National Green Tribunal
Kantha Vibhag Yuva Koli Samaj ... vs Gujarat Pollution Control Board on 23 August, 2023
Item No.5 & 6 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
ORIGINAL APPLICATION NO. 32 OF 2020 (WZ)
Kantha Vibhag Yuva Koli
Samaj Parivartan Trust .... Applicant
Versus
GPCB & Ors. ....Respondents
WITH
APPEAL NO.37 OF 2021 (WZ)
Paras Enterprises .... Appellant
Versus
Pimpri Chinchawad Municipal Corporation & Ors. .... Respondents
Date of hearing : 23.08.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Ms. Shilpa Chohan, Advocate for the applicant
Respondents : Mr. Maulik Nanavati, Advocate for R1, R2 and R4
Mr. Mayur Oval, Advocate holding for Mr. Rahul
Garg, Advocate for R-7
Mr. Saurabh Kulkarni, Advocate for R8 to R10 in
O.A. and for the appellant in Appeal
ORDER
O.A. No.32/2020 (WZ) :
1. From the side of the applicant, learned counsel Ms. Shilpa Chohan has appeared.
2. From the side of respondent Nos.8 to 10 - Project Proponent, learned counsel Mr. Saurabh Kulkarni has appeared. [NPJ] Page 1 of 5
3. From the side of respondent No.7 - CPCB, learned counsel Mr. Mayur Oval, holding brief of learned counsel Mr. Rahul Garg has appeared.
4. From the side of respondent No.1 - GPCB, respondent No.2 -
SEIAA, Gujarat and respondent No.4 - GCZMA, learned counsel Mr. Maulik Nanavati has appeared.
5. The learned counsel for the applicant submits that she is not pressing the prayer contained in clause (a) and prayers in clauses (b), (c),
(d) and (f) are being pressed by her. These prayers pertain to `environment damage compensation' to be levied from the Project Proponent; enquiry is prayed to be ordered against the role played by respondent No.1 - GPCB in perpetuating the violations; the prosecution is prayed to be initiated against respondent Nos.8 to 10 and for restoration of Mindhola creek.
6. By our previous Bench's order dated 05.08.2020, a Joint Committee was constituted with direction to submit its report, which has been filed and is annexed at pages 94 to 107 of the paper-book.
7. The main emphasis which has been laid by the learned counsel for the applicant is with respect to levying the environmental damage compensation (EDC) from respondent Nos.8 to 10 - Project Proponent, which has been assessed by the Joint Committee to the tune of Rs.2,73,25,000/- as it has found that the Project Proponent i.e. respondent No.8 had not obtained statutory permissions namely CTE (Consent to Establish), CTO (Consent to Operate) and EC (Environmental Clearance). Despite that, the industry was operated by respondent No.8 illegally for 2186 days. The learned counsel for the applicant is in agreement with the calculation of EDC made by the Joint Committee.
8. From the side of respondent Nos.8 to 10 - Project Proponent, learned counsel Mr. Saurabh Kulkarni brought to our notice page 76 of [NPJ] Page 2 of 5 the paper-book, which is a direction issued by the GPCB - respondent No.1 under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 against the Project Proponent, observing therein the violations made by the Project Proponent and at page 78 is the order of closure dated 23.07.2015 passed by the GPCB, directing the Project Proponent to pay a sum of Rs.5 lakhs, which is said to have been already paid. The learned counsel for the Project Proponent further submits that the said order has not been challenged by the applicant by way of filing an appeal and instead, preferred this Original Application in order to circumvent the provision of limitation. Therefore, this Original Application is not maintainable.
9. Mr. Kulkarni, learned counsel for respondent Nos.8 to 10 has also drawn our attention to the Joint Committee report at page 101, which states that Mindhola river is not getting polluted by the discharge of respondent No.8 - M/s Paras Enterprise only, rather it is getting polluted due to discharge from various other point and non-point sources and yet, the applicant has picked up the industry of respondent No.8 to hold it accountable for such pollution. It is unjustifiable to hold the Project Proponent - respondent No.8 to be responsible for entire pollution and that this aspect has been omitted from being evaluated by the Joint Committee.
10. Apart from above, learned counsel for the Project Proponent has also drawn our attention to pages 186 to 190 of the paper-book and has shown that it is disclosed by it that the industry was in operation for 49 months i.e. 1470 days approximately. Therefore, the calculation made by the Joint Committee of the number of days to be 2186 is erroneous, which needs to be corrected for calculation of EDC.
11. During the arguments, the point that emerges for determination by us is as to whether the period during which the industry in question, [NPJ] Page 3 of 5 which is said to have spread pollution, remained closed on account of closure directions issued by the GPCB, should be excluded from the days of violation because on those days, there was no operation conducted by the industry. In this regard, the learned counsel for the applicant submits that these days cannot be excluded from being taken into consideration for calculation of the EDC because the industry was operating without the required permissions, such as CTE, CTO and EC. At this juncture, when we enquired to her as to on what basis, she says that the industry was operating, because in our opinion, it is illogical to take into consideration the period for which the industry had remained closed.
12. During the arguments, learned counsel for the GPCB - respondent No.1 has drawn our attention to the CPCB guidelines, which are reproduced in the Joint Committee's report, which states as "N = Number of days of violation took place". Number of days of violation is interpreted in this report to mean the period between day of violation observed and the day of compliance verified by the SPCB. Besides that, he drew our attention to Section 2(a), 2(b) and 2(j) of the Air (Prevention and Control of Pollution) Act, 1981, which define what "air pollutant", "air pollution" and "emission" mean. He has also drawn our attention to Section 2(e) of the Water (Prevention and Control of Pollution) Act, 1974, which defines "pollution" and having pointed these definitions, he has tried to convince us that it is only this kind of pollution, which if is found to be there, the infraction of law would be treated to be there. In case the industry remains closed, such kind of pollution cannot happen. His argument appears to be that the days for which the industry remained closed need to be excluded from the calculation of EDC.
13. Since there is a difference of opinion with respect to number of days when the industry is said to have been found closed under [NPJ] Page 4 of 5 directions issued by the GPCB, we deem it appropriate that the GPCB should give us exact number of days for which respondent No.8 remained closed so that the exact amount of EDC can be calculated, for which we grant two weeks' time to the GPCB to submit a report before us on an affidavit detailing therein the number of days during which the industry remained closed under the directions issued by the GPCB and this figure may be calculated after giving opportunity of hearing to the applicant as well as the Project Proponent.
14. As soon as the report is prepared by the GPCB, a copy thereof be served to the Project Proponent and the applicant, who may file their respective reply before the next date.
15. Put up this matter for final argument on 10.01.2024.
16. We direct the Registry to place the connected appeal No.37/2021 (WZ) for hearing on 10.01.2024.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM August 22, 2023 O.A. No.32/2020 (WZ) and Appeal No.37/2021(WZ) npj [NPJ] Page 5 of 5