M/s. Shakti Bricks vs Member Secretary, State Pollution Control Board and Another

B.P. Das, J. (Chairman)

M/s. Shakti Bricks, which has its brick kiln unit in Mouza Routrapur under Agarpada P.S. of Bhadrak district, has preferred this appeal u/s 31 of the Air (Prevention & Control of Pollution) Act, 1981 (in short ''Air Act'') with a prayer to set aside the Order Dated 30.8.2010 passed by the Regional Officer, State Pollution Control Board, Orissa, Balasore, in Annexure-9 cancelling the Consent to Establish granted by order No. 24176 dated 24.11.2003 & revoking the Consent to Operate granted by order No. 719 dated 27.4.2006 with a direction to the Appellant to close the operation of the brick kiln unit forthwith on the ground of violation of the sitting criteria prescribed by the State Govt. Briefly stated, the case of the Appellant is that it made an application to the State Pollution Control Board, Orissa, (''the Board'' hereinafter) for grant of consent to establish a fixed chimney brick kiln in mouza Routrapur. Along with the application, the Appellant also filed affidavit of its Proprietor dated 26.8.2003 & the N.O.C. issued by the local Sarpanch in terms of the sitting criteria prescribed by the State Govt. in the erstwhile Department of Science, Technology & Environment vide letter dated 26.10.1987 in Annexure-4 in respect of brick kilns. Considering the application, the Board by Order Dated 24.11.2003 granted consent to establish in favour of the Appellant unit. Thereafter the Board on the basis of the sitting clearance certificate issued by the Tahasildar, Bonth in his letter dated 9.12.2005 (Annexure-2) to the effect that the site was suitable for fixed chimney brick kiln granted consent to operate vide Order Dated 24.12.2005 which was valid upto 31.3.2006. After expiry of the said term, the Appellant applied for renewal & the Board by Order Dated 27.4.2006 also granted renewal of consent to operate till 31.3.2011, under Annexure-7 series. According to the Appellant consent in its favour was granted to operate the brick kiln unit in terms of the sitting criteria prescribed by the State Govt. in respect of brick kiln, vide letter dated 26.10.1987 in Annexure-4. While the Appellant was operating its unit after obtaining the required permission from the competent authorities, the villagers of Patakana made allegation against its unit for which an enquiry was conducted jointly by the Addl. Sub-Collector, Bhadrak, & the Tahasildar Bonth. On the basis of the enquiry report submitted by the aforesaid revenue authorities, the Board issued notice dated 11.6.2010 to the Appellant vide Annexure-8 to show cause as to why consent to establish granted by Order Dated 24.11.2003 would not be cancelled & consent to operate granted by Order Dated 27.4.2006, which was valid till 31.3.2011, would not be revoked & appropriate direction would not be issued to stop operation of the brick kiln unit on the ground that the unit violated the sitting criteria prescribed by the State Govt., In the aforesaid show cause notice, it was indicated that the enquiry conducted by the Addl. Sub-Collector, Bhadrak & Tahasildar, Bonth, on 18.12.2009 revealed that (i) the habitation of village Patakana is 200 meters; (ii) the river bed is 300 meters & there is no flood embankment in the river Salandi; & (iii) private agriculture lands are also existing adjacent to the brick kiln. Aggrieved by the aforesaid show cause notice issued by the Board, the Appellant approached the Hon''ble High Court in W.P.(C) No. 14863 of 2010. As during pendency of the Writ Petition the Board issued the impugned Order Dated 30.8.2010 in Annexure-9, cancelling consent to establish & revoking consent to operate with a direction to the Appellant to close the operation of the brick kiln forthwith, the Hon''ble High Court disposed of the Writ Petition by its Order Dated 23.9.2010 granting liberty to the Appellant to prefer appeal before this Authority within three weeks. The Appellant accordingly has preferred this appeal against the order directing closure of its unit in Annexure-9 on the grounds that the inspection report is not at all correct since no physical measurement had been made & the said report contradicts the earlier report of the Tahasiidar; that since the unit was established complying with the sitting criteria indicated in the 1987 guidelines & the renewal was granted till 31.3.2011, the revised sitting criteria guidelines & establishment of any new habitation cannot at all be a ground at that stage to cancel the consent & that the Appellant having complied with all the required sitting criteria of 1987 & there being no complaint with regard to violation of 1987 guidelines or the conditions stipulated in the consent order of 2003, the order passed by the Board vide Annexure-9 is illegal & arbitrary & is liable to be set aside.

On behalf of the Respondent-Board, a written note of submission was filed wherein it is indicated that consent to establish was granted to the Appellant unit by Order Dated 24.11.2003 under Annexure-7 series on the basis of the affidavit filed by the Appellant stating compliance of the conditions of the sitting criteria of 1987. It has also been indicated that the inspection report dated 19.12.2009 submitted by the Tahasiidar, Bonth & the Addl. Sub-Collector, Bhadrak, which was forwarded by the A.D.M., Bhadrak, to the Board vide his letter dated 19.1.2010, under Annexure-B/1 to the written note of submission, revealed violation of the sitting criteria as the unit is located at a distance of 200 meters from the habitation of village Patakana, 300 Meters from the river bed of river Salandi & 425 meters from the temple of Lord Shiva. The report further revealed that private agriculture lands are also existing adjacent to the brick kiln area. That apart, the Regional Officer & the A.E.S. of the Regional Office of the Board at Balasore inspected the Appellant unit on 25.5.2010 & submitted their report, vide Annexure-C/1, with a finding that the existing fixed chimney has violated the sitting criteria of 1987. Thereafter show cause notice dated 11.6.2010 was issued to the Appellant & ultimately the impugned order directing closure of the unit vide Annexure-9 was passed for violation of the sitting criteria. The Board has also filed copy of the letter dated 10.11.2010 of the Tahasildar, Bonth, addressed to the Regional Office, Balasore, vide Annexure-G/1, wherein the Tahasildar has indicated that villages Patakana & Routrapur are situated very close to the brick kiln of the Appellant & found that the residential houses of villages Patanaka & Routrapur are existing within a distance of 200 meters to 400 meters from the habitations as detailed in the list enclosed thereto. The letter further discloses that the habitations exist prior to installation of the brick kiln.

During the course of hearing, this Authority on going through the materials on record & finding that the reports submitted by the Tahasildar, Bonth, dated 9.12.2005 (Annexure-2) & dated 19.12.2009 (Annexure-B/1) were contradictory, by Order Dated 26.2.1011 directed the Tahasildar, Bonth, to make a fresh survey of the area & submit report indicating whether any habitation has come up after submission of the report dated 9.12.2005 & the nature & character of the lands over which habitation, if any, has come up. The relevant part of the order is extracted herein below:

The main dispute, in our considered opinion, arises due to the report of the Tahasildar dated 19.12.2009 wherein it is indicated that the habitation of village Patakana comes within 200 meters of the Appellant unit whereas from the river bed it is 300 meters. The Appellant relies upon the report which was initially given by the Tahasildar of the same Tahsil dated 9.12.2005 in which it is indicated that the unit is situated at a distance of 26 kms. from National Highway, 16 kms. from State Highway, 24 kms. from Railway Line, Bhadrak, & 74 kms. from high tide line, Chandabali, one km. from flood plains of Salandi river, 700 meters from village Patakana & four kms. distance from small town Agarpada. It appears, both the reports are totally contradictory to each other. Let both the reports be sent to the present Tahasildar, Bonth, who shall make a fresh survey of the area & submit his report to this Authority on or before 26.3.2011, when this matter shall be taken up. The Tahasildar shall also indicate in his report whether any habitation has come up in the meanwhile, i.e., after the report of the Tahasildar dated 9.12.2005 & the nature & character of the land over which habitation, if any, has come up.

In terms of our order, the Tahasildar conducted a fresh survey of the area & submitted his report vide letter No. 416 dated 21.3.2011 to the Board & the Board produced the same along with a memo dated 11.5.2011. In the aforesaid report it is stated thus:

With reference to the letter on the subject cited above I am to say that on receipt of complaint from the villagers of Patakana regarding functioning of Brick kiln by M/s. Shakti Bricks, the matter was enquired into & measurement of distance was taken by Revenue field staff in presence of Addl. Sub-Collector, Bhadrak & the villagers of Patakana on 18.12.09. The distance measured was 300 meters from river bed, 200 meters from the habitation of village Patakana & 425 meters from the Temple of Lord Siva to the brick kiln. Further it is to mention here that the habitation of village Patakana was existing prior to functioning of brick kiln by M/s. Sakti Bricks, Routrapur. However fresh survey has been undertaken on 18.3.11 & found the distance mentioned in the report dt. 19.12.09 is correct.

At this stage it would be appropriate to quote herein below the relevant part of the sitting criteria of 1987 (Annexure-4).

Sitting Criteria for Brick Kilns, Lime Kilns & Coal Briquetting Units- (ii) They must be located at lest 1/2 Km. away from the Railway lines, National & State High Ways, high tide line, flood plains, villages & small settlements & 2 kms. away from the outskirts of small towns & population of 50,000 or less & 5 Kms. away from the out skirts of large towns of population of more than 50,000.

The State Govt. in Forest & Environment ''Department, in exercise of the power''s u/s 5 of the Environment (Protection) Act, 1986 & the Rules framed thereunder, in its Order Dated 6.12.2005 (Annexure-5) required the persons carrying on the operation of brick kilns in the State to comply with the directions indicated therein. The relevant part of the said directions are quoted hereunder:

no brick kiln unit shall be allowed on forest land or on prime agricultural land.

No brick kiln unit shall be established within 500 meters from Railway lines; National & State Highways, High tide line, places of worship, Educational institutions, hospitals & health care centers;

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 meters from the nearest river bank.

No new brick kiln unit shall be located within a distance of 5 Kms. from the periphery of a town with a population of more than one lakh & 2 Kms. from the periphery of a town with a population between 50,000 to 1,00,000.

The Tahasildar in his report submitted in the letter dated 21.3.2011, which is quoted hereinbefore, has indicated that the unit is located within 300 meters from river bed, 200 meters from the habitation of village Patakana & 425 meters from a temple of Lord Shiva and further the habitation of village Patakana was existing prior to the functioning of the Appellant unit. From the aforesaid report of the Tahasildar dated 21.3.2011, as quoted above, we find that the Appellant unit was established violating the sitting criteria of 1987 as it is located within 500 meters from village Patakana, which was existing prior to the functioning of the Appellant unit & the earlier report of the Tahasildar dated 9.12.2005. That apart, we also find from the aforesaid report of the Tahasildar that the Appellant unit has violated the revised sitting criteria of 2005 vide Annexure-5, which is applicable to the persons carrying on the operation of brick kiln''s in the State, since Appellant unit is located within 300 meters from river bed & 425 meters from a temple (place of worship) as against the prescribed norm of 500 meters, as indicated in condition Nos. 3 & 4 of 2005 sitting criteria. For the foregoing reasons, we hold that the final order passed by the Regional Officer, State Pollution Control Board, Balasore, dated 30.8.2010 vide Annexure-9 directing the Appellant to close the operation of its brick kiln unit forthwith is legal & valid. The appeal having no merit is accordingly dismissed.