Gauhati High Court
Page No. 1/9 vs The State Of Assam And 11 Ors on 6 February, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/9
GAHC010014162025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/444/2025
BHARAT SAIKIA AND 9 ORS
SON OF TARANIKANTA SAIKIA
VILLAGE- HILLOIKHUNDA , P.O.RAJAMAYONG ,
DISTRICT- MORIGAON , ASSAM
PIN-782411
2: DEBESWAR SAIKIA
SON OF LATE PRANA NATH SAIKIA
R/O VILLAGE- SATIVETI
P.O.RAJAMAYONG
P.S.- MAYONG
DISTRICT- MORIGAON
ASSAM
PIN-782411
3: RANJIT SAIKIA
SON OF MUKUT SAIKA
R/O VILLAGE- SATIVETI
P.O.RAJAMAYONG
P.S.- MAYONG
DISTRICT- MORIGAON
ASSAM
PIN-782411
4: GIRIDHAR SAIKIA
SON OF LATE HANKHA RAM SAIKA
R/O VILLAGE- SATIVETI
P.O.RAJAMAYONG
P.S.- MAYONG
DISTRICT- MORIGAON
ASSAM
PIN-782411
Page No. 2/9
5: ATUL SAIKIA
SON OF MINAI SAIKIA
R/O VILLAGE- SATIVETI
P.O. RAJAMAYONG
P.S.- MAYONG
DISTRICT- MORIGAON
ASSAM
PIN-782411
6: JIBAN SAIKIA
SON OF LATE PIPARU SAIKIA
VILLAGE- SATIVETI
P.O.RAJAMAYONG
P.S.- MAYONG
DISTRICT- MORIGAON
ASSAM
PIN-782411
7: NIPUL SAIKIA
SON OF LATE NABIN SAIKIA
R/O VILLAGE- SATIVETI
P.O.RAJAMAYONG
P.S.- MAYONG
DISTRICT- MORIGAON
ASSAM
PIN-782411
8: NABA KANTA SAIKA
S/O LATE BANIKANTA SAIKIA
R/O VILLAGE- SATIVETI
P.O. RAJAMAYONG
P.S.- MAYONG
DISTRICT- MORIGAON
ASSAM
PIN-782411
9: CHABIRAM SAIKIA
SON OF LATE BANESWAR SAIKIA
R/O VILLAGE- JHARGAON
P.O.RAJAMAYONG
P.S.- MAYONG
DISTRICT- MORIGAON
ASSAM
PIN-782411
10: BIKASH SAIKIA
SON OF TAJU UJA SAIKIA
R/O VILLAGE- OUGURI
Page No. 3/9
P.O.RAJAMAYONG
P.S.- MAYONG
DISTRICT- MORIGAON
ASSAM
PIN-782411
ALL THE WRIT PETITIONERS ARE MEMBER OF THE MADHYA MAYONG
UNNAYAN SAMITTEE
MAYONG
MORIGAON
VERSUS
THE STATE OF ASSAM AND 11 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT
OF ENVIRONMENT AND FOREST, GOVERNMENT OF ASSAM, DISPUR ,
GUWAHATI-6.
2:THE COMMISSIONER AND SECRETARY
DEPARTMENT OF ENVIRONMENT AND FOREST
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-6.
3:THE DISTRICT COMMISSIONER
DISTRICT-MORIGAON
ASSAM
4:THE CIRCLE OFFICER
MAYONG REVENUE CIRCLE
DISTRICT- MORIGAON
ASSAM .
5:THE DISTRICT AGRICULTURE OFFICER
DISTRICT-MORIGAON
ASSAM
6:THE DIVISIONAL FOREST OFFICER
GUWAHATI WILDLIFE DIVISION
SANTIPUR
GUWAHATI-9
DISTRICT- KAMRUP(M)
ASSAM
7:THE DIVISIONAL FOREST OFFICER
NAGAON WILDLIFE DIVISION
NAGAON
DIST- NAGAON
ASSAM
Page No. 4/9
8:THE POLLUTION CONTROL BOARD
ASSAM
REPRESENTED BY THE CHAIRMAN BAMUNIMAIDAM GUWAHATI-21
ASSAM
9:THE MEMBER SECRETARY
POLLUTION CONTROL BOARD
ASSAM
BAMUNIMAIDAM
GUWAHATI-21
ASSAM.
10:THE REGIONAL EXECUTIVE ENGINEER
POLLUTION CONTROL BOARD
NAGAON
ASSAM
11:THE UNION OF INDIA
MINISTRY OF ENVIRONMENT AND FOREST PARYAVARAM BHAWAN CGO
COMPLEX
LODHI ROAD
NEW DELHI -110003.
12:DILIP CHETRY
SON OF BHOPAL SINGH CHETRY
PROPRIETOR OF M/S BHAWANI BRICK (BBA BRICK) BONDA
CHANDRAPUR
HAJOBARI
DISTRICT-KAMRUP
ASSAM
Advocate for the Petitioner : MR. R BARUAH, MR. N M DUTTA
Advocate for the Respondent : SC, FOREST, FOR CAVEATOR,MR. H R DAS,MR D
KALITA,DY.S.G.I.,SC, PCB,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 06.02.2025 Heard Mr. R. Baruah, learned counsel for the petitioners; Mr. R.R. Gogoi, learned Page No. 5/9 Standing Counsel, Environment & Forest Department for the respondent nos. 1, 2, 6 & 7; Mr. J. Handique, learned Junior Government Advocate, Assam for the respondent nos. 3 & 4; Mr. S. Baruah, learned Standing Counsel, Pollution Control Board, Assam for the respondent nos. 8, 9 & 10; and Mr. P.K. Goswami, learned Senior Counsel assisted by Mr. B.P. Borah, learned counsel for the respondent no. 12.
2. The petitioners, 10 [ten] in nos., stating that they have a common cause of action, have assailed an Order dated 19.12.2024 passed by the respondent no. 3. By the impugned Order dated 19.12.2024, the respondent no. 3 has reinstated a No Objection Certificate [NOC] dated 02.09.2011, which was issued earlier in favour of the respondent no. 12 for establishment of a brick kiln named B.B.A. Brick Kiln.
3. The petitioners have claimed that they are owners of different parcels of land in and around the brick kiln, B.B.A. Brick Kiln.
4. One of the contentions raised by the petitioners is that the area where the brick kiln is situated is the proposed Eco-Sensitive Zone [ESZ] in respect of the Pobitora Wildlife Sanctuary.
5. The learned counsel for the parties have, in course of their submissions, referred to two decisions of the Hon'ble Supreme Court of India in [1] T.N. Godavarman Thirumulpad vs. Union of India and others , reported in [2022] 10 SCC 544; and [2] T.N. Godavarman Thirumulpad vs. Union of India and others, reported in 2023 SCC Online SC 504.
6. In T.N. Godavarman Thirumulpad [supra], the Hon'ble Supreme Court of India had issued a set of directions and two of such directions which have been referred to by the learned counsel for the parties as follows :-
56.1. Each of protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 09.02.2011 shall be strictly Page No. 6/9 adhered to. .....
* * * * 56.8. In respect of sanctuaries or national parks for which the proposal of a State or Union Territory has not been given, the 10 km buffer zone as ESZ, as indicated in the order passed by this Court on 04.12.2006 in Goa Foundation and also contained in the Guidelines of 09.02.2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at.
7. It has emerged that a proposal for Eco-Sensitive Zone in and around the Pobitora Wildlife Sanctuary under the Guwahati Wildlife Division was prepared and by a Communication bearing no. FRS. 19/2012/23 darted 29.05.2012, the said proposal for declaration of Eco-Sensitive Zone [ESZ] in and around the Pobitora Wildlife Sanctuary was forwarded by the Environment and Forest Department, Government of Assam to the Ministry of Environment and Forest, Government of India.
8. The following excerpts from the proposal bear relevance :-
The Pobitora Wildlife Sanctuary is famous for One Horned Rhino [Rhinoceros unicorns] besides this the park harbors 46 species of resident and 20 species of biome restricted avian fauna excluding nos. of migratory birds. 16 species of aquatic plants, 41 species of fish and 8 species of frogs are also sharing the habitat.
Under the above circumstances, it is highly essential to notify an area of 1000 m [1 km] all around the outer boundary of Pobitora Wildlife Sanctuary as an Eco-Sensitive Zone for better environmental safeguard of the life forms in the park. As already mentioned the Rajamayong [hill] RF and Pobitora RF and are not contiguous patches. The inter space between the aforesaid RF are yet to be handed over to the PA authority, however, the area to be considered as part of the Sanctuary to provide seasonal migration route between areas where animals physically cross from one part to other. The distance between Pobitora RF and Mayong FR is nearly 3 km, so the inter space brought under the eco-sensitive zone whereas in other areas it is kept 1 km away from the outer boundary of the notified Sanctuary. Thus the buffer area comprising 74 sq. km around the entire Pobitora Wildlife Sanctuary is Page No. 7/9 propose to be declared as Eco-Sensitive Zone as delineated in the enclosed map for better environmental safeguard of all the life forms in the park as well as in the fringe areas.
9. To decide the issues involved in this writ petition, a clarification is required about the proposed Eco-Sensitive Zone in and around Pobitora Wildlife Sanctuary. One of the issues which has fallen into consideration is whether the area where the brick kiln, B.B.A. Brick Kiln is situated within the proposed Eco-Sensitive Zone of Pobitora Wildlife Sanctuary. In such view of the mater, this Court deems it appropriate to call for a clarification from the Principal Chief Conservator of Forest & Head of Forest Force, Assam to provide clarification about the proposed Eco-Sensitive Zone [ESZ], as submitted by the Government of Assam in its proposal to the Ministry of Environment and Forest, Government of India on 29.05.2012 [supra]. Clarification should also provided on the point whether the inter space of 3 km between Rajamayong [hill] RF and Pobitora RF is also included in the proposed Eco-Sensitive Zone [ESZ].
10. The petitioners herein had earlier approached this Court by way of a writ petition, W.P. [C] no. 1942/2024 and the said writ petition after hearing the learned counsel for the parties, was disposed of by a Judgment and Order dated 27.09.2024. Prior to W.P.[C] no. 1942/2024, there were many rounds of litigations. In an earlier round of litigation in the form of Writ Appeal no. 241/2017, the Hon'ble Division Bench had issued a set of directions to the Deputy Commissioner, Morigaon [presently, District Commissioner, Morigaon] to decide on the issue after taking into consideration, reports of Pollution Control Board, Assam, the jurisdictional District Agriculture Officer, the jurisdictional Divisional Forest Officer and the jurisdictional Circle Officer, etc. In the Judgment and Order dated 27.09.2024, the Court had observed that the District Commissioner, Morigaon would have to decide whether the brick kiln set up by the respondent no. 12 should be allowed to run and also to consider whether the same would affect the writ petitioners therein, that is, the present petitioners, in respect of their lands and the environment. One of the grounds of challenge to the Order 19.12.2024 is that the Order has not adhered to those directions of the Hon'ble Division Bench.
11. Another ground of challenge is that the stakeholders were heard by the Additional Page No. 8/9 District Commissioner, Morigaon on 25.11.2024 and the impugned Order passed by the District Commissioner, Morigaon on 19.12.2024, disregarding the ordinarily applicable principle, one who hears, must decide.
12. In order to examine the afore-stated aspect, the records to the relevant proceedings leading to passing of the Order dated 27.09.2024 would be necessary. Mr. Handique, learned Junior Government Advocate, Assam shall make endeavour to obtain the relevant records at the office of the respondent no. 3 by placing it on the next date of listing.
13. The Court is of the view that the matter would require further examination.
14. Issue notice, returnable on 25.02.2025.
15. As Mr. Gogoi has appeared and accepted notices on behalf of the respondent nos. 1, 2, 6 & 7; Mr. Handique has appeared and accepted notices on behalf of the respondent nos. 3 & 4; Mr. Baruah has appeared and accepted notice the respondent nos. 8, 9 & 10; and Mr. Borah has appeared and accepted notice on behalf of the respondent no. 12, issuance of formal notices in respect of the said respondents stand dispensed with. The learned counsel for the petitioners shall, however, serve requisite nos. extra copies of the writ petition along with annexures, to Mr. Gogoi, Mr. Handique, Mr. Baruah and Mr. Borah within 2 [two] working days from today.
16. The learned counsel for the petitioners shall serve requisite nos. of extra copies of the writ petition along with annexures, to Mr. B. Choudhury, learned Standing Counsel, Agriculture Department for the respondent no. 5 and Mr. R.K. Devchoudhury, learned Deputy Solicitor General of India for the respondent no. 11 within 2 [two] working days from today.
17. As the learned counsel for the parties have also submitted that some of the relevant documents would be available in the case records of W.P.[C] no. 4604/2019, the Office to tag the case records of W.P.[C] no. 4604/2019 with this writ petition.
Page No. 9/918. The prayer for interim order is kept open for consideration on the returnable date.
JUDGE Comparing Assistant