National Green Tribunal
Court On Its Own Motion vs State Of Karnataka on 29 November, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
REVIEW APPLICATION NO. 02/2024
IN
ORIGINAL APPLICATION NO. 125/2017
(I.A. No.105/2024 AND I.A. No.106/2024)
IN THE MATTER OF:
COURT ON ITS OWN MOTION
...Applicant
Verses
1. STATE OF KARNATAKA
Through its Chief Secretary,
Vidhana Soudha,
Ambedkar Veedhi,
Bangalore-560001
2. LAKE AUTHORITY OF BANGALORE
Through its Chairman,
N.R Square, Bengaluru
Karnataka-560002
3. CENTRAL POLLUTION CONTROL BOARD (CPCB)
Through its Member Secretary,
Parvesh Bhawan,
CBD-cum-Office Complex
East Arjun Nagar,
Delhi-110032
4. BANGALORE WATER SUPPLY & SEWERAGE BOARD (BWSSB)
Through Chairman,
2nd Floor, Cauvery Bhavan,
KG Road,
Bangalore- 560009
1
5. BANGALORE DEVELOPMENT AUTHORITY (BDA)
Through its Chairman
Kumara Park West,
T. Chowdaiah Road,
Bengaluru -560020
6. MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE
Through its Secretary,
Indira Paryavaran Bhawan,
Jor Bagh Road,
New Delhi -110003
7. BANGALORE MUNICIPAL CORPORATION
Through its Chairman,
WHWV+6QF, Arekempanahalli,
Mavalli, Bengaluru,
Karnataka-560027
8. KARNATAKA STATE POLLUTION CONTROL BOARD (KSPCB)
Through Regional Officer
"Nisarga Bhavan", 2nd Floor,
Thimmaiah Road 7th D Main,
Shivajinagar (opposite Pushpanjali theatre)
Bangalore-560001
9. BRUHAT BANGALORE MAHANAGAR PALIKE
Through its Chairman,
Sampangi Rama Nagar,
Bangalore, Karnataka-560002
...Respondent(s)
.........
TRINITY COMPLEX APARTMENT OWNERS' ASSOCIATION
Represented by its Authorized Signatory Mr. Soubir Bose
No.25/2 Ambalipura,
Sarjapura Road,
Bengaluru - 560102
...Review Applicant
COUNSELS FOR APPLICANT(S):
Ms. Rashika Narain, Advocate for Review Applicant
Mr. Raj Panjwani, Senior Advocate (Amicus Curiae) in OA 125/2017
2
CORAM:
HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
RESERVED ON: JULY 22, 2024
PRONOUNCED ON: NOVEMBER 29, 2024
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This Review Application has been filed by Trinity Complex Apartment Owners' Association through its authorised signatory Mr. Soubir Bose, seeking review of Tribunal's judgment dated 12.03.2021 passed in Original Application (hereinafter referred to as 'OA') 125/2017, Court on its own Motion vs. State of Karnataka.
2. Before dealing with the above applications, we find it appropriate to recapitulate factual matrix in brief.
3. In the electronic and print media, news was published about environmental disaster at Bellandur Lake in Bangalore due to discharge of huge quantity of pollutant around and inside the lake. Bellandur Lake is one of the biggest lakes of the city. The photographs and clippings displayed on the television show that entire lake was on fire emitting highly pollutant gases. The media report published stated that there were thick clouds of smoke which severely hit the traffic and people living around the lake. The pile of garbage around the lake was set on fire and there was total panic. Finding that the above activities are bound to cause adverse impact on the environment, ecology and human health, this Tribunal exercised suo-moto jurisdiction, registered the matter as Suo-Moto 3 Application No. 125/2017 and impleaded following as respondents vide order dated 20.02.2017:
i. State of Karnataka through its Chief Secretary;
ii. Lake Authority of Bangalore;
iii. Ministry of Environment, Forest and Climate Change through
its Secretary (hereinafter referred to as 'MoEF&CC');
iv. Bangalore Municipal Corporation through its Commissioner/Head of the Department;
v. Karnataka State Pollution Control Board (hereinafter referred to as 'KSPCB') through its Member Secretary; and vi. Central Pollution Control Board (hereinafter referred to as 'CPCB') through its Member Secretary.
4. Notices were issued to the respondents and they were directed to submit reply.
5. Vide order dated 18.05.2017, Tribunal extended the scope to Agara Lake and Varthur Lake.
6. Tribunal issued following directions on 18.05.2017:
"We further pass the following directions:
1. All the 76 industries which have been served with the Notice of closure, as a matter of fact, should be closed. The Deputy Commissioner and the concerned authorities including authorities supplying water and electricity to these industries are hereby directed to ensure disconnection of water and electricity supply to these industries forthwith. Further the Pollution Control Board shall be provided due Police Assistance to execute the order of the Tribunal. The Board shall exercise its power vested under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 read with Section 5 of the Environment (Protection) Act, 1986 and to seize the industries, if the need arise.4
2. The Joint Inspection Team particularly of Bangalore Water Supply and Sewerage Board (BWSSB) and State Pollution Control Board shall jointly inspect all the STPs that have been installed by the Housing Societies and residential complexes and their analysis report be submitted before the Tribunal.
The STPs which are not operating, they shall give a time bound programme to bring the parameters within the prescribed limit, failing which the electricity and water supply should be disconnected to such complexes. However, reasonable time should be granted to them to comply with the prescribed parameters.
3. All the complexes which are in the catchment area of Bellandur Lake and other lakes should be directed to put up their own STPs which are capable of satisfying the prescribed parameters and do not discharge untreated sewage and waste into the lake. For this purpose Notices shall be issued forthwith and if such complexes commence the work of establishing of STP, they should be granted further time to ensure that they do not pollute by discharging of their sewage domestic waste any of the lake.
7. OA 125/2017 (supra) along with OA 217/2017, D. Kupendra Reddy vs. State of Karnataka was taken up on 06.12.2018 when a detailed order was passed. Tribunal had a retrospect of earlier orders passed on the question of contamination of water bodies at Bengaluru- Bellandur Lake, Agara Lake and Varthur Lake. It shows that first, the matter was taken up by Tribunal in 2014 in the light of the Reports prepared by Lake Development Authority, Bangalore on 12.06.2013 and Regional Office of Ministry of Environment, Forest and Climate Change (hereinafter referred to as 'MoEF&CC') dated 14.08.2013. Tribunal also referred to its order dated 07.05.2015 passed in OA 222/2014, Forward Foundation vs. State of Karnataka & Others dealing with the issue of encroachment around drains called Rajakaluves resulting in pollution of the water bodies and affecting ecologically sensitive area of the above lakes. Tribunal also referred to an order passed by Karanataka High Court 5 in Writ Petition No. 817/2008, Environment Support Group and Another vs. State of Karnataka, appointing Committee headed by Hon'ble Mr. Justice N.K. Patil to suggest remedial action to remove encroachments. Government of India issued an advisory on the subject. Still some projects were allowed to be developed within the prohibited range from the water bodies.
8. Thereafter, referring to OA 125/2017 (supra), Tribunal observed that third time, the matter was taken up on 22.02.2017 in the light of media reports. After going through various orders and reports passed from time to time, Tribunal referred to the Report dated 31.05.2018 submitted by a Committee headed by a Senior Advocate of Tribunal and considered recommendations made in the said report. Tribunal accepted report and, thereafter, issued following directions in para 26 of the order:
"26. Accordingly, having regard to the facts and circumstances, we find it appropriate and necessary to issue following directions:
i. Recommendations of the Committee dated 31.05.2018 may be carried out with a view to ensure that no polluted waste water is discharged into the water bodies and no solid waste is dumped therein. The encroachments from catchment areas must be removed. Karnataka SPCB in consultation with the CPCB may set up Real Time Water Quality Monitoring Systems in three lakes at appropriate locations to monitor parameters which are critical like Dissolved Oxygen, Ammonia and others. The online date may be displayed for information. The activities around the three lakes may also be monitored by using drones and satellite imageries.
ii. Overall responsibility to carry out these directions will be of the Additional Chief Secretary, Urban Development (UD), Karnataka and the BBMP. An action plan be prepared by the State/BBMP forthwith, within one month from today, indicating the timelines for the actions including the budgetary provisions and same should be placed on the 6 website of State UD and BBMP. Execution of such plan may be completed by 30.06.2019.
iii. The compliance of the above directions will be overseen by a Committee as follows:
A. Justice Santosh Hegde, former Judge, Supreme Court of India - Chairman B. Professor T.V. Ramachandra, Indian Institute of Science, Bangalore- Member C. Nominee of Central Pollution Control Board who should be a senior level officer- Member D. Nominee of the Karnataka Pollution Control Board- Member.
iv. KSPCB may provide logistics support to the Committee and coordinate as per directions of the Chairman of the Committee.
v. The Committee will have such powers as are necessary to ensure execution of this order within reasonable time. The State and all concerned Authorities will cooperate and provide all assistance as may be necessary. The Committee may issue necessary instructions to the authorities from time to time for the purpose. The Committee will be at liberty to co-opt any other expert or take assistance from such person or persons as may be deemed necessary.
vi. The Committee may set up its own website for receiving and disseminating information and suggestions, including inviting volunteers, as may be deemed proper. Achievements may be put on website so that the same can be replicated wherever relevant.
vii. The Committee may oversee the timelines in the action plan to be prepared by the State UD of Karnataka/ BBMP.
viii. The State of Karnataka will transfer an amount of Rs. 500 crores in an Escrow Account for execution of the action plan within one month from today.
ix. The State of Karnataka will deposit a sum of Rs. 50 crores by way of interim compensation for restoration of the 7 environment with the CPCB. For delay, an interest @ 12% will be payable.
x. The BBMP will be required to deposit a sum of Rs. 25 crores in this regard to CPCB separately in the same manner as (ix).
xi. Out of the amount so deposited, a sum of Rs. 10 crores will be transferred by CPCB to the Karnataka PCB. The SPCB will defray all expenses of the Committee to provide logistics or otherwise.
xii. The amount can be recovered by the State/BBMP from polluters and the erring officers.
xiii. The State of Karnataka will furnish a Performance Guarantee to the CPCB to execute the action plan in a time bound manner, subject to the timelines being approved by the above Committee. The Performance Guarantee will undertake to pay amount of Rs. 100 crores for the failure in the execution of the action plan before 30.06.2019.
xiv. The State of Karnataka must identify and declare the persons responsible for executing the action plan and any failure in their performance should be recorded and considered favourably or otherwise for their career progression.
xv. Similar exercise as (xiv) may be undertaken to identify officers responsible for failure in the past. Such exercise may be completed within three months from today.
xvi. Since failure of preventing the pollutants being discharged in water bodies (including lakes) and failure to implement solid and other waste management rules are too frequent and widespread, the CPCB must lay down specific guidelines to deal with the same, throughout India, including the scale of compensation to be recovered from different individuals/authorities, in addition to or as alternative to prosecution. The scale may have slabs, depending on extent of pollution caused, economic viability, etc. Deterrent effect for repeated wrongs may also be provided.8
xvii. MoEF&CC may specify limit for phosphorus in soaps and detergents to prevent damage to the environment and public health."
9. Now resuming to the merits of this review application, we find that Environment Officer, Bammanahalli of KSPCB inspected the premises of Review Applicant on 01.07.2017 and, thereafter, issued notices dated 31.07.2017 and 23.05.2018 and also directions dated 09.02.2018. Again, Environment Officer inspected the premises on 20.12.2018 whereafter, issued notices dated 04.01.2019, 24.01.2019 and 01.04.2019 and ultimately passed order dated 04.12.2019 (annexure A-23 at page 251 of Review Application) imposing environmental compensation of Rs.2.9 Crores for the period of 01.07.2017 to 30.11.2019.
10. It is not disputed before us that copy of the said order dated 04.12.2019 was received by Review Applicant on 12.02.2020. However, neither it complied with the said order nor filed an Appeal though the order was appealable nor challenged the same before any other appropriate Forum and the order attained finality.
11. The Committee appointed by Tribunal vide order dated 06.12.2018 submitted an interim Report dated 27.05.2019 and final Report dated 20.09.2019.
12. Both the reports were considered by Tribunal on 21.10.2019 and the Tribunal observed that it is evident that there is still non-compliance in critical areas in respect of the above water bodies. The observations made in para 13 are reproduced as under:
"13. Be that as it may, from the analysis presented by learned Amicus and perusal of report of the Committee there is patent non- compliance in critical areas by the State and its 9 Authorities. Beyond saying that the work was in progress, there is no specific information of the status of STPs to be constructed with learned counsel for the State. The Committee has noticed from the submissions made by the State PCB that treated water was being allowed to flow into the UGB network to mix with the sewage and then to flow into the STP to get recycled for the second time without any purpose. Fencing of the lake area to prevent encroachments has not been done. The illegal colony in the lake belt has not been shifted. CCTV cameras and watch towers have not been installed. Marshals and watchmen have not been deployed. There is no information about maintenance of buffer zones at the lakes and Rajkaluves. Compensation already determined has not been recovered on a specious plea that notification was to be issued which is wholly unnecessary to comply with the binding orders of this Tribunal. De-silting and de-weeding has not been done as directed. Road was illegally constructed within the lake by dumping C&D debris which has not been removed. There is no information about setting up of Real Time Water Quality Monitoring Systems. There is no information about action taken against the erring officers. There is also non- compliance with regard to deposit of Rs. 25 Crores by BBMP and furnishing of performance guarantee in the sum of Rs. 100 Crores by the State of Karnataka for which there is no explanation. It is not necessary to set out all the deficiencies in compliance of directions of this Tribunal. Suffice it to say that the State of Karnataka has shown lack of concern on such a sensitive matter in spite of stringent orders of this Tribunal which is not conducive to the rule of law."
13. Tribunal, thereafter, directed that those deficiencies be rectified forthwith and compliance be ensured in terms of order dated 06.12.2018. Tribunal further required presence of certain Senior Officials namely, Additional Chief Secretary, Urban Development, Karnataka; Commissioner, Bruhat Bangalore Mahanagar Palike (hereinafter referred to as 'BBMP'); Commissioner, Bangalore Development Authority (hereinafter referred to as 'BDA'); Chairman, Bangalore Water Supply and Sewerage Board (hereinafter referred to as 'BWSSB'); and Member Secretary, KNSPCB to remain present on the next date with the 10 compliance Reports and explanation as to why coercive action be not taken for violation of Tribunal's orders.
14. Thereafter, the matter was taken up on 04.08.2020 and the order was uploaded on 13.08.2020.
15. It appears that against order dated 21.10.2019, State of Karnataka filed Civil Appeal No. 9666-68 of 2019, State of Karnataka vs. D. Kupendra Reddy & Ors. before Supreme Court but vide order dated 22.11.2019, Supreme Court dismissed the Appeal.
16. This Tribunal, thereafter, considered Reports of Committee headed by Justice Santosh Hegde and after referring to reports of different departments, directed Monitoring Committee to complete left over work expeditiously and submit Compliance Report as on 31.12.2020 by 15.01.2021.
17. Review applicant, it appears, thereafter, was issued a notice dated 18.01.2021 (annexure A-26 at page 288), requiring it to deposit environmental compensation of Rs. 2.9 Crores imposed upon it vide order dated 04.12.2019.
18. Tribunal finally disposed of OA 125/2017 (supra) vide judgement dated 12.03.2021.
19. Against recovery/demand notice dated 18.01.2021, Review Applicant filed a Writ Petition No. 11220/2021, Trinity Complex Apartment Owners Association vs. State of Karnataka & Others in High Court of Karnataka at Bangalore in July 2021. High Court initially passed an order dated 19.07.2021, stating that no action shall be taken 11 against Review Applicant only on the ground of non-payment of environmental compensation of Rs. 2.9 Crores but thereafter, Writ Petition was dismissed vide judgment dated 20.03.2023 on the ground that review applicant has an alternative remedy under Section 33B of Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act, 1974'). High Court observed in para 7 of judgment that under Section 33B, the remedy of Appeal before National Green Tribunal is available against a direction issued under Section 33A of Water Act, 1974. Therefore, when alternative remedy was available, High Court refrained itself from exercising its jurisdiction under Article 226. The operative part of the judgment reads as under:
"The writ petition is dismissed.
However, liberty is reserved to the petitioner to initiate appropriate proceedings before the appropriate forum, if so advised.
The petitioner was protected by an interim order dated 19.07.2021. As such, the same shall continue for a period of four weeks.
In view of disposal of the writ appeal, pending IAs., if any, do not survive for consideration and are accordingly disposed of."
20. In the meantime, it appears that Bangalore Apartment Federation, of which, Review Applicant claims to be a member, filed Civil Appeal No. __ of 2022 (D. No. 21225 of 2022), Bangalore Apartment Federation vs. State of Karnataka & Others in Supreme Court, challenging Tribunal's judgment dated 12.03.2021 on the ground that it was not heard by Tribunal though it had filed an impleadment application. The Appeal was disposed of vide judgment dated 26.08.2022 by Supreme Court, permitting the appellant-Bangalore Apartment Federation to move review 12 or otherwise application before Tribunal and the same was required to be disposed of by Tribunal. Supreme Court's order reads as under:
"1. Permission to file the appeal granted.
2. Delay condoned.
3. The primary grievance which has been urged by Mr Shreyas Jayasimha, learned counsel appearing on behalf of the appellant, is that though an impleadment application was filed by one of the directors of the Bangalore Apartment Federation before the National Green Tribunal, no hearing has been afforded in that IA and several directions which have been issued by the NGT would affect the appellant.
4. If that be the grievance, we permit the appellant to move appropriate proceedings by way of review or otherwise before the NGT, as maintainable in law.
5. Subject to the grant of permission in the above terms, the appeal is disposed.
6. Pending application, if any, stands disposed."
21. Bangalore Apartment Federation, thereafter, preferred Review Application No. 03/2023, Court on its own Motion vs. State of Karnataka before Tribunal which was rejected vide order dated 09.05.2023 which reads as under:
1. This application has been filed for review of order of this Tribunal dated 12.03.2021 in OA No. 125/2017, Court on its own Motion vs. State of Karnataka whereby the Tribunal dealt with the issue of remedial action for restoration of Bellandur, Agara and Varthur lakes at Bangalore, including preventing discharge and dumping of pollutants, removing encroachments from catchment area and other steps for restoration.
2. We have noted order of Hon'ble Supreme Court dated 26.08.2022 in Civil Appeal No. __of 2022 (D. No. 21225 of 2022), Bangalore Apartment Federation vs. State of Karnataka & Ors. as follows:
"3. The primary grievance which has been urged by Mr 13 Shreyas Jayasimha, learned counsel appearing on behalf of the appellant, is that though an impleadment application was filed by one of the directors of the Bangalore Apartment Federation before the National Green Tribunal, no hearing has been afforded in that IA and several directions which have been issued by the NGT would affect the appellant.
4. If that be the grievance, we permit the appellant to move appropriate proceedings by way of review or otherwise before the NGT, as maintainable in law."
3. We have heard learned Counsel for review applicant. It is seen from the order dated 12.03.2021 that the Tribunal considered the issue of remedial action for restoration of Bellandur, Agara and Varthur lakes at Bangalore, including preventing discharge and dumping of pollutants, removing encroachments from catchment area and other steps for restoration. The matter was considered in the light of factual report by Committee headed by Shri Raj Panjwani, Senior Advocate dated 31.05.2018. The report was accepted on 06.12.2018 and an action plan was directed to be prepared under the supervision of Additional Chief Secretary, Urban Development Department, Karnataka. The plan was accordingly prepared which was directed to be executed under the oversight of a Monitoring Committee headed by Justice Santosh Hegde, former Judge of the Hon'ble Supreme Court. The Tribunal thereafter passed orders dated 21.10.2019, 18.12.2019, 13.08.2020 and finally 12.03.2021. Operative part of the order is reproduced below:
"xxx ...................................xxx................................xxx Analysis and further Directions
12. We have given due consideration to the issue. We do find some progress but we agree with learned Amicus that the progress is very slow and inadequate. The remaining work needs to be executed on war footing by remedying the deficiencies pointed out above by learned Amicus. We also permit learned Amicus to file a supplementary note directly to the Chief Secretary or to this Tribunal. If filed with the Tribunal, the same may be forwarded to the Chief Secretary, Karnataka for being addressed in positive spirit, in the light of observations already made and assurance of learned ASG.
13. Remedial steps to be taken so far for restoration of pristine ecology of the lakes in question have been discussed in earlier orders dated 6.12.2018, 21.10.2019, 18.12.2019 and 14
13.8.2020 and comments on some of the issues have been made hereinabove. Justice Hegde Committee has monitored the execution of the action plan on the subject for the last more than two years. We place on record our gratitude to Justice Hegde for the outstanding contribution in the matter.
14. However, monitoring by a Tribunal or Tribunal appointed Committee cannot be for indefinite period and ownership of execution of action plan for restoration of pristine ecology of the lakes/wetlands must be finally owned and taken over by the State authorities, headed by the Chief Secretary. Governance deficit has to be made up by further action in mission mode. The road-map has already been laid down by the orders of this Tribunal. We may note that apart from the present matter, issues of solid and liquid waste disposal generally and of polluted river stretches, water bodies, lakes and wetlands have been dealt with by this Tribunal in the light of Hon'ble Supreme Court decisions.1 Copies of such orders have been duly sent to the Chief Secretary, Karnataka and Chief Secretary also appeared in person twice before this Tribunal for interaction on these issues in OA 606/2018. There are 17 polluted river stretches in Karnataka including Tungabhadra which has been identified by the State to be model of compliance. Detailed guidelines have been laid down on all aspects of restoration of lakes and water bodies and several issues are overlapping with restoration of polluted river stretches. Specific directions cover the present matter on subjects of preventing discharge of sewage and effluents and solid waste, removing encroachments from catchment areas, desilting and deweeding, maintaining lake free from any constructions inside and all other matters covered by different headings of the progress report quoted above. In the present context, we may specifically note need to remedy foaming and fire incidents, attributed to detergents containing Phosphates, sewage entering the lake needs to be diverted and treated sewage utilised for non-potable use. The lake is to be maintained with required oxygen levels for survival of aquatic 1 (2000) 2 SCC 679 Almitra Patel, Tribunal orders in OA 606/2018, last order 2.7.2020: Solid Waste (2017) 5 SCC 326 Paryavaran Suraksha, Tribunal last order dated 22.2.2021 in OA 593/2017: Liquid waste, including 351 polluted river stretches (OA 673/2018), coastal pollution (OA829/19), re-use of treated water (OA148/2016). (2017) 5 SCC 805, Tribunal order dated 27.8.2020, OA 351/2019, Raja Muzaffar Bhat v J & K: Wetlands and lakes: M.K. Balakrishnan and Ors. v. UOI, Tribunal order dated 18.11.2020 Lt Col Sarvadaman OA 325/2015, Water bodies, (1997) 1 SCC MC Mehta v. Kamal Nath, (2001) 6 SCC 496 Hinch Lal Tiwari vs. Kamala, (2006) 3 SCC 549 Intellectual Forum vs. State of AP 15 life.
15. Protection of lakes and water bodies and preventing pollution is part of 'public trust' doctrine obligating the State authorities to take stern measures for enforcing the basic constitutional right of citizens to clean environment. Without this being done in a meaningful manner, there can be no sustainable development. There is need for stringent enforcement by way of adverse measures, including recovery of compensation for continuing violation and adverse entries in the record of defaulting officers. Accountability for those who are entrusted the responsibility to comply with these directions must be fixed on the principle of good governance, to enforce rule of law to protect rights of citizens.
16. Inspite of the fact that Water (Prevention and Control of Pollution) Act, 1974 was enacted 47 years back, to give effect to the decision in Stockholm Conference in the year 1972, the water pollution remains rampant. Though a serious criminal offence under the law of the land, the authorities have failed to take stringent action against the violators. In a way the State- authorities, who are constitutionally under obligation to ensure treatment of sewage before the same is discharged into the water bodies, have to take the blame. The adverse effect of water pollution on health and environment is well known. Water bodies, including lakes and wetlands, have great role in sustaining aquatic life, attract migratory and other birds, add to the natural aesthetics, help harvesting rain water, maintain micro climate, recharge ground water and perform other ecological services.
The Hon'ble Supreme Court in its judgment in Paryavaran Suraksha vs. Union of India & Ors., (2017) 5 SCC 326 discussed the need to remedy water pollution and fixed a firm deadline of 31.03.2018 by which all necessary CETPs/STPs/ETPs should be in place failing which coercive action, including prosecution of State authorities was mandated. It also indicated sources of funding. The said direction continues to be violated. This situation can hardly be held to be conducive to the environmental rule of law. The sewage treatment is less than 50% (the sewage generation from the urban population of the country is reported to be about 70000 MLD and treatment capacity about 27000 MLD)2 which is a matter of serious concern. The Tribunal has issued repeated directions on the subject. Till it is remedied, the goal 2 As per report of the CPCB dated 30.09.2020 quoted in the order of this Tribunal dated 05.02.2021 in OA 95/2018, Aryavart Foundation v. M/s Vapi Green Enviro Ltd. & Ors. 16 of sustainable development is far cry. Similarly, directions have been given for protection of water bodies and wetlands, referred to earlier in para 14, supra.
The environmental law principles, which this Tribunal is mandated to apply under sections 20 and 15 of the NGT Act, 2010, are - 'sustainable development', 'precautionary' and 'polluter pays'. These principles, accepted in Stockholm conference, have been held to be part of right to life under article 21 of the Constitution in Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647. In Hanuman Laxman, (2019) 15 SCC 401, (paras 142-156), significance of environmental rule of law has been highlighted to achieve sustainable development goals for prosperity, health and well-being. This requires filling of gap between law and enforcement. In T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606, at page 621, it was observed that the State has to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water and providing sanitation, without which life cannot be enjoyed. Any contra acts or actions would cause environmental damage. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is constitutional imperative on the Central Government, State Governments and bodies like municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve the man- made environment and natural environment.
17. Accordingly, there is need for further continuous action and effective monitoring at the highest level in the Government. Consistent with earlier orders on the subject, such monitoring needs to be taken over by the Chief Secretary, Karnataka who may take over the record from the Monitoring Committee and take stock of all the left-over issues, with the assistance of other identified authorities and experts (which may include Indian Institute of Science, Bangaluru). He may inter alia interact with the State Lake Conservation and Development Authority and 17 Forest, Ecology and Environment Departments. First meeting may be held latest by March 31, 2021. Thereafter, review meetings may be held atleast once in a month to monitor further progress and completion of targets, already fixed or which may be further fixed. It will be open to all persons interested in restoration and maintenance of the lakes in question to give their suggestions and offer assistance which may be duly considered by the Chief Secretary, Karnataka on its merits. All pending projects for setting up of STPs, fencing of lake, removal of encroachments, etc. may be executed expeditiously. Particular attention may be given to preventing formation of foam and fire incidents. Directions in earlier orders and current order be duly carried out and overseen by the Chief Secretary, as already mentioned, atleast once a month. In pursuance of order of this Tribunal dated 18.11.2020 in OA 325/2015, Lt. Col. Sarvadaman Singh Oberoi v. Union of India & Ors., the steps for protection of water bodies have been directed to be taken and quarterly reports sent by the Chief Secretaries of States to the Secretary Ministry of Jal Shakti. Similarly, a quarterly report is to be given by the Chief Secretaries in respect of steps taken for protection of lakes and wetlands to the National Wetlands Authority, as earlier directed in OA 351/2019, Raja Muzaffar Bhat, supra, vide order dated 27.8.2020 and also placed on the website of the State Wetland Authority, for information of all the stake holders. The lakes in question are undoubtedly of great significance for the Bengaluru city and are glory and pride of the city. We do hope the administration will appreciate the need for stringent action and efforts for maintaining the said Lakes."
4. Learned Counsel for review applicant is unable to point out any error in the order which may call for review. Only submission pointed out is that set out in the review application reproduced below:
"U. Considering the foregoing submissions, the following significant issues arise for consideration and full and final resolution of the environmental dispute.
a. Adjudication on the validity and implementation of CPCB's April 2015 Directions regarding treatment and utilization of sewage.
b. Usage of treated water to be expanded to include all purposes other than where fresh water is necessary in domestic, commercial, and industrial uses irrespective of size of establishment.18
c. BWSSB/ local authorities should provide underground connection to all buildings irrespective of size and consequently treat all sewage generated in the local area and supply treated water to domestic, commercial, and industrial units to ensure a centralized treatment and procedure.
d. Apartments connected to UGD should be directed to seek consent only when a new discharge point/ alteration of an existing discharge point occurs.
e. Quash CPCB's May 2015 Directions dated 22-052015 and all consequent notifications, circulars, and directions.
f. Exempt Apartments treating sewage and consume treated water fully within the premises from seeking consent irrespective of size.
g. Quash the Environmental Compensation Charges imposed by KSPCB as arbitrary and based on unlawful sample collection.
h. Dispose all consent applications in compliance of section 25(7) of the Water Act.
i. In the interest of environmental protection and life on earth, water conservation mandates to be made applicable to all buildings irrespective of size and should ensure implementation at the stage of building plan approval."
5. The above submissions do not make out the case for review of the order. Any independent grievance other than ground for review of order dated 12.3.2021 has to be raised by the applicant in any other appropriate proceedings and not by way of seeking review of order of this Tribunal dated 12.3.2021.
The Review Application is accordingly dismissed."
22. Challenging Tribunal's order dated 12.03.2021 in OA 125/2017 (supra) and dated 09.05.2023 passed in Review Application No. 3/2023 (supra), M/s. Bangalore Apartment Federation filed Civil Appeal (Diary) 19 No. 18572/2024 which was dismissed on the ground of limitation vide judgment dated 10.07.2024 which reads as under:
"1 Permission to file the appeals granted.
2 There is a delay of 694 days and 259 days in filing the appeals against the orders of the National Green Tribunal dated 12 March 2021 and 9 May 2023 in Original Application No 125 of 2017 and Review Application No 3 of 2023, respectively. Absent a sufficient explanation for the delay, the appeals are dismissed on limitation."
23. After the dismissal of Review Applicant's Writ Petition by Karnataka High Court, Review Applicant filed Civil Appeal No. _ of 2024 (Diary No. 51621/2023), Trinity Complex Apartment Owners Association vs. The State of Karnataka & Others in Supreme Court which was disposed of vide order dated 16.01.2024 with the following order:
"Delay condoned.
2 Since the appellants are aggrieved by the order of the National Green Tribunal dated 12 March 2021 on the ground that they were not heard by the Tribunal, we grant them liberty to move the Tribunal setting out their grievance.
3 In the event that they are aggrieved by the order of the NGT, liberty is granted to the appellants to pursue appropriate remedies including before this Court.
4 The appeal is accordingly disposed of.
5 Pending application, if any, stands disposed of."
24. Review Applicant has also filed I.A. 106/2024, seeking condonation of delay of 253 days in filing Review Application. 20
25. Review applicant has also filed another I.A. 105/2024 wherein prayer for interim relief has been made against the order dated 04.12.2019 (filed as annexure A-23 of the Review Application at page 251) issued by Karnataka State Pollution Control Board (hereinafter referred to as 'KSPCB') whereby demand of Rs. 2.9 Crores has been made towards environmental compensation from the occupier of M/s Trinity Complex- Trinity Acres and Woods, Survey no. 25/2, Amblipura village, Sarjapura Main Road, Bangalore.
26. The review applicant has sought review of Tribunal's judgment and order dated 12.03.2021 passed in OA 125/2017 (supra). It is said that liberty has been granted by Supreme Court while disposing of Civil Appeal of review applicant by order dated 16.01.2024.
27. Review applicant has stated that by order dated 12.03.2021, this Tribunal directed KSPCB to impose penalties/environmental compensation ex-parte without impleading societies likely to be affected including the review applicant. Relying on Supreme Court's judgment in Veena Gupta & Another vs. Central Pollution Control Board & Others (2024) SCC OnLine SC 103, it is said that no ex-parte order for imposition of damages of crores of Rupees to be passed without giving opportunity of hearing to affected parties. Reliance is also placed on Supreme Court's judgment in Municipal Corporation of Greater Mumbai vs. Ankita Sinha, (2022) 13 SCC 401; State of UP vs. Uday Education & Welfare Trust, 2022 SCC OnLine SC 1469 and Star Cement vs. State of Meghalaya, Civil Appeal No. 3280 of 2020 decided vide judgment dated 02.05.2023 by Supreme Court to press that Tribunal must follow principles of natural justice. Review applicant has taken the ground that 21 it was not legally required to install STP since its construction commenced in 1992 and completed in 1995 and combined consent order was issued on 13.03.2006 though the requirement of STP was introduced on 19.01.2016.
28. The legal principles are well established and it cannot be doubted that this Tribunal, while adjudicating a dispute, must follow the principles of natural justice. No order prejudicing a party should be passed unless opportunity is afforded to such party before passing such an order.
29. However, in this case we made all endeavours to find out whether any order imposing environmental compensation of an amount in crores, as complained by Review applicant, has been passed by this Tribunal, and that too ex-parte but no such order could be shown by Review applicant despite repeated queries.
30. We repeatedly enquired from Learned Counsel for review applicant as to which part of the order dated 12.03.2021 gives any direction for imposition of penalty/environmental compensation upon the review applicant but Counsel for review applicant miserably failed to point out any such direction/observation in the order.
31. It is also not in dispute that no environmental compensation has been imposed by KSPCB upon review applicant on and after and pursuant to the order dated 12.03.2021 passed by this Tribunal in OA 125/2017 (supra).
32. During the course of the arguments, the Counsel for applicant drew our attention to annexure A-23 at page 251 which is an order demanding 22 environmental compensation dated 04.12.20191 i.e., much prior to the order passed by this Tribunal and thus it cannot be said, by any stretch of imagination, that order dated 04.12.2019 is in reference and pursuant to Tribunal's order dated 12.03.2021.
33. Learned Counsel appearing for review applicant also could not dispute that order dated 04.12.2019 was challenged in Writ Petition before Karnataka High Court but the same was dismissed on the ground of alternative remedy of appeal under Section 33B of Water Act, 1974. No such remedy has been availed by review applicant by filing appeal under the said provision.
34. In the absence of any specific order or direction contained in the order dated 12.03.2021 against review applicant or its society, it cannot be said that there is any ex-parte direction given by Tribunal against review applicant hence we do not find it a case where any error apparent on the face of record has been found justifying review of the said order.
35. Review is not a matter of right and cannot be resorted to as a substitute of any other statutory proceeding.
36. The review applicant, in fact, is aggrieved by the demand of environmental compensation by KSPCB pursuant to order dated 04.12.2019 which has no concern with Tribunal's order passed subsequently on 12.03.2021. In the garb of review, an order passed by a statutory authority in exercise of its statutory powers cannot be challenged before Tribunal. A review is also not permissible as a matter of right and on mere asking or without showing any error apparent on the face of record. Review is also not an opportunity to re-argue the matter. 23
37. In Review Petition (Civil) No. 1620/2023, Civil Appeal No. 1661/2020, Sanjay Kumar Agarwal vs. State Tax Officer (1) & Another and other connected matters, decided on 31.10.2023, Supreme Court has observed that the parties are not entitled to seek a review of judgment merely for the purpose of re-hearing and a fresh decision of the case. Applying principles of Order 47 Rule 1 CPC, it is said that a review of judgment is open inter-alia if there is a mistake or error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record. Supreme Court has culled down following propositions relevant for review of the judgment:
i. A judgment is open to review inter-alia if there is a mistake or an error apparent on the face of the record.
ii. A judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
iii. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review.
iv. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected".24
v. A Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise."
vi. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
vii. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
viii. Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.
38. In view of the above discussion, we do not find that any case for review of the order dated 04.12.2019 has been made out.
39. Now coming to condonation of delay, we find that Tribunal passed order on 12.01.2021 but for almost 3 years, review applicant took no steps to assail the same before any appropriate forum. Appeal was filed in Supreme Court in 2023 which too was disposed of granting liberty to the review applicant to peruse appropriate remedy and did not confer any right on the review applicant to seek review of the application and also issue any direction for condonation of delay of several years.
40. However, we have not confined disposal of review application only on the ground of delay but have considered the same on merits and are satisfied that no case for review is made out.
25
41. In the circumstances, Review Application No. 02/2024 is hereby dismissed and pending I.A. 105/2024 and I.A. 106/2024 stand disposed of.
PRAKASH SHRIVASTAVA CHAIRPERSON SUDHIR AGARWAL JUDICIAL MEMBER DR. A. SENTHIL VEL EXPERT MEMBER November 29, 2024 Review Application No. 02/2024 In OA No. 125/2017 R 26