National Green Tribunal
News Item Published On 21 Nov 2021 In The ... vs Union Of India & Ors. (2017) 7 on 30 November, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 03 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
I.A. No. 301/2022
In
Original Application No. 324/2021
In re : News item published on 21.11.2021 in the Indian Express titled
"Lakes of Bengaluru : Industrial effluents, raw sewage; stinky
tale of Chandrapura lake"
Date of hearing: 30.11.2022
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
Applicant: Mr. Darpan KM & Mr. Rajat Jonathan Shaw, Advocates for Applicant
(State of Karnataka) in I.A 301/2022
ORDER
1. This Application has been filed by the State of Karnataka for modification of order of this Tribunal dated 10.10.2022 in O.A No. 324/2021, In re : News item published on 21.11.2021 in the Indian Express titled "Lakes of Bengaluru : Industrial effluents, raw sewage; stinky tale of Chandrapura lake".
2. By the above order, the Tribunal considered the environmental damage to the lake and failure of the State Authorities to prevent and remedy the same. The violations included illegal encroachments in the buffer zone and unregulated discharge of pollution by the industries in the adjoining industrial area and Jigani, Hebbagodi and Bommasandra municipalities. The Tribunal considered the factual aspects emerging from report of the joint Committee comprising of CPCB, State PCB, 1 Indian Institute of Science, Bengaluru, SEIAA, Karnataka, National Wetland Committee, State Wetland Authority and the District Magistrate, Bengaluru and the action taken report dated 08.10.2022 filed on behalf of Chief Secretary, Karnataka. Relevant extracts from the order are as follows:-
"
12. The report of the Chief Secretary and annexed documents, including the report of the service provider submitted to the KIADB show the details of the lake and extent of damage thereto. Relevant extracts therefrom are:-
"The Chandapura lake in Anekal, is located around 25 KM from Bengaluru. It was built during the Chola dynasty to meet the drinking water requirement and other domestic water requirements of the local villagers like bathing, cloth/ animal washing, etc. The Chandapura lake is situated in east side of Bommasandra industrial area. The Chandapura lake is spread over 7.2 acres in Heelalige village and 17.27 acres in Chandapura town. Out of the total 24.27 acres, nearly two acres of the lake in Chandapura town has been encroached by construction activities. The GPS coordinates of Chandapura lake is 12.805571° N and 77.705281°E. Earlier, this lake has played an important role in the supply of drinking water and in meeting domestic and agricultural needs of the Region, apart from maintaining micro temperature control around the area. Besides recharging groundwater, lake has also been home to many animals, birds, aquatic species and prevented flooding.
xxx ....................................xxx....................................xxx One of the major pollutants of the lakes in the region has been the mushrooming of Red Category industries (industries having pollution index score of 60 and above) in the Jigani-Bommasandra industrial area and discharge of effluents into lakes in violation of the zero liquid discharge (ZLD) policy of the government. Under the ZLD water management system, no untreated water is supposed to be released into lakes.
However, untreated effluents from industries continuously enter stormwater drains and flow into the lakes of Anekal. There are around 195 red category industries in the Jigani-Bommasandra area which include drug manufacturing companies, electroplating, powder coating, pickling, heat treatment, galvanizing, casting, lead-acid battery manufacturing, used oil reprocessing, lead smelting and chemical industries. xxx ....................................xxx....................................xxx 2 Out of the total 24.27 acres, nearly two acres of the lake in Chandapura town has been encroached by construction activities. The buffer zone of the lake has been encroached by a government hospital and local shops. The fence around the lake has been broken and garbage is littered on its boundaries.
There are numerous water tanker lorries supplying water directly from bore wells next to the lake to consumers in Bengaluru for domestic needs. There are water packaging industries in Bommasandra that supply water to the entire city. IISc in its report on water quality in the lakes has warned about the deteriorating water quality in Anekal area.
As per the records of KSPCB, 206 industries out of 543 industries (129/385 in Jigani-Bommasandra Phase- IV industrial Estate 85 77/158 Bommasandra Industrial Estate Phase I and Veerasandra industrial estate) are sending their trade effluents to CETPs either in the same industrial estate or to CETPs located at around 25 KM to 84 KM through tankers and there may be chances of illegal discharge of effluents into drains/valleys/water bodies by the tankers. It is recommended to explore the possibilities of construction of CETPs within industrial estates with tamperproof 85 closed conduit system for pumping of trade effluents with individual online flow meters. This will help in tracking the records on quantity of effluents being sent to CETPs and identify the illegal discharges.
It can be observed that increase in the built up area to a tune of 24.82% itself has made significant impact on the quality and extent of water bodies in the region. If the present vegetation/agricultural land which is available to an extant of 39.95% and open land/agricultural land which is available to an extant of 33.69 % is converted in to an built up area, then the environmental impact which is going to cause to the surrounding area cannot be measured.
Some of other major lakes which are situated near Chandapura lake are given in Table 1:
Table-1: Some of major lakes near Chandapura Lake S. No Name of Lake Latitude Longitude Distance from (N) (E) Chandapura Lake
1. HebbagodiKere 12.830757° 77.674474° 4.34 km, NW
2. KithiganahalliAttikere 12.808490° 77.689945° 1.34 km, W
3. Kachanayakanahalli 12.802293° 77.676702° 2.64 km, SW
4. Hennagara 12.777382° 77.661321° 3.84 km, SSW
5. Muthanallur 12.818549° 77.725574° 1 km, NNE 3
6. Jigala 12.799858° 77.773401° 6.45 km, E From the above layout map, it can be observed that around 5 water bodies are present on the downstream of industrial area and mostly have cascading effects. Any change in the land use/ land cover on the upstream industrial area has serious impact on the downstream water bodies. Hence it is necessary to examine all the issues before changing the land use of the area."
13. From the study report prepared at the instance of the State of Karnataka, it is patent that huge damage has been caused to the lake in question. Such damage is clearly attributable to inaction or complicity of the authorities of the State of Karnataka. There are illegal encroachments and construction activities, unchecked violations of environmental norms by the industries, failure to protect and regulate buffer zones and catchment areas of the lake and to control pollution. Water quality of the lake has deteriorated. Though the Chief Secretary has issued directions, there is no meaningful compliance in the form of restoration of the damage already caused. No accountability has been fixed for the violations which have already taken place nor compensation is shown to have been recovered from the polluting industries.Sources of pollution are not shown to have been closed. The result is continuing damage to the environment and public health. This is clear breach of 'Public Trust Doctrine' for which the State has to be held accountable. The State has failed to protect environment and provide clean environment to citizens in breach of its to enforce right to life and 'Sustainable Development' principle. Lake ecology and eco-system have hugely suffered. The State is thus, to be held liable to pay environmental compensation and to restore the eco system. Needless to say, the State is free to recover the amount of compensation which it is being required to pay from erring violators - industries, encroachers and erring officers, following due process of law.
14. In terms of direction of the Hon'ble Supreme Court in M.K. Balakrishnan& Ors. vs. Union of India & Ors. (2017) 7 SCC 805, Para 23, the Wetland Rules apply not merely to notified wetlands but also to all wetlands.Some wetlands have been mapped mentioned in the Atlas and the exercise is ongoing. In light of the said judgment, this Tribunal vide order dated 25.11.2021 in O.A No.351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors.issued directions for conservation and protection of all wetlands and monitoring of compliance norms at the level of Districts by the District Magistrate, heading the District Wetland Committee, at the State Level by the State Wetland Authority and at the National Level by the National Wetland Committee by demarcation of the area, preventing/ removing encroachments, and maintaining of water quality by preventing discharge of sewage or other waste.
415. Having regard to significance of loss of environmental services of the lake which are foregone forever and continuing loss, compensation is required to be determined on principles laid down inter alia in MC Mehta, (1987) 1 SCC 395, Sterlite (2013) 4 SCC 575 and Goel Ganga (2018) 18 SCC 257 for restoration based on estimated cost and financial turnover. In absence of precise data, quantum of compensation has to be fixed on estimate basis. We determine the amount of compensation at Rs. 500 crores for reasons to be stated in later part of this order. The amount may be deposited within one month and kept in ring-fenced account with the State PCB which will be the responsibility of the Chief Secretary, Karnataka. The amount may be utilized for restoration measures preferably within six months, as per directions and supervision of a Monitoring Committee.The same will be headed by Chairman, State Wetland Authority. Other members will be the Principal Secretary/ACS, Urban Development,nominees of Regional Office, MoEF&CC, Bangalore, Regional Director, CPCB, Bangalore, Member Secretary, State PCB, District Magistrate, KIADB, Karnataka Tank Conservation and Development Authority. The Chairman of the Committee may evolve mechanism for coordination and working. The Committee may meet within one month. It will be free to interact with the concerned departments or any other institutions/individuals/ stakeholders.
16. We may indicate the broad basis for fixing the quantum of compensation. Relevant data about the turnover in the industrial area is not forthcoming from counsel for the State except that the total industrial zone is in around 1002 hectare, with 195 red category industries and 148 orange category industries. Data of quantum of sewage discharged except has also not been furnished by the State except that it covers three local bodies. With available data, best judgement assessment is being made aboutthe estimated cost of restoration measures even on a conservative approach.However, if the amount is not found to be adequate, the State will be liable to provide extra funds.If the amount is found to be surplus,the same may be utilized by the State for restoration measures as per District Environment Plans of the concerned Districts. It is matter of common knowledge that there is general degradation of environment and much more proactive approach is expected from the State.Further, it is made clear that the quantum of compensation can be reconsidered if data is produced by the State within one month, justifying such reconsideration.
17. Restoration measures may include biological measures (such as plantation/afforestation of suitable trees, shrubs and grass in consultation with State Forest Department) and engineering measures (such as gabion structures, check dams, gully plugging at the mirco-watershed level to stabilize the catchment ecology, in-situ and ex-situ measures for upgrading the water quality of the lake at least to 'C' categories (as per categorization of water quality criteria by CPCB), rehabilitation of lake eco-system, maintaining bio-diversity of the lake by measures such as introduction of fishes of suitable species, maintenance of suitable oxygen level in the lake by steps such as artificial aeration,using eco-technology, demarcation of 5 boundary as per Wetland Rules, 2017 and Wetland Conservation and Management Guidelines, 2020 issued by MoEF&CC and steps for removing encroachments and preventing any future encroachment.
18. An interim action taken report may be filed by 31.1.2023 by e- mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.
19. The Chief Secretary, Karnataka may remain present in person by video conference on the next date.
List for further consideration on 22.2.2023."
3. The application mentions that the State Authorities will require 3-4 years to take remedial measures which will not justify direction to deposit the amount of Rs. 500 Crores immediately as the amount is to be spent in 3-4 years.
4. We do not find any merit in the application. Massive failure of the State Authorities has been noticed earlier which is not only violative of statutory mandate but also timelines laid down in the binding judgement of the Hon'ble Supreme Court in Paryavaran Suraksha vs. Union of India, (2017) 5 SCC 326 which have been required to be monitored by this Tribunal.
5. The timeline laid down by the Hon'ble Supreme Court are being separately monitored presently in O.A No. 606/202, Compliance of MSW Rules, 2016. In the said matter, after interaction with the Chief Secretary, Karnataka, the Tribunal passed latest order dated 13.10.2022 and found that the State was non compliant with the judgment of the Hon'ble Supreme Court which had resulted in huge loss to the environment and public health for which the State was accountable on polluter pay principle. Relevant extracts from the order are reproduced below:-
"Conclusion 6
53. We hope in the light of interaction with the Chief Secretary, the State of Karnataka will take further measures in the matter by innovative approach and stringent monitoring, ensuring that gaps in solid and liquid waste generation and treatment are bridged at the earliest, shortening the proposed timelines, adopting alternative/interim measures to the extent and wherever found viable. Environment compensation for restoration can be dovetailed with the State budget. Bigger towns with population of more than one lakh like Bangalore, Hubli and Dharwad, Mysore, Gulbarga, Mangalore, Belgaum, Davanagere, Bellary, Bijapur, Shimoga, Tumkur, Raichur, Bidar, Hospet, Gadag and Betigeri, Bhadravati, Robertson Pet, Chitradurga, Kolar, Mandya, Hassan, Udupi, Chikmagalur, Bagalkot, Ranibennur, Gangawati may need to be dealt with on separate footing for sewage and solid waste management.
54. The restoration plans need to be executed at the earliest simultaneously in all districts/cities/ towns/ villages in a time bound manner without further delay. If violations continue, liability to pay additional compensation may have to be considered. Compliance be ensured by Chief Secretary.
55. It will also be open to the State to plan raising of requisite funds from generators/contributors of waste or by any other legal means.
Determination of liability for compensation for restoration of environment
56. Apart from compliance in future, the liability of the State has to be fixed for the past violations in the light of earlier binding orders passed in pursuance of orders of Hon'ble Supreme Court dated 2.9.2014 in WP 888/1996, Almitra Patel and dated 22.2.2017 in WP 375/2012, Paryavaran Suraksha. Order dated 22.12.2016 in Almitra Patel clearly laid down liability for compensation for breach of statutory timelines. Similarly, liability for compensation was laid down for failing to install water pollution control devices after 31.3.2020. The Tribunal has to follow 'Polluter Pays' principle under Section 20 of the NGT Act. The State Authorities contributing to the pollution by failing in their constitutional duties are to be held accountable on this principle. Admittedly, timelines under Supreme Court orders and orders of this Tribunal for preventing water pollution and statutory timelines for solid waste management are over. Thus, atleast from 01.01.2021, the 'Polluter Pays' principle has to be applied. Compensation has to be equal to the loss to the environment and also taking into account cost of remediation.
57...........
Finding about quantum of compensation by Karnataka and its utilization for restoration measures
58. Following the above pattern, we determine compensation payable by the State of Karnataka. In respect of gap in treatment of liquid waste/ sewage i.e. 1427.4 MLD, compensation works out to Rs. 2856/- crores. Un-remediated legacy waste is to the extent of 178.59 MT. The total compensation under the head of failure to 7 scientifically manage solid waste works out to Rs. 540 crores. The total compensation comes to Rs 3396 crores, or say Rs. 3400 crores. Out of the said amount, we deduct amount of Rs. 500 crore levied as compensation vide order dated 10.10.2022 in OA No. 324/2021, In re : News item published on 21.11.2021 in the Indian Express titled "Lakes of Bengaluru : Industrial effluents, raw sewage; stinky tale of Chandrapura lake" for restoration of Chandrapura lake. Remaining amount of Rs.2900 crore may be deposited by the State of Karnataka in a separate ringfenced account within two months, to be operated as per directions of the Chief Secretary and utilised for restoration measures preferably within six months. As already directed, the Chief Secretary may evolve an appropriate mechanism for planning, execution and oversight of programmes for remedial action involving concerned departments within one month.
59. Award of above compensation has become necessary under section 15 of the NGT Act to remedy the continuing damage to the environment and to comply with directions of the Hon'ble Supreme Court requiring this Tribunal to monitor enforcement of norms for solid and liquid waste management. Moreover, without fixing quantified liability necessary for restoration, mere passing of orders has not shown any tangible results in the last eight years (for solid waste management) and five years (for liquid waste management), even after expiry of statutory/laid down timelines. Continuing damage is required to be prevented in future and past damage is to be restored.
Directions for further follow up
60. Further, six monthly progress reports with verifiable progress may be filed by the Chief Secretary with a copy to the Registrar General of this Tribunal by e-mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF. Copies thereof may be furnished to the NMCG, MoUD and CPCB and also be placed on the website of the State Government.
61. To sum up:
(i) The steps taken by the State of Karnataka for solid waste management are inadequate in terms of compliance of SWM Rules, 2016, judgment of this Tribunal dated 22.12.2016, (2016) SCC Online NGT 2981 and subsequent orders in pursuance of order of the Hon'ble Supreme Court dated 2.9.2014 in W.P. No. 888/1996, Almitra H. Patel.
(ii) Steps taken by the State of Karnataka to handle liquid waste are inadequate in terms of the judgment of the Hon'ble Supreme Court in Paryavaran Suraksha, (2017) 5 SCC 326, followed by orders of this Tribunal inter alia dated 22.02.2021 in OA No. 593/2017 and also in terms of Water Act, 1974.
(iii) Admitted gap in generation and scientific handling of waste has resulted in damage to the environment and public health for which the State of Karnataka is liable to pay compensation of Rs. 2900 crores as per details already mentioned above (para 58). The amount of compensation is to be utilized for restoration measures preferably by evolving a suitable centralized single window mechanism by the Chief Secretary, 8 Karnataka in the light of above observations in paras 31 to 34 & 38 to 51 above. The laid down timelines need to be strictly adhered to and monitored.
(iv) Sources of clean water need to be maintained free from sewage and other waste and treated sewage used for non- potable purposes to save potable water. Already set up STPs need to be fully utilized and standards of water quality maintained as observed in para 38 to 43 above.
(v) The legacy waste dump sites need to be fenced and maintained as per SWM Rules, 2016 for fire safety and protection of inhabitants. In particular, the sites need to be suitably fenced and covered till remediation. The reclaimed land after clearance of legacy waste has to be used and such use needs to be declared at the earliest, as per observations in para 33 & 34 above. Requisite waste processing plants be set up as per observations in para 31 & 32, community involvement be explored as observed in paras 46 & 49 above.
(vi) NMCG and MOUD may monitor compliances and utilization of funds under centrally sponsored schemes, as per observations in para 52 above."
6. The timeline laid down by the Hon'ble Supreme Court cannot be extended by this Tribunal. We note that the State is taking liberty in fixing its own timelines in violation of those fixed by the Hon'ble Supreme Court and violating law with impunity. It is also not willing to abide by directions of this Tribunal on untenable plea raised in this application.
The compensation amount which has been fixed is for the violations which have already taken place, including the violations of direction of Hon'ble Supreme Court in Paryavaran Suraksha (Supra). For further delay, the compensation liability may have to be fixed separately. The plea that the amount is to be spent in few years and therefore, no liability has accrued is patently untenable. Liability for compensation has already accrued, which is in addition to continuing financial liability for future violations for many years as proposed by the State and prosecution and other coercive measures, in terms of judgement of the Hon'ble Supreme Court and the statutory provisions under the Water (Prevention and Control of Pollution) Act, 1974, and the Environment (Protection) Act, 1986.
9The Application is accordingly dismissed.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM November 30, 2022 I.A. No. 301/2022 In Original Application No. 324/2021 AB 10