Disposed

Md. Fakar Uddin v. Tripura State Polluction Control Board and Ors.

Tripura HC14 Jul 2017WP(C)/1210/2016

Case brief

AI extract

What is this about?

High Court disposed of consolidated writ petitions challenging a conditional closure order against brick kilns operating without consent. Court accepted argument on delay and directed petitioners to file appeals under respective Acts within 30 days, treating them as in time.

What did the court decide?

Petitioners directed to file appeals under relevant Acts within 30 days; such appeals deemed preferred in time.

Md. Fakar Uddin Vs Tripura State Polluction… — Environment and Pollution | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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W.P.(C) No.1155 of 2016 W.P.(C) No.1157 of 2016 W.P.(C) No.1158 of 2016 W.P.(C) No.1159 of 2016 W.P.(C) No.1210 of 2016 W.P.(C) No.1213 of 2016 W.P.(C) No.1222 of 2016 W.P.(C) No.1223 of 2016

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IN W.P.(C) No.1155 of 2016

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Petitioner :

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Sri Abani Mohan Das, son of late Katumana Das, Proprietor of M/s. Trinath Brick Field Industry, resident of Panisagar, Dharmanagar, District : North Tripura, PIN-799 260

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– V e r s u s –

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Respondents :

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1. Tripura State Pollution Control Board, represented by the Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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2. The Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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IN W.P.(C) No.1157 of 2016

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Petitioner :

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Sri Siddhartha Sankar Esh, Proprietor of M/s. Soubhik Bikash Brick Industries, son of Subudh Esh, resident of Vill. Dharmanagar Town, Dharmanagar, District : North Tripura, PIN-799 250

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V e r s u s –

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Respondents :

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1. Tripura State Pollution Control Board, represented by the Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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2. The Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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IN W.P.(C) No.1158 of 2016

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Petitioner :

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Sri Pranab Chanda, Proprietor of M/s. Swarupananda Brick Kiln, son of late Ganan Ranjan Chanda, resident of Vill. Padmapur, Dharmanagar, P.O. Dharmanagar, P.S. Dharmanagar, District : North Tripura, PIN-799 250

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– V e r s u s –

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Respondents :

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1. Tripura State Pollution Control Board, represented by the Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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2. The Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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IN W.P.(C) No.1159 of 2016

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Petitioner :

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Nurul Haque Talukder, Proprietor of Nurul Haque Brick Industries, son of Md. Ahammad Ali, resident of Kurti, Dharmanagar, P.S. Kadamtala, District : North Tripura

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– V e r s u s –

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Respondents :

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1. Tripura State Pollution Control Board, represented by the Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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2. The Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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IN W.P.(C) No.1210 of 2016

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Petitioner :

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Md. Fakar Uddin, son of Ajfar Ali, (Partner of M/s. Insaniat Industrial Firm), resident of 159, Churaibari, P.O. & Village – Churaibari, District – North Tripura,

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W.P.(C) No.1155 of 2016, W.P.(C) No.1157 of 2016, W.P.(C) No.1158 of 2016, W.P.(C) No.1159 of 2016, W.P.(C) No.1210 of 2016, W.P.(C) No.1213 of 2016, W.P.(C) No.1222 of 2016 and W.P.(C) No.1223 of 2016

– V e r s u s –

Respondents :

1. Tripura State Pollution Control Board, represented by the Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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2. The Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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IN W.P.(C) No.1213 of 2016

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Petitioner :

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Sri Lakshan Chatterjee, son of Sri Bholanath Chatterjee, resident of Jail Road, P.O. & P.S. – Dharmanagar, District – North Tripura, PIN – 799 250 (Proprietor of M/s. Om Bricks), (represented by his Constituted Attorney Sri Swapan Roy, son of Late Rash Bihari Roy, Manager of M/s. Om Bricks, resident of Padampur, Madhubari, Link Road, P.O. & P.S. – Dharmanagar, District – North Tripura, vide Notarized Deed of Power of Attorney dated 14-09-2016)

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V e r s u s –

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Respondents :

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1. Tripura State Pollution Control Board, represented by the Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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2. The Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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IN W.P.(C) No.1222 of 2016

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Petitioner :

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Sri Sajal Chandra Deb, son of Rakesh Chandra Deb, (Prop. of M/s. Radha Ballabh Bricks Industry), resident of Kakdirpar, Village-Kameswar, P.O. & P.S. – Dharmanagar, District – North Tripura,

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V e r s u s –

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W.P.(C) No.1155 of 2016, W.P.(C) No.1157 of 2016, W.P.(C) No.1158 of 2016, W.P.(C) No.1159 of 2016,

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W.P.(C) No.1210 of 2016, W.P.(C) No.1213 of 2016, W.P.(C) No.1222 of 2016 and W.P.(C) No.1223 of 2016

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Respondents :

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1. Tripura State Pollution Control Board, represented by the Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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2. The Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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IN W.P.(C) No.1223 of 2016

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Petitioner :

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Smt. Sati Tripura, wife of Sri Ramendra Choudhury @ Ramendra Narayan Choudhury @ Nanu Choudhury, resident of Village, P.O. & P.S. – Damcherra, District – North Tripura, PIN-799 250 (Owner of Sati Bricks Industry) (represented by her Constituted Attorney Sri Ramendra Choudhury, @ Ramendra Narayan Choudhury @ Nanu Choudhury, son of Late Jogesh Choudhury, resident of Village, P.O. & P.S. – Damcherra, District – North Tripura, vide Notarized Deed of Power of Attorney dated 16-09-2016)

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V e r s u s –

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Respondents :

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1. Tripura State Pollution Control Board, represented by the Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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2. The Member Secretary, Parivesh Bhawan, Pandit Nehru Complex, Gurkhabasti, Kunjaban, Agartala, PIN-799 006

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the petitioner : Mr. K. N. Bhattacharjee, Sr. Advocate Ms. S. Chakraborty, Advocate For the respondents : Mr. S. Bhattacharjee, Advocate Mr. K. Nath, Advocate

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Date of hearing & delivery : 14.07.2017 of Judgment & Order Whether fit for reporting : No

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W.P.(C) No.1155 of 2016, W.P.(C) No.1157 of 2016, W.P.(C) No.1158 of 2016, W.P.(C) No.1159 of 2016,

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W.P.(C) No.1210 of 2016, W.P.(C) No.1213 of 2016, W.P.(C) No.1222 of 2016 and W.P.(C) No.1223 of 2016

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JUDGMENT & ORDER (ORAL)

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Heard Mr. K. N. Bhattacharji, learned senior counsel assisted by Ms. S. Chakraborty, learned counsel appearing for the petitioners as well as Mr. Samarjit Bhattacharji, learned counsel appearing for the Tripura State Pollution Control Board.

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02. All these writ petitions, being W.P.(C) 1155 of 2016 [Abani Mohan Das vs. Tripura State Pollution Control Board and Another.], W.P.(C) 1157 of 2016 [Sidhartha Sarkar Esh vs. Tripura State Pollution Control Board and Another ], W.P.(C) 1158 of 2016 [Pranab Chanda vs. State of Tripura and Another], W.P.(C) 1159 2016, [Narul Haque Talukdar vs. Tripura State Pollution Control Board and Another] W.P.(C) 1210 of 2016 [Md. Fakar Uddin vs. Tripura State Pollution Control Board & Another], W.P.(C) 1213 of 2016[Lakshan Chatterjee vs. Tripura State Pollution Control Board & Others], W.P.(C) 1222 of 2016 [Sajal Ch. Deb vs. Tripura State Pollution Control Board & Others] and W.P.(C) 1223 of 2016 [Sati Tripura vs. Tripura State Pollution Control Board & Others] are consolidated for disposal by a common judgment inasmuch as the common order of closure dated 28.10.2016 [Annexure-R/19 to the reply filed by the Tripura State Pollution Control Board in W.P.(C) No.1155/2016] has been challenged in these writ petitions.

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03. Mr. K.N. Bhattacharjee, learned senior counsel appearing for the petitioners has submitted that nowhere the National Green Tribunal has directed the Tripura State Pollution Control Board to impose penalty on the defaulting brick fields operating without ‘consent to operate’. However, he has fairly

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W.P.(C) No.1155 of 2016, W.P.(C) No.1157 of 2016, W.P.(C) No.1158 of 2016, W.P.(C) No.1159 of 2016,

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W.P.(C) No.1210 of 2016, W.P.(C) No.1213 of 2016, W.P.(C) No.1222 of 2016 and W.P.(C) No.1223 of 2016

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admitted that all the petitioners had received the notice from the Tripura State Pollution Control Board asking them why the penal measures shall not taken against them. Finally by the impugned order dated 28.10.2016, the petitioners’ brick kilns had been directed to close down subject to payment of Rs.1,00,000/ to Rs.1,50,000/- respectively for the brick kilns falling in the category ‘C’ and category ‘D’ as environmental compensation by 16.09.2016.

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04. Mr. Samarjit Bhattacharji, learned counsel appearing for the Tripura State Pollution Control Board has submitted that since the petitioners did not pay the amount imposed as penalty, the final closure orders were subsequently issued. Mr. Bhattacharji, learned counsel has placed briefly the facts, essential to appreciate the controversy, that since the petitioners did not obtain the consent to establish/consent to operate for operating their brick fields, the show cause notices were issued on them on 02.04.2016 [Annexure-R/6 to the reply filed by the Tripura State Pollution Control Board in W.P.(C) No.1155/2016] asking them why the legal action shall not be taken under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 31(A) of Air (Prevention and Control of Pollution) Act, 1981 for non-compliance of the conditions as laid down by the Tripura State Pollution Control Board.

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05. Mr. Bhattacharji, learned counsel has apprised that the National Green Tribunal, Eastern Zone Bench, Kolkata had taken up a matter relating to operation of the illegal brick kilns which are rampantly violating the provisions of Air (Prevention and

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Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974. At the direction of the National Green Tribunal (NGT), the Tripura State Pollution Control Board had surveyed all the brick kilns of the State and found the petitioners were operating without the consent to operate and they submitted their report to the National Green Tribunal, Eastern Zone Bench at Kolkata.

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06. Having noticed the said violation, by the order dated 13.05.2016 [delivered in O.A. No.74/2015/EZ] the NGT observed, inter alia as under:

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“We leave it upon the PCB to proceed in the matter in accordance with law in the light of our order dated 29.03.2016(supra). The PCB is at liberty to exercise its powers vested in them under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 for ensuring compliance of those laws. We grant the PCB two months’ time as prayed for completion of the exercise and direct them to file status report on or before the next date.”

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07. In terms of the said observation and in pursuance to the Show Cause Notice dated 02.04.2016, the Tripura State Pollution Control Board passed the impugned order dated 28.10.2016 [however it has been styled as the Closure Order, but it is a conditional order towards the closure]. Further the NGT has

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passed the order dated 29.07.2016, observing as under:

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“On a perusal of the affidavit it appears that the State PCB is pursuing with the matter pertaining to illegal brick kilns as per provisions prescribed under the law. It has been informed that altogether 130 brick fields have been issued show cause notices directing them as to why penalty/environmental compensation in terms of the direction issued by this Tribunal shall not be imposed upon them. Of the 130, 65 brick fields have responded to the notices and out of these 65, 37 have complied with the direction and have deposited the environmental compensation in terms of the order passed by us earlier. A list has been given in a tabular form. We would not go further on this count as the jurisdiction lies with the State PCB to proceed against the brick kiln

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owners who are in breach of law. Let a further report on the action taken be filed by the PCB on the next date.”

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08. In terms of that order, the PCB issued further notice on the petitioners including the other brick kilns which are operating in violation of the law. The respondents had published a public notice on 06.09.2016 in the newspaper. From their communication dated 05.09.2016 (Annexure-R/8 to the reply filed by the Tripura State Pollution Control Board in W.P.(C) No.1155/2016) the said fact can be gathered. It appears that such notice was published in the newspaper for affording further opportunity to the petitioners to deposit the environmental compensation as determined and communicated by the Tripura State Pollution Control Board. But the petitioners did not comply in terms of that notice also. Finally, the order dated 28.10.2016 [Annexure-R/19 to the reply filed by the Tripura State Pollution Control Board in W.P.(C) No.1155/2016] has been issued.

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09. Mr. K.N. Bhattacharjee, learned senior counsel has submitted that since the petitioners did not deposit the environmental compensation as determined by the Tripura State Pollution Control Board, the final closure order has been issued against them. After taking such action, the status report has been placed before the NGT, Eastern Zone Bench at Kolkata. In view of the said report, the NGT has closed the proceeding as stated above.

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10. Mr. Samarjit Bhattacharji, learned counsel appearing for the respondents, has on the earlier occasion has submitted that

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these writ petitions cannot be maintained in view of existence of the provision for filing appeal against the order of this nature.

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11. From the notification under No.F.8(3)/DSTE/ENV/PtV/7235-41 dated 11.12.2012 [Annexure-R/20 to the reply filed by the Tripura State Pollution Control Board in W.P.(C) No.1155/2016] it appears that in exercise of the powers conferred by sub-section (2) of Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 and sub-section (2) of Section 31 of the Air (Prevention and Control of Pollution) Act, 1981, the Government has constituted an Appellate Authority and this appellate authority is functioning in the State of Tripura.

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12. At this juncture, Mr. Bhattacharjee, learned senior counsel appearing for the petitioners has submitted that such appeal needs to be filed within a period of thirty days from the date of passing the order by which someone is aggrieved. Mr. Bhattacharji learned senior counsel has further submitted that the impugned orders have been passed on 28.10.2016 and these writ petitions were initially filed on 29.09.2016 against the notice issued by the Tripura State Pollution Control Board. As such, there was no delay. The impugned orders were passed in the pendency of these writ petitions. Mr. Bhattacharjee, learned senior counsel has stated and urged this court that the petitioners would prefer appeal, if the delay that has been occurred in prosecuting these writ petitions is waived.

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13. Having due regard to the submission of Mr. Bhattacharjee, learned senior counsel appearing for the

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petitioners, this court is of the view that in the circumstances of these cases, if such accommodation is not made in favour of the petitioners there would be failure of justice. Accordingly, these writ petitions are disposed of with the following observation:

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The petitioners shall file appeals under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 and Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 within a period of 30(thirty) days from today. If such appeals are filed within the said time as prescribed by this court, the Appellate Authority as constituted by the notification dated 11.12.2012 shall treat those appeals as preferred within the period of limitation. On hearing, the appellate authority shall dispose of such appeals on merit as expeditiously as possible. It is made clear that, if the appeals are not filed within that a period of 30(thirty) days from today the rigours of law shall follow.

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However, there shall be no order as to costs.

JUDGE

Moumita

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Md. Fakar Uddin v. Tripura State Polluction Control Board and Ors.

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Md. Fakar Uddin v. Tripura State Polluction Control Board and Ors.

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