The issue, which has been raised in this petition filed in public interest, relates to the enforcement of the requirement of obtaining an environment clearance certificate from the State Environment Impact Assessment Authority1 in terms of the Environment Impact Assessment2 Notification 2006 of the Union Ministry of Environment and Forest3.
On 24 June 2013 an Office Memorandum4 has been issued by the MoEF. The OM was issued after the MoEF constituted an Expert Committee under the Chairpersonship of the Director, National Environmental Engineering Research Institute5. After the recommendations of the Committee were examined, the following directions have been issued:
"(a) The activities of borrowing/excavation of ''brick earth' and ''ordinary earth', upto an area less than 5 ha, may be categorized under ''B2' category subject to the following guidelines in terms of the provisions under ''7.1 Stage (1)-Screening' of EIA Notification, 2006:
(i) The activity associated with borrowing/excavation of ''brick earth' and ''ordinary earth' for the 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 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 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 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 area 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."
In these proceedings, the following reliefs have been sought:
(i) A direction to the State Pollution Control Board not to allow brick kilns to operate without first obtaining requisite clearances including an environment clearance;
(ii) A direction to the State Pollution Control Board not to grant consent or no objection to the operation of brick kilns in the absence of a prior environment clearance; and
(iii) A direction to the State Pollution Control Board to conduct a survey of all the brick kilns operating in the State and to ensure strict action against those found to be operating without obtaining an environment clearance.
At this stage, it would be appropriate to note that in an earlier writ petition6 which had been filed in public interest before this Court, a judgment was delivered by a Division Bench on 1 May 2014. The following following directions were issued by the Division Bench:
"i) We direct that the Board shall make a detailed survey of all the brick kilns operating in the districts of Meerut and Baghpat and ensure that any brick kiln found to be operating without the consent or permission of the Board and in breach of the 2012 Rules, is dealt with in accordance with law;
ii) We also find no reason or justification as to why the instructions/directions given above should not be applied across the State. We, therefore, direct that a survey should be carried out by the Board in respect of all the districts of the State. The survey shall be completed within a period of two months from the receipt of a certified copy of this order;
iii) Where the Board finds that the operation of any brick kiln is being carried out without the No Objection Certificate of the Board or in breach of the 2012 Rules, immediate steps shall be taken in accordance with law with due notice to the brick kiln owners. These enquiries shall be taken to their logical conclusion and shall be completed no later than within a period of three months thereafter;
iv) In order to maintain transparency in the working of the Board and its Regional Offices, details of the notices issued and the action taken should be periodically uploaded on the website of the State Pollution Control Board;
v) The Board shall also upload the names of all the brick kilns which have submitted applications for granting the No Objection Certificates as also the names of brick kilns which have been granted such certificates so as to facilitate a verification of whether any brick kiln in the State is being operated without the grant of the requisite permission or a No Objection Certificate of the Board. Likewise, the refusal to grant a No Objection Certificate should also be periodically uploaded on the website of the Board. The exercise of uploading the No Objection Certificates which have already been granted shall be completed within a period of two months;
vi) The due exercise of statutory powers by the Pollution Control Board also requires the co-operation of the District Administration and the law enforcement machinery. The District Administration and the law enforcement machinery of the districts shall, therefore, take all necessary steps to ensure due compliance with the lawful instructions and directives issued by the Board."
The petitioners have filed a supplementary affidavit in these proceedings in which they have placed on the record at Annexure-3, the order of the Supreme Court dated 19 August 2014 dismissing a Special Leave Petition7 arising out of the judgment of this Court dated 1 May 2014.
The petitioners have, in the course of these proceedings, relied upon the consents which have been issued by the State Pollution Control Board in certain cases and their grievance is that, while granting its consent or, as the case may be, no objection, the State Pollution Control Board has merely required compliance with the OM dated 24 June 2013 without making it a condition precedent to the commencement of operations. It is in this background, that the reliefs, as narrated above, have been sought in these proceedings.
On 3 November 2014, the Chief Law Officer of the State Pollution Control Board has issued a circular to all the Circle Officers of the Board adverting to the OM dated 24 June 2013 of MoEF. The circular states that while granting the consent for the operation of a brick kiln, it must be verified as to whether the project proponent has obtained the environment impact clearance. Hence, it has been stated that the OM dated 24 June 2013 must be complied with and consent for the operation of a brick kiln should be granted only after it is duly verified that the project proponent has obtained the environment impact clearance for excavation of soil since, without the excavation of soil the operation of a brick kiln would not be possible. Since the MoEF has issued an OM on 24 June 2013 clarifying the matter and particularly the ambit of the SEIAA Notification of 2006 in its application to the activities of excavation/borrowing of brick earth or ordinary earth in connection with the operation of brick kilns, as noted earlier, it is necessary for the State Pollution Control Board to strictly abide and enforce the directions which have been issued under the OM dated 24 June 2013. Since a circular has been issued by the State Pollution Control Board to all its regional offices on 3 November 2013, no further directions are necessary, save and except to order and direct strict and scrupulous compliance by the District Administrations.
The petition is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 3.12.2014 AHA (Dr D Y Chandrachud, CJ) (P K S Baghel, J)