National Green Tribunal
Ram Rang Shukla vs State Of U.P. & Ors on 22 August, 2024
Item No.10 Court No. 2
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 456/2023
Ram Rang Shukla Applicant
Versus
State of U.P. & Ors. Respondent(s)
Date of hearing: 22.08.2024
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: None
Respondent: Mr. Bhanwar Pal Singh Jadon, Advocate for State of U.P.
Mr. Pradeep Misra Advocate for Respondent no.3- UPPCB (through VC).
Mr. Sharad Chauhan Advocate for Respondent No. 4- Project Proponent
ORDER
1. This Original Application (hereinafter referred to as 'O.A') has been registered under Section 14 & 15 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act,2010') in exercise of suo-moto jurisdiction on a letter petition dated 04.05.2023 from Ram Rang Shukla R/o Village Ramraipur, P.O-Karda, Wazeerganj, Gonda, U.P.
2. Complainant has stated that there is a brick kiln, M/s C.H Ent Bhatta, situated behind Indian Oil Petrol Pump, Bandhawa Chauraha, Wazeergang, Dist Gonda under the proprietorship of Shri Hamid Ali, son of late Shri Salamatullah. The petrol pump is situated at about 300 meters from the brick kiln; there is a canal as well as lush green agriculture land towards north and west of brick kiln and towards south there is a pond; a government high school; and a mango orchard which 1 has become infertile because of massive smoke and dust emitted by the brick kiln. The brick kiln is not meeting siting criteria as per the rules. Further, it is said that the brick kiln was blacklisted by UP Pollution Control Board on 26.07.2021 and order for closure was also passed, but the brick kiln is still operating.
3. Cognizance was taken by Tribunal on 02.08.2023 but to get the factual assertions made in the complaint, verified, Tribunal constituted joint committee comprising Central Pollution Control Board (hereinafter referred to as 'CPCB') UPPCB, and District Magistrate, Gonda.
4. The committee was required to submit factual report within one month.
5. Besides other, the committee was also required to verify factual position with regard to siting criteria; Consent to Establish (hereinafter referred to as 'CTE') and Consent to Operate (hereinafter referred to as 'CTO'.
6. Pursuant to order dated 02.08.2023, Joint Committee has submitted report dated 30.10.2023 through Chief Environmental Officer, circle-6, UPPCB Giving details of the location etc of the brick kiln, the report says that brick kiln was established in 2011, that is before enforcement of UP Brick Kilns (Siting Criteria for Establishment) Rules, 2012 notified by Government of U.P on 27.06.2012 (hereinafter referred to as 'Brick Kiln Siting Criteria Rules, 2012'); CTE was issued on 23.03.2011; Brick kiln was also issued CTO and last CTO was issued on 21.09.2022 with installed capacity of 22,000 bricks per day which was valid upto 31.07.2023. At the time of inspection made by the Joint Committee i.e. 26.08.2023, brick kiln was found non-operational due to 2 off-season. With regard to the conversion of brick kiln from natural draft method to zig-zag technology, it is said that Gonda has not been categorized as non-attainment cities and time for conversion was granted up to 21.02.2024.
7. Committee also made certain recommendations which includes conversion of brick kiln to zig-zag technology and stoppage of functioning without upgrading Air Pollution Control System and valid consent form UPPCB. Details given by Joint Committee including observations and recommendations are reproduced as under:
"2. Inspection of M/s CH ENT Bhatta behind Indian Oil Petrol Pump, Bandhawa Chauraha, Wazeerganj, District Gonda, Uttar Pradesh (UP) Joint committee visited the questioned brick kiln M/s CH ENT Bhatta behind Indian Oil Petrol Pump, Bandhawa Chauraha, Wazeerganj, District Gonda, Uttar Pradesh to verify the factual position with regard to siting criteria and CTE/CTO on 26.08.2023. The detailed inspection report along with salient observations and recommendations are mentioned below:
S. Particulars Verification Details
No.
A Location Details
.
1. Name of the Brick kiln & Address M/s CH Ent Bhatta, Arazi No.-821, Village Bandhwa, Wazirganj, Tarabganj, District-Gonda, (UP)
2. Owner's name and contact Sh Hamid Ali (Proprietor) details 9792426164
3. GPS Co-ordinates 26.990582 Longitude: 82.124979 Latitude:
B. Verification of the Display Board
1 Environmental Data displayed at No
. the main gate:
Yes/No.
C. Operational/Working Status
1. Status at the time of visit Non-operational due to off season
Operational or Non-operational (As reported last production
(Photograph attached as process closed on 10.06.2023)
Annexure-1)
D. Status of Consent to Establish
(NOC)
3
1 Status of Consent to Establish Issued vide Ref. No. 3062/NOC/2011
dated- 23.03.2011.
2 Status of Consent to Operate & Issued vide Ref. No. 164535/UPPCB/
Validity period Faizabad
(UPPCBRO)/CTO/both/GONDA/ 2022,
dated- 21.09.2022 which was valid till
E 31.07. 2023
Production and Capacity
1 20000 Numbers/day
Production as per Consent to
Operate:No. of bricks per day:
No. of bricks per month:
2. Dimensions of the Kiln (Mtr/ft) (100X30X8)M
Length:
Width: 100
Height:
30
8
3. Fuel details as per Consent to
Operate:
Coal
Type of fuel:
Consum tion .er da MT/K• :
03 Tons Per Da
F. Verification of the Brick Manufacturing Technology
1 Brick Manufacturing Technology Natural draft
Pattern of Brick Siting: straight
Zig-Zag or straight
(Photographs attached as
Annexure-1)
2. Whether ID fan installed, No (Natural Draft)
Yes/No If, Yes, then NA
Capacity of ID fan (in terms of
Fan Size, HP) NA
(Photograph attached as
Annexure-1)
3. Shape of kiln (Oval/rectangular) Oval Shape Kiln
(Photograph attached as
Annexure-1)
G. Provision of Monitoring Facilities:
1. Stack height (Mtr/ft) 30M
Platform provided: (Y/N) Yes
Portholes provided: (YIN) Yes
(Photographs attached as
Annexure-1)
Overall Observation:
(i) The questioned unit M/s. C. H. Ent Bhatta, Behind Indian Oil Petrol Pump, Bandhwa Chauraha, Wazirganj, District- Gonda, Uttar Pradesh has obtained Consent To Establish (CTE) Vide Ref. No. 3062/NOC/2011 dated- 23.03.2011 To establish the Ent Bhatta on Arazi No.- 821, Vill- Bandhwa, Wazirganj, Gonda as per Zila Panchayat Guidelines before implementation of The 4 Uttar Pradesh Brick Kilns (Siting Criteria For Establishment) Rules, 2012 notified by Govt. of U.P. vide Ref. No. 921/55-
Parya/12-94(Parya)/2012, dated- June 27, 2012.
(ii) The said Brick Field has obtained Consent To Operate (CTO) issued on dated 21.09.2022 with installed capacity 20,000 Bricks Per Day, which was valid upto 31.07.2023.
(iii) During Joint Committee visit, the unit was found non--
operational due to off season of the Bhatta operation period in rainy season. The last production process was closed on 10.06.2023 as reported by Brick Kiln owner.
(iv) Respondent Board has directed to Ent Bhatta for conversion of the Natural draft to the induced draft technology brick kiln (with rectangular kiln shape and Zig-Zag brick setting) in compliance with timeline given by MOEF&CC notification G.S.R. 143(E ) dt.22.02.2022.
As per notification dated 22.02.2022 "the existing brick kiln which are not following Zig-zag technology or vertical shaft or use Piped Natural Gas (PNG) as fuel in brick making shall be converted to Zig-zag technology or vertical shaft or use Piped Natural Gas as fuel for making brick kiln within period of (a) one year in case of kilns located within 10 Kilometers radius of Non Attainment Cities (NAC) as defined by CPCB (b) two years for other areas.
Gonda, Uttar Pradesh has not been categorized as Non Attainment Cities (NAC). The time line for conversion in Zig-zag technology for brick kilns is up to 21 February, 2024.
(v) The brick kiln is based on Natural draft technology and using Coal as fuel for brick kiln firing and coal was found stored in open unshaded area covered with tarpaulin. Internal roads within the premises of the questioned Brick Kiln were found unpaved which may cause fugitive emission while movement of vehicles.
(vi) The Brick Kiln has installed adequate monitoring facility i.e., Monitoring Platform, Ladder and Porthole. The unit has provided monitoring platform (2.5 ft. x 3.0 ft) & porthole (3.5 inches) at the stack. Monitoring platform and porthole were not found as per CPCB Guidelines for source emission monitoring.
(vii) Brick kiln has no adequate plantation for development of a green belt around the periphery of the brick kiln for dust control.
4- Recommendation:
5
(i) The brick kiln should convert the kiln from Natural draft to
Induced draft technology brick kiln (with rectangular kiln shape and Zig-Zag brick setting) in compliance with timeline given by MOEF&CC notification G.S.R. 143(E) dt.22.02.2022.
(ii) The brick Kiln should not be allowed to operate without upgrading Air pollution Control System and obtaining valid CCA from UPPCB.
(iii) The brick kiln is established on 2011 based on the applicable siting guidelines of Zila Panchayat and thereafter obtain Consent to Operate under Air (Prevention and Control of Pollution) Act,1981.
(iv) The Brick Kiln should develop proper green belt as per CCA to minimize fugitive emission & dust emission.
(v) Fuel should be stored at shaded area to avoid fugitive emission. Water sprinklers are required to be deployed for control of Fugitive emission.
(vi) The Brick Kiln should have pucca road within the premises to prevent fugitive emission during vehicle movement."
8. In view of Joint Committee report dated 30.10.2023, this Tribunal on 03.11.2023 impleaded following as respondents:
(1) State of Uttar Pradesh, through Chief Secretary, Government of Uttar Pradesh (2) District Magistrate, Gonda, Uttar Pradesh (3) UPPCB, through its Member Secretary and (4) M/s CH ENT Bhatta
9. Notices were issued to respondents to enable them to file their reply.
10. Reply dated 15.01.2024 has been filed by UPPCB, (respondent 3), wherein it has relied on the Joint Committee report. However, it is further 6 stated that brick kiln was further inspected by the officials of UPPCB on 14.12.2023 and 29.12.2023 when also the brick kiln was found closed.
11. Project proponent i.e. M/s C.H Ent Bhatta has filed its reply dated 27.02.2024 vide email dated 28.02.2024 stating that the project's proponent has applied for new CTO on 24.08.2023. It is also said that it is complying with recommendations made by Joint Committee and conditions of consent. Proponent also stated that it has been granted CTO on 23.03.2024.
12. By order dated 02.04.2024, Tribunal directed UPPCB to place on record copy of CTO and to submit additional status report.
13. UPPCB has filed report on 19.04.2024 stating that brick kiln was inspected by Regional Office, UPPCB on 09.04.2024 and current status is as under:
"
i. That the said brick kiln was found not operational at the time of inspection.
ii. That the laying of bricks as well as operation of the brick kiln has not been started till date of inspection. The copy of the inspection report dated 09.04.2024 is being attached herewith as Annexure No-1 to this report.
iii. That the officials of Regional Office, Uttar Pradesh Pollution Control Board, Ayodhya on 09.04.2024 have also verified the compliance of the recommendations of the joint committee report. The copy of the compliance status report along with photograph is being attached herewith as Annexure No-2 to this report.
iv. That the owner of brick kiln has applied for Consent To Operate (CTO) under the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 online on Niveh Mitra portal on 05-03.2024. The copy of the CTO application is being attached herewith as Annexure No-3 to this report 7 v. That regarding disposal of the CTO application form, the said brick kiln was inspected by the officials of Regional Office, Uttar Pradesh Pollution Control Board, Ayodhya on 06.03.2024. As per recommendation of inspecting officer UPPCB, conditional Сто was issued vide Ref No- 2024789/UPPCB/Faizabad (UPPCBRO)/ CTO/ Both/ Gonda/2024 dated 23.03.2024. The copy of the inspection report dated 06.03.2024 and the copy of the CTO granted are being attached here with as Annexure No-4 and Annexure No-5 to this report.
vi. That in compliance of the order dated 02.04.2024 of Hon'ble NGT, the brick kiln was inspected on 09.04.2024. As per inspection report submitted in the office, the brick kiln was found closed. The brick kiln has not been started as well in the present brick kiln season. Neither the laying of kaccha bricks nor firing of the kiln has been started in the present brick kiln season.
vii. That the conditions have been imposed while granting the CTO to the brick kiln dated 23.03.2024 was also verified by the officials of Regional Office, Uttar Pradesh Pollution Control Board, Ayodhya in which most of the conditions have been compiled except the condition no- 20 has not been complied yet because the timing of conversion of the brick kiln from Natural draft to Induced draft with rectangular kiln shape and zig-zag brick setting has been extended by MoEF & CC vide Notification No. GSR 895 (E) dated 15.12.2023 from 23.02.2024 to 23.02.2025. The brick kiln in question is not located within 10 km radius of any non attainment cities. The copy of point wise compliance of the conditions imposed in the CTO dated 23.03.2024 and notification dated 15.12.2023 have been attached as Annexure No-6 & Annexure No-7 to this report. It is also pertinent to mentioned here that the condition No- 23 of the CTO dated 23.03.2024 to submit the bank guarantee of Rs. 2.0 lacs has not been complied till date. The owner of the brick kiln vide its letter dated 10.04.2024 has informed that he will submit the bank guarantee before operation of the brick kiln due to lack of money to operate the kiln and to submit the Bank Guarantee. The copy of letter dated 10.04.2024 is being attached herewith as Annexure No-8.
viii. The brick kiln in question had established in the year 2011 as per documents available in the record after obtaining Consent to Establish from UPPCB vide Ref no- 3062/NOC/2011 dated 23.03.2011 based on the applicable sitting guidelines i.e. Zila Panchyat before implementation of The Uttar Pradesh Brick Kilns (Sitting Criteria for Establishment) Rules, 2012 and thereafter obtained Consent to Operate under the Air (Prevention and Control of Pollution) Act, 1981. The copy of the Consent to 8 Establish dated 23.03.2011 is attached here with as Annexure No-9 to this report.
ix. In compliance to the para-7 of Hon'ble Tribunal order dated 02.04.2024, Regional Officer, Uttar Pradesh Pollution Control Board, Ayodhya vide letter dated 09.04.2024 has been sent to District Magistrate, Gonda as well as Superintendent of Police, Gonda to comply the direction issued by Hon'ble Tribunal. The copy of the letters dated 09.04.2024 have been attached herewith as Annexure No-10 & Annexure No-11 to this report."
14. An addiction affidavit dated 22.04.2024 has also been filed by the Project Proponent i.e. respondent 4 stating that substantial plantation has been carried out for curbing dust emission to maximum level. It has laid down 6 feet wide road made of bricks in the premises in addition to already constructed pakka road up to loading site of brick kiln. copy of CTO dated 23.03.2024 has also been placed on record.
15. Tribunal on 25.04.2024 required UPPCB to submit its response regarding the 'siting criteria' provided vide Brick Kiln Siting Criteria Rules, 2012.
16. Pursuant thereto, UPPCB has submitted its response dated 30.07.2024 relying on Tribunal's judgement dated 07.05.2015 in Appeal No. 74/2014, M/s Jai Hanuman Ent Udyog v. UPPCB & Ors. wherein it was held that the brick kilns which do not have valid consent from UPPCB prior to enactmentof Brick Kiln Siting Criteria Rules, 2012 need to fulfill siting criteria under that Rules, meaning thereby the brick kilns earlier had valid consent and established prior to Brick Kiln Siting Criteria Rules, 2012 may not be covered by the siting criteria of said Rules. Following observations of the judgment dated 07.05.2015 has\ve been relied by UPPCB:
9
" 6. Once it is undisputable on record that the unit of the appellant came into existence and started operating in the year 2010, without obtaining consent of the UPPCB in terms of the Air Act, then the consequences of it being an illegal unit and carrying out an unlawful activity would necessarily follow. A unit, which is established contrary to law and which pollutes the environment, cannot claim any advantage at a subsequent stage on the strength of the NOC from the Zila Parishad, which had no jurisdiction to deal with any of the matters, particularly of environment, as contemplated under the provisions of the Air Act. It is not a case of lack of jurisdiction but that of no jurisdiction of the Zila Parishad. It was mandatory for the appellant to establish its units only upon grant of Consent to Establish and the Consent to Operate from the UPPCB. Having failed to comply with its statutory obligation, the appellant is estopped from claiming the benefit of law under the Rules in force in 2010, as opposed to the applicability of Rules of 2012.
7. Even otherwise, the environmental laws including the provisions of the Air Act and the Rules of 2012 are social beneficial legislation, intended to provide and serve greater cause of public health and environment. The purpose is to ensure that because of the emission from the brick kiln, the people residing in vicinity do not suffer on account of air pollution resulting from such activity. The purpose of providing a mandatory statutory distance of the brick kiln from the residential areas is to ensure that the people carrying on activity, particularly like schools and residential areas, are not adversely affected by carrying on of such activity. The fact that the unit of the appellant had so far been operating without obtaining consent of the UPPCB and in violation of the prescribed standards, would not vest in him a right to continue with such unlawful activity. Admittedly, the unit applied for obtaining consent of the UPPCB for the first time in the year 2013, thus, that will be the point of time to determine the application of the laws. This Tribunal had the occasion to deliberate upon and decide a somewhat similar plea in the case of Himmat Singh Shekhawat v. State of Rajasthan and Ors., 2015 All (I) NGT Reporter (1) (Delhi) 44. The plea raised therein was that since the Project Proponents had been carrying on the mining activity for a considerable time, therefore, the preventive and precautionary steps directed to be taken under subsequent laws were not applicable upon them, Including the judgment of the Supreme Court prohibiting mining activity in an area of less than five hectares without prior Environmental Clearances. The Tribunal took the view that such activities and restrictions, imposed in the Interest of the environment, are not stricto sensu retrospective but are retroactive, as they do not take away the vested rights but only permit continuation thereof, subject to further restrictions. The Tribunal held as under:
"75. The environmental laws are laws enacted for the benefit of public at large. They are socio-beneficial legislation enacted to protect the environment for the benefit of the public at large. It is 10 in discharge of their Constitutional obligation that such laws have been enacted by the Parliament or by other authorities in furtherance to the power ver of delegated legislation vested in them. These legislations and directives are incapable of being compared to the legislations in the field of 82 taxation or criminal jurisprudence. These laws have been enacted to protect the Fundamental Rights of the citizens. Thus, the contention that the existing mine holders would not be required to comply with the requirements of environmental laws, cannot be accepted. To illustratively examine this aspect, we may take a hypothetical situation, not far from reality. An industrial unit which had been established and operationalized prior to 1974, 1981 and/or 1986, was granted permission under the laws in force and the unit owner had made heavy investments in making the unit operational. The Water (Prevention and Control of Pollution) Act came into force in 1974, Air (Prevention and Control of Pollution) Act in 1981 and Environment (Protection) Act in 1986. All these Acts deal with existing units as well as the units which are to be established in future. These laws granted time to the existing units to take all anti- pollution measures and obtain the consent of the respective Pollution Control Boards to continue its operations. Failure to do so, could invite penal action including, closure of industry under these Acts. The said Unit should not be permitted to contend that since it was an existing unit, it has earned a right to pollute the environment and cause environmental pollution, putting the life of the others at risk, on the ground that it was an existing unit and was operating in accordance with law. Such a contention, if raised, would have to be noticed only to be rejected. Similarly, these Notifications or Office Memorandums, having been issued under the environmental laws, would equally apply to the existing Industries as well. The directions contained in these 83 Notifications and Office Memorandums which are otherwise valid, would equally operate to the existing mines as well as the newly undertaken mining activities. All that the law would require, is to give them some reasonable time to comply with the requirements of law, wherever a specific time is not provided under the Act or the Notification. Obviously, these laws stricto sensu are not retrospective, as they do not abolish or Impair any vested rights under the existing laws. However, these laws Impose a new obligation without taking away the vested right. In that sense and somewhat loosely, it can be Interpreted as being retroactive in nature, as they do not take away the right of the person to carry on business or his industrial unit, but only impose a new obligation to take Environmental Clearance under the environmental laws. The activity is not prohibited, but, compliance to the environmental laws is made mandatory. Examined from that angle, in so far as we have held, the Notification dated 1st December, 2009, Office Memorandums dated 18th May, 2012, 24th June, 2013 and 24th December, 11 2013, except to the extent they have been quashed as above by us, are valid and would be enforceable against even the existing mining lease holders. They cannot be permitted to destroy the environment and ecology for their personal gains on the strength of the contention that they are existing units and these Notifications, Office Memorandums would not apply to them. State of Karnataka has already given a one year time to the existing mine lease holders to comply with the requirements of obtaining Environmental Clearance. Similarly, the State of Rajasthan 84 and Himachal Pradesh should also direct the existing mine lease holders to take Environmental Clearance, irrespective of their area of mining. The Hon'ble Supreme Court in the case of Deepak Kumar (supra) has clearly directed that the miners possessed of mining area of less than 5 hectares cannot operate without taking Environmental Clearance. This would unexceptionally apply to the new units, but, in our considered view, would also apply to the existing mine lease holders as well; except that they would have to be given time to comply with the requirements of law." 8. In view of the above stated principles, we are of the considered opinion that the appellant has no case for validly challenging the order dated 13th August, 2014. The appellant cannot take advantage of his own wrong conduct, which is in violation to the laws in force at the relevant time. We are in complete agreement, though, for different reasons, which we have afore-recorded, with the conclusion arrived at by the Appellate Authority in the impugned order dated 13th August, 2014......."
17. It is also stated that as a matter of fact, brick kiln in question does not satisfy siting criteria under Brick Kiln Siting Criteria Rules, 2012 since it was established in accordance with the guidelines of Zilla Panchayat, Gonda, applicable before implementation of the said Rules.
18. A similar stand has been taken by State of U.P through its response dated 05.08.2024, wherein judgment of Tribunal dated 07.05.2015 in M/s Jai Hanuman (supra) has been relied and it is stated that the brick kilns which did not have a valid CTO/CTE from UPPCB prior to enactment of Brick Kiln Siting Criteria Rules, 2012 need to fulfil the siting criteria enumerated in Brick Kiln Siting Criteria Rules, 2012. 12
19. Therefore, it is evident that the brick kiln was established in 2011 as per relevant provisions applicable at the relevant time. Brick Kiln Siting Criteria Rules, 2012 nowhere shows that it is operating with retrospective effect or apply to the brick kilns which were already established and operated validly. This Tribunal has already taken a view that those brick kilns which did not have valid consent prior to the enforcement of Brick Kiln Siting Criteria Rules, 2012 will be required to satisfy the siting criteria prescribed under Rules, 2012.
20. In these facts and circumstances, in our view, the brick kiln in question cannot be restrained from functioning only on the ground of non-compliance of siting criteria under Brick Kiln Siting Criteria Rules, 2012.
21. So far as CTO is concerned, it is evident from record that the respondent 4 has already got it from UPPCB. However, presently it is non-functional. We accordingly direct UPPCB to inspect and verify compliance of consent conditions by brick kiln in question whenever it starts operation, by visiting brick kiln when it is functional and if any violation is found, it will take forthwith appropriate, punitive, preventive, prohibitive and remedial action in accordance with law.
22. With the above observations, this Original Application is disposed of.
Sudhir Agarwal, JM Dr. Afroz Ahmad, EM August 22, 2024 Original Application No. 456/2023 AB 13