Rule. Heard forthwith.
2. The writ petitioner, by this writ petition has prayed for the following relief:-
"to issue an order, direction or writ in the nature of mandamus restraining the respondents from interfering in the manufacture of bricks by the petitioner in the traditional form by the method of burnt clay."
3. Amongst the respondents, we have heard the U.P. Pollution Control Board on the issue of restrictions on the brick kilns owners, who were directed to use 25% fly ash in the manufacture of brick kilns. That issue has been now decided in Civil Misc. Writ Petition No.61434 of 2010 (M/s. Zaffar Ent Udyog & Ors. Vs. Union of India & Ors.) on 07.10.2010.
4. An issue still remains, as to whether it is open to this Court, once it has come on record that there is no prohibition in the manufacture of bricks without using fly ash, to grant relief of mandamus as prayed for by the writ petitioner.
5. We may gainfully refer to some provisions of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'the Act, 1981'). The Act, 1981 defines 'air pollutant' under Section 2 (a), which reads as under:-
"2. (a) "air pollutant" means any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment."
Similarly, it defines 'chimney' under Section 2 (h) of the Act, 1981 and 'emission' under Section 2 (j) of the Act, 1981. They read as under:-
"(h) "chimney" includes any structure with an opening or outlet from or through which any air pollutant may be emitted;
(j) "emission" means any solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet".
6. Power has been conferred on the State Government, after consultation with the State Board, by notification in the Official Gazette, for declaring any area or areas within the State as air pollution control area or areas for the purposes of the Act, 1981. Under section 21 of the Act, 1981, no person shall, without previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. Under sub-section 5 of Section 21 of the Act, 1981, conditions can be imposed, which includes erection or re-erection of chimney' wherever necessary, and such other conditions as the State Board may specify.
7. It is, therefore, clear that in respect of any industrial plant, which is to be set up in an air pollution control area, a manufacturer will have to obtain permission from the State Board. Similar issue had come up for consideration in an unreported judgment in Writ Petition No.1726 (MB) of 1998 (Rais Ahmad Vs. State of U.P. & Others) along with other similar writ petitions, decided on 04.09.1998. Those writ petitions had been filed to direct the respondents, which included the U.P. Pollution Control Board and others, to submit the list of the brick kiln owners along with the report as to whether the same are being run without no objection certificate or without consent issued under Section 21 of the Act, 1981. After considering the various contentions, the learned Division Bench was pleased to observe as under:-
"All the licensing authorities are also directed to consider the grant of licence of brick kiln only after issue of no objection certificate and consent by the Pollution Control Board. The Pollution Control Board is directed to check the brick kilns in every district at the time of start and to ensure that no objection certificate and consent of the Pollution Control Board has been obtained by the brick kiln owner, and to inspect every brick kiln to ascertain whether the brick kilns are causing any pollution. It is expected from the Pollution Control Board to take suitable action against the erring brick kiln owners, if any."
8. The writ petitioner, therefore, proceeded on the footing that insofar as his brick kiln is concerned, condition for erection or re-erection of 'chimney' as provided under the provisions of the Act, 1981, would be attracted. Once the provisions of the Act are attracted, then it will not be possible to grant any mandamus in favour of the writ petitioner in the absence of the requisite permission being obtained under the Act, 1981. It is trite law that to issue a mandamus, the writ petitioner must have subsisting right. In the instant case, the writ petitioner has not made out any case that he has any subsisting right. The main challenge in the writ petition is to the notification, whereby the brick kiln manufacturers having their industrial plants operating within 100 kms., had to use 25% fly ash in the manufacture of brick kiln.
9. It is the case of the writ petitioner himself that a bare reading of the Act and the Rules indicates that the Central Government is entitled to take measures to protect and improve the environment and for the aforesaid purpose, it may impose restrictions on areas in which any industries, operation or process or class of industries, shall not be carried out or shall be carried out subject to certain safeguards. The writ petitioner has pleaded that the fly ash is waste of coal of lignite based thermal power plant and by a number of polluters, it is those plants, which can be saddled with the responsibility of the disposal and in these circumstances, no notification could have been issued by the Central Government making it incumbent upon the brick kiln owners to use fly ash, which was issued under the provisions of the Environment (Protection) Act, 1986.
10. Man has since realised the effect of environmental damage caused by pollutants on the atmosphere and its effect on the ozone layer, which threatens the very survival of life on our planet earth. Nations of the World, realising the adverse effect, have deliberated on the issue at various International Forums, which includes Stockholm, Rio-de-Janeiro, Kyoto, Johnsburg and others. These gathering of Nations have taken various steps to protect the survival of the human race and also the principle of sustainable development. Adverse effect of environmental pollution are now felt, as evidenced, like global warming, recurring natural calamaties and on health of people. Our Parliament realising the importance of protecting the environmental ecology, by 42nd Constitutional Amendment introduced Article 48-A, to ensure that the State takes steps to protect and imporve the environment and to safeguard the forest and wildlife. Even in the absence of legislation, reading the international covenants and directive principle in Article 21 of the Constitution of India, the Supreme Court has accepted the principle of sustainable development as a part of the right to life of the citizens of this country. A reference may gainfully be made to the judgments of the Supreme Court in A.P. Pollution Control Board Vs. Prof. M.V. Nayudu, [AIR 1999 SC 812] and Vellore Citizen Welfare Forum Vs. Union of India & Ors. [(2001) 8 SCC 329]. The Parliament has also enacted various enactments including the Environment (Protection) Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981, the Water Pollution Act, the Convervation of Forest Act and other legislations to protect the environment and ecology. We have now become conscious of the need to protect our environment and ecology, realising that emissions and releasing of pollutants in the air, adversely affect the environment and ecology. In these circumstances, the Court, as protector of the Constitution and the Rule of law, has to be ever vigilant in order to ensure the enforcement of the Act, so that the very survival of the human race and other living creatures including flora and fauna is not put in danger.
11. Considering the above, the writ petitioner cannot claim that he has a right to operate the brick kiln without having necessary permissions under the relevant Acts under which, he has to obtain necessary permissions before an industry can be set up or run. The writ petitioner having not made out any case of any subsisting right or infringment of any right and as the challenge to the notification no longer survives in view of the amendment brought to the notification, the relief as sought for against respondents 2, 3, 4 and 5, cannot be granted. Hence, the writ petition is liable to be dismissed.
12. In view of the above, rule is discharged. There shall be no order as to costs.
Dt/-07.10.2010 RKK/-
(F.I. Rebello, CJ) (A.P. Sahi, J) Hon'ble F.I. Rebello, CJ.
Hon'ble A.P. Sahi, J.
Rule discharged.
For orders, see order of date passed on separate sheets.
Dt/-07.10.2010 RKK/-(61702/10) (F.I. Rebello, CJ) (A.P. Sahi, J)