before the national green tribunal (western...

(Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 1

BEFORE THE NATIONAL GREEN TRIBUNAL

(WESTERN ZONE) BENCH, PUNE

APPLICATION No. 07(THC)/2013(WZ)

AND

APPLICATION NO.36 (THC) OF 2013

CORAM:

Hon’ble Mr. Justice V.R. Kingaonkar

(Judicial Member)

Hon’ble Dr. Ajay A. Deshpande

(Expert Member)

APPLICATION No. 07(THC)/2013(WZ)

B E T W E E N:

Sonyabapu s/o. Tukaram Rajguru,

Aged 41 Years, Occu : Service,

R/o. Karajgaon, Tq. Newasa,

District :Ahmednagar.

….Applicant

A N D

1 The State of Maharashtra,

Through : The Secretary,

Revenue and Forest Department,

Mantralaya, Mumbai – 32.


2 The Divisional Commissioner,

Nashik Division, Nashik,

3 The Collector, Ahmednagar,

District :Ahmednagar,

4 The Sub-Divisional Officer,

Tq. Shrirampur, Distt :Ahmednagar,

5 The Tahsildar, Newasa,

Tq. Newasa, Distt :Ahmednagar.

6 The Maharashtra Pollution Control Board,

Sub-Regional Office,

SavitribaiPhule Commercial Market,

1st Floor, Hall No.2 &3 , Near T.V. Centre,

Savedi, Tq. &Distt :Ahmednagar,

7 Seetabai Rambhau Jorvekar,

Aged 57 Years, Occu : Business,

Resident of :Karajgaon, Tq. Newasa,

District :Ahmednagar.

…Respondents

Counsel for Applicant:

Absent - Nemo

Counsel for Respondent :

Mr. Vikas Kulkarni, Adv.

APPLICATION NO.36 (THC) OF 2013

B E T W E E N:

PRABHAKAR PRATAP PANGAVHANE

Age 70 years, Occ. Agriculture

R/oMahe-Deshmukh, TalukaKopargaon,

District Ahmednagar

Through its Power of Attorney Holder

Avinash Prabhakar Pangavhane

Age 40 Years, Occ. Agriculture,

R/o Mahe-Deshmukh, Taluka : Kopargaon,


District Ahmednagar.

. ........Applicant

Versus

1. State of Maharashtra

Through the Secretary,

Environment Department,

Mantralaya, Mumbai.

2. Maharashtra State Pollution

Control Board, Kalpataru Point,

3rd Floor, Opp. Cine Planet, Sion

Circle, Mumbai, Through its

Chairman

3. Sub-Regional Office,

Maharashtra Pollution Control Board

SavitribaiPhuleVyapariSankul,

Near T.V.Centre, Savedi,

Ahmednagar.

4. District Revenue, Collector,

Ahmednagar

5. Balasaheb Pundlik Kale

Age Major, Occu. Business.

6. Jaywant Tukaram Kale,

Age Major, Occu. Business.

Respondent Nos.5 & 6,

R/o Mahe-Deshmukh, Taluka Kopargoan

District Ahmednagar.

…..Respondents

Counsel for Applicant

Mr. Yogesh J.Kamat.

Counsel for Respondent(s):

Mr. D.M.Gupte and

Mrs Supriya Dangare for Respondent No.1,2, 3.

Mr. A.P. Akut for Respondent Nos.5 & 6.


DATE : 24th February, 2014

COMMON – JUDGMENT

1. Two Writ Petitions No. 2059 of 2013 and WP No. 9855

of 2012 have been transferred to this Tribunal by Hon’ble High

Court of Bombay, Bench at Aurangabad and thereafter have

been registered as Applications. Both these Applications involve

common issues related to pollution caused due to Brick kilns,

environmental impacts of brick kilns and operating the Brick

Kilns without necessary permissions from regulatory

authorities, including MPCB. For the sake of clarity, facts in

both these cases have been separately narrated before outlining

the Issues to be decided in these Applications.

Facts in APPLICATION No. 07(THC)/2013(WZ)

2. Applicant Sonyabapu filed Writ Petition No.2059 of

2013 seeking prohibitory injunction against Respondent No.7

Sitabai from running brick-kiln in agricultural land bearing Gat

No.51/2A, admeasuring 10 Gunthas (Aars) situated at village

Karajgaon under Newasa Tahsil (District Ahmednagar).

Incidentally, he also challenged order dated 5th December 2012

issued by Tahsildar, Newasa, whereby Respondent No.7 Sitabai

was permitted to run the brick-kiln in the said agricultural land.


3. The above Writ Petition was transferred to this

Tribunal by Hon’ble High Court of Judicature at Bombay, Bench

at Aurangabad by order dated October 01st, 2013. Afresh

notices were issued thereafter. The pleadings were completed.

The matter was thereafter heard on merits.

4. Briefly stated, case of Applicant Sonyabapu is that

Respondent No.7 Sitabai is running a brick-kiln in agricultural

land bearing Gat No.51/2A, situated at village Karajgaon,

without obtaining valid permission of competent authority, in

defiance of the statutory provisions. His father had filed Writ

Petition No.2854 of 2005 in the Hon’ble High Court of Bombay,

seeking relief against the illegal activities of running brick-kiln

by Respondent No.7 Sitabai. That Writ Petition was, however,

disposed of in view of statement made by Learned A.G.P. to the

effect that the District Collector will take appropriate action

against Respondent No.7 Sitabai if the brick-kiln is found to be

illegal and being run without necessary permission. Still,

however, no action was taken till the date.

5. Applicant Sonyabapu gave account of civil dispute

which was raised by filing a suit (R.C.S.No.27 of 2005) by

Respondent No.7 Sitabai against him in the Court of Learned

Civil Judge (Jr.Dn.) Newasa for prohibitory injunction. By filing

such a suit, she sought permanent injunction restraining him

from interfering into her lawful possession over the suit

property, namely, land bearing Gat No.51/2A. The suit was


decreed by the Civil Court vide its judgment and decree dated

23rd January 2009. Feeling aggrieved, Applicant Sonyabapu

preferred an Appeal (R.C.A.No.14 of 2009) in the District Court,

Shrirampur. He also sought stay to the injunction decree. An

exparte stay order was granted by the District Court against the

exparte order of stay, Respondent No.7 Sitabai has preferred

Writ Petition No.5142 of 2012 in the Hon’ble High Court of

Bombay, Bench at Aurangabad. That Writ Petition is still

pending.

6. According to Applicant Sonyabapu, he made various

complaints against illegal activities of Respondent No.7 Sitabai.

By communication dated 29th June 2009, the TahsildarNewasa

informed him that Respondent No.7 has not obtained any

permission from the District Health Officer or Zilla Parishad

Ahmednagar or Gram Panchyat Karajgaon for running of the

brick-kiln. He alleges that on enquiry, he came to know that

the Gram Panchyat office of village Karajgaon did not issue “No

Objection Certificate (NOC)” to Respondent No.7 Sitabai for

running of the brick-kiln. He gathered information that the

Maharashtra Pollution Control Board (MPCB) has not granted

any permission to Respondent No.7 Sitabai for running of the

brick-kiln.

7. It is the case of Applicant Sonyabapu that as per the

guidelines of the MPCB, set-out vide communication dated 18th

February 1997, no brick-kiln can be permitted within distance


of 500 meters from residential premises or a public road. The

brick-kiln of Respondent No.7 Sitabai is being run illegally in as

much as it is at a distance of about 120 ft. from the nearby

public road. Thus, it is being operated in violation of the

guidelines issued by the MPCB. Further, the brick-kiln is being

run without payment of royalty to the Government for the stock

of earth (soil) that was being used for manufacturing of the

bricks. Therefore, on 24th February 2012, Respondent No.7

Sitabai was directed to pay a fine of Rs.25,000/- for illegally

transporting of the earth (soil) without payment of royalty, as

per the communication issued by the Tahsildar, Newasa.

Though, previously the Tahsildar had prohibited Respondent

No.7 Sitabai from running of the brick-kiln by an order dated

13th June 2012, yet subsequently by impugned order dated 5th

December 2012, the said prohibitory order was re-called and

declamped.

8. According to Applicant Sonyabapu, brick-kiln of

Respondent No.7 Sitabai is surrounded by residential houses of

300 to 400 inhabitants. The life and health of the inhabitants

residing around the brick-kiln is endangered due to the

pollution caused on account of running of the brick-kiln by

Respondent no.7 Sitabai. The Air Pollution caused due to

smoke emanating from the brick-kiln has also damaged the

crops in the surrounding area. The authorities have failed to

take suitable action against Respondent No.7 Sitabai in spite of


various complaints made by him and other inhabitants of the

locality. His right to life and right to enjoy pollution-free

atmosphere is violated due to running of the brick-kiln by

Respondent No.7 Sitabai. It is necessary to shut down the illegal

brick-kiln in order to protect his life as well as life of other

inhabitants of the locality as per protection available under

Article 21 of the Constitution of India. It is in the wake of these

background facts that he approached the Hon’ble High Court

Bombay, Bench at Aurangabad by filing of the Writ Petition

which has been transferred to this Tribunal.

9. By filing reply-Affidavit, Arun Ujagare, Tahsildar

Newasa resisted the Application on behalf of Respondent Nos. 1

to 5. All the material allegations of Applicant Sonyabapu are

denied by him. He submitted that the earlier order dated 13th

June 2012 was recalled by impugned order dated 5-12-2012 in

view of subsequent developments. He contended that since

Respondent No.7 Sitabai was granted prohibitory decree by the

Civil Court, as a result thereof the earlier communication was

recalled. His response in the matter is, however, of no much

importance.

10. On behalf of the Respondent Nos.2 and 3, the

Regional Officer, Shri. Ankush Fulse, filed reply affidavit. In his

affidavit, he explained that the MPCB, is not the Authority to

grant Consent to establish for the bricks Kilns and the same are

being regulated by the Revenue Department, the Govt. of


Maharashtra till the date. His affidavit is to the effect that the

role of MPCB, is limited to the extent of monitoring air emissions

and to look into the complaints of air pollution, in respect of the

bricks kiln activities. The affidavit shows that the emissions in

respect of impugned brick kiln were found to be normal during

the course of monitoring of ambient air quality, as conducted in

pursuance to the communication of the District Collector,

Ahmednagar, in June, 2006. The affidavit of Shri.Ankush Fulse,

is to the effect that the impugned brick kiln is adjacent to the

road and is situated at a distance of about 100 mtrs from the

road. The affidavit further shows that the brick kiln of

Respondent No.7, Sitabai, is approximately 2 km away from the

village locality of Karajgaon and is about 2 km away from the

river ‘Mula’. So also, it is about 250-300 mts away from the

residential house of the Applicant-Sonyabapu. The brick kiln

was found closed w.e.f. 7th June, 2013. The affidavit shows that

the brick kiln is an old type (traditionally used) for

manufacturing of bricks at the countryside and is called

‘Çhamp Bhatti’.

11. The stance of the Respondent Nos.2 and 3, is that

they are not the Authorities for granting permission/licence for

the brick kilns and particularly, traditional type Clamp brick

kilns run at the countryside.

12. By filing her reply affidavit, Respondent No.7,

Sitabai, resisted the Application. She is the main contesting


party to the Application. According to her, the bricks kiln is

being run since 1988, in traditional way. She submits that she

is a Potter by caste and it is her family business to deal in

manufacturing of the bricks. She narrated that she has

obtained necessary permission for Non-Agricultural use (NA-

permission) issued by the Revenue Authority for converting land

Gat No.51/2A for Non-Agricultural use. She claims to have

purchased the said land Gat No.51/2A, from its previous owner

for valuable consideration. According to her, as per Notification

of the Revenue and Forest department, the traditional Potter is

permitted to remove earth, stone and murum up to the extent

of 500 brass, from the bed of the Sea or from the bed of any

creek, river and Nallas, in accordance with the Rules under the

Mines and Mineral Regulation (Development) Act, 1957. She

claims, however, to have paid royalty for procurement of the

sand and the earth, for manufacturing of the bricks. According

to her the bricks kiln, is being run without causing any pollution

to the nearby area. Her case is that she had filed a suit bearing

RCS No.27 of 2005, for perpetual injunction against the

Applicant and sought injunction restraining the Applicant from

running the bricks kiln business. She submits that the suit has

been decreed and, therefore, the Applicant has filed various

complaints including the present Application. She denied that

the bricks kiln is being run without any lawful permission. She

further denied that the bricks kiln is being run against the


settled parameters, as per the guidelines of the MPCB. Her

contentions is that though the bricks kiln does not cause any

air pollution and violation of environmental norms, yet the

Applicant has filed false Application with a view to harass her.

Hence, she sought dismissal of the Application.

13. No other response was filed by any other party. Nor

we think that it is necessary to insist for calling any such

response from them.

14. Before we proceed to consider the contentious Issues,

let be it noted that the parties have already gone through one

round of civil litigation. A suit bearing RCS No.27 of 2005, was

filed by the Respondent No.7, Sitabai, against Applicant

Sonyabapu for prohibitory injunction. The Civil Judge, Newasa,

decreed that suit. It may be mentioned here that the Ld. Civil

Judge, considered the question of lawful possession of

Respondent No.7, Sitabai, over land Gat No.51/2A, in that suit.

The decree in that suit, in fact, has no bearing in the context of

the present Application. The subject matter of the present

Application is the threat to the environment, which is caused,

or likely to be caused due to running of the bricks kiln,

particularly, due to the air pollutants discharged therefrom. The

real question is whether any standards are prescribed for the

traditional brick kilns called ‘Çlamp (Country type) brick kilns’.

Another important question is, whether the MPCB is licencing

authority, under any rules for such kind of Bricks Industry. For,


the chief bone of contention raised by the Applicant is that the

bricks kiln, is being run against the settled environmental

norms and particularly the guidelines of the MPCB.

15. Learned Counsel for Respondent No.7 Sitabai argued

that air quality Report of the MPCB was found to be as per

prescribed standard when the samples were collected and

examined. He referred to MPCB report dated 12-11-2006. The

samples were collected on 7-1-2006. The report shows that the

brick-kiln is located at a distance 2 k.m. from the village

Karajgaon and is run seasonally for 5 months per year. The

Report further shows that the fuel used is coal of 3 to 4 M.T.

p.m. The proposal of renewal for licence was found pending with

the Tahsildar. There was no Chimni fixed on brick-kiln. The

report shows that there was no fugitive emission around the

area. This report runs contrary to the Enquiry Report submitted

by the Tahsildar, Newasa vide communication dated 29-2-2009.

Moreover, the report pertaining to the samples collected in the

month of January 2006 has hardly any bearing on the juxta

position for the subsequent period. We have perused the

photographs placed on record. We have also the perused the

copies of challans filed by Respondent No.7 Sitabai. It appears,

no doubt, that Respondent No.7 Sitabai has paid royalty for

extraction of sand in order to run the brick-kiln. She has not

however, placed on record any valid permission granted in her

favour to run the brick-kiln.


16. We may mention at this juncture that by

communication dated 06-05-2012 bearing Tahsil/Jamin/31-

12, Tahsildar, Newasa directed Respondent No.7 Sitabai to close

down the brick-kiln for the reason that the smoke emanating

therefrom was causing nuisance to the inhabitants of the

vicinity. The said communication further shows that the policy

of the MPCB was that no permission should be granted to such

old type Clamp (traditional) brick-kilns. Thus, it is amply clear

that closure of said brick-kiln was ordered due to the fact that

it was found to be nuisance to the residents of the vicinity due

to the smoke which was found emanating there from. There is

no substantial reason to deviate from such observations shown

in the communication issued by the Tahsildar.

17. What appears from impugned communication dated

05-12-2012 (Ex-N) is that the Tahsildar, Newasa had withdrawn

the earlier communication because the suit bearing R.C.S.No.

27/2005 was decreed and though the interim order was

challenged, yet, the Tahsildar was not made a party in the suit

as well as in Writ Petition No. 9131/2012. Obviously,

withdrawal the previous communication was for extraneous

reasons unconcerned with issue of environment and based

upon the decree which was passed in the Civil Suit bearing

R.C.S.No.27/2005. As stated before, the subject matter of that

suit was the question of lawful possession claimed by

Respondent No.7 Sitabai over land Gat No.51/2A and had no


relation with the question of environmental damage caused due

to running of the brick-kiln in that land. Needless to say, the

issues involved in the earlier suit and the present Application

are quite distinct in nature.

18. Coming to the earlier Enquiry proceeding in the

context of complaint made by Applicant Sonyabapu, a copy of

Report submitted to Sub-Divisional Officer, Shrirampur

Division Shrirampur on 29-2-2009 is placed on record. It

appears that Executive Magistrate of Sonai conducted an

inquiry into the complaint in pursuance to communication

dated 25-6-2009 issued by the Sub-Divisional Officer of

Shrirampur, Sub-Division. From the said report, following

information may be gathered.

a) From 1992 onward Respondent no.7 Sitabai

did not seek any NOC from Sarpanch of Gram

Panchyat, Karajgaon.

b) There is residential locality near the said brick-

kiln. There were 35 houses in that locality in

1991 but during 2009, 70 houses were found

around the brick-kiln and they are situated on

eastern side of the road. The road is about 120

ft. away from the brick-kiln.

c) The brick-kiln was not in operation as was

closed down in accordance with direction of

the Tahsildar issued by communication dated

16-6-2002.


d) There are vegetables and fruit bearing plants

in the adjoining areas which are likely to be

damaged due to the Air Pollution caused

during the running of the brick-kilns because

of non-availability of free air.

(Emphasis supplied by us)

19. From the Fact Finding Report mentioned above, it is

amply clear that running of the brick-kiln in land Gat No.51/2A

by Respondent No.7 Sitabai, tantamounts to threat to the

environment. It is not necessary to establish that actual loss or

damage is caused to the environment.

FACTS OF APPLICATION NO.36 (THC) OF 2013

20. The Writ Petition No.9855 of 2012, was transferred to

this Tribunal by the Hon’ble High Court of Judicature at

Bombay, Bench at Aurangabad vide its order dated 20th

September, 2013. This Application has been filed by the

Applicant claiming that brick kilns operated by the Respondent

Nos.5 and 6, have posed a serious issue of pollution and health

hazard in the surrounding area and also ambient temperature

has increased in the locality. It is claimed by the Applicant that

he has agricultural farm in gut No.280 of village Mahe-

Deshmukh, taluka Kopargaon District Ahmednagar. He has

further submitted that the Respondent Nos.5 and 6 have started

brick kilns in gut Nos. 278 and 277 which are adjoining to his

land. The Applicant further claims that serious air pollution is


caused and also the solid waste from the brick kilns is disposed

improperly and therefore there is serious environmental

concern and degradation in the area and his agricultural fields

are affected and also there is serious threat to the health of

people residing in the surrounding.

21. The Applicant further submits that he has made

complaints to the Collector as well as the MPCB (Respondent

Nos.2 and 3), however, the Authorities have not taken necessary

action on his complaints. The Applicant further submits that

the brick kilns are being operated illegally without obtaining

statutory permission from the revenue Authorities as well as the

MPCB. The MPCB visit inspection report is produced on record

which shows that the brick kilns have not been provided with

any type of air and water pollution control system. Further

village Mahe-Deshmukh is about 250-300m from the brick

kilns. Further the residence of complaints (Applicant) is about

250-300. The brick kilns are along Mahe-Deshmukh to Kolgaon

Thadi road. The affidavit goes on to mention that various crops

like Sugarcane, Wheat, Onion were observed in the agriculture

lands adjoining to the brick kilns and the brick kilns were not

in operation during the visit.

22. The Respondent Nos. 2 and 3 filed affidavit dated 18th

January, 2014 through Shri. Ankush S. Fulse, the Regional

officer of the MPCB. The Respondents have submitted that the

MPCB is not granting consent to establish and consent to


operate to the brick kilns activity and these activities are

regulated by the revenue department, Govt. of Maharashtra. He

has further submitted that the Respondent Board had

circulated the guidelines to all the District Collectors in the

State of Maharashtra, by letter dated 18.2.1997 and the

guidelines can be summarized as under:

1) Coal of 10 a.m. size with less dust content shall be used

as a fuel in Brick kiln. The brick kilns shall be

mechanized, so as to use coal properly. Rubber, Plastics,

Hazardous Wastes etc. shall not be used as fuel in Brick

Kiln to avoid any toxic emission & smell nuisance.

2) Waste/Ash generated from Brick Kilns shall be recycled

for brick manufacturing activity to maximum extent.

3) The Owner of the mechanized Brick Kilns shall take

necessary measures to minimize the noise pollution.

4) Ash generated from the brick kilns shall be covered with

bricks/tiles to avoid spreading of dust. To minimize the

dust emission, water shall be sprinkled around the brick

kilns and approach roads shall be made pucca.

5) Around the brick kilns double layer compound wall wish

ash between layer shall be constructed and to avoid

losses of heat double layer steel cover with asbestos

between layer shall be provided.

6) The location of brick kiln shall be 500 meters away from

the State/National High way and human habitation.

These guidelines are also placed on record.

23. The affidavit further goes on to mention that there are

emissions of air pollutants from the brick kiln activity, due to


combustion of various types of fuels. The affidavit further

mentions that in the area surrounded by the brick kilns, the

prescribed standards laid down for ambient air quality under

the provisions of Environmental Regulations needs to be

complied with.

24. The Respondent No.5, submitted detailed affidavit

and pleaded that the Applicant has not pleaded, much less

proved, as an actual time and date of ‘cause of action’ and/or

knowledge thereof and, therefore, the Application is not

maintainable in the present form. Further the Respondents

have alleged that there are ulterior motives behind this

Application, and appropriate proceedings have been initiated by

the Respondents against the Applicant with the concerned

Authorities. However, the Tribunal is not concerned with such

issues and therefore refrains from commenting on the same.

25. The Respondent No.5 submits that the Respondents

are running their two (2) traditional brick kilns in gut No.278

and 279 of village Mahe-Deshmukh, taluka Kopargaon, District

Ahmednagar since 2000-01. They further submit that they are

running their traditional brick kilns by using fly ash, bagasse,

soil, coal and wood for the brick kilns. They further submit that

they have never used nor will ever use banned fuels such as

Rubber, Plastic, hazardous wastes etc. for the operation of their

traditional brick kilns. Solid waste generated from the bricks

kilns, is again reused in the bricks kilns. It is also submitted


that there is no State and/or National Highway within 500m

from traditional brick kilns of the Respondents. The

Respondents, therefore, plead that they are operating their

traditional brick kilns by paying necessary royalty to the

revenue department and in fact, Tahasildar Kopargaon, has

granted permission to the Respondents to operate their

traditional brick kilns vide letter dated 29 January, 2014.

26. The Respondents further submit that gut Nos.278

and 279 in which the Respondents operate their traditional

brick kilns are surrounded as under:

On or towards East : part of gut No.277

On or towards West : gut No.281

On or towards South : gut No.280

On or towards North : Road.

Copy of village map of village Mahe-Deshmukh, is also

placed on record.

27. The Respondents have submitted 7x12 extracts of

above lands since 1999 till the date and the Counsel for the

Respondent No.5, argued on the basis of these documents that

all gut numbers except gut No.280, which is owned by the

Applicant, are being cultivated. He further mentioned that

regular crops are being taken even in the gut Nos. 278 and 279

where the brick kilns are operational. He, therefore, argues that

there is no truth in the allegations of the Applicant that the brick

kilns operations have affected the agriculture fields and the


yield. He mentions that the Applicant’s land is not being

cultivated by the Applicants since year 2002, for the reasons

best known to him and the Applicant is trying to blame the

Respondents for his own inaction and negligence, which cannot

permitted by any law and in equity. The Applicants have also

submitted affidavits of some villagers, whom he claim to be

users of this road, which is adjacent to the brick kilns on the

north side, mentioning that there is no nuisance or pollution

experienced while traversing through the road. The

Respondents further submit that there is no human habitation

within the distance of about 600m (2,000 ft) from the traditional

brick kilns of the respondents and therefore, there is no

question of having any adverse impact of pollution of brick kilns

on the human health. The Respondents, therefore, have pleaded

for dismissal of the Application with heavy costs.

28. We have heard learned Counsels for the contesting

parties in both these Applications, including Counsel for the

MPCB. We have perused the relevant material placed on record.

We are of the opinion that the following Issues are involved in

the Applications. They are:

1) Whether it can be said that the bricks kiln run by the

concerned Respondents are being run in breach of the

environmental norms and particularly any parameters

fixed by the MPCB or under any Rules of the State Govt.?

2) Whether it is necessary to give directions to the

Respondents to immediately close down the brick kiln?


3) Whether it is necessary to give any other directions, in

order to ensure environmental protection and

particularly prevention of air pollution which is likely to

be caused due to running of the clamp type (Country)

brick kilns, without fixation of proper norms ?

29. There is no denial to the fact that the MPCB, has

issued guidelines for running of the brick kilns. The brick kilns

are required to be run by obtaining necessary permission of the

District Collector or any Authority to whom such power is

delegated by the Collector. A communication dated 13th

February, 1997, issued by the then Member Secretary of the

MPCB, and addressed to the Collector, on the subject of

permission to be granted to the brick kilns, would show that the

safeguards and guidelines of the MPCB are required to be

considered by the Authority, while granting such permission to

run the brick kiln and same may be incorporated in the

permission letter. The communication further shows that no

separate consent by the MPCB will be necessary for running of

the brick kilns. The communication is annexed with a separate

note, which shows various guidelines, set out for five(5) kinds of

brick kilns.

30. From the record, it appears that there are five (5)

kinds of brick kilns, as shown below:

a) Clamps,

b) Movable Chimney Bull Trench Kiln (MCBTK),

c) Fixed Chimney Bull Trench Kiln (FCBTK),


d) High Draft Kilns (HDK), and

e) Vertical Shaft Brick Kiln (VSBK).

31. Admittedly, there is no particular standard fixed by the

MPCB for grant of consent to traditional country type (clamp

type-Bhatti) i.e. category-I brick-kilns. Nor, the MPCB initially

claimed to be the authority to grant consent to

establish/operate such kind of the brick-kilns. What appeared

from the record is that the MPCB has issued communication to

the District Collector of each district to incorporate safeguards

as per those guidelines while granting permissions for

establishment of the brick-kilns. The guidelines, no doubt,

cannot be treated as part of the Rules. We find from the record

that the Applicants in both Applications made various

complaints in respect of the fugitive emissions arising from the

brick-kilns run by concerned Respondents. However, MPCB

has not submitted the levels of pollution and also, ambient air

quality data, except one observed in 2006.

32. We have heard learned Counsel. During hearing on

February 10, 2014, we have perused record of both the matters

together. We have noted that Chairman, Central Pollution

Control Board (CPCB) vide letter No. F.No.B-

29012/1/2012/ESS/1540, dated 4th June, 2002, has issued

directions under Section 18 1(a) (b) of Water (Prevention and

Control of Pollution) Act 1974, regarding classification of

Industries into Red, Orange and Green categories to the State


PCBs. It is noticed from the letter that brickfields are classified

as Orange Industry/Process, for grant of Consent and other

relevant activities. The term ‘Brickfield’ has been defined by the

Oxford Dictionary, as “an area of ground where bricks are

made”. Similarly, Free Dictionary defines the Brickfield’ as

“place where bricks are made and sold”. It can be seen from the

above that the CPCB, has already considered the brick

manufacturing as an activity for which the consent under the

Water and Air Pollution Act, is required and accordingly the

directions have been issued to the State PCBs.

33. We brought this to the notice of counsel for MPCB and

sought clarification from the MPCB, whether the directions of

the CPCB dated 4.6.2012, and clarification of the entries in the

said directions pertaining to bricks kilns, are applicable to the

brick kilns of traditional nature i.e. Clamp type (country type)

brick kilns (Bhatti). He was also asked to clarify whether any

particular emission standards are prescribed or likely to be

prescribed and whether any consent is necessary for such type

of brick kilns from the MPCB?

34. Accordingly, the MPCB has filed additional affidavit on

17.2.2014, through Ankush S. Fulse, the Regional officer of the

MPCB. The MPCB has submitted that the brick kilns (excluding

fly ash bricks manufacturing using lime process), are covered

under entry No.7 of the list of Orange category Units and

therefore, in view of the specific categorization of the brick kilns


in Orange category, as far as consent regime is concerned, it is

obligatory on the part of all the brick kilns to obtain consent

form the Board. (Emphasis supplied). The affidavit further goes

on to mention that the MPCB has, therefore, directed all the

Regional Officers and Sub-Regional Officers to cover such type

of activities under consent management by circulating CPCB

directions. We have noted that this is complete change of stand

taken by the MPCB, as in the earlier affidavits MPCB has stated

that it is not at all concerned in the permission granting

mechanism for the brick kilns and it is the revenue authority

who grants them permission. However, the present affidavit has

taken volte-face.

35. The affidavit of the MPCB further mentions that the

MoEF has already notified the standards for bulls trench kilns

(BTK), down draft kin (DDK) and necessary conditions have also

been stipulated. However, the affidavit do not contain anything

about the emission standards which have been prescribed or

will be prescribed while considering the Applications for consent

by clamp type i.e. traditional brick kilns, though it was

specifically directed by the Tribunal to the MPCB to clarify the

position. We, therefore, find it difficult to appreciate on what

basis and circumstances; the Board has decided to cover these

traditional brick kilns under the consent regime, when it has

not decided any emission standards which form the core part of

the Consent under the provisions of Air and Water (Prevention


and Control of Pollution) Acts. The affidavit itself mentions that

unless the brick kilns obtains consent to operate (after

stipulation of necessary pollution control arrangements) the

brick kilns will not be allowed to operate. We find it difficult to

understand such a proposition when the Board itself is not sure

about the emission standards, required air pollution control

system, required environmental safeguards which need to be

considered in appraisal of the consent application and also, the

monitoring mechanism for compliance of conditions.

36. MoEF has notified industry specific emission

standards for the brick kilns under the provisions of

Environmental (protection) Rules vide notification dated

22.7.2009, wherein emission standards have been specified for

(i) Bull’s Trech Kiln (BTK), (ii) Down-Draft Kiln (DDK) and (iii)

Vertical shaft kiln (VSK) types of the Brick kiln. This notification

is salient about the emission standards for the Clamp type of

Brick kiln. MoEF has further issued a office memorandum on

24.6.2013 notifying the guidelines for consideration of

proposals for grant of environmental clearance under EIA

notification for mining of ‘Brick earth’ and ‘ordinary earth’ which

are also relevant in the instant case. Incidentally, SPCB’s in

Rajastan, Uttar Pradesh and Punjab have a policy to grant

consent to Brick kilns under the provisions of Air Act, 1981 and

Water Act, 1974. In fact, Rajastan PCB grants consent to Brick

kilns under Red category i.e. highly polluting activity.


37. One of the important observations noted in the present

Application relates to absence of emission standards for the

clamp type traditional brick-kilns, as noted from the MPCB

affidavit. MPCB has already submitted that all the brick-kilns

need to obtain the Consent from MPCB under Water and Water

Acts in compliance with the directions issued by CPCB. It is an

admitted fact that the emission standards and also, the

conditions to be incorporated in consent are essential pre-

requisites for appraising the consent applications. We therefore

record the necessity of stipulating the air emission standards

and other conditions for environment safeguard before

implementing the decision of MPCB to cover the brick kilns

under consent management. This Tribunal has already ruled on

the Authority for prescribing the emission standards under

provisions of Air Act, 1981 in M.A.No.202 of 2013 and

according, it is the State Pollution Control Board which will have

to formulate and stipulate the air emission standards and other

environmental safeguards for such brick kilns. In the instant

case, MPCB has taken the decision based on the directions given

by CPCB, and therefore it is expected that CPCB must have

considered all such aspects while issuance of directions, and if

such standards have already been framed by CPCB, MPCB can

consider adopting the same or develop its own standards by

following due process of law.


38. The Tribunal has to consider “Precautionary Principle”

as contemplated U/s. 20 of the National Green Tribunal Act

while deciding such a substantial question relating to the

environmental dispute. We may refer to the observation of the

Apex Court in “Vellor Citizens' Welfare Forum Vs. Union of

India, “(1996) 5 SCC 647” and further explained in M.C.

Mehta Vs. Union of India, “(2004) 12 SCC 118”, the Apex

Court observed:- "Law requires anticipatory action to be taken

to prevent harm. The harm can be prevented even on a

reasonable suspicion. It is not always necessary that there

should be direct evidence of harm to the environment." The

Supreme Court, thereafter, observed in paragraph 26:

"26. The concept of "sustainable development" has been

explained that it covers the development that meets the

needs of the person without compromising the ability of

the future generation to meet their own needs. It means

the development, that can take place and which can be

sustained by nature/ecology with or without mitigation.

Therefore, in such matters, the required standard is that

the risk of harm to the environment or to human health is

to be decided in public interest, according to a "reasonable

person's" test. The development of the industries,

irrigation resources and power projects are necessary to

improve employment opportunities and generations of

revenue; therefore, cannot be ignored. In such eventuality,

a balance has to be struck, for the reason that if the

activity is allowed to go, there may be irreparable damage

to the environment and there may be irreparable damage

to the economic interest. A Similar view has been


reiterated by this Court in T.N. Godavaram Thirumulpad

(104) vs. U.O.I. &Ors. (2008) 2 SCC 222; and M.C. Mehta

vs. Union of India &Ors.(2009) 6 SCC 142”.

39. Though, the MPCB has now taken a decision to issue

such permission, yet, guide-lines issued by the MPCB in 1997

are ordinarily required to be followed in absence of fixation of

standards for Clamp type of Brick kiln and particularly when

there are no specific Rules framed for Clamp type Brick kiln by

the Ministry of Environment and Forest (MoEF) or the State

Government. In both cases, these guidelines are not adhered

to. We are of the opinion, therefore, that the running of

impugned brick-kilns is illegal activity and will have to be shut

down as it poses threat to the environment to the surrounding

area. We are also of the opinion that there is need to consider

fixation of environmental safeguard as per Environmental

(Protection) Act 1986 and/or Air Act, 1981 and also to identify

the authority who is competent to issue permission for

establishment/operation of such brick-kilns. We have noted

that the state of Uttar Pradesh has framed certain Rules titled

“Uttar Pradesh brick-kilns setting Criteria for Establishment)

Rules 2012”. Govt. of Andhra Pradesh has also notified

guidelines for Clamp type Brick Kilns. Rajastan Pollution

Control Board has also issued guidelines for Brick kilns.

40. Admittedly, the brick kilns in both these cases are

operating without the necessary consent from MPCB and also,


have not provided the air pollution control arrangements, as

noted by MPCB. Cumulative result of the foregoing discussion

is that the Applications will have to be allowed. We deem it

proper to allow the Applications with certain conditions. We

direct concerned Respondent owning and operating the Brick

kilns to stop running of the brick-kilns and also direct the other

Respondents to ensure that such activity is closed down.

However, we are not inclined to make our order operational with

immediate effect because MPCB has just now came forward with

a decision to cover such brick kilns under consent regime and

also, MPCB has not finalized any emission standards or the

requirement of air pollution control arrangements at such brick

kilns besides stipulating the required safeguards.

41. Considering foregoing discussion and legal position as

above, the Applications are partly allowed in terms as shown

below :

a. The Brick kilns operated by concerned

Respondents shall not be operated beyond 1st

September 2014, without the necessary consent

of MPCB.

b. MPCB shall formulate and notify the emissions

standards for clamp type traditional brick kilns

under the provisions of Air (P&CP) Act, 1981,

within a period of 4 months following due

process of law. CPCB shall provide necessary

technical assistance for the same.


c. The State Government of Maharashtra shall

consider framing of suitable Rules for brick

kilns, may be on line of the Rules notified by the

Uttar Pradesh viz. Uttar Pradesh Brick-kilns

Setting Criteria for Establishment Rules 2012 or

other Rules/guidelines prevailing in other State

like State of Rajasthan, Andhra Pradesh, within

next 4 months.

42. We make it clear, however, that Respondents owning

and operating brick kilns will have a right to apply for

permission or the consent to establish and operate the brick-

kiln in their land if such Application is in accordance with

relevant norms. The competent authority may consider their

Application as per the norms/Rules existing as on the date of

such application. In case such valid permission is granted, they

may operate the brick-kiln without causing environmental

damage as per the conditions that may be imposed, by avoiding

environmental degradation/ nuisance/damage.

43. The Applications are accordingly allowed and disposed

of. No Costs.

.…………….……………….,JM

(Justice V. R. Kingaonkar)

..…….……………………., EM

(Dr. Ajay. A. Deshpande)

before the national green tribunal (western...

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