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Dinesh Chahal v. Union Of India

National Green Tribunal
Feb 6, 2020
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Original Application No. 1088/2018 (I.A. No. 98/2019, I.A. No. 100/2019, I.A. No. 101/2019, I.A. No. 119/2019 & I.A. No. 266/2019)

JUDGES

Adarsh Kumar Goel

Chairperson

S.P Wangdi, Judicial Member

Dr. Nagin Nanda, Expert Member

Siddhanta Das, Expert Member

ACTS

Sections 14, 15 and 20 of the NGT Act, 2010

Control of Pollution) Act, 1981 (Air Act),

Section 17(g) of the Air Act

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Smart Summary (Beta)

Summary of Legal Opinion

Factual and Procedural Background

The core question before the Tribunal was the validity of an order issued by the Director, Food, Civil Supplies and Consumers Affairs, Government of Haryana (Respondent No. 3) that extended the time limit for adoption of Zig-zag Technology for running brick kilns outside the National Capital Region (NCR) up to 31.07.2019. The Tribunal also had to consider the permissibility of FCBTK (Fixed Chimney Bull's Trench Kiln) technology kilns using agro-residue (crop residue) as fuel. A separate order deals with permissibility of Zig-zag technology kilns within the NCR.

Background chronology (as recorded in the opinion):

  • 30.12.2015: CPCB directed adoption of Zig-zag Technology for NCR; EPCA issued similar direction to NCR States.
  • 07.01.2019: This Tribunal issued notice and stayed operation of the Haryana Director's order (the impugned order).
  • 21.02.2019: Tribunal reiterated that ambient air quality standards under Section 17(g) of the Air Act apply even in non-NCR areas, and emphasized the need for studies on ambient air status and carrying capacity before permitting brick kilns to operate without safeguards.
  • 04.04.2019: Haryana filed an affidavit that did not show any carrying capacity or ambient air study, only noting CPCB proposals and financial concerns.
  • Applications were filed by brick kiln owners seeking variation and early hearing; CPCB was asked to file a report and to take instructions.
  • 30.07.2019 and subsequently: CPCB furnished a report (later dated 22.01.2020) which the Tribunal found inadequate in several respects (including lack of carrying capacity assessment for the relevant Haryana non-NCR areas).

Legal Issues Presented

  1. Whether the Director's order of the State of Haryana extending the time for adoption of Zig-zag Technology for brick kilns in non-NCR areas up to 31.07.2019, issued without any scientific study on carrying capacity and without safeguards, was valid.
  2. Whether FCBTK technology kilns using agro-residue (crop residue) as fuel may permissibly be allowed to operate in non-NCR areas in the absence of an ambient air carrying capacity assessment.
  3. Whether the Tribunal has jurisdiction to pass orders in this environmental matter in view of the contention that such interference would amount to exercise of judicial review (with reference to the decision in Tamil Nadu Pollution Control Board v. Sterlite Industries).

Arguments of the Parties

Applicant (environment/public interest)

  • Air pollution causes deaths and diseases; CPCB and EPCA had directed adoption of Zig-zag Technology (for NCR).
  • State of Haryana allowed conventional brick kilns to operate in non-NCR regions without any study or safeguards and contrary to its own earlier decision requiring improved emission technology.
  • In absence of an expert study on ambient air quality and carrying capacity assessment, permitting all brick kilns to operate up to 31.07.2019 in non-NCR areas is not justified.

State of Haryana / Respondents

  • Filed an affidavit (04.04.2019) which indicated that CPCB had proposed allowing conventional brick kilns using agricultural residue and that conversion to Zig-zag Technology could cause financial hardship and inflation; the affidavit did not show any carrying capacity or ambient air study.
  • Respondents' counsel submitted that conventional brick kilns using crop residue may be allowed.
  • It was contended on behalf of some respondents that the Tribunal has no jurisdiction because interference would amount to an exercise of the power of judicial review (relying on Sterlite judgment).

Brick Kiln Owners (Applicants in I.A. No. 98/2019)

  • Claimed they had been granted Consent to Operate and had constructed stack heights of 30 meters, which was argued to be an adequate safeguard.
  • Argued there was no justification for requiring Zig-zag technology beyond the NCR and sought direction allowing use of crop residue as suggested by CPCB.
  • Submitted conversion to Zig-zag would cause financial hardship.

Central Pollution Control Board (CPCB)

  • Was asked to file an affidavit/report; took time to take instructions and sought further time to produce a proper report.
  • CPCB furnished a report dated 22.01.2020; the Tribunal found the report inadequate in terms of carrying capacity assessment for the non-NCR areas in Haryana.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
M.C. Mehta v. Union of India, (1998) 9 SCC 149 Authority for environmental controls including directions for brick kilns; cases where closure or shifting of polluting units was directed. Referred to as part of earlier jurisprudence where the Supreme Court directed closure or shifting of brick kiln industries; used to justify the need for precautionary measures and studies before allowing operations.
M.C. Mehta v. Union of India, (2000) 7 SCC 422 Environmental protection measures and remedial directions for polluting industries. Referenced along with other M.C. Mehta decisions to underscore the Supreme Court's approach to regulating brick kilns due to air quality impacts.
M.C. Mehta v. Union of India, (2002) 4 SCC 378 Further authority on regulatory measures for polluting industries (brick kilns included). Referenced as precedent where the Supreme Court addressed brick kilns and environmental impacts; used to support the Tribunal's caution in allowing kilns without study.
M.C. Mehta v. Union of India, (2001) 9 SCC 235 Principle that brick kilns may be allowed to operate only after studying impact on human population and vegetation. Cited specifically for the proposition that brick kilns can be permitted only after studying their impact on human population and vegetation; the Tribunal invoked this to require carrying capacity / impact studies.
K. Guruprasad Rao v. State of Karnataka, (2012) 12 SCC 736 Authority for corrective measures (including closure/shifting) in relation to polluting industries. Referenced among cases directing closure or shifting of brick kiln industries, supporting the Tribunal's cautionary approach.
Tamil Nadu Pollution Control Board v. Sterlite Industries, AIR 2019 SC 1074 Addressed limits of NGT jurisdiction and the role of other fora (as relied upon by respondents to argue lack of Tribunal jurisdiction). Respondents invoked this judgment to contend the Tribunal had no jurisdiction; the Tribunal considered and rejected that contention, holding that it has jurisdiction under Sections 14, 15 and 20 of the NGT Act to pass orders, including interim orders, in environmental matters.

Court's Reasoning and Analysis

The Tribunal's analysis proceeded along the following lines (based strictly on the opinion text):

  1. Preliminary assessment: The Tribunal noted prior directions by CPCB and EPCA favoring Zig-zag Technology for the NCR, and that the State of Haryana had allowed conventional brick kilns to operate in non-NCR areas without conducting any study on ambient air quality or carrying capacity and without imposing safeguards.
  2. Precautionary principle and statutory standards: The Tribunal held that even in non-NCR areas, the Standards of Ambient Air Quality under Section 17(g) of the Air (Prevention and Control of Pollution) Act are applicable. Where an impugned administrative order has been passed without a study of ambient air quality, without a carrying capacity assessment for the additional load, and without safeguards envisaged by the precautionary principle, such orders may not be justifiable given the acknowledged adverse impact of brick kilns on ambient air quality.
  3. Interim relief rationale: In the absence of any study despite earlier directions (including the Tribunal's order of 21.02.2019), the Tribunal considered it hazardous to permit operations of brick kilns broadly in non-NCR areas. Consequently, the Tribunal refused to allow the impugned relaxation to stand in its present unqualified form and continued interim protections, while directing further action.
  4. Directions for study and nodal responsibility: The Tribunal directed the State of Haryana and the CPCB to undertake a carrying capacity assessment and study the impact of conventional brick kilns using agro-residue, with CPCB designated as the nodal agency. The study was to include estimation of total existing PM load, assimilative capacity, and supportive capacity with regard to PM, and to propose mechanisms to ensure only crop residue is used if conventional kilns are to be permitted on that basis.
  5. Evaluation of CPCB report(s): The CPCB's report dated 22.01.2020 was found inadequate for not addressing carrying capacity in the relevant Haryana non-NCR areas (though it did assess Suratgarh, Rajasthan and found negative supportive capacity there). The Tribunal observed deficiencies in the report and in the joint committee's methodology: small sample sizes, few monitoring days, lack of representation across kiln categories, and comparisons with non-comparable situations.
  6. Comparative emissions analysis: The Tribunal noted that the available data indicated Zig-zag kilns using coal produced lower particulate emissions than FCBTK kilns using agro-residue; emissions also varied significantly across different agro-residue fuels. The joint committee's conclusion that higher PM concentration during initial firing is not significant was criticized as lacking scientific logic.
  7. Environmental and soil concerns: The Tribunal emphasized that, besides ambient air quality and carrying capacity issues, the operation of a large number of brick kilns raises concerns of environmental degradation, specifically loss of productive topsoil, which the report indicated needs to be addressed in the carrying capacity study.
  8. Jurisdictional analysis: Addressing the argument based on the Sterlite judgment that the Tribunal lacked jurisdiction, the Tribunal held that it did have jurisdiction to pass orders under Sections 14, 15 and 20 of the National Green Tribunal Act, 2010, including issuing interim orders to protect the environment. The Tribunal distinguished its role from high courts' or the Supreme Court's exercise of judicial review, while affirming that its statutory jurisdiction in environmental matters must be exercised or else the Tribunal would be rendered purposeless.
  9. Further procedural steps: The Tribunal required a more comprehensive carrying capacity study with adequate samples (number of kilns and days of monitoring), an assessment of ambient air impact and topsoil loss, and a determination of permissible number of kilns and appropriate technology for non-NCR areas. It directed the Member Secretary, CPCB, to furnish a further report by 31.03.2020 and listed the matter for 14.04.2020.

Holding and Implications

Core Ruling: The Tribunal held that in the absence of any carrying capacity or ambient air study, it would be hazardous to permit operation of brick kilns in the non-NCR regions as authorized by the impugned order; accordingly, the impugned order cannot stand in its unmodified form and must be subject to modification. The Tribunal directed that a comprehensive carrying capacity and impact study be undertaken by CPCB (nodal agency) and the State of Haryana, and that operations based on FCBTK using agro-residue or other conventional methods be decided only after the study.

Implications and immediate effects:

  • The impugned administrative relaxation allowing brick kilns to operate up to 31.07.2019 in non-NCR areas (without study or safeguards) was not permitted to operate in its unqualified form; the Tribunal continued interim protective measures and required further study.
  • CPCB was directed to be the nodal agency and to furnish a detailed carrying capacity report (including ambient PM load, assimilative capacity, supportive capacity and topsoil impact) by 31.03.2020; the matter was to be listed on 14.04.2020 for further consideration.
  • The question whether FCBTK technology using agro-residue may be allowed in non-NCR Haryana will be determined after a proper carrying capacity assessment and consideration of potential impacts on air quality (including potential effects on NCT Delhi during winter months) and topsoil degradation.
  • The Tribunal affirmed its jurisdiction under Sections 14, 15 and 20 of the NGT Act, 2010 to address substantial environmental questions and to pass interim orders; it rejected the submission that such interference would be an impermissible exercise of judicial review in the context invoked by the respondents.
  • The opinion does not purport to lay down any new binding constitutional precedent beyond the directions and procedural requirements imposed in the case; it confines itself to directing further studies and interim measures pending those studies.

Dates and administrative directions (as recorded):

  • Original impugned order extended adoption time for Zig-zag Technology up to 31.07.2019 (Director, Haryana).
  • Tribunal stayed operation of the impugned order on 07.01.2019 and continued interim protections.
  • Tribunal directed carrying capacity study; CPCB to file further report by 31.03.2020 (Member Secretary, CPCB to furnish report by e-mail to judicial-ngt@gov.in).
  • Listed for further consideration on 14.04.2020.

This summary is strictly confined to the information contained in the provided opinion and does not add or infer facts beyond that text.

Show all summary ...

1. Question for consideration is the validity of the order issued by the Director, Food, Civil supplies and Consumers Affairs, Government of Haryana, Chandigarh — Respondent No. 3 extending time limit for adoption of Zig-zag Technology for running of the brick kilns beyond NCR area upto 31.07.2019, without any scientific study on carrying capacity for such activity and without any safeguards. Further question which has emerged during the proceedings is permissibility of FCBTK technology kilns, using agro fuel. Issue of permissibility even of Zig-zag technology kilns in NCR region on account of adverse impact on air quality is being dealt with by a separate order in O.A. No. 1016/2019.

2. The matter was considered on 30.04.2019 as follows:

“2. Case of the applicant is that air pollution is causing deaths and diseases and to remedy the situation, the Central Pollution Control Board (CPCB) directed adoption of Zig Zag Technology on 30.12.2015 for NCR. Similar order was passed by the Environmental Pollution (Prevention and Control) Authority (EPCA) asking the NCR States to use Zig Zag Technology for brick kilns in the light of the order of the CPCB. However, without any study or safeguards for the norms under the Air (Prevention and Control of Pollution) Act, 1981 (Air Act), the Food and Supply Department, State of Haryana allowed the conventional brick kilns to operate in non-NCR Region, contrary to the decision of the State of Haryana itself requiring improved emission technology to be used for operating the brick kilns.

3. Vide order dated 07.01.2019, while issuing notice, this Tribunal stayed the operation of the order of the Director, Food, Civil supplies and Consumers Affairs, Government of Haryana, Chandigarh. The matter was again considered on 21.02.2019 with reference to the contention that the impugned order was only for Non-NCR to which order of CPCB or EPCA did not apply. The Tribunal held that even in Non-NCR, Standards of Ambient Air Quality laid down under Section 17(g) of the Air Act are required to be followed. If the impugned order has been passed without undertaking any study on status of ambient air quality without any carrying capacity assessment to take the additional load at concerned areas and without any safeguards on ‘Precautionary’ principle, the same may not be justifiable having regard to the acknowled.ged adverse impact of operation of the brick kilns on the ambient air quality. Reference was made to the Judgements of the Hon'ble Supreme Court in M.C. Mehta v. Union of India, (1998) 9 SCC 149, M.C. Mehta v. Union of India (2000) 7 SCC 422, M.C. Mehta v. Union of India, (2002) 4 SCC 378, K. Guruprasad Rao v. State of Karnataka, (2012) 12 SCC 736 wherein the Hon'ble Supreme Court directed closure or shifting of brick kiln industries and M.C. Mehta v. Union of India, (2001) 9 SCC 235 laying down that brick kilns may be allowed to operate after studying the impact on human population and vegetation. The State of Haryana sought time to show whether any exercise was undertaken as per the ‘Precautionary’ principle of environment while passing the order. The interim order was allowed to continue.

4. An affidavit has been filed by the State of Haryana on 04.04.2019 which does not show any study having been undertaken except to say that the CPCB has proposed that conventional brick kilns using agricultural residue should be allowed and that conversion to Zig Zag Technology will lead to financial hardship and inflation in the market.

5. I.A. No. 98/2019 has been filed by certain brick kilns for variation of interim order. The application states that brick kilns have been granted Consent to Operate and have constructed stack height of 30 meters which itself was adequate safeguard. There is no justification for requirement of Zig Zag technology beyond the NCR and direction be given for use of crop residue as suggested by CPCB.

6. The application was directed to be considered along with the main case. I.A. No. 266/2019 was filed for early hearing in the light of the order of the Hon'ble Supreme Court dated 15.03.2019 to consider whether the interim order needs to be varied. On 12.04.2019, the CPCB took time to take instructions. However, no affidavit has been filed by the CPCB so far.

7. Thus, the question for consideration is whether on ‘Precautionary’ principle, any study of ambient air quality is required for permitting operation of brick kilns in the State of Haryana. This led to earlier decision of the Government restricting running of brick kilns in Punjab and Haryana except by using Zig Zag technology. Impugned order relaxed this requirement.

8. Learned counsel for the applicant submits that in absence of an expert study with regard to the status of ambient air quality and carrying capacity assessment, the impact of running brick kiln in the impugned order permitting all brick kilns to operate upto 31.07.2019 in non-NCR area is not justified Learned counsel for respondents submitted that conventional brick kilns using crop residue may be allowed. It was also submitted that this Tribunal has no jurisdiction as interference by the Tribunal amounts to exercise of power of ‘judicial review.’

9. We are satisfied that in absence of any study in spite of orders of this Tribunal dated 21.02.2019, it will be hazardous to permit operation of the brick kilns in view of acknowledged adverse impact on the air quality. At the same time, we direct the State of Haryana and the CPCB to undertake study of air quality carrying capacity assessment and impact of operation of the conventional brick kilns using agri-residue at the earliest and furnish a report to this Tribunal. CPCB will be the nodal agency. If burning of crop residue helps the situation, the same may be studied and report submitted. Mechanism be suggested to ensure that only crop residue is used for firing when conventional brick kilns are operated. We note that impugned order is not limited to kilns using crop residue. The order applies to every kiln without any restriction or safeguard. The same will have to be modified to that extent.

10. As regards the objection raised on behalf of the affected brick kilns that this Tribunal has no jurisdiction in the matter in view of the judgement of the Hon'ble Supreme Court in Tamil Nadu Pollution Control Board v. Sterlite Industries, AIR 2019 SC 1074, we do not find any merit in the submission. The operation of the brick kilns impacting air quality raises a substantial question of environment and for protection of environment, this Tribunal has jurisdiction to pass orders under Section 15 of the NGT Act which also includes power to issue interim order. While Tribunal may not exercise ‘judicial review’ jurisdiction of High Court and Supreme Court, jurisdiction under Sections 14, 15 and 20 of the NGT Act, 2010 can certainly be exercised. Otherwise setting up of Tribunal will have no purpose.

List for further consideration on 15.05.2019 in the light of expert study to be produced by the State of Haryana/CPCB. This date is being subject of report of expert Committee being received. If giving report takes more time, the date will have to be extended.”

3. Thereafter, the matter was again considered on 30.07.2019 and it was observed:

“4. The report furnished today by the CPCB is not adequate in terms of the order of this Tribunal. Realizing this state of affairs, learned Counsel for the CPCB as well as the officers of the CPCB who are present seek further time to file a proper report which may enable this Tribunal to assess the information whether such brick kilns can be allowed by using crop residue or otherwise, apart from the brick kilns operating by using zig zag technology.

5. The study may be carried out in comparable area. It is stated that the study requires three months. The CPCB may in its report indicate the location/area and names of the brick kilns where study has been carried out.

6. Though operation of order was only till 31.07.2019 which was stayed by this Tribunal, the studies may still be helpful for regulating the working of brick kilns.”

4. Accordingly, further report dated 22.01.2020 has been filed by the CPCB. The report does not mention the carrying capacity of the area in question i.e. non-NCR area in the State of Haryana. Though such capacity in respect of Suratgarh area, Distt. Sriganganagar has been assessed and found to be negative. The relevant portion of report is given below:

“Estimation of total existing PMio Load in Suratgarh Area., Rajasthan during study period: Total area of Suratgarh in Km2 : 2827.56 (Ref. : District census Handbook, Ganganagar, 2011, Directorate of Census Operations, Rajasthan) Mixing Height of Air in Suaratgarh in Km : 1.066154 (Ref : Since site specific mixing heights were not available, mixing heights based on IMD Publication “Atlas of Hourly Mixing heights and Assimilative Capacity of Atmosphere in India”, was considered. No air modeling was done in this study to calculate the mixing height) Total Volume of Air in Suratgarh in Km3 : 2827.56 × 1.066154 = 3014.614 Average measured PMio Concentration of Ambient Air in Suratgarh Area (Ref : Table 8 : Ambient Air Quality Results; S. No, 5 & 6) dUring study period : 523 pg/m3 i.e. 523 Kg/Km3 Therefore, Total estimated load of particulate matter (PM to) in ambient air of Suratgarh Area : (3014.614 × 523)/1000 = 1576.64 MT Estimation of Assimilative Capacitu w.r.t. PMT in Suratgarh Area, Total area of Suratgarh in Km2 : 2827.56 (Ref. : District census Handbook Ganganagar, 2011, Directorate of Census Operations, Rajasthan) Mixing Height of Air in Suaratgarh in Km : 1.066154 (Ref : Since site specific mixing heights were not available, mixing heights based on IMD Publication “Atlas of Hourly Mixing heights and Assimilative Capacity of Atmosphere in India”, was con.sid.ered,. No air modeling was done in this study to calculate the mixing height) Total Volume of Air in Suratgarh in Km3 : 2827.56 × 1.066154 = 3014.614 Particulate Matter (PMio) required to keep Ambient air quality at Satisfactory Level : 100 pg/M3 i.e 100 Kg/Km3 (Ref : Air Quality Index) Therefore, Assimilative Capacity w.r.t PMio in ambient air of Suratgarh Area : (3014.614 × 100/1000 = 301.46 MT Estimation of Supportive Capacity w.r.t. PMio in Suratgarh Area., Rajasthan during study period: Total estimated load of PMio in ambient air of Suratgarh Area during study period, : 1576.64 MT Assimilative Capacity w.r.t PMio in ambient air of Suratgarh 301.46 MT Supportive Capacity = Assimilative Capacity — Total Estimated Load Therefore, Supportive Capacity w.r.t. PMio in ambient air of Suratgarh Area : 301.46-1576.64 = 1275.18 MT”

5. The other issue dealt with is whether brick kilns can be allowed by using crop residue as a substitute for Zig-zag technology. The observations and conclusions drawn in the report are non-conclusive and cannot be relied upon in terms of small data base of sample size and number of days for which the sampling has been carried out. Besides, more brick kilns in each category should have been covered to avoid statistical errors in decision making. The performance of brick kilns is required to be evaluated against the background concentration and carrying capacity of the area. Comparision in the report has been made with incomparable situations, as was explained during the course of hearing. From the data made available by the joint Committee it is evident that particulate emissions for Zig-zag kilns using coal as a fuel is much lower than brick kilns operating on FCBTK technology using agro-residue as a fuels both with regard to initial firing and mid firing situations. Further, emission levels also vary quite significantly amongst different fuel types under agroresidue category. Further justification of impact of higher PM concentration during initial firing has no scientific logic. The joint Committee has erred in concluding that the impact of higher PM concentration during initial firing may not be significant when overall operation of any brick kiln for a particular season is considered.

6. It is acknowledged in the report of joint Committee that stack emissions are less in case of kilns operating on Zig-zag technology, compared to the kilns operating on FCBTK technology on the same fuels. The report further mentions that introduction of FCBTK technology using agro-residue may be done only after carrying capacity assessment of specific area, coverying estimation of total existing PM load, assimilative capacity with regard to PM and supportive capacity with regard to PM. Further, in view of large number of brick kilns operating in the area, besides carrying capacity issue with regard to ambient air, there are issues with regard to environmental degradation on account of operation of such large number brick kilns having potential for loss of productive top soil which takes thousand of years to form and is a prime factor which determines agricultural productivity.

7. For the above reasons, while the life of impugned order dated 07.12.2018 passed by the Director, Food, Civil supplies and Consumers Affairs, Government of Haryana has expired, question whether FCBTK technology can be allowed in non-NCR region of Haryana by using agri-residue will be determined in the light of further report as to the carrying capacity of the area in the light of potential for impact on the air quality of the area and on NCT Delhi specially during the witner months and degradation of top soil.

8. Accordingly, let the carrying capacity study which has adequate samples in terms of number of brick kilns and days for which the emissions monitored be conducted covering the impact on ambient air and the loss of top soil. Such study may particularly assess the permissible number of brick kilns and technology to be used for the same in the non-NCR region. Let further report in the matter be furnished by the Member Secretary, CPCB by 31.03.2020 by e-mail at judicial-ngt@gov.in.

List again on 14.04.2020.

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