Applicant, a brick industry, represented through its proprietor has approached this Tribunal under Section 19 of the National Green Tribunal Act, 2010 inter-alia praying to review/modify a portion of the judgment dated 07th September, 2012 delivered in Application No. 38 of 2011 (Rohit Chaudhary Vs. Union of India andOrs.).
2. Shri Rohit Choudhary, the Applicant of the original Application is a resident of village Bokakhat and being concerned about the ecology of the area and future of Indian rhinoceros, elephants and species of flora and fauna available in Kaziranga National Park, approached this Tribunal in Application No. 30 of 2011 praying for issuance of directions to the Authorities to regulate quarrying and mining activities which were illegally existing in and around Kaziranga National Park. According to the Applicant inspite of the Notification dated 05th July, 1996 issued by the Ministry of Environment and Forest declaring a âNo Development Zoneâ (NDZ), rampant industrial growth,that too polluting units have been permitted to be setup even inside the No Development Zone, in flagrant violation of the prohibition, as well as mandatory provision of law.
3. In course of hearing this Tribunal called upon the Ministry of Environment and Forest to conduct an on the spot inspection and submit a report specifying the number of industrial units functioning in the No Development Zone and its vicinity. In consonance with the said direction, the Central Pollution Control Board (CPCB) along with State Pollution Control Board of Assam conducted survey and filed an Affidavit disclosing that there are more or less 64 Units located within the No Development Zone. After going through the report and hearing Learned Counsel for the parties and relying upon the ratio decided by number of decisions of the Supreme Court, the original application was disposed of directing the Authorities to take positive steps to ensure that no polluting industry should be permitted to operate within the No Development Zone.We further, directed the MoEF and the State Government to prepare a comprehensive action plan and mandatory mechanism for implementation of the conditions stipulated in the 1996 Notification specifying the No Development Zone and for inspection, verification and monitoring of the prohibition imposed as well as the provisions of Rule 5 of the Environment (Protection) Act, 1986 (Para 34 of the judgment).
4. Being aggrieved by a portion of the said direction, the Applicant has filed this review application, mainly on the ground that the Flour Mill of the Applicant having been established way back in the year 1989 to 1990, that is, much prior to the issuance of the Notification dated 05th July, 1996 declaring No Development Zone, in consonance with the decision of the Assam Government, may not be disturbed and the direction issued not to permit operation of the Flour Mill in para 33 (d) of the judgment be suitably modified. Even otherwise it is submitted that the 1996 Notification has no retrospective application and should not be made applicable to the industrial units, like that of the Applicant, which are in existence prior to the issuance of the Notification.
5. Notices were issued to the contesting Respondents and opportunity was granted to file replies, if any. Unfortunately, no reply was filed on behalf of the MoEF or any of the contesting Respondents, though, time was granted more than once.
6. A feeble attempt was made by Mr. Ritwick Dutta with regard to the maintainability of this review application mainly on the ground that the Applicant was not a party to the original application. But according to us any person who is not a party to the main proceedings, if considers himself aggrieved by the observations made or direction issued in the judgment, can apply for review. The said person however has to substantiate that he is directly and substantially affected by the judgment. In view of the aforesaid position, we have no hesitation to entertain this review as according to us the review Applicant has an arguable case.
7. In course of hearing Mr. Ratan Kumar Singh, Learned Counsel appearing for Applicant took pains to invite our attention to the Notification as well as several other documents annexed to the Applicant and submitted that the Applicants unit was established much prior to the issuance of the Notification carving out the No Development Zone and it should not be disturbed, more so because the 1996 Notification has no retrospective application/effect.Number of decisions were cited in support of the point canvassed, but then there being no quarrel with regard to the legal proposition in respect of retrospective application of a notification in the absence of any specific provision in the notification itself, we refrain from referring to the same. Further according to Mr. Singh the applicant unit is a Green Category.
8. There is no dispute that by Notification dated 05th July, 1996, the Ministry of Environment and Forest created a No Development Zone around Kanziranga National Park. Relevant portion of the said Notification reads as follows:
âNow, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with clause (d) of sub-clause (3) read with sub-rule (4) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby directs that on and from the date of publication of this notification the expansion of industrial area, townships, infrastructure facilities and such other activities which could lead to pollution and congestion shall not be allowed within âNo Development Zoneâ specified in the Appendix to this Notification, except with prior approval of the Central Government emphasis supplied.â
9. The materials produced before this Tribunal in course of hearing of the main application clearly revealed that due to in-action of the State Government of Assam as well as absence of monitoring by the Central Government number of polluting industries/units were established in and around No Development Zone of Kaziranga National Park thereby posing immense threat to the bio-diversity, eco-sensitivity, ecology as well as environment. Considering all the aspects, this Tribunal in order to protect the environment in and around Kaziranga National Park which has importance through out the world issued certain directions to remove the units which were creating pollution pertaining to air, water, noise and are situated in the vicinity more particularly within No Development Zone.
10. To determine which of the industries were causing pollution to the environment, this Tribunal directed the Central Pollution Control Board (CPCB) to conduct a survey and submit a detailed report. In consonance with the said direction, the CPCB along with other authorities have visited the locations and submitted a detailed report. In para 3.1.5 of the report existence of the Flour Mill hasbeen taken into consideration. Perusal of the entire report gives an impression that the Applicants unit cannot be nomenclature as a non-polluting industry. That apartperusal of 1996 notification clearly reveals that the Central Government has specifically directed that on and from the date of publication of the Notification, the expansion of the industrial area township infrastructure facilities and other activities which could lead to pollution and congestion shall not be allowed within the No Development Zone. The words ânot be allowedâ brings within its fold the units which were existing and also includes the units which are existing to carry on such activities which could lead to pollution and congestion. That apart we are not ready to hold that only because a polluting unit was established prior to the notification, it should be permitted to continue with the activities thereby spreading pollution even after the prohibition orders were issued.
11. There is no second thought that the Brick Klins are one among the most polluting industry. Some of them do not have stack emission monitoring provision. Most of them also normally do not have fixed chimneys, consequently the emission cause hazards and adverse impacts on the environment, biodiversity and flora and fauna.
12. According to Learned Counsel, the Brick Klin in question is situated beyond the No Development Zone and that the same has been set up after complying all the necessities and formalities.
The said submissions are stoutly denied by the learned counsel for contesting respondent as well as Ms. Neelam Rathore, learned counsel appearing for MoEF. To appreciate the arguments, we carefully scrutinized the documents annexed with the review application. On such scrutiny, it appears that the consent order for setting up the Brick Klin is not available. Therefore, it is not possible for us to appreciate the clauses / conditions imposed. That apart there is controversy with regard to exact location of the Brick Klin i.e. as to whether the same is situated within the NDZ or outside.
13. In view of the discussions made above, we are not inclined to review our judgment or directions issued at the instance of the Applicant. The Applicant cannot be permitted to function within the No Development Zone of Kaziranga National Park in the absence of the consent. Liberty is however granted to the Applicant to approach the concerned Authorities for granting consent/permission. If such an attempt is made it should be open to the Authorities to consider the Application strictlyin consonance with the Rules. On verification if the Authorities are satisfied that the Applicants unit is situated beyond the NDZ and is a non-polluting one and does not lead to congestion, they may consider and pass necessary orders stipulating such conditions as would be deemed just and proper for conservation and protection of Kaziranga National Park, of course subject to the conditions imposed in the No Development Zone Notification.
14. With the aforesaid observations the Review Application is disposed of by circulation.