Noc Foundation vs The State Of Assam And 3 Ors
- Court
- Gauhati High Court
Page No.# 1/24
GAHC010088832023
2026:GAU-AS:16525-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : PIL/32/2023
NOC FOUNDATION
NEW OPPORTUNITY FOR CHILDREN,
AN NGO OF COMPREHENSIVE WELFARE WITH THE PRIMARY FOCUS ON
THE PROBLEMS OF THE POOR IN THEIR STRUGGLE TO OBTAIN A LIFE OF
JUSTICE AND DIGNITY. PROVIDE FREE EDUCATION, ENVIRONMENT
STABILIZATION, FOOD SECURITY AND EMPOWERMENT OF THE
COMMUNITY AND FOR THE DEVELOPMENT OF DISADVANTAGED
CHILDREN/ WOMEN,
HAVING NITI AYOG UNIQUE ID NO. DL/2017/0156468, REPRESENTED BY
ITS FOUNDER AND GENERAL SECRETARY,
JITENDRA KUMAR KUKHI,
HOUSE NO. 803, SUNLIGHT COLONY-II, ASHRAM,
NEW DELHI- 110014.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM,
ENVIRONMENT AND FOREST DEPARTMENT,
ASSAM SECRETARIAT, A- BLOCK,
3RD FLOOR, DISPUR, GUWAHATI- 781006.
2:THE POLLUTION CONTROL BOARD
ASSAM
BAMUNIMAIDAM
GUWAHATI- 781021
REPRESENTED BY ITS CHAIRMAN.
3:THE MEMBER SECRETARY
POLLUTION CONTROL BOARD
Page No.# 2/24
ASSAM
BAMUNIMAIDAM
GUWAHATI- 781021.
4:M/S M M CARBON PRODUCTS PVT LTD
REPRESENTED BY ITS DIRECTOR
SMT DIPIKA BORA
AGED ABOUT 64 YEARS
WIFE OF SRI HIRANYA BORA
RESIDENT OF TARUN NAGAR
BYE LANE NO. 4
P.O.- DISPUR
P.S.- BHANGAGARH
GUWAHATI- 781005
AND HAVING ITS REGISTERED OFFICES AT THE SAME AFORESTATED
ADDRESS
Advocate for the Petitioner : MR. K N CHOUDHURY, MS N MAHANTA,N GAUTAM
Advocate for the Respondent : GA, ASSAM, MR T CHAKRABORTY(R-4),MR K TALUKDAR (R-
4),MS S SHARMA (R-4),MR A ATREYA (R-4),SC, PCB
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE PRANJAL DAS
For the petitioner : Mr. K.N. Choudhury, Sr. Adv.
: Mr. R.J. Das.
For respondents : Mr. S. Baruah.
: Mr. D. Das, Sr. Adv.
: Mr. A. Atreya.
Date on which judgment is reserved : 17.07.2026
Date of pronouncement of judgment : 11.11.2026
Whether the pronouncement is of
the operative part of the judgment? : No
Page No.# 3/24
Whether the full judgment has been
Pronounced? : Yes
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J.)
Heard Mr. K.N. Choudhury, learned senior counsel, assisted by
Mr. R.J. Das, learned counsel for the petitioner. Also heard Mr. S. Baruah,
learned standing counsel for respondent no.2 and 3; Mr. D. Das, learned senior
counsel, assisted by Mr. T. Chakraborty and Mr. A. Atreya, learned counsel for
respondent no.4.
2) By filing this public interest litigation under Article 226 of the
Constitution of India, the petitioner, which is a non-governmental organisation,
has agitated its grievance by alleged environmental degradation and pollution
caused in Amingaon, under Kamrup District, by permitting setting up of ‘red’
category polluting industrial unit.
3) In brief, the submissions made by the learned senior counsel
for the petitioner is as follows:-
a. It was submitted that the respondent no. 2 and 3 had allowed the
respondent no. 4 to set up and establish a ‘red’ category polluting
industrial unit at Export Promotion Industrial Park, Amingaon (“EPIP,
Amingaon” for short) by extending the validity of a Provisional Consent
to Establish, which had expired 9 (nine) years ago.
b. It was submitted that the said action of the respondent nos. 2 and 3
is in violation of the Air (Prevention and Control of Pollution) Act, 1981
Page No.# 4/24
and the notification no. WB/GUW/T- 3521/17-18/22 dated 17.02.2018,
by which due to pollution level caused by the Calcinated Petroleum
Coke (hereinafter referred to as “CPC” for short) and Low Ash
Metallurgical Coke industries in the surrounding areas, it was decided
not to allow any further expansion of the existing as well as new CPC
unit and Low Ash Metallurgical Coke Industries within the State of
Assam. However, the existing units were permitting to run their
industries with all pollution control devices which are to meet the
standard as stipulated by the Central Pollution Control Board.
c. Accordingly, it has been submitted that the petitioner has assailed
the validity of the impugned letter no. WB/GUW/T-2276/12-13/57/954
dated 10.12.2012, by which Provisional Consent to Establish
(hereinafter referred to as “PCTE” for short) was granted to the
respondent no.4 for their expansion of calcination unit with production
capacity of 12,000 MT per annum at EPIP, Amingaon. It is the case of
the petitioner that the said PCTE was valid for one year and thus,
expired on 09.12.2013.
d. On 24.03.2021, the respondent no. 4 had submitted on-line
application for seeking fresh Consent to Establish (hereinafter referred
to as “CTE” for short) for establishing a CPC unit at EPIP, Amingaon.
However, the respondent nos. 2 and 3, based on the said application,
seeking a fresh CTE, instead, extended the validity of the PCTE, which
had expired 9 (nine) years ago.
e. The respondent no.3 had issued a notification no. WB/GUW/T-
3521/17-18/22 dated 17.02.2018, by which due to pollution level
caused by the CPC and Low Ash Metallurgical Coke industries in the
Page No.# 5/24
surrounding areas, it was decided not to allow any further expansion of
the existing as well as new CPC unit and Low Ash Metallurgical Coke
Industries within the State of Assam. However, the existing units were
permitting to run their industries with all pollution control devices
which are to meet the standard as stipulated by the Central Pollution
Control Board.
f. Accordingly, it has been submitted that due to the aforesaid
notification dated 17.02.2018, the respondent nos. 2 and 3 could not
have issued any new CTE, they had extended the PCTE of the
respondent no.4, which had expired 9 (nine) years ago as on
09.10.2013. It is the further case of the petitioner that notwithstanding
the ban on setting up any new CPC unit and expansion of existing CPC
units, the PCTE, which had expired on 09.10.2013, could not have
been lawfully extended any further.
g. Hence, it has been submitted that the action of the respondent nos.
2 and 3 is vitiated by arbitrariness and illegality and clearly manifest an
unholy nexus between the respondent no.2 and 3 regulator and the
respondent no.4.
4) The learned counsel for the respondent nos. 2 and 3 has
submitted as follows:-
a. At the outset, the locus standi of the petitioner to maintain the
present PIL has been questioned.
b. It was submitted that the respondent no.4 had established and set-up
a CPC manufacturing industry at Amingaon in Kamrup District.
c. On 25.10.2006, the Pollution Control Board, Assam (respondent no.2
Page No.# 6/24
and 3) had issued a PCTE/ No-objection Certificate in favour of the
respondent no.4 for setting up an Electrode Carbon Paste Unit at
Export Promotion Industrial Park, Amingaon (“EPIP, Amingaon” for
short). Subsequently, Consent to Operate was also issued by the
respondent nos. 2 and 3 for the said unit, which was extended from
time to time.
d. On 10.12.2012, the respondent nos. 2 and 3 had issued a Provisional
Consent to Establish a Calcination Unit with production capacity of
12,000 MT per annum for the CPC unit to be set up at EPIP, Amingaon.
e. The respondent no.3 had issued a notification no. WB/GUW/T-
3521/17-18/22 dated 17.02.2018, by which due to pollution level
caused by the CPC and Low Ash Metallurgical Coke industries in the
surrounding areas, it was decided not to allow any further expansion of
the existing as well as new CPC unit and Low Ash Metallurgical Coke
Industries within the State of Assam. However, the existing units were
permitting to run their industries with all pollution control devices
which are to meet the standard as stipulated by the Central Pollution
Control Board.
f. The Environment and Forest Department, Government of Assam,
had issued a Gazette notification dated 20.07.2018, thereby prohibiting
the use of Pet Coke in all the industrial units within the district of
Kamrup (M), in all forms as a fuel for any purpose.
g. It was submitted that on 12.03.2019, the respondent no.4 had made
first on-line application for CTE of a calcination unit as the PCTE had
lapsed. It has been submitted and explained that the respondent no.4
Page No.# 7/24
could not renew it or operationalize the plant due to industry down-
turn.
h. On 05.04.2019, the respondent no.2 had issued a notification in
exercise of power under Section 19(3) of the Air (Pollution and Control
of Pollution) Act, 1981 and Sections 3 and 4 of the Environment
(Protection) Act, 1886, thereby superseding the earlier notification
dated 17.02.2018. By the said notification, the usage of both domestic
and imported pet coke as fuel in the State of Assam was banned and
the import of pet coke was banned for industries for uses other than as
feedstock in their manufacturing process.
i. Thereafter, on 28.08.2019, the respondent no. 4 had made their
first on-line application for issue of CTE of the calcination unit, which
was accompanied by 2 (two) demand draft bearing no.767240 dated
26.08.2019 and 767244 dated 29.08.2019, for a total sum of
Rs.1,00,000/- (Rupees one lakh only). Accordingly, a unique application
identification number was issued to respondent no.4. It has been
projected that as per the mandate of Section 21(4) of the Air (Pollution
and Control of Pollution) Act, 1981, the said application was required
to be decided within 4 (four) months.
j. On 13.02.2020, the respondent no.2 and 3 had issued a notification
in exercise of power under Section 5 of the Environment (Protection)
Act, 1986, thereby cancelling the earlier notification dated 05.04.2019.
k. It has been submitted that the first application dated 28.08.2019,
made by respondent no. 4 could not be processed due to migration to
a different portal. Accordingly, the respondent no. 4 had submitted
Page No.# 8/24
their second application dated 24.03.2021, for CTE, which was
numbered as 474359, but fresh fee was not demanded and the
hereinbefore referred 2 (two) demand drafts were accepted against
the said second application. Accordingly, on 25.03.2021, the
respondent no. 4 requested the respondent no. 3 to process the
application. The respondent no.4 then submitted a representation
dated 09.09.2021 to the Chief Minister, Assam, highlighting that the
respondent nos. 2 and 3 had not considered their second application.
l. On 27.01.2022, the respondent no.2 had issued a letter to another
applicant, thereby rejecting their application for granting approval to
set up a new CPC unit on the ground that vide notification dated
17.02.2018, a complete ban on such units was imposed.
m. The respondent no.4 then approached this Court by filing a writ
petition which was registered as W.P.(C) No. 3726/2022, to agitate its
grievance as the respondent nos. 2 and 3 had not considered their
application for CTE. This Court, while issuing notice vide order dated
06.06.2022, observed that the pendency of the writ petition would not
be a bar to the respondent authorities to process the application.
th
n. Thereafter, on 13.12.2022, the 6 Core Technical Committee meeting
of the respondent no.2 was convened to consider the case of the
respondent no. 4 in view of the order dated 06.06.2022, passed in W.P.
(C) No. 3726/2022. Accordingly, by an order dated 13.12.2022, the
respondent nos. 2 and 3 had issued an extension of CTE for Petroleum
Coke Calcination Unit with annual capacity of Calcinated coke of 12,000
MT in favour of the respondent no.4.
Page No.# 9/24
o. Thereafter, this PIL was filed and moved on 11.05.2023.
p. Accordingly, it was prayed that the PIL be dismissed.
5) The learned senior counsel for the respondent no. 4, has made
his submissions against the PIL. It has been submitted as follows:-
a. The learned senior counsel for the respondent no.4 had questioned
the locus standi of the petitioner to maintain the present PIL, because
its head office is in Delhi. Moreover, it is projected that there are no
materials on record to show that the petitioner had done any actual
work in the State of Assam or anywhere in the North East India.
b. Moreover, it has been submitted that from the selective impleading of
only the respondent no.4 by leaving out others, the purpose of this PIL
is only to somehow thwart the industry of the respondent no.4 so as to
eliminate them as prospective competitors of the existing industries in
the field.
c. It has been submitted that the petitioner has suppressed material
facts which has bearing in the case by not bringing on record the
subsequent development after the notification dated 17.02.2018 was
issued. In the said context, it was submitted that the petitioner had not
disclosed regarding the notification dated 05.04.2019, which was
brought on record by the respondent nos. 2 and 3 through their
affidavit-in- opposition. Moreover, it was submitted that the respondent
no. 4 had approached the respondent nos. 2 and 3 on 28.08.2019,
while the notification dated 05.04.2019 was holding the field.
d. It has been submitted that the petitioner has not disclosed the source
of getting the documents which have been annexed to the writ
Page No.# 10/24
petition. It has been submitted that several of the annexed document
are available only in the record of the respondent no.2 and are not
available in public domain. Moreover, it was submitted that none of the
documents are either certified copies or copies obtained through RTI
mode. Accordingly, it has been submitted that the PIL is hit by Rule
10(1)(c) of the Gauhati High Court (Public Interest Litigation) Rules,
2011 [hereinafter referred to as “GHC(PIL) Rules” for short].
Accordingly, it has been submitted that the said GHC (PIL) Rules
mandates that the source of obtaining documents has to be disclosed.
e. It has also been submitted that the petitioner has failed to disclose
that it is receiving funds from some petroleum product industry,
including the companies which are involved in adversarial litigation
with the respondent no.4. Thus, it has been submitted that the GHC
(PIL) Rules have been violated by failure on part of the petitioner to
disclose conflict of interest.
f. It has been submitted that the petitioner receives funds from Indian
Oil Corporation Limited, which is listed as sponsors in its website. In
the said regard, it has been submitted that the respondent no. 4 had
filed a writ petition before this Court, which was registered as W.P.(C)
No. 445/2022, which is pending for disposal, wherein the respondent
no.4 had challenged the failure on part of the said corporation to issue
“delivery orders” for “raw petroleum coke”, in spite of having all the
requisites. Thus, it is clear that the petitioner is having conflict of
interest in the matter.
g. It has been submitted that the respondent no. 4 had been pursuing
its application for CTE diligently, and in accordance with the relevant
Page No.# 11/24
Act and Rules. It was submitted that the application dated 28.08.2019,
submitted by the respondent no.4 was not considered by the
authorities of the respondent nos. 2 and 3, for which the petitioner had
to file W.P.(C) No. 3726/2022. It was submitted that only after the
order dated 06.06.2022, was passed by this Court in the said W.P.(C)
No. 3726/2022, that the respondent no.2 and 3 had considered the
application of the respondent no. 4 on 31.12.2022. Thus, it was
submitted that it was an incorrect projection by the petitioners that the
respondent no. 4 had not taken any steps after receiving PCTE in
2012.
h. It was submitted that the notification dated 17.02.2018, on which the
petitioner has placed reliance was superseded by the notification dated
05.04.2019 and thereby, the restriction was only on use of domestic
and imported pet coke as fuel, which is not used by the respondent
no.4. It has been submitted that the respondent no. 4 uses raw
petroleum coke only as a raw material and/or feedstock to produce
CPC.
i. It has been submitted that by issuing another notification dated
13.02.2020, the respondent no.2 had cancelled the notification dated
05.04.2019. Hence, it was submitted that on 31.12.2022, when the
CTE was issued, the notification dated 17.02.2018 did not hold the
field.
j. Accordingly, it was prayed that the PIL be dismissed.
6) Perused the (a) writ petition, (b) affidavit by the petitioner, (c)
affidavit-in-opposition by respondent no. 4, (d) additional affidavit by
Page No.# 12/24
respondent no.4, (e) affidavit-in-opposition by respondent nos. 2 and 3, (f)
reply affidavit by the petitioner against the affidavit-in-opposition filed by
respondent nos. 2 and 3, (g) reply affidavit by the petitioner against the
affidavit-in-opposition filed by respondent no. 4, (h) additional affidavit by
respondent no.4, (i) additional affidavit filed by respondent nos. 2 and 3, (j)
additional affidavit filed by the respondent nos. 2 and 3, (k) reply affidavit filed
by the petitioner against the affidavit filed by the respondent nos. 2 and 3. Also
perused the enclosures to the hereinbefore referred affidavits. Also considered
the submissions made at the Bar.
7) Thus, two points of determination arise for decision in this
case:-
a. Whether the PIL is liable to be dismissed for non-disclosure of (i)
source of documents annexed to the writ petition; and (ii) of conflict of
interest?
b. Whether the impugned letter dated 31.12.2022, issued by the
respondent nos. 2 and 3 warrants interference in this PIL?
8) Point of determination no. a(i):
a. On this issue, the learned senior counsel for the respondent no. 4
had referred to the relevant provision of Rule 10(1)(c) of the GHC
(PIL) Rules. The said provision is quoted below:-
A specific averment, in para 2 of the writ petition, as to the source of
knowledge of the facts alleged in the writ petition and the further inquiries/
investigation made to determine the veracity of the same.
b. In paragraph 2 of this PIL, the petitioner has mentioned that the
source of knowledge of facts stated in the writ petition is from the
documents, reports available in the public domain, courts as well as
Page No.# 13/24
records maintained in the office of the respondent no.2.
c. The learned senior counsel for the respondent no.4 had submitted
that several documents which are annexed to the writ petition were
from the records of the office of the respondent nos. 2 and 3, which
are not in public domain. Therefore, when the petitioner had pleaded
in the instant PIL that the documents are from records maintained in
the office of respondent no.2, it is sufficient compliance of the
requirement of Rule 10(1)(c) of the GHC (PIL) Rules. In their
respective affidavit-in- opposition, the respondent nos. 2 and 3 and
respondent no.4 have not alleged that any of the document that has
been annexed to the writ petition were forged, fake or non-existent.
Therefore, it is not for this Court to make any inquiry to find out how
the documents came into the hands of the petitioner. The respondents
have responded to those documents, which makes those documents to
be un-disputed.
d. Thus, as there has been a compliance of Rule 10(1)(c) of the GHC
(PIL) Rules, 2017, the PIL would be maintainable. The point of
determination no. a (i) is answered accordingly.
9) Point of determination no. a(ii):
a. It was submitted by the learned senior counsel for respondent no. 4
that the petitioner NGO gets funding from Indian Oil Corporation Ltd.
for its activities and the said corporation is shown to be their sponsors
in the website of the petitioner.
b. It has also been submitted that the respondent no.4 had to file a writ
petition against the said corporation for enforcement of their right to
Page No.# 14/24
petcoke.
c. The said corporation is a Government of India undertaking and
moreover, the said organisation is known to be funding various NGOs
for a variety of social welfare programmes as a part of discharging
their corporate social responsibility. It is not the case of the respondent
no.4 that the same set of officers who deal with issuance of delivery
order for petcoke are the very officers who deal with and/or take
decisions for giving advertisement in the magazines of the petitioner or
for funding some of their programmes. Therefore, the Court is unable
to accept that the lack of statement that the petitioner has received
sponsorship from Indian Oil Corporation Limited has vitiated this PIL in
any manner whatsoever.
d. The point of determination no. a (ii) is answered accordingly.
10) Point of determination no. 2:
a. The case of the petitioner is that CPC is a “red” category industry
and thus, is highly polluting industrial unit.
b. It has been admitted by the Pollution Control Board (respondent nos.
2 and 3) in their affidavit-in-opposition that vide notification no.
WB/GUW/T-3521/17-18/22 dated 17.02.2018, it was decided not to
allow any further expansion of the existing as well as new CPC and
LAMC within the State of Assam. The said notification was issued
pursuant to the Government of Assam letter no. MI.113/2012/256.
c. The Government of Assam, Environment and Forest Department,
issued another notification bearing no. FRM.28/2018/46 dated
19.07.2018, thereby in exercise of power under Section 19 (3) of the
Page No.# 15/24
Air (prevention and Control of Pollution) Act, 1981, prohibited the use
of Pet Coke in all industrial units within the district of Kamrup (M) in all
its forms as a fuel for any purpose whatsoever, including its use as a
fuel for the generation of power, steam or any other form of energy.
d. Thereafter, the Member Secretary, Pollution Control Board, Assam
(respondent no.3), issued a notification no. WB/T-179/17-18/84/24
dated 05.04.2019, by which in superseding the earlier notification
no.WB/GUW/T-3521/17-18/22 dated 17.02.2018, and in exercise of
power under Section 19 (3) of the Air (Prevention and Control of
Pollution) Act, 1981 and Sections 3 and 5 of the Environment
(Protection) Act, 1986, it was ordered as follows: -
1. Usage of both domestic and imported pet coke as fuel in the State of Assam
is banned forthwith.
2. Import of pet coke is banned for industries other than that uses it as
feedstock in their manufacturing process (not as fuel). The following
categories of industries are exempted from the provisions.
a) Cement industries;
b) Lime- Kiln;
c) Calcium Carbide; and
d) Gasification.
e. Thereafter, the respondent no.2, vide notification no. WB/T-179/17-
18/245 dated 13.02.2020, cancelled the earlier notification
no.WB/GUW/T-3521/17-18/22 dated 17.02.2018, with immediate
effect.
f. Thus, the notification no. WB/T-179/17-18/84/24 dated 05.04.2019,
referred above holds the field.
11) Was the application of the respondent no. 4 for issuing fresh
CPC unit could have been lawfully treated as an application valid to grant
Page No.# 16/24
extension of CTE dated 10.12.2012:
a. The petitioner has alleged that the validity of the PCTE, dated
10.12.2012, issued in favour of the respondent no.4, had expired on
09.12.2012. The statement made in paragraph 12 of the writ petition
(PIL) is vaguely denied by the respondent no.4 in its affidavit-in
opposition, which amounts to admission. The respondent no.2 and 3,
in their affidavit-in- opposition had admitted that the CTE was valid
from 10.12.2012 to 09.12.2013. Moreover, the respondent nos. 2 and 3
had also admitted that the said industry of the respondent no.4 did not
commence its operation within the stipulated period of 1 (one) year.
b. However, the respondent nos. 2 and 3 have taken a stand that the
respondent no. 4 had made an application dated 12.03.2019, for
extending the validity of the CTE dated 10.12.2012. Apparently, the
said statement is ex facie false. In this regard, it would be appropriate
to refer to Annexure-2 to the affidavit-in-opposition filed by respondent
no. 4, which is a copy of the affidavit-in-opposition filed by the
respondent no. 4 in connection with I.A.(C) No. 309/2022 [in W.P.(C)
No. 445/2022 – The Calciner’s Association, Assam v. Indian Oil
Corporation Ltd. & 4 others]. Annexed to the said affidavit is a copy of
the application dated 28.08.2019, issued by the respondent no. 4, by
which the said respondent no. 4 had applied for (i) CTE under Sections
25 and 26 of the Water (Prevention and Control of Pollution) Act, 1981;
(ii) CTE under Section 21 of the Air (Prevention and Control of
Pollution) Act, 1981; and (iii) Authorisation under Rule 5 of the
Hazardous Wastes (Management and Handling) Rules, 1989. The
acknowledgement against the said Thus, by no stretch of imagination,
Page No.# 17/24
the application dated 28.08.2019, can be said to be an application for
extending the validity of the PCTE.
c. Be it mentioned that the “consent” that was granted and/or issued
on 10.12.2012 was not a Consent to Establish (CTE for short), but it
was a Provisional Consent to Establish (PCTE for short). The Court was
not shown any document from record of this writ petition that the
PCTE granted to the respondent no. 4 was converted to CTE.
d. The learned standing counsel for the respondent nos. 2 and 3 and
the learned senior counsel for the respondent no. 4 has not been able
to cite any provision of any Act, Rules or notification empowering
and/or authorizing the respondent nos. 2 and 3 to suo motu convert
and/or treat an application for CTE into/as an application for extending
the validity of a PCTE in 2019, the validity of which had expired on
09.10.2013, i.e. after a lapse of about 6 (six) years.
e. The respondent no. 4 has sought to project that its application dated
28.08.2019 was not acted upon. Thereafter, in the year 2021, the
respondent no.4 was verbally informed that due to an alleged software
glitch, the respondent no.2 had migrated to a new software and as
advised, a fresh application was made in the on-line portal, containing
same draft numbers which were submitted with application dated
28.08.2019. Thus, the respondent no. 4, in a way has admitted that
the on-line portal of Government of Assam can be calibrated to accept
pre-dated applications and also to generate undated acknowledgement
without showing the date-stamp and time-stamp of the generation of
acknowledgment. Moreover, it has also been admitted by the
respondent no.4 that the Government portal can also generate “unique
Page No.# 18/24
application identity number PCB/CTE/KU/ 002034/08/2019, which
indicates the year which had already past two years before. It can be
understood that due to some technical glitch, there may be a few
days/weeks of delay in generating a unique application identity
number. But then, it would have been permissible to just mention in
the acknowledgment the application receipt date, which is obviously
missing in the present case in hand. Thus, the Court is constrained to
form an opinion that the so called on-line portal of the Government of
Assam, which is used by the Pollution Control Board, Assam, is quite
capable of generating undated acknowledgement which is also capable
of generating unique identification number of past years, which makes
the portal totally unreliable and totally untrustworthy under the unique
facts and circumstances of this case. This observation is strictly
restricted to this case and the observations made in this case would
not be applicable to any other application and thus, shall not prejudice
any other application made during that time period.
f. The respondent no.4 has sought to project that the application fees
of Rs.1,00,000/- (Rupees One lakh only), that was provided by the
respondent no.4 was appropriated against on-line application.
g. It may be mentioned that though the writ petition, being W.P.(C) No.
3726/2022, has been annexed to the affidavit-in-opposition filed by
respondent no.4, however, all annexures appended thereto are not
filed along with the said affidavit-in-opposition filed on 14.06.2023.
Similarly, all the documents referred to as annexures to the written
objection filed by the respondent no. 4 are also not enclosed in the
said affidavit-in-opposition filed by respondent no.4 on 14.06.2023.
Page No.# 19/24
Therefore, as documents are selectively filed, the said affidavit-in-
opposition filed by the respondent no. 4, the said affidavit-in-
opposition is not totally reliable.
h. The respondent no.4, in its additional affidavit had stated that the
CTE dated 25.10.2006 for its Electrode Carbon Paste at E.P.I.P.,
Amingaon, Guwahati-781031, has been extended from time to time.
The operation of the said plant is not the subject matter of this PIL,
rather, the establishment and operation of only the CPC unit, which is a
“red” category polluting industry, is the subject matter of this writ
petition. However, in its affidavit-in-opposition filed on 14.06.2023, the
respondent no. 4 had taken a stand in paragraph 17 thereof that the
respondent no. 4 was a “calciner”; in the additional affidavit filed by
the respondent no. 4, it has been stated to the effect that the process
used by the respondent no. 4 is calcination; and it was further stated
that the respondent no.4 was a calciner. Moreover, the respondent nos.
th
2 and 3, in its 6 Core Technical Committee Meeting held on
13.12.2022, had observed in its resolution that the unit of the
respondent no. 4 was an existing unit. Thus, this leads to the question
as to how the Pollution Control Board, Assam, allowed the existing unit
of respondent no. 4 to operate a calcination plant without CTE and
CTO (consent to operate). If there existed such a document, the same
has been withheld from the Court. The reasons are too obvious
because that could have been done unless the Pollution Control Board,
Assam has turned a blind-eye to such operation, thereby allowing ‘red’
category industry to operate without a specific CTE and CTO.
Page No.# 20/24
th
i. Thus, from the minutes of the 6 Core Technical Committee
Meeting held on 13.12.2022, the respondent nos. 2 and 3 appear to be
a party to the tapestry of falsification of records, which is to treat an
Electrode Carbon Paste industrial unit of the respondent no. 4 as an
existing Calcinated Petroleum Coke Industry.
j. In paragraph 6(a) of the additional affidavit filed by the respondent
nos. 2 and 3 on 04.04.2024, which was sworn by the Environmental
Engineer and Nodal Officer (Legal) of the Pollution Control Board,
Assam (respondent no.2), it has been specifically admitted to the effect
that the original CTE issued on 10.12.2012 was valid from 10.12.2012
to 09.12.2013. It was also admitted that the private respondent did not
commence operation within the stipulated period of 1 (one) year and
neither did it apply for renewal of the PCTE. In subsequent paragraph
nos. 6(b) to 6(i) of the said affidavit, after referring to the notifications
and sequence of application for issuance of CTE, it was stated that in
view of the order dated 06.06.2022, passed by this Court in W.P.(C)
th
3726/2022, the Board considered the matter in its 6 Core Technical
Committee Meeting, examined the various notifications and position of
law laid down by the Supreme Court of India, the Board was of the
considered opinion that the unit of the respondent no. 4 was eligible
for extension of validity of CTE.
th
k. As per the relevant part of the minutes of the 6 Core Technical
Committee Meeting held on 13.12.2022, the following resolution was
taken:-
The unit is actually an existing unit.
1.
Page No.# 21/24
The Industry needed extension of validity of their CTE instead of fresh
2.
CTE, if no changes have been made in the process.
3. The Industry shall not use the pet coke as fuel but as feed stock only.
4. The applicant shall have to the order of the Supreme Court of India in
WP(C) No. 13029/1983.
5. The applicant shall have to submit legal undertaking stating clearly that
they shall not use CPC as fuel and it shall only be used as feedstock.
6. The applicant shall have to withdraw the writ petition in order to enable
the Board to take a decision in the light of the Apex Court order as well as
the existing notification of the Govt. of Assam.
The Committee is of the opinion that the prayer of the applicant may be
considered in view of the existing order/ notification etc.
7. If they have ever operated, the same may be considered for CTO
subject to clearance of all arrear dues of CTO fee.
12) Neither the respondent nos. 2 and 3, nor the respondent no.4
have brought any document on record to discharge their burden to show that in
a plant authorised to set up and operate a CPC industry.
13) Rather, the Pollution Control Board, Assam, without referring to
any PCTE or CTE for a CPC plant has merely stated in the resolution no. 7 of the
th
6 Core Technical Committee Meeting held on 13.12.2019, that “If they have
ever operated, the same may be considered for CTO subject to clearance of all
arrear dues of CTO fee.” The same would mean that the apex body to control
pollution in the State of Assam encourages “red” category industry to operate
with Pollution Control Board having no record of CTO a CPC unit and awards
such industries with reward of extending the CTE when there is no valid CTO.
th
14) Thus, the 6 Core Technical Committee meeting held on
13.12.2019, by taking a resolution to extend the validity of the PCTE after 6
years of its lapse, has acted beyond the mandate of the (i) Air (Prevention and
Control of Pollution) Act, 1981; (ii) Water (Prevention and Control of Pollution)
Page No.# 22/24
Act, 1981; (iii) Environment (Protection) Act, 1986; and (iv) any rules applicable
in the State of Assam under the three Acts referred hereinbefore. Such an
action is contrary to greater public interest.
15) Therefore, the above point is decided by holding that though the
application of the respondent no. 4 was valid, but the action of the respondent
nos. 2 and 3 in extending the validity of PCTE beyond 09.12.2013 after a period
of 6 years is bad in law and not sustainable under any of the provisions of the
(i) Air (Prevention and Control of Pollution) Act, 1981; (ii) Water (Prevention and
Control of Pollution) Act, 1981; (iii) Environment (Protection) Act, 1986; and (iv)
any rules applicable in the State of Assam under the three Acts referred
hereinbefore.
16) In light of the discussions made hereinbefore, the point no. 3 is
decided by holding that the application of the respondent no. 4 for issuing fresh
CPC unit could not have been lawfully and validly be treated as an application to
grant extension of CTE dated 10.12.2012, after its validity has lapsed on
09.12.2013 and no Consent to Operate a Calcinated Petroleum Coke plant/ unit
was obtained during its validity.
Locus standi of the petitioner:
17) The respondent nos. 2 and 3 and the respondent no.4 had
questioned the locus standi of the petitioner on the ground that they have not
done any activity in the State of Assam. However, the respondent nos. 2 and 3
and respondent no. 4 could not demonstrate that there is any law which bars a
writ Court to entertain a PIL by a public spirited organisation who have no foot-
print in the State, when it has raised an issue of public importance such as
establishment of a highly polluting industry by not adhering to the Acts, Rules
Page No.# 23/24
and Notifications by which the Pollution Control Board, Assam (respondent no.2)
should be guided. The sponsoring of few programme of the petitioner by the
Indian Oil Corporation cannot be decided in the absence of the said organization
as a party to this PIL.
18) The Court is disinclined to grant prayer (B) because the parties
who might be adversely affected if prayer (B) is granted, are not arrayed as
respondents. The prayer (C) cannot be allowed for the reason that the orders of
the Court cannot be made subject to any further enquiry.
19) Therefore, in light of the discussions above, this PIL succeeds.
The following reliefs are granted:-
a. The order no. WB/GUW/T-2276/12-13/138/2443 dated 31.12.2022,
issued by the Member Secretary, Pollution Control Board, Assam
(respondent no.3), by which the Consent to Establish vide letter no.
WB/GUW/T-2276/12-13/57/984 dated 10.12.2012, was extended,
thereby permitting Calcined Petroleum Coke Unit at Export Promotion
Industrial Park, Amingaon, is hereby set aside and quashed.
b. The Environment and Forest Department and the Pollution Control
Board, Assam, shall do all that may be required to see that all
consequential actions to follow so as to ensure the consequences
attached to the setting aside and quashing of the order/letter dated
31.12.2022, is made effective.
c. The Pollution Control Board, Assam (respondent no.2) is directed to
pay a cost of Rs.1,00,000/- (Rupees One lakh only), which shall be
deposited with the Women and Child Development Department so as
to create facilities for specially-abled girl child in such care homes (like
Page No.# 24/24
Mon Ashaneer at Guwahati) at remote districts, which do not have all
the desired facilities.
d. It would be permissible for the State, if so advised, to recover the
said cost from officials who are found responsible in turning a blind eye
on the point that the Provisional Consent to Establish (PCTE for short)
was never granted to the respondent no. 4 to establish Calcined
Petroleum Coke Unit and even if it was granted, the same was not
followed by Consent to Operate (CTO for short), and that such PCTE
had lapsed on 09.12.2013, which could not have been lawfully
extended.
e. This order shall come into effect on expiry of 30 (thirty) days from
the date of the judgment and order, i.e. with effect from 10.12.2026.
20) This writ petition/ PIL is allowed to the extent as indicated
above.
JUDGE JUDGE
Champak
Rajbongshi
Digitally signed by Champak
Rajbongshi
Date: 2026.11.11 16:52:13 +05'30'
Comparing Assistant Private Secretary