Sohanveer vs Union of India & Ors

Prayer in this application is for enforcement of Notification dated 14.09.1999 issued by the MoEF&CC as follows:-

"(1) No person shall within a radius of fifty kilometers from coal or lignite based thermal power plants, manufacture clay bricks or tiles or blocks for use in construction activities without mixing atleast 25 per cent of ashy (fly ash, bottom ash or pond ash) with soil on weight to weight basis."

The above Notification was amended on 03.11.2009, as follows:-

"(1A) Every construction agency engaged .in the construction of buildings within a radius of hundred kilometers from a coal or lignite based thermal power plant shall use only fly ash based products for construction, such as: cement or concrete, fly ash bricks or blocks or tiles or clay fly ash bricks, blocks or tiles or cement fly ash bricks or bricks or blocks or similar products or a combination or aggregate of them, in every construction project."

It is stated that CPCB erroneously interpreted the above vide letter dated 13.02.2018, as follows:-

"3. Considering the Amended Notification, 2009 on fly ash utilization and the decision of the Hon'ble High Court of Allahabad dated 07.10.2010 that the Clay Brick Manufacturers have been excluded from the purview of the Notification, 1999, therefore, use of 25% fly ash in Brick manufacturing should be excluded."

The Allahabad High Court vide order dated 07.10.2010 disposed of an application filed by Brick Kilns as infructuous by assuming that they were now exempted from compliance. The order is reproduced below:-

"On behalf of the Union of India, Dr. Ashok Nigam, learned Additional Solicitor General of India, places on record a copy of the application filed on behalf of the Union of India before the Hon'ble Supreme Court in Transfer Petition (Civil) No. 399 of 2006. Paragraph 5 of the said application reads as under:-

"5. Later, the Ministry of Environment & Forests issued an Amendment Notification No. S.O. 2804 (E) dated 03.11.2009 to amend the existing Fly ash Notification of 1999. Now, the Clay Brick Manufacturers have been excluded from the purview of the said Notification. A true and correct copy of the Notification dated 03.11.2009 is annexed and marked as ANNEXURE P-1."

Thus, it is apparent that pursuant to the notification issued by the Ministry of Environment & Forests dated 03.11.2009, the existing Fly Ash notification of 1999 has been amended, and that the Clay Brick Manufacturers have been excluded from the purview of the said notification.

The Union of India, by notification dated 14th September, 1999, by virtue of para 1 (1) had prohibited manufacture of clay bricks, tiles etc. within the radius of 50 kilometres from coal or lignite based thermal power plants without use of at least 25 percent fly ash for making bricks for use in construction activities. By subsequent notification dated 27th August 2003, various other amendments were made in the notification dated 14th September, 1999, and sub-paragraphs (1A) and (1B) had been inserted after sub-para (1) of paragraph 1 of the said notification. The Union of India has, now, by notification dated 3rd November, 2009 published in the Gazette of India : Extraordinary [Part II-Ssc. 3(II)] deleted sub-para (1) of para 1 and substituted the same by following paragraph:-

"(i) use of fly ash based products in construction activities."

In other words, the earlier sub-para (1) has been dropped. What remains is the use of fly ash based products only in construction activities. There is no limitation imposed insofar as the manufacturers of clay bricks are concerned.

We are also informed by the learned Additional Solicitor General of India that though applications for transfer of such cases have been filed before the Supreme Court, there is no order of stay granted in the cases pending before the High Court. On that basis, we have proposed to dispose of the matter in terms of the stand of the Union of India, as the petition has become infructuous.

Once that be the case, in our opinion, nothing further survives in this petition and the same is, accordingly, disposed of. No order is passed as to costs."

We have heard learned counsel for the applicant. It is submitted that the CPCB as well as the Allahabad High Court failed to appreciate the tenor of the Notifications and it was erroneously assumed that the Brick Kilns were not required to use fly ash in construction of bricks.

We are of the view that it will not be appropriate to pass any order in conflict with the order of the Allahabad High Court. The remedy against the order of the High Court is not before this Tribunal.

Accordingly, the application is disposed of without prejudice to any appropriate remedy of the applicant, in accordance with law.