brick klin does not fulfill the requirements of the Act as well as the Rules framed thereunder, the "consent to establish" and "consent to operate" can be withdrawn/suspended by the PCB.

¶17Mr. Baruah has also invited the attention of this Court to the notification dated 22/02/2022 issued by the Government of India, in the Ministry of Page No.# 7/10 Environment and Forest and Climate Change, laying down guidelines pertaining to "zig-zag technology" or "vertical shaft" or "use of piped natural gas" as fuel in brick making to submit that the aforesaid guidelines would also have relevance in the matter of renewal of "consent to operate" the brick klin.

¶18Having regard to the facts and circumstances of the case, as noticed herein above, this Court does not find any valid ground to arrive at a conclusion that the "consent to establish" and "consent to operate" of the brick klin issued in favour of the private respondent was illegal or not in accordance with law. Therefore, the challenge made in the writ petitions is hereby declined.

¶19Having held as above, it has been brought to the notice of this Court that the "consent to operate" issued to the private respondent, had expired on 31/03/2023 and since it is lean season, the application for renewal of "consent to operate" would be considered only in the month of October, 2023. If that be so, there cannot be any doubt about the fact that while renewing the "consent to operate", the authorities in PCB would have to verify and record a satisfaction that the brick klin of the private respondent fulfills all requirement of Pollution Standards, as may be prescribed under the law before granting renewal. As such, State PCB can also consider objection, if any, filed by any affected party, who could have a genuine grievance with regard to operation of the brick klin in question.

¶20In view of the observations made above, both these writ petitions are disposed of by providing that the petitioners shall be at liberty to submit objection before the State PCB opposing the renewal of the "consent to operate" in favour of the private respondent, if so advised. If such objection is filed within 10(ten) days from today, along with a certified copy of this order, then upon proper verification of the bona fide of the objections and on verification of their locus to raise such objection, the State PCB may objectively examine the matter before processing the application for renewal of "consent to operate" of the brick klin of the private respondent."

¶3Ms. B. Devi, learned counsel appearing for the appellants has submitted that, as a matter of fact, the land in respect of which, the PCB issued "consent Page No.# 8/10 to establish" and "consent to operate" a brick kiln by the private respondent, has not been converted to non-agricultural land till date. But, despite the same, even after expiry of the "consent to operate" on 31.03.2023, the PCB further issued "consent to establish" and "consent to operate" in favour of the private respondent. It is contended that though the private respondent in his reply to the writ appeal has made a statement to the effect that the land has already been converted to non-agricultural land but, as a matter of fact, as per the information of the appellants, the same has not been converted to non-agricultural land till date. It is contended by the learned counsel for the appellants that in the absence of conversion of the land from agricultural land to non-agricultural land, issuance of the "consent to establish" and "consent to operate" a brick kiln in favour of the private respondent is illegal. Learned counsel for the appellants has, therefore, prayed that the District Commissioner, Hailakandi as well as the PCB, Assam be directed to carry out an enquiry on this aspect after providing opportunity of hearing to the appellants as well as the other respondents and thereafter, to take a decision regarding setting up of the brick kiln by the private respondent on the land in question.

¶4Learned counsel appearing for the State respondents as well as the private respondent have submitted that pursuant to the direction given by the learned Single Judge vide the impugned order, objections and grievances raised by the appellants regarding issuance of "consent to establish" and "consent to operate" the brick kiln in favour of the private respondent were duly considered Page No.# 9/10 and, after providing full opportunity of hearing to the concerned parties, the renewal orders of "consent to establish" and "consent to operate" the brick kiln have been passed.

¶5Learned counsel for the private respondent has also raised an issue that the renewal orders passed after passing of the impugned order by the learned Single Judge have not been challenged by the appellants and on that ground also the order passed by the learned Single Judge is not liable to be interfered with.

¶6Having heard the learned counsel appearing for the parties and after taking into consideration the fact that since in the writ petitions challenge was made only to the orders dated 12.10.2018 and 03.01.2023, whereby the PCB, Assam had issued "consent to establish" and "consent to operate" in favour of the private respondent for establishing a brick kiln and since the subsequent renewal of "consent to establish" and "consent to operate" the brick kiln in favour of the private respondent have not been challenged, we are of the view that the subsequent orders passed by the PCB, Assam renewing the "consent to establish" and "consent to operate" the brick kiln in favour of the private respondent cannot be interfered with in this writ appeal. If the appellants are aggrieved by the renewal order of "consent to establish" and "consent to operate" a brick kiln in favour of the private respondent, they can very well agitate the same by filing appropriate proceedings before the appropriate forum separately.

¶7In the facts and circumstances of the case, as noted by the learned Single Judge and also considered by us, we do not find any illegality in the impugned judgment and order passed by the learned Single Judge whereby full Page No.# 10/10 opportunity was granted to the appellants to raise their objections before the PCB, Assam in respect of grant of "consent to establish" and "consent to operate" the brick kiln in favour of the private respondent.

¶8Since the matter of issuance of "consent to establish" and "consent to operate" in respect of a brick kiln, or renewal of such "consent to establish" and "consent to operate" is within the domain of the PCB, Assam only, no direction can be issued to the District Commissioner of a district to look into the grievance raised by any person against establishment of a brick kiln.

¶9In view of the above discussions, we do not find any merit in this writ appeal and the same is, therefore, dismissed.

JUDGE CHIEF JUSTICE

Comparing Assistant