Shri Balaji Intt Udhyog vs The Member Secretary Rajasthan State ... on 3 February, 2023

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National Green Tribunal

Shri Balaji Intt Udhyog vs The Member Secretary Rajasthan State ... on 3 February, 2023

Item Nos. 3, 4 & 5
               BEFORE THE NATIONAL GREEN TRIBUNAL
                   CENTRAL ZONE BENCH, BHOPAL
                     (Through Video Conferencing)
                         Appeal No. 18/2022 (CZ)
M/s S.M. Bricks Suppliers                                 Appellant(s)

                                Versus

Member Secretary, RSPCB & Anr.                           Respondent(s)

WITH
                         Appeal No. 19/2022 (CZ)
Shri Balaji Intt Udyog                                     Appellant(s)

                                Versus
Member Secretary, RSPCB & Anr.                           Respondent(s)

WITH
                         Appeal No. 23/2022 (CZ)
                            (I.A. No. 63/2022)
New Laxmi Entt Udhyog                                      Appellant(s)

                                Versus
Member Secretary, RSPCB & Anr.                            Respondent(s)

Date of completion of hearing and reserving of order: 27.01.2023
Date of uploading of order on website: 03.02.2023
CORAM:      HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
            HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER

 For Appellant(s):                     Mr. Harender Neel, Adv.
 For Respondent(s) :                   Mr. Rohit Sharma, Adv.

                            ORDER

1. All these appeals have been filed against Show Cause Notice issued by the Rajasthan State Pollution Control Board.

Appeal no. 18/2022

2. The appeal has been filed with the prayer to set aside the notice dated 06.07.2022 alongwith 08.03.2022 passed by Rajasthan State Pollution Control Board whereby and where under an amount of Rs. 24,70,000/- was calculated to be realised by the appellant. The words used in the impugned order dated 06.07.2022 are as follows: 1

Sub: Show cause notice for intended revocation of Consent to Operate under the provisions of the Air (Prevention & Control of Pollution) Act, 1981 and show cause notice for intended directions for closure under section 31A of the Air (Prevention & Control of Pollution) Act, 1981.

Ref: i. Directions issued for Environmental Compensation vide HO letter dated 08.03.2022 ii. Consent to Operate issued vide letter dated 15.02.2022 Therefore the Board in order to prevent further pollution being caused by the unit and non-compliance of the provisions of the Air Act, State Board intends to revoke your consent to operate issued vide this office letter under reference under section 21 of the Air act and in exercise of power conferred upon it under section 31 A of the Air act, 1981 intends to issue following directions to:

a) As to why, operation of the unit should not be closed down.

b) Close down the process/industry/plant occupied/operated by you forthwith

c) Authorities responsible for supplying of electricity and water or providing any other facilities services to plant/facilities are directed to immediately discontinue the facilities/services and seal DG sets.

If you have any objection against intended revocation of consent to operate and intended closure directions, you may submit your reply to this office along with Environmental Compensation imposed vide letter under reference (i) before 23.07.2022, failing which the aforesaid revocation shall be confirmed without any further notice.

Appeal No. 19/2022

3. The prayer in this appeal is to set aside the order dated 06.07.2022 alongwith 08.03.2022 whereby and where under show cause notice was issued to the Appellant as to why an amount of Rs. 24,35,000/- be not realised by the Appellant. The relevant portions of the show cause notice are as follows:

Sub: Show cause notice for intended revocation of Consent to Operate under the provisions of the Air (Prevention & Control of 2 Pollution) Act, 1981 and show cause notice for intended directions for closure under section 31A of the Air (Prevention & Control of Pollution) Act, 1981.

Ref: i. Directions issued for Environmental Compensation vide HO letter dated 08.03.2022 ii. Consent to Operate issued vide letter dated 09.02.2022 Therefore the Board in order to prevent further pollution being caused by the unit and non-compliance of the provisions of the Air Act, State Board intends to revoke your consent to operate issued vide this office letter under reference under section 21 of the Air act and in exercise of power conferred upon it under section 31 A of the Air act, 1981 intends to issue following directions to:

d) As to why, operation of the unit should not be closed down.

e) Close down the process/industry/plant occupied/operated by you forthwith

f) Authorities responsible for supplying of electricity and water or providing any other facilities services to plant/facilities are directed to immediately discontinue the facilities/services and seal DG sets.

Appeal No. 23/2022

4. In this appeal the prayer to set aside the show cause notice dated 06.07.2022 whereby and where under an amount of Rs. 26,04,000/- was calculated to be realised from the appellant. The relevant portion are as follows:

Sub: Show cause notice for intended refusal of application for Consent to establish and/or Operate under the provisions of the Air (Prevention & Control of Pollution) Act, 1981 and show cause notice for intended directions for closure under section 31A of the Air (Prevention & Control of Pollution) Act, 1981.

Ref: i. Directions issued for Environmental Compensation vide HO letter dated 08.03.2022 ii. Application for Consent to establish/operate dated 03.03.2022 And whereas, M/s New Luxmi Entt Udhyog (thereinafter referred to as "the Industry") is engaged propsed in operating/to establish a Brick kiln unit as CHAK-15 SGR, Tehsil Suratgarh, Dist Sriganganagar. During process the industry discharge air pollutants.

And whereas you have applied for consent to establish and /or consent to operate vide application under reference (ii) and same is pending with the state board And whereas, the matter of Brick Kiln operations is under consideration at Hon'ble NGT in O.A. No. 262/2020 in mater of Hakam Singh & Anr v/s State of Rajasthan and Ors. Therefore the Board in order to prevent further pollution being caused by the unit and non-compliance of the provisions of the Air Act, State Board intends to revoke your consent to operate issued vide this office letter under reference under section 21 of the Air act and in exercise of power conferred upon it under section 31 A of the Air act, 1981 intends to issue following directions to:

g) As to why, operation of the unit should not be closed down.

h) Close down the process/industry/plant occupied/operated by you forthwith

i) Authorities responsible for supplying of electricity and water or providing any other facilities services to plant/facilities are directed to immediately discontinue the facilities/services and seal DG sets.

5. We have heard the Learned Counsel for the parties and perused the record.

6. The contentions of the Appellant are that without giving an opportunity of hearing State Pollution Control Board has issued Show Cause Notice whereby and where under the amount mentioned in the notices was estimated as environmental compensation for operating the unit without valid consent from the State Pollution Control Board.

7. It is further contended that order passed in WP (C) No. 375 of 2012 Paryavaran Suraksha Samiti Vs. Union of India & ors by Hon'ble Supreme Court of India or order passed in O.A No. 606 of 2018 and in O.A No. 262/2020 is not applicable for imposing environmental compensation on the basis of "Polluter pays principle". It is further argued that Brick Kiln industry is small scale industry which is established only in rural and remote areas. Such industries are the source of employment for the people living in rural and remotes areas. Such industry is the only source of employment for appellant. The appellant does not use any additional fuel for the operation of brick Kiln unit. On the contrary appellant only uses agricultural wastage for running his unit otherwise the agricultural wastage will be burnt by the farmers and that can be the major cause of pollution. The penalty imposed on the appellant is more than project cost of brick Kiln unit which is around 5 to 10 lakhs for establishing any brick Kiln unit. If such huge amount of environmental compensation is claimed by the respondents the appellant shall pay the same by selling the land on which such unit is situated and that will result into closing of the said unit. The annual turnover of any brick Kiln unit is around 5 to 7 lakhs. The said fact makes it crystal clear that the appellant is not capable of paying this penalty. Many employees of RSPCB Bikaner/ Hanumangarh were tested positive for COVID-19 hence the office remained closed for 5 many months and consequently there was delay in issuing the business of appellant and thus also faced losses due to COVID-19.

8. The contention of the learned counsel for the RSPCB is that letter impugned is a show cause notice issued in furtherance of the directions issued earlier, against which appeal is not maintainable.

9. The order dated 06.07.2022 is simply a notice against which the opportunity of hearing was provided to the appellant and Appellant instead of filing the reply, filed this appeal against the order dated 06.07.2022 which is legally not tenable. So far as the order dated 08.03.2020 is concerned Appellant has right to appeal within 30 days, but the same has not been filed in accordance with the procedure as contained in Section 16 of the National Green Tribunal Act.

10. The Brick kiln unit was operating on the land in which the CTO expired much before the issue of Show Cause Notice and other notices and it was neither informed to the answering respondents nor submitted a evidence that unit was not operating. The contention of the learned counsel for the Appellant is that the land was given to the appellant on rent by the owner for operation of Brick kiln and it was in operation and in the reply submitted by the Appellant, it is never mentioned that the land has been provided to the appellant on the basis of rent.

11. It is further argued that during the inspection conducted by the Joint Committee, the unit of the Appellant was found in operation and was in existence and thus a Show Cause Notice was issued on different days against which no sufficient and proper reply has been submitted. 6

12. Learned counsel for the respondent has further argued that vide notice dated 19.01.2022, an opportunity of hearing was provided to the appellant which is reproduced as under:

In view of above, the State Board in exercise of the Powers conferred upon it under section 31A of the Water Act and 31A of the Air Act and for performance of functions under the Acts intends environmental compensation against your industry as mentioned herein above.

In view of above, this show cause notice is being issued as to why the environmental compensation as above may not be imposed against your industry. In case, if you to wish to submit any objections/ clarification to the above intended imposition of environmental compensation, you may submit your reply along with the evidence based supporting documents by 78.02.2022 failing which the environmental compensation as mentioned herein above shall be imposed without any further notice to you in the matter.

13. The genesis of the action taken by the respondents as referred is O.A. No. 262/2020 which was earlier registered as O.A No. 37/2019 (CZ) which was transferred to PB where the issue raised in this application is emission of huge quantity of toxic elements form brick kilns, causing serious health hazards. The brick kilns emit toxic fumes containing suspended particulate matters rich in carbon particles and high concentration of carbon monoxides and oxides of sulphur (SOx) that are harmful to eye, lungs and throat. These air pollutants stunt the mental and physical growth of children. According to the data, the primary source of SOx in these areas are by brick manufacturing industry. And the primary source of NOx (nitrogen oxides) pollutants is also from brick manufacturing industry. Also, nearly 25 to 26 per cent of the country's wood production are used for burning bricks every year, causing deforestation. The bricks are made for building. But the 7 country's brick kilns are churning' out the basic ingredients for construction in a way that is doing more harm than good. It is not only crops that are being affected by the tons of smoke coming out of the chimneys. Experts now say that brick kilns are emitting harmful particulate matters (pm) into the air, which are responsible for the alarming rise of respiratory ailments. According to available statistics, thousands of brick kilns are operating in and around the District Ganganagar. The alarming figure suggests that inhabitants of surrounding areas are breathing more sulphur than oxygen. But the DoE seemed to be happy focusing their attention on bricks. There also seems to be a lack of proper monitoring of whether the brick kiln owners are obeying the Brick Kiln Control (amended) Act (2001), which prohibits the establishment of brick kilns within a three kilometre radius of human inhabitation as well as fruit garden.

14. The compliance of environmental norms by the Brick Kilns in Sriganganagar District in Rajasthan was considered in O.A No. 262/2020 (PB) vide order dated 11.02.2021 where the CPCB has submitted the report as follows:

"However, it is submitted that State Board has identified 594 brick kiln units in Sriganganagar District. Out of the identified units 55 brick kilns are closed; 234 brick kiln are operating with valid consent to operate from the State Board; application of 80 brick kiln are under process with the State Board and out the remaining 225 brick kiln, the State Board has issued show cause notice for intended closure to 217 brick kiln and closure directions to 08 brick kiln."

15. The matter of Brick Kilns operating without any consent to operate was also considered in the following manner:

4. Learned counsel for the applicant submits that when 225 brick kilns are operating without any consent to operate, which is a matter of record, there is no need for show cause notice and on that pretext not closing such kilns amounts to permitting illegality. In any case, the said reply was filed by the PCB more than one year back i.e. on 30.01.2020 and show cause notices were reportedly issued in the year 2019, still the kilns are being allowed to operate illegally.

5. In view of the above, we are of the opinion that further follow up action needs to be taken to prevent illegal operation of brick kilns and recovery of environmental compensation for the period of illegal operation, following due process of law. For those not having consents, closure can be immediately, particularly when show cause notice has already been given. For those having consents, it is necessary to verify whether they are meeting the prescribed pollution norms and the siting norms. A joint Committee of CPCB, State PCB and District Magistrate, Ganga Nagar may look into these aspects and furnish a factual report within three months. The State PCB and District Magistrate may take remedial action against kilns operating without consent forthwith and for assessment and recovery of compensation, after following due process. Similarly, action be taken, in accordance with law, against those found non-compliant, and action taken report filed.

16. It was further directed that in respect of such Brick Kiln which were operating without consent, there was no need of any show cause notice at their operation was per se illegal. The said Brick Kilns were to be closed till the compliance of law and be made accountable for past illegal operation also by way of compensation on polluters pay principle. It was found that Rajasthan State Pollution Control Board failed to close illegally operated Brick Kilns and to enforce the citing criteria as well as environmental norms in permitting the Brick Kilns to operate causing adverse impact on environment.

17. The CPCB after the site visit and monitoring of ambient air quality status, source emission monitoring, discussion with the stakeholders, estimated carrying capacity, assimilative capacity, supporting capacity and impact of the brick kilns on the air quality, apart from compensation payable for the individual brick kilns operating in violation of norms , followings have been recommended to be acted upon by the State board:

8.0 Recommendations:

1. Rajasthan State Pollution Control Board may impose & recover the environmental compensation with due process of law from 165 brick kilns operated without CTO or valid CTO.

2. Rajasthan State Pollution Control Board may implement the provisions of the notification 22.2.2022 w.r.t. emission standard, technology conversion and siting criteria. The operation of brick kilns in major clusters viz. Suratgarh, Jaitsar, Srivijaynagar, Raisinghnagar and Anupgarh tehsils 10 needs to be regulated by restricting consented production or duration of operation.

3. The operation of brick kilns may be allowed from January to June (extended to next 15 days) to restrict the production as per the consented quantity.

4. An in-depth study on brick kiln process optimization, assessment of region specific assimilative/supportive and carrying capacity is required to suggest and prepare environmentally sustainable functioning of brick kilns in each tehsil of Sriganganagar district. Such kind of detailed study may be conducted by a consortium of the reputed institutes (like NEERI/ CBRI/NIT, Jaipur etc.) with financial support from brick kiln association and RSPCB.

5. Brick Manufacturer's Association may conduct a study on use of crop residue briquette/pelleting for higher thermal input and reduction of pollution.

6. Brick Manufacturer's Association should ensure that the fuel is stored properly and provide pucca road in operation area to control fugitive emission. The best practices to tap the flue gas leakages need to be adopted by all the brick manufacturers."

18. In view of the above facts, the contention of the learned counsel for the State Pollution Control Board is that the proper opportunity of hearing was provided to the Appellant by way of issue of Show Cause Notice and the appellant has filed the objection/reply. The Appellant unit was inspected by the Committee constituted by the Tribunal and in furtherance there of Show Cause Notices were issued as to why environmental compensation should not be 11 imposed against the Appellant unit and it is thereafter the order was passed.

19. It is further contended that no evidence was filed by the Appellant that the unit was not in operation during the period where the environmental compensation has been calculated, and on the other hand the inspection was made by the authorities/responsible officer and it was found that the unit was operational during the period for which environmental compensation has been assessed.

20. The reply submitted by the Appellant was duly considered by the authorities and was found unsatisfactory and thus order impugned was passed.

21. Next contention as raised by the appellant is that in the matter of other brick kilns the amount of compensation was reduced and that was not done in the case of Appellant's unit. In reply thereof, it is contended that the amount was not reduced uniformly but has been finalized on case to case basis after verifying initial dates of non compliances. The appellant brick kiln had not applied for renewal of consent to operate immediately after expiry of previous consent to operate and it was operated without obtaining valid consent from the State Board. The calculation of environmental compensation has been done on the basis of mechanism and method of calculation.

22. Learned counsel for the appellant has submitted that in the matter of another appeal, the order was set aside with the direction to the Respondent to provide an opportunity of hearing and then to proceed in accordance with the law. That order is not a universal law and that can be interpreted in view of the present case firstly 12 the impugned order dated 06.07.2022 only sees that if the Appellant have any objection against the order issued by the order impugned they may submit the reply to the office of the State Pollution Control Board. Instead of filing the reply and objection if any, they have approached this Tribunal in appeal.

23. It is stated law that no appeal lies against Show Cause Notice. The Show Cause Notice issued by the impugned order intended to provide an opportunity of hearing to the appellant. It is further argued by the learned counsel for the Respondent that there are multiplicity of cause of action and against the order dated 08.03.2022 appeal is not maintainable as it is time barred. The order dated 06.07.2022, is simply Show Cause Notice where opportunity of hearing was provided to the Appellant, thus appeal against Show Cause Notice is not maintainable.

24. On these grounds all these appeals which are against Show Cause Notice are not maintainable and deserve to be dismissed and accordingly dismissed.

Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 06th February, 2023 Appeal Nos. 18/2022, 19/2022 & 23/2022(CZ) PU 13

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National Green Tribunal

Shri Balaji Intt Udhyog vs The Member Secretary Rajasthan State ... on 3 February, 2023