Dinesh Chahal v. Union Of India

1. Question for consideration is remedying the pollution caused by the brick kilns in the State of Haryana in the wake 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 upto 31.07.2019 without any scientific study and without any safeguards.

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 acknowledged 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 judgment 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.