Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 777 (GAU)

Dilip Chetri v. State of Assam

2017-06-13

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER (ORAL) : Heard Mr. B.D. Das, learned senior counsel for the petitioner, Ms. K. Dutta, learned State Counsel appearing for the respondent Nos. 1 and 3, Mr. P.J. Phukan, learned Counsel appearing for the Pollution Control Board, being the respondent No.2 and Mr. R. Baruah, learned counsel appearing for the private respondent Nos. 4 and 5. 2. The petitioner, by two registered Sale Deeds dated 23.08.2010, had purchased an existing brick industry from one Sri Dilip Kumar Mazumdar, which was originally set up in the year 2005. The said brick kiln is located over a plot of land measuring 21 bighas 10 lechas covered by Dag No.123, Patta No.19 situated at village Chengmari Kisam under Mayong Mouza in the district of Morigaon. It is stated that the petitioner thereafter applied for No Objection Certificate from the Deputy Commissioner, Morigaon for operating the brick kiln in his name and accordingly by an order dated 02.09.2011, permission was granted to operate the brick kiln. The permission was granted under certain conditions that the petitioner obtain the required certificate from the Pollution Control Board. It is stated that subsequently, the Pollution Control Board by a certificate dated 28.10.2011 had given the permission to the petitioner for setting up and operating the brick kiln industry. 3. The respondent Nos. 4 and 5 respectively are cultivators of the paddy fields in the areas surrounding the brick kiln. Their apprehension is that because of the operation of the brick kiln, pollution is being caused and because of the pollution, the productivity in their paddy fields are being adversely affected. Consequently, the said respondent Nos. 4 and 5 had preferred a writ petition before this Court being WP(C) No.1265/2012, wherein, the setting up of the brick kiln by the petitioner was assailed. It is also stated by the respondent Nos. 4 and 5 that adverse environmental situation would also arise in respect of the animals of the nearby Pabitara Wildlife Sanctuary. 4. It is noticeable that there are five brick kiln industries presently operating within the vicinity of the area and the respondent Nos. 4 and 5 had made a statement that they are affected only by the petitioner’s brick kiln and not by the others. 4. It is noticeable that there are five brick kiln industries presently operating within the vicinity of the area and the respondent Nos. 4 and 5 had made a statement that they are affected only by the petitioner’s brick kiln and not by the others. The said WP(C) No.1265/2012 was disposed of by the judgment and order dated 28.10.2013, wherein in paragraph-24, it had been provided as such:- “[24] In view of the aforesaid discussion, the writ petition is disposed of with the following directions:- (i) The district administration, Morigaon as well as the PCB shall cause local verification and survey to ascertain as to whether setting up of the brick kiln over the land in question would cause any adverse affect on the surrounding and/or nearby land suitable for cultivation. (ii) The aforesaid authorities, in association with the department of Environment & Forests, Government of Assam, shall also make local inspection to find out whether the land over which the permission to set up the brick kiln has been granted, falls within 1 Km radius from the periphery of the Pobitora Wildlife Sanctuary, i.e. in the proposed ESZ. (iii) If upon such inspection/survey, it is found that setting up of the brick kiln would have adverse affect on the surrounding and/or nearby land suitable for agriculture, or within the proposed ESZ, necessary order shall be passed by the Deputy Commissioner, Morigaon as well as by the Member Secretary, PCB, cancelling the aforesaid permissions dated 2nd September, 2011 and 20th October, 2011, granted by the Deputy Commissioner, Morigaon and by the PCB, respectively. (iv) In case, the aforesaid authorities find that there would not have any adverse environmental affect and the land in question is not within the proposed ESZ, as noticed above, necessary order shall be passed by the authorities. In that case, the PCB shall also ensure compliance of Entry-74 of Schedule-1 of 1986 Rules, before grant of “consent to operate”, apart from other provisions of the environmental laws. The PCB shall also, in every 3(three) months, make necessary inspection relating to the compliance of the different provisions of the environmental laws, apart from causing environmental pollution, if any, and shall pass necessary order, in accordance with law, if environmental pollution and/or violation of the provisions of the environmental law is found. The PCB shall also, in every 3(three) months, make necessary inspection relating to the compliance of the different provisions of the environmental laws, apart from causing environmental pollution, if any, and shall pass necessary order, in accordance with law, if environmental pollution and/or violation of the provisions of the environmental law is found. (v) The aforesaid exercise is directed to be completed within a period of 2(two) months from today. (vi) The respondent No.11 shall not undertake any activity till the aforesaid decision is taken by the Deputy Commissioner as well as by the PCB. (vii) The PCB shall, within 3(three) months from today, conduct inspection of all brick-kilns in the State of Assam to find out whether necessary permissions, as required under the relevant environmental laws, have been obtained, and whether those industries have complied with the requirements of law including the emission standard. If not, necessary order(s), within 2(two) months thereafter, shall be passed by the PCB after giving opportunity of hearing to all concerned. (viii) The Principal Secretary (Forests) to the Government of Assam, Environment & Forests Department shall, within a period of 1(one) month from today, reply the communication dated 19th September, 2013 issued by the Government of India, Ministry of Environment & Forests (Wildlife Division), and if there is any lacuna in the proposal already submitted for declaration of ESZs, the same shall also be rectified and resubmitted within the aforesaid period of time. (ix) The Government of India, Ministry of Environment & Forests (Wildlife Division), within 2(two) months thereafter, shall consider the proposal and pass necessary order with regard to issuance of notification constituting ESZs around the National Parks as well as the Wildlife Sanctuaries in the State of Assam. (x) Till such consideration is made, no industry would be allowed to set up within the proposed ESZs around the National Parks as well as Wild Life Sanctuaries in the State of Assam.” 5. From Clause-(i) of paragraph-24 of the said judgment, it is noticeable that the district administration, Morigaon as well as the Pollution Control Board are required to cause a local verification and survey to ascertain as to whether the setting up of the brick kiln over the land in question would cause any adverse affect on the surrounding and or nearby land, which are used for agricultural purpose. Further, sub-clause-(iii) provides that if upon such inspection/ survey, it is found that the brick kiln would have adverse affect on the surrounding and/or nearby land suitable for agriculture, or within the proposed Eco-Sensitive-Zone, necessary order shall be passed by the Deputy Commissioner, Morigaon cancelling the permission dated 02.09.2011 granted to the petitioner and by the Member Secretary, PCB, cancelling the its permission dated 20.10.2011 granted to the petitioner. The requirement of Clause-(iii) of paragraph-24 of the judgment and order dated 12.10.2013 is that both the Deputy Commissioner, Morigaon, being the head of the district administration and the Pollution Control Board shall cause a local verification and survey to ascertain whether setting up of the brick kiln would have any adverse affect on the nearby agricultural field. 6. The provisions that the aforesaid two authorities will cause local verification and survey is understood to mean that the appropriate experts acting under the said two authorities shall make a proper scientific assessment as to what adverse environmental impact the brick kiln would have when it is being operated. A verification or survey cannot be made by either of the two authorities when the brick kiln is not in operation as any such survey would give an incorrect result. Neither the authorities can arrive at a conclusion that it is having an adverse environmental affect nor the said authorities can arrive at a conclusion that it is having no such impact. The proper assessment can only be made when a definite scientific study is made over a given period of time by obtaining the necessary scientific data while the brick kiln is in operation and thereupon form an opinion whether any adverse impact has been caused upon the nearby agricultural field or not. 7. In Clause-(iv), (vii), (viii), (ix) and (x) of paragraph-24 of the aforesaid judgment of this Court deals with the effect that the existence brick kiln may have on the proposed Eco-Sensitive-Zone. Clause-(viii), clearly provides that the Principal Secretary (Forest) to the Government of Assam shall within one month respond to certain communication of the Government of India in the Ministry of Environmental and Forest, Wildlife Division and submit the required proposals and shall rectify and re-submit if there is any lacuna in the proposals, which are already submitted. Clause-(viii), clearly provides that the Principal Secretary (Forest) to the Government of Assam shall within one month respond to certain communication of the Government of India in the Ministry of Environmental and Forest, Wildlife Division and submit the required proposals and shall rectify and re-submit if there is any lacuna in the proposals, which are already submitted. The said direction is a general direction in respect of all such areas, which are declared to be Eco Sensitive Zone and does not confine to the area where the petitioner’s brick kiln is located. It has further been provided that till such consideration is made, no industry be allowed to be set up in the proposed Eco Sensitive Zone. Such direction in sub-clause (x) of paragraph-24 also gives an indication that this Court had prohibited that no further industry be allowed to be set up in the proposed Eco Sensitive Zone till a final consideration is made on the same. 8. Be that as it may, pursuant to the order dated 28.10.2013 in WP(C) No.1265/2012, the Deputy Commissioner, Morigaon passed an order dated 01.02.2014 had cancelled the permission dated 02.09.2011 granted in favour of the petitioner. It is noteworthy that while arriving in its conclusion to cancel the permission, the Deputy Commissioner in his order dated 01.02.2014 had relied upon (i) a report of the Divisional Forest Officer, Guwahati Wildlife Division, dated 24.12.2013, which provided that the petitioner’s brick kiln is located in the intermediate space between Burhamayong Reserve Forest and Pobitora Reserve Forest, both of which are part of Pobitora Wildlife Sanctuary; (ii) a report of the Regional Executive Engineer, Pollution Control Board dated 23.12.2013, which states that the brick kiln is not likely to cause any adverse affect on the agricultural productivity; (iii) a report of the District Agriculture Officer, Morigaon, which states that the brick kiln industry will cause significant drop in the productivity of Bodo Paddy and the temperature of the concerned area will increase, as a result of which the crops may be affected. 9. The said order of the Deputy Commissioner, Morigaon was assailed by the writ petitioner in WP(C) No.927/2014, which was disposed of by the order dated 29.03.2016. 9. The said order of the Deputy Commissioner, Morigaon was assailed by the writ petitioner in WP(C) No.927/2014, which was disposed of by the order dated 29.03.2016. In the said judgment and order, this Court had taken note of that by the earlier judgment and order dated 28.10.2013 in WP(C) No.1265/2012, the district administration, Morigaon and he authorities in the Pollution Control Board were directed to make local inspection to find out whether the land in question, involved in that case falls within 1 kilometer radius from the periphery of the Pobitora Wildlife Sanctuary and whether the setting up of the said brick kiln would have adverse affect on the surrounding and nearby land suitable for agriculture or as to whether it is within the proposed Eco Sensitive Zone. This Court accordingly arrived at a conclusion that the brick kiln of the petitioner is not located within 1 kilometer radius from the periphery of the Pobitora Wildlife Sanctuary and also that the same is not within the proposed 1 kilometer radius of the Eco Sensitive Zone of the Pobitora Wildlife Sanctuary. Accordingly, it was concluded that the Deputy Commissioner, Morigaon had committed an illegality in issuing the order of cancellation dated 01.02.2014, which in the view of this Court was not inconformity with the direction contained in the judgment and order dated 28.10.2013. Accordingly, the Deputy Commissioner, Morigaon was required to pass a fresh reasoned order within a period of two months. 10. From the aforesaid judgment and order dated 29.03.2016, it is noticeable that firstly, there is a judicial finding of this Court that the petitioner’s brick kiln is not located within 1 kilometer radius from the periphery of the Pobitora Wildlife Sanctuary nor it is within 1 kilometer radius of the Eco Sensitive Zone of the Pobitora Wildlife Sanctuary. The said conclusion of this Court gives a conclusive finding as regards the requirement of sub clause-(ii) of paragraph-24 of the judgment and order dated 28.10.2013, which requires the district administration, Morigaon as well as the Pollution Control Board to arrive at a conclusion whether the brick kiln of the petitioner falls within 1 kilometer radius from the periphery of the Pobitora Wildlife Sanctuary or from the proposed Eco Sensitive Zone. 11. 11. On the matter being so remanded, the Deputy Commissioner, Morigaon issued another order dated 03.06.2016, which is purportedly pursuant to the requirement of the judgment and order dated 29.03.2016 in WP(C) No.927/2014. By the said order dated 03.06.2016, the Deputy Commissioner by referring to paragraphs 21, 22, 23 and 24 of the judgment and order dated 29.03.2016 in WP(C) No.927/2014 had withdrawn the earlier order to examine and restored the earlier permission dated 02.09.2011 granted in favour of the petitioner. 12. It is also noticeable that the said order of the Deputy Commissioner dated 03.06.2016 also did not meet the requirement of the direction of this Court in its judgment and order dated 29.03.2016 in WP(C) No.927/2014. 13. Be that as it may, the respondent No.4, namely, Sri Bharat Saikia had preferred a writ petition being WP(C) No.4589/2016 against the said order dated 03.06.2016 of the Deputy Commissioner, Morigaon. By the judgment and order dated 05.08.2016 in WP(C) 4589/2016, the order dated 03.06.2016 of the Deputy Commissioner was interfered and the Deputy Commissioner, Morigaon was directed to pass a fresh order strictly in accordance with the direction given by this Court in the order dated 28.10.2013 in WP(C) No.1265/2012. 14. Pursuant to the said order dated 05.08.2016 in WP(C) No.4589/2016, the Deputy Commissioner, Morigaon passed the present impugned order dated 21.10.2016. 15. From the order dated 21.10.2016, it is noticeable that the Deputy Commissioner again refers to the same report of the Divisional Forest Officer dated 24.12.2013, report of the Regional Executive Engineer, Pollution Control Board dated 23.12.2013 and the report of the District Agriculture Officer dated 21.12.2013, which, as already stated hereinabove were the basis of the earlier order dated 01.02.2014, which was interfered by this Court by its judgment and order dated 29.03.2016 in WP(C) No.927/2014. On a reading of the order dated 21.10.2016, this Court finds that the Deputy Commissioner had not gone into any further aspect nor he had done any further verification or survey as required by the earlier judgment and order dated 28.10.2013 in WP(C) No.1265/2012. The Deputy Commissioner merely repeats what was provided in the earlier order dated 01.02.2014, which was interfered by this Court and does not make any endeavour to cause any verification and or survey as directed in the earlier order dated 28.10.2013 in WP(C) No.1265/2012. 16. The Deputy Commissioner merely repeats what was provided in the earlier order dated 01.02.2014, which was interfered by this Court and does not make any endeavour to cause any verification and or survey as directed in the earlier order dated 28.10.2013 in WP(C) No.1265/2012. 16. Be that as it may, as the order of the Deputy Commissioner is based upon the report of the Divisional Forest Officer, Wildlife Division dated 24.12.2013, the report of the Regional Executive Engineer, Pollution Control Board dated 23.12.2013 and the District Agriculture Officer dated 21.12.2013, this Court deems it appropriate that the aforesaid order be also taken into consideration to arrive at a conclusion as to whether the order of the Deputy Commissioner dated 21.10.2016 meets the requirement of the direction contained in the judgment and order dated 28.10.2013 in WP(C) No.1265/2012. 17. On a perusal of the report of the Divisional Forest Officer, Guwahati Wildlife Division, dated 24.12.2013, which is annexed as Annexure-14 to the writ petition, it can be seen that the same is a letter by the Divisional Forest Officer, Guwahati Wildlife Division addressed to the Deputy Commissioner, Morigaon purportedly pursuant to a letter of the Deputy Commissioner dated 16.12.2013. The said letter of the Deputy Commissioner dated 16.12.2013 requires the Divisional Forest Officer, Guwahati Wildlife Division to provide the specific data regarding the location of the petitioner’s brick kiln industry from the periphery boundary of the Burhamayong Reserve Forest and Pobitora Reserve Forest. Accordingly, in the said letter, the Divisional Forest Officer states that the distance of the petitioner’s brick kiln from the Burhamayong Reserve Forest is 1212 meters, whereas it is 2048.50 meters from the Pobitora Reserve Forest. But in clause-3 of the said letter, the Divisional Forest Officer, Guwahati Wildlife Division also states that the probable impact on flora and fauna of Pobitora Wildlife Sanctuary can be ascertained by the Pollution Control Board. But at the same time, it was also provided that if the brick kiln site is enclosed by erecting permanent fencing/wall and as soon as industrial activity begins, then the traditional and natural trails used by rhinos and other wild animals for their movement, as it is required by them, shall get blocked. 18. But at the same time, it was also provided that if the brick kiln site is enclosed by erecting permanent fencing/wall and as soon as industrial activity begins, then the traditional and natural trails used by rhinos and other wild animals for their movement, as it is required by them, shall get blocked. 18. It is noticeable that the said letter/report dated 24.12.2013 of the Divisional Forest Officer, Guwahati Wildlife Division does not indicate as to whether the said view was the personal view of the Divisional Forest Officer or it was a view expressed upon a scientific assessment of the ground reality that animals are using the location of the brick kiln of the petitioner as an animal corridor to pass from one reserve forest to another reserve forest. 19. From the report of the Regional Executive Engineer, Pollution Control Board dated 23.12.2013, which is annexed as Annexure-15, it is seen that the said authority had arrived at a conclusion that the operation of the brick kiln is not likely to cause any adverse affect on the agricultural productivity on the nearby agricultural field. It is also stated that the committee constituted for the purpose had made a joint physical verification on 18.11.2013 and 19.11.2013. 20. Again the report of the District Agriculture Officer, which is annexed as Annexure-16 to the writ petition dated 21.12.2013, reveals that the probable impact on surrounding agricultural land is that after setting up of the brick kiln, the productivity of the Bodo Paddy of the adjacent agricultural land will significantly drop and the temperature of surrounding areas will increase as a result of which the crops may be affected. The said report was also based on a verification conducted on 19.12.2013. 21. Both the aforesaid reports of the Regional Executive Engineer, Pollution Control Board dated 23.12.2013 as well as the District Agriculture Officer, Morigaon dated 21.12.2013 are all based on one visit of the said officials to the site of the brick kiln. No indication is available either in the reports or in the form of any record that the said two officials had undertaken a scientific study of the actual impact of the brick kiln being operated. No indication is available either in the reports or in the form of any record that the said two officials had undertaken a scientific study of the actual impact of the brick kiln being operated. It appears that both the reports are on the basis of surmises and conjectures inasmuch as, the Regional Executive Engineer, Pollution Control Board says that “the brick kiln is not likely to cause any adverse affect” whereas the District Agriculture Officer states that “probable impact on surrounding agricultural land”. Both the aforesaid views are tentative views of the two respective authorities and the same are not substantiated by any definite scientific study being carried out. 22. In view of the above, neither the report/letter dated 24.12.2013 of the Divisional Forest Officer, Guwahati Wildlife Division, nor the report dated 23.12.2013 of the Regional Executive Engineer, Pollution Control Board and the report dated 21.12.2013 of the District Agriculture Officer, Morigaon can be adjudicated to be an authentic basis to arrive at a conclusion that there are adverse environmental impact on the productivity of the surrounding agricultural field as a result of the operation of the brick kiln of the petitioner. The said reports can neither be a basis to arrive at a conclusion that there is no environmental affect nor it can be a basis to say that there is some environmental affect. 23. In such view of the matter, this Court is of the considered view that the order of the Deputy Commissioner, Morigaon dated 21.10.2016, by which the permission granted in favour of the petitioner’s brick kiln was cancelled is not sustainable. 24. From the said report of the Deputy Commissioner dated 21.10.2016, it is seen that the Deputy Commissioner had taken two independent and distinct aspects into consideration. One aspect is that the operation of the brick kiln is causing adverse environmental impact on the nearby agricultural fields and the other aspect is that the location of the brick kiln is adversely affecting the animal corridor between the Burhamayong Reserve Forest and Pobitora Reserve Forest, where both are said to be part of the Pobitora Wildlife Sanctuary. 25. One aspect is that the operation of the brick kiln is causing adverse environmental impact on the nearby agricultural fields and the other aspect is that the location of the brick kiln is adversely affecting the animal corridor between the Burhamayong Reserve Forest and Pobitora Reserve Forest, where both are said to be part of the Pobitora Wildlife Sanctuary. 25. As regards the aspect of there being adverse environmental impact on the neighbouring agricultural field, this Court deems it appropriate that the respective authorities being the District Agriculture Officer as well as the Regional Executive Engineer, Pollution Control Board undertake a proper scientific study on the impact of the operation of the brick kiln on the neighbouring agricultural field. The said scientific study can only be done by following the procedure that the respective authorities will record the environmental parameters over the agricultural field for a given period of time when the brick kiln is not in operation. Thereafter, the said authority would take the required scientific data on the environmental parameters over a given period of time when the brick kiln is actually in operation. In the absence of such scientific data, it can neither be said that the operation of the brick kiln is having some adverse environmental impact on the neighbouring agricultural field nor it can be said that it does not have any such impact. 26. Accordingly, it is directed that both the aforesaid officers shall make a joint verification and survey and record the parameters for a period of seven continuous days when the brick kiln is not in operation. Thereafter the authorities shall allow the brick kiln to be operated for a period of one month and after the brick kiln operates for three weeks, the aforesaid two authorities shall record the environmental parameters for seven continuous days being the fourth week of running the brick kiln industry. 27. Upon arriving at the aforesaid facts and figures, the authorities shall make a scientific assessment as to what such environmental parameters during the period when the brick kiln is in operation would have on the neighbouring agricultural fields. To arrive at such conclusion, the District Agriculture Officer shall provide the required information as to what is the normal level of environmental parameters, to which the crops in question can be subjected to. 28. To arrive at such conclusion, the District Agriculture Officer shall provide the required information as to what is the normal level of environmental parameters, to which the crops in question can be subjected to. 28. As regards the other aspect that the brick kiln may adversely affect the animal corridor in its movement from the Burhamayong Reserve Forest to the Pobitora Reserve Forest, the appropriate authorities in the Wildlife Department, being the Chief Wildlife Warden of the Pobitora Wildlife Sanctuary shall make a scientific study on the animal movement in the vicinity of the area where the petitioner brick kiln is located. By a scientific study, it is understood that the Chief Wildlife Warden will make a survey as to the exact number of animal that passes through the area over a given period of time. Accordingly, the Chief Wildlife Warden shall form a report based upon such scientific input as to whether the existence of the brick kiln in its present location would adversely affect the animal corridor, if any. 29. As regards the setting up of the Eco Sensitive Zone, the appropriate authorities in the Ministry of Environmental Forest, Government of India as well as the appropriate officials in the Forest and Environment Department of the Government of Assam shall form an opinion regarding setting up of the Eco Sensitive Zone and also the likely impact and the restrictions that may have to be put in place on the activities of the existing inhabitants within the proposed Eco Sensitive Zone. Also in the event, the authorities are of the view that the petitioner’s brick kiln would be located within the Eco Sensitive Zone, all such restrictions that may be imposed, shall be done in a free and fair manner and only upon a scientific assessment being made justifying its requirement. In other words, in the event, the authorities are of the view that the concerned area is to be included either in an Eco Sensitive Zone or in a proposed Eco Sensitive Zone, a definite guideline and parameter shall be evolved stating as to what kind of activities can take place within such Eco Sensitive Zone and the authorities shall act strictly in terms of such guidelines and parameters. 30. 30. It is provided that the required exercise of the Regional Executive Engineer, Pollution Control Board as well as the District Agriculture Officer, as indicated above, be preferably carried out within a period of three months from the date of receipt of a certified copy of this judgment and order. 31. It is provided that after the said authorities completes the scientific study when the brick field is not in operation, they shall inform the petitioner and accordingly the respondent authorities shall allow the petitioner to operate the brick kiln. The continuance of the operation of the brick kiln shall be subject to the final order that the Deputy Commissioner as well as Pollution Control Board may pass after undertaking the aforesaid scientific study, which shall be done within a period of three months from the date of receipt of a certified copy of this judgment and order. In terms of the above, the writ petition stands closed.