Ashok vs Uttar Pradesh Pollution Control Board on 16 March, 2022

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National Green Tribunal

Ashok vs Uttar Pradesh Pollution Control Board on 16 March, 2022

1. Grievance in this application is against operation of stone crushers and other such industries in District Agra in violation of environmental norms. Particulars of the industries are given as follows:-

"

           Sr.                   Name and address of unit
           No.

1. M/s. Shri Vaishno Devi Stone Industries, Gata No. 14, Mauza Devri Taantpur Road, Before Kachpura, Block- Jagner, Tehsil Kheragarh, District Agra.

2. M/s. Jay Gurudev Stone Industries, Gata No. 2166/3, Mauza Gungavad, Taantpur Road, Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

3. M/s. Shri Bankey Bihari Stone Industries, Ghaskata Marg Taantpur, Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

4. M/s. Taantpur Stone Pvt. Ltd., Taantpur Tehsil Kheragarh, District Agra (Machine-2).

5. M/s. Gwal Ji Stone Industries, Gata No. 2004, Mauza Gungavad, Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

6. M/s. Shri Kaila Devi Stone Gaingsa, Gata No. 2570, 2571, Mauza Gungavad Taantpur, Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

7. M/s. Bhole Shanker Stone Gaingsa Industries, Gata No. 157, Mauza Ghaskata, Taantpur, Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

8. M/s. Jay Maa Vaishno Stone, Gata No. 2141, Taantpur, Tehsil Kheragarh, District Agra (Machine-2).

9. M/s. Radhey Krishan Gaingsa Gata No. 82, Mauza Ghaskata Taantpur Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

10. M/s. Maruti Stone Gaingsa Gata No. 80, Mauza Ghaskata Road, Taantpur Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

11. M/s. Bhole Baba Stone Industries Gata No. 178, Mauza Ghaskata Road, Taantpur Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

12. M/s. Triyembeshwar Stone Industries Gata No. 2582/1, Mauza Gungavad Taantpur Road, Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

13. M/s. Shri Jai Durge Stone Gaingsa Gata No. 95, Mauza Ghaskata Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

14. M/s. Mittal Stone Industries Gata No. 2145, Zindpur Road, Taantpur Block-Jagner, Tehsil Kheragarh, District Agra (Machine-2).

15. M/s. Goverdhan Stone Industries Taantpur, Block-

Jagner, Tehsil Kheragarh, District Agra (Machine-2).

16. M/s. Ganesh Stone Ghaskata Road, Taantpur Block-

Jagner, Tehsil Kheragarh, District Agra.

17. M/s. Maa Bhagwati Stone Gaingsa, Taantpur Block-

Jagner, Tehsil Kheragarh, District Agra (Machine-2).

18. M/s. S.S. Stone, Ghaskata Road, Taantpur Block-

Jagner, Tehsil Kheragarh, District Agra.

19. M/s. Baba Amar Nath Stone Ghaskata Road Taantpur Block-Jagner, Tehsil Kheragarh, District Agra. (Machine-

2)

20. M/s. Bindal Stone Industries Ghaskata Road Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

21. M/s. Shriram Ji Stone Industries (Gaingsa) Ghaskata Road, Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

22. M/s. Sai Baba Stone Industries Ghaskata Road Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

23. M/s. G.G. Stone Ghaskata Road Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

24. M/s. Sidh Vinayak Stone Gaingsa Taantpur Block-

Jagner, Tehsil Kheragarh, District Agra.

25. M/s. Mata Kaila Devi Gaingsa Stone Pvt. Ltd. Ghaskata Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

26. M/s. Vinayak Stone Moosalpur Road, Taantpur Block-

Jagner, Tehsil Kheragarh, District Agra.

27. M/s. Radhika Gaingsa Industries Taantpur Block-

Jagner, Tehsil Kheragarh, District Agra.

28. M/s. Shri Krishna Stone Gaingsa Industries Ghaskata Road Block-Jagner, Tehsil Kheragarh, District Agra.

29. M/s. Shri Bankey Bihari Gaingsa Industries Ghaskata Road Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

30. M/s. Shri Radhey Krishna Stone Gaingsa Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

31. M/s. Shriram Stone Industries Gungavad Block-Jagner, Tehsil Kheragarh, District Agra.

32. M/s. Gogaji Stone Industries Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

33. M/s. Shri Taalwale Baba Stone Gaingsa Village Bhara, Block-Jagner, Tehsil Kheragarh, District Agra.

34. M/s. Pitambra Stone Gaingsa (Industries) Ghaskata Road, Taantpur Block-Jagner, Tehsil Kheragarh, District Agra.

35. M/s. D.K. Industries Ghaskata Road, Taantpur Block- "

Jagner, Tehsil Kheragarh, District Agra.

2. Violations alleged inter alia are that there is crushing of 10 feet long, 5 feet wide and 5 feet thick stones, using electricity and KVA generators, in TTZ area without requisite safeguards, resulting in pollution, in violation of order of the Hon'ble Supreme Court dated 06.12.2019 in I.A. No. 103908 of 2019 in Writ Petition (Civil) No. 13381 of 1984, M.C. Mehta v.

Union of India & Ors. It is further stated that on recommendation of the Regional Office of the State PCB dated 22.09.2018, the State PCB directed closure of the said units on 29.01.2019 but later the same have again been allowed by the State PCB on 16.03.2020, based on erroneous assumption that the same are not causing pollution. The stone crushers are also using ground water by deep boring without requisite permission. They are neither maintaining inter-se distance nor safe distance from the habitations. The pollution is adversely affecting the public health and the environment apart from being a hazard to the Yamuna river and Taj Mahal.

3. Vide order dated 27.10.2021, the Tribunal constituted a joint Committee comprising SEIAA, UP, State PCB and District Magistrate, Agra to furnish a factual and action taken report after undertaking site visit and 3 interaction with the stakeholders including the stone crushers and local inhabitants. The report was to be placed on the website of the State PCB to enable any stakeholder to file their comments. The State PCB was also to put the alleged violators to notice of proceedings before this Tribunal so that they could avail opportunity of approaching this Tribunal with their version.

4. Accordingly, report of the joint Committee has been filed on 22.02.2022 after undertaking site visit on 11.01.2022. As per the said report, some units were found operating while some units were not operating. They were extracting ground water which stand exempted by the State from regulation for the small industries. It is further stated that as per order of the Hon'ble Supreme Court dated 08.12.2021 in Writ Petition (Civil) No. 13381 of 1984, M.C Mehta v. Union of India & Ors. in I.A. No. 42482/2020, no consents are required for non-polluting units.

Relevant extracts from the report are reproduced below:-

"The Joint Committee visited the said area on dated 11.01.2022. At the time of inspection, No Stone Crushers were found established/ operational in the said TTZ area of District Agra. The units operational in Tantapur, Gugaband & Ghascuta of Tehshil- Kheragarh are small stone cutting units which cuts red stone with the help of blades and are called as Gangsaw units. The joint committee randomly visited six Gangsaw units namely (1) M/s Kaila Devi Stone Gangsaw, Gata No.-2570, 2571. Mauza-

Gugaband, Block-Jagner, Tantpur Road, Tehsil-Kheragarh, Agra.

(2) M/s Triyembeshwar Stone Industries, Gata No-2582/1, Mauza- Gugaband, Block-Jagner, Tantpur Road, Tehsil- Kheragarh, Agra.

(3) M/s Bhole Baba Stone Industries, Gata No-178, Mauza-

Ghaskata Road, Tantpur, Block-Jagner, Tehsil-Kheragarh, Agra.

(4) M/s Baba Amar Nath Stone, Ghaskata Road, Tantpur, Block-

Jagner, Tehsil-Kheragarh, Agra.

(5) M/s Vinayak Stone, Moosalpur Road, Tantpur, Tehsil-

Kheragarh, Agra.

(6) M/s Pitambra Stone Gangsaw (Industries), Ghaskata Road, Tantpur, Tehsil-Kheragarh, Agra.

During the inspection Gangsaw units at serial no. 1,2,3 found operational while Gangsaw units at serial no 4,5,6 found closed due to closure order issued by State Pollution Control Board. As per the list shown in Hon'ble NGT order dated 27.10.2021 regarding 35 units, only 16 units are operational having valid consent from State Pollution Control Board and rest of the 19 units are closed as per the direction of closure order issued from State Pollution Control Board (Annexure-4).

Each operational Gangsaw units cuts two stones blocks per day having block size approx. Met long, 5Feet wide and 5Feet thick which utilizes approx. 1.5KL water for the cutting of one block. Normally these units uses approx. 2.5KL water per day. Which is recirculate through recirculation tank and settled slurry is collected in a tank which is ultimately used in tilling of low land areas in and around Tehsil Kheragarh and adjoining areas (Annexure-5). These Gangsaw units are having registration from Micro, Small and Medium Enterprises department (MSME).

The Gangsaw units applied for Ground water NOC to CGWA in the year 2019 which are pending at CGWA (Annexure-6). Later on, as per U.P. Government Notification dt.02.03.2021 for Micro, Small and Medium Enterprises (MSME) in UP, drawing ground water less than 10 KLD are exempted from seeking NOC for ground water extraction from UP Ground Water Department. Those gangsaw units having submersible pumps have applied for registration to U.P. Ground Water Department (Annexure-

7). Some of the Gangsaw units do not have Submersible and get water for stone cutting through tankers only. However, Gangsaw Association maintaining a big pond in Tehshil- Khergarh having an area approx. 05 hectare for recharging the ground water level (Annexure-8). Stone blocks are made available from Bharatpur, Dholpur and Karoli Districts of Rajasthan. LW Set with acoustic enclosure having capacity between 62.5KVA-125KVA are used as standby mode only with proper stack heights as per norms. The Gangsaw units are operated by electricity having connection from DVVNL. Approx. 6-7 persons are engaged at the time of operation of the unit. The Gangsaw units are operational in the cluster having approx. 500-meter distance from the habitation.

Joint committee has interacted with the stack holders including Gangsaw units and the local inhabitants. The local inhabitants told that no stone crusher is being operated in the said area only Gangsaw units are operational and many of them are closed from last three years. As the village land of Tantpur, Ghaskata and Gugaband is not too much fertile and having rocky land. The only business is red stone cutting and suppling/selling of stone pieces. On the basis of inspection conducted by joint committee some short comings have been observed for which notices have been issued and short coming have been removed by Gangsaw units.

It is pertinent to mention that the aerial distance of Taj Mahal from village Tantapur, Gugaband & Ghaskata is 5 approx 67,65 & 65 KM respectively. The aerial distance of Yamuna River from village Tantapur, Gugaband & Ghaskata is approx. 68KM. As per U.P Ground Water Department Tehsil Kheragarh and Jagner block are in semi-critical zone. Department of Water Resources, River development and Ganga Rejuvenation (Central Ground Water Authority), Ministry of Jal Shakti notification dated 24.09.2020 exempts Micro and Small enterprises drawing ground water less than 10 cubic meter per day from seeking No Objection Certificate. As per U.P Government notification no. 331/76-3-2021-44NG/2020 dated 02.03.2021 the micro and small enterprises in Uttar Pradesh drawing ground water less than 10 cubic meter per day are exempted from seeking No Objection Certificate for ground water extraction from U.P Ground water Department (Annexure-9).

These Gangsaw Units located in Kheragarh Tehsil, are established before the order dated 06.12.2019 passed by Hon'ble Supreme Court in Writ Petition (Civil) No. 13381 of 1984, M.C Mehta v. Union of India & Ors. in I.A. No. 103908/2019 (Annexure-10). The relevant part of the Hon'ble Supreme Court order is as follows: -

"Point-8 As regards permission for establishing non- polluting industrial units, it appears to us that only those small, micro and macro level industries which are both non- polluting and eco-friendly and which have necessary clearances from all statutory authorities as well as concurrence of the Central empowerment Committee and NEERI, can be set-up within the notified industrial area."

Further Hon'ble Supreme Court in Writ Petition (Civil) No. 13381 of 1984, M.C Mehta v. Union of India & Ors. in I.A. No. 42482/2020 (Application for modification of order dated 06.12.2019 on behalf of Sate of U.P) clarified macro, nonpolluting and Eco-friendly on dated 29.01.2021 (Annexure-11). The relevant part of the order is as follows: -

"This application is allowed in terms of its prayer clause (a), (b),

(e) of para 10 which reads as under:

(a) That in para-8 of the order, the word "macro" has been used.

It may kindly be clarified to mean "medium", as the Ministry of Micro, small and medium enterprises. Government of India, used the word "medium" in place of "macro". The said Notification dated 29.09.2006 of Ministry is annexed here to and marked as ANNEXURE A/3.

(b) That in para-8 and 9 of the order, the phrase "nonpolluting"

has been used, which may kindly be clarified to mean the industries which are "compliant of all environment laws and norms in force" or Hon'ble Court may pass suitable order to clarify non-polluting industries.

has been used with reference to the industrial units. It would be appropriate if this Hon'ble Court may clarify that the term "ecofriendly" to mean "use of natural gas as an industrial fuel" as per judgment of 30th December 1996."

Further Hon'ble Supreme Court in Writ Petition (Civil) No. 13381 of 1984, M.C Mehta v. Union of India & Ors. in I.A. No. 42482/2020 (Application for modification of order dated 06.12.2019 on behalf of Sate of U.P) dated 08.12.2021 clarified regarding establishing industrial units on the basis of air pollution score (An n exure-12). The relevant part of the order is as follows: -

"This Interlocutory Application is filed for certain clarifications /modification of the Order dated 06.12.2019, By an Order dated 29.01.2021, clarification sought in prayer clauses (a), (b) and were made by this Court. In respect of the clarification of the Order dated 06.12.2019 pertaining to the concurrence with the Central Empowered Committee (CEC) and opinion of NEERI as mentioned in paras 8 and 9 of the Order, learned Amicus Curiae in consultation with Ms. Aishwarya Bhati, learned Additional Solicitor General appearing for the State of Uttar Pradesh submitted a note. It has been agreed that a representative of NEERI shall be included as a Member in the Environmental Appraisal Committee (EAC) and State Environmental Appraisal Committee (SEAC) constituted by the Ministry of Environment, Forest and Climate Change for dealing with industrial units falling in TTZ Area.

In respect of industrial units where the Air Pollution Score as per CPCB and UPPCB is between 11 to 20, sectorial guidelines shall be obtained from NEERI. No industrial units shall be cleared by the State till sectorial guidelines are obtained from NEERI. For those industrial units having Air Pollution more than 20, the concurrence/opinion of NEERI will have to be obtained In case of the need for felling trees to set up industrial units/projects, the matter shall be referred to the CEC for its opinion/concurrence. Where there is no need for felling of trees, a declaration shall be obtained from the industrial units/projects to that effect. The declaration shall be accompanied by an affidavit and photograph of the site along with the Key Plan of the site. The said declaration along with the other documents shall be forwarded to the concerned District Forest Officer. In case, incorrect information has been given by the declarant, suitable legal action shall be taken.

After hearing learned Amicus Curiae and Ms. Aishwarya Bhati, learned Additional Solicitor General appearing for the State of Uttar Pradesh, we modify the order passed by this Court on 06.12.2019 in respect of the prayer (d) and (e) in IA No. 42482/2020 in terms of the note referred to above."

Ministry of Environment, Forest and Climate Change, Govt. of India, imposed Ad-hoc Moratorium in minutes of meeting held on 08.09.20216 at MoEF&CC to review the status of environmental issues in Taj Trapezium Zone on the expansion and setting up of new industry (Except White category.) to control air pollution by TTZA."

Approx.16 Gangsaw units were established before imposition of Ad- hoc Moratorium after taking permission from District Industry Center, Agra and 19 Gangsaw units were established after Ad-hoc Moratorium imposed by MoEF&CC. As per the Central Pollution Control Board "Final Document on Revised Classification of Industrial Sectors under Red, Orange, Green and White 7 Categories (February 29, 2016)" Cutting, Sizing and polishing of marble stone falls under Green Category having water pollution score 15.

After receiving previous complaints from Sh. Ashok regarding noncompliance and without taking Consent to establish/Consent to operate from State Pollution Control Board, all Gangsaw units were issued closure order regarding noncompliance. After doing necessary environmental compliances by Gangsaw units established prior to the Ad-hoc Moratorium imposed by MoEF&CC in TTZ area, the closure order issued by State Pollution Control board has been cancelled and consent to operate has been issued to 16 Gangsaw units listed in the order dated 27.10.2021 of Hon'ble National Green Tribunal. Closure orders were maintained to the Gangsaw units established after Ad-hoc Moratorium imposed on 08.09.2016. These units are not Stone crusher, rather these are stone cutting units. In these units, water is used for stone cutting, which lead to accumulation of stone dust in tanks and after drying this stone dust is used for ground filling. It is relevant to point out that these units are not using any kind of fuel except electricity to run their machine.

Here it is also pertinent to inform you that the aforesaid complaint was earlier made in year 2018 before Hon'ble Supreme Court by Sh. Ashok Kumar. Taking cognizance over the said complaint, Additional Registrar, Public Interest Litigation Cells, Supreme Court of India, vide its letter dated 27.03.2019, sought report, which was sent by the office vide letter-1908/OG-616/2019 dated 27.03.2019, (Annexure-

13). There often no further direction have been received from Hon'ble Supreme Court."

5. We have heard learned Counsel for the State PCB and considered the matter.

6. We are of the opinion that the report mentions above is not complete.

The units in question may be small falling in Green Category as per classification of CPCB, as submitted by the State PCB. There can be no objection to help them in all legal ways but not be at the cost of right of other citizens to access potable water and to clean environment, including conservation of ground water meant for all. The justification that pond is being maintained can also not be accepted as a valid justification as pond is maintained by nature and it is everyone's fundamental duty to contribute to conservation of environment without in turn expecting right to extract ground water for commercial gain at the cost of need for water 8 for drinking purposes, in areas where replenishment is deficient.

Exemption from regulation of ground water cannot be absolute in view of law laid down in M.C. Mehta vs. UOI & Ors. (1997) 11 SCC 312, A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718 and A.P. Pollution Control Board II v. Prof. M.V. Nayudu (Retd.) & Ors., (2001) 2 SCC 62, Para 44-45. The State is under obligation to ensure clean environment which is part of Right to Life. Sustainable Development requires that there is no unregulated extraction of groundwater in water scarce areas so that right to drink potable water is not affected. In the present case, without any replenishment and without any regulation, blanket exemption is granted under the Notification which is against binding judgments of the Hon'ble Supreme Court and thus cannot be sustained. The Notification be revisited and be not followed till revisited in the light of law laid down by the Hon'ble Supreme Court and in the interest of protection of environment and public health. Similarly, regulation of handling of slurry needs to be ensured. The order of the Hon'ble Supreme Court in M.C. Mehta (Supra) dated 08.12.2021 of permitting small industries in Taj areas can also not mean violation of environmental norms when the so-called green category is not infact environmentally benign. Classification is tentative and subject to such activity being non-polluting. Similar is the position in respect of direction of the Hon'ble Supreme Court referred to in the stand of the PCB.

Pollution is to be safeguarded under 'Public Trust Doctrine' by the State and statutory regulators.

7. In view of above, we direct the Taj Trapezium Zone Pollution (Prevention and Control) Authority and the State PCB and other concerned Departments to hold a joint meeting within one month and prepare an action plan for remedial action having regard to the ground situation so as to support the 'Sustainable Development' principle. State PCB will be the 9 nodal agency for compliance. This will also include scientific management of slurry, installing proper Rain Water Harvesting systems, air quality norms and regulation of groundwater in the interest of rule of law and protection of environment and public health.

The application is disposed of.

A copy of this order be forwarded to the Chief Secretary, Uttar Pradesh, State PCB and Taj Trapezium Zone Pollution (Prevention and Control) Authority by e-mail for compliance.

Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM Dr. Afroz Ahmad, EM March 16, 2022 Original Application No. 259/2021 SN 10

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