Bombay High Court
Awaaz Foundation And Anr vs High Court Of Judicature At Bombay On Its ... on 18 March, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
1-SMPIL.3.2023
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SUO MOTU PUBLIC INTEREST LITIGATION NO. 3 OF 2023
High Court of Judicature at Bombay }
on its Own Motion } Petitioner
versus
The State of Maharashtra & Ors. } Respondents
WITH
INTERIM APPLICATION NO. 17880 OF 2023
IN
SUO MOTU PUBLIC INTEREST LITIGATION NO. 3 OF 2023
Kalpesh Bhagat } Applicant
In the matter between:
High Court of Judicature at Bombay }
on its Own Motion } Petitioner
versus
The State of Maharashtra & Ors. } Respondents
WITH
INTERIM APPLICATION NO. 17225 OF 2023
IN
SUO MOTU PUBLIC INTEREST LITIGATION NO. 3 OF 2023
Awaaz Foundation & Anr. } Applicants
In the matter between:
High Court of Judicature at Bombay }
on its Own Motion } Petitioner
versus
The State of Maharashtra & Ors. } Respondents
Mr. Darius Khambata, Sr. Adv. Amicus curiae a/w Mr. Tushar
Hathiramani, Mrs. Vidhi Shah, Ms. Shreenandini Mukhopadhyay.
Mr. Janak Dwarkadas, Sr. Adv. a/w Ms. Rishika Harish, Ms.
Kanika Goenka i/b Shardul Amarchand Mangaldas for Intervenor
(Mr. Stalin Dayanand).
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Dr. Birendra Saraf, Advocate General a/w Mr. P. P. Kakade,
Government Pleder, Mrs. Jyoti Chavan, Addl. Govt. Pleader, Mr.
O. A. Chandurkar, Addl. Govt. Pleader, Mrs. R. A. Salunkhe,
AGP, for State.
Mr. G. S. Hegde, Sr. Adv. a/w Ms. P. M. Bhansali for MMRDA.
Dr. Milind Sathe, Sr. Adv. a/w Mr. Joel Carlos and Ms. Kejali
Mastakar i/b Mr. Sunil Sonawane for MCGM.
Shri Sunil Sardar, Ex. Eng. (Envt.), BMC Officer, Present in
Court.
Mr. A. S. Rao for Kalyan Dombivli Municipal Corporation.
Mr. Kedar Dighe for Pimpri Chinchwad Municipal Corporation.
Mr. Jagdish G. Radwad (Reddy) for Slum Rehabilitation Authority
and for Panvel Municipal Corporation.
Mr. Mandar V. Limaye for Thane Municipal Corporation.
Mr. Suresh M. Kamble for Ulhasnagar Municipal Corporation.
Mr. Tejesh Dande a/w Mr. Bharat Gahavi for Navi Mumbai
Municipal Corporation.
Mr. Vishal P. Shirke a/w Aditya P. Shirke for Parbhani Municipal
Corporation.
Ms. Swati Sagvekar for Vasai Virar City Municipal Corporation.
Mr. Sumit Vhanbatte h/f Mr. Aditya S. Raktade for Ichalkaranji
Municipal Corporation.
Mr. Y. R. Mishra for R. No. 5, UoI.
Mr. Abhinandan B. Vagyani i/b Mr. C. M. Lokesh for R. No. 8
(CPCB).
Dr. Birendra Saraf, Senior Advocate i/b Ms. Jaya Bagwe for
MPCB.
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CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
G. S. KULKARNI, J.
DATE: 18th MARCH, 2024 P.C.:
1. Heard Mr. Khambata, learned Senior Advocate (Amicus), Mr. Janak Dwarkadas, learned Senior Advocate, Dr. Milind Sathe, learned Senior Advocate and Dr. Birendra Saraf, learned Advocate General representing the respective parties.
2. The affidavit-in-reply filed on behalf of the Maharashtra Pollution Control Board (MPCB) on 15th March, 2024, gives certain details of the steps said to have been taken for ensuring compliance of the Court's order passed on 6th February, 2024.
3. In the said order dated 6th February, 2024, we had, inter alia, required the MPCB to study the report submitted by the experts from Indian Institution of Technology, Bombay (IIT Bombay) and National Environmental Engineering Research Institute (NEERI) and take decision and further steps which may be required pursuant to the said report. In the affidavit-in- reply filed by the MPCB, it has been stated that the recommendations made by the said Committee have almost all been accepted by the MPCB. The affidavit further mentions the steps to be taken by the MPCB on various aspects, including reduction of emission per unit fuel used, emission by industrial 3 ::: Uploaded on - 19/03/2024 ::: Downloaded on - 20/03/2024 07:06:25 ::: 1-SMPIL.3.2023 units, use of low Sulphur fuel in bakeries/ crematoria, use of LPG/CNG for bakeries and crematoria, use of biomass/trash burning, landfill waste burning etc.
4. The affidavit further states that now the constitution of the Coordination Committee has been altered and the Joint Director of MPCB will now act as its Member Secretary. According to the learned Advocate General this change of complexion of the Coordination Committee will accelerate the efforts to be taken for checking the air pollution levels.
5. It has also been stated in the affidavit that the first meeting of the Coordination Committee was held on 1 st March, 2024 under the Chairmanship of the Municipal Commissioner of the Mumbai Municipal Corporation of Greater Mumbai (MCGM) and various decisions were taken therein. Learned Advocate General has drawn our attention to the directions issued by the MPCB based on the decision taken in the meeting of the Coordination Committee held on 1st March, 2024. Said directions have been issued under Section 5 of the Environment (Protection) Act, 1986 (hereinafter referred to as "the Act of 1986") to the Municipal Commissioners of all the Municipal Corporations, to all the Municipal Councils, Transport Commissioner, Maharashtra State Road Development 4 ::: Uploaded on - 19/03/2024 ::: Downloaded on - 20/03/2024 07:06:25 ::: 1-SMPIL.3.2023 Corporation Ltd., Maharashtra Industrial Development Corporation and Mumbai Traffic Police.
6. We may note that the said directions have been issued by the MPCB under Section 5 of the Act of 1986 and hence it is not only that the said directions are binding on all the authorities as the same are statutory in nature but also that it shall be the responsibility of the MPCB itself to ensure that such directions issued under Section 5 of the Act of 1986 are strictly implemented and followed.
7. The affidavit further states that the MCGM has made provision of Rs.60 Crores for the financial year 2023-2024, with a further proposal of Rs.360 Crores for the financial year 2024- 2025 for undertaking the activities under Deep Clean Drive at wards level, which shall help in reducing the air pollution.
8. In paragraph 5 of the affidavit, it has been stated that certain measures have been taken for control of air pollution in the Mumbai Metropolitan Region area and identifying the departments which have to implement the same.
9. We, thus, direct that the said measures shall be immediately communicated to the concerned departments within two days.
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10. The Court in its order dated 6th February 2024 had also expressed its concern surrounding industrial emissions, which according to the MPCB itself contribute to about 20 to 30% of the PM 2.5 emission. The Court had also required the MPCB to consider conducting the pollution audit of all the industries in the Mumbai Metropolitan Region and furnish a roadmap for the said audit. Pursuant to this direction, in the affidavit, it has been stated that Central Pollution Control Board has developed methodology for classifying industries into four categories, namely, (i) Red Category, (ii) Orange Category, (iii) Green Category and (iv) White Category. The Red Category industries are those which are having high pollution potential such as thermal power plants, large chemical industries, refineries and asbestos manufacturing units etc. The Orange Category industries are those which are having medium pollution potential such as pulp and paper mills, sugar mills, dyeing units and tanneries etc. The Green Category industries are those which are having relatively low pollution potential. According to the affidavit, total number of Red Category industries in Mumbai Metropolitan Region are 7268, whereas Orange Category industries are 7841 and Green Category industries are 10,614. There are 566 Ready Mix Concrete plants, 67 Hot-mix plants 6 ::: Uploaded on - 19/03/2024 ::: Downloaded on - 20/03/2024 07:06:25 ::: 1-SMPIL.3.2023 and 410 stone crushers which also have high air pollution potential.
11. Exhibit - VI appended to the affidavit is the proforma for conducting pollution audit. Affidavit further gives certain details about deployment of staff for the purpose of conducting pollution audit, however, paucity of staff has also been averred and accordingly the MPCB is said to have approved a new staffing pattern for a total staff of 1310 proposed which would include technical, scientific, administrative and accounts staff for the State of Maharashtra. As per the affidavit, the said staffing pattern was approved in the 182nd Board meeting held on 12th February, 2024. Such proposed staffing pattern needs to be sanctioned by the State Government and accordingly, having regard to the nature of functions being performed by the MPCB, we direct that the said proposal shall be immediately sent to the Government, which shall scrutinize the same at its level and take appropriate decision at the earliest. We may also observe that if on account of the publication of notification of the ensuing parliamentary elections, any permission etc. of Election Commission of India / Chief Election Officer is required, the Government shall immediately move the authority concerned for the said purpose, which shall consider according its permission 7 ::: Uploaded on - 19/03/2024 ::: Downloaded on - 20/03/2024 07:06:25 ::: 1-SMPIL.3.2023 with expedition. We have issued this direction considering the scarcity of staff being faced by the MPCB and also because the broader public interest and human cause, such as checking the air pollution levels in the city having a population of about 21 million needs to be remedied immediately. We, thus, also direct that the MPCB shall immediately take further steps to initiate the process of pollution audit as per the roadmap submitted in the said affidavit. The process can be commenced by taking up the pollution audit of Red Category industries in the first phase.
12. We have perused the Fourth Report of the Committee comprising of experts from NEERI, IIT Bombay dated 14th March, 2024. The Report of the said Committed is extracted hereunder:-
"Comments from the Committee:
1) The AQI at stations 15, 19, 23, 25, 26, 27 and 31 seem to continue to remain in the Moderate to Poor range.
a. Focused attention as to which particular pollutant is leading to this situation, needs to be evaluated. If it is due to PM10, then dust control measures need to be studied and strengthened.
b. Given some concerns about water shortage in the Mumbai region, the road washing efforts need to be optimized. Since data for road washing are available for about 4 months now, there is adequate data to be able to assess and plan better.
c. A week-by-week ward-specific record of the road washing effort would be useful for assessing the 8 ::: Uploaded on - 19/03/2024 ::: Downloaded on - 20/03/2024 07:06:25 ::: 1-SMPIL.3.2023 effectiveness for pollution control, as well as deciding the frequency. If the required frequency is high, the source of silt would need to be contained.
2) A field visit was carried out by BMC and IITB Team to understand the dust sources on the roads including Eastern Freeway. The following observations were made:
a. The Garden Department needs to be trained to not fill the median garden beds to the brim. Watering theses leads to overflow of soil onto the road, which in turn gets resuspended by the running vehicles.
b. The freeway side guard railings do not prevent mud from the unpaved sides to overflow onto the road.
c. There is a clear housekeeping issue with regards to the sources of dust: dust and debris from road repairs/construction which have been completed, but the remaining materials are left unattended and spread onto the main roads.
d. The last few feet of the road which are left unpaved, are a source of silt loading. e. The sweeping takes care of litter (and biomass from tree leaves), but in the process suspends dust into the atmosphere.
f. Carriageway did not have enough silt loading, but the side/service road areas, where parking is dominant, has high silt leading and even cleaning/ washing of roads is difficult due to coverage by vehicles.
g. Site for dust suppressant study is to be identified where a controlled study can be carried out. A suggestion for carrying out this study on IIT Campus in Powai has been proposed.
3) A meeting was held between the Committee Members, MPCB and BMC Officials, and Professor S. N. Tripathi (IIT Kanpur) for potential deployment of Low-
Cost Sensors for monitoring air pollution at a "hyper- local" scale and thereby direct targeted actions as needed. The Committee advised that all data from 9 ::: Uploaded on - 19/03/2024 ::: Downloaded on - 20/03/2024 07:06:25 ::: 1-SMPIL.3.2023 previous experience from Lucknow and Bihar may be shared as a demonstration of the advantage of the proposed network.
4) Data from 32 CAAQMS are available for historically adequate period of time. The same may be analysed in preparation to compare with (3) above. This exercise is important also from the perspective of understanding of secondary aerosols.
5) The role of meteorology is evident from a sudden and dramatic improvement in the air quality on certain days. Engagement with IMD is strongly recommended."
13. We, thus, direct that the authorities concerned, including the Municipal Corporation, MPCB and various other municipal bodies within the Mumbai Metropolitan Region shall abide by the afore-extracted suggestions of the Committee.
14. Mr. Khambata, learned Amicus, has drawn our attention to various provisions of "Mumbai's Air Pollution Mitigation Plan"
evolved by the MCGM. Referring to Clause 12.2 of the said Plan, Mr. Khambata has stated that for control of air pollution emanating from industries, certain immediate actions and long-
term actions have been suggested and hence, the MCGM and other related authorities are bound by the same. Our attention has also been drawn to Clause 23, Exhibit "C" of the said Plan, according to which the MPCB is to monitor the air pollution emitted from the industries such as BPCL, HPCL, RCF, Tata Power, industries in nearby MIDC area etc., daily for next one 10 ::: Uploaded on - 19/03/2024 ::: Downloaded on - 20/03/2024 07:06:25 ::: 1-SMPIL.3.2023 month and take appropriate action. Such measures, according to Mr. Khambata, are to be taken on regular intervals.
15. In the note submitted by Mr. Khambata today it has been suggested that the team comprising of experts from IIT Bombay-NEERI, which had earlier submitted draft report in November 2021 and final report in December, 2023 on "Air Quality Monitoring, Emission Inventory and Source Apportionment Studies for Ten Cities in the State of Maharashtra (Mumbai City)", may be directed to consider the following aspects as well to ascertain more accurately the source apportionment study:
i. a longer sampling period is taken into account; ii. the study is based on results available at the 50 monitoring stations set up within the city of Mumbai (as opposed to only 6 monitoring sites at present); iii. the study incorporates a wider range of air pollutants as per the National Ambient Air Quality Standards in Schedule VII, Environment (Protection) Rules, 1986 including a divided study of PM2.5, PM10, Benzene, Ammonia, BaP, and Nickel (as opposed to the current study which is restricted to PM, SOx, NOx, CO, HC); iv. the study is conducted to review the air quality during different seasons, i.e., summer, monsoon and winter; and v. a ward-wise identification of largest contributors to pollutants in each wards."
16. The Court by means of order dated 10th November, 2023, had formed a Committee, which comprises of an expert from IIT 11 ::: Uploaded on - 19/03/2024 ::: Downloaded on - 20/03/2024 07:06:25 ::: 1-SMPIL.3.2023 Bombay, another expert from NEERI and an officer of the rank of Principal Secretary of the State Government. We, thus, request the said Committee to bring to the notice of the Court by the next date its opinion on the aforesaid aspects relating to source apportionment of air pollution.
17. We have requested the said Committee to consider the aforesaid suggestions in the light of the submissions made by Mr. Dwarkadas, learned Senior Advocate. According to him, the particulate matter with an aerodynamic diameter of less than or equal to 2.5 micron (PM 2.5) is a major component of ambient air pollution which contributes to cardiovascular disease.
18. Stand over to 20th June, 2024 at 3.00 p.m. (G. S. KULKARNI, J.) (CHIEF JUSTICE) 12 ::: Uploaded on - 19/03/2024 ::: Downloaded on - 20/03/2024 07:06:25 :::