National Green Tribunal
National Fishworkers Forum vs Ministry Of Environment Forest And ... on 15 June, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 03 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 22/2021(WZ)
(I.A. No. 17/2021)
National Fishworkers Forum & Ors. Applicant(s)
Versus
Ministry of Environment, Forests &
Climate Change & Ors. Respondent(s)
Date of hearing: 15.06.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE M. SATHYANARAYANAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant(s): Ms. Meenaz Kakalia, Advocate
ORDER
1. Grievance in this application is against directions issued by the CPCB on 30.4.2020 and Office Memorandum (OM) dated 08.06.2020 issued by the MoEF&CC. Directions of CPCB are under Section 18(1)(b) of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 for harmonization of classification of industrial sectors into Red, Orange, Green and White Categories. The directions mention that to coordinate activities of the State PCBs/PCCs and to provide technical assistance and guidance to State PCBs/PCCs, the CPCB has categorized 242 industrial sectors into Red, Orange, Green and White category and directed all State PCBs/PCCs on 07.03.2016 for its adoption and implementation and exclusion from red category which is prohibited category which were revised as per details of 1 categorization in Annexure-I and Annexure-II. Annexure-I is in respect of activities classified as Industrial and Annexure-II is with regard to activities categorized as non-industrial. In Annexure-II, Item No. 5 is Ports and harbor, jetties and dredging operations, meaning thereby that the said activities are non-industrial. Implication of such classification is that where industrial activities are prohibited like ports, will be no longer in prohibited list if the same are in Annexure II.
2. The OM of the MoEF&CC dated 08.06.2020 has the effect of taking out the Ports out of red category of industries, prohibited by Dahanu Taluka Ecologically Fragile Area Notification.
3. Case of the applicants is that Dahanu Taluka is ecologically fragile area in terms of Notification dated 20.06.1991 issued by the MoEF&CC. Thereby, certain activities are prohibited and certain activities are regulated. Red categories of industries are not permitted. Referring to the direction of the CPCB dated 30.04.2020 treating port, harbour, jetties and dredging operations as non-industrial operations, not falling in red categories, it is stated by the applicants the effect of the impugned orders is that ports can be undertaken in ecologically sensitive area, including the Dahanu Taluka ecologically fragile area, though doing so is incompatible with the object of declaring such area as eco fragile and in violation of directions of the Hon'ble Supreme Court, to which reference will be made. The applicants claim to represent fish workers unions. The impugned directions/OM will be against the principle of Sustainable Development. Once Dahanu Taluka is ecologically fragile area, notified as such, no activity in consistent with the objectives of declaration of the said area can be allowed. Thus, by classifying all ports as non-industrial 2 activities, prohibition/restriction on such activities will stand lifted. This is not legally permissible.
4. The relevant part of the notification declaring Dhanua Taluka as ecologically fragile area is reproduced below:-
"S.O. 416 (E):-Whereas a notification under Clause (v) of Sub-section (2) of Section 3 of the Environment(Protection) Act, 1986, inviting objections from the concerned quarters within a period of sixty days from the date of publication of the said notification, against Govt.'s intention to declare Dahanu Taluka, District Thane (Maharashtra) as an ecologically fragile area and to impose restrictions on the setting up of industries which have detrimental effect on the environment was published vide S.O. No. 80 (E), dated 8th February, 1991 and Corrigendum (S.O. 147 (E) issued on 27th February, 1991).
And whereas certain objections were received from Environmental Action Groups of Dahanu & Bombay, individuals of Dahanu, Govt. of Maharashtra, Dahanu Industries Association, Dahanu Taluka Krushak Samaj etc. These objections were duly considered and accordingly certain modifications have been incorporated in this notification.
NOTIFICATION In exercise of powers conferred by clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986, the Central Government, in consultation with the Government of Maharashtra, after considering the need for protecting the ecologically sensitive Dahanu Taluka, and to ensure that the development activities are consistent with principles of environmental protection and conservation, hereby declare Dahanu Taluka, District Thane (Maharashtra) as an ecologically fragile area and to impose restrictions on the setting up of industries which have detrimental effect on the environment.
The location for siting of industries and industrial units shall be in conformity with the Guidelines given in the Annexure. However, the industrial projects already approved or in existence in the said Taluka before the date of issue of this notification, will not be affected by this notification. The existing industries shall have to conform to the statutory standards.
The Government of Maharashtra will prepare a Master Plan or Regional Plan for the Taluka based on the existing land use of Dahanu Taluka within a period of 1 year from the date of this notification and get the plan approved by the Ministry of Environment & Forests. This Master Plan or Regional Plan will clearly demarcate all the existing green areas, orchards, tribal areas and other environmentally sensitive areas. No change of existing land use will be permitted for such areas in the Master Plan or Regional Plan for the Taluka. The total area within the 3 Dahanu Taluka for location of permissible industries will be restricted to a maximum of 500 acres within the industrial areas earmarked in the Master Plan. The industrial units will be located at sites that are environmentally acceptable.
Industries, which are using chemicals above the limits/quantities, as prescribed in the Environment Protection Act Rules for hazardous chemicals, notified by the Government of India, should be considered hazardous industries. Hazardous waste may be disposed off in the identified areas after taking precautionary measures. The disposal areas have to be prescribed carefully monitored and enforced and the site(s) will be identified in the Master Plan and will be, as far as possible, within the premises of the 500 acres area identified for the Industrial estate.
The Government of Maharashtra will constitute a monitoring Committee to ensure the compliance of the conditions mentioned in the notification, in which local representatives may be included."
5. The applicants have further stated that Dahanu Taluka can be divided into the coastal belt of lowlands and flats extending from the coast to the foot of the Sahyadri Range. The 35 Km. coastal belt of Dahanu Taluka with its rich natural resources, wetlands, mangroves and river deltas forms a lucrative fishing area. The forest belt to the east of the foothills consists of tropical deciduous forests, 38% of the land comprises protected forests. They harbour a rich variety of wildlife including endangered species such as leopards, spotted deer, barking deer and mouse deer. The coastal creeks and inlets at Dahanu Taluka are the feeding grounds for various species of fish. Despite its close distance to the big metropolitan of Mumbai, the area of Dahanu Taluka has remained mostly 'green', hosting a rich diversity of plants and wild animals. It is considered the lungs of the crowded and over-polluted Mumbai. Dahanu Taluka is a Vth Scheduled Area and as such is subject to the special provisions of the Constitution which seek to preserve the ethnic, linguistic and cultural identity of tribal area. The population of Dahanu Taluka consists predominantly of the indigenous community of Warlis. Thus, the 4 geographical and demographical characteristics of the area contribute to the unique nature of this region.
6. Reference is then made to the judgment of the Hon'ble Supreme Court in Bittu Sehgal v. UOI1, directing implementation of 'Precautionary' principle and implementation of NEERI recommendations for protection of ecologically fragile Dahanu Taluka as per Notifications dated 19.02.1991 and 20.06.1991. The recommendations are quoted in paragraph 14 of the judgment which are reproduced below:-
"6.5 Recommendations Management of ecologically-fragile areas to achieve the overall aspirational goal of sustainable development warrants legal interventions based on the precautionary principle, conservation of natural resources, and environmental protection. There is thus an adequate reason to take resource to Sections 3, 4 and 5 of the Environment (Protection) Act, 1986 for ensuring effective management of ecologically-fragile areas in the country.
In order to address the complex issues in planning and management of ecologically-fragile areas, it is prudent that the Central Government considers constituting an authority under the Environment (Protection) Act, 1986 and confers on this authority all the powers necessary to deal with the situation created in Dahanu region and other environmentally-sensitive regions in India. The authority should be headed by a retired Judge of the Supreme Court and may have other members -- with expertise in the field of hydrology, oceanography, terrestrial and aquatic ecology, environmental engineering, developmental and environmental planning, and information technology.
An Authority for Management of Ecological Fragile Areas as per the composition delineated above, with mandate for coordination and implementation of all activities of planning, development, allocation, implementation, research and monitoring in ecologically-fragile areas needs to be established to operationalise the precautionary principle in sustainable development. The mandate of the authority needs to include the following:
-- To identify ecologically-fragile regions and buffer zones in the country, and to delineate and implement appropriate regulations.
-- The deploy ecological units as the basis for regional planning in ecologically-fragile areas.1
(2001) 9 SCC 181 5
-- To delineate guidelines for regional planning in ecologically-
fragile areas.
-- To ensure preparation of medium and long-term regional and master plans, and their implementation through existing institutions.
-- To examine, review and effect modifications in any project/plan/policy envisaged by the Government of India/State Government/Local-Self Government that has adverse bearing on ecological fragility of the region.
-- Monitoring of ecology and environmental media quality for effecting corrective measures.
-- Capacity building in existing institutions for management of ecologically-fragile regions.
-- To ensure community participation in the management of natural resources and protection of ecology."
7. Further directions in the judgement are constitution of an independent authority and monitoring implementation of the regional development plan. Observations in that regard are:
"19. We are of the view that continuous monitoring at the level of the State Government and also by some independent statutory authority is necessary to protect the ecologically-fragile Dahanu Taluka. The State Government is under an obligation to implement the town/original plan as approved by the Government of India subject to the conditions imposed in the official memorandum dated 6-3-1996, by the Government of India. We direct the State of Maharashtra to execute the said plan subject to the conditions and also the two notifications issued by the Government of India dated 19-2-1991 (CRZ Notification) and also the notification dated 20-6-1991 pertaining to Dahanu area. The State Government shall also take into consideration and implement all the recommendations of NEERI as re-produced by us in the earlier part of this order"
8. Pursuant to the order dated 31st October 1996 referred to above, the Ministry of Environment and Forests issued a notification number S.O. 884 (E) dated 19th December 1996 constituting an authority that was to be known as Dahanu Taluka Environment Protection Authority (DTEPA). In accordance with the directions contained in the Supreme Court order dated 31st October I 996, Justice (Retd.) C.S. Dharmadhikari, 6 a retired High Court Judge was appointed as the Chairperson of the said Authority. The other members of the Authority included experts in the field of hydrology, oceanography, terrestrial ecology, environmental engineering, environmental planning and information technology. The authority also included the District Collector, the Member Secretary of the MPCB, a representative of an NGO and the Deputy Secretary of the Urban Development Department, Government of Maharashtra.
9. It is further stated that in 1997, the DTEPA was called upon to decide a matter with regard to a port that was proposed to be set up in Vadhawan, a small fishing village falling within the ecologically sensitive Dahanu region. On 17th February, 1997, the Government of Maharashtra accepted a proposal from P&O Australia to build an international port at Vadhawan. The Petitioners herein as well as other civil society groups petitioned the DTEPA contending that the construction of the port would cause massive damage to Dahanu's fragile eco-system, and would have serious repercussions with the lives of the people of Dahanu. By its order dated 19 th September 1998 the DTEPA held that Dahanu is the last surviving Green Zone on that Coastal area, is an ecologically fragile area, and the construction of such a port will be detrimental to the environmental and the socio- economic conditions of Dahanu area. The DTEPA held that in view of these considerations the construction of such a Mega Port at Vadhavan would be 'wholly impermissible and, therefore, will be illegal'. In view of the DTEPA's decision, P&O India announced that it would not be going ahead with the plan to develop a port in Dahanu. The DTEPA in its order dated 19th December 1998 contemplated on the meaning of the word 'industry' as per the EFA Notification and noted as follows- 7
"The word 'industry' is not defined in the Act or notification. It is well settled that the words and expressions not defined in the Act, or statutory instrument, must receive a general construction, ad should be understood in their generic sense. If so, understood such a vast port, will obviously fall within the ambit and scope of the word industry."
10. It is submitted by the applicants that the impugned directions issued by the CPCB dated 30 th April, 2020 and the Office Memorandum issued by the MoEF dated 8 th June 2020 are in a series of steps taken by the Central Government and its agencies to remove any potential impediments to the setting up of a port in Vadhawan. Having identified the DTEPA as one such impediment given its order passed against the setting up of a port in Vadhwan previously, the MoEF has taken calculated steps to impair its effective functioning by withholding grants, moving the Hon'ble Supreme Court to do away with the DTEPA, appointing Secretary to Govt., instead of a retired High Court judge, as Chairperson DTEPA. The applicants further submit that the Port activities cover a wide range of functions and include access channel dredging, cargo handling, infrastructure such as warehouses, sheds, gantries, docks, railways, roads, canals, tunnels and bridges within the port area. The planning, development and operation of a port could therefore be described as an undertaking and would fall within the definition of an 'industry' as described above. Ports and their operations are the cause of a large number of environmental pollutants. Dredging activities which are an intrinsic part of port operations disturbs local ecosystems, brings sediments into the water column, and can stir up pollutants captured in the sediments. Therefore, ordinary notions associated with industries or industrial activity ought to be discarded for a more inclusive definition that will further the objectives of the statutes meant to protect the environment. If it is held that a port and its associated activities are not industrial activities, they will evade environmental scrutiny. 8
11. The applicants have then given the background of CPCB guidelines. The first exercise in bringing about uniformity in categorization was undertaken by the CPCB in 2012. In order to harmonize the criteria on categorization, a "working group" was formed and a resolution to this effect was passed in the 57th Conference of the Chairman and Member Secretaries of the CPCB and the SPCBs. As per the criteria formalized at this Conference, categorization of the industries into red, orange and green categories was primarily based on the size of the industries and consumption of resources. The pollution due to discharge of emissions and effluents and its likely impact on health was not considered as primary criteria for categorization. A need was thus felt to revisit the criteria for categorization of industries. Second exercise in classification of industries commences in 2015. Detailed discussions were held with regard to the categorization of industries at the National Level Conference of the Environment Ministers of the States held in New Delhi in April, 2015. The following resolutions came to be passed at the National Level Conference:
"1. A 'Working Group' comprising of the members from CPCB, APPCB, TNPCB, WBPCB, PPCB, MPPCB and Maharashtra PCB is constituted.
2. This WG shall revisit the categorization of industries that is based on pollution index criteria & environmental issues such as generation of emission, effluent and hazardous wastes.
3. The categorization will be done on the basis of composite score (0-100 marks) of Pollution Index given in accordance with the following weightage.9
Air Pollution Score based on parameters namely 40 marks PM, O, NOx, Sox, HMs, Benzene, Ammonia and other toxic parameters relevant to the industry Water pollution score based on parameters 40 marks namel pH, TSS, NH3-N, BOD, Phenol and other toxic pollutants relevant to the industry.
Hazardous waste (land fillable, incinerable, 20 marks recyclable0 as generated by the industry Note:
Parameters to be decided on the basis of the nature of the wastes generating from the industrial sector.
Industries having only either water pollution or air pollution, the score will be normalized w.e.t.100.
4. Based on the score of the Pollution Index, following categorization be made:
Type of industries, if scores 60 and above be categorized as Red Type of industries, if score from 30 to 59 be categorized as Orange Type of industries, if score from 15 to 29 be categorized as Green Type of industries, if less than 15 be categorized as White or non-polluting industry.
5. SPCBs/ PCCs may issue consent to the industries:
Red category of industries for 5 years Orange category of industries for 10 years Green category of industries for 15 years No necessity of consent for non-polluting industries
6. No red category of industries will be permitted to establish in eco-sensitive areas and protected areas."
12. The Pollution Index ('PI') of any industrial sector is a number from 0 to 100 and the increasing value of PI denotes the increasing degree of pollution load from the industrial sector. The following criteria with 10 regard to the range of Pollution Index for the purpose of categorization of industrial sectors came to be finalized by the working group:
a. Industrial Sectors having pollution Red Category index score of 60 and above b. Industrial Sectors having pollution Orange Category index score of 41 to 59 c. Industrial Sectors having pollution Green Category index score of 21 to 40 d. Industrial Sectors having pollution White category index score inclusive and upto 20
13. Based on this revised categorisation, 244 industrial sectors were assessed as per the proposed formula by the Working Group. After careful examination and consideration of the suggestions of concerned stake- holders the "Draft Document on Revised Concept of Categorization of Industrial Sectors" was prepared by the Committee and circulated to all the SPCBs, PCCs and concerned Ministries for their comments. After considering the responses received from all the stakeholders, the re- categorization of industries based on their Pollution Index Score was finalised. On the basis of the Working Group study and the discussions held at the 57th National Level Conference, the CPCB issued a circular dated 7th March 2016 to all State Pollution Control Boards and Pollution Control Committees directing them to follow the revised categorisation of 244 industrial sectors.
14. On 17th February 2020, the CPCB issued an Office Memorandum constituting another committee to consider categorization of new/ left out industrial /sectors into "red", "orange", "green" and "white" category of industries. The Office Memorandum noted the exercise conducted in 2012 and 2016 to bring about uniformity in categorisation and that a need was felt to categorise upcoming industrial sectors on a pan-India level and to 11 resolve the anomalies in categorization of industries, if any. A committee comprising of members of CPCB was constituted by the said Office Memorandum. The terms of reference and guidelines of the committee were as follows:
(i) Look into available references regarding categorization of upcoming sectors which require categorization on pan India level and any other anomalies in existing categorization.
(ii) Invite representatives of concerned SPC babes slash PCs representatives of concerned industrial sectors any other members as and when required
(iii) concern division dealing with industry another sector to be categorised would provide technical inputs and assistance to the committee.
15. On 20th February 2020 the Respondent No. 3 (Ministry of Shipping, Government of India) requested the MoEF to clarify whether ports fall in any of the categories that may have a detrimental effect on the environment. In response, the MoEF issued an Office Memorandum (`OM') dated 8th June 2020. The Office Memorandum refers to the directions issued by the CPCB dated 30th April 2020 and states that since ports, harbours, jetties and dredging operations have been listed as non-industrial operations under the CPCB directions, they no longer fall under the "red" category. The OM further states that in view of the CPCB directions, 'port' does not fall under red category of industries and therefore activities relating to the 'port' falling in the Ecologically Sensitive Area can be undertaken in accordance with the provisions of the Notification dated 20th June 1991.
12
16. We have heard learned counsel for the applicants and given due consideration to the issue raised. Main question raised is that while the area is eco fragile areas where developmental activities are regulated, the impugned CPCB guidelines and the MoEF OM have the effect of doing away with the precautionary principle and sought to permit unrestricted Port activities which are hazardous and polluting and incompatible with conserving the area in question consistent with the activities which can be allowed in an eco-fragile area. There is no expert study conducted nor past studies disallowing port in the area considered.
17. We find merit in the contention that there cannot be omnibus declaration of all ports and allied activities as 'non-industrial' activities so as to nullify the prohibition intended for protection ecologically fragile area of Dahanu Taluka in terms of Notification placing such restrictions without study of the impact on the said area. The judgment of the Hon'ble Supreme Court in Bittu Sehgal v. UOI, supra, mandates observance of Precautionary and Sustainable Development Principles for protection of the above ecologically fragile area in the light of NEERI report mentioned above. The background mentioned by the applicants show that in the past there was attempt to set up big port which was found to be incompatible with ecologically fragile area. Order dated 19.09.1998 was passed by DTEPA, constituted in pursuance of the order of the Hon'ble Supreme Court, upheld objection to setting up of the port in the area with the following observations:-
"Dahanu Notification dated 20th June, 1991 declares Dahanu Taluka as an ecologically fragile area and imposes restrictions on setting up of industries, which will have detrimental effect on environment. It further lays down that no change of existing land use will be permitted for such area in the Master Plan or Regional Plan for the Taluka. The total area within the Dahanu Taluka for location of permissible industries will be restricted to maximum of 500 acres within the industrial area earmarked in the Master Plan. The word 'industry' is not defined in the Act or notification. It is well settled that the words 13 and expressions not defined in the Act, or statutory instrument, must receive a general construction, and should be understood in their generic sense. If so, understood such a vast port, will obviously fall within the ambit and scope of the word 'industry'. Therefore, the construction or establishment of such a Mega Port is wholly prohibited by notification dated 20th June, 1991, popularly known as Dahanu Notification. It is pertinent to note that this notification is not amended and still holds the field. Further no modification in the Regional Plan is permissible, which is not in conformity with this notification. It is also pertinent to note that the original plan was prepared as per the directions of the Supreme Court, and as observed by the Supreme Court, it has to be in conformity with the two notifications issued by the Government of India. Further, it has to take into consideration the recommendations made by NEERI.
It was also contended by the Counsel for the Dahanu Taluka Environment Welfare Association (DTEWA) that the 1997 amendment and the changes made there in will be applicable to the existing ports and not otherwise. It will not permit construction of new Port. The said amendments will only accord permission for modernization and expansion of the existing ports and harbours. Thus intention and purpose of the said amendment is limited one. According to the Learned Counsel, it only empowers the Government concerned to permit the user for providing certain facilities to the public and not otherwise. However, as already observed, it is not necessary to decide any wider question so long as the 20th June 1991 notification relating to the Dahanu area holds the field. This is more so, in view of the special status of the Dahanu area and the directions issued by the Supreme Court, as well as the interpretation of the notification by the expert members of this Authority.
It appears that Dahanu is last surviving being Green Zone on that Coastal area, and is ecologically fragile area. No construction work is permitted of any type in the 500 metre of the High Tide area. According to the recommendations made in the report of NEERI, construction of such a port will be detrimental to the environmental and the socio-economic conditions of Dahanu area, as well as will be contrary to the notifications issued in the year 1991. This Authority, as directed by the Supreme Court, has to ensure implementation of the said two notifications and also to consider and implement the recommendations of the NEERI. As to whether that the amendments issued in the 1997 will change the colour of the whole controversy or will require reconsideration of the observations made and directions issued by the Supreme Court is a question, which is beyond our authority and jurisdiction. To say the least anything which will be contrary to and in breach of the directions of the Supreme Court, is wholly impermissible. More so, when the writ petition stands transfer to the Bombay High Court. Therefore, taking overall view of the matter a conclusion is inevitable that as the position stands today the construction of such a Mega Port at Vadhawan is wholly impermissible and, therefore, will be illegal."14
18. In view of the above background, it is patent that there is no consideration to the issue of activities which cannot be allowed in the ecologically fragile area in terms of the Notification and judgment of the Hon'ble Supreme Court and also no study as to the activities which can be allowed having regard to the impact of pollution generated on the ecologically fragile area. Classification de hors study of impact on the ecologically fragile area, leading possibly to an interpretation that there is no restriction of activities not classified as 'industrial', including 'ports' which were earlier disallowed, having regard to the adverse impact on environment in the said ecologically fragile area, will defeat the Precautionary and Sustainable Development principles.
19. Accordingly, we are of the view that the directions of CPCB in question and the O.M. issued by the MoEF&CC need to be revisited by undertaking assessment and evaluation by an expert group of impact of setting up port on overall ecology of the area in question, comprising of atleast five renowned experts, including expert in Marine Biology/Ecology and Wildlife Institute of India which may visit the site and interact with stake holders. Other members can be from EAC dealing with ports and harbours or otherwise. Till such a study is carried out and fresh decision taken, the impugned direction and O.M. in so far as they apply to the Dahanu Taluka ecologically fragile area may not be given effect. It is made clear that it will be open to any aggrieved party to challenge any fresh decision taken in the matter.
20. We have not considered it necessary to issue notice as we are only directing compliance of pre-existing judgment of the Hon'ble Supreme Court. However, we give liberty to the MoEF&CC and the CPCB to move this Tribunal if they are aggrieved by this order.
15
The application is disposed of.
In view of order in the main matter, I.A. No. 17/2021 also stands disposed of.
A copy of this order be forwarded to MoEF&CC and CPCB by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM M. Sathyanarayanan, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM June 15, 2021 Original Application No. 22/2021(WZ) A 16