National Green Tribunal
Court On Its Own Motion vs State Of Karnataka on 9 May, 2023
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 05 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(BY HYBRID MODE)
Review Application No. 03/2023
IN
Original Application No.125/2017
(I.A. No. 26/2023)
Court on its own Motion Applicant
Versus
State of Karnataka Respondent
--------------
Bangalore Apartment Federation -------- Review Applicant
Date of hearing: 09.05.2023
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Raj Panjwani, Senior Advocate (Amicus Curiae)
Mr. Shreyas Jayasimha & Mr. Deepanjay Dutta, Advocates for Review
Applicant (Bangalore Apartment Federation) in R.A 03/2023
ORDER
1. This application has been filed for review of order of this Tribunal dated 12.03.2021 in OA No. 125/2017, Court on its own Motion vs. State of Karnataka whereby the Tribunal dealt with the issue of remedial action for restoration of Bellandur, Agara and Varthur lakes at Bangalore, including preventing discharge and dumping of pollutants, removing encroachments from catchment area and other steps for restoration.
12. We have noted order of Hon'ble Supreme Court dated 26.08.2022 in Civil Appeal No. ______of 2022 (D. No. 21225 of 2022), Bangalore Apartment Federation vs. State of Karnataka & Ors. as follows:
"3. The primary grievance which has been urged by Mr Shreyas Jayasimha, learned counsel appearing on behalf of the appellant, is that though an impleadment application was filed by one of the directors of the Bangalore Apartment Federation before the National Green Tribunal1, no hearing has been afforded in that IA and several directions which have been issued by the NGT would affect the appellant.
4. If that be the grievance, we permit the appellant to move appropriate proceedings by way of review or otherwise before the NGT, as maintainable in law."
3. We have heard learned Counsel for review applicant. It is seen from the order dated 12.03.2021 that the Tribunal considered the issue of remedial action for restoration of Bellandur, Agara and Varthur lakes at Bangalore, including preventing discharge and dumping of pollutants, removing encroachments from catchment area and other steps for restoration. The matter was considered in the light of factual report by Committee headed by Shri Raj Panjwani, Senior Advocate dated 31.05.2018. The report was accepted on 06.12.2018 and an action plan was directed to be prepared under the supervision of Additional Chief Secretary, Urban Development Department, Karnataka. The plan was accordingly prepared which was directed to be executed under the oversight of a Monitoring Committee headed by Justice Santosh Hegde, former Judge of the Hon'ble Supreme Court. The Tribunal thereafter passed orders dated 21.10.2019, 18.12.2019, 13.08.2020 and finally 12.03.2021. Operative part of the order is reproduced below:
"xxx .........................................xxx................................xxx 1 "NGT"2
Analysis and further Directions
12. We have given due consideration to the issue. We do find some progress but we agree with learned Amicus that the progress is very slow and inadequate. The remaining work needs to be executed on war footing by remedying the deficiencies pointed out above by learned Amicus. We also permit learned Amicus to file a supplementary note directly to the Chief Secretary or to this Tribunal. If filed with the Tribunal, the same may be forwarded to the Chief Secretary, Karnataka for being addressed in positive spirit, in the light of observations already made and assurance of learned ASG.
13. Remedial steps to be taken so far for restoration of pristine ecology of the lakes in question have been discussed in earlier orders dated 6.12.2018, 21.10.2019, 18.12.2019 and 13.8.2020 and comments on some of the issues have been made hereinabove. Justice Hegde Committee has monitored the execution of the action plan on the subject for the last more than two years. We place on record our gratitude to Justice Hegde for the outstanding contribution in the matter.
14. However, monitoring by a Tribunal or Tribunal appointed Committee cannot be for indefinite period and ownership of execution of action plan for restoration of pristine ecology of the lakes/wetlands must be finally owned and taken over by the State authorities, headed by the Chief Secretary. Governance deficit has to be made up by further action in mission mode. The road-map has already been laid down by the orders of this Tribunal. We may note that apart from the present matter, issues of solid and liquid waste disposal generally and of polluted river stretches, water bodies, lakes and wetlands have been dealt with by this Tribunal in the light of Hon'ble Supreme Court decisions.2 Copies of such orders have been duly sent to the Chief Secretary, Karnataka and Chief Secretary also appeared in person twice before this Tribunal for interaction on these issues in OA 606/2018. There are 17 polluted river stretches in Karnataka including Tungabhadra which has been identified by the State to be model of compliance. Detailed guidelines have been laid down on all aspects of restoration of lakes and water bodies and several issues are overlapping with restoration of polluted river stretches. Specific directions cover the present matter on subjects of preventing discharge of sewage and effluents and solid waste, removing encroachments from catchment areas, desilting and deweeding, maintaining lake free from any constructions inside and all other matters covered by different headings of the progress report quoted above. In the present context, we may 2 (2000) 2 SCC 679 Almitra Patel, Tribunal orders in OA 606/2018, last order 2.7.2020: Solid Waste (2017) 5 SCC 326 Paryavaran Suraksha, Tribunal last order dated 22.2.2021 in OA 593/2017: Liquid waste, including 351 polluted river stretches (OA 673/2018), coastal pollution (OA829/19), re-use of treated water (OA148/2016). (2017) 5 SCC 805, Tribunal order dated 27.8.2020, OA 351/2019, Raja Muzaffar Bhat v J & K: Wetlands and lakes: M.K. Balakrishnan and Ors. v. UOI, Tribunal order dated 18.11.2020 Lt Col Sarvadaman OA 325/2015, Water bodies, (1997) 1 SCC MC Mehta v. Kamal Nath, (2001) 6 SCC 496 Hinch Lal Tiwari vs. Kamala, (2006) 3 SCC 549 Intellectual Forum vs. State of AP 3 specifically note need to remedy foaming and fire incidents, attributed to detergents containing Phosphates, sewage entering the lake needs to be diverted and treated sewage utilised for non-potable use. The lake is to be maintained with required oxygen levels for survival of aquatic life.
15. Protection of lakes and water bodies and preventing pollution is part of 'public trust' doctrine obligating the State authorities to take stern measures for enforcing the basic constitutional right of citizens to clean environment. Without this being done in a meaningful manner, there can be no sustainable development. There is need for stringent enforcement by way of adverse measures, including recovery of compensation for continuing violation and adverse entries in the record of defaulting officers. Accountability for those who are entrusted the responsibility to comply with these directions must be fixed on the principle of good governance, to enforce rule of law to protect rights of citizens.
16. Inspite of the fact that Water (Prevention and Control of Pollution) Act, 1974 was enacted 47 years back, to give effect to the decision in Stockholm Conference in the year 1972, the water pollution remains rampant. Though a serious criminal offence under the law of the land, the authorities have failed to take stringent action against the violators. In a way the State-authorities, who are constitutionally under obligation to ensure treatment of sewage before the same is discharged into the water bodies, have to take the blame. The adverse effect of water pollution on health and environment is well known. Water bodies, including lakes and wetlands, have great role in sustaining aquatic life, attract migratory and other birds, add to the natural aesthetics, help harvesting rain water, maintain micro climate, recharge ground water and perform other ecological services.
The Hon'ble Supreme Court in its judgment in Paryavaran Suraksha vs. Union of India & Ors., (2017) 5 SCC 326 discussed the need to remedy water pollution and fixed a firm deadline of 31.03.2018 by which all necessary CETPs/STPs/ETPs should be in place failing which coercive action, including prosecution of State authorities was mandated. It also indicated sources of funding. The said direction continues to be violated. This situation can hardly be held to be conducive to the environmental rule of law. The sewage treatment is less than 50% (the sewage generation from the urban population of the country is reported to be about 70000 MLD and treatment capacity about 27000 MLD)3 which is a matter of serious concern. The Tribunal has issued repeated directions on the subject. Till it is remedied, the goal of sustainable development is far cry. Similarly, directions have been given for protection of water bodies and wetlands, referred to earlier in para 14, supra.
The environmental law principles, which this Tribunal is mandated to apply under sections 20 and 15 of the NGT Act, 2010, are - 'sustainable development', 'precautionary' and 'polluter pays'. These principles, accepted in Stockholm conference, have been held to be part of right to life under article 21 of the Constitution in Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647. In 3 As per report of the CPCB dated 30.09.2020 quoted in the order of this Tribunal dated 05.02.2021 in OA 95/2018, Aryavart Foundation v. M/s Vapi Green Enviro Ltd. & Ors.
4Hanuman Laxman, (2019) 15 SCC 401, (paras 142-156), significance of environmental rule of law has been highlighted to achieve sustainable development goals for prosperity, health and well-being. This requires filling of gap between law and enforcement. In T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606, at page 621, it was observed that the State has to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water and providing sanitation, without which life cannot be enjoyed. Any contra acts or actions would cause environmental damage. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is constitutional imperative on the Central Government, State Governments and bodies like municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve the man-made environment and natural environment.
17. Accordingly, there is need for further continuous action and effective monitoring at the highest level in the Government. Consistent with earlier orders on the subject, such monitoring needs to be taken over by the Chief Secretary, Karnataka who may take over the record from the Monitoring Committee and take stock of all the left-over issues, with the assistance of other identified authorities and experts (which may include Indian Institute of Science, Bangaluru). He may inter alia interact with the State Lake Conservation and Development Authority and Forest, Ecology and Environment Departments. First meeting may be held latest by March 31, 2021. Thereafter, review meetings may be held atleast once in a month to monitor further progress and completion of targets, already fixed or which may be further fixed. It will be open to all persons interested in restoration and maintenance of the lakes in question to give their suggestions and offer assistance which may be duly considered by the Chief Secretary, Karnataka on its merits. All pending projects for setting up of STPs, fencing of lake, removal of encroachments, etc. may be executed expeditiously. Particular attention may be given to preventing formation of foam and fire incidents. Directions in earlier orders and current order be duly carried out and overseen by the Chief Secretary, as already mentioned, atleast once a month. In pursuance of order of this Tribunal dated 18.11.2020 in OA 325/2015, Lt. Col. Sarvadaman Singh Oberoi v. Union of India & Ors., the steps for protection of water bodies have been directed to be taken and quarterly reports sent by the Chief Secretaries of States to the Secretary Ministry of Jal Shakti. Similarly, a quarterly report is to be given by the Chief Secretaries in respect of steps taken for protection of lakes and wetlands to the National Wetlands Authority, as earlier directed in OA 351/2019, Raja Muzaffar Bhat, supra, vide order dated 27.8.2020 and also placed on the website of the State Wetland Authority, for information 5 of all the stake holders. The lakes in question are undoubtedly of great significance for the Bengaluru city and are glory and pride of the city. We do hope the administration will appreciate the need for stringent action and efforts for maintaining the said Lakes."
4. Learned Counsel for review applicant is unable to point out any error in the order which may call for review. Only submission pointed out is that set out in the review application reproduced below:
"U. Considering the foregoing submissions, the following significant issues arise for consideration and full and final resolution of the environmental dispute.
a. Adjudication on the validity and implementation of CPCB's April 2015 Directions regarding treatment and utilization of sewage.
b. Usage of treated water to be expanded to include all purposes other than where fresh water is necessary in domestic, commercial, and industrial uses irrespective of size of establishment.
c. BWSSB/ local authorities should provide underground connection to all buildings irrespective of size and consequently treat all sewage generated in the local area and supply treated water to domestic, commercial, and industrial units to ensure a centralized treatment and procedure.
d. Apartments connected to UGD should be directed to seek consent only when a new discharge point/ alteration of an existing discharge point occurs.
e. Quash CPCB's May 2015 Directions dated 22-052015 and all consequent notifications, circulars, and directions. f. Exempt Apartments treating sewage and consume treated water fully within the premises from seeking consent irrespective of size.
g. Quash the Environmental Compensation Charges imposed by KSPCB as arbitrary and based on unlawful sample collection. h. Dispose all consent applications in compliance of section 25(7) of the Water Act.
i. In the interest of environmental protection and life on earth, water conservation mandates to be made applicable to all buildings irrespective of size and should ensure implementation at the stage of building plan approval."
5. The above submissions do not make out the case for review of the order. Any independent grievance other than ground for review of order dated 12.3.2021 has to be raised by the applicant in any other appropriate 6 proceedings and not by way of seeking review of order of this Tribunal dated 12.3.2021.
The Review Application is accordingly dismissed.
I.A. No. 26/2023 also stands disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dr. A. Senthil Vel, EM May 9, 2023 Review Application No. 03/2023 IN Original Application No.125/2017 I.A. No. 26/2023 DV 7