Rajasthan High Court - Jodhpur

M/S Champa Devi Bricks Udhyog (Old ... vs Rajasthan State Pollution ... on 16 May, 2023

Bench: Vinit Kumar Mathur

[2023/RJJD/015359]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11188/2022

M/s Champa Devi Bricks Udhyog (Old Name New Prajapati Brick Co.), N.37, P.N.24/2, K.N.8-13, 19 MD, Tehsil Gharsana, Sri Ganganagar, Rajasthan Proprietor Smt. Dhapu Devi W/o Shri Ram Lal, Aged About 31 Years, Resident Of House No. 232, Jato Ka Baas, Bhambloo, Tehsil And District Bikaner.

----Petitioner Versus

1. Rajasthan State Pollution Control Board, Through Its Member Secretary, Jhalana Industrial Area, Jhalana Dungari, Jaipur.

2. Environment Engineer (Env. Comp.), Rajasthan State Pollution Control Board, Headquarter, 4 Institutional Area, Jhalana Dungari, Jaipur.

3. Appellate Authority, (Prevention And Control Of Pollution), Jaipur.

----Respondents Connected With S.B. Civil Writ Petition No. 11169/2022 Veer Tejaji Int Udhyog, Chak 3 GM, Gharsana, Sri Ganganagar Through Its Proprietor Nathu Ram S/o Shri Sardar Ram, Age 48 Years, Resident Of Ward No. 16, New Mandi, Gharsana, District Sri Ganganagar (Raj.).

----Petitioner Versus

1. Rajasthan State Pollution Control Board, Through Its Member Secretary, Jhalana Industrial Area, Jhalana Dungari, Jaipur.

2. Environment Engineer (Env. Comp.), Rajasthan State Pollution Control Board, Headquarter, 4 Institutional Area, Jhalana Dungari, Jaipur.

3. Appellate Authority, Air (Prevention And Control Of Pollution), Jaipur.

----Respondents S.B. Civil Writ Petition No. 11910/2022 M/s Laxmi Int Udhyog, Chak 2 MLD (B), Tehsil Gharsana, District

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Sri Ganganagar Through Its Proprietor Ruma Kanta W/o Shri Brij Lal Jakhar, Aged About 42 Years, By Caste Jat, R/o Shop No. 126 (A), Dhan Mandi, New Mandi, Gharsana, Tehsil Gharsana, District Sri Ganganagar (Raj.).

----Petitioner Versus

1. Rajasthan State Pollution Control Board, Through Its Member Secretary, Jhalana Industrial Area, Jhalana Dungari, Jaipur.

2. Environment Engineer(Env. Comp.), Rajasthan State Pollution Control Board, Headquarter, 4 Institutional Area, Jhalana Dungari, Jaipur.

3. Appellate Authority, Air (Prevention And Control Of Pollution), Jaipur.

----Respondents S.B. Civil Writ Petition No. 13339/2022 Barar Int Udyog (Old Name Karni Maa Int Udhyog), Chak 2 MLDB, Gharsana, District Sri Ganganagar Through Its Proprietor Jaskaran Singh S/o Shri Mastan Singh, Aged About 45 Years, Chak 2 MLD A Gharsana, District Sri Ganganagar.

----Petitioner Versus

1. Rajasthan State Pollution Control Board, Through Its Member Secretary, Jhalana Industrial Area, Jhalana Dungari, Jaipur.

2. Environment Engineer (Env. Comp.), Rajasthan State Pollution Control Board, Headquarter, 4 Institutional Area, Jhalana Dungari, Jaipur.

3. Appellate Authority, Air (Prevention And Control Of Pollution), Jaipur.

----Respondents S.B. Civil Writ Petition No. 13543/2022 M/s Mahabali Int Udhyog (Agarwal Int Udhyog), Chak 5 TG (B), 127/383, Tehsil Sri Vijaynagar, District Sri Ganganagar Through Its Proprietor Suresh Kumar Agarwal S/o Shri Banarshi Das Agarwal, Aged About 58 Years, 14-B Block, Ward No. 15, Jetsar, Tehsil Sri Vijaynagar, District Sri Ganganagar.

[2023/RJJD/015359] (3 of 8) [CW-11188/2022]

----Petitioner Versus

1. Rajasthan State Pollution Control Board, Through Its Member Secretary, Jhalana Industrial Area, Jhalana Dungari, Jaipur.

2. Environment Engineer (Env. Comp.), Rajasthan State Pollution Control Board, Headquarter, 4 Institutional Area, Jhalana Dungari, Jaipur.

3. Appellate Authority, Air (Prevention And Control Of Pollution), Jaipur.

----Respondents

For Petitioner(s) : Mr. J. L. Purohit, Sr. Advocate assisted by Mr. D. S. Thind Mr. Amit Kumar For Respondent(s) : Mr. Sajjan Singh Rathore

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

16/05/2023

The present writ petitions are based on identical facts and,

thus, they are being disposed of by this common order.

The principal prayer of the petitioners in these writ petitions

is for quashing the closure order issued by the respondents.

Heard learned counsel for the parties.

Mr. J. L. Purohit, learned Senior counsel for the petitioners

submits that the petitioners are the owners of the brick kilns and

the same are in operation for more than 10 years. Learned Senior

counsel further submits that the brick kilns were established after

taking due permission from the competent authority and obtaining

the 'No Objection Certificate' from the Mining Department. He

submits that the consent to operate was also in their favour for

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some time in the past. However, in pursuance of the direction

issued by the National Green Tribunal on 11.02.2021 &

10.11.2021, show cause notices were issued and ultimately the

closure orders were issued. Learned Senior counsel submits that

consent to operate the Brick Kilns was given to some of the

similarly situated persons and as a consequence thereof these

Brick Kilns are still operational. It is, further submitted that the

petitioners are being discriminated vis-a-vis similarly situated

persons in whose favour consent to operate Brick Kilns was

granted. He submits that the Hon'ble Supreme Court and the

National Green Tribunal have directed the Rajasthan State

Pollution Control Board to impose environmental compensation on

industries responsible for causing environmental damages.

However, individuals similar to the petitioner, whose brick kilns are

still operational have not paid any environmental compensation.

He, therefore, submits that the closure orders issued against the

petitioners may be quashed and set-aside with all consequential

benefits.

Per contra, learned counsel for the respondents vehemently

argued that the petitioners were not given consent to operate

brick kilns and, therefore, show cause notices were issued to them

and after giving a reasonable opportunity of hearing, closure

orders have been issued. Learned counsel further submits that

entire action has been taken in pursuance of the directions issued

by the Tribunal on 11.02.2022 and thereafter from time to time.

Learned counsel further submits that the writ petitions are not

maintainable as an efficacious alternative remedy is available to

the petitioners under Section 16 of the National Green Tribunal Act

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and, therefore, the writ petitions may be dismissed on this

ground. In support of his contentions, he relied upon the

judgment of the High Court of Meghalaya in the case of

WP(C).No.338/2021 (Dayanidhi Ventures Pvt. Ltd. V/s

Meghalaya State Pollution Control Board & 2 Ors.) decided

on 16.12.2021(MANU/MG/0141/2021).

I have considered the submissions made at the Bar and have

gone through the relevant record of the case.

The facts with regard to the operation of the brick kilns by

the petitioners till date are not in dispute. The action has been

taken by the respondent-department in pursuance of the

directions issued by the National Green Tribunal on 11.02.2021

and subsequently the orders passed by the different fora. The only

grievance of the petitioners in these writ petitions is that they are

being discriminated, as closure orders have been issued against

them, whereas, similarly situated persons have been allowed to

operate their brick kilns. In any case, this Court is firmly of the

view that since the entire action is being undertaken by the

respondent-department in pursuance of the directions issued by

the Tribunal, therefore, it will be in the fitness of the things that

the petitioners should approach the National Green Tribunal to

project their case showing that they are being discriminated vis-a-

vis other similarly situated who are operating their brick kilns even

today.

Section 16 of the National Green Tribunal Act, 2010 provides

for remedy of filing an appeal which reads as under:-

"16 Tribunal to have appellate jurisdiction. -Any person aggrieved by,-

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(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977);

(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980 (69 of 1980);

(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);

(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);

(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be

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carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);

(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986);

(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002 (18 of 2003), may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days."

A bare perusal of Section 16 of the National Green Tribunal

Act clearly goes to show that an efficacious alternative remedy of

filing an appeal before the Tribunal is available to the petitioners.

Thus, this Court is not inclined to entertain these writ petitions at

this stage.

In the circumstances, learned Senior counsel for the

petitioners seeks liberty to approach the National Green Tribunal

by way of filing an Appeal under Section 16 of the National Green

Tribunal Act for redressal of their grievances.

In view of the discussions made above, the writ petitions are

disposed of with the liberty aforesaid.

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