National Green Tribunal
Abhisht Kusum Gupta vs Mr. Mukesh Agarwal on 3 August, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 1002/2018
(I.A. No. 125/2022)
(with reports dated 11.04.2022,
06.05.2022, 29.07.2022 and 01.08.2022)
Abhisht Kusum Gupta Applicant
Versus
State of Uttar Pradesh & Ors. Respondent(s)
Date of hearing: 03.08.2022
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. Sunil J. Mathews, Advocate with Mr. Abhisht Kusum Gupta,
Applicant in Person
Respondents(s): Mr. Ravindra Kumar, Senior Advocate with Mr. Rachit Mittal, Adv.
for NOIDA Authority
Mr. Pradeep Misra & Mr. Daleep Dhyani, Advocates for UPPCB
Ms.Sakshi Popli, Advocate for DJB
Mr. Aman Bhalla, Advocate for CPCB
Mr. Narender Pal Singh, Advocate for DPCC
Mr. Balendu Shekhar, Advocate for EDMC
ORDER
The Issue - remedial action against pollution of irrigation canal in Noida, meeting Yamuna and then Ganga and failure of authorities in Delhi, District Ghaziabad and Noida in remedying the situation
1. The issue for consideration is the remedial action for preventing untreated sewage going to the "irrigation canal" in Sector 137, NOIDA. Sources of such discharge include non-functional/deficient STPs in 95 high rise buildings in Noida, industries and waste water from upstream from Delhi and Ghaziabad. The said canal joins Yamuna and then Ganga. 1 NOIDA, Ghaziabad Nagar Nigam, Delhi Jal Board (DJB), East Delhi Municipal Corporation (EDMC) and Nagar Palika Parishad, Khoda Makanpur are the identified authorities required to take the remedial action, based on the verification report to which reference will be made hereafter.
2. It is established that there is huge amount of water pollution as shown by analysis of water samples from the drain, beyond prescribed norms, to the detriment of environment and public health. The said water, being canal water, is used by living beings and for irrigation. Pollution is source of deaths and diseases which is also criminal offences under the law of the land. There are designated authorities, entrusted with the task of stopping it but they have failed to prevent such pollution, despite several directions of this Tribunal in the last about four years in the light of the reports of the Committees appointed by the Tribunal, after ascertaining the factual status on the ground.
3. We may refer to some of the earlier reports and orders for background. First report to be mentioned is report dated 1.11.2019 specifying role to be played by each of the concerned authority. Thereafter, we may refer to orders dated 6.11.2020, 30.7.2021 and last order dated 23.12.2021.
Report dated 1.11.2019 by CPCB about specific role of authorities and level of pollution of the canal
4. In the report of CPCB dated 01.11.2019, steps to be taken by NOIDA, Ghaziabad Nagar Nigam, Delhi Jal Board (DJB), East Delhi Municipal Corporation (EDMC) and Nagar Palika Parishad, Khoda Makanpur were recommended as follows:-
2
Sl. Department Directions issued u/s 5 of EPA, 1986 No
1. NOIDA i. To develop time bound action plan to stop discharge of untreated wastewater to 30 drains.
ii. To intercept all drains and channelize wastewater to STPs so that no untreated wastewater is discharged to Noida drain.
iii. To deposit an Interim Environmental Compensation of Rs. 1,00,00,000
2. Ghaziabad i. To establish sewerage network and treatment Nagar Nigam facility to treat sewage generated from Khoda village.
ii. To Deposit an Interim Environmental Compensation of 1,00,00,000
3. DJB i. To initiate legal proceedings against the residents of GD colony, Gharauli village and Kondli village, Delhi having failed to take sewer connections.
ii. To ensure that each building under their jurisdiction shall have sewer connection so that current practice of discharge of untreated sewage into storm water drainage system should be stopped.
4. EDMC i. To direct dairy farms to develop decentralized treatment facility so that their untreated waste shall not be discharged to DDA drainage system ii. To ensure that untreated dairy waste including animal dungs from Gharuli village should not be discharged into storm water drain. Challan / Legal action shall be initiated against such violators.
5. Nagar Palika Show cause notice issued to explain the reasons Parishad as to why action should not be taken against Khoda Nagar Palika Parishad Khoda including Makanpur levying of Environmental Compensation for discharge of untreated sewage to drainage system of Delhi. Copy of directions is attached as Annexure-I
5. The level of water pollution in the drains was found to be as follows:-
Table 1: Analytical Results of Drain Si. Sample Location Physico-Chemical Bacteriological No. Parameters Parameters pH COD BOD TSS Total Fecal Coliform Coliform (MPN/100m (MPN/100m1)
1) Water Quality of Noida Drain at different locations
1. Budh Vihar, 7.56 444 219 330 13 79 X105 Sector-11, Noida X106
2. S-14, New Kondli 7.55 433 217 352 23 23 X106 Road, Sector-11, X106 Noida.3
3. Sector-50, Noida 7.72 169 68 84 11 68 X105 Link Road. X106
4. Sector-137, India 7.78 186 71 65 13 13 X106 TV Metro X106 Station, Noida.
5. Noida drain at 7.84 145 60 89 - -
regulator
6. Noida drain at 7.82 163 46 83 78 78 X105 before X105 Confluence with river Yamuna Water Quality of adjoining drains of Noida Drain
7. Khoda village 7.54 314 107 194 78 20 X105
8. Drain merges 7.70 182 100 63 X10 46 5 46 X106 with Noida drain X106 at Sector-142, Advant Navis Buisness IT Park, Noida.
Note: All units are measured in mg/I except Fecal Coliform and pH.
BOD concentration at entrance of NOIDA, U.P is 219 mg/1 whereas Fecal coliform count is 20 X 10 5 . However, concentration of BOD before confluence point is 46 mg/1 and Fecal coliform count is 78 X 10 5 MPN/100 ml. The results indicate that although there is marginal improvement in water quality as the drain travels through NOIDA but still concentration level of BOD and Fecal Coliform at the confluence point of drain with Yamuna is quite high."
Orders dated 6.11.2020 and 30.7.2021
6. Considering the above factual scenario and recommendations of CPCB for remedial action, the Tribunal issued directions with reference to which the matter was further reviewed on 06.11.2020 and 30.07.2021. In view of acknowledged continuing pollution without adequate remedial action, the Tribunal, vide order dated 30.7.2021, while directing further action, also sought personal presence of concerned senior officers - Additional Chief Secretary, Forest and Environment, UP, Secretary, Urban Development, UP, CEO, NOIDA Authority, District Magistrate, NOIDA, Vice Chairman, GDA, Police Commissioner, NOIDA, IG, Meerut and Chief Secretary, Delhi and Special Commissioner of Police, East Delhi by video 4 conference, along with their action taken reports in terms of directions of the Tribunal.
Last order dated 23.12.2021
7. The matter was last considered on 23.12.2021 in the presence of the above senior officers. Consideration included Action Plan filed by the NOIDA Authority, Compliance report filed by UP State PCB, Status report filed by the Delhi Government and two reports filed by CPCB on compliance status on the issue sewage management and prescribing standards for water quality of drains.
8. The action plan of NOIDA Authority mentioned remedial action in the form of steps proposed in the report. The State PCB pointed out the failure of the 95 group housing societies in complying with EC/consent conditions for treatment of sewage generated in the said group housing societies. The report of the Delhi Government stated that meeting was held by the Chief Secretary with the concerned Departments on the issue of disposal of sewer wastes in Noida drains from Kondli, Gharoli and Khoda (Ghaziabad) causing pollution in Yamuna and (ii) Sewage discharge from GD Colony, Gharauli village and Kondli village in Delhi to the drainage system of PWD, contributing to pollution to NOIDA drain and steps taken. CPCB failed to lay down standards for disposal of treated effluents, to be permitted in storm water drains or irrigation canals to maintain the water quality of drains to match standards laid down or proposed under the Environment (Protection) Act, 1986/the Water (Prevention and Control of Pollution) Act, 1974. 2nd Report of the CPCB mentioned the non- compliance status for waste water treatment in Khoda area.
9. The Tribunal noted the unsatisfactory state-of-affairs. It was observed that in view of admitted status of non-compliance of EC/Consent 5 conditions by the group housing societies who were discharging their sewage directly into NOIDA sewer line, without the said sewer line having requisite capacity. The report showed that the sewer lines were lying chocked or overflowing. No action was taken against non-compliant housing projects for breach of statutory obligation as per EC/consent conditions. The projects were allowed to be illegally occupied without compliance of basic norms to facilitate builders to sell flats, to the detriment of environment and public health. The Tribunal observed that 'Polluter Pays' principle was required to be enforced and compensation with deterrent element was required to be recovered and credited in separate account for restoration and improvement of environment. The Tribunal also directed maintenance of sewer line of NOIDA. The Tribunal noted that even before functional and compliant STPs, buildings were allowed to be occupied. The Tribunal also noted that there was no effective monitoring mechanism and not even a dedicated monitoring cell manned by qualified persons attached to the CEO, NOIDA to prevent such occurrences in terms of public trust doctrine. The water quality of Kondli Irrigation drain was found to be highly polluted for which no adequate remedial action was insight. The Tribunal also directed the Urban Development Department, UP to take remedial action in respect of failure of the Khoda Makanpur Municipality. CPCB was directed to verify the claim of the Delhi Government that no untreated sewage was being discharged into the NOIDA drain in Delhi. The Tribunal also noted that discharge of effluents in the irrigation canal was taking place inspite of refusal of permission for such discharge by Irrigation Department, UP. Finally, the Tribunal directed as follows:
"xxx.......................................xxxx.........................................xxx
20. We sum up our directions as follows:
NOIDA 6 i. Discrepancies pointed out in para 13 regarding functional status of STPs, their compliance and connectivity to sewers to be addressed and clarified considering desludging and maintenance of sewer lines.
ii. Action against violators and colluders under Section 3 of PMLA Act, 2002, IPC as well as under Section 133 of Cr. PC to be looked into.
iii. Granting partial or completion certificates must be compliant with EC/Consent conditions.
iv. Completion of ongoing sewerage network to be ensured and steps taken in respect of 30 drains and their termination to respective existing or new STPs.
v. Mode of disposal of 6 existing STPs to be compliant with standards, including fecal coliform and utilization of treated effluents to be ensured.
UP State PCB/Irrigation Department/Urban Development, UP vi. Maintaining water quality of irrigation canal (Kondli drain) as per Water Act. STPs to be consented accordingly and regular monitoring of performance of terminal STPs as well as of group housing societies required.
vii. Khoda Nagar Palika to set up required STP and State of UP to frame and execute policy as directed in Para 17 above.
GNCTD (EDMC/DJB/DPCC) viii. Ensuring no waste water enters from Kondli drain to Noida. ix. Kondli STP should comply with standards and adequately cater to the need of designed capacity with proper utilization and disposal of effluents.
CPCB
x. To evolve standards and formulate policy for maintaining
and restoring water quality of storm water
drains/irrigation canals and other "streams" as per the Water Act, 1974."
Today's consideration and further directions
10. The matter has been taken up after more than seven months for further consideration in the light of earlier directions. Reports have been filed by the UP State PCB, NOIDA Authority, DPCC and CPCB giving the factual compliance status.
Compliance status of Kondli STP in Delhi as found by DPCC/CPCB
11. The report of DPCC deals with the compliance of discharge in Kondli drain and compliance status of Kondli STP. The report mentions the status 7 of Kondli STP as non-compliant for which the DPCC wrote a letter to DJB for taking remedial measures. DPCC also issued show cause notice to the operator of the STP against which the said service provider has filed WP (C) No. 4391/2021 in Delhi High Court. Report of CPCB on this very issue dated 29.07.2022 also confirms that Kondli STP is non- compliant. On the issue of diversion of waste water from Kondli drain to the sewerage system, it is found that even after such diversion the waste also is flowing in the drain and diversion is not successful. This is resulting in adding pollution load to the drain. The STP is non- compliant. DJB has been directed as follows:
"3.0 Major Observations and Recommendations Based on the inspection, following observations and recommendations are made:
DJB has created the infrastructure diversion for diversion of wastewaters generated from Kondli and Gharoli regions and same is found as operational. However, with regard to its performance, it is observed that partial flow is still flowing through Kondli-Noida drain towards NOIDA. DJB should identify the leakages and make the system full proof so that no wastewater flows towards NOIDA.
1. Tapped wastewater is diverted to existing sewerage system and same is conveyed to Kondli STP. The analytical results show that STP is non-complying with respect to prescribed norms. The quality of treated sewage at the outlet is at par with the untreated wastewater at inlet. The treated sewage is discharged to Shahdara drain which finally meets river Yamuna at downstream of Okhla Barrage.
2. It may be concluded that the purpose of the exercise of tapping the drains & its treatment, is defeated in meeting the objective. Entire wastewater flowing through the Kondli drain should be treated at Kondli STP and quality of treated sewage must meet the prescribed standards.
Only after requisite treatment, the treated sewage should be allowed to be discharged into Shahdara drain.
3. However, in the present case, the wastewater of Kondli drain is diverted to Kondli STP and the STP is neither having adequate capacity not it is complying with the standards. As a result, untreated/partially treated sewage 8 is being discharged into Shahdara drain. This untreated/partially treated wastewater of Kondli drain is finally being discharged into river Yamuna via Shahdara drain."
Compliance status of water quality standards in Noida, as per UP State PCB
12. The report of the UP State PCB dated 11.04.2022 is about water quality of the drain. The report of the State PCB gives the water quality of samples taken on 07.01.2022, 28.01.2022, 14.02.2022, 04.03.2022 and 28.03.2022. The water quality does not meet the prescribed standards. It will suffice to reproduce the analysis of the sample taken on 28.03.2022 which is as follows:
"Date of Sample Collection-28.03.2022 Parameters Sampling Point Up Steam Down Stream Lat-28.601913 Lat-28.473076 Long-77.336993 Long-77.405751 Kondli drain near Kondli Drain near Haridrshan Police Vill- Chak Chowki, Sector-11, Noida Mangurola, Sector-
168, Noida
Colour Blackish Blackish
Odour Unpleasant Unpleasant
pH 7.51 7.59
COD (mg/1) 416 304
BOD (mg/1) 144 90
TSS (mg/1) 264 138
Total Coliform 33x105 27x105
(MPN/100m1)
Fecal Coliform 27x105 17x105
(MPN/100m1)
Compliance status by group housing societies
13. With regard to group housing societies, only 76 out of 95 have STPs.
Others have yet to set up. 38 out of 76 (50%) are non compliant as follows:
" No. of GHP STP STP Not STP Under Complying Not Report Installed Installed Installation STP Complying Awaited STP 9 95 76 13 5 36 38 0 (94+1 Under construction) "
14. Show cause notice for levy of compensation has been issued by the State PCB against the said societies. Prosecution has been initiated against 62 defaulters while action against the remaining non-compliant group housing societies is yet to be taken.
Compliance by STPs
15. The six operational STPs with total capacity of 231 MLD are said to be compliant though the result of the samples rebuts that claim if correct standard is applied. Fecal coliform standard is taken as 1000 MPN, as against 100 MPN. With regard to fecal coliform, the Tribunal has dealt with the matter vide order dated 30.04.2019, in OA No. 1069/2018, Nitin Shankar Deshpande v. UOI & Ors. against which appeal has been filed before the Hon'ble Supreme Court and no stay has been granted. Similarly, BOD standard is wrongly taken at 30 against prescribed standard of 10. The water quality of the STPs is mentioned as follows:-
"WATER QUALITY OF STP's IN NOIDA Parameters STP Detail Sector- Sector- Sector-54 Sector-54 Sector- Sector-50 50 Noida Noida 123 168
Noida Noida (33 MLD (54 MLD Noida Noida
(25 MLD (34 MLD SBR SBR (35 MLD (50
SBR SBR Outlet), Outlet), SBR MLD SBR
Outlet), Outlet), Noida Noida Outlet), Outlet),
Noida Noida Noida Noida
Colour Colourless Colourless Colourless Colourless Colourless Colourless
Odour Odourless Odourless Odourless Odourless Odourless Odourless
pH (6.5- 7.39 7.32 7.47 7.53 7.59 7.61
9.0)
BOD (30 21 18 15 13.5 27 24
mg/I)
COD (250 136 128 112 104 168 160
mg/I)
TSS (100 60 58 55 51 74 70
mg/I)
Phosphoro 1.30 0.54 1.10 0.50 0.12 0.68
us (as PO4)
(5 mg/I)
10
Nitrogen 0.44 0.50 0.32 0.42 0.28 1.0
(as NO3)
mg/1
Total 11x102 14x102 13x102 15x102 16x102 20x102
Coliform
(MPN/100
mL)
Fecal Coliform 830 680 780 930 540 780
(<1000 MPN/
100mL)
Compliance by Khoda Makanpur
16. The Khoda Makanpur is said to be still non-compliant with no plan to treat domestic effluents for which compensation of Rs. 70 lakhs has been imposed.
Report of the Noida Authority
17. The report of the NOIDA Authority dated 06.05.2022 later updated on 01.08.2022 confirms that there are only 76 STPs in 95 group housing societies out of which 38 are non-compliant. With regard to remaining 19 (out of 95 group housing societies), it is stated that steps are in progress.
One society is under construction. Thus, non compliant complexes are 56.
It is stated that environment cell could not be created as the process of hiring professionals has not been completed. Further report of NOIDA Authority does not have any noticeable change, except that work of wetland is said to have been awarded in respect of NOIDA drains but the water quality of the said drains is not meeting the standards.
Our finding and further directions
18. From the above, it is seen that the water quality in the canal and drains remain polluted which has in the past damaged the environment which damage is continuing against statutory law as well binding directions of the Hon'ble Supreme Court inter alia in Paryavaran Suraksha, (2017) 5 SCC 326 and orders of this Tribunal. The reasons for such pollution are discharge of pollution from the group housing societies as 11 well as non-compliant STPs of NOIDA, apart from pollution from Khoda Nagar Palika and Delhi.
19. We have conveyed our disappointment for such unsatisfactory state of affairs and lack of concern of the authorities in enforcing the rule of law in breach of the Constitutional mandate of providing clean environment.
Failures include not maintaining water quality of irrigation canal as per standards of the Water Act, illegal discharge of untreated/partially treated sewage in the irrigation canal from the NOIDA STPs as well as from group housing societies, DJB and Khoda Nagar Palika, who are liable to be held accountable.
Disapproval of CPCB stand
20. CPCB has failed to evolve standards and formulate policy for maintaining and restoring water quality of storm water drains as per Water Act. Only report is that a Committee has been constituted and as the matter involves policy decision, report has been submitted to competent authority. The minutes of the meeting annexed to the report show that there are proposed standards to allow ammonia level from 1 to 10 and BOD 30 mg/l contrary to the standards of the storm water drain which is expected to carry only rain water, higher than bathing standards i.e. quality 'B'1. Proposal of CPCB appears to be to degrade the storm water quality below even the level of irrigation. Ammonia level permissible for drinking water is 0.5 PPM2 but the standard proposed for water quality of canal is 1 to 10 where no fish can survive. Such course of action is 1 As per bathing standards under Entry 93 of Schedule-I to the EP Rules, 1986. 2 As per BIS standards: http://cgwb.gov.in/Documents/WQ-standards.pdf. As per General Standards for discharge of pollutants in inland surface water under Schedule VI to the EP Rules, 1986, under Entry-11, ammonia level is upto 5 mg/l which is not applicable to water quality of streams as the said standards are applicable to discharge of pollutants from industries as shown by Rule 3(1) (3-A) which cannot be discharged in drains. General standard under Schedule-VI which permits BOD upto 30 mg/l is also applicable only to industrial effluents which cannot be discharged into drains. 12 prohibited under section 24 read with section 2(e) of the Water Act, prohibiting discharge of any pollutant in any stream or well, which appears to be have been ignored by the CPCB. Thus CPCB proposed report on standards of storm water drain has to be rejected. Failure of State PCB and Noida in its duty to manage sewage and making erring group housing societies accountable to the detriment of public health and safety
21. It is clear that out of 95 group housing societies, in 56 group housing societies either there is no treatment of sewage or only partial treatment. Contrary to the consent/EC conditions, untreated sewage is going outside the group housing societies either in the general sewer or directly in the drain. The State PCB has still not finalized the compensation nor cancelled Consents nor taken any other effective measure to prevent such discharge. NOIDA Authority has allowed third party rights to be created and allowed a situation in which water pollution load can be controlled by preventing occupation. If without functional STPs, the group housing societies were not allowed be occupied, the situation could have been better handled. There is no effective monitoring by Noida to perform its essential duties. It is surprising that it could not create an environment cell and hire any professional in seven months. It is difficult to believe that this job was so difficult. For this lapse, it is necessary to fix accountability of NOIDA Authority. Even seven months after this lapse was pointed out vide order dated 23.12.2021, no effective action has been taken either to stop pollution or to make the group housing societies effectively accountable. No coercive steps have been like blacklisting, cancelling occupancy certificate/completion certificate. Further, six STPs of NOIDA which have been wrongly classified as compliant. They have to be taken as non- compliant with regard to fecal coliform and BOD levels. 30 drains which are carrying untreated water pollution also remain to be remedied. NOIDA 13 has thus to take remedial action, apart from accountability for the past violations.
22. We find that inspite of there being Memo of Understanding (MoU) dated 14.06.2018 between NTPC and NOIDA Authority for supply of 90 MGD secondary treated sewage water for NCTPP-Dadri for non-potable purposes on payment basis, there is nothing to show that NOIDA Authority is supplying such water and recovering the cost which needs to be ensured. We also note that there is a policy of Ministry of Power circulated, vide circular dated 04.03.2020 requiring mandatory use of treated sewage water by Thermal Power Plants within 50 km radius of STPs of local body. This decision of the Ministry of Power is part of Tariff Policy, 2016. Impact of this lapse is loss to Noida is augmenting resources for treating pollution, waste of resources in not using treated water, so as to save potable water. Failure of Urban Development Department UP
23. Further, there is failure of the Urban Development Department to remedy the violation by the Khoda Municipality in permitting untreated discharge of sewage into the drain which is not less than 10 MLD of sewage. No response has been filed by the said department inspite of direction in the last order.
Failure of DJB in preventing pollution
24. The CPCB has found the DJB STPs to be non-compliant contrary to their claim put forward earlier for which it has to be held accountable. Its wastewater is said to be of 90 MGD which is not being fully treated. 14
Resultant pollution of Yamuna and Ganga
25. Needless to say that the entire pollution is going to Yamuna and thereafter to Ganga through Shahdara and Kondli drains. Estimated extent of pollution and remediation cost
26. The sewer generated from said 56 non-compliant group housing societies is estimated to about 100 MLD. Estimated amount of pollution required to be treated by DJB is said to be about 90 MGD, as mentioned earlier. Thus, estimated cost of remediation may be about 380 crores. The capital cost of each MLD treatment is about Rs. 2 Crores, apart from running cost3. The damage to environment and public health is much more than the cost of remediation.
Violations of earlier orders of Hon'ble Supreme Court and this Tribunal requiring time bound action on preventing water pollution
27. It will suffice to mention that violations are serious and in breach of statutory provisions as well as binding directions of Hon'ble Supreme Court and this Tribunal which have been adverted to at length in a recent order dated 06.07.2022 in OA No. 329/2021, Devanshu Bose v. Agra Development Authority & Ors., dealing with the grievance of discharge of untreated sewage. The Tribunal observed:-
"11. Water (Prevention and Control of Pollution) Act, 1974 was enacted 48 years back but state of implementation is so poor that water pollution is rampant inspite of earlier orders of Hon'ble Supreme Court and this Tribunal on the subject. Extracts from some earlier orders are as follows:
Extracts from order of this Tribunal Order dated 16.09.2021 in OA 544/2019:
"1to 8.....xxx..............................xxx....................................xxx 3 https://www.cseindia.org/cost-estimation-for-planning-and-designing-of-decentralised-wastewater-treatment- system-2073#:~:text=2.5-3 15
9. Contamination of water sources is a punishable offence under the Water (Prevention and Control of Pollution) Act, 1974 for the last 47 years. Under Section 25 of the Act, untreated discharge of sewage in drain is prohibited and is in fact a criminal offence under Sections 42(2) and 44. Section 48 of the Act makes the Head of the Department liable for being punished for such offence. As per directions of the Hon'ble Supreme Court in Suraksha case4 an outer limit of 31.03.2018 is fixed for completing the work of all STPs in the Country for laying down the sources of budget and direction is to initiate prosecution for continued failure. This Tribunal has been directed to monitor compliance. We may refer to the specific directions of the Hon'ble Supreme Court and this Tribunal on the subject:
Extracts from the judgement of the Hon'ble Supreme Court in Paryavaran Suraksha Samiti Vs. Union of India, supra "7. Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50%, that of the State Government concerned (including the Union Territory concerned) is 25%. The balance 25%, is to be arranged by way of loans from banks. The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed that the setting up of a common effluent treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced). The reason for the above prolonged period, for setting up "common effluent treatment plants", according to the learned counsel, is not only financial, but also, the requirement of land acquisition, for the same.
x..............................x.....................x....................
10. Given the responsibility vested in municipalities under Article 243-W of the Constitution, as also, in Item 6 of Schedule XII, wherein the aforesaid obligation, pointedly extends to "public health, sanitation conservancy and solid waste management", we are of the view that the onus to operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies).
Given the aforesaid responsibility, the municipalities (and/or local bodies) concerned, cannot be permitted to shy away from discharging this onerous duty. In case there are further financial constraints, the remedy lies in Articles 243-X and 243-Y of the Constitution. It will be open to the municipalities (and/or local bodies) 4 (2017) 5 SCC 326 16 concerned, to evolve norms to recover funds, for the purpose of generating finances to install and run all the "common effluent treatment plants", within the purview of the provisions referred to hereinabove. Needless to mention that such norms as may be evolved for generating financial resources, may include all or any of the commercial, industrial and domestic beneficiaries, of the facility. The process of evolving the above norms, shall be supervised by the State Government (Union Territory) concerned, through the Secretaries, Urban Development and Local Bodies, respectively (depending on the location of the respective common effluent treatment plant). The norms for generating funds for setting up and/or operating the "common effluent treatment plant"
shall be finalised, on or before 31-3-2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the State Governments (or the Union Territories) concerned, shall cater to the financial requirements, of running the "common effluent treatment plants", which are presently dysfunctional, from their own financial resources.
11. Just in the manner suggested hereinabove, for the purpose of setting up of "common effluent treatment plants", the State Governments concerned (including, the Union Territories concerned) will prioritise such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.
12. We are of the view that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We, therefore, hereby direct that "sewage treatment plants" shall also be set up and made functional, within the timelines and the format, expressed hereinabove.
13. We are of the view that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We, therefore, hereby provide that the directions pertaining to continuation of industrial activity only when there is in place a functional "primary effluent treatment plants", and the setting up of functional "common effluent treatment plants" within the timelines, expressed above, shall be of the Member Secretaries of the Pollution Control Boards concerned. The Secretary of the Department of Environment, of the State Government concerned (and the Union Territory concerned), shall be answerable in case of default. The Secretaries to the Government concerned shall be responsible for monitoring the progress and issuing necessary directions to the 17 Pollution Control Board concerned, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data and shall furnish the same to the Bench of the jurisdictional National Green Tribunal.
14. To supervise complaints of non-implementation of the instant directions, the Benches concerned of the National Green Tribunal, will maintain running and numbered case files, by dividing the jurisdictional area into units. The abovementioned case files will be listed periodically. The Pollution Control Board concerned is also hereby directed to initiate such civil or criminal action, as may be permissible in law, against all or any of the defaulters.
x........................x........................x.................
16. It however needs to be clarified, that the instant directions and time lines, shall not in any way dilute any time lines and directions issued by Courts or Benches of the National Green Tribunal, hitherto before, wherein the postulated time lines would expire before the ones expressed through the directions recorded above. It is clarified, that the time lines, expressed hereinabove will be relevant, only in situations where there are no prevalent time line(s), and also, where a longer period, has been provided for."
(emphasis supplied) Extracts from orders of this Tribunal in OA 593/2017 :
Order dated 21.05.2020
26. Summary of directions:
i. All States/UTs through their concerned departments such as Urban/Rural Development, Irrigation & Public Health, Local Bodies, Environment, etc. may ensure formulation and execution of plans for sewage treatment and utilization of treated sewage effluent with respect to each city, town and village, adhering to the timeline as directed by Hon'ble Supreme Court. STPs must meet the prescribed standards, including faecal coliform.
CPCB may further continue efforts on compilation of River Basin-wise data. Action plans be firmed up with Budgets/Financial tie up. Such plans be overseen by Chief Secretary and forwarded to CPCB before 30.6.2020. CPCB may consolidate all action plans and file a report accordingly.18
Ministry of Jal Shakti and Ministry of Housing and Urban Affairs may facilitate States/UTs for ensuring that water quality of rivers, lakes, water bodies and ground water is maintained.
As observed in para 13 above, 100% treatment of sewage/effluent must be ensured and strict coercive action taken for any violation to enforce rule of law. Any party is free to move the Hon'ble Supreme Court for continued violation of its order after the deadline of 31.3.2018. This order is without prejudice to the said remedy as direction of the Hon'ble Supreme Court cannot be diluted or relaxed by this Tribunal in the course of execution. PCBs/PCCs are free to realise compensation for violations but from 1.7.2020, such compensation must be realised as per direction of this Tribunal failing which the erring State PCBs/PCCs will be accountable."
Order dated 21.09.2020 "11. The Tribunal has already issued directions vide orders dated 28.08.2019 and 21.05.2020 for ensuring that no untreated sewage/effluent is discharged into any water body and for any violation compensation is to be assessed and recovered by the CPCB so that the same can be utilized for restoration of the environment, complying with the principle of 'Polluter Pays' which has been held to be part of 'Sustainable Development' and part of right to life. Control of such pollution is crucial for environment, aquatic life, food safety and also human health. .."From OA 673/2018
Order dated 6.12.19:
6. The Hon'ble Supreme Court noticed the level of degradation of rivers in India and apathy of the authorities as follows:
"58. Rivers in India are drying up, groundwater is being rapidly depleted, and canals are polluted. Yamuna in Delhi looks like a black drain. Several perennial rivers like Ganga and Brahmaputra are rapidly becoming seasonal. Rivers are dying or declining, and aquifers are getting over pumped. Industries, hotels, etc. are pumping out groundwater at an alarming rate, causing sharp decline in the groundwater levels. Farmers are having a hard time finding groundwater for their crops e.g. in Punjab. In many places there are serpentine queues of exhausted housewives waiting for hours to fill their buckets of water. In this connection John Briscoe has authored a detailed World Bank Report, in which he has mentioned that despite this alarming situation there is 19 widespread complacency on the part of the authorities in India.5 "4. We see Yamuna river virtually turned into a sullage. We take judicial notice of this situation. Similar is the position with Ganges. As it proceeds, industrial effluents are being poured in rivers. Sewage is also being directly put in rivers contributing to the river water pollution. We direct the Pollution Control Boards of the various States as well as the Central Pollution Control Board and various Governments to place before us the data and material with respect to various rivers in the concerned States, and what steps they are taking to curb the pollution in such rivers and to management as to industrial effluents, sewage, garbage, waste and air pollution, including the water management. We club the ending case of water management with this matter.6 xxx.........................................xxx..........................xxx
11. In spite of above, in flagrant violation of law of the land, polluted water in the form of sewage, industrial effluents or otherwise has continued to be discharged in the water bodies including the rivers or the canals meeting the rivers. Violation of law is not only by private citizens but also statutory bodies including the local bodies and also failure of the regulatory authorities in taking adequate steps. There is no corresponding coercive action posing danger to rule of law when large scale violation of law is not being remedied. This leads to lawlessness.
12. It will be appropriate to note the crisis situation in the country on the subject of availability of potable water. The matter has been considered in the report of Niti Aayog on Composite Water Management Index (CWMI).7 Following further information also needs to be noted:
(i) India is suffering from the worst water crisis in its history and millions of lives and livelihoods are under threat. Currently, 600 million Indians face high to extreme water stress and about two lakh people die every year due to inadequate access to safe water8. The crisis is only going to get worse. By 2030, the country's water demand is projected to be twice the available supply, implying severe water scarcity for hundreds of millions of people and an eventual ~6% loss in the country's GDP9. As per the report of National Commission for Integrated Water Resource Development of MoWR, the water requirement by2050 in high use scenario is likely to be a milder 1,180 BCM, whereas the present-day availability is 695BCM. The total availability of water possible in country is still lower than this projected demand, at 1,137BCM. Thus, there is an imminent need to 5 State of Orissa v. Govt. of India, (2009) 5 SCC 492 6 M.C. Mehta Vs Union of India- W.P. (Civil) No. 13029/1985 dated 25.11.2019 7 Niti Ayog on "Composite Water Management Index", June 2018, https://niti.gov.in/writereaddata/files/document_publication/2018-05-18-Water-Index-
Report_vS8-compressed.pdf.
8Source: WRI Aqueduct; WHO Global Health Observatory 9Source: McKinsey & WRG, 'Charting our water future', 2009; World Bank; Times of India 20 deepen our understanding of our water resources and usage and put in place interventions that make our water use efficient and sustainable.
(ii) India is undergoing the worst water crisis in its history.
Already, more than 600 million people10 are facing acute water shortages. Critical groundwater resources - which account for 40% of our water supply - are being depleted at unsustainable rates.11
(iii) Most states have achieved less than 50% of the total score in the augmentation of groundwater resources, highlighting the growing national crisis--54% of India's groundwater wells are declining, and 21 major cities are expected to run out of groundwater as soon as 2020, affecting ~100 million people12.
(iv) With nearly 70% of water being contaminated, India is placed at 120th amongst 122 countries in the water quality index.
13. As per statistics mentioned before the Lok Sabha on April 6, 2018, waterborne diseases such as cholera, acute diarrhoeal diseases, typhoid and viral hepatitis continue to be prevalent in India and have caused 10,738 deaths, over the last five years since 2017. Of this, acute diarrhoeal diseases caused maximum deaths followed by viral hepatitis, typhoid and cholera.13
14. As per 'National Health Profile' published by Central Bureau of Health Investigation, Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, a total of 1535 Deaths due to Acute Diarrhoeal Diseases was reported during the year 2013.14 Main Causes of Pollution of Rivers
15. As already noted, well known causes of pollution of rivers are dumping of untreated sewage and industrial waste, garbage, plastic waste, e-waste, bio-medical waste, municipal solid waste, diversion of river waters for various purposes affecting e-flow, encroachment of catchment areas and floodplains, over drawl of groundwater, river bank erosion on account of illegal sand mining. Inspite of directions to install Effluent Treatment Plants (ETPs), Common Effluent Treatment Plants (CETPs), Sewage Treatment Plants (STPs), and adopting other anti-pollution measures, satisfactory situation has not been achieved. As per CPCB's report 201615, it has been estimated that 61,948 million liters per day (mld) sewage is generated from the urban areas of which treatment capacity of 23,277 mld is currently existent in India. Thereby the deficit in capacity of waste treatment is of 62%. There is no data available with regard to generation of sewage in the rural areas.
xxx.........................................xxx..........................xxx 10 Source: World Resource Institute 11 Source: World Resource Institute 12 Source: UN Water, 'Managing water under uncertainty and risk', 2010; World Bank (Hindustan Times, The Hindu).
13https://www.indiaspend.com/diarrhoea-took-more-lives-than-any-other-water-borne- disease-in-india-58143/ 14 http://pib.nic.in/newsite/PrintRelease.aspx?relid=106612 15 http://www.sulabhenvis.nic.in/Database/STST_wastewater_2090.aspx July 16, updated on December 6, 2016 21
33. We may note the observations of the Hon'ble Supreme Court:
"26. Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the law- abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that Parliament enacted the anti- pollution laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations.16 xxx.....................xxx.................................xxx "61. ..... If the laws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large-scale cannot take place without connivance of the officers concerned. It is also a source of corruption. Therefore, action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens."17 xxx.........................................xxx..........................xxx
35. Vide order dated 22.08.2019 in Original Application 200/2014, dealing with the pollution of river Ganga, the Tribunal issued directions and laid down coercive measures to be taken for discharge of untreated sewage in river Ganga:-16
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION Vs. UNION OF INDIA AND OTHERS (1996) 5 SCC 281 17 M.C. Mehta v. Union of India, (2006) 3 SCC 399 - Public functionaries 22 "16. xxx.....................xxx.................................xxx
17. Wherever the work has not commenced, it is necessary that no untreated sewage is discharged into the River Ganga. Bioremediation and/or phytoremediation or any other remediation measures may start as an interim measure positively from 01.11.2019, failing which the State may be liable to pay compensation of Rs. 5 Lakhs per month per drain to be deposited with the CPCB. This however, is not to be taken as an excuse to delay the installation of STPs. For delay of the work, the Chief Secretary must identify the officers responsible and assign specific responsibilities.
Wherever there are violations, adverse entries in the ACRs must be made in respect of such identified officers. For delay in setting up of STPs and sewerage network beyond prescribed timelines, State may be liable to pay Rs. 10 Lakhs per month per STP and its network. It will be open to the State to recover the said amount from the erring officers/contractors.
36. Vide order dated 28.08.2019, the Tribunal held:-
"15. xxx...............xxx.......................................xxx "16. xxx.....................xxx.................................xxx
17. As already noted, prevention of pollution of water is directly linked to access to potable water as well as food safety. Restoration of pristine glory of rivers is also of cultural and ecological significance. This necessitates effective steps to ensure that no pollution is discharged in water bodies. Doing so is a criminal offence under the Water Act and is harmful to the environment and public health. 'Precautionary' principle of environmental law is to be enforced. Thus, the mandate of law is that there must be 100% treatment of sewage as well as trade effluents. This Tribunal has already directed in the case of river Ganga that timelines laid down therein be adhered to for setting up of STPs and till then, interim measures be taken for treatment of sewage. There is no reason why this direction be not followed, so as to control pollution of all the river stretches in the country. The issue of ETPs/CETPs is being dealt with by an appropriate action against polluting industries. Setting up of STPs and MSW facilities is the responsibility of Local Bodies and in case of their default, of the States. Their failure on the subject has to be adequately monitored. Recovery of compensation on 'Polluter Pays' principle is a part of enforcement strategy but not a substitute for compliance. It is thus necessary to issue directions to all the States /UTs to enforce the compensation regime, latest with effect from 01.04.2020. We may not be taken to be condoning any past violations. The States/UTs 23 have to enforce recovery of compensation from 01.04.2020 from the defaulting local bodies. On failure of the States/UTs, the States/UTs themselves have to pay the requisite amount of compensation to be deposited with the CPCB for restoration of environment. The Chief Secretaries of all the States may furnish their respective compliance reports as per directions already issued in O.A. No. 606/2018."
12. It is thus appropriate that remedial measures are speedily taken by the Agra Development Authority overseen by the ACS, Urban Development and ACS, Housing and Development, UP in a mission mode. Such steps should cover the present area as well as urban area of Agra. ACS, Urban Development will be the nodal agency for coordination and compliance. The Committee may hold its meeting within two weeks and after taking stock of the situation and earlier orders of this Tribunal, take further remedial action. The Committee will be at liberty to coordinate with any other Department/Agency. In view of chronic and long pending problem, the Committee may explore steps on the pattern of available best practices to the extent found relevant such as arrangement with relevant establishments to supply sewage treated water for which pipelines are laid by such establishments and part of the sewage treatment cost is also shared by such establishments.18 This may help better use of treated sewage to save potable water. We may refer to observations in a recent order dated 19.04.2022 in OA No. 887/2019, Sukhwanti v. State of Haryana & Ors. on the subject:-
18 1. Chennai industries to now use treated sewage water - The New Indian Express:https://www.newindianexpress.com/cities/chennai/2019/jul/31/chennai- industries-to-now-use-treated-sewage-water-2011837.html
2. Surat sewage reuse model goes global - Surat News - Times of India:
https://timesofindia.indiatimes.com/city/surat/surat-water-reuse-model-goes- global/articleshow/85668103.cms
3. Surat generating massive revenue by selling treated water to industries:
https://www.aninews.in/news/national/general-news/surat-generating-massive- revenue-by-selling-treated-water-to-industries20201217051127/
4. Surat Generating Massive Revenue By Selling Treated Water of River Tapi To Industries -
News:https://swachhindia.ndtv.com/surat-generating-massive-revenue-by-selling- treated-water-of-river-tapi-to-industries-54411/
5. Industries in Ahmedabad to get treated wastewater - Ahmedabad News - Times of India:
https://m.timesofindia.com/city/ahmedabad/amc-offers-rs43/kl-treated-wastewater- for-industries/amp_articleshow/87169850.cms
6. Gujarat: Now treated wastewater to be piped to two industrial clusters - Cities News, The Indian Express: https://indianexpress.com/article/cities/ahmedabad/gujarat-now- treated-wastewater-to-be-piped-to-two-industrial-clusters-5713792/
7. Nagpur to become the first Indian city to treat and reuse 90% of its sewage:
https://theprint.in/india/governance/nagpur-to-become-the-first-indian-city-to-treat- and-reuse-90-of-its-sewage/180493/
8. India's 1st and largest PPP on waste water reuse completed in record time during pandemic; bags FICCI Water Award 2020: https://www.business- standard.com/content/press-releases-ani/india-s-1st-and-largest-ppp-on-waste-water- reuse-completed-in-record-time-during-pandemic-bags-ficci-water-award-2020- 121022500841_1.html
9. MPCB Note on domestic west water reuse project at Nagpur:
https://mpcb.gov.in/sites/default/files/focus-area-reports- documents/NMC_%26_KTPS_success_story_28052019.pdf
10. STP at Village Kewara, Bhilwara (Rajasthan)- CPCB Bhopal: https://cpcb.nic.in/success- stories/upload/1501156301.pdf
11.CHAPTER 7: RECYCLING AND REUSE OF SEWAGE:
http://cpheeo.gov.in/upload/uploadfiles/files/engineering_chapter7.pdf 24 "10.......Further, for maximising use of treated sewage, PCB may identify potential industrial clusters, major industrial sectors and other bulk users to tie-up each STP with the User group. In this regard, provisions of 'The Haryana Water Resources (Conservation, Regulation and Management) Authority (Amendment) Act, 2022' may be strictly followed. CPCB may also assist HSPCB in this regard. The Tribunal vide order dated 09.03.2022 in OA No. 29/2020(WZ), Suraj Pradip Ajmera vs. Aurangabad Municipal Corporation directed as follows:
"10. During the hearing, suggestion has emerged that an interaction be held at the level of Chief Secretary, Maharashtra with inclusion of Secretary, Urban Development, Maharashtra and Technical Experts as may be decided by them including from IIT, Bombay, Regional Officer, CPCB and Member Secretary, State PCB to consider possibility of laying pipeline upto the industrial area for transporting treated sewage to the industrial areas so that the same can be utilized for industrial purpose. Industries Association may be associated in the project of sewage treatment and can bear a part of the cost out of Corporate Social/Environmental Responsibility, depending upon the financial capacity of the member industries. This may result in a permanent and long-lasting cheaper solution. If successful, this experiment may be tried appropriately at such other locations in the State as found appropriate and also customized different locations. The Committee may also study such models elsewhere in the country which reportedly have been successful. The Committee may also consider any other viable strategies for sewage treatment and interception and diversion of sewage, use of appropriate effective and economical technology, making group housing societies Zero Liquid Discharge (ZLD) by recycling treating sewage, after treatment in decentralized manner and utilizing the treated sewage for horticulture, flushing, cleaning or other non-drinking purposes. This strategy may help in augmenting availability of potable water particularly in drought affected areas of Aurangabad Region in Maharashtra where potable water had to be transported by trains in the past. The Secretary, Urban Development may act as nodal agency who may call for a meeting within one month."
11........................xxx..............................xxx..........................xxx
12. The Tribunal has considered the issue of utilization of treated sewage to save potable water for drinking purposes inter-alia vide order dated 21.09.2020 in O.A. No. 148/2016 Mahesh Chandra Saxena vs. South Delhi Municipal Corporation & Ors. By the said order, the data of utilization of treated water as given in the CPCB report dated 15.05.2020 and further report dated 16.09.2020 was noted showing huge gap in reuse of treated water, which resulted in potable water being used even for purposes for which treated water could be used. The Tribunal directed all States/UTs to ensure 100% utilization of treated water for secondary purposes, which may be monitored by Central Monitoring Committee headed by Secretary, Ministry of Jal Shakti and assisted by CPCB, NMCG and Ministry of Urban Development."
25
13. In light of above, let further action taken report be filed by ACS, Urban Development within three months from today 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. The report may also cover the observations in para 9 above. ACS, Urban Development may remain present on the next date by Video Conferencing along with Vice Chairman, ADA and Commissioner, Municipal Corporation, Agra." Law laid down in judgements of Hon'ble Supreme Court with regard to accountability of statutory authorities
28. Continuing failure of State authorities and statutory regulators to enforce law has created alarming situation of threat to public health and safety. Such patent failure require fixing accountability on polluter pays principle so that degradation of environment can be to some extent reversed. There are observations on the subject in some of judgements of the Hon'ble Supreme Court as follows:
"Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407 xxx.........................................xxx........................................xxx
66. Wherever and whenever the State fails to perform its duties, the Court shall step in to ensure that the rule of law prevails over the abuse of process of law. Such abuse may result from inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes. This Court expressed its concern about the rampant pilferage and illegal extraction of natural wealth and resources, particularly iron ore, as also the environmental degradation and disaster that may result from unchecked intrusion into the forest areas. This Court, vide its order dated 29-7-2011 invoked the precautionary principle, which is the essence of Article 21 of the Constitution of India as per the dictum of this Court in M.C. Mehta v. Union of India, and had consequently issued a ban on illegal mining. The Court also directed relief and rehabilitation programmes to be carried out in contiguous stages to promote intergenerational equity and the regeneration of the forest reserves. This is the ethos of the approach consistently taken by this Court, but this aspect primarily deals with the future concerns. In respect of the past actions, the only option is to examine in depth the huge monetary transactions which were effected at the cost of national wealth, natural resources, and to punish the offenders for their illegal, irregular activities. The protection of these resources was, and is the constitutional duty of the State and its instrumentalities and thus, the Court should adopt a holistic 26 approach and direct comprehensive and specialised investigation into such events of the past.
MCD v. Uphaar Tragedy Victims Assn., (2011) 14 SCC 481 xxx.................................xxx...............................................xxx
96. Courts have held that due to the action or inaction of the State or its officers, if the fundamental rights of a citizen are infringed then the liability of the State, its officials and instrumentalities, is strict. The claim raised for compensation in such a case is not a private law claim for damages, under which the damages recoverable are large. The claim made for compensation in public law is for compensating the claimants for deprivation of life and personal liberty which has nothing to do with a claim in a private law claim in tort in an ordinary civil court M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 xxx......................................xxx...........................................xxx
35.......But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use ..."
Summing up of some of the required immediate remedial steps
29. Based on the observations in para 20 to 26, we may sum up our directions under section 15 of the NGT Act for remedial action for protection of environment based on credible factual reports of statutory regulators - CPCB, UP PCB, NOIDA and DPCC :
i) CPCB may issue appropriate directions to all PCBs/PCCs within two months, to give effect to section 24 of the Water Act, to the effect that Canals, water bodies (lentic or lotic) and the Natural Storm water drains are not to be used for discharge of treated or untreated trade or sewage effluents. The storm water drains, canals and water bodies need to be geo tagged and given UID. In any case, no consent be given for discharging effluents not meeting BOD 27 criteria of Class "B". Drains built exclusively as conveyance system (open sewer) must terminate to STPs.
ii) CTO granted to the Group Housing Societies (GHS) may require standards and specifications as per MoEF&CC Draft Notification dated 25.02.2022. SPCBs need to ensure utilisation of treated sewage. Mode of disposal should not be the drains. Effluents may go to sewers leading to STPs.
iii) Thirty identified drains or any other such drain carrying sewage be diverted to existing STPs and not to Noida drain. Such drains are to be used for flood management.
iv) All existing STPs and upcoming STPs need to meet standards as directed by this Tribunal vide order dated 30.04.2019 in OA No. 1069/2018, Nitin Shankar Deshpande vs. Union of India & Ors.
subject to further directions of Hon'ble Supreme Court in pending proceedings.
v) MoU for utilisation for sewage between Power Plant and Noida be executed without delay.
vi) ACS, UD of UP need to immediately review and ensure treatment of sewage generated by Khoda - Makanpur.
vii) DJB may ensure compliance of its four STPs so as to meet standards as directed by the Tribunal. Treated effluents of 90 MGD from four Phases be utilised rather than disposed in Shahdara drain.
viii) No effluents be disposed by NCT Delhi in Kondli/ Noida drain.
ix) CPCB may independently monitor the directions from (ii) to (viii) and give its report to Chairman, CPCB who may issue further directions for compliance.
28 Further Directions
30. Apart from above remedial action to be taken by concerned authorities and monitored at highest level by the Chief Secretaries, UP and Delhi directly or through any appropriate mechanism, it is necessary to determine accountability for the past failures causing huge damage to the environment and public health and to meet cost of remediation. Pending consideration of action against other authorities and final accountability of NOIDA Authority and DJB, they are directed to deposit respectively a sum of Rs. 100 Crores Rs. 50 Crores in a separate account with CPCB towards interim compensation to be utilized for restoration measures in terms of a remedial plan to be prepared jointly by a joint Committee of Chairman CPCB, Chairman DPCC and Chairman UPPCB. Chairman CPCB will chair and steer the proceedings. The said Committee will be at liberty to co-opt any other expert/institution for the purpose and also identify executing agency which will act in coordination with the nominees of Chief Secretaries of Delhi and UP. The Chief Secretaries of Delhi and UP will be free to identify the erring officers in the process and take remedial action and recover compensation from such erring officers/violators, including the group housing societies. Further action taken reports be filed within three months by the Chief Secretaries, Delhi and UP after coordinating with authorities in their respective States and by Chairman, CPCB by e- mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
List for further consideration on 12.12.2022. A copy of this order be forwarded to the Chief Secretaries, Delhi and UP, CEOs Noida and DJB, Chairmen CPCB, DPCC and UPPCB by email for compliance.
29
I.A. No. 125/2022 for directions filed by the applicant also stands disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM August 03, 2022 O.A. No. 1002/2018 (I.A. No. 125/2022) A+AVT 30