National Green Tribunal
Radhashyam Sahoo vs State Of Odisha on 7 September, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No.109/2020/EZ
(I.A. No.66/2021/EZ, I.A. No.162/2022/EZ &
I.A. No.163/2022/EZ)
IN THE MATTER OF:
Radhashyam Sahoo,
S/o Harekrushna Sahoo,
Aged about 55 years,
At/PO- Mahammadnagar Patna,
PS-Jaleswar, Dist-Balasore,
Odisha-756086
....Applicant(s)
Versus
1. State of Odisha
Represented by Additional Chief Secretary,
Forest and Environment Department,
Government of Odisha, Kharbela Bhawan,
Bhubaneswar, Odisha-751001
2. District Collector, Balasore
AT/PO/Dist.-Balasore, Odisha-758001
3. Tehsildar, Jaleswar
At/PO/Dist.-Jaleswar, Odisha-756001
4. Member Secretary, Odisha State Pollution Control Board
A/118, Unit-VII, Nilakantha Nagar,
Bhubaneswar, PIN-751012, Odisha
5. Member Secretary,
State Environment Impact Assessment Authority (SEIAA),
Odisha,
5RF-2/1, Acharya Vihar, Unit-IX,
Bhubaneswar, Odisha-751022
1
6. Mining Officer,
Baripada Circle, Baripada, 757001
7. The Secretary,
Ministry of Environment, Forests and Climate Change
(MoEFCC),
Indira Paryavaran Bhawan, Jorbag, New Delhi-110003
8. The Member Secretary,
Central Pollution Control Board,
Parivesh Bhawan, East Arjun Nagar,
Delhi-110032
9. Himanshu Sekhar Sahoo
S/o Jhadeswar Sahu,
Proprietor of M/s Devee Bricks
At/PO- Mahamadnagar Patna,
Jaleswar-756086
10. Jagannath Das
S/o Trilochan Das, Proprietor,
M/s Shanti Bricks Alias Sakhi Bricks
At/PO-Mahamdnagar Patna,
Jaleswar
11. Manmohan Chand
S/o Girish Chandra Chand,
M/s Devee Bricks,
At/PO-Mahamadnagar Patna,
Jaleswar
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Sankar Prasad Pani, Advocate
COUNSEL FOR RESPONDENTS:
Mr. Saubhagya Ketan Nayak, AGA for R-1, 2, 3 & 6,
Mr. Dipanjan Ghosh, Advocate for R-4,
2
Mr. Gora Chand Roy Choudhury, Advocate for R-5,
Mr. Soumitra Mukherjee, Advocate for R-7,
Mr. Surendra Kumar, Advocate for R-8,
Mr. Somnath Roy Chowdhury, Advocate a/w
Ms. Arpita Chowdhury, Advocate for R-10 & 11
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On: - 24th August, 2022 Pronounce On: - 7th September, 2022 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. This Original Application has been filed by the Applicant with the allegation that illegal brick clay earth mining and illegal operation of two brick kilns Devee and Shanti (also referred to as Sathi) in Mahammadnagar Patna, Jaleswar Tehsil, District Balasore, Odisha is being carried on in close proximity (within 100 meters) of human habitation, Anganwadi and agriculture fields, without Consent to Establish from the Odisha State Pollution Control Board. The Applicant claims to have filed complaint with the District Magistrate and the Tahasildar but no action has been taken. The Applicant has relied upon order of the Environment Department, Odisha Government dated 06.12.2015 laying down the siting norms for location of brick kilns beyond prescribed distance 3 from railway lines, National and State Highways, High Tide Line, places of worship, Educational Institutions, Hospitals, and Health Care Centers, flood embankments, river bank and periphery of a town. The Applicant has also filed a copy of the directions issued by the Central Pollution Control Board dated 27.06.2017 as follows: -
"1. All the brick kilns operating without permission and valid consent from SPCBs, not meeting prescribed norms and siting guidelines be closed down with immediate effect.
2. Provide status on conversion of natural draft to induced draft brick kilns (with rectangular kiln shape and zig-zag brick setting).
3. Enforce strictly the siting criteria guideline for brick kilns.
4. All the moving area around the main brick kiln should be paved with the bricks to minimize the fugitive dust emissions from the brick kiln operations. This condition should be incorporated in the Consent condition while granting the consent by the respective State Boards.
5. Ensure that fine dust does not accumulate all around the Brick kiln."
3. The Tribunal further directed the Odisha State Pollution Control Board to look into the matter and take remedial action.
4. The Tribunal also constituted a Joint Committee comprising
(i) Odisha State Pollution Control Board;
(ii) State Environment Impact Assessment Authority (SEIAA), Odisha; and 4
(iii) District Magistrate, Balasore, to inspect the site of the brick kiln in question and file Status Report in the matter.
5. In pursuance thereof, a Joint Verification Report has been filed by the Odisha State Pollution Control Board of an inspection carried out on 16.04.2021 when the Committee visited the Sathi Brick Kiln-Unit and nearby areas. The Joint Verification Report is being reproduced herein below: -
"Joint verification report of in the matter Radhashyam Sahoo Vs State of Odisha & Ors.
(Original Application No.109/2020(EZ) dated 03.03.2021) 1.0 Background:
With reference to Hon'ble NGT order dated 03.03.2021 in the matter of O.A. No. 109 of 2020 (EZ) titled Radhashyam Sahoo Vs State of Odisha & Ors. (copy enclosed as Annexure I), the applicants have alleged against illegal brick clay earth mining and illegal operation of two brick kilns Devee and Sathi in Mahammadnagar Patna, Jaleswar Tahasil, Dist Balasore, Odisha in close proximity (within 100 meters) of human habitatioin, Anganwadi and agriculture fields without Consent to Operate (CTO) from SPCB, and Environmental Clearance (EC) from SEIAA. Also allegation that the brick kilns locate beyond prescribed distance from railway line, National and State Highways, High Tide line, place of worship, educational institutions, hospital, and health acre centres, flood embankments, river bank and periphery of a town. In view the allegations it was directed by the Hon'ble NGT (Principal Bench, New Delhi that "the allegations need to be first 5 looked into by a joint committee comprising of State PCB, District Collector and SEIAA, Odisha.
In view of the above a committee comprising of following authorized officials jointly visited the Sathi Brick Kiln Unit and nearby areas on dtd.
16.04.2021:
Sl. Name Designation Organization No. i. Sri K. Collector & Govt. of Sudarshan District Odisha Chakrabarthy, Magistrate, IAS Balasore ii. Er. Narottam Regional Sate Pollution Behera Officer Control Board, Balasore, Odisha iii. Dr. Pradeepta Environmental SEIAA, Kumar Nayak Scientist Bhubaneswar At the time of inspection following persons along with villagers of Mahammadnagar Patna Villages were also present:
Sl. Name Particulars
No.
i. Sri Nilu Mohapatra Additional District
Magistrate, Balasore
ii. Sri Khirod Kumar Tahasildar, Jaleswar
Panda
iii. Sri Manas Kumar R.I., Sadar, Jaleswar
Behera Tahasil
iv. Sri Himanshu Sekhar Brother of brick kiln
Sahoo unit owner Sri
Sudhansu Sekhar
6
Sahoo
v. Sri Anil Barik Asst. Engineer, SPCB,
Balasore
2.0 Present Status of the allegation as observed The inspecting team made assessment of the present status of issues/ allegations made by the applicants (point no. 1 to 25 page no 6 to 12 of the applications) which are tabulated below:
Point Issues raised in the Present status as No. petition observed by the committee
1. That the petitioner is a 1. NOC issued by resident of Mahammad Collector& District Nagar Patna Village in Magistrate, Balasore District. The Balasore vide letter petitioner is espousing no. 369 dtd.
the larger issue of 29.03.2011 for illegal operation of brick construction of kilns and pollution Brick Kiln Unit over caused by such units in khata no. 310, plot close proximity of no. 291/1615, Anganwadi centre. He kissam-Gharabari, is concerned about the over lease area Ac-
ecology of the area and 0.50dec in the the impact of illegal, name of Sri unscientific and Jagannath Das At-
unsustainable brick Po-Mahamnmad clay mining and Brick Nagar Patna (Copy Kiln, endangering the attached).
safety of local villagers,
2. No objection causing serious air certificate was pollution granted on the basis of plot no.
7
291/1615, Khata
No. 310 over lease
area Ac 0.50 dec.
of village
Mahammadnagar
Patna, at present it
is recorded in
Khata no. 420/126
of village M.N.
patna recorded in
the same name of
Sri Trilochan das
S/o- Bhuban Ch.
Das.
3. Consent to Operate
was issued by
SPCB, Balasore
vide letter no. 949
dtd. 30.07.2012
which was valid
up to 31.03.2017.
4. Environmental
Clearance (EC) has
not been granted
so far for
excavation of Brick
Earth materials to
this Brick Kiln unit.
5. On the day of
enquiry it is found
that the Brick Kiln
Unit was in
operation. Order
8
has been
communicated to
the owner of the
Brick Kiln Unit to
close the unit
presently with
immediate effect
vide Tahasil office
Jaleswar letter no.
1478 dtd
16.04.2021.
2. That the manufacturing Agreed
the brick consist of the
following 4 operations
or steps such as
Preparation of brick
clay or brick earth,
Moulding of bricks, Air
drying of bricks and
Burning of bricks. The
manufacturing process
of bricks essentially
involves the mining of
minor minerals like soil
and sand. Soil mining
leads to the depletion of
fertile upper stratum of
the earth crust along
with a wide spectrum
of micro flora and
fauna. Soil mining on a
large scale may change
the land use pattern
and adversely affects
9
the agricultural
activities. A large
amount of local coal is
consumed in the firing
of bricks that results in
the emission of various
harmful gases in the
atmosphere such as
particulate matter (PM),
carbon monoxide (CO)
and sulphur dioxide
(SO2).
3. It is humble submitted 1. In this case no EC
that the respondent was obtained from
brick kiln Units are SEIAA, Odisha for
mining and procuring mining of Brick
the Brick Clay from Earth Clay from
sources without sources.
environmental 2. Consent to
clearance and then Operate (CTO) was
after burning the same obtained from
in coal fired kiln which SPCB, Balasore
do not have consent vide letter no. 949
from the state pollution dtd. 30.07.2012
control board. which is valid up
to 31.03.2017 for
operation of brick
kiln Unit but not
for mining of Brick
Earth clay from
sources.
4. The process involve in Agreed
the brick kilns is such
that if appropriate
10
measures are taken, it
may lead to pollute air
and besides impact on
land, soil, flora and
fauna, hence it has
been categorized as
"RED" category
industry by the Board.
It is, therefore,
mandatory that brick
kiln unit must adopt
appropriate measure to
prevent/control
discharge of pollutant
in the air and must also
have adequate
arrangement to control
the particulate matter
in the premises of the
unit itself.
5. That any project Agreed, the lessee
proponent intending to was obtained
establish a brick kiln Consent to Operate
unit must seek prior from SPCB, Balasore,
consent to establish for running the said
under Air (Prevention unit vide letter
and Control of no.949 dtd.
Pollution) Act, 1981 30.07.2012.
before taking any step
for establishing the
industry. Likewise,
after establishing the
brick kiln, the project
proponent must seek
11
prior consent to operate
before commissioning
the plant.
6. The State board has Agreed
delegated powers to
Regional Officers of the
Board to grant or refuse
applications for consent
to establish and
consent to operate
submitted under the
provisions of Air
(Prevention & Control of
Pollution) Act, 1981 for
the brick kilns.
However, when a
consent application is
refused by Regional
Officer, the decision on
the application
submitted
subsequently is taken
by the Head Office.
7. That the Applicant has The lessee was
filed an RTI Application obtained CTO from
to Regional Office of SPCB, Balasore for
SPCB at Balasore running the Brick
whether Devi and Kiln Unit vide letter
Shanti Brick Kilns have no.949 dtd.
been granted Consent 30.07.2012.
to Establish to Operate
the unit. The reply from
the board dated
12/10/2020 has
12
asserted that No
information relating to
NOC and Consent is
available in their office.
Copy of RTI reply dated
12/10/2020 is
Annexed here as
Annexure-I.
8. That the Units are 1. The Anganwadi
operating in close Centre Is Located
proximity that is within Very Closed to
100 mtres from Devee Brick Kiln
Anganwadi centre and Unit But Not Sathi
Human habitation Brick Kiln Unit.
endangering the health
of the children going to 2. The Distance
the Anganwadi and Between Brick Kiln
villagers. Further the Unit to
Brick Kilns are also Subaranarekha
within 500 meters from River bank is more
the Subaranarekha than 500 metre.
River bank and same is
not allowed as per the
siting criteria for Brick
Kilns noticed by Govt.
of Odisha. Photographs
dated 27/08/2020 and
30/01/2020 clearly
demonstrated that the
unit is in close
proximity to the
Anganwadi is annexed
here unto as Annexure-
2
13
9. It is humbly submitted Agreed, but this case
that minor minerals no EC obtained for
including soil and sand the brick Earth Clay
required for the Brick mining.
Clay can only be lifted
from the sources where
Environment Clearance
has been granted. Copy
of the MoEFCC Office
memorandum dated
24/6/2013 is annexed
here unto as Annexure-
3
10. That while expressing No comments
serious concern over
the growing number of
illegal brick kilns, the
CPCB Chairman
through his letter dated
27/06/2017 has
asked the Chairman of
all State PCBs to
ensure closer of all
Brick Kilns running
without valid consent
and not adhering to the
prescribed norms. Copy
of letter dated
17/06/2017 is
annexed here unto as
Annexure-4
11. It is humbly submitted Tahasildar, Jaleswar
that the villagers have was asked to take
complained to the necessary steps for
14
authority time and closure of illegally
again about the illegal operated brick kilns
operation of Brick Kilns in his Tahasil
but no action has been jurisdiction at an
taken as on dated. On early date.
07/09/2020, villagers Accordingly,
including the petitioner Tahasildar, Jaleswar
have complained to has issued notice to
Tahasildar, Jaleswar the Owner of the
and District Collector, alleged brick kilns
Balasore but no action units to submit valid
has been taken as on documents/ papers
date. Copy of the in support their brick
complaint petition kiln Units.
dated 07/09/2020 is Accordingly, they
annexed here unto as have produced the
Annexure-5. Sitting Criteria
Certificate and
Consent order from
State Pollution
Control Board,
Balasore. It is
observed that the
CTO issued by State
Pollution Control
Board was valid up
to 31.03.2017. As
per the report of the
Tahasildar, Jaleswar
though both of the
Owner Sitting
Criteria certificates,
still they were
violating the sitting
criteria norms and
15
have been penalized.
During joint
inspection on dated
16.04.2021 it was
found that the Sathi
Brick Kiln Unit has
not obtained EC and
Valid CTO so,
immediately closer
notice was issued by
Tahasildar vide letter
no. 1478 dtd.
16.04.2021.
The RO SPCB,
Balasore has issued
show caused notice
to the unit on dtd.
23.04.2021.
12. The applicant submits During joint
that the Brick Kilns use inspection Sri
to illegally lift soil from Trilochan Das father
the open areas of brick kiln unit
surrounding the Kiln owner Sri Jagannath
where water gets Das has stated that
stagnant and becomes the Earth Clay for
breeding ground for bricks are collected
mosquitoes and spread from his own land
malaria and dengue in along with other
the locality. Further the agricultural land
coal dust use to spread with permission of
on the surrounding landlord but no EC
houses and trees obtained for lifting of
polluted the entire area earth clay materials.
and people are
16
suffering from various
diseases.
13. The units are operating The Tahasildar,
illegally for years Jaleswar has
together and the mentioned that the
Tahasildar, Jaleswar total Rs.2,90,580/-
use to collect some has been collected
penalty each year and for Royalty & Penalty
thereby allowing the for the year 2018-19
units to run instead of to 2020-21 for illegal
closing such units for operation of the Brick
want of EC and CTO. Kiln Unit.
14. The private Agreed
Respondents use to
collect the Soil from
different places
randomly and through
intermediary from
sources that do not
have any
environmental
clearance as required
under EIA Notification.
Further those sources
area also not identified
and placed in DSR as
required.
15. That the Government of No comments
Odisha was pleased to
constitute a committee
for formulating an
action plan for banning
KB Brick
manufacturing in
17
phased manner to
promote the use of fly
ash bricks in the State
as follows: 1.
Secretary, Works
Department Chairman,
2. Representative of
ACS, Revenue & DM,
Deptt. Member, 3.
Representative of
Member Secretary,
SPCB, Terms of
Reference of the
Committee will be to
formulate an action for
banning Kiln Burnt
Brick manufacturing in
phase manner taking
into account availability
of fly ash bricks. Copy
of Gazette notification
dated 11.06.2014 is
annexed here unto as
Annexure-6.
16. That there has been no No comments
action plan in regard to
phasing out of Kiln
Bricks even though a
committee is
constituted since 2014
indicates the
government is not at all
serious about the
Pollutions due to Brick
18
Kiln.
17. The Forest and Agreed
Environment Dept.,
Govt. of Odisha in
exercise of the powers
under section 5 of the
Environment
(Protection) Act, 1986
and the Rules framed
there under, in its order
dated 06/12/2005
required the persons
framed carrying on the
operation of brick kilns
in the State to comply
with the directions
indicated therein. The
relevant parts of the
said directions are
quoted hereunder.
"............2. No brick
kiln unit shall be
allowed on forest land
or on prime agricultural
land. 3. No brick kiln
unit shall be
established within 500
meters from Railway
lines, national and
State Highways, Hide
tide line, places of
worship, Educational
institutions, hospitals
and health care centre.
19
4. No brick kiln unit
shall be established
within 250 meters of
flood embankments.
Wherever flood
embankments do not
exist, no brick kiln unit
shall be established
within 500 meter from
the nearest river bank.
5. No new brick kiln
unit shall be located
within a distance of
5kms from the
periphery of a town
with a population of
more than one lakh and
2kms from the
periphery of a town
with a population
between 50,000 to
1,00,000. Copy of the
Notification issued by
Forest and
Environment Dept.
dated 06/12/2005 is
annexed here unto as
Annexure-7
18. It is further submitted Agreed
that for grant of
Environmental
Clearance of Brick Clay
following requisites
area necessary such as
20
form 1M Pre-Feasibility
Report (PER), Mining
Plan duly stamped by
RQP, EMP, Affidavit,
Location Map. Google
Map (500m Radius,
Survey Maps, Land
documents (Agreements
and Khatauni). Site
Photographs and after
appraisal at SEAC, EC
is being issued. Here
the units do not comply
with any of the norms.
19. That though there is a Several
clear direction given to correspondences
all Collectors/Sub- have been made
Collectors and from the Office of the
Tahasildar by the Collector & District
Revenue & Disaster Magistrate as well as
and Management from Sub-Divisional
Dept., Govt. of Odisha Magistrate i.e. Sub-
vide letter dtd. Collector's Office
25.06.2013 as regards directing to the
the guideline Tahasildars for
prescribed by the closure of the
Forest and illegally operated
Environment Dept. for brick kiln unit
carrying on the violating the
operation of brick kilns, Guideline issued by
the said direction has Forest and
not been carried out in Environment Deptt.
its true sense by the In compliance to the
respondent units. The above directions, the
21
said letter has Tahasildars of the
observed that though District including
Tahasildars in some Tahasildar, Jaleswar
cases are realizing have taken action for
penalty and rent from closure of the
encroachers as a illegally operated
deterrent measure to brick kiln units.
prevent the recurrence, Heavy penalties
the owners of brick kiln have been imposed
unit continue with their against the
business in gross defaulters. The
violations of prevailing petitioner has
laws. admitted that
The said letter penalties have been
further says that the imposed against the
District Collector should defaulters by the
review the Scenario in Tahasildar,
the district and take Jaleswar. So, order
steps for irritation of of the Govt. in
Criminal Prosecution Revenue and
against the Offenders Disaster
under Environmental Management Deptt.
Protection Act 1986. Has not been
Copies of Revenue & violated at this end.
disaster and
management dept.
Govt. of Odisha vide
letter dtd. 25/06/2013
as Annexure-8.
20. It is humble submitted During joint
that in the present verification the
instance, the District Collector, Balasore
Collector, Balasore and has given order to
the Tahasilder, the Tahasildar,
22
Jaleswar have failed to Jaleswar to close
discharge the statutory down the Sathi Brick
duties and carry out kiln Unit as to EC
the Government Order and CTO obtained.
despite of various The Tahasildar,
complaints about Jaleswar has issued
ongoing violation by the a closer notice vide
brick kiln units brought letter no. 1476 dtd.
to their notice and 16.07.2021 for Sathi
thereby wilfully Brick Kiln Unit.
violation the
Government Order. The RO SPCB,
Balasore has issued
show caused notice
to the unit on
dtd.23.04.2021.
21. That the above- No comments
mentioned private
respondents are
habitually engaged in
manufacturing and sale
of Clay Bricks in open
market, which is
believed to be illegal
stolen property as per
provision of Law. By
operation of such brick
kilns, prime agricultural
lands are losing its
fertility and becoming
redundant and these
lands cannot be used
for growing any other
useful crops in the
23
future.
22. By operation such kilns During inspection it
without following the was found that the
provisions as laid down unit was in operating
under section 17(1) (g) condition and the
and 21 of the Air villages are located
(Prevention and Control more than 500m
of Pollution) Act, 1981 from the unit except
day by day the some labour camp
environment is getting are located near the
polluted and this will brick kiln unit i.e.
have an adverse around 100m.
impact on the
surrounding so far the
health of the people
residing in the
surrounding area is
concerned.
23. Such brick kiln owners No comments
are earning huge profit
margin and in turn the
Government is losing
its revenue which
adversely affects the
State exchequer. The
offenders are freely
doing their business by
violating the statutory
norms and notifications
presented for the same.
24. That the Hon'ble NGT Agreed
has put a ban
nationwide against the
brick earth mining
24
without EC from the
competent authority.
Further Hon'ble
Tribunal has called for
a impact study of
different types of brick
kilns, their respective
source emission based
on fuel usage, their
impact on degradation
of top soil, carrying
capacity assessment,
including the number of
brick kilns, evaluate
their performance
against background
pollutant concentration
and carrying capacity
of the area, and assess
the impact of their
operation on ambient
air quality.
25. That Hon'ble NGT, East No comments
Zone in OA No.31/2015
(Bishnu Prasad Mishra
Vs State of Odisha) has
imposed Rs.5,00,000/-
penalty as
Environmental
Compensation to be
collected from the Brick
Kiln units operating
without valid CTO and
CTE
25
Overall observations:
• The Unit was in operation condition during joint inspection.
• It has been observed that the Sathi Brick Kiln Unit is located at a distance of more than 500m from Subaranarekha River bank, more than 500m from nearest Villages • The Devee Brick Kiln Unit started their operation in the year 2001 by Sri Jagannath Das after obtained NOC from Collector & District Magistrate, Balasore • The lessee obtained CTO from SPCB, Balasore for running the Brick Kiln Unit vide letter no.949 dtd. 30.07.2012 which was valid up to 31.03.2017 then no CTO obtained. In this connection the Regional Officer (RO) SPCB, Balasore has issued show caused notice to the unit on dtd. 23.04.2021.
• No EC & CTO obtained for mining of earth clay for running Sathi Brick Kiln Unit.
• During joint verification the Collector, Balasore has given order to the Tahasildar, Jaleswar to close down the Sathi Brick Kiln Unit as no EC and CTO obtained. The Tahasildar, Jaleswar has issued a closer notice vide letter no. 1476 dtd. 16.04.2021 for Devee Brick Kiln Unit.
Recommendations:
In view of the above it is recommended as follows:
o The Lessee has to obtain both EC & CTO for mining of Brick earth Clay for running Sathi Brick Kiln Unit and operation the unit.
o The lessee shall not operate the unit/mining out the earth clay material unless obtained valid CTO and EC from concerned Authority.
26
6. However, since the Inspection Report was confined to only one brick kiln, this Court vide its order dated 02.07.2021, directed the Odisha State Pollution Control Board to file its Report with regard to Devee Brick Kiln also indicating in the Report whether these two brick kilns have been closed or not since it is established from the first Report of the Committee that Sathi Brick Kiln-Unit has not obtained Environmental Clearance and valid Consent to Operate (CTO) and the State Pollution Control Board has also issued a letter for closure of the Unit, dated 16.04.2021, but the Report is silent on the question as to whether the Unit has been closed and whether criminal proceedings have been initiated against the violators of environmental norms.
7. Mr. Saubhgya Ketan Nayak, learned Additional Government Advocate appearing for the State Respondents, stated that criminal action has already been initiated against the Respondent No.10, Jagannath Das, Proprietor of M/s Shanti Bricks alias Sakhi alias Sathi Bricks, At/PO-Mahammadnagar Patna, Jaleswar.
8. Mr. Somnath Roy Chowdhury, learned Counsel representing Respondent No.10 stated that a sum of Rs.1,00,000/- (Rupees One lakh only) by way of penalty and Environmental Compensation has been imposed against he said respondent for operating the Unit without having any renewal of Consent to Operate (CTO) which had expired on 31.03.2017 and under the order of the Tehsildar he has again been directed to pay a fine of Rs.2,00,000/- (Rupees Two lakhs only) on the grounds of transportation of dust without 27 permission. The learned Counsel submitted that the Respondent No.10 had been put to double jeopardy.
9. The Tribunal therefore, vide its order dated 07.10.2021 directed that the order of the Tehsildar, Jaleswar dated 21.08.2021 shall remain in abeyance.
10. Affidavit dated 03.08.2021 has been filed by the Applicant, disputing the Joint Verification Report and it is stated that both the brick kiln-Units in question are located within 200 meters of the residential area including Sani Temple and Baba Nilakantheswar Temple are located within 500 meters of the brick kilns. It is also stated that the brick kiln is only 300 meters from the Subarnarekha River and Human Habitation is only 100 meters including the residential house of the brick kiln owner himself and prime agricultural land is within 200 meters. A dispensary is situated within 3 kms, a Kubadia Ashram School (residential) is only 800 meters away and Jaleswar Patana UP School and Ramachandra ME School is within 1 km and Jaleswar town is only 4 kms and the Jhadeswarpur Ward No.1 is only 3 kms from the Units and Gadamuhan Sahi (Tribal hamlet) is only 300 meters from the brick kilns.
11. The District Collector, Balasore has filed counter-affidavit dated 04.08.2021 stating therein that NOC for setting up of the Brick Kiln-Unit over Khata No.310, Plot No.291/1615, Kisam-
Gharabari, for an area of Ac. 0.50 dec. was granted in favour of Respondent No.10, Jagannath Das, Proprietor of M/s Sathi Brick 28 Kiln. However, at present the said plot is found to be recorded in M.S. Khata No.420/16 of Village Mahammadnagar Patna, recorded in the name of one Trilochan Das. Consent to Operate (CTO) was granted to the Brick Kiln by the State Pollution Control Board, Balasore vide letter dated 30.07.2012 valid upto 30.03.2017 but Environmental Clearance has not been granted for excavation of Brick Earth Material to Respondent No.10. However, on the date of enquiry i.e. 03.03.2021, the said Brick Kiln of Respondent No.10 was found to be in operation, therefore, immediately an order was issued to the owner of the Brick Kiln to stop operation with immediate effect vide Tahasildar, Jaleswar letter dated 16.04.2021.
12. Similarly, in the case of Respondent No.9, M/s Devee Brick Kiln, it is stated that initially the Tahasildar, Jaleswar had issued NOC for construction of fixed chimney over Khata No.420/45, Plot No.346/1465, area Ac. 0.63 dec. of Village Mahammadnagar Patna, in favour of Sudhansu Sekhar Sahoo, Respondent No.9. Consent to Operate (CTO) was issued by the State Pollution Control Board, Balasore vide their letter dated 30.04.2016 valid upto 31.03.2021. Environmental Clearance (EC) however, had not been granted for excavation of Brick Earth Material to Respondent No.9, Unit. At the time of enquiry on 03.03.2021, it was found that though the NOC was issued for Khata No.420/45, Plot No.346/1465 but the Unit was located over Khata No.427/7, Plot No.346/1465/1567 and 346/1465/1572 recorded in the name of Sudhansu Sekhar Sahoo. 29
13. In the affidavit of District Collector, Balasore, it is stated that an Anganwadi Centre is located very close to M/s Devee Brick Kiln, Respondent No.9, Unit i.e. 150 meters away. Enquiry made from Sudhansu Sekhar Sahoo, revealed that the Anganwadi had been built on the land donated by his brother on the request of the villagers of Mahammadnagar Patna in 2016 through villager's resolution dated 06.03.2016 and Registered Gift Deed was also executed being Registered Deed No.91601493 dated 22.07.2016 showing Ac. 0.02 dec. out of Ac. 0.030 dec. pertaining to Plot No.334, Khata No.420/45(ka) of Mouza-Mahammadnagar Patna being donated in favour of the Child Development Project Officer, Jaleswar. In this view of the matter, orders were issued by the Office of the Tahasildar, Jaleswar dated 16.04.2021 to close down the Unit.
14. Disputing the contentions of the Applicant, it is stated by the District Collector, Balasore, that M/s Sathi Brick Kiln Unit, Respondent No.10 is situated more than 500 meters from the Subarnarekha River but the Aganwadi Centre is located 150 meters away from M/s Devee Brick Kiln Unit, Respondent No.9. It is also stated that for illegal extraction of earth from the plots in question Rs.2,90,580/- (Rupees Two lakhs ninety thousand five hundred eighty only) and Rs.2,83,230/- (Rupees Two lakhs eighty-three thousand two hundred thirty only) has been recovered towards royalty and penalty for the year 2018-19 to 2020-21 from M/s Sathi Brick Kiln Unit, Respondent No.10 and M/s Devee Brick Kiln Unit, Respondent No.9 respectively by the Respondent No.3, Tahasildar, 30 Jaleswar. It is further stated that during the inspection visit the villages were found to be located more than 500 meters from the M/s Sathi Brick Kiln Unit, Respondent No.10, except that some labour camps are located at a distance of around 100 meters. M/s Devee Brick Kiln Unit, Respondent No.9 was not in operation at that time. However, since the Respondent No.10, Unit was still operating the Brick Kiln therefore, FIR was lodged against the Respondent No.10 in the Jaleswar Police Station being P.S. Case No.0262/2021 under Section 188 IPC, Rule 51 of Orissa Minor Minerals Concessions Rules, 2016 and under Section 15 of Environment (Protection) Act, 1986. Documents in support of the averments have been filed along with the affidavit of the District Collector.
15. The Respondent No.4, Odisha State Pollution Control Board, has filed its affidavit dated 23.08.2021, stating therein that the Brick Kilns fall in Category-D i.e. those that had not obtained Consent to Operate (CTO) but has been operating without consent. Those Brick Kilns which had at some point of time obtained Consent to Operate (CTO) but the same had expired and were operating without renewal of the Consent to Operate (CTO) fell in Category-C. Penalty for Category-C Units was Rs.1,00,000/- (Rupees One lakh only) and those falling in Category-D was Rs.1,50,000/- (Rupees One lakh fifty thousand only). It is stated that since the Respondent No.10 Unit, was operating in spite of the fact that its Consent to Operate (CTO) had expired on 31.03.2017 and it fell in Category-C, therefore, Environmental Compensation of 31 Rs.1,00,000/- (Rupees One lakh only) was imposed against the Respondent No.10, Unit vide State Pollution Control Board letter dated 13.08.2021. In this context, it is stated that the Respondent No.10, Unit had deposited a sum of Rs.1,00,000/- (Rupees One lakh only) with the Regional Officer, Balasore vide Bank Draft DD No.806578 dated 17.08.2021. It is further stated that both the Units are not operating now and they have been ordered not to resume operation till Consent to Operate (CTO) is issued by the State Pollution Control Board under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and Section 25 of Water (Prevention and Control of Pollution) Act, 1974.
16. The Respondent No.10, Private respondent, in his affidavit dated 31.08.2021 has only confirmed that he had a Consent to Operate (CTO) issued by the Odisha State Pollution Control Board on 30.07.2012 valid upto 31.03.2017. He has also admitted that he has deposited Rs.1,00,000/- (Rupees One lakh only) with the Regional Officer, Balasore vide DD dated 17.08.2021. The affidavit is however, silent with regard to illegal operation of the Brick Kiln for the period after expiry of the Consent to Operate (CTO) and for operating the Unit without Environmental Clearance.
17. A further affidavit dated 01.06.2022 has been filed by Respondent No.4, State Pollution Control Board, Odisha, stating therein that during the visit of the inspection team of the site in question, M/s Sathi Brick Kiln, Respondent No.10, was found closed and in a defunct condition and there was no production of 32 Green Brick or Kiln Burnt Bricks. M/s Devee Bricks, Respondent No.9 was found closed and in a defunct condition and nobody was present in the Unit.
18. Along with the affidavit, the Inspection Report of an inspection carried out on 05.05.2022 has been filed with regard to M/s Devee Bricks. The Observations and Recommendations & Conclusion of the Inspection Report reads as under: -
"During inspection following observations were made:
1. It is a Fixed Chimney Clay Bricks manufacturing unit coming under Orange category, operated in Plot No.346/1465 Khata No-420/45 At-Mahammednagar Patana Dist-Balasore having a total area of Ac.0.63 Dec. as per the record available in this Office.
2. The unit had obtained consent to operate from the Board for production of 3.0 Lakhs/Month of kiln burnt bricks and the CTO was valid up to 31.03.2021 and there is no valid CTO for further period.
3. During inspection to the Brick kilns on 05.05.2022, the unit was found closed and abandoned condition and no bricks were manufactured.
4. The office room and the labour sheds were also found in abandon condition.
5. During visit Sri Kalia Kisku of village Gadamuha, intimated that the Brick kiln is closed since one year.
6. It is pertinent to mention here that, in compliance to the order dated 03.03.2021, of the Hon'ble NGT, Principal Bench, New Delhi, in the above mentioned 33 O.A. No. the Brick Kiln Unit was inspected by the joint committee constituted by the Hon'ble NGT, comprising of the Collector & District Magistrate Balasore, the Environmental Scientist, SEIAA,Odisha and the Regional Officer, SPCB, Balasore on 16.04.2021.
7. During the joint visit, the Collector & District Magistrate ordered to the Tahasildar Jaleswar to close down the Devee Bricks. The Tahasildar Jaleswar had issued a Closure Notice vide their Letter No.1476 dated 16.04.2021 to M/s Devee Bricks.
8. Also the Regional Officer SPCB, Balasore, has issued a Letter videNo.865 dated 23.04.2021 to stop operation of the unit until obtain of CTO from the Board.
9. From the present peripheral condition, it is revealed that the unit is not in operation since, issuance of Closure Notice by the Tahasildar Jaleswar, & issuance of Letter by Regional Officer, SPCB, Balasore.
Recommendations & Conclusion: -
1. During visit M/s Devee Bricks was found closed and defunct condition and nobody was present in the unit.
2. The photographs filed at page no.257 to 259 filed as Annexure-1 to the I.A by the Applicant is not correct.
3. Some photographs taken during visit are given below for ready reference."
The Inspection Report is supported by photographs which does not show the Brick Kiln to be in operation. 34
19. Similarly, another Inspection Report in respect of M/s Sathi Brick, Respondent No.10, of an inspection carried out on 05.05.2022 has been filed. The Observations and Recommendations & Conclusion of the Inspection Report reads as under: -
"During inspection following observations were made:
1. It is a Fixed Chimney Clay Bricks manufacturing unit coming under Orange category, and was operated in Plot No.291/1615, At-Mahammednagar Patana Dist-
Balasore having a total area of Ac.0.50 Dec. as per the record available in this Office.
2. The unit had obtained consent to operate from the Board for production of 2.0 Lakhs/Annum of kiln burnt bricks and the CTO was valid up to 31.03.2017 and not obtained CTO for further period.
3. During inspection of the Brick kilns on 05.05.2022, the unit was found closed and abandoned condition and no bricks was manufactured.
4. The office room and the labour sheds were also found in abandon condition.
5. During visit Sri Rama Krushna Das, intimated that the Brick kiln is closed since issue of Closure Notice by the Tahasildar, Jaleswar.
6. It is pertinent to mention here that, in compliance to the order dated 03.03.2021, of the Hon'ble NGT, Principal Bench, New Delhi, in the above mentioned O.A. No. the Brick Kiln Unit was inspected by the joint committee constituted by the Hon'ble NGT, comprising of the Collector & District Magistrate Balasore, the 35 Environmental Scientist, SEIAA, Odisha and the Regional Officer, SPCB, Balasore on 16.04.2021.
7. During the joint inspection on 16.04.2021 it was found that the Sathi Bricks was operate without EC and valid CTO of the Board. Hence immediately Closure Notice was issued to the unit by the Tahasildar Jaleswar, vide their Letter No.1478 dated 16.04.2021 to M/s Sathi Bricks.
8. Also the Regional Officer SPCB, Balasore, has issued Show Cause Notice vide Letter vide No.861 dated 23.04.2021 for operation of the unit without valid CTO from the Board. Also another letter issued vide No.1123 dated 04.06.2021, not to resume operation, until obtain of CTO from the Board.
9. From the present peripheral condition, it is revealed that the unit is not in operation since, issuance of Closure Notice by the Tahasildar Jaleswar, & issuance of Letter by Regional Officer, SPCB, Balasore. Only old stacked bricks found kept within the premises.
Recommendations & Conclusion: -
1. During visit M/s Sathi Bricks was found closed and defunct condition and no production of green bricks or kiln burnt bricks observed.
2. The photographs filed at page no.257 to 259 filed as Annexure-1 to the I.A by the Applicant is not correct.
3. Some photographs taken during visit are given below for kind reference."
36
Along with the Report, photographs have also been filed which shows the Unit to be closed.
20. Along with the affidavit, a Certificate of the Office of the Tahasildar, Jaleswar dated 30.08.2005 has been filed which shows that Sudhansu Sekhar Sahoo, is in possession of the applied land and that the land is recorded in the name of Sudhansu Sekhar Sahoo and Manmohan Chand.
21. From the facts on record what emerges is that the two Brick Kilns, Respondent Nos.9 & 10 did not have Environmental Clearance and that the Consent to Operate (CTO) had also expired. M/s Devee Bricks was at one point of time found to be operating the Brick Kiln for which a penalty of Rs.1,00,000/- (Rupees One lakh only) was recovered.
22. The affidavit of the Odisha State Pollution Control Board only mentions Category-C and Category-D and states that in respect of M/s Devee Bricks, Respondent No.9, Rs.1,00,000/- (Rupees One lakh only) has been recovered towards penalty.
23. In view of the above, the Original Application No.109/2020/EZ is accordingly disposed of.
24. There shall be no order as to costs.
I.A. No.32/2022/EZ: -
1. In the meantime, I.A. No.32/2022/EZ was filed by the applicant stating therein that Sudhansu Sekhar Sahoo had died 37 and that during the visit of the inspecting team his brother Himansu Sekhar Sahoo was present. It is also stated that the Unit was operating in a partnership mode with one Manmohan Chand which is reflected in the Inspection Report and therefore, a prayer has been made for allowing the I.A. No.32/2022/EZ and substituting the name of Himansu Sekhar Sahoo in place of Sudhansu Sekhar Sahoo as Respondent No.9 and also impleadment of Manmohan Chand as Respondent No.11. I.A. No.32/2022/EZ was allowed by the Tribunal by order dated 19.04.2022 and notices were issued to Himansu Sekhar Sahoo and the newly added Respondent No.11, Manmohan Chand.
I.A. No.163/2022/EZ: -
1. This Interlocutory Application was filed by Himansu Sekhar Sahoo stating that he has wrongly been impleaded in the Original Application in place of Sudhansu Sekhar Sahoo who had died on 08.11.2020 leaving behind his wife, two sons and one daughter who were his legal representatives as specified in Class-I of the Schedule of Hindu Succession Act, 1956 and the children are all major.
I.A. No.162/2022/EZ: -
1. I.A. No.162/2022/EZ has also been filed by Manmohan Chand newly added respondent stating therein that under a wrong representation made by the Applicant of the Original Application, Manmohan Chand has been impleaded in the array of respondents as Respondent No.11 wrongly stating him to be a partner of M/s Devee Bricks, Mahammadnagar Patna, Jaleswar, although 38 Manmohan Chand was only an employee of M/s Devee Bricks whereas the deceased Sudhansu Sekhar Sahoo was the sole Proprietor of M/s Devee Bricks. The I.A. No.162/2022/EZ has therefore been filed praying for recall of the order dated 19.04.2022 passed in I.A. No.32/2022/EZ and to expunge the name of Manmohan Chand from the array of respondents in the present original application.
2. So far as I.A. No.163/2022/EZ and I.A. No.162/2022/EZ are concerned, we find that the Applicant's, I.A. No.32/2022/EZ had been allowed for substitution of Respondent No.9 and adding the name of Himansu Sekhar Sahoo in place of Sudhansu Sekhar Sahoo on the assumption that the Himansu Sekhar Sahoo was the brother and legal heir of Sudhansu Sekhar Sahoo. However, in the I.A. No.163/2022/EZ the specific case of Himansu Sekhar Sahoo is that he is the brother of Late Sudhansu Sekhar Sahoo but Sudhansu Sekhar Sahoo died leaving behind his wife, two sons and one daughter as his legal heirs and legal representatives of Class-I of the Schedule of Hindu Succession Act, 1956. So far as Himansu Sekhar Sahoo is concerned, it is stated that he falls in Schedule-II of the Class of heirs under the Hindu Succession Act, 1956.
3. The Applicant has filed a reply to the I.A. No.162/2022/EZ and I.A. No.163/2022/EZ and it is stated that even after closure orders were passed, fumes were coming out of the Chimney of M/s Devee Bricks on 08.01.2021 which suggests that the Brick Kiln was in operation even after the death of its proprietor Sudhansu Sekhar 39 Sahoo. It is further stated that Manmohan Chand is the owner of the Brick Kiln along with Sudhansu Sekhar Sahoo and NOC has been issued in the name of Manmohan Chand by the Tahasildar, Jaleswar on 30.08.2005 as joint owner of Plot No.346/1465, Khata No.420/45 on which the Brick Kiln exists and it is alleged that Manmohan Chand is therefore, operating the Brick Kiln even after the death of Sudhansu Sekhar Sahoo. It is however, admitted that heaps of soil have gathered in the premises of M/s Devee Bricks and raw bricks have been prepared but Brick Kiln is not in operation in 2022 and that the bricks prepared in the premises of M/s Devee Bricks are baked in another kiln in the same village.
4. Since, Sudhansu Sekhar Sahoo has admittedly expired during the pendency of the Original Application, the question of legal heirs and legal representatives of Late Sudhansu Sekhar Sahoo needs to be determined according to law as per the Hindu Succession Act, 1956.
5. In this view of the matter, until heirship is determined by the Court of Competent Jurisdiction neither Himansu Sekhar Sahoo nor the wife, two sons and daughter of Late Sudhansu Sekhar Sahoo can be said to be heirs of Sudhansu Sekhar Sahoo (deceased).
6. So far as I.A. No.162/2022/EZ is concerned, this Interlocutory Application has been filed by Manmohan Chand against his impleadment as Respondent No.11 in the array of respondents in the present Original Application. The contention of Manmohan 40 Chand, Applicant, is that he is not the Proprietor of M/s Devee Bricks, Respondent No.9, which was under the sole Proprietorship of Sudhansu Sekhar Sahoo and he was only an employee of Sudhansu Sekhar Sahoo (since deceased).
7. Therefore, a prayer has been made that the order of the Tribunal dated 19.04.2022 be recalled regarding impleadment of Manmohan Chand as Respondent No.11 and to expunge his name from the array of respondents.
8. In our opinion, the question as to whether Manmohan Chand was only an employee of Sudhansu Sekhar Sahoo (deceased) or whether he was the Proprietor of Brick Kiln in question has to be decided by the Court of Competent Jurisdiction.
9. At this stage, it may be appropriate to refer to the Certificate issued by the Office of Tahasildar, Jaleswar dated 30.08.2005 which clearly mentions that the Khata No.420/45, Plot No.346/1465 area Ac. 063 of Village Mahammadnagar Patna stands recorded in the name of Sudhansu Sekhar Sahoo and Manmohan Chand though the Certificate also mentions that Sudhansu Sekhar Sahoo is in possession of the applied land. This certificate is an NOC issued in favour of an Application seeking permission for construction of fixed Chimney for which the Applicant is stated to have deposited a premium of Rs.7,640/-
(Rupees Seven thousand six hundred forty only). 41
10. However, since penalties and royalty in respect of the two Brick Kilns in question has already been deposited these issues have become redundant in the present original application.
11. The I.A. No.162/2022/EZ and I.A. No.163/2022/EZ are accordingly disposed of.
I.A. No.66/2022/EZ: -
1. This Interlocutory Application has been filed by one Harekrushna Sahoo. In this Interlocutory Application, it is stated that the Applicant has been impleaded as Respondent No.10 in the array of respondents. The application has been filed by Jagannath Das. The Prayer in the Interlocutory Application is to direct the Tahasildar, Jaleswar, to recall/quash the order of the Tahasildar dated 21.08.2021. It is stated by the Respondent No.10 that by order dated 21.08.2021, a fine of Rs.2,00,000/- (Rupees Two lakhs only) along with royalty of Rs.772, total Rs.2,00,770/- (Rupees Two lakhs seven hundred seventy only) has been imposed against the Applicant, Jagannath Das (Respondent No.10 in the Original Application) alleging that during inspection the inspecting team found transportation dust of bricks, which were the usufructs of operation of the Brick Kiln, Applicant's Unit, without permission. It is stated by the Applicant that he has deposited Royalty and Water Tax even in 2018-19, 2019-20 and 2020-21. He has also been penalized with Rs.1,00,000/- (Rupees One lakh only) for operating the Unit without having any renewal of Consent to Operate (CTO) which had expired on 31.03.2017. This deposit was made by him in 42 pursuance of the directions given in Original Application No.31/2015/EZ, Bishnu Prasad Mishro Vs. The State of Odisha & Ors.
2. We find force in the submission of the Respondent No.10. This Tribunal by its order dated 07.04.2016 had directed the State Pollution Control Board to create two categories of violators namely Category-C comprising those who had a valid Consent to Operate (CTO) but which had expired and yet the Brick Kiln was being operated without renewal of Consent to Operate (CTO) against whom penalty of Rs.1,00,000/- (Rupees One lakh only) was determined. Category-D were those defaulter Brick Kiln owners who were operating the Brick Kiln without a Consent to Operate (CTO) at all.
3. In the present case, we find that the Respondent No.10, Sathi Bricks had already deposited a sum of Rs.1,00,000/- (Rupees One lakh only) since he fell in Category-C. The determination of penalty was made by the Tribunal since there was no economic data, income or social status of the defaulter Brick Kilns and the amount of penalty has also been deposited by the Applicant of the I.A. No.66/2022/EZ.
4. We, therefore, modify the order of the Tahasildar, Jaleswar dated 21.08.2022 and direct that a quietus be given to the present proceedings by confining the liability of the Respondent No.10 to the amount of Rs.1,00,000/- (Rupees One lakh only) deposited by 43 him by way of penalty. The order dated 21.08.2021 therefore stands modified to that extent.
5. In view of the above, the I.A. No.66/2022/EZ stands disposed of.
........................................ B. AMIT STHALEKAR, JM ........................................ SAIBAL DASGUPTA, EM Kolkata September 07, 2022 Original Application No.109/2020/EZ (I.A. No.66/2021/EZ, I.A. No.162/2022/EZ & I.A. No.163/2022/EZ) MN 44