Point of Law: Section 3 and 4 of Act of 2015 as well as Rule 3 of Assam brick klin Establishment and Regulation Rules, 2013, a brick klin cannot be established over agricultural land.

JUDGMENT :

1. Heard Ms. B. Devi, learned counsel appearing for the writ petitioners in WP(C) 4917/2022and Mr. N. Islam, learned counsel for the writ petitioners in WP(C) 2791/2019. Mr. C.K.S. Baruah, learned Government Advocate, Assam, has appeared on behalf of the respondent nos. 4, 5, 7 & 8 in WP(C) 4917/2022 and Ms. N. Bordoloi, learned Standing Counsel, Revenue and DM Department, Assam, is present on behalf of the respondent nos. 2 and 4 in WP(C) 2791/2019. Mr. S. Baruah, learned Standing Counsel, Pollution Control Board, Assam, has appeared on behalf of the respondent nos. 3 & 6 in WP(C) 4917/2022 and respondent no. 3 in WP(C) 2791/2019. Mr. S. Ghosh, learned counsel is present on behalf of the private respondent in both the writ petitions.

2. The petitioners in both the writ petitions are basically aggrieved by the “consent to establish” as well as “consent to operate” issued by the Pollution Control Board (PCB), Assam permitting the private respondent to set up a brick klin over his private patta land situated in village Rajyeswerpur Part-I, PS-Lala, Borbond in the district of Hailakandi, inter-alia contending that the “brick klin” has been set up over agricultural land, without converting the land and also without obtaining the ‘NOC’ from the villagers.

3. Ms. B. Devi, learned counsel for the petitioners has argued that the land over which the “brick klin” has been set up is agricultural land. Therefore, under the relevant rules, no “brick klin” could have been established over such agricultural land. It is also the submission of the learned counsel for the petitioners that the district Administration is yet to re-classify the land as “Non Agricultural Land” and, therefore, in view of the provisions contained in sections 3 and 4 of the Assam Agricultural Land (Regulation of Re-classification and Transfer for Non-Agricultural Purpose) Act, 2015, no brick klin could have been established over the said plot of land.

4. Referring to the photographs brought on record by filing IA(C) 171/2023 arising out of WP(C) 4917/2022, the petitioners’ counsel has further argued that the land over which the ‘brick klin’ has been set up is flanked by agricultural land from all sides and, therefore, it is evident on the face of the record that the ‘brick klin’ is situated over the agricultural land. Contending that the “brick klin” being a heavily polluted industry, if the same is allowed to operate, it would cause serious health hazards to the petitioners and their family members besides the other residents of the village. The learned counsel for the petitioners has, therefore, prayed for an order from this Court to set aside the “consent to establish” and / or “consent to operate” the brick klin issued by the State PCB with a direction upon the district Administration to revisit the matter and take appropriate decision in respect thereof.

5. Mr. N. Islam, learned counsel for the writ petitioners in WP(C) 2791/2019 has adopted the submissions advanced by Ms. B. Devi and has also made a similar prayer for setting aside the “consent to establish” as well as “consent to operate” granted by the PCB.

6. The learned State counsel has taken the Court through the counter affidavit filed by the respondent no. 4 i.e. the Additional Deputy Commissioner, Hailakandi in WP(C) 2791/2019 to contend that the allegations made in the writ petitions have been found to be factually incorrect. Ms. N. Bordoloi, learned Standing Counsel, Revenue and DM Department, Assam, has also invited the attention of this Court to the “Non-Agricultural Land Certificate” dated 06/08/2018 issued by the Assistant Settlement Officer, Lala Circle, Hailakandi as well the ‘NOC’ issued by the Secretary of the P.K. Rajyeswerpur Gaon Panchayat, conveying their “No Objection” regarding setting up the ‘brick klin’ by the private respondent, to contend that necessary formalities, as prescribed by law, have been complied with before issuing the “consent to establish” as well as the “consent to