National Green Tribunal
Rakesh Arora S/O Shreeram Arora vs State Of Madhya Pradesh Through ... on 21 February, 2023
Item No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 55/2022 (CZ)
Rakesh Arora Applicant(s)
Versus
State of Madhya Pradesh & Ors Respondent(s)
Date of completion of hearing and reserving of order: 31.01.2023
Date of uploading of order on website: 21.02.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Mr. Rohit Sharma, Adv
For Respondent(s) : Mr. Sachin K.Verma, Adv
Ms. Vanita Bhargav, Adv
Mr. Yadvendra Yadav, Adv
ORDER
1. The brief facts giving rise to the present application are that the non- Applicant no.5 Sh. Aziz Khan purchased a land bearing survey number 416/1min-1/2 admeasuring 0.104 hectares from one Sh. Ramprasad Kushwaha in the year 07.08.2018. The aforementioned land is the land in question which is located at a distance of hardly 30-35 meters from a nearby water body i.e., Jail Talab. After the purchase of the land in question, non-Applicant no.6 who is the son of non-Applicant no.5 entered into an agreement with non-Applicant no.4 for setting up of a reliance jio-bp mobility petrol pump at the abovementioned land. Thereafter, they have applied to the Petroleum & Explosives Safety Organization (PESO) for approval of the site layouts for construction of the petrol pump and on 09.11.2021, duly received the permission to construct the petrol pump at the area in question as per the layout submitted. It is pertinent to point here that the permission granted by the PESO explicitly mentions that other necessary permissions from concerned authorities shall also be required by the project proponent in order to legally construct the petrol pump as per the Petroleum Rules, 1 2002. Thereafter the applications for No Objection Certificates were made by the non-Applicant no.4 to various departments and subsequently after all the procedural aspects were taken care of, NOC was granted by the non-Applicant no.1 District Collector on 08.02.2022. Similarly, the NOC by MPPWD and T & CP was accorded on 23.12.2021 and 07.12.2021 respectively.
2. The contention of the applicant is that the operation of the petrol pump may harm the water quality of the Jail Talab which is situated in the Kasberenj village of Tehsil Mungaoli of district Ashok Nagar and may cause environmental degradation.
3. The matter was taken up by this Tribunal and notices were issued to the respondents. A joint committee was constituted consisting District Collector, Ashok Nagar, one representative from CPCB, one representative from MPPCB, and one representative from RBML with the direction to submit the factual and action taken report.
4. Respondent's no. 1, 3 and 4 has also filed the reply. We have heard the learned counsel for the parties and perused the record.
5. Submission of the Respondent no.1 are that on the direction of the Tribunal, a Joint Committee visited the site, examined the matter in light of the existing guidelines and submitted the report with the facts that the distance between Jail Talab and the proposed petrol pump is above 50 meter as per the citing guidelines of CPCB and further there is no TNCP or Municipal Corporation approved residential area school, hospital existed therefore, the apprehension of the applicant pertaining to the harm likely to be caused on the Jail Talab is actually based on presumptions and surmises.
6. Learned counsel for the CPCB has submitted that CPCB vide reference letter no. B-13011/1/2019-20/AQM/10802-10847 dated 07.01.2020 has issued guidelines for setting up of New Petrol Pumps, which are as follows:
GUIDELINES FOR SETTING UP OF NEW PETROL PUMPS 2 A. Containment and treatment of spillages from fuel filling operations at petrol pumps:
1. Petrol pumps located in areas with high groundwater table i.e. groundwater levels less than 04 meters shall have secondary containment by way of double walled tanks or concrete protection walls so as to minimize groundwater and soil contamination. It shall be the responsibility of OMC to properly get measured groundwater level at the site of proposed petrol pump and ensure implementation of these adequate protection measures for such sites. Details of measures taken by Oil Marketing Company shall be placed in public domain and in case of contradictory view, view of State/ Central Ground Water Board/ Authority wile prevail.
2. All new retail outlets shall have underground tanks/ above ground tank and its ancillary components such as pipes, flexible connectors, pumps, fittings etc. protected from leaks due to corrosion by adopting materials (HDPE/ Mild Steel etc.) with required protective coating, as applicable, duly approved by PESO.
3. Any major Leakage/ spillage of Petrol, Diesel, Lube Oil (more than 1 barrel-165 litres) occurs at fueling station, concerned OMC shall report to State Pollution Control Board, PESO and District Administration under intimation to CPCB within 24 hours of occurrence.
Operation of concerned underground storage tank (UST) and its ancillary components sha.1 be stopped immediately and not be resumed till corrective measures to contain and stop leakage/ spillages are implemented to the satisfaction of PESO and concerned SPCB.
OMCs will be held liable for Environmental Compensation (imposed by SPCBs/PCCs) and assessment of environmental damage (depending on extent of contamination in soil and groundwater) and site remediation. Consultant/ Expert agency appointed by OMCs for damage assessment and site remediation shall have minimum national/ international experience of 5 years in this field. Various approved methods shall be considered for cleaning underground contaminants.
4. All DUs shall have Auto Cut off Nozzles which shuts dispensation of fuel if its level in customer fuel tank reaches full capacity.
5. Breakaways to be installed for all the hoses of dispensing units to reduce spillage in the event of customer vehicles moves away with nozzle still in the fueling position.
6. Single/ double plane swivel with breakaway coupling shall be installed for all the dispensing units for better positioning of nozzle while refueling so that it does not fall off accidently.
7. In pressurized dispensation, all dispensing units shall be installed with shear valves to cut the fuel flow from pipe line 3 immediately upon accidental knocking of dispensing units from its position.
In pressurized system all Submersible Turbine Pumps (STPs)
8. are to installed with line leak detectors and in the event of pipeline leaks STPs shall stop pumping fuel from underground tanks. Emergency stop button switch shall be provided on the Multi-
9. Product Dispenser (MPD) to stop the dispensation in case of emergency.
10. Automation system shall be installed at all new retail outlets to alert in case of tank leak by way of auto gauging system approved by PESO.
11. All Retail Outlets shall provide overfill alarm through automation.
12. Measures for spill containment in fill point chambers and forecourt area shall be implemented as prescribed by PESO. B. Check on leakages (Leakage Detection System) from underground storage tanks so as to prevent groundwater and soil contamination:
1 All new retail outlets will have automation system installed which will provide reports on volume balance after every day operation and records shall be maintained.
2. Manual gauging shall be done once in a month and compare the same with Automatic Tank Gauging for accuracy.
3. Daily MS and HSD loss shall not exceed MoPNG prescribed limits.
In case of leakage beyond such limits, matter shall be got analyzed by OMCs and further action shall be taken for ascertaining the reasons of losses. In case of leakage resulting in soil / groundwater contamination:
a. Concerned OMC shall report to State Pollution Control Board, PESO and District Administration under intimation to CPCB within 24 hours of occurrence. Operation of such underground storage tank (UST) and its ancillary components shall be stopped immediately.
b. Fuel shall be removed immediately from underground storage tank to prevent further release to environment. Measures to prevent explosion due to vapors released due to leakage as recommended by PESO shall be implemented immediately.
c. OMCs will be held liable for Envi,5.onmental Compensation (imposed by SPCBs/PCCs) and assessment of environmental damage (depending on extent of contamination in soil and groundwater) and site remediation. Consultant/ Expert agency appointed by OMCs for damage assessment and site remediation shall have minimum nationat/ international experience of 05 years in this field, Various approved methods shall be considered for cleaning underground contaminants.4
d. Operation of Underground tank and its ancillary components shall not be resumed till corrective measures to contain and stop leakages are implemented to the satisfaction of PESO and concerned SPCB.
4. All underground tanks and pipelines shall be subjected to test for leaks every 7 years C. Policy towards Treatment and disposal of sludge removed from underground tanks during cleaning:
Sludge shall be collected, stored and disposed as per Rule 8 of Hazardous Waste (Management and Transboundary) Rules, 2016 and amendments thereof and records shall be maintained.
D. Installation, Operation and maintenance of Vapour Recovery System:
1. All new retail outlets set up with sale potential of 300KL MS per month and setting up 6n cities with population more than 1 lakh will be provided with VRS. VRS should be functional by the time of sale of MS touch 300 KL. In case of failure of installation of VRS, Environment Compensation will be ,levied by SPCBs/ PCCs equivalent to the cost of VRS and this will further increase proportionate to the period of non-compliance.
2. Any new retail outlet set up in cities having population more than 10 lakh and having sale potential of 100 KL MS per month will be provided with VRS. VRS should be installed within a period 03 months from the day of sale of MS touch 100 KL. In case of failure of installation of VRS, Environment Compensation will be levied by SPCBs/ PCCs equivalent to the cost of VRS and this will further increase proportionate to the period of non-compliance.
3. In case of Stage II VRS, nozzle shall be provided with flexible cover flap or other alternative system for proper covering of filling tank and therefore proper recovery of vapors.
4. OMCs are responsible for maintaining installed VRS. They have to maintain periodic inspections for A/L regulator as prescribed by Legal Metrology, Proper record shall be maintained.
5. Working of dispenser shall be interlinked with VRS functioning.
Online system shall be developed within 06 months to monitor status of operation of VRS. In case of non-operation of VRS, the same shall be automatically reported to concerned OMC. VRS shall be brought into operation immediately within 24 hrs and in any case within 72 hrs failing which sale of MS shall be stopped from the fueling station. Proper records of operation of VRS shall be maintained.
6. Work zone monitoring for Total VOC and Benzene shall be conducted by OMCs for petrol pumps selling more than 300 KU 5 month and more than 10 lakh population (in first phase) by E(P)Act, 1986 approved labs once in a year to check compliance with OSHA norms (Time-Weighted Average) and report shall be submitted to SPCB. In addition, pilot study shall be conducted by OMCs through expert institutions for online monitoring of VOCs. E. Ground water and soil quality monitoring within petrol pump selling more than 300 KL/ month and more than 10 lakh population shall be conducted by OMCs once in two years through E(P)Act, 1986 approved labs for the following parameters from the nearest source and report submitted to SPCB:
Permissible limit Sr. No Parameter Permissible limit 1 Total petroleum hydrocarbons 600 µg/I 2 BTEX i. Benzene- 950µg/1 ii. Toluene- 300µg/I iii. Xylenes-
a. o-xylene- 350µg/1 b. m & p- xylene- 200µg/I 3 Ethanol 1400 pµ/I 4 Methyl tertiary butyl ether 13 pµ/I 5 PAH 0.0001 µg/I Enforcement agencies including SPCB can collect samples in and around petrol pump to check contamination.
F. Measures for protection of Worker's Health
1. All workers engaged at retail outlets may be covered under OMC dealers shall implement the personal protective equipment (PPE) per labor laws.
2. EC (Information Education Communication) activities should be organized by OMC dealers for workers at regular intervals in order to sensitize them about harmful impacts of VOC emissions. G. Audit of all protection measures and monitoring system implemented at petrol pumps:
PESO shall conduct audit of tanks and fuel equipment including pipes, overfill protection equipment and alarm system on annual basis and maintain records.
H. Siting criteria of Retail Outlets:
In case of siting criteria for petrol pumps new Retail Outlets shall not be located within a radial distance of 50 meters (from fill point/ dispensing units/ vent pipe whichever is nearest) from schools, hospitals (10 beds and above) and residential areas designated as per local laws. In case of constraints in providing 50 meters distance, the retail outlet shall implement additional safety measures as prescribed by PESO. In no case the distance between 6 new retail outlet from schools, hospitals (10 beds and above) and residential area designated as per local laws shall be less than 30 meters. No high tension line shalt pass over the retail outlet.
These guidelines are supplementary to all existing relevant Rules, Guidelines, Orders etc.
7. It is argued by the learned counsel for the CPCB that certain directions were issued in the matter of Suresh Mandaloi Vs. State of M.P & Ors.
(O.A. No. 61 of 2019 (CZ) and directions was issued to CPCB and MoEF & CC to submit the report with regard to the minimum distance form water bodies to the petrol pump and the matter was referred to the Expert Committee and the draft guidelines for implementation in case of petrol pumps near water bodies were prepared The guidelines also specify the groundwater and soil sampling protocol, frequency of sample collection and the prescribed parameters and screening values to be adopted. The same monitoring protocol and parameters/ values (except for monitoring frequency) need to be adopted for petrol pumps covered under the guidelines dated January 07, 2020. These draft guidelines were placed in public domain for seeking comments/suggestions from public and concerned stakeholders These were reviewed by the Expert Committee and the guidelines have been finalized and are hereby issued as addendum to the earlier CPCB Guidelines dated January 07, 2020 for implementation by concerned stakeholders.
8. ADDENDUM TO GUIDELINES FOR SETTING UP OF NEW PETROL PUMPS The Hon'ble NGT vide orders dated 23.07.2020 and 09.10.2020, in the matter of Suresh Mandaloi Vs. State of M. P. & Ors. (O.A. No. 61 of 2019 (CZ)), directed MoEF&CC and CPCB to submit a report with regard to the minimum distance from water bodies to the petrol pump.
The matter was subsequently referred to the Expert Committee constituted by CPCB earlier in the matter of guidelines for setting up 7 of new petrol pumps and the following addendum guidelines (to guidelines dated 07.01.2020) have been finalised for implementation in case of petrol pumps near water bodies:
a) All the surface water bodies irrespective of utility shall be protected from any possible contamination. These include lakes, ponds, streams, rivers, wetlands, canals and creeks, as per revenue records. Retail Outlets shall not be located within a distance of 50 meters from the nearest point of water bodies. In case of streams and rivers, the distance shall be considered from floodway. In case floodway is not defined, the distance shall be considered from firm banks/ edge of river. The siting criterion is to be implemented for all new petrol pumps where construction by OMCs starts post the issuance of these guidelines.
b) Retail outlets coming within 50 meter to 100 meter from the nearest point of surface water body shall have secondary containment by way of double walled tanks or concrete protection walls around Underground Storage Tank (UST).
c) Groundwater and soil quality monitoring near the premises of fuel retail outlets shall be conducted by OMCs once a year through E (P) Act, 1986 approved labs or labs with national/international accreditation. The monitoring shall be done for those Fuel Retail Outlets which are located within 100 meter from the nearest point of surface water bodies. These shall be applicable to all petrol pumps, regardless of the date of establishment. In case of any clarification and/or difficulty in obtaining samples for groundwater and soil quality monitoring, OMCs may seek assistance of local administration/SPCB/PCC/CGWB. Protocol for soil and groundwater monitoring is annexed as Annexure-I.
d) Groundwater and soil quality monitoring shall also be conducted by OMCs before installation of the new fuel retail outlet, for those retail outlets coming up within 100 meter from the nearest point of surface water bodies.8
NOTE: These guidelines are supplementary to all existing relevant Rules, Guidelines, Orders, Notifications such as Wetlands (Conservation and Management) Rules, 2017, Coastal Regulation Zone (CRZ),Notification, 2011 etc. The other measures, prescribed in CPCB guidelines for setting up of new petrol pumps dated 07.01.2020, for containment and treatment of spillages, check on leakages from USTs, treatment and disposal of sludge removed from underground tanks during cleaning, measures for protection of workers' health, audit of all protection measures and monitoring system implemented at petrol pumps, shall also apply to the fuel retail outlets falling in the criteria specified above. Monitoring protocol specifying the prescribed parameters and screening values annexed with these guidelines (other than the monitoring frequency), shall also be adopted for those retail outlets where CPCB guidelines dated 07.01.2020 are applicable. These guidelines shall be reviewed from time to time. Protocol for monitoring quality of soil and groundwater near the premises of fuel retail outlets Samples of groundwater being used for drinking purposes shall be collected from at least three different directions with reference to the retail outlet. The sampling point should be preferably within 50m distance from the underground storage tank location at the retail outlet. The samples shall be analysed for the following parameters:
Sr No Parameter Screening values
1 Total petroleum hydrocarbons 0.6mg/L
(C10-C40
2 BTEX i. Benzene- O.Olmg/L
ii. Toluene- 0.7mg/L
iii. Xylene-0.5mg/L
3 Methyl Tertiary Butyl Ether 13μg/I
4 Total PAH 0.0001mg/I
Further, soil sample shall be collected from a borehole within the premises of the fuel retail outlet adjacent to the Underground Storage Tank (UST) pit. The depth of bore hole should be up to 1m 9 below the bottom of the storage tank level. Soil samples shall be analysed for the following parameters:
Sr.no Parameter Screening values
(mg/kg)
1 Total petroleum hydrocarbons 5000
(TPH)
2 Benzene 5
3 Toluene 30
4 Xylene 50
5 Methyl Tertiary Butyl Ether 100
6 Total PAH 40
Ground water and soil quality monitoring shall be conducted by OMCs once a year through E (P) Act, 1986 approved labs or labs with national/international accreditation and the reports are to be submitted to SPCB. The soil monitoring shall be done in first six months while groundwater monitoring shall be done in the next six months.
In case of exceedance of screening by any parameter, or in case of leakage resulting in soil/groundwater contamination, the measures/steps as prescribed in the guidelines for setting up of petrol pumps dated 07.01.2020 shall be taken up. Assessment and remediation shall be carried out as per the guidelines issued by MoEF & CC and CPCB
9. Learned counsel for the Respondent No. 4 has argued that present Original Application has not been filed bona fide and is entirely motivated to advance the personal agenda of the Applicant. The subject NOC dated 08.02.2022 for the subject petrol was assailed earlier in another OA no. 29/2022 (CZ) titled "Manoj Kumar Namdev v. State of MP & Ors", which was withdrawn vide an order dated 04.07.2022. the said OA was filed by an employee of a competing petrol pump in the same area where subject petrol pump in present OA is situated. The present OA has been filed by the brother of the owner of the competing petrol pump, Mr. Hardeep Kumar Arora. Mr. Hardeep Kumar Arora is the owner of the competing petrol pump and owner of a parcel of land 10 in Survey no. 435, wherein the subject petrol pump is being constructed, hence the present OA has been filed for harassing the Answering respondent. The Applicant and his brother Mr. Hardeep Kumar Arora have also filed a complaint with the District Collector on the same issue as raised in the present OA. The relationship between the Applicant and Mr. Hardeep Kumar Arora is evident from the Madhya Pradesh computerized land records.
10. It is further argued that the guidelines dated 16.08.2021 prescribe that retail outlets shall not be located within a distance of 50 meters from the nearest point of the water body. It is also provided therein that siting criteria is to be implemented for all new petrol pumps where construction starts post the issuance of these Guidelines. It is submitted that in the Guidelines dated 07.01.2020, the distance for the purpose of siting criteria is calculated from the fill points/dispensing unit/vent pipe nearest to the school, hospital and residential area designated as per local laws. It is submitted that the Guidelines dated 16.08.2021 are an "addendum" to the Guidelines dated 07.01.2020 and therefore it stands to reason that the distance of the water body as well has to be calculated from the nearest point of water body till the fill points/ dispensing unit/vent pipe. It is submitted that the said distance is more than 50 meters. This is evident from the certificate of the Patwari of the Tehsil dated 11.05.2022, certifying that the distance of the waterlogged Jail Talab is 51.5 meters from the underground tank of the subject petrol pump. Further, it is submitted that the Answering Respondent had made an application to the District Magistrate for the approval of its revised plan outlay for making the subject petrol pump more convenient for the movement of consumers. In response to the said Application, the District Magistrate has issued a Letter dated 21.07.2022 to the Answering Respondent. Vide the said Letter, the District Magistrate was of the view that no NOC appears to be required for amending the outlay of the pump as the survey number remains 11 unchanged and changes in the plan outlay of the subject petrol pump was carried out in the same area for the convenience of the people. The second contention of the Applicant is that the subject petrol pump is situated within 50 meters of residential areas. It is submitted that as per the siting criteria prescribed in the Guidelines dated 07.01.2020, a petrol pump can be situated within a distance of 50 meters but not less than 30 meters from residential areas, provided the retail outlet implements additional safety measures as prescribed by the Petroleum & Explosives Safety Organization ("PESO"), and that the distance between the fill points/dispensing unit/vent pipe is more than 30 meters. It is submitted that the SDA drawing of the petrol pump shows the distance from the fill points till the boundary wall which is as under:
North- 8.265 m South- 18.375 m East- 19.195 m West- 20.576 m
11. As per the Applicant, as shown in the Google map produced at Annexure A-5 to the present OA, the distance between the residential area and the boundary of the petrol pump is 35.81 m. Thus, the distance from the fill point till the residence is more than 30m.
12. Further, as per the measurements carried out by the Answering Respondent, the distance between the south boundary wall of the petrol pump and the residence is 24m. It is further submitted that PESO vide letter dated 09.11.2021 has granted approval to the Answering Respondent for the subject petrol pump. The said approval is testimony to the fact that the same has been granted pursuant to the Safety and Test Certificate as required under Rules 130 and 126 of the Petroleum Rules, 2002 issued by the competent person approved by CCE, Nagpur.
Thus, since all the safety measures as prescribed by PESO have been adhered to, the petrol pump can be situated within a distance of 50 meters from residential areas, in accordance with law. 12
13. The third contention of the Applicant is that Public Works Department ("PWD") in its NOC dated 23.12.2021 has stipulated a condition that a distance of 40 meters has to be left from the center of the road in front of the petrol pump till the boundary of the petrol pump. Firstly, this is not an environmental issue and cannot be raised before this Hon'ble Tribunal. Furthermore, the said road has been wrongly mentioned as a National Highway in the said letter of PWD. The Answering Respondent had taken the necessary steps for the correction of the same. Accordingly, therefore, a letter dated 10.05.2022 was issued by the PWD, National Highway division stating that Jail Tank road, Mungawali does not come under its purview. The said road is a city road as is evident from the map produced by the Applicant itself at Annexure A-5 of the present OA. As per the applicable rules and regulations, a distance of 15 meters from the centre of the city road has to be maintained from the retail outlet. The Department of Town and Country Planning vide its letter dated 07.12.2021 has in fact while granting its NOC directed that a distance of 15 meters be maintained from the Centre of the road. Further, vide letter dated 20.05.2022, after taking note of the fact that the concerned road does not fall within the purview of National High way Division, and is part of the city, the District Magistrate withdrew the earlier NOC dated 23.12.2021 and permitted construction after leaving out government land, if any.
14. After filing of this application the Tribunal constituted a Committee and directed to submit the factual and action taken report and the Joint Committee visited the site and submitted the report as follows:
Previous complaints and court case in the same matter: During the inspection and interaction with the project proponent and officials of local 13 adminstration, it has come to the knowledge that the same type of complaint was received in various time intervals. The chronology of the earlier complaints and its disposal as given below :
1. Sh Rakesh Kumar Arora submitted the written complaint to collector office at Ashoknagar in January 2022 regarding irregularity of land record of survey no. 435 and 416 and request for enquiry. In furtherance of the same Tahsildar, Mungaoli carried out inspection in presence of applicant and submitted the report on dated 31.1.2022. According to report there is no irregularity in land record and all the allegation made by the applicant is baseless.
2. Sh Rakesh Kumar Arora again submitted the written complaint to the office of the Chief Minister, MP in February, 2022 on the same matter and requested another enquiry. In furtherance of the matter Tahsildar, Mungaoli carried out another inspection and submitted the report to Collector on dated 15.7.2022 and again inspection report state that there is no irregularity in land record and nothing objectionable was observed. The report also states that in spite of calling, the complainant was willfully not reaching the site and it seems it is business competition between them.
3. A local resident Sh Manoj Kumar Namdev also filed a case on 12.4,2022 before Hon'ble NGT Central Bench, Bhopal through OA No. 29/2022 "Manoj Kumar Namdev Vs M P Government and Ors" regarding siting criteria of the petrol pump on same matter but after three hearing applicant withdraw the case on 4.7.2022 Back Ground of present case in brief:
The present 0A,No.55/2022 has been filed before the Hon'ble NGT by Shri. Rakesh Arora and others, grievance is regarding the Establishment of a petrol pump near the water body in Mungaoli (Jail Talab) and residential area which is alleged to be against norms provided by the Central Pollution Control Board.
To better coordination in the investigation, the applicant Shri. Rakesh Arora had been contacted on his mobile before the inspection and requested to accompany the visit and show the locations and points of violations as mentioned in the petition but neither he nor his representative was present at the spot during the committee visit. The relevant issue also discussed with Sh. Aziz Khan Project Proponent of the petrol pump.
The main issues raised in the petition by the applicant are as given below:
1. Non-compliance of the citing criteria as prescribed by the Central Pollution Control Board especially distance from nearest residential colony and water body and i.e. Jail Talab.
2. Distance is inadequate from the center of the road as mentioned in NOC granted by PWD.14
The committee made the following observation during site visit on the above mentioned issues:-
ISSUE 1 - Non-compliance of the citing criteria as prescribed by the Central Pollution Control Board especially distance from nearest water body i.e. Jail Talab.
It is humbly submitted that, as per CPCB guidelines for a petroleum outlet, the potential points for chances of pollution are, the position of fuel dispensing points, vent pipes and fill point. As per CPCB office memorandum dated 16.8.2021 retail outlet shell not be located within the distance of 50 meter from the nearest water body. The retail outlet coming within 50 meter to 100 meter from the nearest point of water body shell have secondary containment by way of double walled tanks or concrete protection walls around Underground Storage Tank It is submitted further that, the distance measurements were taken in the presence of the committee members and other officials, and the distances were confirmed. As informed by Tahsildar of area due to flood condition in the nearby area the present water of Jail Talab is near to maximum storage level. The geo-coordinate location of the proposed site was measured as follows:
Latitude--24.24'47.95°N Longitude --78.05 '31.61°E As the mail contention of the petition is related to distance of petrol pump from nearest water body. To measure the distance with utmost accuracy the committee used digital as well as manual method. The Differential Global Positioning System (DGPS) is the latest technology used in land surveying equipment and same was used. It is the enhanced version of GPS.
The aerial distance measured manually from nearest edge of water body (Jail Talab) to nearest fuel Dispensing point and observed 52.00 meter. At the same point distance measured by specific instrument i.e. DGPS machine at two points and measured distance was observed 51.1191 meter and 55.7770 meter. The report generated by DGPS machine is enclosed as Annexure-V The Patwari of Halka No. 25 of district Mungaoli was also issued a certificated on 11.5.2022 regarding the distance of Jail Talab and proposed petrol pump and certified that the distance is 51.5 meter.15
It was observed that another three side of the proposed location in the 50 meter distance, there is no TNCP or Municipal Corporation approved residential area, school and hospital existed. Aforesaid location has obtained PESO approval on 9.11.2021 permission letter is enclosed as Annexure-VII. Google image of that period was verified, permanent structure was not there within the 50 mtr distance of the aforesaid retail outlet plot during that period. However, near West side of the project one commercial cum residential structure is under-construction. The land under question is 0.104 hectares which falls under the Khasra numbers 416/1/2 of Kasbarenj Taluka-Mungaoli Distt. Ashok Nagar and the land are possessed by Shri Aziz Khan. As informed by project proponent this project was initiated in August 2021 at that time no permanent structure was existed in 30 meter range from pollution potential points.
ISSUE 2 - Distance is inadequate from the centre of the road as mentioned in NOC granted by PWD.
It is humbly submitted that, during the site inspection, the proposed site was found to be filled and levelled with earth and boundary wall constructed around the proposed location. No construction activity was going on at the time of the inspection. MPPWD issued a revised NOC to proposed petrol pump on dated 20.5.2022 and mentioned that no permanent construction will be done in the 15 meter distance from the centre of the road. To verify the status distance was measured from centre of the road upto15 meter and no permanent construction was observed in this range. However, presently this road is not a part of any National and State Highway and just use as city service road. The revised NOC issued by MPPWD in this regard which is enclosed as Annexure-Ix. Recommendations and Conclusion This Joint Committee respectfully submits that the distance from edge of the Jail Talab to potential points for chances of pollution (fuel dispensing points, vent pipe position and fill point) is above 50 meter as per CPCB guideline. There is no permanent construction observed within the 15 meter distance from centre of the road. 16
As the retail outlet comes under 50 meter to 100 meter range from the nearest point of water body hence to prevent any probable water contamination double walled tanks and additionally concrete protection walls around Underground Storage Tank must be provide.
The retail outlet may install a vapour recovery system as per CPCB guideline to reduce air pollution and also install an oil water separator system to prevent any probable water contamination caused by oil spillage or surface runoff.
The committee is of the opinion that all the pollution prevention/control measures and leakage/spillage management as mentioned in the CPCB guidelines dated 07.01.2020 and 16.8.2021 shall be applicable and M/s. Reliance BP Mobility Limited has to strictly comply with them and has to take all efforts to alleviate the apprehensions of pollution control at the site. The project proponent may obtain all necessary permission from MPPCB at the earliest.
This Joint Committee also suggests that, the oil marketing company may review the site layout if necessary, so that maximum possible distance can be maintained between the water body and proposed petrol pump. It is also reiterated that additional safety measures if any prescribed by PESO shall be applicable in the case, apart from other conditions of CPCB guidelines. The concern authorities may keep constant vigil during the construction phase of petrol pump and ensure compliance the condition given in various permission and NOCs.
15. The Committee has also attached the relevant documents in support of the report which reveals the previous complaint between the parties and distance available on the Google photo map.
16. The Applicant has filed an objection to the Joint Committee report with the contention that there was malice and ill intention of the members of the Committee and further contended that at the time of visiting on site and after reaching the site Tehsildar requested the applicant to reach the site and prior intimation was not provided to the Applicant. It is further argued that the distance which has been 17 measured by the joint committee members was from filling point which should be from boundary points.
17. In reply thereof, the respondent has submitted that the presence of the said representative of the Answering Respondent in the Joint Committee was in accordance with the order of this Hon'ble Tribunal dated 20.07.2022 in the present OA. If the Applicant was aggrieved by the said order, an application for recall of the said order or an appeal against the said order ought to have been preferred. However, by way of the present objections, the Applicant is in effect preferring an appeal, which ought not to be permitted. It is settled law that an application which in its substance is in the nature of a review has to be rejected as has been held by the Hon'ble Supreme Court in Delhi Administration v Gurdip Singh Uban, (2000) 7 SCC 296. Infact, the Applicant was also made part of the Committee but did not take objection to the same. The presence of one representative of the Answering Respondent amongst a majority of other committee members cannot by any stretch of imagination `influence' the Joint Committee. The directions for inspection of the Project site by this Hon'ble Tribunal vide its order dated 20.07.2022 was in consequence of the prayers made by the Applicant in the present OA. However, on the publishing of a Report that does not support its unsubstantiated allegations, the Applicant is disputing the veracity of the very report that came to be prepared and published as a result of its prayers.
18. It is further argued that the Committee has conducted the inspection in accordance with all the relevant and applicable Guidelines being the Guidelines dated 07.01.2020 and the latest Guidelines dated 16.08.2021. The two Guidelines are not exclusive to each other, and the Guidelines dated 16.08.2021 are an "addendum" to the earlier Guidelines dated 07.01.2020. Therefore, the Guidelines dated 07.01.2020 has not been superseded by the Guidelines dated 16.08.2021.
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19. It is further submitted that the dictionary meaning of addendum is "something that has been added". The rationale behind the introduction of the new Guidelines whereby the requirement of maintaining a distance of 50 meters from the water body has been "added" to the Guidelines dated 07.01.2020, is because the same was never part of the requirements in the Guidelines dated 07.01.2020. Therefore, the addendum only covers the issues that were not already considered and provided for in the Guidelines dated 07.01.2020 and does not substitute the same. It extends the scope of application of the Guidelines. Hence, the said addendum dated 16.08.2021 has to be read with the Guidelines dated 07.01.2020 and the distance of Talab has to be measured from the fill point. The Applicant contends that the Committee has malafidely shown incorrect distance from the fill point to Talab as the fill point is situated on the west side of the retail outlet and not on the northeast side as per the Layout Plan. It is submitted that the Joint Committee had inspected the location on 17.08.2022 in the presence of all stakeholders such as the representatives of the Land Revenue Department, representatives from CPCB and the Madhya Pradesh Pollution Control Board. The measurements were made by the Joint Committee from the nearest point manually as well as by the DGPS evidences and found the same to be in accordance with the Guidelines. It is submitted that the presence of representatives of all the relevant Government authorities is indicative of the fact that the Guidelines were understood, interpreted, and acted upon correctly by the Joint Committee. Furthermore, the Guidelines have been published by the CPCB itself, therefore there could be no better authority to certify the correctness of the interpretation of any of the provisions in the said Guidelines. The Applicant further alleges that the area adjacent to the subject land has residential buildings and the same existed much prior to the initiation of construction of the subject petrol pump in August 2021.
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20. Relevant report and order has been passed by the revenue authorities, copy of which has been annexed as Annexure R4/4 and R4/8 with reply.
21. Learned counsel for the respondent has submitted that in view of the State of Uttar Pradesh and Ors vs. Uday Education and Welfare Trust and Anr. Etc. etc Civil Appeal Nos. 2407-2412 of 2021, Hon'ble Supreme Court of India has considered the luxurious litigations and directed that while considering the environmental matters and the credentials and bonafides of litigants are seriously raised and when entertaining the grievance of such litigants which is likely to adversely affects the rights of many, it should ensure the bonafides and credentials of such litigants.
22. The contention of the learned counsel for the applicant is that after the report of the PWD, the Respondent have to apply for fresh NOC in light of the notification issued by the CPCB and in reply thereof the learned counsel for the Respondent has submitted that the addendum issued from the CPCB shall be read in light of the previous order.
23. The guidelines of citing criteria of retail outlet clearly mentioned that new retail outlets shall not be located within the radial distance of 50 meters (from fill point/dispensing unit/wind pipe) whichever is nearest and as per report submitted by the joint committee and patwari it is located as per guidelines of the CPCB and there is no violation of any guidelines or environmental rules, thus the contention of the Applicant for quashing the NOC issued by the collector is not maintainable. The orders issued by Collector are in accordance with the guidelines issued by CPCB and there is no violation of any environmental rules and guidelines issued by the CPCB, thus relief as prayed is not maintainable.
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24. The application has no merit and deserves to be dismissed, accordingly dismissed.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 21st February, 2023 O.A No. 55/2022 (CZ) PU 21