National Green Tribunal
Vinod Kumar Jangra vs State Of Haryana on 18 January, 2023
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(BY HYBRID MODE)
Original Application No. 607/2018
Vinod Kumar Jangra Applicant
Versus
State of Haryana & Ors. Respondent(s)
Date of hearing: 18.01.2023
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Respondent: Mr. Rahul Khurana, Advocate for the State of Haryana & HSPCB
with Mr. Rakesh Kumar Bhonsle, Regional Officer, HSPCB
Mr. Raj Kumar, Advocate for CPCB
ORDER
1. The issue for consideration is the remedial action for enforcement of the environmental norms under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 by the stone crushers in District Charkhi Dadri, Haryana.
According to the applicant, as per the RTI response of Haryana State PCB, dated 18.06.2019, 260 stone crushers are in operation in the District Charkhi Dadri. According to the applicant, the air quality in the area does not have assimilative capacity to sustain the same, resulting in violation of air and water pollution norms, adversely affecting the environment and public health. In view of subsequent reports showing violations in the adjoining District Bhiwani also, scope of these proceedings has been extend to the stone crushers in the said area also.
12. The matter has been considered by several orders in the last more than four years, including orders dated 05.09.2019, 19.08.2020, 02.02.2021 and 26.10.2021.
3. Vide order dated 05.09.2019, the Tribunal considered the report of the Chief Secretary, Haryana dated 02.08.2019 to the effect that action was taken against nineteen (19) non-compliant stone crushers and action was in process against twelve (12) more non-compliant stone crushers. The Tribunal found that the action taken was not adequate as admitted violation of norms of air quality was continuing and there was no adequate monitoring mechanism to enforce right of citizens to clean environment.
Accordingly, the Tribunal directed the Chief Secretary, Haryana to take further action for enforcement of law for protection of environment and public health. The Tribunal also directed the Central Pollution Control Board (CPCB) to constitute a three-member team to give a composite report on the subject of air pollution and compliance of siting criteria. The Tribunal also directed establishment of air quality monitoring stations and to assess efficacy of pollution control devices by the stone crushers.
4. Vide order dated 19.08.2020, the matter was considered in the light of the reports of CPCB and Chief Secretary, Haryana, which clearly depicted serious violations of environmental norms and inadequacy of the action taken. The Tribunal accordingly constituted a seven Member joint Committee comprising three members team of CPCB (senior level), Member Secretary, State PCB, Member Secretary, SEIAA, Haryana, Divisional Forest Officer, Charkhi Dadri and the Additional District Magistrate, Charkhi Dadri.
5. Vide order dated 02.02.2021, the matter was considered in the light of the report dated 31.01.2021, filed by the seven-Member Committee 2 finding that there was no carrying capacity of the ambient environment to sustain the activities of the stone crushers, without adequate mitigation measures and without following the siting norms. Accordingly, the Tribunal directed remedial measures for enforcing the environmental norms and the Rule of Law. The Tribunal directed that polluting activities beyond the carrying capacity of the environment may be stopped and only such activities may be allowed which can be sustained on the principle of Sustainable Development. The statutory Authorities were directed to exercise their jurisdiction, following due process of law.
6. By last order dated 26.10.2021, there was further review in light of action taken report has been filed on 27.09.2021 by the State PCB. It was observed:-
"5. In pursuance of the above, an action taken report has been filed on 27.09.2021 by the State PCB. The status report gives the list of 339 stone crushers to whom the consent was granted. It gives list of 22 stone crushers which were inspected along with the Monitoring Committee constituted by this Tribunal out of which 5 were found to be non-compliant and were closed. The remaining were found to be individually compliant. On 2nd inspection of 14 stone crushers, 10 were found to be non-complaint, which included 4 units which were earlier non-compliant and 6 units which were found to be non-complaint later. Four were found to be compliant. 10 units were closed/ recommended to be closed accordingly. On 3rd inspection on 17.06.2021 and 01.07.2021, 2 more units were found to be non-compliant and were closed. Assessment of compensation against 14 units was in progress. Compensation had already been assessed against 40 non-compliant units amounting to Rs. 4.76 Crores. 27 units out of them have deposited the compensation while proceedings have been initiated for recovery against the remaining. Prosecution has been filed/proposed against 35 units. Compensation has also been assessed for illegal extraction of ground water amounting to Rs. 31.66 Crores approximately against 278 units. We note that for such assessment the area has been taken to be safe category even though it is critical. 34 units have been found to be not meeting the siting criteria and action has been taken for withdrawal of the CTE/CTO. It is further stated that even 339 stone crushers in District Charkhi Dadri 246 were in operation and the remaining have been identified for dismantling. 4 have been closed.
6. In view of the report, we are concerned with the issue of permissibility of functioning of the said 246 stone crushers which are said to be in operation. The list is as follows:-
"List of CTO of Stone Crusher units in operation at present:-3
xxx..................................xxx..............................................xxx
7. The conclusion in the report is as follows:-
"Conclusion:-
1. The inspection of stone crusher zone Charkhi Dadri have been conducted by Monitoring Committee headed by Justice Pritam Pal, Smt. Urvashi Gulati, Rtd. IAS, Sh. Baburam Ex. MS PPCB alongwith District administrative, Charkhi Dadri on dated 17.03.2021 and 18.03.2021 during visit the committee inspected
22. Nos. of stone crushing units in various cluster. The detailed report of this inspection has already been noted above.
2. The inspection of stone crusher zone Charkhi Dadri have been conducted by Monitoring Committee headed by Justice Pritam Pal, Smt. Urvashi Gulati, Rtd. IAS, Sh. Baburam Ex. MS PPCB alongwith District administrative, Charkhi Dadri on dated 23.07.2021 and 24.07.2021. The detailed report of this inspection has already been noted above.
3. The Regional office, Bhiwani has requested the 03 Nos. instate namely TERI (The Energy and Resource Institute, Lodhi Road, New Delhi) and NEERI (National Environmental Engineering Research Institute, Delhi Zonal Centre, Naraina, New Delhi and Dr. Vivek Narayan Singh, Head of Department, Environment Protection Division (EPD), Shri Ram Institute for Industrial Research, 19, University road, New Delhi. However, the proposal has been received from TERI and NEERI only & to complete the procedure for allotment of the work of study of apportionment, minimum 03 nos. of quotations are required. Once the procedure is complete the work will be allotted to the institute.
4. No new stone crusher of any capacity has been allowed to established in District Charkhi Dadri."
8. We have considered the report dated 27.09.2021 in pursuance of order dated 02.02.2021. The report does not mention status of compliance of directions in para 7 of the said order requiring stopping of polluting activities beyond carrying capacity and also requiring that only such activity may be allowed which the environment can sustain irrespective of date of setting up of the stone crushers. Needless to say that mere compliance by individual stone crusher is not enough if the environment does not have capacity to sustain the polluting activity in question. on account of pre-existing pollution load. In such situation, stone crushers can be allowed only if they do not contribute further to the pollution load by taking such mitigation measures, as viable. Standard laid down for an individual units are subject to assimilative capacity of the environment to sustain additional air pollution load as laid down by this Tribunal vide order dated 17.02.2021 in O.A. No. 1016/2019, Utkarsh Panwar v. CPCB & Ors., dealing with the issue of prohibiting/regulating brick kilns in NCR, having regard to the absence of carrying capacity of the environment. Contrary to that, report merely mentions that no new stone crushers have been allowed. Action taken against stone crushers beyond carrying 4 capacity which environment cannot sustain, has not been mentioned. Further, legality of measurement of raw material for the stone crushers needs to be ascertained and remedial action taken. The Committee being constituted may look into the aspect. Thus, in view of absence of carrying capacity and unsustainability of the stone crushers prima-facie the stone crushers may be liable to be closed to the extent the same are not sustainable. The list of operating stone crushers also mentions District Bhiwani at many places, apart from Charkhi Dadri, which was initially the subject matter of consideration. Thus, the said District will also, to the extent necessary, have to be covered by the remedial action. The report dated 31.01.2021 relates to the study period of 250 days from 04.03.2020 to 08.11.2020. The relevant table has been quoted earlier and is reproduced below for ready reference:-
"The carrying capacity assessment of ambient air environment, of District Charkhi Dadri as estimated by the Joint Committee based on the available data of Continuous Ambient Air Quality Monitoring Station (CAAQMS) located in the district, for time period of 250 days i.e. 04.03.2020 to 08.11.2020 for the predominant air quality parameter i.e. PM10, is as follows:
Particulars Values Summer Monsoon Post
Season Season Monsoon
Season
Area of District (km2) 1370 1370 1370 1370
Mixing height (km) 0.691 0.745 0.672 0.643
Volume of air in the district 946 1021 921 882
(km3) (pg/m3)
PM10 265 246 177 409
Total Estimated load of 250815 251508 162671 360369
particulate matter in
ambient air in the district in
a study period (kg) Carrying
Assimilative 94647 102073 92112 88153
Capacity (kg)
Supportive Carrying -156168 -149435 -70558 -272216
Capacity (kg)
9. It is well known fact that from the period from November to February, which has not been taken into account, the air quality is certainly inferior to the rest of the year. In view of negative carrying capacity, only those stone crushers can be permitted which do not add to the pollution load by adopting appropriate technology or methodology enabling functioning without deterioration to the air quality, during the operation of the stone crushers or during the transportation of raw material and finished product.
10. Number of stone crushers to be permitted may have to be suitably reduced to maintain adequate distance inter-se, as per formula suggested in above report of the Expert Committee which is reproduced below:-
"(ii) Considering the stone dust settlement behaviour, the inter-se distance between two stone crushing units may be kept as:5
d = (hi*N. + h2 *p2)/100 Where, d = inter-se distance between two stone crushing units (in meter) hl& h2 = height of highest nodes for unit 1 & 2, respectively (in meter) Pi& P2 = production capacity for unit 1 & 2, respectively (in MTD)
11. There is also need to implement the recommendations in the report of the Expert of the Committee dated 31.01.2021. Further solution to be considered for permitting operation of stone crushers can be development of a green belt around the periphery of the area where stone crushers are located of the width ranging from 25 meters to 50 meters, wherever viable. Any other pockets of land available may also be considered for afforestation within the crushing zone to improve the micro climate. The District Administration may also undertake paving the roads in and around the crushing area in additional water sprinkling on regular basis in the interest of public health of the citizens affected by the air pollution generated in the process.
12. Let a joint Committee of CPCB, State PCB, District Magistrates Charkhi Dadri and Bhiwani, jurisdictional Conservator of Forest, nominee of IIT Delhi who may be expert on the subject of air pollution and a Pulmonologist nominated by DG Health, Haryana meet within two weeks and ponder over the issue. They may interact with the stake holders including the representatives of the stone crushers, who may be informed about the proceedings before this Tribunal by the State PCB in coordination with any other concerned authorities in an appropriate manner by e-mail or otherwise. The CPCB and the State PCB will be nodal agency for coordination and compliance.
Any expenses to be incurred will be borne by the State PCB subject to further orders. The District Magistrate may provide logistics for execution of the order. The report may be furnished within three months by email by e-mail at judicial- [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF which may be also be uploaded on the website of the State PCB for information of all the affected stone crushers who will be at liberty to file their comments, if any, to the report before this Tribunal within 15 days of uploading of the report."
7. It is a matter of regret that the Committee failed to give report as expected within three months. We record our disapproval for such conduct on the part of the members of the Committee in a matter of such urgency.
This observation may be conveyed to the Members of the Committee by CPCB and remedial action be taken for future.
8. We may now refer to the reports filed. The first report was filed by the State PCB on 08.11.2022, after more than one year of order dated 6 26.10.2021. Such delay itself has greatly prejudiced the environment and public health as the Tribunal has already found that there was no carrying capacity for continued operations of stone crushers without additional equipments ensuring that there is no addition to air pollution. The authorities have failed to take adequate remedial action in the light of observations of this Tribunal. The report dated 08.11.2022 merely mentions that first meeting was held on 28.12.2021 wherein road map for implementation of recommendations in report dated 31.01.2021 was discussed. Second report filed on 17.01.2023 refers to status of obtaining plantation plans, as reported by the DFO, Charkhi Dadri. The report shows that most of the stone crushers have not even obtained plantation plans.
What to talk of undertaking plantations. Surprising, learned Counsel for State PCB has stated that action has been proposed only against those who have not sought plans and those who have sought plans are not being proceeded against even when they have failed to undertake plantations and are continuing in violation of law. He has given list of 24 stone crushers who have not undertaken plantation and against whom merely show cause notices has been issued though failure is since more than one year. We fail to understand what is the compulsion before the authorities in ignoring such large scale violations. Let Chairman, State PCB take remedial action, including action against erring officers involved in the process, coordinating with all concerned State authorities.
9. The report further mentions that air quality was monitored at three locations with manual AAQ machines in October, 2022 which show the level of PM10 to be 361, 281 and 393 which is much in excess of the laid down standards. No remedial action has been taken by the State PCB for revoking consents under the Air (Prevention and Control of Pollution) Act, 1981 when there is no assimilated carrying capacity of the air quality in 7 the area and stone crushers and adding to air pollution and not even complying with requirement of plantations. No compensation on polluter pays pr9inciple has been assessed and recovered. It is further stated that the District Administration is in the process of paving the roads around the stone crushing zones and undertaking water sprinkling to control the dust emissions at State expense without requiring the violators to remedy their wrong. The report further mentions comments of nominee of IIT as follows:-
"1) We notice that PM1o were very high during the monitoring time. Long-term monitoring of PM10 and PM25 are required regularly inside the crusher zone, so that reliable data can be established for operating and non-operating periods
2) Dispersion modelling needs to be carried out to estimate the dispersion of PM generated by the crushing units in contrasting meteorological conditions. Carrying capacity analysis will allow us to generate data to decide on the optimum number of units based on the meteorological conditions.
3) Whenever the PM10 Values exceed 'high' levels, the number of running crusher units needs to be reduced and the operating period should be shortened.
4) Movement of heavy- duty vehicles need to be restricted while crushers are running. Specific timing should be allotted to transport material from crusher zones while the crusher units entirely shut down.
5) In the winter, local activities like wood fires and the burning of angithi etc. should not permitted or need to reduce."
10. The above comments show rampant violation of the air quality norms, PM10 being very high with no remedial action by authorities. Thus, consideration of prayer for seeking further time will only help continuing violations and damage and cannot be accepted as bonafide after more than one year of earlier order. Such prayer may only covering up the failure of the authorities in not doing their duties as expected by this Tribunal. The prayers will stand declined.
811. We may note some relevant observations in earlier order of this Tribunal in connected matters order dated 03.12.2020, O.A. No. 667/2018, Mahendra Singh vs. State of Haryana & Ors., in the context of permissibility of Stone Crushers in NCR as follows:-
"
9. It is well known that NCR is facing air pollution issues and, in winter months, the problem is further aggravated. Polluting activities, even if otherwise legitimate, are required to be stopped/regulated to avoid adverse health impact on account of air pollution. Stone crushers add to air pollution. On that account as per Graded Response Action Plan for Delhi & NCR (GRAP), the stone crushers in NCR have to be automatically closed when the air quality is 'severe'. Relevant portion of the Graded Response Action Plan is as follows:-
"
Severe (ambient PM2.5or Agency responsible/ PM10concentration value is more than Implementing Agency 250 µg/m3 or 430µg/m3 respectively) Close brick kilns, Hot Mix plants, Stone Chairpersons Delhi Crushers Pollution Control Committee, State Pollution Control Boards of Haryana, Rajasthan, and Uttar Pradesh Superintendent of Police "
and Deputy Commissioner of respective districts
10. GRAP is self-operating but does not exclude assessment-based restrictions. Permissibility of stone crushers depends on the available air quality and impact of operation of such stone crushers on the environment and public health in a particular area. In this regard, we may notice the observations of the Hon'ble Supreme Court in some matters. In M.C. Mehta v. Union of India, (1992) 3 SCC 256, at page 257, it was observed:
"....Utter disregard to environment has placed Delhi in an unenviable position of being the world's third grubbiest, most polluted and unhealthy city as per a study conducted by the World Health Organisation. Needless to say that every citizen has a right to fresh air and to live in pollution- free environments.
3. For the reasons to be recorded and pronounced at a later stage we order and direct as under:
(1) The mechanical stone crushers established/operating in Lal Kuan, Anand Parbat, Rajokri, Tughlakabad and in any other area of the Union territory of Delhi shall stop operating/functioning with effect from August 15, 9 1992. No stone crusher shall operate in the Union territory of Delhi from August 15, 1992 onward.
(2) The mechanical stone crushers established/operating in Suraj Kund, Lakhanpur, Lakkarpur, Kattan, Gurukul, Badkhal, Pallinangla, Saraikhaja, Anangpur and Ballabgarh areas of Haryana shall stop operating/functioning with effect from August 15, 1992.
No stone crusher shall operate in the above-said area from August 15, 1992 onward.
11. Again, in M.C. Mehta v. Union of India, (2006) 11 SCC 582, at page 586, it was observed :
"While conducting a study of environmental problems of the Aravalli hills and preparation of action plan for restoration of environmental quality in Gurgaon district, the Central Mine Planning and Design Institute Limited (CMPDI), had inter alia noted that in the Aravalli hills, large number of activities, operations of stone crushers and deforestation besides other activities are causing environmental degradation. These mines are usually located in clusters in remote mineral-rich districts/areas where living standards are lower and understanding of people towards environmental impact is also poor. In the past, the mine operators took no note of environmental damage. In fact, they were not even conscious about it. The attitude of the mining community is to ignore the environmental concerns. In the majority of the cases, the environmental concerns are ignored for making quick profits. The small mines (less than 5 hectares) and the mining of minor minerals which are no doubt small individually but have damaging characteristics when in clusters e.g. the mines of granite, marble, slates, quartzite, etc. (falling under minor minerals) are no less damaging than the others, especially when the processing is taken into consideration. The mining activities result in disturbance of land surface, altering drainage pattern and land use, besides the pollution problems, which may lead to the environmental problems of air, water and noise pollution and solid waste pollution."
12. In People Right and Social Responsibility Centre v UoI, (2010) 14 SCC 769, it was noted that persons at and close to stone crushers suffer from Silicosis disease against which safeguards are to be adopted.
13. In Arjun Gopal & Ors. v. UOI & Ors.1, the Hon'ble Supreme Court noted the adverse impact of unsatisfactory air quality on health and air quality grading as follows:
"5. In India, air quality standards are measured in terms of the Air Quality Index (hereinafter "AQI"). The AQI was launched in India on 17-10-2014 by the Ministry of Environment and Forests. According to the press release 1 (2017) 1 SCC 412 10 of the Press information Bureau of the same date, it consists of a comprehensive set of parameters to monitor and asses the air quality. The AQI considers eight pollutants (PM10, PM2.5, NO2, SO2, CO, O3, NH3, and Pb), and based on the levels of these pollutants six categories of AQI ranging from "Good" to "Severe" have been prescribed. The index also suggests the health effects of the pollution category wise. The gradation of AQI and its health impact is extracted below:
Table 1 AQI Associated Health Impacts Good Minimal impact.
(0-50)
Satisfactory May cause minor breathing discomfort to sensitive
(51-100) people.
Moderately polluted May cause breathing discomfort to people with lung
(101-200) disease such as asthma, and discomfort to people with
heart disease, children and older adults.
Poor May cause breathing discomfort to people on
(201-300) prolonged exposure, and discomfort to people with
heart disease.
Very Poor May cause respiratory illness to the people on
(301-400) prolonged exposure. Effect may be more pronounced
in people with lung and heart diseases.
Severe May May cause respiratory impact even on healthy people,
(401-500) and serious health impacts on people with lung/heart
disease. The health impacts may be experienced even during light physical activity.
Table 2 AQI Category, Pollutants and Health Breakpoints AQI PM10 24- PM2.5 24- NO2 24- O3 8- CO 8-hr SO2 24- NH3 24- Pb category hr hr hr hr (mg/m3) hr hr 24-hr (Range) Good (0-50) 0-50 0-30 0-40 0-50 0-1.0 0-40 0-200 0-0.5 Satisfactory 51-100 31-60 41-80 51- 1.1-2.0 41-80 201- 0.5-
(51-100) 100 400 1.0
Moderately 101-250 61-90 81-180 101- 2.1-10 81-380 401- 1.1-
polluted 168 800 2.0
(101-200)
Poor (201- 251-350 91-120 181- 169- 10-17 381- 801- 2.1-
300) 280 208 800 1200 3.0
Very poor 351-430 121-250 281- 209- 17-34 801- 1200- 3.1-
(301-400) 400 748* 1600 1800 3.5
Severe (401- 430+ 250+ 400+ 748+* 34+ 1600+ 1800+ 3.5+ "
500)
12. This Tribunal vide order dated 15.10.2010 in O.A. No. 1016/2019, Utkarsh Panwar Vs. CPCB considered the issue in the context of closing/restricting the brick kilns in absence of carrying capacity of the air quality in the NCR. Relevant observations are as follows:-11
"17. In Arjun Gopal & Ors. v. UOI & Ors.2, it was observed that the residents of NCR faced severe air quality standards which were worst in the World. It had serious adverse health impact. Life of citizens in NCR had been brought to virtual standstill. The Capital was smoked into an environmental emergency of unseen proportions. It will be appropriate to extract some observations from the judgment:-
"4. The onset of winter and the festival/marriage season this year, presented to the residents of NCR severe concerns regarding the air quality standards. According to reports, the air quality standards in early November of this year were the worst in the world. It is reported that the PM2.5 levels recorded were "beyond scale" values (see India's Air Quality Among World's Worst Over Diwali Weekend: Report. 4-11-2016, Hindustan Times). The report indicates that 24-hour average of PM2.5 levels in South Delhi in 2016 were 38% higher than on the Diwali night of 2015. The day after Diwali, these levels were twice as high as the day after Diwali in 2015, crossing 650 μg/m3, which is 26 times above the WHO's standards or levels considered safe. Shockingly, on the morning of 1- 11-2016, Delhi woke up to an average PM2.5 level of over 700 μg/m3 -- some of the highest levels recorded the world over and 29 times above WHO standards. The report further states that the WHO guideline for 24-hour average PM2.5 levels is 25 μg/m3 and with an annual average PM2.5 level of 122 μg/m3, Delhi's air is the worst among global megacities with dense populations. We have particularly referred to the PM 2.5 levels because of the extreme effects and near invisibility of this type of particulate matter. PM2.5 or particulate matter 2.5 (PM2.5), refers to tiny particles or droplets in the air that are two-and-one-half microns or less in width. It may be noted that the widths of the larger particles in the PM2.5 size range would be about thirty times smaller than that of a human hair. These particles primarily emanate from vehicle exhausts and other operations that involve the burning of fuels such as wood, heating oil or coal, and of course, use of fire crackers.
5. xxx.............................xxx..................................xxx
6. Reports indicate that AQI in Delhi was much above the severe standard, shooting off the AQI 500 mark on many days this November. On the day after Diwali, it was more than 14 times the safe limits (see Delhi's Pollution Levels Peaks at 14-16 Times Safe Limits, 31- 10-2016, The Hindu). The adverse health effects of these hazardous levels of pollution are only too evident from the table given above. We do not intend to refer to the multiplicity of reports and data on this front.2
(2017) 1 SCC 412 12
7. The hazardous levels of air pollution in the last few weeks has spared very few from its ill effects. The life of the citizens of NCR was brought to a virtual standstill, not to speak about the plight of the thousands of mute flora and fauna in NCR. Schools were declared shut, denizens of the city advised to stay indoors, construction activities stopped, power stations shut and ban imposed on burning of garbage and agricultural waste. The fall in air quality has had a significant impact on people's lifestyle as well. The rising costs to protect against air pollution are substantial. It has come to our notice that people are queuing up to purchase protective masks and air purification systems in the wake of dense smog all over the NCR. In short, the capital was "smogged" into an environmental emergency of unseen proportions.
8. The adverse effects of these extreme levels of air pollution spare no one -- the young, the old, the infirm and even the future generations. A study of the data of the Global Health Depository of the World Health Organisation reveals that India has the world's highest death rate from chronic respiratory diseases and that about 1.5 million people in India die annually due to indoor and outdoor pollution (see Delhi Wakes up to an Air Pollution Problem it cannot Ignore, 15-2-2015, The New York Times). The Kolkata-based Chittaranjan National Cancer Institute (CNCI), in a study commissioned and handed over to the Central Pollution Control Board, found that key indicators of respiratory health, lung function to palpitation, vision to blood pressure, of children in Delhi, between four and 17 years of age, were worse off than their counterparts elsewhere.
It also found that more than 40% of the school children suffer from lung damage (see Landmark Study Lies Buried, 2-4-2015, The Indian Express). We note with apprehension that there are nascent studies that suggest that pollution can lower children's IQ, hurt their test scores and increase the risks of autism, epilepsy, diabetes and even adult-onset diseases like multiple sclerosis (see Holding Your Breath in India, 29-5-2015, The New York Times).
9. It has been brought to our notice that the severe air pollution in the NCR is leading to multiple diseases and other health related issues amongst the people. It is said that the increase in respiratory diseases like asthma, lung cancer, bronchitis, etc. is primarily attributable to the worsening air quality in the NCR. The damage being caused to people's lungs is said to be irreversible. Other health related issues like allergies, temporary deafness are also on the rise. Various experts have pointed towards multiple adverse effects of air pollution on human health like premature deaths, rise in mortality rates, palpitation, loss of vision, arthritis, heart ailments, cancer, etc.
10. When we refer to these extreme effects, we are not merely referring to the inconvenience caused to people, 13 but to abject deprivation of a range of constitutionally embedded rights that the residents of NCR ought to have enjoyed. Needless to state, the grim situation of air quality adversely affected the right to education, work, health and ultimately, the right to life of the citizens, and this Court is constitutionally bound to address their grave concerns. May we remind ourselves, that this is not the first time that this Court was impelled into ensuring clean air for the citizens of the capital region (see M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 6 SCC 60] , [M.C. Mehta v. Union of India, (1998) 9 SCC 589] , M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 8 SCC 648] and M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 8 SCC 206] )."
18. In the context of banning sale of crackers having adverse impact on the air quality, it was held that even if there were several sources of pollution, a particular polluting activity could be prohibited. No equality could be pleaded in this regard. Right to trade was not absolute and could be restricted for protection of Environment which was a specific Directive Principle of State Policy enforcement of which was a reasonable restriction on fundamental right to trade. The 'Precautionary Principle' of environmental law allows prohibition of a polluting activity even in absence of scientific certainty. ......."
19. Carrying capacity is a facet of sustainable development. It is inherent in 'Precautionary Principle' as well as in 'Inter-generational Equity'. In MC Mehta v. UOI & Ors., construction activity in the catchment area of Badkhal were directed to be restricted/regulated to the level of Carrying capacity. It was observed that:-
"Preventive measures have to be taken keeping in view of the carrying capacity of the ecosystem operating in the environmental surroundings under consideration."
20. In Vellore Citizens' Welfare Forum v. UOI & Ors.3, it was observed that quality of human life is to be improved within the carrying capacity to supporting ecosystem. Relevant extract is as follows:-
"10....... During the two decades from Stockholm to Rio "Sustainable Development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. "Sustainable Development" as defined by the Brundtland Report means "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development" as a balancing concept between ecology and development has been accepted as a part of the 3 (1996) 5 SCC 647 14 customary international law though its salient features have yet to be finalised by the international law jurists."
21. These observations are reiterated in (2006) 6 SCC 371.4 22 to 23 xxx......................... xxx.................................. xxx
24. The Tribunal has a mandate to follow these principles under Section 20 read with Section 15 of the National Green Tribunal Act, 2010 and can issue appropriate directions for enforcement of these principles, as laid down in Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors.,5 and the Director General (Road Development) NHAI v. Aam Aadmi Lok Manch.6 Environmental rule of law requires strict enforcement of these principles as laid down in Hanuman Laxman Aroskar v. UOI).7
25. This Tribunal in O.A. No. 681/2018, vide order dated 21.08.2020, dealt with the remedial measures for restoration of air quality in 122 Non-attainment cities, including Delhi where air quality is generally beyond norms. The Tribunal directed stopping polluting activities, including brick kilns and assessment of carrying capacity of urban areas to take policy decisions to control polluting potential activities beyond carrying capacity. The Tribunal observed:-
"3. The Tribunal noted the concern arising from such large scale air pollution which grapples the country in spite of statutory mechanism under the Air Act, directions of the CPCB under section 18(1)(b), dated 29.12.2015 and directions of the Hon'ble Supreme Court for control of vehicular pollution8, industrial and construction sector pollution9, power sector pollution10 and agricultural sector pollution11 and orders of this Tribunal dealing with the said issues 12. The Tribunal also referred to a Comprehensive Action Plan (CAP) for 4 Para 66 to 76 5 2019 SCC online SC 322, Para 43-47 6 AIR 2020 (SC) 3471, Para 75 7 (2019) 15 SCC 401 8 Rural Litigation and Entitlement Kendra, Dehradune and Others Vs State of U.P. Others (1985) 2 SCC 431, M.C. Mehta v. Union of India (2001) 3 SCC 756, M.C. Mehta v. Union of India (1998) 6 SCC 63, M.C. Mehta v. Union of India (2002) 4 SCC 356, M.C. Mehta v. Union of India (1998) 6 SCC 60 9 M.C. Mehta v. Union of India (1997) 2 SCC 353, M.C. Mehta v. Union of India and Shriram Foods and Fertilizer Industries and Anr. (1986) 2 SCC 176, Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P. (1985) 2SCC 431, Mohd. Haroon Ansari v. District Collector (2004) 1 SCC 491, Union of India v. Union Carbide Co. (1989) 1 SCC 674, M.C. Mehta v. Union of India (1992) 3 SCC 256, Sterlite Industries (India) Ltd. etc. v. Union of India & Ors.(2013) 4SCC 575 , M.C. Mehta v. Union of India (2004) 6 SCC 588, M.C. Mehta v. Kamal Nath (2000)6 SCC 213 10 Consumer Education and Research Centre v. Union of India (1995)3 SCC 42, Dahanu Taluka Environment Protection group and Ors. v. Bombay Suburban Electricity Supply Company Ltd.
and Ors (1991) 2SCC 539 11 Arjun Gopal and Ors v. Union of India and Ors (2017) 16 SCC 280, Dr. B.L Wadhera v. Union of India and Ors (1996) 2 SCC 594 12 Vardhman Kaushik v. Union of India and Ors. O.A no. 21 of 2014, Vikrant Kumar Tongad v. Environment Pollution (Prevention and Control) Authority and Ors, O.A No. 118 of 2013, Satish Kumar v. Union of India and Ors, O.A. No. 56 (THC) OF 2013, Smt. Ganga Lalwani V. Union of India and Ors. O.A No. 451 of 2018 15 air pollution control for NCR prepared in pursuance of order of the Hon'ble Supreme Court dated 06.2.2017 by the Environment Pollution (Prevention and Control) Authority (EPCA) in consultation with the CPCB and Delhi Pollution Control Committee (DPCC) on 05.04.201713 and Graded Response Action Plan (GRAP) notified by the MoEF&CC on 12.01.2017 stipulating specific steps for different levels of air quality such as improvement in emission and fuel quality and other measures for vehicles, strategies to reduce vehicle numbers, non-motorised transport network, parking policy, traffic management, closure of polluting power plants and industries including brick kilns, control of generator sets, open burning, open eateries, road dust, construction dust, etc.14
4. Implementation of prescribed norms in the light of legal provisions and court directions remains a challenge. The consequence is that India is being ranked high in terms of level of pollution compared to many other countries with enormous adverse impact on public health. Most victims are children, senior citizens and the poor.15
5. The GRAP categorises levels of pollution as severe plus, severe, very poor, moderate to poor. The action to be taken in such situations includes stopping entry of trucks, stopping construction activities, odd and even scheme of private vehicles, shutting of schools, closing of brick kilns, stone crushers, hot mix plants, power plants, intensifying public transport services, mechanized cleaning of road, and sprinkling of water, stopping the use of diesel generator sets, enhancing parking fees, etc.
6. The MoEF&CC has by various notifications put restrictions on activities in Coastal areas, Flood plains, Taj corridor Eco-sensitive zones, etc. in view of ecological sensitivity and impact of such activities on environment if such activities are carried out in unregulated areas. This needs to be extended to the NACs in view of impact on public health and environment to give effect to the 'Precautionary' and 'Sustainable Development' principles."
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14. According to the CPCB, draft framework has been prepared and SA study completed in four States (for 05 cities). Study was under progress in 14 States (for 54 cities), and at proposal stage in 10 States (for 37 cities). Methodology for carrying capacity has been shared with State PCBs/PCCs. Twelve (12) States/UTs have given the details of the carrying capacity and the remaining have yet to take necessary steps.
13Report No.71, EPCA-R/2-17/L-21, Comprehensive Action Plan for air pollution control with the objective to meet ambient air quality standards in the National Capital Territory of Delhi and National Capital Region, including states of Haryana, Rajasthan and Uttar Pradesh.
14S.O.118(E), Notification, Ministry of Environment, Forest and Climate Change 15 https://www.thehindu.com/sci-tech/energy-and-environment/india-ranks-177-out-of-180- in-environmental-performance-index/article22513016.ece, https://www.ndtv.com/delhi- news/delhis-air-pollution-has-caused-of-death-of-15-000-people-study-1883022.
16CC/SA studies are pre requisite for meaningful planning to enforce environmental law. This pre-requisite should have been undertaken long ago. Air quality norms have been statutorily laid down under the Air (Prevention and Control of Pollution) Act, 1981 as well as the Environment (Protection) Act, 1986 and such norms are being flagrantly violated, which has been made by the Parliament a criminal offence. If the rule of law has to have meaning and guilty are to be punished, the policies of the State have to be based on scientific studies to contain polluting activities within the scope of Carrying Capacity."
26. Dealing with the issue of air pollution in manufacture of tiles at Morbi in Gujrat, vide order dated 6.3.2019 OA 20/17 Babubhai v GPCB, this Tribunal directed closure of industries operating with coal unless they shifted to natural gas. This was referred in the earlier order of this Tribunal in the present matter. It was further observed that while under the orders of the Hon'ble Supreme Court, GRAP was laid down providing for closing of specified activities on crossing of air quality norms as laid down in the GRAP, the same did not debar consideration of further situations requiring closure/regulation...."
13. In the light of above discussion, we direct remedial action for recovery of compensation for past violations, prohibiting illegally operating stone crushers till compliance and to the extent of carrying capacity.
14. To capture Robust data to the area, CPCB may install at least 5 more CAAQMS at suitable locations. It will be open to CPCB to install more, if found necessary. Pending setting up of CAAQMS, manual stations may be installed. The number of operating stone crushers be suitably reduced as directed earlier so as to be within the carrying capacity, maintaining appropriate inter-se distance as may be suggested by CPCB. Consistent with order dated 26.10.2021, from November to February, no stone crushing unit be allowed to operate in the area unless the air quality index is moderate and above i.e. below 200.
15. We also fix interim compensation at the rate of Rs. 20 Lakhs against each of the stone crushers operating in the area on 'Polluter Pays' principle.
Compensation will cover the period from 5 years prior to filing of this Application and till date. The amount is being fixed at floor level on 17 conservative basis even if particular stone crushers may have operated for shorter period. This will apply to all 343 identified stone crushers as mentioned in para 5 of the report of the joint Committee dated 17.01.2023.
The amount may be collected by the State PCB by coercive action on failure of deposit within one month. The amount be used for restoration of environment in the area. Final compensation be fixed by joint Committee of District Magistrate, Charkhi Dadri, Member Secretary, State PCB, CPCB, Forest Department and DFO. CPCB and State PCB will jointly act as nodal agency for coordination and compliance. The Committee may put all the stone crushers to notice of this order and if any stone crusher is aggrieved by order of this Tribunal may be at liberty to move this Tribunal.
The units which have been identified as non-compliant may be closed forthwith. The units which are not identified but are operating in violation of norms may also be proceeded against for closure till compliance forthwith. The numbers of units which are to be allowed to operate should be fixed having regard to the carrying capacity. The exercise may be overseen by ACS Environment, Haryana.
16. Action taken report with compliance status as on 30.04.2023 may be filed by 15.05.2023.
List for further consideration on 22.05.2023.
Member Secretary, State PCB and District Magistrate, Charkhi Dadri may remain present in person by Video Conferencing on the next date.
18A copy of this order be forwarded to District Magistrate, Charkhi Dadri, Member Secretary, State PCB, CPCB, Forest Department and DFO by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM January 18, 2023 Original Application No. 607/2018 SN 19