IMPORTANT POINT
Both 'consent to establish' and 'consent to operate' are mandatory for operating an industrial plant in pollution control areas, and the interpretation of statutory provisions must align with legislative intent to avoid absurd outcomes.

JUDGMENT :

HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Heard Mr. D. Das, learned senior counsel for the petitioners, Ms. M Barman, learned junior Government Advocate for the respondents No. 1, 4, 6 and 7 being the Chief Secretary to the Government of Assam, Deputy Commissioner, Darrang, Additional Deputy Commissioner (Revenue), Darrang and Circle Officer, Sipajhar, Mr. A Bhattacharyya, learned counsel for the respondent No. 2 being the authorities in the Revenue Department of the Government of Assam, Mr. S Barua, learned counsel for the respondent No. 3 being the Pollution Control Board, Assam and Mr. A Upadhyay, learned counsel for the respondent No. 8 Md. Lutfor Rahman.

2. The 104 petitioners herein are all residents of village Sanowatari and Khalihoi under mouza Sipajhar in the Darrang district and most of them are farmers who earn their livelihood by cultivating their respective agricultural land. The petitioners are aggrieved to the extent that a brick kiln operated by the respondent No. 8 Md. Lutfor Rahman was established in violation of the Assam Brick Kiln Establishment and Regulation Rules, 2013 (in short Rules of 2013) and also it is having an adverse impact on the environment of the neighbouring agricultural land where the petitioners are continuing with the agricultural activities. The petitioners have raised two legal issues to the extent that no consent to operate the brick kiln had been issued by the Pollution Control Board (PCB) in favour of the respondent No. 8 and further the brick kiln which was established over an agricultural land, could not have been reclassified and converted for the purpose of non-agricultural use and thereafter establish and operate a brick kiln in view of the provisions of Section 4(1) of the Assam Agricultural Land (Regulation of Reclassification and Transfer for non-Agricultural purpose) Act, 2015 (hereinafter referred as Re-classification Act of 2015).

3. Mr. A Upadhyay, learned counsel for the respondent No. 8 raises a counter contention that the respondent No. 8 established and operated the brick kiln after obtaining the ‘consent to establish’ from the PCB, Assam for setting up the manufacturing unit for which a certificate of consent to establish had been issued on 20.10.2020 and such certificate had been issued pursuant to the consent to establish given by the PCB, Assam as per their order dated 15.10.2020.

4. We have heard the learned counsel for the parties.

5. As regards the contention of the petitioners that although the respondent No. 8 have been issued the ‘consenttoestablish’ by the PCB, but no consent to operate had been issued, which is a subsequent requirement for making the brick kiln operational, Mr. D Das, learned senior counsel for the petitioners refers to clause 7 of the order dated 15.07.2020 providing for the consent to establish, which inter-alia provides that a consent to operate as per Act and Cess Returns as per Cess Act, 1977 would have to be obtained. Clause 7 of the order dated 15.10.2020 is extracted below:-

“To regularise the subsequent ‘Consent to Operate’ the legal provisions of ‘Consent to Operate’ as per Act and Cess Returns as per Cess Act, 1977 shall have to be timely adhered to.”

6. To appreciate the submission of the learned senior counsel, we tried to understand the meaning and purport of clause 7 of the order dated 15.10.2020, which refers to the Air (Prevention and Control of Pollution) Act, 1981 (in short Act of 1981). It has been pointed out that the relevant provisions related to clause 7 of the order dated 15.10.2020 is Section 21 of the Act of 1981. Section 21 of the Act of 1981 provides that subject to the provisions of the Section, no person shall without the previous consent of the State Board establish or operate any industrial plant in an air pollution control area. Section 21 of the Act of 1981 is extracted below:-

“21. Restrictions on use of certain industrial plants.—1[(1) Subject to the provisions of this section, no person shal