Page No.# 1/8 GAHC010229392024 2026:GAU-AS:11592 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5764/2024 LALCHAN ALI AHMED S/O LT MOJAI SHEKH R/O VILL. KARAIBIL PS CHHAYGAON DIST KAMRUP ASSAM VERSUS THE STATE OF ASSAM AND 5 ORS. REP BY THE SECRETARY TO THE GOVT OF ASSAM ENVIRONMENT AND FOREST DEPTT JANATA BHAWAN DISPUR GUWAHATI ASSAM PIN 781006 2:POLLUTION CONTROL BOARD ASSAM REP BY THE ITS MEMBER SECRETARY BAMUNIMAIDAM GUWAHATI ASSAM PIN 781021 3:THE CHAIRMAN POLLUTION CONTROL BOARD ASSAM BAMUNIMAIDAM GUWAHATI ASSAM PIN 781021 4:THE REGIONAL OFFICER REGIONAL OFFICER KAMRUP POLLUTION CONTROL BOARD ASSAM AMINGAON ASSAM PIN 781031 5:THE DISTRICT COMMISSIONER KAMRUP AMINGAON ASSAM 6:THE CIRCLE OFFICER CHAMARIA REVENUE CIRCLE KAMRUP ASSA Page No.# 2/8 B E F O R E HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocate for the petitioner(s): Mr. S Dey Advocate for the respondent(s): Mr. D Gogoi Standing Counsel, Forest Deptt. Mr. S Baruah, Standing Counsel, Pollution Control Board Mr. N Goswami Junior Govt. Advocate, Assam Date on which Judgment is reserved: NA Date of Pronouncement of Judgment : 13.08.2026 Whether the Pronouncement is of the : Yes Operative Part of the Judgment Whether the Full Judgment has been : No Pronounced JUDGMENT & ORDER(ORAL) Heard Mr. S Dey, the learned counsel appearing on behalf of the Petitioner. Also heard Mr. D. Gogoi, the learned Standing Counsel, Forest Department appearing on behalf of the Respondent No.1; Mr. S Baruah, the learned Standing Counsel, Pollution Control Board, who Page No.# 3/8 appears on behalf of the Respondent Nos.2. 3 and 4 and Mr. N. Goswami, the learned Government Advocate appearing on behalf of the Respondent Nos. 5 and 6. 2. The present writ petition has been filed challenging the order dated 03.05.2024 whereby the Respondent No.3 on behalf of the Respondent No.2 issued the Closure Notice under Section 5 of the Environment (Protection) Act, 1986 read with Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981 (for short ‘the Act of 1981’). 3. The brief facts of the present case as it emerged is that the Petitioner herein had filed an application before the Respondent No.2 seeking the Consent to Establish under Section 21 of the Act of 1981 and the Rules framed therein under. In the said application, the Petitioner categorically mentioned the type and category of the project, cost of the project as well as all details which are otherwise required. 4. Based upon the said application, the Petitioner was issued the Consent to Establish by the Respondent No.2 vide an order dated 23.02.2024 with a specific stipulation that the Consent to Establish shall be valid till the date of commissioning of the unit or five years Page No.# 4/8 whichever is earlier. On the basis of the said Consent to Establish, the Petitioner set up the brick kiln by spending huge amount of money. In that regard, photographs of the Petitioner’s brick kiln have also been enclosed as Annexure 13 (series) to the writ petition. 5. To the shock and surprise of the Petitioner, on 03.05.2024, the impugned order was passed by the Respondent No.3 stating inter alia that when the PCBA officials visited the Petitioner’s unit on 06.04.2024 and found that the Petitioner’s brick kiln was within 300 meters distance from an existing brick kiln in the name of style of M/s NBI Brick Industry and there were 5-6 numbers of houses within 200 meters from the chimney and Koliabari M.E. School which is located about 600 meters away from the Petitioner’s unit. 6. It is on the basis thereof, without granting the Petitioner any opportunity of hearing, the Consent to Establish which was issued to the Petitioner was cancelled. Being aggrieved, the Petitioner has approached this Court by filing the writ petition. 7. It may not be out of place to mention that the Petitioner before approaching this Court had also submitted representations to the Respondent No.3 as well as to the District Commissioner, Kamrup at Amingaon placing necessary details that the basis on which the Page No.# 5/8 impugned communication was issued on 03.05.2024 is not correct inasmuch as the school in question is located at a distance of around 2/3 Kms. from the constructed unit. It was also mentioned that the brick kiln industry which have been mentioned in the impugned order is located at a distance of around 300 meters and the said brick kiln industry is running without any valid permission/documents. The said representations were also not considered. 8. The record reveals that this Court vide an order dated 11.11.2024 issued notice. This Court has also taken note of the affidavit-in- opposition which has been filed by the Respondent Nos. 2, 3 and 4 whereby an Inspection Report dated 10.04.2024 has been enclosed. 9. It is the opinion of this Court that in terms with Act of 1981, there are two requisites. One is the Consent to Establish and the other is Consent to Operate. The Petitioner has been granted the Consent to Establish and it is only upon issuance of the Consent to Operate, the Petitioner could have run the said brick kiln. 10. It is the specific case of the Petitioner that in terms with the second proviso to Section 21(4) of the Act of 1981, a reasonable opportunity of hearing has to be given to the person concerned. In the instant case, admittedly there was no show cause notice issued to Page No.# 6/8 the Petitioner and abruptly on 03.05.2024, the Consent to Establish was withdrawn. 11. In the previous segments of the instant order, this Court has duly taken note of the difference between a Consent to Establish and consent to operate, inasmuch as, without a consent to operate the Petitioner could not have run the brick klin. Under such circumstances, the Respondent Authorities, more particularly, the Respondent No.3 not only violated the second proviso to Section 21(4) of the Act of 1981, but also acted in an arbitrary and unreasonable manner inasmuch as there was no such urgency to waive the basic necessity of the issuance of the show cause notice which is otherwise the mandate to the second proviso to Section 21(4) of the Act of 1981. 12. Taking into account the above, this Court, therefore, sets aside the impugned order dated 03.05.2024 whereby the Respondent No.3 on behalf of the Respondent No.2 issued the closure notice under Section 5 of the Act of 1986 read with Section 31(A) of the Act of 1981. 13. In view of the interference with the order dated 03.05.2024, the Consent to Establish so issued by the Respondent No.2 vide the order Page No.# 7/8 dated 23.02.2024 which was valid for a period of 5(five) years revives. Accordingly, the writ petition, therefore, stands disposed of with the following observations and directions: (i). The impugned order dated 03.05.2024 passed by the Respondent No.3 on behalf of the Respondent No.2 is set aside and quashed. (ii). The Consent to Establish issued by the Respondent No.2 vide the order dated 23.02.2024 revives. (iii). The period from 03.05.2024 till date shall be excluded while computing the period so mentioned in the Consent to Establish dated 23.02.2024. 14. Before parting with the records, this Court, however, finds it relevant to observe that the interference to the order dated 03.05.2024 is on the ground of non-compliance to the second proviso to Section 21(4) of the Act of 1981 as well as on the ground that it was done in haste, and in an arbitrary and unreasonable manner. 15. The setting aside of the order dated 03.05.2024 as well as the reviving of the Consent to Establish dated 23.02.2024 shall not preclude the Respondent authorities, more particularly, the Respondent Nos.2 and 3 to take appropriate action in accordance with Page No.# 8/8 the provisions of the Act of 1981 read with the Act of 1986. The observation so made in the instant judgment shall not affect such course of action, if permissible under the law. JUDGE Comparing Assistant