M/S Bismillah Brick Kiln v. Union Territory of J and K and Ors. (Forest, Environment and Ecology)

O R D E R

29.12.2023

¶1With the consensus of learned counsel for the parties, this writ petitions are taken up for final disposal.

¶2The petitioner submits that he has set up and put in operation his Brick Kiln at Sholipora Budgam, with due directions required under law at the time of establishment of his Brick Kiln. Thereafter, he has adopted all changing technologies to combat pollution as advised by the regulatory bodies especially J&K PCB now PCC, i.e., from movable chimney to fixed chimney and from bulls trench to High draft zig zag Technology. The petitioner applied for consent to operate, which remained pending and undecided with JKPCB/PCC, as some developments in the legal sphere took place, firstly by the enactment of J&K Brick Kiln Act, 2010 and secondly by issuance of direction by the NGT. In terms of J&K Brick Kiln Act, 2010, it is mandatory for the owners of Brick Kiln to obtain licence from the competent authority to be notified under the Act for which a Brick Kiln owners have been made bound to apply to the competent authority with NOC's from different departments as mentioned in Section 6(ii) of the Act. The petitioner has applied before the competent authority for issuance of consent to operate, but they have not decided his application within the period of four months.

Therefore, in terms of Section 25(7) and Section 21(4) of Water (P&CP) Act 1974 and Air (P&CP) Act 1981 respectively, the respondents are bound to decide the application for grant of consent within four months.

¶3The petitioner apprehends that his application for consent to operate fresh CTO(F), may be rejected as the respondents have already rejected the application of similarly situated persons.

¶4Mr. Syed Musaib, learned Dy. AG, submits that the petitioner has applied for consent to establish/operate Brick Kilns before respondent-Board//Committee. It is further submits that while the application of the petitioner was under consideration, the National Green Tribunal, Principal Bench, New Delhi, in a petition - OA No. 594/2022 titled Syed Riyaz v. UT of J& and Ors, has directed to take action in accordance with rules and ensure that brick kilns, which are in operation without the consent of J&K Pollution Control Board, must be taken serious and action be initiated and no new brick kiln be permitted to operate. In view of directions of the NGT, he submits that no new consent to operate is being granted to any new brick kiln unit.

¶5The National Green Tribunal (GGT) in its order dated 14.07.2023, while considering the grievance with regard to unauthorized operation of near about 200 Brick Kilns in District Budgam, who are operational without NOC/renewal of licence, has directed as under:- "4. The conclusion of the report is that the kilns are operative without consent order from the State PCB. It is reported that some of the brick kilns have been closed but still are in operation but steps have been taken by the State PCB in accordance with rules.

¶5State PCB is directed to take action in accordance with rules and ensure that brick kilns must be brought within the ambit of the consent conditions and brick kiln which are in operation without the consent of State Pollution Control Board, must be taken seriously and action be initiated in accordance with the law. However, orders of the High Court be complied with as applicable. We also direct that, no new brick kiln or expansion of existing unit be permitted till J&K PCB ensures compliance and availability of carrying capacity to maintain ambient air quality norms."

¶6Though the petitioner claim that his Brick Kiln is in operation, but there is nothing on record to show the consent to establish or operate in his favour.

¶7In view of aforesaid facts and circumstances of the case, I find that it would be appropriate for the petitioner to approach National Green Tribunal for clarification/modification, if he desires so. This petition is, accordingly, disposed of.

(SINDHU SHARMA)

JUDGE

SRINAGAR

29.12.2023 Manzoor

S. No. 121 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM No. 8073/2023 M/s Bismillah Brick Kiln …Appellant/Petitioner(s) Through: Mr. Bakhat Parvaiz, Advocate Vs. UT of J&K and Ors. ...Respondent(s) Through: Mr. Syed Musaib, Dy. AG CORAM: HON'BLE MS JUSTICE SINDHU SHARMA, JUDGE