High Court
Case Details
WP(C) 1265/2012 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (CAV) The petitioners, who are the land owners of the nearby land where (cid:28)consent to es tablish (cid:29) a brick kiln has been granted by the Assam Pollution Control Board (in short, (cid:28)PCB (cid:29)) in favour of the respondent No.11, have filed this writ petition q uestioning the legality and validity of the order dated 2nd September, 2011 pass ed by the Deputy Commissioner, Morigaon, according permission to set up the bric k kiln on a plot of land covered by Dag No.123 of Periodic Patta No.19 of Chengm ari Kisam under Mayong Mouza within Mayong Revenue Circle in the district of Mor igaon and also provisional (cid:28)consent to establish (cid:29) granted by the Member Secretar y, PCB on 20th October, 2011 for setting up of the brick kiln for production of 30(thirty) lakhs bricks per session over the said plot of land, on the ground of violation of the provisions of the Environment (Protection) Act, 1986 (in short , (cid:28)1986 Act (cid:29)), Environment (Protection) Rules, 1986 (in short, (cid:28)1986 Rules (cid:29)), th e Air (Prevention and Control of Pollution) Act, 1981 (in short, (cid:28)1981 Act (cid:29)) and the Air (Prevention and Control of Pollution) Rules, 1982 (in short, (cid:28)1982 Rule s (cid:29)) framed thereunder. [2] ticed as under:- The facts relevant for the purpose of the present case may be no
Legal Reasoning
A brick kiln was originally established by one Dilip Kr. Mazumder, over (a) a plot of land measuring 21 Bighas 10 Lechas covered by Dag No.123, Patta No.19 situated at village-Chengmari Kisam under Mayong Mouza within Mayong Revenue Cir cle in the district of Morigaon, Assam, without, however, obtaining any permissi on from the district authorities as well as (cid:28)consent to establish (cid:29) and the (cid:28)cons ent to operate (cid:29) from the PCB. The ownership of the land was, thereafter, stated to have been transferred by said Shri Dilip Kr. Mazumdar in favour of the respon dent No.11, by 2(two) registered instruments, both dated 23rd August, 2010, and consequently the respondent No.11 claims to be the owner in respect of the said land. On 14th June, 2011, an application was filed by the respondent No.11 seek ing (cid:28)No Objection Certificate (cid:29) from the Deputy Commissioner for opening of a bri ck kiln and accordingly, vide order dated 2nd September, 2011, the Deputy Commis sioner accorded permission to set up the brick kiln, subject to the condition th at it must not damage the adjacent Periodic Patta land/Annual Patta land/Governm ent land, etc. in any manner. After grant of such permission, a public petition was filed by the residents of the locality, before the Deputy Commissioner, to withdraw the permission accorded, because of the impending damages to the surrou nding agricultural land and also to the flora and fauna of Pobitora Wildlife San ctuary. (cid:28)Consent to establish (cid:29), under the provisions of the 1981 Act was asked f or by the respondent No.11 for setting up of brick kiln over the aforesaid plot of land, which was granted by the PCB vide order dated 20th October, 2011 for pr oduction of 30(thirty) Lakhs bricks per session, subject to the conditions stipu lated therein including the condition not to cause any damage to any agricultura l land. In the meantime, the Divisional Forest Officer, Guwahati Wildlife Divis ion has also issued a communication dated 10th October, 2011 to the Deputy Commi ssioner, Morigaon requesting to take necessary measures to stop setting up of br ick kiln, on the ground that the proposed brick kiln is within ‰ Km from the bou ndary of Raja Mayong Hill Reserved Forest, which is a part of the notified Pobit ora Wildlife Sanctuary and falls within the proposed Eco-Sensitive Zone (in shor t, (cid:28)ESZ (cid:29)) of Pobitora Wildlife Sanctuary and on the animal movement corridor. C opy of the said communication was also sent to the Chairman of the PCB requestin g him to take requisite measures at his end on the aforesaid issue. (b) An enquiry was, thereafter, conducted by the District Agricultural Offic er, Morigaon, who has submitted a report dated 27th October, 2011 with the findi ng that the land upon which the brick kiln is proposed to be established is agri cultural land and in the surrounding area Bodo Paddy is cultivated and such indu stry is likely to have adverse affect on such cultivation. The Circle Officer, M ayong Revenue Circle vide communication dated 8th October, 2012 informed the Dep uty Commissioner, Morigaon, that Chengmari village, in which the brick kiln is p roposed to be set up, is 3 Km away from Pobitora Wildlife Sanctuary. It has also been informed that the land over which such brick kiln is proposed to be set up is near to Pobitora Wildlife Sanctuary. Based on the public complaint, the Cha irman, PCB also conducted an enquiry through the Assistant Engineer (HO), PCB, w ho has submitted a report on 12th December, 2012 with the remark that running of a brick manufacturing unit in the said location will have an adverse affect on the surrounding paddy fields as well as in the environment of the area and the s moke emitted from the chimney will cause health problems to the local people as well as the animal life. In the said report, it has also been mentioned that ev en before grant of (cid:28)consent to operate (cid:29), operational activity has been undertake n by making raw bricks and stacking of the same for drying without, however, fir ing the chimney. The Member Secretary, PCB, having regard to the said report, is sued a pre-closure notice on the ground of violation of the provisions contained in Section 21(1) of the 1981 Act, for starting the operational activities witho ut the consent and asking the respondent No.11 to show cause as to why the (cid:28)cons ent to establish (cid:29) earlier granted should not be withdrawn. The respondent No.11 was also prevented from undertaking any such activity. The PCB, however, subsequ ently, after filing of the objection by the respondent No.11, has withdrawn the said notice.
Decision
A proposal for declaration of ESZ around Pobitora submitted by the Divis (c) ional Forests Officer to the Government of Assam in the Environment & Forests De partment was, in the meantime, sent by the Government of Assam to the Government of India, Ministry of Environment & Forests on 29th May, 2012 for consideration for issuing the notification declaring the ESZ in and around Pobitora, Amchang and Deepor Beel Sanctuaries in terms of the guidelines issued by the Government of India for declaration of such ESZ, wherein setting up of industries causing w ater, air, soil and noise pollutions, within the proposed ESZ of 1 KM radius of the outer boundary of Pobitora Wildlife Sanctuary, was proposed to be prohibited . Despite receipt of the said proposal in the early part of June, 2012, the Gove rnment of India, Ministry of Environment & Forest did not, however, take the mat ter for consideration and only after the order passed by this Court on 18th Sept ember, 2013, a communication dated 19th September, 2013, was issued by the Assis tant Inspector General of Forests (WL), Government of India, Ministry of Environ ment & Forests (Wildlife Division) to the Principal Secretary (Forests), Governm ent of Assam stating that the said proposal does not conform to the guidelines i ssued by the Government of India on 9th February, 2011 in some respect, without, however, specifying as to how the guidelines have not been complied with. The fact, therefore, remains that the ESZ has not been declared by the Government of India. The classification of land, on which the brick kiln is proposed to be s et up has, during pendency of the writ petition, been changed by the Additional Deputy Commissioner (Revenue), Morigaon, from agricultural land to non agricultu ral land, vide order dated 10th April, 2013. [3] I have heard Mr. R. Baruah, learned counsel for the petitioners, Mr. B. Chetri, learned senior Government advocate, Assam appearing for the resp ondent Nos.1 to 7 and 10-A, Mr. P.J. Phukan, learned standing counsel, PCB appea ring for the respondent Nos.8 to 10, Mr. B.D. Das, learned senior counsel assist ed by Mr. D. Nath, learned counsel appearing for the respondent No.11 and Mr. R. Sarma, learned Assistant Solicitor General of India appearing for the newly imp leaded respondent No.12. [4] Mr. Baruah, learned counsel for the petitioners, challenging the order dated 2nd September, 2011 passed by the Deputy Commissioner, Morigaon, gr anting permission to set up the brick kiln and the order dated 20th October, 201 1 passed by the Member Secretary, PCB granting (cid:28)consent to establish (cid:29) such brick kiln by the respondent No.11, has submitted that since it appears from the reve nue record that at the relevant point of time, i.e. on the date when such permis sions were granted, the land was admittedly agricultural land, over which, accor ding to the PCB itself, no (cid:28)consent to establish (cid:29) a brick kiln can be granted, g rant of such permission by the Deputy Commissioner as well as by the PCB is ille gal. It has also been submitted that it is apparent from the materials availabl e on record that such permissions have been granted by the district authority as well as by the PCB for setting up of brick kiln within the proposed ESZ, despit e the request made by the Divisional Forest Officer, not to do so. The learned counsel further submits that grant of such permission within ‰ Km radius of the Pobitora Wildlife Sanctuary and within the proposed ESZ would not only adversely affect the surrounding agricultural land over which the Bodo Paddy is cultivate d but also the flora and fauna of the Pobitora Wildlife Sanctuaries, which is al so evident from the report submitted by the District Agricultural Officer, apart from the Divisional Forest Officer and hence, no permission ought to have been granted, as it will have adverse the environmental affect, which aspect of the m atter has been ignored by the district administration as well as by the PCB ther eby ignoring the greater public interest and to further the personal interest of the respondent No.11. [5] The learned counsel further submits that the (cid:28)consent to establi sh (cid:29) granted by the PCB is also in violation of the provisions contained in Rule 3 of the 1986 Rules, as in such permission the requirements of Entry-74 of Sched ule-1 have not been specified. Mr. Barua, further submits that it is also appar ent from the report submitted by the Assistant Engineer (HO), PCB dated 12th Dec ember, 2012, that the respondent No.11 even has started the operational activity , after obtaining the (cid:28)consent to establish (cid:29) and even before grant of the (cid:28)conse nt to operate (cid:29) by the PCB and such grant of (cid:28)consent to establish (cid:29) would also af fect the environment, as noticed in the said report, despite which the PCB has s ubsequently withdrawn the pre-closure notice dated 17th December, 2012 issued by it only with a view to grant some personal benefit to the respondent No.11, by ignoring the public interest. The learned counsel submits that the respondent No .11 by his action of starting the operational activities has violated the condit ions stipulated in the (cid:28)consent to establish (cid:29) as well as the provisions of the 1 981 Act. [6] Mr. Barua, learned counsel for the petitioners placing reliance on the decision of the Apex Court in Shri Sachidanand Pandey & Anr. -Vs- The Sta te of West Bengal & Ors. reported in AIR 1987 SC 1109 has submitted that since t he permission as well as the (cid:28)consent to establish (cid:29) have been granted by the Dep uty Commissioner and the PCB, respectively, without considering all the relevant factors required to be taken into consideration, i.e. that the land is agricult ural land and setting up of the brick kiln over the land would cause environment al pollution, such permission granted needs to be set aside. Mr. Baruah, learne d counsel, referring to Article 51A of the Constitution of India submits that si nce it is the fundamental duty of every citizen of India to protect and improve the natural environment including the forests, lakes, rivers and wildlife, and t o have compassion for living creatures, the authority concerned ought not to hav e granted the permission to set up the brick kiln within the proposed ESZ, which would affect the environment in general, causing damage to the surrounding agri cultural land and also to the flora and fauna of the Pobitora Wildlife Sanctuary , just to further the personal interest of an individual ignoring the greater pu blic interest. Learned counsel submits that it is the fundamental duty of every citizen, including the State, based on public trust doctrine, to protect the en vironment, ecology and natural resources. The learned counsel in support of his contention has placed reliance on a decision of the Apex Court in Association fo r Environment Protection -Vs- State of Kerala & Ors. reported in (2013) 7 SCC 22 6. [7] Mr. Chetri, learned senior Government advocate, supporting the o rder dated 2nd September, 2011 passed by the Deputy Commissioner granting permis sion to set up the brick kiln over the plot in question has submitted that since the land, though at the relevant point of time was recorded in the revenue reco rd as agricultural land, is not fit for cultivation, no illegality has been comm itted by the district administration in according such permission. It has also been submitted that the request of the Divisional Forests Officer either not to grant the permission or to withdraw the permission already granted, in view of t he submissions of the proposal for notifying the ESZ to the Government of India, also cannot be the ground for refusal or withdrawal of the permission granted, since the ESZ has not yet been notified by the Government of India. The learned senior Government advocate further submits that the revenue authority, having r egard to the nature and use of the land, has reclassified the same as non agricu ltural land and hence, the ground on which the challenge to the order dated 2nd September, 2011 passed by the Deputy Commissioner granting permission, made, is nonexistent. [8] Mr. Phukan, learned standing counsel, appearing for the PCB has submitted that the PCB never grant (cid:28)consent to establish (cid:29) and (cid:28)consent to operat e (cid:29) a brick kiln over the agricultural land, having regard to the requirement to preserve such land. In the instant case, according to the learned counsel, (cid:28)con sent to establish (cid:29) a brick kiln by the respondent No.11 has been granted based o n the permission granted by the district administration on 2nd September, 2011 a nd the certificate issued by the revenue authority certifying that the land is n ot suitable for agricultural purpose. It has also been submitted that in the (cid:28)c onsent to establish (cid:29), the conditions on which the same has been granted have bee n stipulated and the (cid:28)consent to operate (cid:29) would not be issued to the respondent No.11 unless he complies with the requirement of Entry-74 of Schedule-1 of the 1 981 Act, stage for which is yet to come. Mr. Phukan, therefore, submits that th e apprehension of the petitioners in that regard would be considered by the PCB while taking up the issue relating to grant of (cid:28)consent to operate (cid:29). It has als o been submitted that though, based on the enquiry report submitted by the Assis tant Engineer (HO), PCB dated 12th December, 2012, pre-closure notice was issued by the PCB on 17th December, 2012, the same, however, has subsequently been wit hdrawn, based on the objection filed by the respondent No.11 and the subsequent report submitted by the Assistant Engineer (HO), PCB, wherefrom it appears that the brick kiln has not been put into operation, meaning thereby that the chimney has not been fired. It has also been submitted that in respect of the brick kiln, th [9] e operation is said to commence not on preparation of the raw materials for putt ing it in the chimney for fire but on firing the chimney, and since such firing has not been done by the respondent No.11, there is no violation of either the (cid:28) consent to establish (cid:29) or any of the provisions of the 1981 Act or 1986 Act. Mr. Phukan further submits that though in one report submitted by the District Agri cultural Officer, it has been mentioned that the proposed brick kiln is within ‰ Km radius of the Pobitora Wildlife Sanctuary, in another report submitted by th e Circle Officer, the same is stated to be 3 Km away from the periphery of such Wildlife Sanctuary. The learned counsel, therefore, submits that no illegality has been committed by the PCB in according the (cid:28)consent to establish (cid:29) over the l and, which is not fit for agricultural purpose and has in fact, in the meantime, been reclassified as non agricultural land. [10] Mr. Das, learned senior counsel appearing for the respondent No. 11, supporting the argument advanced by the learned senior Government advocate a s well as the learned standing counsel of the PCB, submits that there would not be any adverse affect on the environment on setting up of the brick kiln over th e land in question, which is not fit for agricultural purpose, as is apparent fr om the certificate issued by the revenue authority, which land in fact has subse quently been reclassified as non agricultural land. It has also been submitted that though, pending consideration of the proposed ESZ by the Government of Indi a, neither the district administration nor the PCB should grant any permission t o set up any industry within such ESZ, which, in the instant case, is within the radius of 1 KM from the periphery of Pobitora Wildlife Sanctuary, since the lan d over which the brick kiln is proposed to be set up is at a distance of 3 Km fr om the periphery of the said Pobitora Wildlife Sanctuary, i.e. beyond the propos ed ESZ, the decision of the authorities in granting the permission cannot held t o be illegal. Mr. Das further submits that grant of such permission by the dist rict administration as well as by the PCB would not cause any adverse environmen tal affect on the nearby paddy fields and in case at subsequent stage it is foun d that the respondent No.11 has caused any damage to the nearby paddy fields, th e (cid:28)consent to establish (cid:29) or (cid:28)consent to operate (cid:29) can be withdrawn by the PCB, th ere being a condition on the (cid:28)consent to establish (cid:29) that the respondent No.11 wo uld not cause any damage to the nearby agricultural land. [11] It has also been contended that whether the respondent No.11 has complied with the requirement of Entry-74 of Schedule-1 of the 1981 Act would d efinitely be considered by the PCB before granting the (cid:28)consent to operate (cid:29) and unless the requirements under the said provision are fulfilled, naturally the PC B would not grant the (cid:28)consent to operate (cid:29). It has also been submitted that the pre-closure notice dated 17th December, 2012 was issued by the PCB asking the r espondent No.11 to show cause, because of the pressure exerted by some disgruntl e elements, who has no locus-standi to raise such objection, which notice has ri ghtly been withdrawn by the PCB, after making necessary enquiry relating to the alleged violation of the provisions of the 1981 Act, 1986 Act as well as the con ditions of the (cid:28)consent to establish (cid:29). [12] The learned senior counsel also questions the locus-standi of th e petitioners to approach the Court challenging the permission accorded by the d istrict administration as well as by the PCB, contending that the petitioners ha ving no land near the land over which the brick kiln is proposed to be set up, t hey cannot file the writ petition challenging the said decision of the authoriti es, which has been done with the ulterior motive of depriving the petitioners fr om setting up such industry. According to the petitioners, though there are 8/1 0 such brick kilns presently in operation in the area, the petitioners have not raised any objection in relation to setting up of such brick kilns and has singl ed out the respondent No.11 to settle the score, as an order under Section 133 C r.P.C. was passed against them by the Executive Magistrate. The learned senior c ounsel, therefore, submits that the writ petition deserves to be dismissed with cost. Mr. Das, learned senior counsel in support of his contention that no legal right of the petitioners has been violated and as such the petitioners cannot m aintain the writ petition, has placed reliance on a judgment of the Apex Court i n Ayaaubkhan Noorkhan Pathan -Vs- State of Maharashtra & Ors. reported in (2013) 4 SCC 465. [13] Mr. Sarma, learned Additional Solicitor General of India appeari ng for the newly impleaded respondent No.12, pursuant to the order dated 18th Se ptember, 2013, has submitted that despite the aforesaid order passed, the affida vit could not be filed as the said affidavit is yet to be vetted by the Minister concerned. It has, however, been submitted that the written instruction, which is placed on record, reflects the stand of the Government of India, in relation to the proposal submitted by the Government of Assam for declaration of ESZ. Mr . Sarma further submits that the ESZ has not been declared by the Government of India as it has found certain lacuna in the proposal submitted by the Government of Assam and accordingly, the Principal Secretary (Forests), Government of Assa m, has been requested, vide communication dated 19th September, 2013, to resubmi t the same in terms of the guidelines issued by the Government of India on 9th F ebruary, 2011. [14] The question of locus-standi of the writ petitioners to file the writ petition challenging the aforesaid permission granted by the district admi nistration as well as by the PCB, as has been raised by the respondent No.11, sh all be dealt with first. Article 51-A of the Constitution of India imposes a fu ndamental duty on every citizen of India to protect and improve the natural envi ronment including forests, lakes, rivers and wildlife, and to have compassion fo r living creatures. Every citizen, therefore, has the fundamental duty to prote ct the environment and also the flora and fauna of the wildlife. Hence, even if the petitioners do not have the landed property near the land over which the pe rmission has been accorded by the district administration for setting up of the brick kiln and (cid:28)consent to establish (cid:29) has been granted by the PCB, the petitione rs being the citizens of India, can maintain a writ petition challenging the afo resaid decisions of the authorities on the ground of violation of the environmen tal laws. The Apex Court in Ayaaubkhan Noorkhan Pathan (supra) has held th [15] at the (cid:28)person aggrieved (cid:29) to file a writ petition either under Article 226 or un der Article 32 of the Constitution of India must be one, whose right or interest has been adversely affected or jeopardized and hence, a person who raises a gri evance, must show how he has suffered legal injury. It has also been held that the existence of the legal right is a condition precedent and generally a strang er having no right whatsoever to any post or property, cannot be permitted to in tervene in the affairs of others. There is no dispute to the proposition of law laid down by the Apex Court. As discussed above, since every citizen has a fun damental duty under Article 51-A of the Constitution of India to protect and imp rove the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living creatures, it cannot be said that the petitioners do not have the legal right to approach this Court for protection of environment and also the flora and fauna of the Wildlife Sanctuary or they would not suffer legal injury in case there is environmental pollution. Every citizen has the r ight to question the environmental pollution and to have the unpolluted environm ent with a view to protect his own fundamental right guaranteed under Article 21 of the Constitution, apart from the interest of the other creatures in the fore st, i.e. the wildlife, whose interest have to be protected by the human being. The writ petition at instance of the petitioners is, therefore, maintainable, th ey having locus standi to challenge the permission granted by the authorities. [16] PCB has admitted that brick kiln cannot allow to be set up over the land fit for agriculture. The Government of Assam also vide communication d ated 7th January, 1986 issued by the Deputy Secretary to the Government of Assam , Revenue (Settlement) Department, informed the Deputy Commissioners as well as the Sub-Divisional Officers, expressing concern of setting up of the brick kilns on the land, which is suitable for agricultural purpose, the decision of the Go vernment not to allow setting up of brick kilns over Government land suitable fo r agriculture purpose. In our country, having population of more than 120 Billi on, where majority of the population earned their livelihood from agriculture, p reservation of the agricultural land is must, which will also assist in controll ing influx of the rural population to the urban areas in search of job, apart fr om helping in reducing the unemployment problem in our country. Preservation an d maintenance of the agricultural land is, therefore, must. The land suitable for agriculture, therefore, cannot allowed to be used for setting up of brick ki ln. No permission for setting up of such industry over the land not fit for agr iculture, for the aforesaid reason, can also be granted, if the same would have an adverse affect on the nearby agricultural land, which precisely the condition put by the PCB in the (cid:28)consent to establish (cid:29) dated 20th October, 2011, granted to the respondent No.11, for setting up of the brick kiln, so as to save the sur rounding or nearby agricultural fields. [17] In the instant case, it appears from the various certificates is sued by the revenue authority that though the land in question has been recorded as agricultural land in the revenue record, the same stated to be not fit for c ultivation, over which in fact a brick kiln was earlier established, without, ho wever, obtaining any permission from the authorities, including the PCB. That a part, the land has been reclassified from agricultural land to non agricultural land vide order dated 10th April, 2013 passed by the Additional Deputy Commissio ner, which order has not been put to challenge. The, land, therefore, in the ab sence of any other material to the contrary, appears to be not fit for agricultu re. The Deputy Commissioner as well as the PCB cannot, however, without making any enquiry and survey as to whether the nearby or the surrounding agricultural cultivable land would be damaged, grant permission to set up brick kiln. In the instant case, nothing has been placed before this Court by the Deputy Commissio ner to demonstrate making such an enquiry or survey before issuance of the order dated 2nd September, 2011 granting permission to set up the brick kiln. The re cords produced by the PCB also do not reflect making of any such enquiry before granting the (cid:28)consent to establish (cid:29) on 20th October, 2011. On the other hand, t he PCB in condition No.32 of the (cid:28)consent to establish (cid:29) has stipulated a clause that the respondent No.11 would not cause damage to the nearby agricultural fiel ds. Entry-74 of Schedule-1 of 1986 Rules provides the emission stand [18] ards in respect of the different categories of brick kilns, which also stipulate s the stack height of different categories of such brick kilns, i.e. small, medi um, large, depending upon the quantity of the bricks to be produced. A brick kil n established with due permission from the authorities concerned, including the PCB, must, therefore, conform to the said requirements, in the absence of which, no (cid:28)consent to operate (cid:29) can be granted by the PCB. The question whether a bric k kiln, has been set up, pursuant to the (cid:28)consent to establish (cid:29), and inconformit y with the requirement of Entry-74 of Schedule-1 of the 1986 Rules, would arise for consideration by the PCB before grant of the (cid:28)consent to operate (cid:29). The appre hension of the petitioners that the brick kiln may be set up by the respondent N o.11 without complying with the requirement of Entry-74 of Schedule-1 of the afo resaid 1986 Rules is pre-mature as the PCB is yet to grant (cid:28)consent to operate (cid:29). Such apprehension, in any case, has to be taken note of by the PCB at the appr opriate stage. [19] It also appears from the pre-closure notice dated 17th December, 2012, issued by the Member Secretary of PCB that there was an allegation of mak ing the brick kiln operational even before the (cid:28)consent to operate (cid:29) has been gra nted by the PCB, as required under Section 21 of 1981 Act, which prohibits estab lishment and operation of any industrial plants in an air pollution control area without the previous consent of the State PCB. Admittedly the (cid:28)consent to esta blish (cid:29) granted to the respondent No.11 over the plot of land falls within the ai r pollution control area, within the meaning of the 1981 Act and hence, there mu st be prior permission from the PCB to establish and also to operate the brick k iln, which is an industrial plant. It appears from the report dated 12th Decembe r, 2012, submitted by the Assistant Engineer (HO), PCB that the respondent No.11 even before applying for (cid:28)consent to operate (cid:29), which is yet to be granted by th e PCB, has started the preparation of the raw materials by digging earth and mak ing the raw bricks ready to fire. The chimneys set up, however, have not been fi red. The PCB in the affidavit has taken the stand that since making the raw mat erials ready for fire is not part of the operational activity in a brick kiln, t he respondent No.11 has not violated any conditions put either in the (cid:28)consent t o establish (cid:29) or the provisions of Section 21 of the 1981 Act and hence, the pre- closure notice dated 17th December, 2012 has subsequently been withdrawn. [20] The word (cid:28)operate (cid:29) has not been defined in 1981 Act and hence, i t has to be understood in the context of the provisions contained in the 1981 Ac t and the 1986 Act, having regard to the purpose for which such enactments have been made. The environmental laws, such as 1981 Act and 1986 Act, have been enac ted to prevent the environmental pollution. Environment can be polluted even b y digging of earth to make the raw materials ready for fire in a brick kiln, t hough the chimneys are not fired. The word (cid:28)operation (cid:29), therefore, includes the preparation necessary to fire the raw bricks in a brick kiln and such ancillary work in connection with the brick kiln. It also includes a process of a manual or mechanical nature in some form of work relating to the ultimate production. The contention of the PCB as well as the respondent No.11 that the operational activities have not started, by making the raw materials ready for fire in the c himneys, when the chimneys are not fired, cannot be accepted. The respondent No. 11 did commence the operational activities, as noticed above, even before filing application for grant of (cid:28)consent to operate (cid:29), which is admittedly yet to be gr anted by the PCB. [21] It also appears from the various affidavits filed by the parties that the Government of Assam in Environment & Forests Department has submitted proposals to the Government of India in Environment & Forests Department for not ifying the ESZs around the various Wildlife Sanctuaries and National Parks in th e State of Assam, way back on 29th May, 2012. The Government of India is sittin g over the matter for last 1(one) year, ignoring the importance of constitution of the ESZ to protect the flora and fauna of the wildlife and only on 19th Septe mber, 2013, issued a communication to the Principal Secretary (Forests), Governm ent of Assam, informing that the proposals submitted are not in conformity with the guidelines dated 9th February, 2011 issued by the Government of India, witho ut disclosing as to how and in what manner such proposals are not inconformity w ith the aforesaid guideline. The said communication was issued only after the or der dated 18th September, 2013 was passed by this Court impleading the Governmen t of India, Ministry of Environment & Forests, as respondent No.12, and directin g the Secretary to the Government of India, Environment & Forests Department, to file affidavit, which leaves an impression in the mind of the Court that the Go vernment of India, only to demonstrate that they are considering the proposal, h as issued the aforesaid communication on 19th September, 2013. Fact remains that the ESZs including one around Pobitora Wildlife Sanctuary have not been notifie d as yet, pursuant to the direction issued by the Apex Court and also the guidel ine issued by the Government of India for submission of the proposal for declara tion of ESZs around the National Parks and the Wildlife Sanctuaries on 9th Febru ary, 2011. The National Green Tribunal, New Delhi (Principal Bench) in its judg ment dated 7th September, 2012, passed in Application No.38/2011, has also obser ved that the Ministry of Environment & Forests as well as the State of Assam hav e totally failed in their duties with respect to the implementation of the vario us provisions of the notification dated 5th July, 1996 issued by the Ministry of Environment & Forests, Government of India, relating to (cid:28)No Zone Development (cid:29), which indicates the apathy on the part of the authorities in protecting the envi ronment, more particularly, the flora and fauna of the forests. [22] As noticed above, proposals for declaration of ESZs around the v arious National Parks and various Wildlife Sanctuaries have been sent more than a year back to the Government of India, on the basis of which, admittedly such E SZs have not been notified as yet. In respect of the Pobitoral Wildlife Sanctua ry, the ESZ proposed is of the radius of 1 Km from the periphery of the Pobitora Wildlife Sanctuary. Having regard to the purpose for which such ESZs are requi red to be created, I am of the view that neither the State administration nor th e PCB shall grant any permission or (cid:28)consent to establish (cid:29) and (cid:28)consent to opera te (cid:29) any industry in such proposed ESZs till a final decision is taken by the Go vernment of India on such proposals. In the instant case, there is, however, a dispute on fact as to whether land over which permission to set up a brick kiln has been granted by the district administration as well as by the PCB is within 1 Km radius from the periphery of the Pobitora Wildlife Sanctuary, i.e. the prop osed ESZ or beyond. Such factual dispute cannot be resolved in a writ proceedin g, which, however, has to be resolved by the district administration as well as by the PCB by making necessary field verification, in association with the Fores ts Department of the Government of Assam. [23] As discussed above, neither the PCB nor the district administrat ion before granting the aforesaid impugned permissions to establish the brick ki ln made proper field verification relating to the affect on the surrounding and/ or adjacent land fit for agricultural purpose and the adverse affect, if any, to the flora and fauna of the Pobitora Wildlife Sanctuary, though those are releva nt considerations. The Apex Court in Shri Sachidanand Pandey (supra) has held th at the decision taken by the authority without taking into consideration all the relevant facts is not valid. That apart, it is the duty of every citizen inclu ding the authority to protect the environment, ecology and natural resources. T he Courts have, time and again, invoked the public trust doctrine for giving jud icial protection to the environment, ecology and natural resources and the Apex Court has also recognizing importance of such doctrine, applied the same for pro tecting the natural resources. Reference in this regard may be made to the judg ment of the Apex Court in Association for Environment Protection (supra). [24] ed of with the following directions:- In view of the aforesaid discussion, the writ petition is dispos The district administration, Morigaon as well as the PCB shall cause loc (i) al verification and survey to ascertain as to whether setting up of the brick ki ln over the land in question would cause any adverse affect on the surrounding a nd/or nearby land suitable for cultivation. (ii) The aforesaid authorities, in association with the department of Environ ment & Forests, Government of Assam, shall also make local inspection to find ou t whether the land over which the permission to set up the brick kiln has been g ranted, falls within 1 Km radius from the periphery of the Pobitora Wildlife San ctuary, i.e. in the proposed ESZ. (iii) If upon such inspection/survey, it is found that setting up of the brick kiln would have adverse affect on the surrounding and/or nearby land suitable f or agriculture, or within the proposed ESZ, necessary order shall be passed by t he Deputy Commissioner, Morigaon as well as by the Member Secretary, PCB, cancel ling the aforesaid permissions dated 2nd September, 2011 and 20th October, 2011, granted by the Deputy Commissioner, Morigaon and by the PCB, respectively. (iv) In case, the aforesaid authorities find that there wound not have any ad verse environmental affect and the land in question is not within the proposed E SZ, as noticed above, necessary order shall be passed by the authorities. In th at case, the PCB shall also ensure compliance of Entry-74 of Schedule-1 of 1986 Rules, before grant of (cid:28)consent to operate (cid:29), apart from other provisions of the environmental laws. The PCB shall also, in every 3(three) months, make necessar y inspection relating to the compliance of the different provisions of the envir onmental laws, apart from causing environmental pollution, if any, and shall pas s necessary order, in accordance with law, if environmental pollution and/or vio lation of the provisions of the environmental law is found. (v) two) months from today. The aforesaid exercise is directed to be completed within a period of 2( (vi) The respondent No.11 shall not undertake any activity till the aforesaid decision is taken by the Deputy Commissioner as well as by the PCB. (vii) The PCB shall, within 3(three) months from today, conduct inspection of all brick-kilns in the State of Assam to find out whether necessary permissions, as required under the relevant environmental laws, have been obtained, and whet her those industries have complied with the requirements of law including the em ission standard. If not, necessary order(s), within 2(two) months thereafter, s hall be passed by the PCB after giving opportunity of hearing to all concerned. The Principal Secretary (Forests) to the Government of Assam, Environmen (viii) t & Forests Department shall, within a period of 1(one) month from today, reply the communication dated 19th September, 2013 issued by the Government of India, Ministry of Environment & Forests (Wildlife Division), and if there is any lacun a in the proposal already submitted for declaration of ESZs, the same shall also be rectified and resubmitted within the aforesaid period of time. (ix) The Government of India, Ministry of Environment & Forests (Wildlife Div ision), within 2(two) months thereafter, shall consider the proposal and pass ne cessary order with regard to issuance of notification constituting ESZs around t he National Parks as well as the Wildlife Sanctuaries in the State of Assam. (x) Till such consideration is made, no industry would be allowed to set up within the proposed ESZs around the National Parks as well as Wild Life Sanctuar ies in the State of Assam. [25] No costs.