BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE APPLICATION NO. 07(THC)/2014(WZ) CORAM: Hon’ble Shri Justice V.R. Kingaonkar (Judicial Member) Hon’ble Dr. Ajay A. Deshpande (Expert Member)
B E T W E E N:
1. Janardan Kundalikrao Pharande Age about 58 years., R/o. Nimbut, Tql. Baramati, Distt : Pune 2. Balasaheb Ganpatrao Kakade, Age about 74 yrs., R/o.Nimbut, Tql. Baramati, Distt : Pune. 3. Vikram Janardan Pharande, Age about 27 years., R/o. Murum, Tql. Baramati, Distt : Pune 4. Ashok Vishnu Agawane, Age about 54 yrs., R/o. Nimbut, Tal. Baramati, Distt : Pune, 5. Dilip Prabhakar Pharande Age about 50 yrs., R/o.Nimbut, Tq. Baramati, Distt : Pune. 6. Rajaram Ramdas Korde, Age about 51 years., Occn : Mirewadi, Tq. Baramati, Dist : Pune. 7. Dattatraya Ramdas Korde, Age about 57 yrs., R/o. Murum, Tq. Baramati, Distt : Pune, 8. Sarjerao Sidhu Sapkal, Age about 67 yrs., R/o. Nimbut, Tq. Baramati, Distt : Pune. 9. Nira River Pradushan Sanghatana 1 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
Samitee (unregistered Organization) Organisation of 25 villages, Village Nimbut, Tq. Baramati, Distt : Pune. ……Applicants AND
1
Ministry of Environment & Forest Through : Director,(Govt. of India) Office at Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi 110 003
2
M/s. Jubilant Organosys Limited, (Distillery Plant, Organic Chemical Plant and Captive Power Plant) Private Limited Company, Through : Managing Director Having its office at Nimbut Nira, Tal. Baramati, Distt : Pune.
2-A. M/s. Jubilant Industries Limited, Private Limited Company, Through : Managing Director Having its office at 1A, Sector 16A, Noida 201 301 (UP) Manufacturing address at At village Nimbut, Railway Station, Nira, Distt : Pune. 2-B. M/s. Jubilant Life Sciences Ltd., Through : Managing Director having Its office at Village Nimbut, Railway Station, Nira, Distt : Pune. 3.
The Maharashtra Pollution Control Board. Through : Secretary, Having its office at MPCB Kalpataru Point, 3rd & 4th Floor, Sion. Matunga Scheme Road No.8, Opp. Cine Planet, Sion Circle, Mumbai 400 022
4.
The Maharashtra Pollution Control Board., Through : Regional Officer, Having its office at Pune-1, 2nd floor, Jog Centre, Wakade Wadi, Pune.
2 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
5.
The Director of Industries, Having its office at New Administrative Building, 2nd floor, Mumbai 400 032
6.
State of Maharashtra, Through : Secretary, (MoEF)_ Having its office 15th Floor, New Administrative Building, Madam Cama Road, Opp. Mantrayaya, Mumbai 400 031.
7.
The District Collector, Office of the District Collector, Near Pune Station, Pune.
8.
State of Maharashtra, Through : Chief Secretary, Having its office at Mumbai 400 032
9.
Union of India, Through : Secretary, Govt. of India, (MoEF), Having its office, at Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi 110 003 …..Respondents
Counsel for Applicant Mr. Sunil Dighe, Counsel for Respondent No.1: Mr. Nehru, w/ Ms. Shweta Bhusar, Counsel for Respondent No.2: Mr. Ravi Kadam, Sr. Counsel, w/ Mr. Prabhakar Joshi w/ Mr. Girish Utangale, Mr.R.B. Muley, Counsel for Respondent(s) 3 to 6: Mr. D.M. Gupte w/ Ms. Supriya Dangare Date: 16th May, 2014
JUDGMENT
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1.
Originally, Writ Petition (PIL) No.240 of 2009 was
filed by Applicants in the High Court of Judicature at Bombay. By order dated October 25th 2013, Hon’ble High Court (Coram : Dr. D.Y. Chandrachud and M.S. Sonak, JJ.) directed transfer of the Writ Petition to this Tribunal in view of the Judgment of the Hon’ble Supreme Court in “Bhopal Gas Peedith Mahila Udyog Sangathan Vrs. Union of India”.
The Writ Petition was
thereafter registered as an Application under Section 14, 15, 16 read with Section 18 of the National Green Tribunal Act 2010. The Applicants’ Counsel sought certain amendments in the pleadings on basis of analysis of samples conducted later on through an independent agency. By Order dated January 13 th 2014, the request for amendment was allowed. 2.
The Applicants, in continuation of their pleadings in the
petition, filed amended pleadings in this Tribunal. However, it may be noted that they have not filed a composite copy of the original pleadings alongwith amendment of the pleadings and the comprehensive application in the format as per Rule 10 of the National Green Tribunal (Practice and Procedure) Act 2011. 3.
Shorn of technicalities and un-essentials, case of the
Applicants is that they are residents of villages Nimbut, Murum and Mirewadi situated in Pune and Satara Districts. three villages are located on bank of river ‘Nira’.
These
For many
generations in past, the residents of these villages are using water
of
river
‘Nira”
for
human
consumption,
animal
consumption and agricultural use. They have right to get good quality water for the above purposes. Such is the fundamental
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right available to them in view of guarantee of life enshrined in Article 21 of the Constitution. 4.
Respondent No.2 M/s. Jubilant Organic Ltd., is a
Company
incorporated
under
the
Companies
Act
1956.
Admittedly, this company is now segregated in two different private limited Companies styled as “M/s. Jubilant Industries Ltd. and M/s. Jubilant Life Sciences Ltd. Therefore, by way of amendment dated February 3rd, 2011, these two Companies have been added as Respondent No.2-A and 2-B alongwith original Respondent No.2 M/s. Jubilant Organics Ltd. For sake of brevity, all of them will be referred hereafter, commonly as “Jubilant
Industry”.
Jubilant
Industry
was
granted
environmental clearance certificate dated December 23 rd, 2008 by Respondent No.1-MoEF for expansion of its molasses based distillatory unit from 90 KLPD capacity to 200 KLPD capacity of Organic Chemicals and to set up a new 12 MW Captive Power Plant at village Nimbut. Respondent No.3 M.P.C.B. also granted consent to operate for the expansion of industry and the power plant. Applicants are aggrieved by the Environmental Clearance Certificate dated December 23rd 2008.
Initially, Director of
Industries had issued certificate somewhere in 1963 to one M/s. VAM Organics Company for manufacturing Acetic Acid and other chemical products. The Industrial activities of M/s. VAM Organics Company were later on closed down.
The Company
was transferred from one hand to another and eventually was taken over in 1999 by Jubilant Industry. 5.
According to the Applicants, the hazardous waste was
being discharged since long many years, unscientifically, by
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M/s. VAM Organics Company and thereafter by M/s. Jubilant Industry in river ‘Nira’. As a result of such effluent discharge, including drifting of spent wash, the ground water of the area nearby river ‘Nira’ is contaminated.
As a result of such
obnoxious Industrial Waste Management of Jubilant Industries, human life of the villagers is endangered, the agricultural food products, water, soil and bio-diversity in the area is impaired. Though, a large number of complaints were made time and again, yet only cosmetic type of actions were taken against Jubilant Industry which did not deter such obnoxious activities. 6.
The Applicants have come out with a case that in spite
of earlier complaints, which were not properly dealt with, the Respondent No.1 and 3 granted Environmental Clearance (EC) and consent to operate, respectively, for the expansion activities of Jubilant Industry.
Now Jubilant Industry has started
manufacturing of chemicals and products which are noxious, including some of them which are internationally banned. The industry has started manufacturing super phosphate (SPh) which is harmful for the agricultural and food products of the area surrounding the villages. The industry, after the expansion and diversification has also started production of certain chemical materials like Vinyl, pyridine and latex.
So called
preventive actions allegedly taken by the Respondent No. 3 and 4, M.P.C.B., have proved to be inadequate and of no much use. The Applicants had approached the Hon’ble High Court by filing Writ Petition (PIL) No.44 of 2001. The Hon’ble High Court gave certain directions, however, when Jubilant Company undertook to implement conditions of the M.P.C.B. on the basis that it has
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taken over M/s. VAM Organic Company with all the liabilities. It is alleged, interalia, that the effluent discharged in the river through “Buvasaheb Nala” causes pollution of the river water down-stream
of
the
industry
and
groundwater
in
the
surrounding area. Not only that the human lives and crops are affected due to the water pollution but the Flora and Fauna is also adversely affected due to same. 7.
Allegedly, Jubilant Industry has continued to cause
pollution of the river water and ground water by its Industrial activities.
It is essential, therefore, to ensure that the water
pollution is stopped by providing permanent solution.
The
Applicants seek that Environment Clearance Certificate dated December 23rd, 2008 issued in favour of Jubilant Industry shall be cancelled and other directions be given including, restoration of the environment, payment of damages and imposition of penalty. 8.
By filing reply-Affidavit of Shri Rajesh Doshi, who is Vice
President and Power of Attorney holder of Jubilant Industry, it is pointed out that a scheme was submitted to the Hon’ble High Court at Allahabad for amalgamation of the two (2) Industries which are now styled as Respondent No.2A and 2B. It is stated that under the scheme, Jubilant Industries will focus on production activities of agriculture, I.M.F.L. and Performance Polymer business whereas Jubilant Life Sciences Industry will focus on production of pharmaceutical and Life Sciences products.
They alleged that the Applicants attempted to
obstruct working of the Industry and therefore, a prohibitory injunction was sought from the Civil Court at Baramati.
The
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Applicants
were
prohibited
from
holding
Dharana
and
organizing rallies within distance of 500m of from the premises of the Industries. According to the Jubilant Industry, present Application is barred by principle of “res-judicata” on account of disposal of the previous Writ Petition (PIL) 44 of 2001 by order dated February 8th 2006 in view of due compliances of the directions of the Hon’ble High Court Order dated March 17th, 2001.
It is further averred by Jubilant Industry that necessary
control measures have been taken to ensure that coal dust would not emanate out of the factory premises. The boundary wall of the factory is constructed up to 14 ft. on all the four sides to arrest the spreading of the coal dust.
Jubilant Industry
claims that it has received Safety Awards from 1998 till the date. So also, various tests were carried out from recognized Laboratory which confirmed that the samples of the effluents are as per the prescribed standards and there is no violation of the environmental norms. It is categorically denied that discharge of effluents of Jubilant Industry is obnoxious and has resulted into adverse impact on life of the people in surrounding area, on the environment or on the aqua-fauna.
According to Jubilant
Industry, water of river ‘Nira’ falls under category-IV as per classification
of
water
usages
and
is
unfit
for
human
consumption. Unlined lagoons used by erstwhile Company i.e. M/s. Polychem have been demolished and only lined lagoons have been used which are constructed as per Corporate Responsibility
of
Environment
Protection
(CREP)
norms
prescribed by the Central Pollution Control Board (CPCB). It is further contended that the effluent discharged from the acetic
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acid plant is treated in Chemical Effluent Treatment Plant (CETP) and such Treated Water is used for the gardening purpose. Jubilant Industry claims to have developed a greenbelt and separate garden to make the industry environment and eco friendly. It is contended that adequate effluent facilities are made available by Jubilant Industry. It is denied that effluent or any hazardous waste is dumped in the open ground or the effluents are discharged in the river body of ‘Nira’. 9.
Case of Jubilant Industry further is that the Applicants
failed to avail alternate remedy to prefer an Appeal under provisions of the Environment (Protection) Act 1986 within prescribed period of limitation after grant of the Environment Clearance (EC).
Therefore, the Writ Petition as well as the
present Application could not be entertained.
It is contended
that M/s. Polychem Ltd. commissioned its factory somewhere in the year 1963 on left bank of river ‘Nira’ and was engaged in manufacture of Industrial Alcohol using molasses as raw material. Subsequently, that Industry started manufacturing of country liquor and IMFL based on Ethyl Alcohol in the year 1973. The activities of Industrial production had been expanded later on in the year 1982, 1989 and 1990 for manufacturing products viz. Vinyl Acetate Monomer (VAM), Polyvinyl Alcohol (PVA) and Acetic Acid respectively. The manufacturing facilities were taken over from Polychem Ltd. by VAM Organic Chemical in 1999 and name of the same company was changed in the year 2001 as M/s. Jubilant Organic Ltd. It was during course of the passage of time that the expansion of the Industrial activities
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had taken place and the Industry was divided in two different identities as mentioned earlier. 10.
According
to
Jubilant
Industry,
necessary
improvements have been made to meet environment standards. The old spent wash storage lagoons are re-claimed.
The
Industry has constructed new impervious lagoons in accordance with guidelines of the C.P.C.B. The effluent from the acetic acid plants is being treated in CET.
That plant is also not being
operated from December 2008 onwards. The Industry admitted that the management of molasses based distillery and allied activities have been changed during passage of the time. It is, however, denied that due to such change, the high level pollution of the river water is being caused in as much as production capacity of the Industry has been enhanced.
It is
contended that whatever discharge directly was reaching to the river water, well-water etc. has been stopped by adopting zero discharge
as
per
Corporate
Responsibility
as
per
the
Environment Protection (CREP) guidelines. The distillery unit is being run with due precaution so as to ensure that zero discharge is achieved.
It is contended that there are many
villages and industries on the bank of river ‘Nira’. The domestic sewage, inclination of dead body, effluents discharges from other industry and water left out from washing of vehicles/clothes etc. is directly discharged in the river ‘Nira’ and that may be the reason for contamination if it is so found.
In any case, the
Industrial Activities of Jubilant Industries are not causing any environmental
damage,
water
pollution
or
threat
to
the
environment as alleged by the Applicants. On these premises,
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Jubilant Industry and other two merged industries sought dismissal of the Application. 11.
Applicant No.1 Janardan filed Affidavit in re-joinder and
reiterated the averments made in the Application. His Affidavit shows that the claim of the Jubilant Industry is denied.
He
relied upon Reports of the Government Agricultural Laboratory in support of the Affidavit in re-joinder. He also filed additional Affidavit. 12.
There is Affidavit of Rajendra Dhumal who is inhabitant
of village Nira, Tq. Purandar.
He supports case of the
Applicants. 13.
On behalf of Respondent no.1 and 9 Dr. A. Mehrotra
filed his reply-Affidavit dated March 5th, 2014. Affidavit
shows
that
environmental
clearance
His reply(EC)
dated
December 23rd, 2008 was accorded by following due procedure prescribed vide EIA Notification dated September 14th, 2006. His Affidavit shows that Jubilant Industry has submitted six (6) monthly compliance report as per General Condition No.(ix) of the EC letter dated December 23rd, 2008.
He denied that the
environment clearance (EC) was granted without considering the probable environmental impacts and the fact that the Industrial Activities
will
impair
environment
and
ecology
in
the
surrounding area of the Industry. 14.
On behalf of the Respondent Nos.3 and 4, Regional
Officer of the M.P.C.B. filed reply-Affidavit.
So also, an
additional affidavit is filed by Shri Anil Mohekar on February 4 th, 2014 after filing of the amendment Application. According to the M.P.C.B., it has prepared Status Reports from time to time. The
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compliances were periodically monitored by the M.P.C.B.
The
juxta-position as available is spelt out in the Status Report prepared by Regional Officer of the M.P.C.B., Pune. The Status Report refers to monitoring work done by ‘NEERI’. The Report shows that Jubilant Industry has obtained consent to operate from the M.P.C.B. on May 21st 2013 which is valid up till end of February 2016 for production of Acetic Ethyl Alcohol, Acetic Anhydrate liquid CO2.
It is stated that the Industry has
discontinued manufacturing of acetic acid and acetate from 2009 onwards. Jubilant Industry has four (4) number of coal and two (2) number of biogas based boilers to meet the process steam requirement utilizing about 150—300 TPD of coal & 5000—45000 M³ in boiler, bio-gas per day generated from 400-1200 m3 day of Distillery effluents.
The details of Effluent
Treatment are shown in the Report. 15.
The M.P.C.B. Report, however, shows that four (4) dug/
bore wells showed existence of coloured water and five (5) wells exceeded limits of Alkanity than prescribed norms of 200 ppm. The report further shows that water in Buvasaheb Nala and an Arm of river flowing parallel to HRTS was found to be deep brown in colour. It was found that samples of water upstream and downstream of Buvasaheb Nala, Saloba Nala had low DO (Dissolved Oxygen). It was further observed that percentage of Fluorides was high at location of Saloba and Buvasaheb Nala. COD was high in three (3) samples. Oil and grease exceeded in three (3) out of eighteen (18) samples.
Thus, the Report of
M.P.C.B. shows certain deficiencies in Control Measures of the Jubilant Industry.
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16.
From the pleadings of the parties, it may be gathered
that Jubilant Industry, which is now having two (2) different identities i.e., Respondent No.2A and Respondent No.2B are the main contesting parties in the present litigation. The M.P.C.B. is Regulatory Authority.
The allegation against the M.P.C.B. is
that complaints of the Applicants and other inhabitants of the villages are not properly addressed and no serious action has been taken against Jubilant Industry.
The grievance of the
Applicants
MoEF
against
Respondent
No.1
is
that
the
environment clearance (EC) for expansion of the project activities is granted without following due process and environmental norms. 17.
Considering rival pleadings and the nature of dispute,
we deem it proper to frame following issues for adjudication of the Application : (i)
Whether the disposal of the earlier Writ Petition
No. 44 of 2001 bars the present Application due to Application of the principle of res-judicata ? (ii)
Whether the contamination of water can be
attributed to Industrial mis-managed discharge of effluents of Jubilant Industry and has resulted into damage to the fertility of the agricultural lands or the Flora and Fauna in the area ? (iii)
Whether remedial measures are necessary to
arrest the water pollution, if any, caused by Jubilant Industry ? If yes, what measures shall be adopted ? (iv)
Whether Jubilant industry is liable to pay any
damages for loss caused to the environment and
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particularly loss to the agricultural lands of the villagers due to loss of fertility ?
If yes, to what
extent and to whom ? (v)
Whether the environmental certificate dated
23rd September 2008 is liable to be set aside and the Jubilant Industry shall be directed to stop expanded Industrial activity undertaken in terms of the said Environmental Clearance ? 18.
Before we proceed to deal with the above issues, it may
be mentioned that the Applicants have amended the Application to certain extent in view of the intervening developments. They have not, however, filed comprehensive amended Application as such. They have only filed memorandum containing the portion of amended pleadings.
According to them, the Ambient Air
Quality standards have been changed as per Government gazette dated November 18th, 2009 and therefore, revised environment policy should be looked into.
They submit that
pollution of the water due to addition of chemical called “Melanoidina” in the distillery effluents is the reason of change in the water colour which makes it rather dark like brown or coffee colour. They further submit that the cause of action has continued because the pollution has remained unabated and as such, the Application can be duly considered. 19.
In the wake of these amendments, Jubilant Industry
filed Misc. Application No.45/2014 seeking recalling of order dated January 13th, 2014 by which the amendment of the original petition was allowed. It is alleged that Jubilant Industry would have certainly resisted the prayer for amendment of the
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pleadings but was not given due opportunity.
It is contended
that amendment could not be allowed without hearing Jubilant Industry which is the main contesting party and is likely to be affected by such order.
It is an admitted fact, however, that
none had appeared for Jubilant Industry on the stipulated date i.e. January 13th, 2014.
Because the matter was transferred by
the Hon’ble High Court, it has to be gathered that the parties were aware of the date fixed in the matter.
The Counsel for
Respondent nos.3 to 6 had appeared before the Tribunal.
All
said and done, the amendment is not of substantial nature, nor it causes any prejudice to the rights of Respondent No.2 Jubilant
Industry.
The
intervening developments.
amendment
only
highlights
the
So far as the procedural part is
concerned, it may be stated that Section 19 of the National Green Tribunal Act 2010 gives flexibility to the Tribunal in such matters. The procedural Rules of the Code of Civil Procedure are not applicable to the proceedings before the National Green Tribunal.
Unless certain adverse order is to be passed which
will cause serious impact on the rights of party, it may not be essential to hear the party. The provision of Section 19 of the National Green Tribunal Act shows that only principles of natural justice need to be followed. In this view of the matter, the objection raised by Jubilant Industry is over-ruled and the Misc. Application (45 of 2014) is dismissed.
It be treated as
disposed of accordingly. 20.
There are
other Misc.
Applications bearing Misc
Application No.43 of 2014 filed by Rajendra Dhumal, Ajit Kamble, Sachin Morey. Another one is filed by Jubilant Kamgar
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Union for intervention.
They have sought intervention in the
proceeding for different reasons. The first three (3) Applications are filed by private Applicants on the ground that they are interested in protecting the environment. They submit that their presence in the proceeding will be helpful to the National Green Tribunal for efficacious adjudication of the Application.
It
appears that they wish to support the Application. We do not find their intervention is needed. Hence, the Misc. Application No. 43 of 2014 is dismissed. 21.
Misc. Application No.72 of 2014 is filed by the Workers
Union. The Workers Union allege that the Members of the Union will be sufferers if the factory units are closed down. They allege that
there
are
600—700
persons
depending
upon
the
employment of the Industry, apart from the contractual workers. Their source of earning will be taken away if the Industrial Activities are stopped.
Hence they seek intervention on the
ground that they are likely to be adversely affected if any adverse order is passed against the Jubilant Industry. In our opinion, Jubilant Industry is capable of protecting interest of its workers. Moreover, the Application is not supported by documents to show enrolment of the workers and the registration of the Union. We do not think it necessary to allow the Workers Union to intervene in the matter because it is not the Industrial dispute in which the workers will have any particular role or defence as such.
Therefore, the Misc. Application No.72 of 2014 stands
dismissed and is disposed of accordingly. Re. : (i) :
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22.
For the purpose of examining this issue, it would be
appropriate to consider the tenor of the Writ Petition i.e. W.P. (PIL) No.44 of 2001. True it is, that the Applicants had filed said Public
Interest
Litigation
(PIL)
against
the
Respondents,
including Jubilant Industry, on identical grounds. By an order dated October 24th, 2001, the Hon’ble High Court passed certain interim directions while adjourning the matter to the first week of January, 2002. The interim directions were, however, rather limited to the extent of directions to the M.P.C.B. to verify the claim of Jubilant Industry which had alleged that it does not discharge even a drop of its effluent into any of the existing lagoon and no effluent is discharged in the river. The interim directions can be culled out as follows : i)
The
M.P.C.B.
shall
verify
whether
effluent
is
discharged by Jubilant Industry or that it is not so discharged in the river ‘Nira’. ii)
In any event, the effluent treated in by Jubilant
Industry should be tested and in it so, the M.P.C.B. shall take into account the parameter laid down in the statute/Rule. If the M.P.C.B. comes to the conclusion that no effluent is discharged by Jubilant Industry into river ‘Nira’ and else where and that the effluent effectively treated at its own Effluent Treatment Plan (ETP), no further action may be necessary. iii)
Further if it is found that any part of its discharge in
river or elsewhere is contributing to environmental or water pollution the board by reference to parameter laid down, by the statute/Rules and if it found that it does not
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conform to the standards laid down, the Board to take appropriate action. iv)
The only direction which we wish give to the Board is
to find out the contamination/pollution.
If the River is
polluted upstream on account of the activities of any other units, it should take action against those units.
If it is
found that the pollution of the River water is only on account of percolation from the spent wash lagoons, obviously, we have to wait for some time till the lagoons are dried up. 23.
Now, it may be gathered from further proceedings in the
matter that the W.P.(PIL) No.44 of 2001 was finally disposed of by the Hon’ble High Court on basis of Affidavit of Shri. D.B. Boralkar, Member Secretary of M.P.C.B. and Visit Report dated January 29th, 2006 filed in the proceedings of the said Writ Petition. In order to locate the edifice of the final order, we deem it proper to reproduce the entire text of paragraphs (3) and (4) of the said order which are brief and give the conspectus of the reasons why the Hon’ble High Court thought it fit to dispose of the said Writ Petition. The relevant part of the order reads as follows : “It appears that the site of respondent No.2-Industry was inspected on 29th January, 2006.
The visit Report
summarizes its observations : “(A)
During the visit, distillery is operated for 60 KLPD
capacity and effluent generation is about 720 Mᵌ/day. Secondary treated effluent is used for ferti-irrigation. (B)
The industry has provided two Nos. of impervious
lagoons for temporary storage of primary treated effluent (BME) having capacity of 14,000 CUM and 25,000 CUM. 18 (J) Appln. No.7(THC) of 2014 (WZ)
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Industry has also provided one no. of impervious pond of 45,000 CUM capacity for the storage of secondary treated effluent in their own land. (C)
The industry had submitted time-bound programme
for the utilization of old spent waste stored in old lagoons and accordingly the total spent accumulated have been utilized in the bio-compositing process. (D)
For the treatment of spent wash industry has
provided primary treatment (Bio-reactive) and secondary treatment plant. impervious
The treated effluent is stored in the
lagoon and
pond before
it is used for
compositing and ferti-irrigation purpose. (E)
The industry has already submitted comprehensive
ferti-irrigation scheme in consultation with Rahuri Krishi Vidhapeeth to the Board and the same is implemented. (F)
The industry has scrapped all the old lagoons step
by step upto 31-12-2005 and reclaimed by using soil and fly ash. However, it is observed that latest two scrapped lagoons need to leveled. (G)
The
industry
has
commissioned
the
Bio-
methanation plant in the month of July 2002. (H)
The industry has approached to the Commissioner
of Imports through ICMA (Indian Chemical Manufacturing Association) on 10th of August 2004. But no response was given by them. The industry has carried out E/A study regarding the quality of Nira River Water D/s of factory with regards to flora and fauna though M/s. Mahabal Enviro Engineers and the same was submitted to the Board. (I)
The
industry has submitted the summary of
feasibility report of NEERI for HRTS in which NEERI has recommended to take trials of HRTS at Nira and trials are being carried out in 10 Acres of land which was verified during the visit. The Eucalyptus trees are planted and the growth is about 10 Mtrs. height, in 5 acres within three years. (J)
The industry had submitted Bank Guarantees and
renewed it from time to time. 19 (J) Appln. No.7(THC) of 2014 (WZ)
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It transpires therefrom that the respondent No.2 industry has complied with the interim directions issued on 17th March, 2001. The Affidavit of Mr. D.B. Boralkar also records that the respondent-Industry has complied with interim directions on 17th March, 2001 and that the lagoons have been reclaimed in all respects. In view thereof, nothing further remains to be done in the Writ Petition.
It is disposed of accordingly.
No
Costs. Sd/- (R.M. LODHA, J.) Sd/- (ANOOP V. MOHTA, J.)” 24.
We have reproduced the above two (2) paragraphs in
view of the contention raised on behalf of the Jubilant Industry that the present Application is barred by principle of “resjudicata” due to the earlier round of litigation and orders of the Hon’ble High Court.
Shri. Ravi Kadam, learned Sr. Counsel
would submit that after above order of the Hon’ble High Court, it is necessary to go ahead and see whether any cause of action has arisen thereafter due to further developments and the Applicants cannot be permitted to go back to re-agitate the same grievances founded on the same cause of action. He invited our attention to order dated February 7th, 2013 passed by the Hon’ble High Court (Coram : A.M. Khanvilkar & K.K. Tated, JJ.). By that order Director/Secretary of ‘NEERI’
was requested to
appoint competent person to inspect the site and surrounding area referred in the Writ Petition (PIL) No.240 of 2009 and submit report in respect of Air and Water Pollution level, if any. It is further argued by learned Sr. Counsel Shri. Ravi Kadam 20 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
that the Hon’ble High Court noted that Jubilant Industry has complied with the interim direction issued on March 17th, 2001 and nothing further remained to be done in the context of earlier Writ Petition (PIL) No. 44 of 2001 and as such, it was disposed of which does imply that the issue of Water and Air Pollution qua Jubilant Industry is foreclosed.
It is further argued that the
Applicants cannot be permitted to rake up the same issues again and again which will make it difficult to put an end to the litigation.
The learned Sr. Counsel would submit that if any
compliance is yet to be done, then the Applicants are at liberty to approach the Hon’ble High Court.
He would submit that
Fora of National Green Tribunal cannot be used for execution of the directions issued by the Hon’ble High Court. 25.
We have given our anxious thought to the submissions
of learned Sr. Counsel Shri. Ravi Kadam. What we find from the order of the Hon’ble High Court is that the earlier Writ Petition (PIL) No.44 of 2001 was disposed of on the basis of inspection report submitted by the M.P.C.B. and the Affidavit of Dr. Boralkar. The order of the Hon’ble High Court shows that the Jubilant Industry had submitted ferti-irrigation scheme in consultation with Rahuri Krishi Vidyapeeth to the Board and the same is implemented.
The Industry carried out EIA study of
water quality in ‘Nira’ river with regards to flora and fauna through M/s. Mahabal Enviro Engineering and the same was submitted to the Board.
It is further stated that Jubilant
Industry has submitted the summary of viability report for HRTS in which ‘NEERI’ has taken trials of HRTS and Trials have been carried out within 10 Acers of land which was verified during
21 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
visit. The eucalyptus trees are planted and growth is about 10 mtr. high in 5 acers within three (3) years. 26.
So, what major achievement is done after the interim
order is that the lagoons were re-claimed in all respects.
The
other infirmities are agreed to be removed by submitting time bound programme, submitting the compliances to the Board etc. Needless to say, the final order dated 8th February 2006 was passed in the Writ Petition (PIL) No.44 of 2001 on basis of the Affidavit of Shri. D.B. Boralkar, Member Secretary and on visit report
of
the
M.P.C.B.
As
a
matter
of
fact,
relevant
environmental issues were not decided on merits.
Nor,
particular issues were dealt with. What appears from the order is that the Water quality of the river was examined through M/s. Mahabal Enviro Engineering and the report was submitted to the Board. We do not know whether the M.P.C.B. had accepted that report.
We also do not know whether the Hon’ble High
Court accepted the said report. All said and done, the Hon’ble High Court did not give any finding to the effect that Jubilant Industry was not responsible for discharge of any effluent nor any pollution was being caused due to the discharge of any effluents or spent wash of the said Industry in ‘Nira’ river. There is no finding of the Hon’ble High Court about water quality of the ‘Nira’ river. 27.
In our humble opinion, the order of the Hon’ble High
Court, which does not categorically give any finding to the effect that Jubilant Industry is non-polluting Industry and was not discharging any pollutant in the water body of river ‘Nira’, the principle of “res-judicata’ cannot be invoked in the facts and
22 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
circumstances of the present case. We cannot over-look that the environmental litigation is not strictly adversarial in nature. The ‘lis’ is not between the parties as such but it is between the environment and the alleged polluter of environment. It is aptly said that rivers, mountains, trees, birds, flora and fauna have no language, particularly, in legal parlance and, therefore, they speak through human beings. Such kind of litigation is partly inquisitive and partly adversarial. 28.
Coming
to
question
of
applying
the
Rule
of
constructive “res-judicata” in the facts and circumstances of the present case, it need not be reiterated that the Writ Petition (P.I.L.) No. 44 of 2001 was disposed of in accordance with the report of M.P.C.B. which indicated compliances of the interim directions in that matter. The Hon’ble High Court of Bombay did not record any finding to the effect that Jubilant Industry was not responsible for causing pollution to the water body of river ‘Nira’ due to discharging of the Industrial effluents.
It may be further
noted that the subsequent litigation, Writ Petition (P.I.L.) No. 240 of 2009 was filed in order to protect interest of the public members, raising issues of public importance. The Apex Court in “Rural Litigation and Entitlement Kendra Vrs. State of U.P.” 1989 Supp.(1) S.C.C. 504, declined to apply the Rule of constructive “res-judicata” to a P.I.L. raising issues of public importance on the ground that in a P.I.L. the disputes raised were not inter-parties and that constructive res-judicata
was a technical defence, which 23
(J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
could not preclude consideration/determination of such matter.
It is observed that every technicality in the
procedural Law is not available as a defence when a matter of grave public importance is for consideration before the Court. The Apex Court further observed that even though the earlier order could be treated as final one, then also in the dispute like P.I.L., it would be difficult to entertain the plea of “res-judicata”. 29.
So also, in “V. Purushotham Rao Vrs. Union of
India and Ors.” (2001) 10 S.C.C. 305 the issue of constructive “res judicata” came up for consideration. The Apex Court noted that considering the Explanation of Section 141 of the Code of Civil Procedure, proceedings under Article 226 of the Constitution are excluded from the expression “proceedings”.
Therefore, the Code of Civil
Procedure is not required to be followed in a proceeding under Article 226, unless the High Court itself has made the provisions of C.P.C. applicable to the proceedings under Article 226. The Court further noted, that the principle of Section 11 as well as Order 2, Rule 2 C.P.C. contemplate an adversarial system of litigation where the Court adjudicates the rights of parties and determines the issues arising in a given case. Public interest litigation or a petition filed for public interest cannot be held to be an adversarial system of adjudication and the petitioner in such a case, merely brings it to the notice of the court as to how and in what
24 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
manner the public interest is being jeopardized by arbitrary and capricious action of the authorities. The Court further noted that even in the self same proceedings, the earlier order though final, was treated not to create a bar, inasmuch as the controversy before the Court was of grave public interest.
After so saying this is what the Court
observed. “In our considered opinion, therefore, the principle of constructive “res-judicata” cannot be made applicable in each and every public interest litigation, irrespective of the nature of litigation itself and its impact on the society and larger public interest which is being served. There cannot be any dispute that in competing rights between the public interest and individual interest, the public interest would override. 30.
In “Guruvayoor Devaswom managing Committee
Vrs. C.K. Rajan (2003) 7 S.C.C. 569” the Hon’ble Supreme Court considered the decisions in “Forward Construction Co. & in Rural litigation & Entertainment Kendra Vrs. State of U.P.” and reiterated that : “Although procedural laws apply to P.I.L. cases but the question as to whether the principles of “res judicata” or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case”. Apart from the legal position discussed herein above, it would be appropriate to refer Section 19 of the
25 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
National Green Tribunal Act 2010.
Section 19(i) and (ii)
read as follows : (1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice. (2) Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure. (3)
x xxxxxx
(4)
xxxxxxxx
(5) 31.
xxxxxxxx Bare perusal of the above mentioned section would
indicate that this Tribunal is not bound by the procedure laid down by the Code of Civil Procedure, 1908. It follows that the technical defence of Jubilant Industry regarding applicability of section 11 of the Code of Civil Procedure is untenable in the eye of Law. Further, this kind of litigation is not adversarial one and therefore too in view of Dictum in “V. Purushotham Rao Vrs. Union of India and Ors.” (supra) the plea of ‘Res-judicata’ is untenable. Moreover, when the Hon’ble High Court has not dismissed the Writ Petition (P.I.L.) 240 of 2009 on such a ground during period of about five (5) years in the past, before the same was transferred to this Tribunal, we do not think it proper and legal to entertain such argument advanced on behalf of Jubilant Industry.
26 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
32.
We are, of the view that unless the parties go to trial or
any finding is recorded on basis of particular material, after appreciating rival contentions, the principle of “res-judicata” will not be applicable in relation to the subsequent litigation. This is particularly more so when the environmental issues are involved. certain
For, the litigation may come to an end on basis of statement
made
by
an
Industry
to
undertake
compliances. It may be that subsequently the compliances are not
done
or
that
more
deficiencies
are
noticed
in
the
working/operation of the Industrial unit which may give rise to Air/Water Pollution.
The subsequent unabated problem of
Water Pollution or Air Pollution cannot be brushed aside on the ground that the earlier proceedings have been terminated by the Court on the basis of certain statement made by the Industry or that certain compliances which were found to be in order. For, an ETP may be found to be functioning when inspected in 2009 but if it is not well monitored and maintained properly, in 2010 it may not be found working effectively and the pollution may be noticed due to its mal-functioning. In other words, the cause of action may be continuing or may be recurring in such a case. Considering these aspects, we deem it proper to hold that the present Application is maintainable.
There is no bar of “res-
judicata” in dealing with the Application on merits. This would answer the first issue. Re : (ii) : 33.
There is no dispute about the fact that the Project
Proponent
Jubilant
Industry
submitted
Application
to
Respondent No.1-MoEF bearing Application No.MRS/021/08
27 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
dated
08-09-2008
seeking
environmental
clearance
for
expansion of molasses based distillated units from 90 KLPD to 200 KLPD and other Organic Chemical Products as well as 12 MW new captive power plant. It is imperative that Respondent No.1-MoEF ought to have conducted appropriate environmental impact assessment before considering the proposal. So also, it was essential to examine whether the objections raised by the Members of public were duly remedied by the Jubilant Industry and the post violations made were duly remedied/complied with. It was also necessary that the public hearing conducted for the purpose ought to have been meaningful in keeping with EIA Notification dated September 14th, 2006. It is nobody’s case that the expansion activities required fresh EC certificate. Obviously, the above referred EIA Notification was applicable at the relevant time. 34.
In substance, the procedure contemplated under EIA
Notification dated September 14th 2006 may be culled out and set out as below :
a. Categorization of projects - For the purpose of Environment Clearance the projects are broadly divided into two groups. Category A projects needs to be considered at the Central Government level whereas Category B projects are taken up at State Government level. The project involved herein is Category A project and thus required Environment Clearance from the Central Government.
b. Requirements of prior Environment Clearance On filing application in prescribed format i.e., Form I/Form 1-A including Terms of Reference proposed by the project proponent, the Expert Appraisal Committee for the concerned sector (in this case -Mining) constituted by the Ministry of Environment and Forests, Government of India examines the proposal and finalizes the Terms of Reference including additional Terms of Reference, if am/ for the Environmental Impact Assessment studies with specific reference to the project location and nature of proposed activities and their likely impacts on 28 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
various environmental attributes. It also prescribes the time frame for the purpose of submitting report, etc.
c. Public Consultation - Based on the Terms of Reference granted to the project, the proponent throng his appointed consultant/s conducts the field studies and gathers the baseline data to prepare a DRAFT Environmental Impact Assessment report. The draft report is submitted to Ministry of Environment and Forests, Government of India and the concerned State Pollution Control Board with the request to hold Public Hearing. The Public Hearing is conducted by the State Pollution Control Board under the supervision of the concerned District Magistrate or his nominee as required in the Environmental Impact Assessment notification. The Public Hearing is desired to be conducted at the project site or in the close proximity whichever is convenient giving minimum 30 days clear notice. The gathered public is initially briefed about the project followed by detailed presentation on the environmental aspects as provided in the draft Environmental Impact Assessment report. Subsequently, opportunity is given to all the interested persons to express their views. The views expressed are video-graphed and recorded as provided in the Environmental Impact Assessment notification. The project proponent or State Pollution Control Board officials or District Magistrate may clarify any of the doubts expressed by the public. Thereafter, the summary of the proceedings is drawn then and there and is read out in the local language. d.
Appraisal - The project proponent, if required, may revise the DRAFT Environmental Impact Assessment report based on the inputs of the Public Hearing and prepare a brief note on the compliance of the issues raised in the Public Hearing: Hie revised Environmental Impact Assessment report is submitted to Ministry of Environment and Forests for being placed before the Expert Appraisal Committee. In the meantime, the records of the Public Hearing along with video-graph are furnished by State Pollution Control Board to the Ministry of Environment and Forests. The complete Environmental Impact Assessment report and the data furnished are examined by the Ministry of Environment and Forests/Expert Appraisal Committee in detail. The Expert Appraisal Committee may or may not recommend for grant of Environment Clearance. Finally, it is for the Mini's fry of Environment and forests to take a decision for grant Environment Clearance subject to specific conditions keeping in view the precautionary principle and polluter pay principle or it mm/ reject the Environment Clearance for reasons to be recorded.
e.
Post Environment Clearance Monitoring ~ It is mandatory on the part of the project proponent to submit half-yearly 29
(J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
compliance report in respect of the stipulated conditions in the grant of Environment Clearance in hard and soft copy to the regulatory authority. It is always open for the regulatory authority to cancel the grant of Environment Clearance, if the stipulations are not adhered to or there is any danger to the human habitation and/or serious threats are posed to ecology and environment of the surrounding which were not apprehended at the time of grant of Environment Clearance.
35.
True, initially production was started by VAM Organics
in 1963 and transfer of the Industry has taken place twice. What appears from the record is that since at least year 1999 complaints were being made against VAM Organic Chemicals about pollution of water and air alleging that agricultural lands were being damaged as a result thereof. Somewhere in January 2001 VAM Organic Chemical published notice about transfer of the unit to Jubilant Industry. Needless to say, Jubilant Industry was well aware of number of complaints made by various villagers in respect of the alleged Water and Air Pollution due to discharge of effluents caused by VAM Organic Chemicals.
It
follows that Jubilant Industry took over the unit with full knowledge
that there
were
grievances
about
the
alleged
environmental damage caused, as a result of the Industrial activities of the unit. It is in the wake of such background as well as
the earlier litigation in Writ Petition (PIL) No.44 of 2001
that the issue of continuity of water pollution will have to be considered. 36.
At this juncture, it may be noted that the record shows
that Jubilant Industry appointed Consultant to conduct field studies and gathered base line data to prepare a draft of Environment Assessment Report.
So also there is nothing on
record to show that such a draft report was forwarded to the 30 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
State Pollution Control Board with a request to hold a public hearing. From Communication dated August 25th, 2008 (EX/P176) it may be gathered that minutes of the public hearing held on June 13th 2008 were drawn. Perusal of the minutes of the public hearing go to show that the grievances of public Members were noted by the Committee.
Chairman and the Committee
asked Jubilant Industry officials to clarify the objections raised by the local people. The explanation given by the official of the Jubilant Industry is that the unit was taken over in the year 1999 and highly efficient ESP is installed to control the emission from boilers.
It was also stated that the Jubilant Industry
improved the Environmental Management System to meet zero discharge. It was stated that Jubilant Industry was committed to maintain zero degree discharge for the proposed project (expansion
project).
The
minutes
of
the
meeting
were
accordingly recorded and forwarded to the authority.
The
question is whether the Expert Appraisal Committee could have over looked the earlier violations of the EC conditions, reported water pollution and also declined to examine the objections of the villagers, before granting of the Environmental Clearance Certificate in question. It is argued on behalf of Applicants that past conduct of Jubilant Industry ought to have been taken into consideration.
It is argued by learned Counsel Mr.Dighe that
without due verification of the complaints of the villagers, including the Applicants, Environmental Clearance Certificate in question could not have been issued.
He argued that the
Environmental Clearance Certificate has been issued without
31 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
considering the relevant material, particularly the adverse findings of the MPCB and the fact that show cause notice was also issued to Jubilant Industry, as to why stern action shall not be
taken
against
it.
He,
therefore,
submits
that
the
Environmental Clearance Certificate is granted without due application of mind and is liable to be quashed. 37.
This
takes
us
to
the
report
of
the
Agricultural
Laboratory of the Maharashtra State (EX-R1) (P-270).
The
report shows that downstream water of ‘Nira’ river is unfit for agricultural use. It is further explicit that the downstream water of Nimbut reservoir may cause infertility of the agricultural land and is totally unfit for agricultural use.
In other words, the
pollution at various locations of the downstream of ‘Nira’ river of village Nimbut adjoining the Jubilant Industry was found to be contaminated.
This report is in respect of the period between
15th January 2001 to 10th December 2010. Obviously, the river pollution continued even after the earlier Writ Petition (PIL) No.44 of 2001 was disposed of on the basis of the M.P.C.B. report and Affidavit of Shri. D.B. Boralkar.
So also, report of
Joint Director of Animal Husbandry, Investigation Section Laboratory Pune (ExH.R-2) (P-272) shows that near Saloba Doh of ‘Nira’ river, the water sample was found unfit for consumption of animals.
Similarly, at Panwatha (common drinking water
storage tank meant for animals) of ‘Nira’ river, the sample was found unfit for consumption of animals.
The M.P.C.B. was
called upon to give status report about the details of the plant’s effluent treatment, water consumption and compliances of the direction for controlling the pollution by Jubilant Industry. By
32 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
filing additional Affidavit, dated 4th February 2014, Shri Anil Mohekar, Regional Officer of the M.P.C.B., Pune submitted the status report. Perusal of the status report shows that the unit of Jubilant Industry is running molasses based distillery and manufactures
basic
organic
products.
The
Industry
manufactures ethyl acetate, ethyl alcohol, acetic anhydride and liquid CO₂. It appears that Jubilant Industry has discontinued manufacturing of acetate and anhydride from 2009 onwards. The effluent from distillery (spent wash) 1270 m3/day is treated through the bio-digester and Reverse-osmosis plant. The reject of the reverse osmosis plant is stored in lined lagoons and permeate is being used in distillery for molasses dilution/cooling tower.
The stored RO reject is used for bio-composting
alongwith press-mud.
The observation of the M.P.C.B. at point
2.1.3 indicate that colour of water at 4 dug-borewells was rather dark. It was found that the wells were having coloured water from 3 other sources.
In other words, the water was not
colourless as per the normal appearance of water. The Alkanity of 5 wells had exceeded the limit of 200 ppm. The observations at point 2.1.4 further go to show that water in Buvasaheb Nala and an Arm of river flowing parallel to HRTS was of deep brown colour. This is most significant indication of the fact that the water flowing under Buvasaheb Nala and at the place parallel to HRTS was found contaminated/polluted. So also, it was found that the percentage of dissolved oxygen (DO) was higher than the M.P.C.B. standards in the water of river ‘Nira’. The samples of upstream and downstream of Buvasaheb Nala and Saloba Nala as well as Nira sewage were found to bear lower percentage
33 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
of dissolved oxygen (DO).
This is additional evidence to show
that the water at the place of Buvasaheb Nala and Saloba Nala was polluted/contaminated.
The MPCB Report further shows
that at ETP outlet of Jubilant Industry and in the sewage of ‘Nira’ river the percentage of phosphates had exceeded the permissible limits. The percentage of chlorides were higher at location of Buvasaheb and Saloba Nalas.
The presence of oil
and grease had exceeded in three (3) samples out of 18 samples, collected from different places of the treated effluents.
The
samples in the river Arm which runs parallel to HRTS, sample collected from river flowing under Buvasaheb Nala, sample collected past mixing of Nira sewage were found to be contaminated due to mixing of oil and grease.
The COD
(Chemical Oxygen Demand) was also excessive than the permissible limits at the said three (3) places.
Perusal of the
report of M.P.C.B. shows that several conditions were imposed by the M.P.C.B. Still, however, the status of the conditions needed to be complied or present compliances is far from satisfactory.
No doubt, Jubilant Industry installed certain
equipments but the pollution of River water still exists. 38.
The reports of the M.P.C.B. also shown that the
Industry was not satisfactorily complying with the directions given to it. It is significant to note that the report of M.P.C.B. dated May 15th, 2007 (Ex.I)(P-133) was filed when the Writ Petition was pending before the Hon’ble High Court. That report was submitted in pursuance to the directions of the Hon’ble High Court. It is most significant to note that at point 3.0 in the report, the M.P.C.B. observed :
34 (J) Appln. No.7(THC) of 2014 (WZ)
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“3.0 : PUBLIC COMPLAINTS In the year 2000, the Complaint was received by the Board regarding water and air pollution caused due to operations of the Industry. Considering the non-compliance of environmental standards and nature of Complaints, the Board issued directions to the Industry u/s. 33A of the Water (P.& P.) Act 1974 in the month of December 2000 as why action shall not be taken against default.
After
receiving reply from Industry and extending personal hearing, interim directions were issued by the Board on 1703-2001 stipulating therein conditions regarding control of water pollution. They are summarized as follows : (a)
Industry shall restrict production activity and effluent generation
to
the
capacity
of
composting
and
incineration for total utilization thereof. (b)
Industry shall not discharge any fresh effluent into the lagoons except impervious lagoon, which be lined up properly only for the purpose of temporary storage till it is utilized for the composting or incineration purposes.
(c)
Industry shall utilize total effluent stored into the old lagoons for composting purpose by giving time bound programme for the utilization thereof.
Time bound
programme shall be submitted within one month’s time. (d)
Industry shall maintain and operate your effluent treatment plant to the fullest capacity and efficiently so as to achieve the standards laid down under the provisions of the Environment (Protection) Act, 1986 and Rules made thereunder.
(e)
Industry shall submit the details of ferti-irrigation scheme to the Board and go for ferti-irrigation in consultation with the Rahuri Krishi Vidyapeeth as agreed by Industry during the course of personal hearing.
(f)
Industry shall scrap the lagoons, which are not impervious step by step and submit the time bound 35
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programme for the same. Industry shall not utilize the old lagoons for the disposal purposes as they are not Impervious. (g)
Industry shall complete and commission the biomethanisation plant by July 2002 as agreed by Industry during the course of personal hearing.
(h)
Industry shall take immediate steps to contain the smell nuisance problem.
Industry may approach
Excise Department to review the condition about the mixing of bitterant chemical having 40 % concentration suitably.
Industry
shall
carry
out
an
impact
Assessment Study with regard to the quality of river water downstream of industry, the effect of Industry’s discharge/emission on the surrounding agricultural field and environment as well as flora and fauna and submit Report thereof to the Board on or before 30-032002. (i)
Industry shall also submit the details of the Project being implemented by NEERI for the utilization of the effluent. A copy of the Report as and when received shall be submitted to the Board.
(j)
Industry shall furnish an irrevocable Bank Guarantee of Rs.50,000/- ensuring the compliance of the above interim directions and consent conditions by collecting earlier Bank Guarantee of Rs.25,500/- which is valid upto 25-06-2001.
The fresh Bank Guarantee of
Rs.50,000/- shall be valid for a period upto one year and shall be submitted. 39.
The conclusion drawn in the report of the M.P.C.B. are
stated at point No.8.0 and may be reproduced at follows : “After
going
through
the
result
and
physical
observations, it is concluded that the ground water quality in the area is adversely affected by indiscriminate disposal of untreated/treated effluent in the past even though today
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industry has provided adequate waste water treatment facility. The quality of ground water still remains polluted in the nearby area. It will still require sufficient long time for restoration of water quality by natural process. It is observed that the riparian rights of the people for access to the good quality of water are violated and the people are deprived of quality water”.
40.
The matter does not stop here.
The M.P.C.B. issued
directions vide communication dated 17th May 2007 (Ex-II)(P148). The directions were issued by the same Member Secretary (Shri D.B. Boralkar) on basis of whose Affidavit the previous Writ Petition (PIL) No. 44 of 2001 came to be disposed of.
The
directions would show that the water pollution had continued. The directions given to Jubilant Industry further show that unabated water pollution could not be controlled by the Industry inspite of assurances and under taking to comply with the earlier conditions, including submission of an action plan for remediation of ground water quality. The Industry was directed to submit action plan for taking effective steps for re-mediation of ground water quality in the surrounding area in respect of ground
water
contamination
occurred
due
to
improper
treatment and disposal by M/s. Polychem Limited during period from 1963 to 1999 and till the lagoons were re-claimed.
The
Industry was further directed to supply drinking water to the affected people.
The Industry was informed that if no proper
reply would be given final directions will be issued in the matter.
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We do not have any material to know whether such kind of final directions were given. As stated earlier, the W.P. (P.I.L.) No.44 of 2001 was disposed of by the Hon’ble High Court vide order dated 8th February 2006, probably on basis of Affidavit filed by Shri D.B. Boralkar, Member Secretary of the M.P.C.B. dated 1 st February 2006 alongwith the site visit report. As stated before, the same Member Secretary issued the show cause notice dated 17th May 2007 after disposal of the Writ Petition (PIL) 44 of 2001. Needless to say, inspite of so called compliances claimed to have been made by Jubilant Industry, the water pollution had remained unabated. The concluding paragraph in the M.P.C.B. Report (P-147) clearly states : “Quality of ground-water still remains polluted in the nearby area.
It will still require sufficient long time for
restoration of water quality by natural process.
It is
observed that riparian rights of the people for access to the good quality of water are violated and the people are deprived of quality water. 41.
By order dated March 4th, 2014, we called upon the
Central Ground Water Board, Pune to verify and assess the report submitted by ‘NEERI’ Nagpur which was on record as well as the report of M.P.C.B. and give an independent opinion alongwith action plan in the matter. The sum and substance of the report submitted by the Central Ground Water Board, Pune is that findings and recommendations suggested by ‘NEERI’ for survey and Ground Water Quality are proper and found in order. It has been reported that the ground water quality is adversely affected by indiscriminate disposal of treated/untreated effluent
38 (J) Appln. No.7(THC) of 2014 (WZ)
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in the past.
It is further reported that high concentration for
Alkalinity, Total Dissolved Solids, Total Hardness, Chloride, Nitrate and Fluoride was observed in most of the dugwell and bore-well samples.
The report shows that the Ground Water
Contamination encountered could be attributed to leaching from closed unlined lagoons that had been in operation prior to 2006 and improper disposal of untreated and partially treated effluents in Buvasaheb Nala.
It is further observed that the
Industry has discharged treated/untreated effluent in unlined lagoons occupying an substantial area of 35 acres, during period of about 43 years, which is a cause for ground water contamination. manifested
into
It is further reported that such conclusion is the
occurrence
of
coloured
water,
high
alkalinity, heavy metals such as Manganese, Lead, Nickel and Iron in ground water over a period of time. Thus, it is more than clear that Jubilant Industry caused contamination of the water of river ‘Nira’ 42.
The action plan is submitted by M.P.C.B. alongwith its
affidavit dated March 3rd, 2014.
The said action plan is
considered by the Central Ground Water Board, Pune after discussions with ‘NEERI’ and M.P.C.B. during joint meeting held on March 12th, 2014.
The action plan submitted by the
M.P.C.B. in its affidavit dated March 3rd, 2014 is elaborate. We approve the said action plan alongwith the modifications recommended by the Central Ground Water Board, Pune. We also direct the M.P.C.B. to add the measures Á’, ‘B’, ‘C’ as recommended by the Central Ground Water Board, Pune in addition to the recommendations in the action plan alongwith
39 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
the modifications. For example, the recommendation of Aquifer Remediation
for
meeting
ground
water
quality
i.e.
recommendation ‘A’. Acquifer Remediation and recommendation plan i.e. Recommendation ‘B’ and the ground water levels and quality mechanism i.e. recommendation ‘C’ stated in the report of CGWB shall be part and parcel of the remedial measures which shall be implemented by the Industry (Respondent Nos.2, 2A and 2B) alongwith M.P.C.B. report and the recommendations with modifications suggested by the CGWB. In this view of the matter, we do not find it necessary to reproduce the entire action plan enumerated in the report dated March 19 th, 2014 filed by the Central Ground Water Board, Pune. 43.
Perusal Affidavit of Shri Amit Gupta, filed on behalf of
Jubilant Industry go to show that the remedial steps were being taken and the Industry is ready to take further steps. According to Jubilant Industry, the water pollution is attributable to various
other
Industries
and
Municipal
sewage.
It
is
categorically denied that industrial effluent is discharged by Jubilant Industry in ‘Nira’ river.
The record, however, speaks
otherwise. We find from the record that the water of river ‘Nira’ is polluted at the place of flow under Buvasaheb Nala. It appears that Buvasaheb Nala is situated within the premises of Jubilant Industry. So also, Saloba Nala is situated within proximity of effluent discharge out let of Jubilant Industry.
There is no
reliable material on record to show that any other substantial contribution is being made by Municipal sewage or other Industrial effluents for the contamination of ‘Nira’ river.
We
cannot expect proof against Jubilant Industry upto the hilt in
40 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
order to prove such issue. Under the circumstances, we have no hesitation in holding that the issue No.(ii) is duly proved and as such it is answered in the affirmative. Re : (iii) and (iv) : 44.
There is sufficient evidence on record to show that
certain agricultural lands of the villagers are damaged due to the environmental loss caused on account of pollution of river water of ‘Nira’.
The reports of the agricultural department would
indicate that at some places the water is unfit for agricultural use. The claim of the Jubilant Industry that H.R.T.S. is effective and the waste water/spent wash are used for plantation after recycling is untenable.
The growth of small plants cannot be
equated with afforestation and rearing of trees within the premises of Industrial Unit. The negligible activity of plantation cannot be treated as afforestation. 45.
Thus, there is no proper remedial measure undertaken
by Jubilant Industry. There is no substantial reason to discard version of the Applicants that farmers have suffered agricultural losses due to the water pollution caused by Jubilant Industry which could be, ofcourse, legacy of the past to some extent i.e. derived from VAM Chemicals.
Still, however, when Jubilant
Industry got the unit with all the liabilities, then, it must be held accountable for the loss caused to the farmers. This is a fit case in which the principle “polluter’s pay” is applicable. We cannot over-look mandate of Section 20 of the National Green Tribunal 2010 which provides that the Tribunal shall follow the principle of
“Polluter’s
pay”
besides
the
principle
of
sustainable
development and precautionary principle.
41 (J) Appln. No.7(THC) of 2014 (WZ)
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46.
We may take brief survey of settled legal position in
the context of pollution of water bodies. The Apex Court in “Tirupur Dyeing Factory Owners Vrs. Noyyal River A. Protection Association & Others, 2009 (9) S.C.C. 739” took survey of the relevant case law viz. : (i)
Indian Council for Enviro Legal Action and Ors. Vrs. Union of India (UOI) and Ors. (1996) 3 S.C.C. 212.
(ii)
Vellore Citizens’ Welfare Forum Vrs. Union of India (1996) 5 S.C.C. 647
(iii) People’s Union for Civil Liberties Vrs. Union of India, (1997) 3 S.C.C. 433 : (1997) SCC (Cri) 434. (iv)
A.P. Pollution Control Board Vrs. Prof. M.V. Nayudu, (1999) 2 SCC 212.
(v)
M.C. Mehta Vrs. Union of India, (2009) 12 SCC 118.
47.
The Apex Court held that the Members of “Tirupur
Dyeing Factory Owners Association” caused unabated pollution on account of discharging the Industrial effluents into Noyyal river to the extent, that the water of the river was neither fit for irrigation nor potable. It is observed : “They cannot escape the responsibility to meet out the expenses of reversing the ecology. They are bound to meet the expenses of removing the sludge of the river and also for cleaning the dam.
The principles of
“polluter pays” and “precautionary principle” have to be read with the doctrine of “sustainable development”. It becomes the responsibility of the members of the 42 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
appellant Association that they have to carry out their industrial activities without polluting the water” 48.
The facts of the present case would show that legal
position considered and made applicable in case of “Tirupur Dying Factory Owners Association” (supra) is applicable herein. There is no escape from conclusion that Jubilant Industry is liable to pay damages caused due to the water pollution, restore the environment and ensure that there shall be no further pollution in the river “Nira” due to discharging of industrial effluent of the units run by the Industries. 49.
Though, it appears that certain loss is caused to the
fertility of the agricultural lands of the villagers in the area yet, quantification of the loss is rather a difficult task. We do not have any mechanism to assess such a loss. We, however, deem it proper to consider the fact that the agricultural lands in the proximity of the Industrial Unit which may fall within a radius of about two (2) k.m. of Buvasaheb Nala and Saloba Nala need to be inspected for such purpose. The loss of fertility to the land/s can be assessed by a Committee constituted for such purpose. We hold that Jubilant Industry is liable to pay the damages for losses caused to land owners, to bear cost of remediation and also to ensure zero discharge effluent in River ‘Nira’.
This
answers the issue Nos.(iii) and (iv). Re : (v) : 50.
So far as legality of Environment Clearance Certificate
dated December 23rd, 2008 is concerned, we are of the opinion
43 (J) Appln. No.7(THC) of 2014 (WZ)
(National Green Tribunal, (WZ) Pune
that such a question does not survive. Learned Sr. Counsel Shri Ravi Kadam would submit that the Applicants failed to avail Appellate remedy by filing an Appeal before the National Environment Appellate Authority and therefore, now the said certificate cannot be challenged.
He further argued that the
issue about legality of the Environment Clearance Certificate cannot be agitated before the National Green Tribunal. We are of the opinion that now such issue has become merely academic. The validity period of the Environmental Clearance has lapsed in the last week of December 2013. We have been informed that due to financial problems and dwindling of market rates for the products, production of certain products is stopped.
Be that
may as it is, now it is not necessary to consider whether the Environment Clearance Certificate dated December 23rd 2008, is legal and valid. Consequently, it will have to be said that issue No.(v) does not survive for consideration.
It is accordingly
answered. 51.
The net result of the foregoing discussion is that there is
reliable evidence to draw inference about continuation of Pollution caused to water of ‘Nira’ river as a result of discharging of Industrial effluent/spent wash by Jubilant Industry. water pollution has remained unabated.
The
The so called efforts
taken by Jubilant Industry were inadequate and did not completely stop the water pollution. The lagoons have dried up. The mere fact that old spent wash storage without lagoons are re-claimed, cannot be deemed as adequate measures. Nor it can be said that installation of new ETP for treatment of effluent for the Acetic Acid plant will diminish the water pollution and can
44 (J) Appln. No.7(THC) of 2014 (WZ)
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be the solution to deal with continuous pollution of the river water.
We are not satisfied with assurances of Jubilant
Industry. In view of the findings recorded on the relevant issues and the foregoing discussion, we are inclined to allow the Application and pass the following order/directions :
(i)
The Application is allowed.
(ii)
The Respondent Nos.2, 2A and 2B or any other industry which may take over the unit/units shall not discharge effluents of the Distillery/spent wash of the Industry in Buvasaheb Nala and Saloba Nala or any part of the River ‘Nira’.
(iii)
The recommendations of ‘NEERI’ and CGWB shall be complied with by the Respondent Nos.2, 2A and 2B which shall be regularly monitored by the MPCB
(iv)
The MPCB shall give appropriate directions to the Respondent Nos.2, 2A and 2B in case zero discharge status is not achieved within period of three (3) months hereafter, including directions under Section 33 of the Water (Prevention of Pollution) Act, 1980.
(v)
The Collector, Pune shall constitute a Committee consisting of : (a)
An Additional Collector (Chairperson),
(b)
Regional Officer of MPCB (Co-ordinator)
(c)
A nominee of the Krishi Vidyapeeth, Pune (expert in soil testing and fertility, loss of fertility due to water pollution) and having adequate
knowledge
about methodology to
45 (J) Appln. No.7(THC) of 2014 (WZ)
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quantify such loss in terms of money. (As nominated by the Vice-Chancellor). (d)
A nominee of Central Ground Water Board, Pune (As nominated by its Director) The above Committee shall inspect the land
area within radius of two (2) km of Buvasaheb Nala and Saloba Nala within period of three (3) months hereafter.
The Committee may take help of any
expert and/or Cadastral Surveyor. shall
cause
evaluation
of
loss
The Committee caused
to
the
agriculturists, if any, due to discharging of industrial effluents in the assessment
may
water
of
be
done
River ‘Nira’ after
soil
which testing,
examination of the past revenue assessment and other relevant factors.
The loss, if any, is noticed
then it also be stated with reference to identify of the land owner/occupier.
The cost of inspection and
work of committee is to be borne by Jubilant Industry which the Collector shall recover, if not paid, as if it is land revenue arrears. (vi)
The Respondent No.2, 2-A and 2-B shall tentatively deposit amount of Rs.25,00,000/- (Rs. Twenty five lacks) in the office of the Collector, Pune in eight (8) weeks and shall be liable to deposit/pay any further amount,
if
so
required,
for
the
purpose
of
disbursement to be made by the Collector, Pune on basis of report of the aforesaid Committee.
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(vii) The report of aforesaid Committee shall be submitted to the Tribunal within period of six (6) months hereafter.
A copy of said Report be given to the
Respondent No.2, 2A and 2B. Any objection on the said Report, if has to be filed, may be filed within two (2) weeks thereafter. undertake
the
work
The Collector, Pune shall for
disbursement
of
compensation to affected land owners/occupiers as may be further directed on basis of such Report if it is so accepted fully or in part, as per further orders of this Tribunal. (viii) In case the Respondent Nos.2, 2-A and 2-B will fail to deposit above amount of Rs.25,00,000/- (Rs. Twenty five lacks) in the office of Collector, Pune, it shall be recovered as if it is land revenue arrears under the Maharashtra Land Revenue Code, 1966, by the Collectorate, Pune by attachment and sale of the Industrial Units, stock and barrel. (ix)
The M.P.C.B. shall issue necessary directions to Respondent 2, 2A and 2B in next four (4) weeks for securing the time-bound remedial measures, as recommended by ‘NEERI’ and also the MPCB alongwith the further recommendations of the Central Ground Water Board, Pune as per the report of CGWB dated March 19th, 2014, which comprehensively shall be treated as part of the directions of this Tribunal for the purpose of remedial measures that should be adopted. The 47
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costs
of
remediation/restitution
shall
be
estimated by the MPCB. If the measures are not complied
with
by
the
Industrial
units
in
prescribed time limit, the same shall be recovered by MPCB from the Industry and the compliances shall
be
ensured
through
the
independent
machinery at the costs of the Industry. (The direction is being issued U/s. 15(b) and (c) of the National Green Tribunal Act 2010). (x)
The
Respondent Nos.2,
2A
and
2B
shall pay
Rs.20,000/- (Rs. Twenty thousand only) to the Applicants as costs of the Application and shall bear their own.
……….…………….………………., JM (Justice V. R. Kingaonkar)
..…...….…….……………………., EM (Dr. Ajay.A. Deshpande)
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