BEFORE THE NATIONAL GREEN TRIBUNAL CENTRAL ZONAL BENCH, BHOPAL. Original Application No. 114/2013 (CZ)

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1 CORAM: BEFORE THE NATIONAL GREEN TRIBUNAL CENTRAL ZONAL BENCH, BHOPAL Original Application No. 114/2013 (CZ) Hon ble Mr. Justice Dalip Singh (Judicial Member) Hon ble Mr. P.S. Rao (Expert Member) BETWEEN: 1. Pramod Sharma S/o Ramswaroop Sharma R/o Temple of Mallashah, Bundi, Rajasthan 2. Gopal Dadhich S/o Shivdatt Dadhich, R/o Sethji Ka Chawk, Bundi, Rajasthan 3. Khemraj Saini S/o Dwarkalal Saini, R/o Kagaji Devra, near Naru Ki Bavdi, Bundi, Rajasthan. 4. Amit Sharma S/o Purshottam Lal Sharma, R/o Gadhmalji Ki Gali, Bundi, Ranasthan 5. Narendra Dhabai S/o Jagannath Dhabai, R/o Shitala Gali, Bundi, Rajasthan 6. Mukesh Nama S/o Narsingh Lal Nama, R/o Balchand Pada Chaudhary Ki Gali, Bundi, Rajasthan. 7. Heerlal Gujar S/o Bihari Gujar, R/o near temple of Akoda Thakur Ji, Bundi, Rajasthan. 8. Shambhu Singh S/o Durga Singh Ji R/o Opposite Bidi Factory, Bundi, Rajasthan...Applicants Versus 1. State of Rajasthan through District Collector, O.A. No. 114 of 2013 Page 1 of 18

2 Bundi, Rajasthan 2. Tehsildar, Bundi, Rajasthan 3. District Forest Officer, Bundi, Rajasthan 4. Mines Engineer (First), Bundi, Rajasthan 5. Mines Engineer (Second), Bundi, Rajasthan 6. Nagar Palika Bundi through Executive Officer, Bundi, Rajasthan 7. Chairman, Pollution Control Board, Jhalana Doongri, Jaipur, Rajasthan....Respondents Counsel for Applicant: Counsel for State of Rajasthan: Counsel for RSPCB : None Mr. Ayush Dev Bajpai, Advocate for Mr. Sachin Verma, Advocate Mr. Suman Mandal, Advocate for Shri Sandeep Singh, Advocate Dated : April 21 st, This O.A., originally filed as DB Civil Writ Petition (PIL) numbered as W.P. No. 2662/2006 filed by one, Shri Pramod Sharma and 7 others Vs. State of Rajasthan & Others in the Hon ble High Court of Rajasthan, Bench at Jaipur with the prayer to direct closure of brick kiln activities in Bundi District and in areas adjacent to Bundi city in the State of Rajasthan. In pursuance to the order dated 23 rd September, 2013 of Hon ble High Court of Rajasthan issued in consonance with the order dated 9 th August, 2012 of the Hon ble Supreme Court passed in Bhopal Gas Peedith Mahila Udyog O.A. No. 114 of 2013 Page 2 of 18

3 Sangathan and Others Vs. Union of India & Others (2012) 8 SCC 326, the above said writ petition was transferred to the Central Zone Bench, Bhopal of National Green Tribunal. Upon its transfer, the writ petition was registered as OA No. 114/2013 and notices were issued to all the parties vide order dated 5 th December, Later on, the case was heard on 27 th January, 2014, 18 th February, 2014, 14 th March, 2014 and finally on 21 st April, None appeared for the Applicants on all the aforesaid dates of hearing. 2. In the writ petition it has been stated by the Applicants that they are residents of District Bundi, involved in various social activities and participating in various programmes to spread environmental awareness in larger public interest. They stated that Bundi city is having more than seven centuries of history with rich heritage. It is rich in agricultural activities and is surrounded by the famous Aravali Hills attracting foreign and local tourists. It is also rich in water resources and forests giving a look of a mini hill station. Of late, many brick kilns for manufacturing bricks for commercial purpose, have been started around the city of Bundi and other parts of the district without following the safety norms leading to environmental pollution and also causing damage to the health of the citizens. The Applicants averred that the Respondents without following the prescribed procedure allowed the brick kiln owners to O.A. No. 114 of 2013 Page 3 of 18

4 continue their activities in violation of various state and environmental laws. 3. The Applicants further contended that under Section 3 of the Rajasthan Land Revenue (Allotment & Conversion of Land for Establishment of Brick Kilns) Rules, 1987 there is a provision for allotment of unoccupied Government land and conversion of agricultural land by Khatedar tenant for the establishment of the brick kilns in the whole of the State of Rajasthan with the condition that the land should not be situated within one kilometre of the village Abadi, the kiln owner shall obtain Mining Lease (in short ML) from the Mining Department and also NOC issued by the concerned village/municipal/local authority who while issuing NOC shall ensure that the proposed brick kiln shall not cause any pollution or fire hazard to village Abadi and storage godowns or places of religious worship or places of historical or tourist importance. However, in the case of brick kilns located in Bundi District and around Bundi city, above said Rules are not being followed and brick kilns are allowed to mushroom in the area. The kiln holders have started digging brick earth in valuable agricultural lands in the vicinity of Bundi city in an illegal and impermissible manner causing damage to the environment. 4. The Applicants further averred that they have submitted various representations to the Respondents for stopping the brick kiln O.A. No. 114 of 2013 Page 4 of 18

5 activities but the Respondents failed to take any steps to safeguard the heritage and environment of the Bundi city and District. Due to illegal manufacturing activities in the brick kilns tourism industry got affected in Bundi District very badly. Further, the brick kiln owners besides digging valuable agricultural lands, have also started illegal collection of firewood from the adjacent forests affecting the environment in the vicinity of Bundi city and district. The brick kiln units scattered around the city of Bundi are having large ovens for firing or burning or drying the bricks and releasing huge quantity of ash and poisonous gases into the atmosphere causing environmental pollution besides adversely affecting the fertility of the agricultural lands. In the above circumstances, the Applicants have prayed for closure of the illegal brick kilns to maintain the heritage of the Bundi District and Bundi city and also to protect the environment. 5. Reply has been filed on behalf of the Respondent Nos. 1 to 5 with the affidavit of Sub-Divisional Officer, Bundi denying that no brick kilns were allowed to operate by the Respondents without permission and they were allowed only after granting licence and after obtaining NOC from Superintendent of Police, concerned Tehsildar, concerned Municipal Board/Gram Panchayat as well as Rajasthan State Pollution Control Board (in short RSPCB). If any unauthorised brick kilns were found to be established and are under operation, they were not only removed but the concerned persons O.A. No. 114 of 2013 Page 5 of 18

6 were inflicted with suitable punishments and only those brick kilns which got licences issued by the Mining Department as per the provisions of the Rajasthan Minor Mineral (Concession Rules), 1986 were allowed to be operated. 6. The Respondent Nos. 1 to 5 further stated that in case the agricultural lands proposed to be utilised for establishing the brick kilns, are not situated near the National Highway or Abadi areas, there is no need of taking permission for using the land measuring a maximum of 2500 sqr. mtrs. and in case any brick kiln owner uses the land more than 2500 sqr. mtrs. near Abadi area or National Highway action is taken against them and such brick kilns are removed besides recording such lands as siwai chak under the provisions of Section 177 of the Rajasthan Tenancy Act, It is further stated that licence issued by the Mining Department is only as per the provisions of the Government of Rajasthan Notification dated 10 th June, 1994 issued under Rule 65A of the Rajasthan Miner Mineral (Concession) Rules, 1986 wherein there is a prescribed procedure of granting permission for manufacturing bricks by using the brick earth. It was also stated by the Respondent Nos. 1 to 5 that allotment of the land and it's conversion for the purpose of establishment of brick kilns, is governed by the Rajasthan Land Revenue (Establishment of Brick Kilns) Land Allotment Rules, 1987 in non-command areas and by the Rajasthan Colonization O.A. No. 114 of 2013 Page 6 of 18

7 Project area Brick Kiln (Lease) Conditions 1966 in command areas. It was further stated that during 2007, the Government of Rajasthan issued Notification dated 2 nd April, 2007 notifying the Rajasthan Land Revenue (Conversion of Agricultural Land for Non- Agricultural Purposes in Rural Areas) Rules, 2007 wherein specific provision has been made for various activities of utilization of agricultural land for non-agricultural purpose and whenever brick kilns are allowed to be established in agricultural land, these Rules are followed before granting licence. It is also stated that no brick kilns are allowed to be established within one kilometre from Abadi area and if any contravention of Rules by any brick kiln holder is noticed, not only the kilns are removed but penalty is also imposed against such brick kiln owners. In one such action about 15 brick kilns were removed by the Tehsildar, 4 Brick kilns were removed by the Municipal Board with the help of the District Administration. It was further stated that as per the report of the Divisional Forest Officer, no illegal cutting of firewood is reported in the forest areas by the brick kiln owners. 7. The Respondent No. 7 RSPCB in their reply stated that there are about 200 brick kiln units in the District Bundi and the units are required to obtain consent of the Pollution Control Board for establishment as well as for operation and for making discharge of emission of air pollutants under the provision of Air (Prevention & O.A. No. 114 of 2013 Page 7 of 18

8 Control of Pollution) Act, 1981(in short Air Act) and Water (Prevention & Control of Pollution) Act, 1981(in short Water Act). These units are also required to comply with the emission standards prescribed under the Environment (Protection) Rules, 1986 (in short EP Rules) issued under Environment (Protection) Act, 1986 (in short EP Act). It was further stated that only in respect of two brick kiln units i.e. M/s. National Brick Industries located in Khasra No. 457 near village Ajela, District Bundi and M/s Ash Brick Company located in Khasra No. 599, village Rehana, District Bundi Consent was granted under the Air Act and the remaining units are found to be operative without the consent of the Board in violation of the provisions of Air Act and EP Rules. Therefore, the Board with a view to prevent and control pollution caused by the unauthorised brick kiln units, has addressed all the Tehsildars in the District Bundi to provide the complete list of brick kilns in their respective jurisdiction. All the Tehsildars were informed that as the brick kiln units were permitted by the District Administration under the Revenue Laws, they would be directed to seek Consent to establish and operate the units only after applying to the State Pollution Control Board. It was also stated by the State Pollution Control Board that the State Board vide its letter dated 2 nd September, 2005 directed all the District Collectors in the state including the District O.A. No. 114 of 2013 Page 8 of 18

9 Collector, Bundi for taking appropriate action against the defaulting brick kiln units. Discussion and Conclusions :- 8. Having gone through the writ petition and the replies filed by the Respondents and having heard the learned counsel for the Respondents, it is evident that a large number of brick kiln units are established in District Bundi and around Bundi city after taking permission from the Revenue and Mining authorities but no Consent to Establish and Consent to Operate was obtained by the brick kiln owners from the RSPCB in violation of the Air Act and EP Act. It appears that the brick kilns are permitted to be established after their application for land conversion is examined and processed by the District Administration/Revenue Department but no action is being taken to direct them to obtain consent from the State Pollution Control Board. Therefore, the following directions are issued for compliance : - (I). In compliance of the directions issued under section 18 (1) (b) of the Water Act by the Central Pollution Control Board (in short CPCB), vide letter dated , the RSPCB in its office order No. F.14 (23) Policy/RPCB/Plg/ , dated ordered categorization of the industries/processes/activities/mines in the state of Rajasthan for the purpose of consent mechanism and brought Brick kiln O.A. No. 114 of 2013 Page 9 of 18

10 industry (excluding fly ash brick manufacturing using lime process) under Orange category. As per the Rajasthan Dept. of Environment notification GSR No. 105 dated given under Air Act and GSR No. 106, dated given under Water Act brick fields industry comes under Appendix-B (Sl.No.07). However, the record placed before us does not indicate anything about evolving a policy and prescribing guidelines to regulate and monitor the Brick Kilns activities in the state of Rajasthan though the measures required to be taken by the brick kiln industry for control of Air and Water Pollution warrant consideration of applications for granting Consent under the Air Act and the Water Act. Therefore some of the points which are suggested to be taken into account by RSPCB, District Administration and Mining Authorities as the case may be, in granting approval/consent for brick kilns are: 1. Registration with District Industries Centre 2. Fixing a minimum radial distance from any notified human habitation, hospitals, educational or any other institutions; 3. Fixing minimum distance from the neighbors agricultural/horticulture fields, flood banks of rivers/streams, National Highways/State O.A. No. 114 of 2013 Page 10 of 18

11 Highways/ Expressways/ Ring roads/village roads, heritage sites etc. 4. Accessibility to the kiln unit without disturbing the surrounding crops; 5. Disposal/utilization of ash produced by the kilns to reduce fugitive emissions; 6. Disposal of waste water in scientific manner to avoid the ground water contamination in and around the kiln area. 7. Fixing of minimum stack height from GL as required 8. Measures to achieve the standards (SPM- 750mg/Nm 3 ) prescribed under the EP Rules, Developing green belt along periphery of plant to avoid air pollution around the plant. 10. No tapping of ground water without obtaining NOC from CGWA/State Authorities. 11. Complying with the standards as prescribed in the MoEF Notification No. GSR 826 (E) dated 16 th November, 2009 with respect to National Ambient Air Quality. O.A. No. 114 of 2013 Page 11 of 18

12 12. Not creating any obstacles to natural flow of water i.e. natural nallah/stream carrying rain water to any water body in the mining area or adjacent to it. 13. Installing adequate infrastructure facilities for stack monitoring to know the concentration of pollutants emitted into the atmosphere with Kiln. (II). An immediate spot survey of all the brick kilns shall be undertaken jointly by a senior officer of the Revenue Department nominated by the District Collector, Bundi and by the concerned officer of the RSPCB in each Tehsil of the District Bundi and verify whether the units are established in accordance with law and whether they have obtained licence from the Revenue Department and Consent from the RSPCB. In case those units which had already obtained the licence and consent to operate, the Pollution Control Board shall verify whether the prescribed norms are followed and standards are maintained and if there is any violation, action shall be taken immediately under the Air Act/EP Act by giving show cause notice to the units which are found violating the provisions and thereafter, necessary follow-up action shall be taken in accordance with law. (III) in case of those units which are sanctioned by the District Administration/Revenue Department but not O.A. No. 114 of 2013 Page 12 of 18

13 obtained consent from the RSPCB immediate action shall be taken to give notice to them to obtain the consent within 60 days from the date of this order and in case no consent is obtained within 60 days, the kilns shall be ordered to be closed in consultation with the District Administration/Revenue Department and the District Administration shall provide all the necessary assistance in this regard to the PSPCB. (IV). As directed by the Hon ble Supreme Court in its order dated 27 th February, 2012 in IA No of 2011 in SLP (C) No /2009 titled Deepak Kumar & Ors. vs. State of Haryana & Ors. Environmental Clearance (in short EC) is required even in those cases where mining lease is granted for borrowing/excavation of brick earth in area less than 5 hectares. Therefore, the guidelines issued in the Office Memorandum No. L-11011/47/2011-IA.II(M) dated 24 th June, 2013 of Ministry of Environment and Forests (in short MoEF), Government of India as well as amendment dated made to EIA Notification 2006 and guidelines stipulated in MoEF Office Memorandum No. J /12/2013-IA-II(I) dated 24 th Dec., 2013 wherein category 'B' projects were further sub-categorised into 'B1' and 'B2', shall be strictly followed and mining projects of O.A. No. 114 of 2013 Page 13 of 18

14 brick earth are permitted to be established and operate only after obtaining EC from the competent authority. Brick earth mining projects having lease area less than 5 hectares shall be considered for granting EC as per the guidelines issued in MoEF Office Memorandum No. L-11011/47/2011-IA.II (M) dated 24 th June, 2013 which are reproduced below for strict compliance. (a).. (i) The activity associated with borrowing/excavation of brick earth and ordinary earth for purpose of brick manufacturing, construction of roads, embankments etc. shall not involve blasting. (ii) The borrowing/excavation activity shall be restricted to a maximum depth of 2 m below general ground level at the site. (iii) The borrowing/excavation activity shall be restricted to 2 m above the ground water table at the site. (iv) The borrowing/excavation activity shall not alter the natural drainage pattern of the area. (v) The borrowed/excavated pit shall be restored by the project proponent for useful purpose(s). (vi) Appropriate fencing all around the borrowed/excavated pit shall be made to prevent any mishap. (vii) Measures shall be taken to prevent dust emission by covering of borrowed/excavated earth during transportation. (viii) Safeguards shall be adopted against health risks on account of breeding of vectors in the water bodies created O.A. No. 114 of 2013 Page 14 of 18

15 due to borrowing/excavation of earth. (ix) Workers / labourers shall be provided with facilities for drinking water and sanitation. (x) A berm shall be left from the boundary of adjoining field having a width equal to at least half the depth of proposed excavation. (xi) A minimum distance of 15 m from any civil structure shall be kept from the periphery of any excavation area. (xii) The concerned SEIAA while considering granting environmental clearance for such activity for brick earth/ordinary earth will prescribe the guidelines as stated at (i) to (xi) above and specify that the clearance so granted shall be liable to be cancelled in case of any violation of above guidelines. (b) Notwithstanding what has been stated at (a) above, the following will apply: - (i) No borrowing of earth /excavation of brick earth or ordinary earth shall be permitted in case the area of borrowing/excavation is within one 1 km of boundary of national parks and wild life sanctuaries. (ii) In case the area of borrowing/excavation is likely to result into a cluster situation i.e. if the periphery of one borrow are is less than 500 m from the periphery of another borrow area and the total borrow area equals or exceeds 5 ha, the activity shall become Category B1 Project under the EIA Notification, In such a case, mining operations in any of the borrow areas in the cluster will be allowed only if the environmental clearance has been obtained in respect of the cluster. (V) If in case, the mining lease area for brick earth is 5 hectares or more than 5 hectares but less than 25 hectares, they shall be appraised as Category 'B2' projects and the guidelines issued in MoEF Office Memorandum No. J /12/2013-IA-II dated 24 th December, 2013 shall be O.A. No. 114 of 2013 Page 15 of 18

16 followed. (VI) Wherever fly ash is available from the Thermal Power Plants located near the existing or proposed brick manufacturing units, the guidelines issued from time to time by the MoEF on utilization of fly ash, shall be followed for production of fly ash bricks and manufacturing of bricks by digging brick earth particularly in valuable agricultural lands, shall be discouraged. (VII) With regard to the allegations made by the Applicants that brick kilns are allowed in the Abadi areas in violation of Rajasthan Land Revenue (Allotment & Conversion of Land for Establishment of Brick Kilns) Rules, 1987, Rajasthan Land Revenue (Conversion of Agricultural Land for Non- Agricultural Purposes in Rural Areas) Rules, 2007 and Rajasthan Minor Mineral (Concession Rules), 1986, this Tribunal will not be able to go into the details as to whether any of the above Rules are violated by the District Administration/Revenue Department while granting establishment of brick kilns as the mandate given to this Tribunal is with regard to the adjudication of cases pertaining to environmental laws only. However, it is suggested that once the joint inspection team constituted with the officials of Revenue Department and RSPCB completes the O.A. No. 114 of 2013 Page 16 of 18

17 inspection of all the brick kilns in the district and submits it's report and if any brick kilns were found to be allowed to operate in contravention of the aforesaid State rules, the District Collector, Bundi shall enquire into such cases and take appropriate action as deemed fit. Nevertheless, the RSPCB shall consider granting the Consent only in case of those brick kilns which are permitted to be established in accordance with law. 9. With the above directions, we dispose of this Application. However, with a view to ensure compliance of our order, we direct that the matter be listed in Court on 31 st July, 2014 wherein the RSPCB as well as the District Collector, Bundi shall file compliance report with full details of all the brick kilns inspected and brick kilns sanctioned by the District Administration/Revenue Department for whom consent to operate was granted by the RSPCB and the brick kilns ordered to be closed. 10. Copy of this order be also sent to the Chief Secretary and Principal Secretary, Revenue Department, Government of Rajasthan for issuing necessary directions to all the District Collectors in the state for ensuring compliance and if necessary to incorporate the above requirements in the existing rules framed by the Government. Copy is also to be sent to the Member Secretary, RSPCB, Jaipur for compliance. O.A. No. 114 of 2013 Page 17 of 18

18 (Mr. Justice Dalip Singh) Judicial Member Bhopal: April 21 st, 2014 (Mr. P.S.Rao) Expert Member O.A. No. 114 of 2013 Page 18 of 18