O.A. No. 114 of 2013 Page 1 of 18

BEFORE THE NATIONAL GREEN TRIBUNAL

CENTRAL ZONAL BENCH, BHOPAL

Original Application No. 114/2013 (CZ)

CORAM:

Hon’ble Mr. Justice Dalip Singh

(Judicial Member)

Hon’ble Mr. P.S. Rao

(Expert Member)

BETWEEN:

1. Pramod Sharma S/o Ramswaroop Sharma

R/o Temple of Mallashah, Bundi, Rajasthan

2. Gopal Dadhich S/o Shivdatt Dadhich,

R/o Sethji Ka Chawk, Bundi, Rajasthan

3. Khemraj Saini S/o Dwarkalal Saini,

R/o Kagaji Devra, near Naru Ki Bavdi,

Bundi, Rajasthan.

4. Amit Sharma S/o Purshottam Lal Sharma,

R/o Gadhmalji Ki Gali, Bundi, Ranasthan

5. Narendra Dhabai S/o Jagannath Dhabai,

R/o Shitala Gali, Bundi, Rajasthan

6. Mukesh Nama S/o Narsingh Lal Nama,

R/o Balchand Pada Chaudhary Ki Gali,

Bundi, Rajasthan.

7. Heerlal Gujar S/o Bihari Gujar,

R/o near temple of Akoda Thakur Ji,

Bundi, Rajasthan.

8. Shambhu Singh S/o Durga Singh Ji

R/o Opposite Bidi Factory,

Bundi, Rajasthan. …..Applicants

Versus

1. State of Rajasthan through District Collector,

O.A. No. 114 of 2013 Page 2 of 18

Bundi, Rajasthan

2. Tehsildar, Bundi, Rajasthan

3. District Forest Officer, Bundi, Rajasthan

4. Mines Engineer (First), Bundi, Rajasthan

5. Mines Engineer (Second), Bundi, Rajasthan

6. Nagar Palika Bundi through Executive Officer,

Bundi, Rajasthan

7. Chairman, Pollution Control Board,

Jhalana Doongri, Jaipur, Rajasthan. .....Respondents

Counsel for Applicant: None

Counsel for State of Rajasthan: Mr. Ayush Dev Bajpai,

Advocate for Mr. Sachin

Verma, Advocate

Counsel for RSPCB : Mr. Suman Mandal, Advocate

for Shri Sandeep Singh,

Advocate

Dated : April 21st , 2014

1. This O.A., originally filed as DB Civil Writ Petition (PIL) numbered

as W.P. No. 2662/2006 filed by one, Shri Pramod Sharma and 7

others Vs. State of Rajasthan & Others in the Hon’ble High Court

of Rajasthan, Bench at Jaipur with the prayer to direct closure of

brick kiln activities in Bundi District and in areas adjacent to Bundi

city in the State of Rajasthan. In pursuance to the order dated 23rd

September, 2013 of Hon’ble High Court of Rajasthan issued in

consonance with the order dated 9th August, 2012 of the Hon’ble

Supreme Court passed in Bhopal Gas Peedith Mahila Udyog

O.A. No. 114 of 2013 Page 3 of 18

Sangathan and Others Vs. Union of India & Others (2012) 8 SCC

326, the above said writ petition was transferred to the Central Zone

Bench, Bhopal of National Green Tribunal. Upon its transfer, the

writ petition was registered as OA No. 114/2013 and notices were

issued to all the parties vide order dated 5th December, 2013. Later

on, the case was heard on 27th January, 2014, 18th February, 2014,

14th March, 2014 and finally on 21st April, 2014. None appeared for

the Applicants on all the aforesaid dates of hearing.

2. In the writ petition it has been stated by the Applicants that they are

residents of District Bundi, involved in various social activities and

participating in various programmes to spread environmental

awareness in larger public interest. They stated that Bundi city is

having more than seven centuries of history with rich heritage. It is

rich in agricultural activities and is surrounded by the famous

Aravali Hills attracting foreign and local tourists. It is also rich in

water resources and forests giving a look of a mini hill station. Of

late, many brick kilns for manufacturing bricks for commercial

purpose, have been started around the city of Bundi and other parts

of the district without following the safety norms leading to

environmental pollution and also causing damage to the health of

the citizens. The Applicants averred that the Respondents without

following the prescribed procedure allowed the brick kiln owners to

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continue their activities in violation of various state and

environmental laws.

3. The Applicants further contended that under Section 3 of the

Rajasthan Land Revenue (Allotment & Conversion of Land for

Establishment of Brick Kilns) Rules, 1987 there is a provision for

allotment of unoccupied Government land and conversion of

agricultural land by Khatedar tenant for the establishment of the

brick kilns in the whole of the State of Rajasthan with the condition

that the land should not be situated within one kilometre of the

village Abadi, the kiln owner shall obtain Mining Lease (in short

ML) from the Mining Department and also NOC issued by the

concerned village/municipal/local authority who while issuing

NOC shall ensure that the proposed brick kiln shall not cause any

pollution or fire hazard to village Abadi and storage godowns or

places of religious worship or places of historical or tourist

importance. However, in the case of brick kilns located in Bundi

District and around Bundi city, above said Rules are not being

followed and brick kilns are allowed to mushroom in the area. The

kiln holders have started digging brick earth in valuable agricultural

lands in the vicinity of Bundi city in an illegal and impermissible

manner causing damage to the environment.

4. The Applicants further averred that they have submitted various

representations to the Respondents for stopping the brick kiln

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activities but the Respondents failed to take any steps to safeguard

the heritage and environment of the Bundi city and District. Due to

illegal manufacturing activities in the brick kilns tourism industry

got affected in Bundi District very badly. Further, the brick kiln

owners besides digging valuable agricultural lands, have also started

illegal collection of firewood from the adjacent forests affecting the

environment in the vicinity of Bundi city and district. The brick kiln

units scattered around the city of Bundi are having large ovens for

firing or burning or drying the bricks and releasing huge quantity of

ash and poisonous gases into the atmosphere causing environmental

pollution besides adversely affecting the fertility of the agricultural

lands. In the above circumstances, the Applicants have prayed for

closure of the illegal brick kilns to maintain the heritage of the Bundi

District and Bundi city and also to protect the environment.

5. Reply has been filed on behalf of the Respondent Nos. 1 to 5 with

the affidavit of Sub-Divisional Officer, Bundi denying that no brick

kilns were allowed to operate by the Respondents without

permission and they were allowed only after granting licence and

after obtaining NOC from Superintendent of Police, concerned

Tehsildar, concerned Municipal Board/Gram Panchayat as well as

Rajasthan State Pollution Control Board (in short RSPCB). If any

unauthorised brick kilns were found to be established and are under

operation, they were not only removed but the concerned persons

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were inflicted with suitable punishments and only those brick kilns

which got licences issued by the Mining Department as per the

provisions of the Rajasthan Minor Mineral (Concession Rules),

1986 were allowed to be operated.

6. The Respondent Nos. 1 to 5 further stated that in case the

agricultural lands proposed to be utilised for establishing the brick

kilns, are not situated near the National Highway or Abadi areas,

there is no need of taking permission for using the land measuring a

maximum of 2500 sqr. mtrs. and in case any brick kiln owner uses

the land more than 2500 sqr. mtrs. near Abadi area or National

Highway action is taken against them and such brick kilns are

removed besides recording such lands as siwai chak under the

provisions of Section 177 of the Rajasthan Tenancy Act, 1955. It is

further stated that licence issued by the Mining Department is only

as per the provisions of the Government of Rajasthan Notification

dated 10th June, 1994 issued under Rule 65A of the Rajasthan Miner

Mineral (Concession) Rules, 1986 wherein there is a prescribed

procedure of granting permission for manufacturing bricks by using

the brick earth. It was also stated by the Respondent Nos. 1 to 5 that

allotment of the land and it's conversion for the purpose of

establishment of brick kilns, is governed by the Rajasthan Land

Revenue (Establishment of Brick Kilns) Land Allotment Rules,

1987 in non-command areas and by the Rajasthan Colonization

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Project area Brick Kiln (Lease) Conditions 1966 in command areas.

It was further stated that during 2007, the Government of Rajasthan

issued Notification dated 2nd April, 2007 notifying the Rajasthan

Land Revenue (Conversion of Agricultural Land for Non-

Agricultural Purposes in Rural Areas) Rules, 2007 wherein specific

provision has been made for various activities of utilization of

agricultural land for non-agricultural purpose and whenever brick

kilns are allowed to be established in agricultural land, these Rules

are followed before granting licence. It is also stated that no brick

kilns are allowed to be established within one kilometre from Abadi

area and if any contravention of Rules by any brick kiln holder is

noticed, not only the kilns are removed but penalty is also imposed

against such brick kiln owners. In one such action about 15 brick

kilns were removed by the Tehsildar, 4 Brick kilns were removed

by the Municipal Board with the help of the District Administration.

It was further stated that as per the report of the Divisional Forest

Officer, no illegal cutting of firewood is reported in the forest areas

by the brick kiln owners.

7. The Respondent No. 7 RSPCB in their reply stated that there are

about 200 brick kiln units in the District Bundi and the units are

required to obtain consent of the Pollution Control Board for

establishment as well as for operation and for making discharge of

emission of air pollutants under the provision of Air (Prevention &

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Control of Pollution) Act, 1981(in short Air Act) and Water

(Prevention & Control of Pollution) Act, 1981(in short Water Act).

These units are also required to comply with the emission standards

prescribed under the Environment (Protection) Rules, 1986 (in short

EP Rules) issued under Environment (Protection) Act, 1986 (in

short EP Act). It was further stated that only in respect of two brick

kiln units i.e. M/s. National Brick Industries located in Khasra No.

457 near village Ajela, District Bundi and M/s Ash Brick Company

located in Khasra No. 599, village Rehana, District Bundi Consent

was granted under the Air Act and the remaining units are found to

be operative without the consent of the Board in violation of the

provisions of Air Act and EP Rules. Therefore, the Board with a

view to prevent and control pollution caused by the unauthorised

brick kiln units, has addressed all the Tehsildars in the District

Bundi to provide the complete list of brick kilns in their respective

jurisdiction. All the Tehsildars were informed that as the brick kiln

units were permitted by the District Administration under the

Revenue Laws, they would be directed to seek Consent to establish

and operate the units only after applying to the State Pollution

Control Board. It was also stated by the State Pollution Control

Board that the State Board vide its letter dated 2nd September, 2005

directed all the District Collectors in the state including the District

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Collector, Bundi for taking appropriate action against the defaulting

brick kiln units.

Discussion and Conclusions :-

8. Having gone through the writ petition and the replies filed by the

Respondents and having heard the learned counsel for the

Respondents, it is evident that a large number of brick kiln units are

established in District Bundi and around Bundi city after taking

permission from the Revenue and Mining authorities but no

‘Consent to Establish’ and ‘Consent to Operate’ was obtained by the

brick kiln owners from the RSPCB in violation of the Air Act and

EP Act. It appears that the brick kilns are permitted to be established

after their application for land conversion is examined and

processed by the District Administration/Revenue Department but

no action is being taken to direct them to obtain consent from the

State Pollution Control Board. Therefore, the following directions

are issued for compliance : -

(I). In compliance of the directions issued under section 18 (1)

(b) of the Water Act by the Central Pollution Control Board

(in short CPCB), vide letter dated 4-6-2012, the RSPCB in its

office order No. F.14 (23) Policy/RPCB/Plg/10548-10587,

dated 7-3-2013 ordered categorization of the

industries/processes/activities/mines in the state of Rajasthan

for the purpose of consent mechanism and brought Brick kiln

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industry (excluding fly ash brick manufacturing using lime

process) under Orange category. As per the Rajasthan Dept. of

Environment notification GSR No. 105 dated 6.2.2013 given

under Air Act and GSR No. 106, dated 6-2-2013 given under

Water Act brick fields industry comes under Appendix-B

(Sl.No.07). However, the record placed before us does not

indicate anything about evolving a policy and prescribing

guidelines to regulate and monitor the Brick Kilns activities in

the state of Rajasthan though the measures required to be taken

by the brick kiln industry for control of Air and Water

Pollution warrant consideration of applications for granting

Consent under the Air Act and the Water Act . Therefore some

of the points which are suggested to be taken into account by

RSPCB, District Administration and Mining Authorities as the

case may be, in granting approval/consent for brick kilns are:

1. Registration with District Industries Centre

2. Fixing a minimum radial distance from any

notified human habitation, hospitals, educational

or any other institutions;

3. Fixing minimum distance from the neighbors’

agricultural/horticulture fields, flood banks of

rivers/streams, National Highways/State

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Highways/ Expressways/ Ring roads/Village

roads, heritage sites etc.

4. Accessibility to the kiln unit without disturbing the

surrounding crops;

5. Disposal/utilization of ash produced by the kilns to

reduce fugitive emissions;

6. Disposal of waste water in scientific manner to

avoid the ground water contamination in and

around the kiln area.

7. Fixing of minimum stack height from GL as

required

8. Measures to achieve the standards (SPM-

750mg/Nm3) prescribed under the EP Rules, 1986.

9. Developing green belt along periphery of plant to

avoid air pollution around the plant.

10. No tapping of ground water without obtaining

NOC from CGWA/State Authorities.

11. Complying with the standards as prescribed in the

MoEF Notification No. GSR 826 (E) dated 16th

November, 2009 with respect to National

Ambient Air Quality.

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12. Not creating any obstacles to natural flow of water

i.e. natural nallah/stream carrying rain water to any

water body in the mining area or adjacent to it.

13. Installing adequate infrastructure facilities for

stack monitoring to know the concentration of

pollutants emitted into the atmosphere with Kiln.

(II). An immediate spot survey of all the brick kilns shall be

undertaken jointly by a senior officer of the Revenue

Department nominated by the District Collector, Bundi and by

the concerned officer of the RSPCB in each Tehsil of the

District Bundi and verify whether the units are established in

accordance with law and whether they have obtained licence

from the Revenue Department and Consent from the RSPCB.

In case those units which had already obtained the licence and

consent to operate, the Pollution Control Board shall verify

whether the prescribed norms are followed and standards are

maintained and if there is any violation, action shall be taken

immediately under the Air Act/EP Act by giving show cause

notice to the units which are found violating the provisions and

thereafter, necessary follow-up action shall be taken in

accordance with law.

(III) in case of those units which are sanctioned by the

District Administration/Revenue Department but not

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obtained consent from the RSPCB immediate action shall be

taken to give notice to them to obtain the consent within 60

days from the date of this order and in case no consent is

obtained within 60 days, the kilns shall be ordered to be

closed in consultation with the District

Administration/Revenue Department and the District

Administration shall provide all the necessary assistance in

this regard to the PSPCB.

(IV). As directed by the Hon’ble Supreme Court in its order

dated 27th February, 2012 in IA No. 12-13 of 2011 in SLP

(C) No. 19628-19629/2009 titled Deepak Kumar & Ors. vs.

State of Haryana & Ors. Environmental Clearance (in short

EC) is required even in those cases where mining lease is

granted for borrowing/excavation of brick earth in area less

than 5 hectares. Therefore, the guidelines issued in the Office

Memorandum No. L-11011/47/2011-IA.II(M) dated 24th

June, 2013 of Ministry of Environment and Forests (in short

MoEF), Government of India as well as amendment dated 9-

9-2013 made to EIA Notification 2006 and guidelines

stipulated in MoEF Office Memorandum No. J-

13012/12/2013-IA-II(I) dated 24th Dec., 2013 wherein

category 'B' projects were further sub-categorised into 'B1'

and 'B2', shall be strictly followed and mining projects of

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brick earth are permitted to be established and operate only

after obtaining EC from the competent authority. Brick earth

mining projects having lease area less than 5 hectares shall

be considered for granting EC as per the guidelines issued in

MoEF Office Memorandum No. L-11011/47/2011-IA.II (M)

dated 24th June, 2013 which are reproduced below for strict

compliance.

“(a)……………..

(i) The activity associated with borrowing/excavation of

‘brick earth’ and ‘ordinary earth’ for purpose of brick

manufacturing, construction of roads, embankments etc.

shall not involve blasting.

(ii) The borrowing/excavation activity shall be restricted

to a maximum depth of 2 m below general ground level

at the site.

(iii) The borrowing/excavation activity shall be restricted

to 2 m above the ground water table at the site.

(iv) The borrowing/excavation activity shall not alter the

natural drainage pattern of the area.

(v) The borrowed/excavated pit shall be restored by the

project proponent for useful purpose(s).

(vi) Appropriate fencing all around the

borrowed/excavated pit shall be made to prevent any

mishap.

(vii) Measures shall be taken to prevent dust emission by

covering of borrowed/excavated earth during

transportation.

(viii) Safeguards shall be adopted against health risks on

account of breeding of vectors in the water bodies created

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due to borrowing/excavation of earth.

(ix) Workers / labourers shall be provided with facilities

for drinking water and sanitation.

(x) A berm shall be left from the boundary of adjoining

field having a width equal to at least half the depth of

proposed excavation.

(xi) A minimum distance of 15 m from any civil structure

shall be kept from the periphery of any excavation area.

(xii) The concerned SEIAA while considering granting

environmental clearance for such activity for brick

earth/ordinary earth will prescribe the guidelines as stated

at (i) to (xi) above and specify that the clearance so

granted shall be liable to be cancelled in case of any

violation of above guidelines.

(b) Notwithstanding what has been stated at (a) above, the

following will apply: -

(i) No borrowing of earth /excavation of ‘brick earth’ or

‘ordinary earth’ shall be permitted in case the area of

borrowing/excavation is within one 1 km of boundary of

national parks and wild life sanctuaries.

(ii) In case the area of borrowing/excavation is likely to

result into a cluster situation i.e. if the periphery of one

borrow are is less than 500 m from the periphery of another

borrow area and the total borrow area equals or exceeds 5

ha, the activity shall become Category ‘B1’ Project under

the EIA Notification, 2006. In such a case, mining

operations in any of the borrow areas in the cluster will be

allowed only if the environmental clearance has been

obtained in respect of the cluster.

(V) If in case, the mining lease area for brick earth is 5

hectares or more than 5 hectares but less than 25 hectares,

they shall be appraised as Category 'B2' projects and the

guidelines issued in MoEF Office Memorandum No. J-

13012/12/2013-IA-II dated 24th December, 2013 shall be

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followed.

(VI) Wherever fly ash is available from the Thermal Power

Plants located near the existing or proposed brick

manufacturing units, the guidelines issued from time to time

by the MoEF on utilization of fly ash, shall be followed for

production of fly ash bricks and manufacturing of bricks by

digging brick earth particularly in valuable agricultural

lands, shall be discouraged.

(VII) With regard to the allegations made by the Applicants

that brick kilns are allowed in the Abadi areas in violation of

Rajasthan Land Revenue (Allotment & Conversion of Land

for Establishment of Brick Kilns) Rules, 1987, Rajasthan

Land Revenue (Conversion of Agricultural Land for Non-

Agricultural Purposes in Rural Areas) Rules, 2007 and

Rajasthan Minor Mineral (Concession Rules), 1986, this

Tribunal will not be able to go into the details as to whether

any of the above Rules are violated by the District

Administration/Revenue Department while granting

establishment of brick kilns as the mandate given to this

Tribunal is with regard to the adjudication of cases pertaining

to environmental laws only. However, it is suggested that

once the joint inspection team constituted with the officials

of Revenue Department and RSPCB completes the

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inspection of all the brick kilns in the district and submits it's

report and if any brick kilns were found to be allowed to

operate in contravention of the aforesaid State rules, the

District Collector, Bundi shall enquire into such cases and

take appropriate action as deemed fit. Nevertheless, the

RSPCB shall consider granting the Consent only in case of

those brick kilns which are permitted to be established in

accordance with law.

9. With the above directions, we dispose of this Application.

However, with a view to ensure compliance of our order, we

direct that the matter be listed in Court on 31st July, 2014

wherein the RSPCB as well as the District Collector, Bundi shall

file compliance report with full details of all the brick kilns

inspected and brick kilns sanctioned by the District

Administration/Revenue Department for whom consent to operate

was granted by the RSPCB and the brick kilns ordered to be closed.

10. Copy of this order be also sent to the Chief Secretary and Principal

Secretary, Revenue Department, Government of Rajasthan for

issuing necessary directions to all the District Collectors in the state

for ensuring compliance and if necessary to incorporate the above

requirements in the existing rules framed by the Government. Copy

is also to be sent to the Member Secretary, RSPCB, Jaipur for

compliance.

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(Mr. Justice Dalip Singh)

Judicial Member

Bhopal:

April 21st, 2014

(Mr. P.S.Rao)

Expert Member