Ajay Kumar Jha v. The State Of Bihar And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15962 of 2018 Suman Kumar Jha, Son of Late Laxman Jha, Resident of Village and P.O.- Rasiari, Ward No. 7, P.S. Ghanshyampur, District- Darbhanga Proprietor of M/s Patla Int Udyog, Village and P.O.- Rasiari, Ward NO. 7, P.S. Ghanshyampur, District- Darbhanga.
1. The State of Bihar, through the Chief Secretary, Govt. of Bihar, Patna. Patliputra Industrial Area, Patna.
8. The Regional Officer, Regional Office, Muzaffarpur, Industrial Estate Bela, Muzaffarpur.
10. The Chairman, The State Environment Impact Assessment Authority, Bihar,
11. The Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Civil Writ Jurisdiction Case No. 15991 of 2018 Arvind Kumar Jha Son of late Jata Shankar Jha Resident of Village- Balani, P.O. and P.S.- Bahera, District- Darbhanga Proprietor of M/S Satyam Int Udyog, Situated at Mauja- Basudeopur Majhaura, P.O. and P.S. Bahera, District- Darbhanga.
1. The State of Bihar, through the Chief Secretary, Govt. of Bihar, Patna.
3. The Principal Secretary, Department of Industry , Govt. of Bihar, Patna.
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6. The Chairman, the Bihar State Pollution Control Board, Paryavaran Bhawan, Patliputra Industrial Area, Patna.
8. The Regional Officer, Regional Office, Muzaffarpur, Sarai Syed Ali Road, Teachnical Chowk, Muzaffarpur.
10. The Chairman, The State Environment Impact Assessment Authority, Bihar,
11. The Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Civil Writ Jurisdiction Case No. 16107 of 2018 Shashidhar Jha Son of Sri Ram Shankar Jha, Resident of Village and P.O. Gonoun, P.S.- Ghanshyampur, District - Darbhanga Proprietor of M/s Heera Int Udyog, situated at Village and P.O. Gonoun, P.S. - Ghanshyampur, District - Darbhanga.
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. Patliputra Industrial Area, Patna.
8. The Regional Officer, Regional Office, Muzaffarpur Sarai Syed Ali Road, Technical Chowk, Muzaffarpur.
10. The Chairman, The State Environment Impact Assessment Authority, Bihar,
11. The Collector, Darbhanga District at Collectoriate Compound Laheriasarai, Civil Writ Jurisdiction Case No. 16638 of 2018
3/13 Ram Baran Mishra, Son of Late Baidya Nath Mishra, Resident of VillageMahinam, P.S.- Bahera, District- Darbhanga Proprietor of M/s Bhushan Int Udyog.
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. Patliputra Industrial Area, Patna.
8. The Regional Officer, Regional Office, Muzaffarpur, Industrial Estate, Bela, Muzaffarpur.
10. The Chairman, The State Environment Impact Assessment Authority, Bihar,
11. The Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Civil Writ Jurisdiction Case No. 16539 of 2018 Ajay Kumar Jha, Son of Surendra Narayan Jha, Resident of VillageRupnagar, P.O- Neuri, P.S. and block Biraul, District- Darbhanga Proprie-tor of M/S Gaurav Bricks Udyog, situated at Mauja and P.O.-Korthu, P.S. and Block- Ghanshyampur, District-Darbhanga.
1. The State of Bihar, through the Chief Secretary, Govt. of Bihar, Patna.
2. The Principal Secretary, Department of Forest and Environment, Govt. of
3. The Principal Secretary, Department of Industry, Govt. of Bihar, Patna.
4. The Principal Secretary, Department of Mines & Geology, Govt. of Bihar,
5. The Bihar State Pollution Control Board, Patna through its Member Secretary, Paryavaran Bhawan, Patliputra Industrial Area, Patna.
6. The Chairman, The Bihar State Pollution Control Board, Paryavaran
7. The Member Secretary, The Bihar State Pollution Control Board,
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8. The Regional Officer, Regional Office of the Bihar State Pollution Control Board, Muzaffarpur, Sarai Syed Ali Road, Technical Chowk, Muzaffarpur.
9. The State Environment Impact Assessment Authority, Bihar, Patna through its Member Secretary, Beltron Bhawan, Shastri Nagar, Patna.
10. The Chairman, The State Environment Impact Assessment Authority, Bihar, Patna through its Member Secretary, Beltron Bhawan, Shastri Nagar, Patna.
11. The Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Darbhanga.
12. The District Mining Officer, Darbhanga.
Civil Writ Jurisdiction Case No. 16543 of 2018 Mithilesh Kumar Sharma, Son of Late Dinesh Chandra Mishra, Resident of Village and P.O.- Asi, Via and P.S. and Block- Biraul, District- Darbhanga Proprietor of M/s Kumar Bricks Udyog Mauza- Kasrour, P.O.- Balthari, P.S.- Ghanshyampur, District- Darbhanga.
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. Patliputra Industrial Area, Patna. null null
8. The Regional Officer, Regional Office, Muzaffarpur, Industrial Estate, Bela, Muzaffarpur.
10. The Chairman, The State Environment Impact Assessment Authority, Bihar,
11. The Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Civil Writ Jurisdiction Case No. 16774 of 2018
5/13 Krishna Kumar Jha, Son of Pitambar Jha, Resident of Village and P.O.-Neuri, Ward no.5, P.S.-Biraul, District- Darbhanga Proprietor of M/S S.S.K. Int Udyog, situated at and P.O.-Neuri, P.S. and Block. Biraul, District1. The State of Bihar, through the Chief Secretary, Govt. of BIhar, Patna. BIhar, Patna.
Patliputra Industrial Area, Patna.
8. The Regional Officer, Regional Office, Muzaffarpur, Sarai, Syed Ali Road, Technical Chowk, Muzaffarpur.
10. The Chairman, the State Environment Impact Assessment Authority, BIhar,
11. The Collector, Darbhanga District at Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Darbhanga. Civil Writ Jurisdiction Case No. 16537 of 2018 Nathuni Jha, Son of Batuki Jha, Resident of Village and P.O.- Mahinam, District- Darbhanga, Proprietor of M/s India Bricks Industries, situated at Mauja and P.O.- Neuri, District- Darbhanga.
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. Patliputra Industrial Area, Patna.
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8. The Regional Officer, Regional Office, Muzaffarpur, Sarai Syed Ali Road, Technical Chowk, Muzaffarpur.
10. The Chairman, The State Environment Impact Assessment Authority, Bihar, ,
11. The Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Civil Writ Jurisdiction Case No. 16350 of 2018 Anil Kumar Jha, Son of Tej Narayan Jha, Resident of Village and P.O.- Kasraur, P.S.- Ghanshyampur, District- Darbhanga Partner of M/s Maa Jwala Int Udyog, situated at Mauja- Bais Lagma, P.O.- Balthari, P.S.- Ghanshyampur, District- Darbhanga.
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. Patliputra Indutrial Area, Patna.
8. The Regional Officer, Regional Office, Muzaffarpur, Sarai Syed Ali Road, Technical Chowk, Muzaffarpur.
10. The Chairman, The State Environment Impact Assessment Authority, Bihar,
11. The Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Civil Writ Jurisdiction Case No. 16359 of 2018 Jitendra Kumar Mishra, Son of Babu Narayan Mishra, Resident of Village and P.O- Mahinam, District- Darbhanga, Proprietor of M/s J.K. Bricks Industries, situated at Mauja-Panchepatti, P.S.- Benipur, District- Darbhanga.
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1. The State of Bihar, through the Chief Secretary, Govt. of Bihar, Patna. Patliputra Industrial Area, Patna.
8. The Regional Officer, Regional Office, Muzaffarpur, Sarai Syed Ali Road, Technical Chowk, Muzaffarpur.
9. The State Environment Impact Assessment Authority, Bihar Patna through its
10. The Chairman, The State Environment Impact Assessment Authority, Bihar,
11. The Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Civil Writ Jurisdiction Case No. 16773 of 2018 Ram Mohan Jha, Son of Rashbihari Jha, Resident of Village and P.O.-Kasraur, District-Darbhanga Proprietor of M/s Kisan Int Udyog, Situated at MaujaKorthu, P.S.-Ghanshyampur, District-Darbhanga.
1. The State of Bihar, through the Chief Secretary, Govt. of Bihar, Patna.
3. The Principal Secretary, Department of Industry, Govt. of BIhar, Patna. Government of Bihar, Patna.
6. The Chairman, The Bihar State Pollution Control Board, Paryavaran BHawan, PatliPutra Industrial Area, Patna.
7. The Member Secretary, the BIhar State Pollution Control Board, Paryavaran
8. The Regional Officer, Regional Office, Muzaffarpur, Sarai, Syed Ali Road, Technical Chowk, Muzaffarpur.
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10. The Chairman, the State Environment Impact Assessment Authority, BIhar,
11. The Collector, Darbhanga District at Collector, Darbhanga District at Collectoriate Compound Laheria Sarai, Darbhanga. Civil Writ Jurisdiction Case No. 18670 of 2018 Bimal Chandra Khan, Son of Ram Swarup Khan, resident of Village- Aso, P.S.- Kusheshwar Asthan, Aso District- Darbhanga Proprietor of M/S T.K & Co, situated at Village- Kachhua, P.S.- Kusheshwar Asthan, Aso, District1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.
2. The Principal Secretary Department of Forest and Environment, Govt. of
3. The Bihar State Pollution Control Board, Patna through its Member Secretary, Paryavaran Bhawan, Patliputra Industrial Area Patna.
4. The Chairman, The Bihar State Pollution Control Board, Paryavaran Bhawan, Patliputra Industrial Area Patna.
5. The Member Secretary, The Bihar State Pollution Control Board, Paryavaran Bhawan, Patliputra Industrial Area Patna.
6. The Regional Officer, Regional Office of The Bihar State Pollution Control Board, Muzaffarpur, Industrial Estate, Bela, Muzaffarpur. Appearance :
(In Civil Writ Jurisdiction Case No. 15962 of 2018) For the Petitioner/s :
Mr.
For the Respondent/s :
Ms. Shalini Rai, Advocate (In Civil Writ Jurisdiction Case No. 15991 of 2018) For the Petitioner/s :
Mr.
For the Respondent/s :
Mr.
(In Civil Writ Jurisdiction Case No. 16107 of 2018) For the Petitioner/s :
Mr.
For the Respondent/s :
Mr.
(In Civil Writ Jurisdiction Case No. 16638 of 2018) For the Petitioner/s :
Mr. Abhay Kumar Thakur, Advocate For the State :
Mr. Shakib Ajaz, Advocate For the Board : Mr. Shivendra Kishore, Sr. Advocate For the Mines Department: Mr. Naresh Dikshit, Special P. P. (In Civil Writ Jurisdiction Case No. 16539 of 2018) For the Petitioner/s :
Mr.
For the Respondent/s :
Mr.
(In Civil Writ Jurisdiction Case No. 16543 of 2018) For the Petitioner/s :
Mr.
9/13 For the Respondent/s :
Mr.
(In Civil Writ Jurisdiction Case No. 16774 of 2018) For the Petitioner/s :
Mr. Abhay Kr. Thakur, Advocate For the State :
Mr. Anant Prasad Singh, SC-15 (In Civil Writ Jurisdiction Case No. 16537 of 2018) For the Petitioner/s :
Mr. Abhay Kumar Thakur, Advocate For the State :
Mr. Shakib Ajaz, Advocate For the Board : Mr. Shivendra Kishore, Sr. Advocate For the Mines Department: Mr. Naresh Dikshit, Special P. P. (In Civil Writ Jurisdiction Case No. 16350 of 2018) For the Petitioner/s :
Mr.
For the Respondent/s :
Mr.
(In Civil Writ Jurisdiction Case No. 16359 of 2018) For the Petitioner/s :
Mr. Abhay Kr. Thakur, Advocate For the State :
Mr. Anant Prasad Singh, SC-15 (In Civil Writ Jurisdiction Case No. 16773 of 2018) For the Petitioner/s :
Mr.
For the Respondent/s :
Mr.
(In Civil Writ Jurisdiction Case No. 18670 of 2018) For the Petitioner/s :
Mr. Abhay Kumar Thakur, Advocate For the State :
Mr. Shakib Ajaz, Advocate For the Board : Mr. Shivendra Kishore, Sr. Advocate For the Mines Department: Mr. Naresh Dikshit, Special P. P. CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 04-12-2018 Heard learned counsel for the petitioners; Special P.P., Department of Mines, Government of Bihar and Bihar State Pollution Control Board (hereinafter referred to as the 'Board').
2. The challenge in the writ petitions is to the decision of the Board by which they have taken a decision that all existing brick kiln units have to shift to Cleaner Technology by 31.08.2018 and without that, their license shall not be renewed, and with regard to new license also the same decision applies. However, the consideration in the present case is restricted to the decision of the Board only with regard to the pre-existing brick kiln units.
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3. Learned counsel for the petitioners submitted that the Ministry of Environment, Forest and Climate Change, Government of India, has granted a moratorium of two years to change to Cleaner Technology, but the Board has given time only till 31.08.2018, which is impractical and also arbitrary. Learned counsel submitted that the petitioners do not oppose the direction to convert to Cleaner Technology but at the same time, the practical aspect cannot be lost sight of, as, for changing the entire technology to Cleaner Technology from pre-existing coal based technology cannot be done within a span of a few months. It was submitted that the same having financial implications, the authorities are required to take a pragmatic view as the petitioners also are depending for livelihood on such units.
4. Learned counsel for the respondents submitted that since over a year, the exercise was undertaken and on 11.10.2017, there was a notification directing for taking affidavits from the operators that by 31.08.2018, they would change over to Cleaner Technology. Learned counsel submitted that the petitioners have also given such undertaking by way of an affidavit.
5. The attention of the Court was further drawn to the notification dated 15.10.2018 of the Board which indicates that such units which had given affidavit that they would shift to
11/13 Cleaner Technology by 31.08.2018, they would not be given any further Consent to Operate (C.T.O.) and Consent to Establishment (C.T.E.). However, a further clause indicates that such units which had not given the affidavit that they shall be converting to Cleaner Technology by 31.08.2018, in those cases, the time for doing so was extended till 31.08.2019. It was, thus, submitted that in the present case, all the petitioners have been given an affidavit/undertaking to shift to Cleaner Technology latest by 31.08.2018. They are bound to do so as per their own commitment and, thus, the deicsion not go give them C.T.O. beyond 31.08.2018, without use of Cleaner Technology is justified.
6. Having considered the facts and circumstances of the case, the Court, before coming on the merits, would indicate that in principle, there cannot be any exception to the decision of the Board and the authorities for ensuring that to protect the environment such measure was required as brick klin units are a cause of major concern towards all the atmospheric pollution. Thus, the Court finds the decision of the Board with regard to the requirement to shifting to Cleaner Technology to be correct, fair and in fact both required and justified.
7. However, coming to the main issue involved in the present writ applications with regard to cut off date, the Court
12/13 finds that in view of the decision taken by the Board itself, as contained in the notification no. 33 dated 15.10.2018, copy of which has been brought in the counter affidavits filed on behalf of the respondents, creation of two groups among the pre-existing units is arbitrary and unsustainable. The said distinction relates to not issuing of a C.T.O to such pre-existing units which have given an undertaking/affidavit that by 31.08.2018 they would be shifting to Cleaner Technology, whereas, with regard to pre-existing units, which had not given such undertaking/affidavit, the cut off date is 31.08.2019.
The Court finds that the units which had fallen in line and which had given such undertaking/affidavit have in fact been made into a separate class, and have been visited with penal consequences as compared to the group which had not given any undertaking/affidavit, in whose case, they have been given a premium of further one year to convert to Cleaner Technology. This, in the considered opinion of the Court is not sustainable, being both disciminatory and without any sound rationale. Had the Board not taken a decision to give the benefit beyond 31.8.2019, in case of all pre-existing units, the Court would not have had any occasion to interfere.
13/13 31.08.2018, by giving them further one year time till 31.08.2019, has to be interfered with as there has to be one single category/ group for all pre-existing units. As the Board itself has taken a decision to grant time till 31.08.2019, which the Court also feels is reasonable, the direction not to issue C.T.O. to pre-existing units, which have given undertaking/affidavit that they shall shift to Cleaner Technology by 31.08.2018, stands quashed. All preexisting units, uniformally without any distinction, shall be required now to change to Cleaner Technology latest by 31.08.2019. The Court makes it clear that such time is more than sufficient and is basically in public interest and for safeguarding further pollution to the atmosphere. The Court also records that the petitioners have specifically undertaken that they would shift to Cleaner Technology latest by 31.08.2019.
8. The writ petitions stand allowed in the aforementioned terms.
(Ahsanuddin Amanullah, J) P. Kumar AFR/NAFR AFR U