JUDGMENT Devi Prasad Singh & S.C. Chaurasia, J. - Heard learned counsel for the appellant and learned counsel for the respondents as well as Shri A.K. Verma, learned counsel representing U.P. Pollution Control Board. 2. Since affidavits have been exchanged, with the consent of parties' counsel, we proceed to decide the appeal finally. 3. The plaintiff respondent No.2 who is the resident of village Sahajadpur, Tehsil Unchahar, District Raebareli earlier filed a writ petition No.8814(M/B) of 2009 in this Court which was dismissed by a Division Bench of this Court vide judgment and order dated 18.12.2009 permitting her to approach appropriate forum, since the controversy involves disputed question of facts. 4. The plaintiff respondent who happens to be Pradhan of Gram Sabha possess residence over plot Nos.821, 820 and 818. The respondent U.P. Pollution Control Board had given no objection certificate dated 8.7.2009 to the appellant for establishment of brick kiln keeping in view the licence granted by the Zila Panchayat, Raebareli dated 3.9.2009. 5. The grievance of the plaintiff respondent is that the chimney of the proposed brick kiln has been installed at the distance of hardly 60mtrs. from her residence and also falls within the prohibited distance with respect to abadi. Admittedly, in accordance with Zila Panchayat Rules, the distance of the brick kiln from abadi should be more than 200ms. Subject to the aforesaid backdrop, the plaintiff respondent has filed a regular suit along with application under Order 39 Rule 1 and 2 CPC for grant of temporary injunction. The trial Court has granted temporary injunction to the plaintiff respondent and restrained the appellant to run the brick kiln, hence the appellant approached this Court preferring the present appeal under Order 43 Rule 1(r) CPC. 6. In pursuance to the order dated 17.2.2010, the U.P. Pollution Control Board and District Panchayat and Zila Udyan Adhikari were impleaded as respondents 3 to 5. However, admittedly, they are not party in the pending regular suit. 7. The main thrust of argument of the appellant's counsel is that the plaintiff respondent has constructed a house over agricultural land and hence it cannot be treated as abadi land. No permission has been accorded by the Sub Divisional Magistrate under Section 143 of U.P. Z.A. & L.R. Act declaring the land as abadi land. 7. The main thrust of argument of the appellant's counsel is that the plaintiff respondent has constructed a house over agricultural land and hence it cannot be treated as abadi land. No permission has been accorded by the Sub Divisional Magistrate under Section 143 of U.P. Z.A. & L.R. Act declaring the land as abadi land. Accordingly, the submission of the petitioner's counsel is that since the house of the respondent No.2 is not situated over abadi land, the brick kiln could have been established over agricultural land in question. 8. Other submission of the appellant's counsel is that once the U.P. Pollution Control Board has granted approval, then the appellant has got right to establish the brick kiln. Mr. A.K. Verma, on a query being made by this Court, submits that the U.P. Pollution Control Board has not framed any rules or statutory guidelines with regard to establishment of brick kiln in the State of U.P.. He submits that the gazette notification dated 14.9.1999 issued by the Government of India provides use of fly ash in the brick kiln and accordingly, the U.P. Pollution Control Board ensures that the brick kiln should use fly ash. In the present case, the petitioner uses fly ash for preparation of bricks. It has also been submitted by Mr. Verma that the Government of India has circulated write up for environmental protection and establishment of brick kiln. However, write up has not been made available to the court during the course of hearing. 9. After hearing learned counsel for the parties and particularly, learned counsel for U.P. Pollution Control Board, it is astonishing to note that U.P. Pollution Control Board has not framed any guideline or rules regulating the establishment of brick kiln in the State of U.P. The Air (Prevention and Control of Pollution) Act is of 1981. U.P. Pollution Control Board was established in 1975. Basically, the State of U.P. is an agricultural State where agriculture as well as grove land and forest containing trees predominate the scene. U.P. Pollution Control Board was established in 1975. Basically, the State of U.P. is an agricultural State where agriculture as well as grove land and forest containing trees predominate the scene. Being agricultural State and also keeping in view the fact that the majority of the people are agriculturist and have got grove land containing trees of various varieties which provide fruits and other useful production for the use of people of the State and even transported to outside the State or foreign countries, it was incumbent on the U.P. Pollution Control Board to frame rules or guidelines with regard to establishment of brick kiln in the State of U.P. after obtaining expert opinion and keeping in view the write up circulated by the Government of India. 10. U.P. Pollution Control Board relies upon the guidelines/rules framed by the Zila Panchayat which provides that the brick kiln cannot be established within the distance of 200mtrs from abadi land. Zila Panchayat Rules speak for abadi or grove land. Zila Panchayat is not an expert body to deal with pollution or environmental matters. Now, under the International Conventions for Environmental Protection, to protect the environment and save the society from environmental hazard, it is prime duty of the State to check pollution. It is not only the statutory duty under various enactments but it is also the constitutional mandate to preserve and protect the environment and nothing should be done which may pollute an area or create an environmental hazard for the people. Right to get fresh air, unpolluted water and hygienic condition is fundamental right guaranteed under Art. 21 of the Constitution of India. 11. Hon'ble Supreme Court in the case reported in M.C. Mehta and another versus Union of India and others held that the enterprises which are engaged in hazardous or inherently dangerous activity causing threat to health and safety owes an absolute responsibility for their conduct and they have to ensure that no harm causes to anyone on account of their establishment. Hon'ble Supreme Court in the case reported in M.C. Mehta and another versus Union of India and others held that the enterprises which are engaged in hazardous or inherently dangerous activity causing threat to health and safety owes an absolute responsibility for their conduct and they have to ensure that no harm causes to anyone on account of their establishment. It shall be appropriate to reproduce relevant portion from the judgment of M.C. Mehta(supra) : "We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken................................We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher(supra). 12. Hon'ble Supreme Court by catena of judgments settled that the courts possess not only injunctive power but also remedial power. Civil Courts have also got power to issue appropriate order or directions to meet out the requirement, under Section 151 of CPC. There should be check and balance between the sustainable development vis-a-vis environmental protection. The life of every citizen is precious and in view of catena of judgments of Hon'ble Supreme Court and the constitutional mandate, it is the duty of the State Government to preserve and protect environment and provide hygienic condition to the people having fresh air and quality of life. It is unfortunate that the U.P. Pollution Control Board has not framed any bye-laws, rules or regulations to regulate the establishment of brick kilns in spite of lapse of 35 years. It is unfortunate that the U.P. Pollution Control Board has not framed any bye-laws, rules or regulations to regulate the establishment of brick kilns in spite of lapse of 35 years. This inaction on the part of the State Government as well as U.P. Pollution Control Board is not only against the constitutional mandate but also against the international conventions with regard to protection of ecology and environment, to which the Government of India is a signatory and hence is binding mandate for compliance. 13. Though the present case is an appeal under Order XLIII Rule 1(r) CPC but in public interest, we are taking the issue and direct the U.P. Pollution Control Board to frame statutory rules constituting a committee of environmental experts to frame guidelines/rules and the government should notify the same expeditiously and preferably within a period of six months. As and when the U.P. Pollution Control Board frames statutory rules, the Zila Panchayat shall amend their bye-laws accordingly. 14. Since Zila Panchayat is not expert to deal with air pollution or environmental matter, U.P. Pollution Control Board is further directed not to follow the Zila Panchayat Rules mechanically; rather decide the applications for establishment of brick kiln keeping in view the facts and circumstances of each case and objections filed by the local inhabitants. No approval for establishment of brick kiln may be granted unless objection filed by the citizen is decided and communicated by speaking order in accordance to law. 15. One of the questions raised by the parties relates to construction of houses. Only because a single house is situated at a place, a businessman has got no right to establish brick kiln adjoining such house or houses ignoring the individual right guaranteed under Art. 21 of the Constitution of India. Needless to say that life and liberty, health and hygienic condition of even a single citizen is protected by Art. 21 of the Constitution of India. Whether a house is lawfully constructed or not is not a subject matter falling within the domain of U.P. Pollution Control Board or Zila Panchayat. Needless to say that life and liberty, health and hygienic condition of even a single citizen is protected by Art. 21 of the Constitution of India. Whether a house is lawfully constructed or not is not a subject matter falling within the domain of U.P. Pollution Control Board or Zila Panchayat. In case a house is existing since long - may be on agricultural land, and the formalities under Section 143 U.P.Z.A.& L.R. Act have not been completed, then it does not mean that right flowing from Art. 21 of the Constitution of India with regard to fresh air and hygienic condition shall not be available to such persons. A businessman can shift his brick kiln to other place but it may not be possible for a villager to shift his old house accommodating his or her family members since decades. Things would have been different in case the house is constructed after establishment of brick kiln and later on some objection is raised with regard to condition of brick kiln. In the rural area, it has been noted that houses are constructed to meet out the requirement some time over agricultural land and formalities with regard to declaration of abadi land under Section 143 U.P. Z.A. & L.R. Act or other formalities is completed later on. 16. It has been pointed out by the learned counsel for the appellant that the suit is not maintainable in view of the provisions contained in Section 46 of the Act. However, the learned counsel appearing for the respondent No.2 submits that the suit is maintainable. We are not expressing any opinion with regard to maintainability of the suit as it falls within the domain of learned trial Court. 17. So far as the submission of the appellant's counsel that being a single house situated on the land in question should be treated as a construction made on agricultural land and not on abadi land and brick kiln should be permitted to run over the plot in question, prima facie, it does not seem to be sustainable. Every individual of this country subject to statutory rules and constitutional mandate has got right to breath fresh air and such person cannot be deprived of his constitutional protections except in accordance with law. Accordingly, we decline to interfere with the impugned injunction granted by the trial Court. Every individual of this country subject to statutory rules and constitutional mandate has got right to breath fresh air and such person cannot be deprived of his constitutional protections except in accordance with law. Accordingly, we decline to interfere with the impugned injunction granted by the trial Court. However, we direct the trial court to frame issue and decide the question with regard to maintainability of the suit expeditiously and preferably within three months from the date of production of a certified copy of this order. 18. The plaintiff shall implead respondents 3, 4 and 5 by moving appropriate application in the pending suit within one week. 19. Subject to the aforesaid directions/observations, the appeal is finally disposed of. 20. Let a copy of this order be sent to the Chief Secretary of the State of U.P. for compliance.