National Green Tribunal
Krishnadas Shah vs State Of M.P. Through Secretary on 4 August, 2020
Item No. 07 (Through VC-Bhopal)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No.119/2016 (CZ)
(I.A. No.95/2019)
Krishnadas & Ors. Applicant(s)
Versus
State of M.P. & Ors. Respondent(s)
Reserved on: 04.08.2020
Uploaded on: 13.08.2020
CORAM:
HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Applicant(s) Mr. Dharamvir Sharma, Advocate
For Respondent(s) Mr. Yadvendra Yadav, Advocate
Ms. Parul Bhadoria, Advocate
Mr. Himanshu Shukla, Advocate
Mr. Om Shankar Shrivastav,
Advocate
ORDER
1. By way of filing this application, the applicant has prayed for the following relief:-
a. The Respondent no.5 may kindly be directed to pay and amount of 46,84,576/-( Fourty Six Lacs Eighty Four Thousand Five Hundred Seventy Six) as compensation as assessed Government Valuer in view of the loss of crops, trees, building, deep well to the applicants, along with interest @ 12% pa w.e.f the year 2011.
b. The respondent no.5 may kindly be directed to restore the property and agricultural land damaged due to seepage of waste water from the ash dyke.1
2. Brief facts giving rise to the present application are that the applicants are owner of the agricultural lands and marginal farmers residing at village Harrahava, Tehsil & District -- Singrauli (MP). Applicants are dependent upon farming, selling their cultivated crops in the market for the livelihood of their family members. The respondent no-5, PP is a Coal based thermal power plant (TPP). The use of coal for generation of electricity also produces fly ash. This fly ash being collected in the nearby ash dam / dyke, this is under the control of the respondent authority. This ash dam is constructed adjoining to the aforesaid irrigated land of the petitioner being cultivated since long. That, during the construction of the aforesaid ash dam in the year 2010 by Sasan Power respondent is being used for dumping ash and waste water which started leaking. No precautionary measures were taken to stop the same until the instant Original Application No. 119/2016 was filed by the applicants before this Tribunal. That, the though applicants has made prayer to compensate the applicants for causing the loss of three times crops since year 2010 onwards in their relief / prayer clause but, no court fee was affixed as prescribed under Rule 12 of the NGT (Practice & Procedure) Rule 2011. Therefore, the request was made for the amendment of original application in view of the fact that, the agriculture lands of applicants have been damaged as a result of leakage as well as due to remedial inaction of the respondents, the said request was allowed.
3. That, after the Tribunal order, the applicants approached the Govt.
Registered Valuer, M/s SK Associate, Charted Engineer who is authorised member of F10848 & IRDA (Insurance claim surveyor & Loss assessor). Therefore, after all the requisite formalities sought 2 by the Valuer a loss assessment report dated 01.09.2019 has been prepared. That, the registered Valuer, SK Associate also sought information from the applicants to furnish the records of the land such as copy of khasra, letter from Village Sarpanch, prevalent crops rate to be obtained from the Krishi Upaj Mandi, Singrauli, letter of Panchnama etc. in order to evaluate the proper amount of compensation for the mentioned time period.
4. That, the minimum support price recommended by Commission for Agricultural Costs & Prices (in short "CACP" ) and fixed by the State Government year wise dated 14.01.2019 procured by the applicants and submitted to the Valuer. The year wise with effect from 2011- 12 to 2018-19 the Minimum support price of the crops are approved by the Secretary, Krishi Upaj Mandi samiti, Singrauli. Therefore, the report furnished by the applicants proves the title of land, value of loss, legal entitlement for the claim of compensation with the loss assessment as prepared by the Government Valuer based upon previous and present market conditions. Crop productivity of crops adversely affected in the land of applicants due to the water logging and productivity per acre less in water logged lands as compared to normal land, which conclusion has been given by the Valuer. That, it is pertinent to mention here that, due to leakage of polluted and contaminated water having injurious elements therein from the said ash dam coming into and filling up the field/ agricultural lands was causing huge losses which matter was enquired into regarding it's truthfulness and veracity of complaint. The Tehsildar has submitted it's report and approved that there has been continuous damage to the crops of the local agriculturalists, who also recommended for the compensation to be 3 given by the PP/ Sasan Power Project. But, till date no compensations has been granted to the aggrieved agriculturalists as the matter was taken before the commissioner which is still pending for adjudication. That, due to constant seepage from the said ash dam, contaminated water containing heavy metals and harmful chemicals, discharged into the agricultural lands of the applicants. The Crop yield has not only substantial reduced but, the lands of applicants have turned barren and unproductive.
5. That, the petitioners have been cultivating the land since long for their Livelihood having no source of income except cultivation. The Ash Dam under the control and authority of respondent no.5 constructed adjoining with the aforesaid irrigated lands of the petitioners for the last many years. Due to leakage of polluted and Dirty water having injurious elements therein from the said dam coming into the agriculture land and filling up the fields while standing crops therein, has caused huge monetary financial losses since for the last 5 to 6 years continuously. Inquiry report by Tehsildar was detected having been continuing leakage of such polluted water from said dam and on causing damage to the crops of applicants, the compensation was recommended to be given. The applicants have suffered huge losses and damages to their crop due to the discharge of the polluted water of the ash dam which was also published in the various newspapers time and again. The Writ Petition filed before the Hon'ble High Court decided on 07.01.2015 with the directions to the District Collector to consider and decide the representation submitted by the applicants. Though, the Collector decided the representation in favour of applicants but, till date no compensation whatsoever has been granted by the Respondent no.5. 4 It is further submitted that respondent has not complied the mandatory provisions of environmental laws. The injury and damage caused sustained by the applicant are permanent in nature and irrecoverable in course of time. There are no effective necessary steps taken by the authorities and the Respondent no.5 for the revival of fertility of the damaged and barren lands of the farmers/applicants.
6. It is argued on behalf of Learned Counsel appearing for the applicant that in light of the order passed by this Tribunal dated 03.07.2019 amended memo of the application has been filed. The applicant has submitted the valuer's report who is recognized as Government Registered Valuer, Chartered Engineer-Design and Consultant Engineer and after assessment of the damage caused by act of respondent no.5, he has calculated the loss of crops and other damages for the year as mentioned below:
(i) Financial year 2011-12= Rs. 5,17,222
(ii) Financial year 2012-13= Rs. 5,17,222
(iii) Financial year 2013-14= Rs. 6,32,212
(iv) Financial year 2014-15= Rs. 9,55,830
(v) Financial year 2015-16= Rs. 9,01,837
(vi) Financial year 2016-17= Rs. 8,64,742
(vii) Financial year 2017-18= Rs. 9,31,305
(viii) Financial year 2018-19= Rs. 8,73,975
(ix) Financial year 2019-2020= Rs. 2,39,250
Total amount of compensation from financial year 2011-2012 to 2019 to 2020 and part B, C and D as calculated by the Chartered Accountant is Rs. 46,84,576/- only. Copy of the khasra and khatoni has also been filed by the applicant. A certificate from office 5 of the Village Panchayat Harrahava, District Panchayat Bedhan, District Singrauli has been filed in which it has been narrated that the crops of the applicant has been damaged due to leakage of the water from the dam of the respondent no.5 and due to untreated water which affected the crops of the applicant. The minimum value and the report have also been submitted which was issued by the Secretary, Kirshi Mandi Samiti, Singrauli.
7. That the petitioners have been approaching time and again representing their grievance of causing loss of tri times crops with such a polluted and dirty water having injurious elements therein from the Ash Dam under the authority of respondent No.5, but no step/measure taken as to effect of such polluted water causing loss to the natural atmosphere of the area, and being so the petitioner filed W.P.No.16270/14 before the Hon'ble High Court at Jabalpur which was decided on 07/01/2015 with certain direction to the respondent. That, while furnishing the order of High Court by making representation, the Addl. Collector on having registered a case No.30/B-121/2014-15 (Ramkripal Shah and ors Vs C.E.O. Sasan Power Limited) passed an order dt. 12/10/2015 relying on the report of the Tahsildar Circle Sasan Tehsil Singrauli dt.26/7/2014 (Annex A-1) and also a subsequent report of S.D.O. Singrauli being held by the Patwari Harrahava dt. 7/9/15 before the employee of Company, Sarpanch, Revenue Officer and employee and found therein that there having been leakage of polluted and dirty water from the Ash Dike Dam causing and making the lands incapable for agricultural becoming the lands of the area swamp on flowing the water over there, and it is a technical issue. On having heard the parties, the said order dated. 6 12/10/15 passed, directing the compensation for the year from 2012-13 to 14-15 to the affected persons, but denied for the year 2015-16. That, thereafter the applicants submitted an application on 17/11/15 seeking compliance with the said order of the Addl. Collector. That, since the Tehsildar on finding the said water of dam to be dangerous and polluted to the effected persons and their crops of field, has also recommended in his report to be compensated them and forwarded the same for further proceeding, but deliberately no fruitful steps amounting to leaving them to face a lot for their livelihood and causing damaged to their land, as well as becoming a polluted area not to be secured and safety to human life/wild life, have been taken by the respondents.
8. That, the report of the Tehsildar dt. 26/7/14 as well as subsequent report of SDO dt. 7/9/15 also appears the fact of there being a leakage of polluted and dirty water having included injurious and poisonous elements/substance therein, from the Ash Dyke/Dam of respondent no.5, but no measure/step taken for restraining the leakage of the said dirty water flowing over the area, and hence it is fit and proper case for seeking a interference of this Tribunal.
9. Tehsildar visited the spot and vide report dated 26.07.2014 has submitted that due to leakage of the water from the industry of respondent no.5, the agricultural crops have been damaged and the water of the well is not to be used by the human beings. The colour of the water as shown by the authority was found to be black. It is further submitted by the Tehsildar of the area that the construction work by the respondent no. 5 is going on but due to 7 ash and untreated water being flown there, the agricultural crops have been damaged. Paper reporting and map has also been submitted by the applicant.
10. In the writ petition no. 16270/2014 vide order dated 07.01.2015, it was directed as follows:-
"Shri M.P.Shukla, learned counsel for the petitioners. Ms. Vandana Shrivastava, learned PL for the respondents No. 1 to
4. Shri Amit Dubey, learned counsel for respondent No.5.
By this petition, the petitioners, inter-alia, is seeking direction to the respondents to pay them suitable compensator for loss of tri-tires crops of a tear from the year 2012 over the lands of petitioners suffered due to dirty arid polluted water being leakage from the Ash Dam from the year 2012 continuously.
The contentions of the petitioners are that they have been cultivating since the time of their predecessors over the lands situated at village Harrahava Tehsil District Singrauli. It is submitted that due to leakage of polluted and dirty water from the Aish Dame under the authority of respondent no.5, having injurious elements therein, from the said dame coming into and filling up the fields/lands while standing crops therein, has been causing huge loss since last about 2:3 years continuously, therefore, they approached the respondents authorities to pay them suitable compensation.
Learned counsel for the petitioners submits that to ventilate their grievance, the petitioners have submitted a representation Annexure P/4 to the respondent No. 2- the directed to consider and decide the said representation submitted by the petitioners within a stipulated period by a speaking order.
Learned Panel Lawyer and learned counsel for respondent No. 5 submit that they have no objection if such direction is issued.
In view of aforesaid submissions made by learned counsel for the parties, the writ petition is disposed of with direction to respondent No.2 the Collector Singrauli to consider and decide the representation Annexure P/4 submitted by the petitioners within a period of two months from the date of receipt of certified copy of the order passed today by a speaking order. It is made clear that this Court has no: expressed any opinion on the merit of the case.
With the aforesaid, the Writ petition is disposed of. Certified copy as per rules."8
11. In compliance of the order, the applicant has moved an application before the Additional Collector, District Singrauli who entertained with the application and passed an order with the effect that crops of the farmers are being badly affected and causing loss to their income. The Additional Collector has also narrated in this order that it was due to the adverse effect by the fly ash and the untreated water being flown by the industry.
12. In the meantime, the Respondent has filed I.A. No. 95 of 2019 with the facts that the application is not maintainable as it is barred by time. Learned Counsel for the respondent has submitted that the application must have been filed within 5 years of the time from actual cause of action and it was filed in 2016 in the month of August and the Applicant has raised the issue of compensation from the year 2011 and in this way, in light of the fact that it is 8 months delay and the very maintainability of the application has been challenged. In reply thereof, the applicant has submitted that it is a beneficial legislation and the applicants are very poor persons of the village background and approached to Hon'ble High Court of Madhya Pradesh and later on in compliance of the direction of the High Court, they again moved an application before the Collector and the Additional Collector, based on the report of the Tehsildar, found that the crops of the farmers were damaged due to fly ash and the untreated water being flown and discharged in the fields of the applicants.
13. In reply thereof, it is submitted that the cause of action to file instant O.A. before this Hon'ble Tribunal, accrued to the applicants only on 12th October, 2015 when case was decided in favour of applicants by the Additional Collector, District Singrouli (MP) vide 9 ANNEXURE A-5 on the basis of inquiry report submitted by the office of Tehsildar regarding seepage of pollutants into the agricultural lands of the applicants and detrimental, otherwise there was no occasion to file Original Application U/s 14, 15 of the NGT Act, 2010 before this Hon'ble Tribunal. Therefore, the objections regarding maintainability taken by the respondent no. 5 is factually incorrect, misconceived and wrong, hence, liable to be rejected at the very outset.
14. The applicants had filed court fees sum of Rs. 47, 346.00 (Rupees Forty Seven Thousand Three Hundred and Forty Six Only) through Demand Draft bearing number 659935 issued on 16.09.2019 by Canara Bank at Bhopal (MP) only after an amendment in the Original Application was allowed vide order dated 30.07.2019. Therefore, it is incorrect to state that no court fee has been filed.
15. Section 15 of the NGT Act, 2010 provides as follows:
"15 Relief, compensation and restitution. -
(1) The Tribunal may, by an order, provide,-
(a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
(b) for restitution of property damaged;
(c) for restitution of the environment for such area or areas, as the Tribunal may think fit.
(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of 10 five years from the date on which the cause for such compensation or relief first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority."
16. It is a fact that the applicant filed CWP 16270 of 2014 before Hon'ble High Court of Madhya Pradesh for paying suitable compensation for loss of crops of the year from 2012 due to dirty and pollutant water being leaked from the ash dam from the year 2012 continuously. The Regional Officer, Singrouli, Madhya Pradesh Pollution Control Board had after inspection submitted a report which discloses that the natural drain passing through the complainant's land was found to be water logged due to narrow path of the drain, as a result of which the complainant is not able to use its own land for the agriculture purpose. It was further suggested in the inspection report that the natural drain shall be made wide and deep enough to prevent the condition of water logging.
17. The MPPCB, respondent no. 6 has submitted the reply as follows:
"6. During the visit to the land of complainant, it was found that there is a natural drain passing through the land of the M/s Sasan Power Ltd. near the ash dyke. The complainant has made cuts into the natural drain for collecting the water in his land for personal utilization (irrigation and others). Thus the complainant has created a small water pond in his land to use this natural water.11
Some portion of complainant's land is water logged due to water flowing from natural drainage to his artificial pond, which complainer is claiming as "Leackage from Ash Dyke". The factual situation is that, the part of Ash Pond which falls near (approximate 200 m) is not in use presently for disposal of ash slurry.
7. Further that, the quality of water in complainant's land and nearby area was tested many times during the course of this dispute and all the samples found to be conforming IS-2296 class E, Irrigation, industrial cooling are controlled waste disposal. It is ironical that at the one hand the complainant he is complaining of water leakage from Ash Dyke (which is actually natural water flowing into the drain). During the visit to this fields, it was observed that he is taking a good yield of crops in his farm (app. 3.5 acres) by using the same water. M/s Sasan Power Ltd. has also provided drip irrigation systems to the complainant under CSR activities to enable him better productivity.
8. The respondent no. 5 has informed that, it has made efforts to make the natural drain wide and deep and also tried to rectify the cuts made by the complainant in the natural drain to take water into his pond/fields, but again and again the repair were found damaged and water continues to flow into his pond. During the visit, it has observed that the complainant has installed hume pipe to interconnect and distribute the flow of water from the natural drain to his fields. The photographs of the same is enclosed herewith as Annexure R-03. It appears that the complainant wants to utilize the water of drain for irrigation and this act is disturbing/diverting the natural flow of the drain.
10. The Status of observation and suggestions made in the earlier inspections carried out vide dated 24/10/2016 & 21/01/2016 is as follows:
"a. The industry has demarcated its entire land near the Ash pond by erecting concrete pillars and barbed wire fencing. b. Roads near the ash dyke have been made pacca under the PMGSY by government. A approach road has also been constructed by the industry which is connecting Ash Dyke road.
c. After the demarcation of their land area the industry has also started plantation near the Ash Dyke area.
d. The industry has taken following steps regarding fly ash management:
Six (6 Nos.) of intermediate Ash silos are installed with total capacity of 3000 MT (500 MT each) for storage & conveying of fly ash to the main ash silo or directly to the ash pond as per requirement. The silo has inspected and was found in operation.12
Eight (8 Nos.) of main ash silos with total capacity of 9600 MT (1200 MT each), in which two silos are having provision for the fine ash collection. The main ash silos were inspected and were found in operation, Bag filters are installed at each silo for dust control and those were found operations during the inspection.
The Fly Ash from the main silo is fed to the bulkers through the chute system and is transported to end users through covered trucks or pneumatically covered bulkers. Unused fly ask is transported to the ash pond in slurry form through pipelines. Ash water recovery system (AWRS) is installed for recovery of water from Ash pond. The system was found operational during inspection.
Area of Ash Dykes:
Pond No. 1 - 180 Hac.
Pond No. 2 - 145 Hac.
Total area of Ash Pond - 325 Hac."
18. This report was submitted on 08.07.2019 and it is version of the applicant that after filing of this application with regard to complaint and compensation which was previously filed before the Hon'ble High Court of Madhya Pradesh which was referred to Collector and Collector submitted the report that due to leakage of dam of respondent no. 5, it was the impact on the crops of the applicants and the cause of action was justified by the report of the Additional Collector. The applicant stated that after that report, the respondent had complied the directions and made certain remedial measures. Thus, it cannot be denied that prior to this there was no damage to the crops of the applicant.
19. The respondent no. 5 has submitted the reply which is as follows:
"5.The industry has also installed pump of 5 HP Capacity at the sump for recirculation of water so collected in to the storage sump to the ash pond. The pump has been found functional and fully secured as it is installed inside the small room with lock & key arrangement. The photographs of the drain and sump constructed by the industry are attached Annexure R-02.
6. During the visit to the land of complainant, it was found that there is a natural drain passing through the land of the M/s Sasan 13 Power Ltd. near the ash dyke. The complainant has made cuts into the natural drain for collecting the water in his land for personal utilization (irrigation and others). Thus the complainant has created a small water pond in his land to use this natural water. Some portion of complainant's land is water logged due to water flowing from natural drainage to his artificial pond, which complainer is claiming as "Leackage from Ash Dyke". The factual situation is that, the part of Ash Pond which falls near (approximate 200 m) is not in use presently for disposal of ash slurry.
7. Further that, the quality of water in complainant's land and nearby area was tested many times during the course of this dispute and all the samples found to be conforming IS-2296 class E, Irrigation, industrial cooling are controlled waste disposal. It is ironical that at the one hand the complainant he is complaining of water leakage from Ash Dyke (which is actually natural water flowing into the drain). During the visit to this fields, it was observed that he is taking a good yield of crops in his farm (app. 3.5 acres) by using the same water. M/s Sasan Power Ltd. has also provided drip irrigation systems to the complainant under CSR activities to enable him better productivity.
8. The respondent no. 5 has informed that, it has made efforts to make the natural drain wide and deep and also tried to rectify the cuts made by the complainant in the natural drain to take water into his pond/fields, but again and again the repair were found damaged and water continues to flow into his pond. During the visit, it has observed that the complainant has installed hume pipe to interconnect and distribute the flow of water from the natural drain to his fields. The photographs of the same is enclosed herewith as Annexure R-03. It appears that the complainant wants to utilize the water of drain for irrigation and this act is disturbing/diverting the natural flow of the drain."
20. The original application and the prayer may be considered in light of the following facts:-
(i) There is a damage to the agricultural fields of the applicants.
(ii) The matter was complained to the local authorities.
(iii) When the matter was not taken up and no compensation was made and no action was taken by the local authorities then on the advice of the Counsel, the applicant approached to the Hon'ble the High Court of Madhya Pradesh and the Hon'ble 14 High Court after hearing the parties found that there was damaged to crops of the applicants and directed the Collector to do the needful and assess the compensation.
(iv) The Collector examined the matter, visited the spot through Additional Collector and called of the report of the Tehsildar and found that there is a damage to the crops due to the discharged of untreated water and fly ash discharged by the respondent.
(v) The Collector also found that the water of the well which was being used by the villagers for drinking purposes was found as a black colour and was not to be used.
(vi) In spite of all these things when the matter was not finalised then on the advice of the counsel the applicant approached to this Tribunal at New Delhi.
21. The above facts revealed that the applicant knocked every door of the justice for getting the justice but the matter is still pending, it is not their fault, it is the fault of the system. He approached to the executive authorities, to the judiciary and to everyone and every institution which are known to deliver the justice but the compensation which is found to be true by the Collector is still pending.
22. The Learned Counsel for the respondent has submitted that the land is not fertile and is in the shape of nalla and there is no loss to the crops of the applicant. He further submitted that the farmers are yielding more income through the using the water being discharged by the industry and they are using it in irrigation purposes. These both arguments cannot survive at a time either land is not fertile or they are yielding it. The farmers and 15 agriculturists have every right to use the water for agricultural purposes wherever it is found. The respondent cannot check and have no control over the water that they cannot use it. But if the water being discharged by the industry is found to be not of the good quality and damaging the crops of the agriculturists and also damage the health of the public then polluters are liable for the damages according to the rules.
23. Where there is a Tortious Act such as trespass, nuisance, negligence committed by anyone then he may be liable to the damages for the malicious deliberate or injurious wrong doings. There is just a tort which has been called misfeasance in a public and its includes malicious abuse of power, deliberate mismanagement and perhaps also other unlawful acts causing injury to others. The applicant or very poor farmers and they cannot contest to the level of High Court and Court at Delhi. They are living in position of below poverty line and in the condition when their crops are damaged and have no source of income, they are struggling for their existence and struggling for their survival. The water for agricultural farmers is source of life and source of livelihood. An ordinary citizen and a common man are hardly equipped to match the might of the mighty and the State instrumentalities. It is provided by the rule of law, it is called check on arbitrary and capacious exercise of power and function of the authorities. A person if functions in such a way and acts maliciously are oppressively and the exercise of power results in harassment and agony that it is not an exercise of power and good management. No law provides protection against it. Who is responsible for it, must suffer for it. Compensation or damages may 16 rise even when the act of the respondents is not bona-fide or he acted negligently and carelessly and coming into the definition of deliberate mal-administration, it is called misfeasance. Harassment of a common man by the mighty powers is socially abhorring and legally impermissible. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning of the mighty officers instead of standing against it. Therefore, the award of compensation for harassment by public authorities not only compensate the individual, satisfies him personally but helps in curing the social evil. It may result in improving the work culture and help in changing the outlook.
24. In a case reported in AIR 1999 SCC (p.2468) M.I. Builders Pvt. ltd. Vs. Rahdey Shyam Sahu & Ors., it was held that "a Country should not be ruled by man but should be ruled by law. It means that that the State action must confirm to its statuary provisions. The power must flow from rules, regulations, and statutory provisions. In absence of power conferred by the statutory provision, State or its instrumentalities cannot divest a person from his or her property or abridge or dilute the right protected by Article 14 and Article 21 of the Constitution of India safeguarding life, liberty livelihood or equality of law. It was held in 2005(6) SCC (p 344) Salem Advocates Bar Association Vs. Union of India that where there is abuse of process of law or litigants suffer for no fault on their part, then court must impose cost.
25. The Tribunals or Courts constant endeavour must be to ensure that everyone gets just and fair treatment. The Court or Tribunal while rendering justice must adopt a pragmatic approach and in 17 appropriate cases realistic cost and compensation be ordered in order to discourage dishonest litigation. When a person or institution is involved in commercial activities then any injury or damage caused by the act of these commercial activities must be compensated.
26. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters, a common who has neither the any background nor the financial strength to match the inaction in public oriental department gets frustrated and it erodes the credibility of the system. The consumer must not be made to run from pillar to post. Where there has been capacious arbitrary or negligent exercise or non exercise of power by the authorities or instrumentalities, the forum must be provided in the department itself to hear the grievances and take a decision to redress the public grievance. In a welfare State there should be immediate attention to public grievance in case some injury is caused the government and its instrumentalities should not hesitate to compensate the sufferers punish the wrong doers. The individual welfare as well as the welfare of the society should be balanced and the person should not be compelled to knock the door of the Courts or Tribunals more so, when it is cumbersome process to approach the Court for payment of compensation subject to payment of court fees or lawyer fees with regard to misfeasance by the authority concerned.
18
27. Learned Counsel for the Respondent had submitted that it is a natural flow of water in the natural nallah and it is act of God and the respondent was not liable to pay the compensation and it is not negligence on the part of the respondents. The perusal of the records reveals that due to negligence and laxity of the functionaries of the respondents who have failed to maintain the nallah and the flow of the untreated water into the fields and fly ash and not taken precautions required under the provisions that it is negligence act on the part of the respondent and it is not act of God.
28. The Privy Council in the case of Eastern and South African Telegraph Company, Limited v. Cape Town Tramways Companies Limited, reported in (1902) AC 381, has held that the principle of Rylands v. Fletcher, is not inconsistent with the Roman law. It imposes a liability on a proprietor which is measured by the non- natural user of his own property, not by that of his neighbour. It also applies to a proprietor who stores electricity on his land if it escapes therefrom and injures a person or the ordinary use of property.
29. In the case of Corporation of The City of Glasgow v. Taylor, reported in (1922) 1 AC 44, the House of Lords have held that in the case of child eating poisonous berries, the proprietors and custodians of the garden are liable.
30. In the case of Paine v. Colne Valley Electricity Supply Co., Ltd. And British Insulated Cables, Ltd. reported in (1938) 4 All. E.R. 803, it was held that as there was no efficient screening of the dangerous parts in accordance with the provisions of that Act, there was a 19 breach of statutory duty by the first defendants and they were held liable.
31. In the case of Yachuk& another v. Oliver Blais Co., Ltd., reported in (1949) 2 All. E.R. 150, the Privy Council has held that when employee has given an explosive substance to a boy with a limited knowledge in respect of the likely effect of the explosion, the boy having done the act which the child of his years might be reasonably expected to do. This would not be a case of contributory negligence.
32. In Madhya Pradesh Electricity Board vs. ShailKumari and others, AIR 2002 SC 55,1 it was held as follows:
"8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
9.The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands v. Fletcher (1868 Law Reports (3) HL 330). Blackburn J., the author of the said rule had observed thus in the said decision:
"The rule of law is that the person who, for his own purpose, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."
10.There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those 20 exceptions barring one which is this. "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply". (vide Page 535 Winfield on Tort, 15th Edn.)
11. The rule of strict liability has been approved and followed in many subsequent decisions in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in CharanLalSahu v. Union of India and a Division Bench in Gujarat State Road Transport Corporation v.
RamanbhaiPrabhatbhai had followed with approval the principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd.(2001) 2 SCC 9}."
33. The plea of an inevitable accident or an act of God advanced at the stage of hearing, cannot come to the aid of the opposite parties. While considering the question of inevitable accident or an act of God, it will be useful to reproduce a passage from the Law of Torts, 22nd Edition, by Justice G. P. Singh, which reads thus:
"All causes of inevitable accidents may be divided into two classes:
(1) those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause; and (2) those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, non-feasance or mis-feasance, or in any other causes independent of the agency of natural forces. The terms 'act of God' is applicable to the former class."
34. In the case reported in https://indiankanoon.org/doc/121920906 : Yashpal Singh Vs. State of UP, Miscellaneous Bench No. 6929 of 2014 in the case of injury through electric wire it was held:
"An inevitable accident is an event which happens not only without the concurrence of the will of the man, but in spite of all efforts on his part to prevent it. It means, an accident physically unavoidable something which cannot be prevented by human skill or foresight. We have already referred to the report of the expert (Director) which indicates that the department was at fault for not taking safety measurements. Had the Board exercised proper care and supervision, it could have taken proper and prompt steps to cover 21 the naked wire near human living or by taking other steps, the like situation would have been avoided. Thus, it cannot be said that the Uttar Pradesh State Electricity Board could not have prevented the incident by exercise of ordinary care, caution and proper supervision. Thus, it is not a case where the accident took place in spite of all efforts on the part of the Uttar Pradesh State Electricity Board to prevent it. In other words, it can be said that the accident was solely due to lack of care and caution on the part of the Uttar Pradesh State Electricity Board and its functionaries. Thus, it follows that the plea of an inevitable accident is wholly misconceived and cannot come to the aid of the opposite parties for getting out of its liability.
An 'act of God' is an inevitable or unavoidable accident without the intervention of the man; some casualty which the human foresight could not discern and from the consequence of which no human protection could be provided. This is not a case where the incident was due to unexpected operation of natural forces free from human intervention which no reasonable human foresight could be presumed to anticipate its occurrence or to prevent it. On the contrary, the material on record clearly indicates that but for indifference and inaction -- negligence of the Uttar Pradesh State Electricity Board in not making nuke wise steps near human living, the incident may not have occurred."
35. As a reference was made to the case of Rylands v. Fletcher (186S- LR 3HL 330) (supra), the same may be dealt with briefly. In that case, the defendants had constructed a reservoir upon their land, in order to supply water to their mill. On the site that was chosen for the reservoir, there existed some shafts of a coal mine which was not in use. However, the passages also led to the adjoining mine which was owned by the plaintiff. This, however, was not discovered at the time of construction with the result that when the reservoir was filled, the water went down to the shaft and flooded the plaintiff's mine. Under these facts, the plaintiff instituted a suit for damages and succeeded. Dismissing the defendants' appeal, it was held by the House of Lords:
"The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully 22 brings his land something which, though harmless while it remains there, will naturally do mischief if it escapes out of his land? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keep there, in order that it may not escape and damage his neighbours; but the question arises whether the duty which the law casts upon him under such circumstances is an absolute duty to keep it at his peril or is, ... merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more ...
We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default; or, perhaps, that the escape was the consequence of 'vis major' or the act of God; but as nothing of this sort exists here, it is unnecessary to enquire what excuse would be sufficient."
36. We have also to consider what would be just compensation. The Court has power to award the compensation above the amount claimed, so as to award compensation which was just. In this regard the following observations of the Supreme Court in State of Haryana vs. JasbirKaur reported in (2003) 7 SCC 484, are worth noting:-
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the 23 determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression 'just" denotes equitability, fairness and reasonableness, and non-arbitrary. if it is not so it cannot be just. (Helen C. Rebello v. Maharashtra SRTC (1999(1) SCC 90)".
37. It has been held by Supreme Court in Yadava Kumar Vs. Divisional Manager National Insurance Co. Ltd. Reported in (2010) 10 SCC 341 as under:
"14. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW-2 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome.
15. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a `just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of `just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (Mrs. Helen C. Rebello and others Vs. Maharashtra State Road Transport Corpn. and another - AIR 1998 SC 3191).
16. It was also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (HardeoKaur and others Vs. Rajasthan State Transport Corporation and another - (1992) 2 SCC 567).
17. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter 24 of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation."
38. The learned counsel for the applicant had submitted that the National Green Tribunal Act, 2010 is a beneficial legislation to protect the environment and to compensate the person who has sustained injuries due to non-maintenance of environment and on the principle of 'Polluter's to Pay',the applicant may be compensated. The beneficial legislation was interpreted in the New India Assurance Co. Ltd. vs. Ramesh Kalita And Others in (1989) ACC 248, the point of discussion in this case was the payment of compensation in the case of accident in motor is in Tribunal and in this reference, the relevant paras are as follows:
"13. Shri P.K. Das, learned Counsel for the claimant respondent has of course cited Oriental Fire and General Insurance Co. v. Smt. Shantabai S. Dhume AIR 1987 Bombay 52. The main consideration in giving Section 92-A retrospective operation appears to have been that the provision constitute a beneficial piece of legislation and the legislative intendment appeared clear. It was observed in Para 5:
The legislative intendment appears thus clear and what was apparently meant is to provide for compensation in all accident cases involving motor vehicles where death or permanent disablement occurred, the question as to whether the accident was due to the fault of the driver of the vehicle, or of the victim, or due to a mechanical failure, or to force majoure, being entirely irrelevant and immaterial. The legislative intendment is manifesly to give some relief to those who have the misfortune of meeting with such accident or to their families. Section 92-A embodies and is, as such, a piece of welfare legislation which requires a liberal interpretation so as its benefits may be extended to all victims of accidents or their families, especially when nowhere in the said provision of law it is postulated that the benefit is given prospectively only and on the contrary it would appear from its wording that the said benefit is to be given in all cases where an accident occurred and as a result thereof, a death or a permanent disablement was occasioned. The Statement of Objects and Reasons of the Amendment Act to some extent corroborates this view for it particularly indicates that the intention of the Legislature was to remove the evil and mischief that people who suffered the accident had to face, being sometimes unable to prove the negligence or rashness of the driver or the owner of the vehicle 25 and, therefore, unable to get the compensation they were entitled to.
14. The following portion of statement of objects and reasons of the Amending Act of 1982 was noted:
Having regard to the nature of circumstances in which road accidents take place, in a number of cases, it is difficult to secure adequate evidence to prove negligence. Further, in what are known as "hit-and-run" accidents, by reason of the identity of the vehicle involved in the accident not being known, the persons affected cannot prefer any claims for compensation. It is, therefore, considered necessary to amend the Act suitable to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions first for compensation without proof of fault or negligence on the part of the owner or driver of the vehicle and, secondly, for compensation by way of solatium in cases in which the identity of the vehicle causing an accident is unknown.
It was further held-
They thus indicate the background and the reasons for introducing a particular piece of legislation and serve the purpose of helping in the search for the intendment of the Legislature in enacting an Act. Section 92-A is intended to provide social justice by giving compensation without proof of fault or negligence by the driver or owner of the vehicle and as such in my view it is manifest that the question as to whether the cause of action arose prior to its coming into force or not becomes irrelevant for the material consideration for the purpose of awarding compensation under the said provision of law being whether the case giving rise to that liability is still pending.
15. The learned Counsel for the respondent has cited American Home Products Corporation v. Mac Laboratories where it was observed that construction leading to manifest absurdity, futility, palpable injustice or absurd inconvenience or anomaly should be avoided.
16. B. PrabhakarRao v. State of Andhra Pradesh was also cited where it was held that:
While it is a general rule of law that statutes are not to operate retrospectively, they may so operate by express enactment, by necessary implication from the language implied or where the statute is explanatory or declaratory or where the statute is passed for the purpose of protecting the public against some evil or abuse or where the statute engrafts itself upon existing situations etc etc. But it would be incorrect to call a statute 'retrospective', "because a part of the requisites for its action is drawn from a time antecedent to its passing". Vide R. v. St. Mary White chapel (Inhabitants) (1848) 12 QB 120. We must further remember, quite apart from any question of retrospectively, that, unlike in the United Kingdom here in India we have a written Constitution which confers justiciable fundamental rights and so the very refusal to make an Act retrospective or the non-application of the Act with 26 reference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non- retroactivity or non application clause, as offending the fundamental right to equality before the law and the equal protection of the laws.
17. It is significant that by necessary implication from the language or where the statute is passed for the purpose of protecting the public against some evil or abuse or where the statute engrafts itself upon existing situations etc. etc., the retrospective effect to a statute may be considered, to let of operate retrospectively.
18. In GirdhariLal and Sons v. BalbirNath , it was laid down:
The primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to so interpret the statute as to promote and advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the Rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing, the, written word if necessary.
19. It is thus significant that it is enjoined on Courts to so interprete a law, having ascertained the intention so as to promote and advance the object and purpose of the enactment.
20. It is further significant that while doing so the Court may even depart from the rule that plain words should be interpreted according to their plain meaning.
21. In Skandia Insurance Co. Ltd. v. KokilabenChandravadan AIR 1987 SC 1184, the principle was laid down-
These must therefore be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim. To do otherwise would amount to nullifying the benevolent provision by reading it with a non-benevolent eye and with a mind not turned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the legislature has given, the Court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent. In fact it appears that the former view is more plausible apart from the fact that it is more desirable When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly 27 any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the 'exclusion clause' does not cross swords with the 'main purpose' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose.
21. In Craies on Statute Law Seventh Edition at page 396 under the head "Statutes passed to protect the public sometimes held retrospective", it is stated "If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right".
22. Under the head "Statutes virtually retrospective" at the same page it is stated "Sometimes a statute although not intended to be retrospective, will in fact have a retrospective operation. For instance, if two persons enter into a contract, and afterwards a statute is passed, which, as Cockburn C.J. said in Duke of Devonshire v. Barrow, etc., Co., "engrafts an enactment upon existing contracts" and thus operate so as to produce a result which is something quite different from the original intention of the contracting parties, such a statute has, in effect, a retrospective operation".
23. It is also a well recognised principle that a statute is not properly called a retrospective statute because a part of the requisite for its action is drawn from a time antecedent to its passing.
24. In Maxwell on the Interpretation of Statutes, 11th edition at page 204.
Section 4 - 'Retrospective operation', it is said:
Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation.
At page 211, it is stated;
Nor is a statute retrospective in the sense under consideration because a part of the requisite for its action is drawn from a time antecedent to its passing.
25. The provisions of Section 92-A show that the legislature did not use any express words to give retrospective effect, which it could have provided easily by use of words to that effect and in the 'commencement' clause of the Amendment Act it was said that it shall come into force on such date as the Central Government may notify. As to the commencement, I do not think it to be conclusive of the legislative intendment against retrospective operation because there were other provisions in the Amending Act and it is well known that such stipulation for commencement is made with a view to make preparation etc. for implementation of the provisions 28 and when the Government is about ready to do so the statute is brought into force. I therefore do not consider the said stipulation about commencement as necessarily showing legislature's intendment against retrospective operation of the provisions of Section 92A. As regards the absence or non-existence of express words to give retrospective effect I am inclined to think that this too should not be considered as clinching the matter under consideration, for the reason, that there is nothing in the said provision, either, which may show that it was not intended to cover cases where death or permanent disability had occurred earlier.
26. The language of Section 92 A, that, where the death or permanent disablement has resulted from an accident the owner shall be liable to pay compensation in accordance with the provisions of this Section, in Sub-section (2), the fixed sum of compensation payable and in Sub-section (3) that in any claim for compensation Under Sub-section (1) the claimant shall not be required to plead and establish wrongful act, negligence etc. considered together, could well mean that where the claim could be made, that is where death or permanent disability had occurred and the claim was pending, compensation Under Sub-section (1) of Section 92-A could just be claimed and all that would happen would be that the claimant would not be required to plead or establish any wrongful act, negligence or default etc.
27. It, therefore, appears necessary to determine legislative intendment, underlying Section 92A. As the title of the chapter VII A itself shows the legislature intended that some compensation should be paid to the victim of a motor accident in case of death or permanent disability, without going into the question of fault. The intention of the legislature was to provide some relief immediately without even pleading or proof of wrongful act, negligence, default etc. as cause of accident.
28. The statement of objects and reasons of the amending Act noted earlier clearly show that the new provision is manifestly a socially beneficial legislation intended to provide some measure of protective relief by way of quick payment of some compensation to the affected persons, in view of the grave risk which the public is exposed or subjected most of the time, with increasing numbers of fast moving motor vehicles on the road.
29. The relief which a claimant of a motor vehicle accident, may expeditiously so obtain is not by any standard very great and I am inclined to think that the effect that it may have on the owner of the insurer's right which may be considered as the only right vested and affected, as compared to the benefit to the claimant or the victim, is not such as may be considered so substantial, that that consideration may or should be allowed to prevail, to disallow application of the provision to a claim made thereunder. It is only on ground of the vested right being affected that the view has been taken that the new provision should not be given retrospective effect. I am inclined to think as shown above from the language of Sub-sections (1) and (3) of Section 92-A that it should not be construed as giving retrospective effect to the provision, but even if it be so considered, I am of the opinion that in considering the operation of a socially beneficial legislation, in the absence of 29 anything to the contrary against retrospective operation, as in the present case, it should be reasonably sound to have comparative consideration of the benefit to the people and the nature and extent of the effect on the vested right. The owner and the Insurer were even before liable for compensation on proof of negligence rashness etc. By the new provision to provide some relief expeditiously the effect on the right I am inclined to think should be considered only marginal, for the number of cases in which claim were pending, and in which the claim under the new law is made and in which ultimately it may be found that the death or permanent disability had occurred, not due to the wrongful act, etc. of the owner may not be very large and in any case the burden on the Insurer would not be of such magnitude as may outweigh the consideration of relief and little security to the claimant concerned. I, therefore, think that the consideration to the terms of Insurance, as in Andhra Pradesh case (supra) should not be allowed to prevail in giving retrospective effect to the socially beneficial legislation made with a view to protect the general public against the grave risk which they face while on the road.
30. It may also be noted that undoubtedly full compensation was recoverable on proof of rashness or negligence for which the claim was pending when by the amendment a socially beneficial provision extending some immediate relief was engrafted on the law whereunder the claim was pending and, therefore, it may not be even considered as giving retrospective operation to the law. Just because the claim under it, related to an accident that occurred before the law came into force it may also be said that the amendment may not be considered retrospective in the sense under consideration because a part of the requisite for its action is drawn from a time antecedent to its coming into force, that is the death or permanent disability having occurred before the amended provision came into force.
31. For the aforesaid reasons, I am inclined to take the view that in the application of the new provision of Section 92-A in a case where the claim was pending in respect of an accident which took place earlier than the coming into force of the said provision, it should not be considered as giving retrospective effect to it in the sense under consideration, and even if it is to be so considered, being a socially beneficial legislation in such a case, it should be given retrospective effect."
39. Learned counsel for the Respondent no. 5 Shri Himanshu Shukla, Advocate has very intelligently and sharply raised the question with regard to applicability of provision of Section 15 of the NGT Act, 2010 and stated that it is specifically mandatory and there is no jurisdiction to condone the delay and also cited the case of Sunil Kumar Samanta Vs. West Bengal PCB & Ors. (Appeal No. 67/2013) and raised the question that inspite of the amended 30 application moved by the applicant this is not maintainable. He has further cited the case of Jai Javan Jai Kisan and Ors. V. Vidarbha Cricket Association and Ors. (Original Application No. 33/2016) order dated 13-01-2017 and Dinesh Negi Vs Union of India and Ors. reported in 2018 SCC online NGT 2300 and stated that the matter raised by the applicant is in the Year 2016 while the calculation of compensation has been done from the Year 2011 and the National Green Tribunal came into existence in the Year 2010 and thus there is a delay for the cause of 2011 of more than 8 months and it cannot be condoned. In compliance thereof, the Learned Counsel for the applicant had submitted that originally the applicant had moved a Writ Petition before Hon'ble High Court and in compliance of the directions of High Court, the Collector visited the spot and found that the crops were damaged due to the negligence act of the Respondent no. 5 and when the matter of payment of compensation was not finalised the applicant on the advice of the counsel moved before this Tribunal and since it is a continuing cause of action thus the application is not time barred. In light of the matter that the issue was raised before Hon'ble High Court and it is pending with the Revenue Authorities and nothing has been done thus the application cannot be denied only on the basis that it is some days time barred further the cause of action with regard to the damages of 2012 and onward has not been denied. So far as the cause of action with regard to the crops of 2011 is concerned, the applicant raised the question before the High Court and direction was issued to the Collector, thus, we deem it just and proper not to reject the claim only on the basis of these technical issues on the basis that it is a continuing charge on the respondents and the applicant was continuously agitating 31 before the Competent Authority/Courts.
40. Next issue raised by the Learned Advocate Shri Himanshu Shukla is that there was no polluted water leakage from ash dyke and it has not been sufficiently proved. He has taken shelter of report of State Pollution Control Board. In reply, thereof, it has been stated by the Learned Counsel for the applicant that the Collector visited at the spot in compliance of order of High Court and found that there was a leakage and water of the wells are of black colour. Further, the ash dyke storage was damaged badly and a serious incident occurred on 10.04.2020 where there was a death of more than 8 or 10 persons and matter is pending with the authorities concerned. It is further argued that when the negligence on the part of the respondent even after taking proper precautions in compliance of the order of this Tribunal was taken even then there was a breach of the conditions and damage, it shows that no precaution was taken by the Respondent no. 5 in the Year 2011 and onward and that was the reason for damage of crop of the applicant.
41. Learned Counsel for the Respondent no. 5- Shri Himanshu Shukla, has submitted that event of 11.04.2020 is not at all related to ash dyke and its seepage leakage, instead it is related to low line area located within the plant premises. He has further submitted that two different locations area and even cannot be clubbed together. On 10.04.2020, the retention wall of the ash filled low line area meant for ash utilization broken, that too not by itself but only due to unbalancing of heavy proclaimed machine and further due to heavy impact on its bucket on retention wall. After this said incident, Magisterial enquiry under Section 176 32 Code of Criminal Procedure directed, first information report was lodge under section 304 A and action under Factory Act also initiated. In addition to this, various matters with respect to same incident are pending before Hon'ble the Tribunal in which high level Four Members enquiry headed by MoEF & CC was also directed. It is further submitted that PIL is also pending before Hon'ble the High Court. As far as, structural stability of ash dyke of the Respondent no.5 is concerned, it is submitted that IIT BHU has already given a report dated 27.02.2020 mentioning that it is strong and stable. A perusal of report submitted by Department of Civil Engineering, IIT BHU reveals that there are two recommendation and these are the very serious in nature which include that regular monitoring of the decantation wells should be made to ensure that they are working properly and no unwarranted accumulation of rain water is there in the ash ponds endangering their safety and further the downstream slop in both ash ponds (Ash Pond - 1 and Ash Pond - 2) should be regularly monitored, especially during monsoon, for any damage due to rain water or to stone riprap and should be repaired on priority basis. The report submitted by the Department of Civil Engineering, IIT BHU reveals there is every probability of the damage due to rain water or to store riprap and there is direction that it should be regularly monitored and repaired on priority basis. On the basis of this report also there is no full proof safety of the ash ponds and the directions to properly monitor have been issued by the Department concerned. He has further submitted that there is no proof of leakage but the Collector after visiting the report had submitted that there was a leakage and damage and the contentions of the Learned Counsel for the respondent that the 33 report and inspection report of the Revenue Authorities cannot be trusted. It is not hard and fast rule that the report of the executive authority may not be trusted. Moreover, in the special circumstances where the inspection was made in compliance of the order of Hon'ble High Court. There is no rule that the report of the Revenue Authority will not be taken into account. They are public authorities and they have submitted a report in compliance of the order of Hon'ble High Court during the performance of duties as public servant. It is further contended that the applicant has not established any damage and its quantum and in reply thereof it is submitted that the applicant has approached to the Hon'ble High Court where there was direction to Collector to calculate the damage which is still pending due to the delaying tactics of the respondent, the applicant engaged Chartered Accountant which is a Government Valuer who submitted a report and a village rural illiterate man cannot do more than this. Further, there is evidence on the part of the applicant supported with the Collector's report and the Chartered Accountant's report. The Respondent has not contradicted by any cogent evidence that their loss which was submitted by the Chartered Accountant or the Government Valuer is anywhere faulty or it was a miss calculation.
42. In these circumstances, this Tribunal has no option but to rely on the calculation submitted by the Chartered Accountant or the Government Valuer. The Learned Counsel has further submitted that compensation which has already been granted by the Additional Collector should be adjusted or they are should not be repetition of payment of compensation. In reply thereof, the 34 Learned Counsel for the applicant has submitted that no compensation has till yet been paid. We deem it just and proper to direct that any compensation paid to the applicant prior to this will be adjusted and taken into account.
43. It is further argued that the application was pending from 2016 and the application of time barred matter was raised in 2019 whereby the attempt of the respondent is to block every forum for the applicant for his remedies. Though, it is raised that the cause of action with regard to the damage of crops of the year 2011 is barred by 8 months only but he has not made any argument with regard to the continuing damage to the applicant which was caused in 2012 and onward and the remedy for it lies in the Competent Court. Further, he has approached to the High Court and the Executive Authorities and the grievances of the applicant is still pending.Thus there is no fault on the part of the applicant and the grievances are still pending. Further, the amount of compensation has been calculated by the Government Valuer and placed before this Tribunal and nothing has been contradicted by cogent evidence. Thus the Tribunal has no option but to accept the calculation as submitted by the Government Valuer. The respondent has not placed the matter with clean hands as to what exact amount should be paid to the applicant. The Tribunal cannot deny the spot visit, inspection and the report of the Collector who visited the spot and submitted the report that there is a loss of the crops of the applicant. Thus, the contention of the Learned Counsel for the respondent that the application is time barred is not tenable in light of the order of Hon'ble High Court. The I.A. No. 95/2019 is decided accordingly.
35
44. Learned Counsel appearing for the MoEF&CC has submitted that the respondents must be dealt strictly for non-compliance of the Acts with regard to air pollution, water pollution and fly ash and thus, the action must be initiated according to law. The learned counsel appearing for the State Pollution Control Board has submitted that in other matter which was incident with regard to the fly ash occurred in the month of June, 2020, an amount of Rs. 10 crores was calculated as compensation where there was a death of more than 8 or 10 persons but the amount ofRs. 2 crores has been deposited but the rest of amount has not been deposited by the respondent no. 5. It is the matter relating to another incident and the State Pollution Control Board is at liberty to proceed in accordance with law to realise the compensation. Further, it was again argued by the applicant that just before 2 or 3 days of the argument, an incident occurred whereby one person died due to the fly ash in the premises of the respondent. These actions show how the respondent is maintaining his industrial waste.
45. Second point involved in this application is the matter of disposal of fly ash by the respondent. This matter was discussed by the Principal Bench of this Tribunal in O.A No. 164 of 2018 and vide order dated 05.11.2019, it was directed as follows:
"1. Issue for consideration is remedial action against pollution and violation of environmental norms by Thermal Power Stations operating in Singrauli and Sonebhadra Districts of Madhya Pradesh and Uttar Pradesh resulting inter-alia in air pollution, water contamination and large scale of damage to public health.
7. The matter has been put up today mainly for consideration of the report filed on 29.10.2019 by Justice Rajesh Kumar dealing with the issue of management of fly ash by thermal power stations and the damage caused to Rihand reservoir which is a source of water for operation of thermal power plants and other industries and also for drinking purposes by the inhabitants. The Committee observed that the capacity of the reservoir was 36 reduced due to draining of effluents and fly ash which required desilting. Fly ash dykes of Essar Power was breached on 07.08.2019 and of NTPC on 06.10.2019. Slurry was flowing on the ground causing damage to the crops. Slurry also travelled uptoRihand reservoir. This gave rise to emergent situation. The Committee held a meeting. The Committee prepared its agenda on the subject as follows:
"Generation and storage of Fly-ash in Thermal Power Plants isbecominga great cause of concern affecting the environment. Due to the regular storage of Fly-ash in Fly-ash Dykes since long, affecting air pollution, has led the Ministryof Environment, Forest and Climate Change, Government of India to declare the Sonbhadraand Singrauliarea as a most critically polluted area. No proper roadmap has been presented for its proper disposal by the Thermal PowerPlants.
It has been noticed that in recent times there had been breach of Ash Dykes of two Thermal Power Plants in Singrauli district of Madhya Pradesh, which has resulted in discharge of Ash slurry to the river as well as toRihand Reservoir adversely affecting their water quality. These Ash Dyke pertains to Thermal Power Plants (TPPs) namely M/s. Essar Power Ltd and NTPC,Vindhya Nagar. These incidence are of serious concern and indicates improper and non scientific design of Ash Dykes. The Oversight Committee constituted by Hon'ble NGT has taken this matter very seriously and also discussed in the previous meeting. In this regard a meeting of the Committee is convened on October 22, 2019 at 11:00 AM in Circuit House at Prayagraj to discuss various issues related to handling of Ash and their disposal. The agenda of the meeting is as below: -
All Thermal Power Plants have to talk about the structural design of their Ash Dykes to prove that their Ash Dykes are proper and scientifically designed.
1. To discuss with all the Thermal Power Plants about structural details of their Ash Dykes and their adequacy for handling of Fly Ash generated. Whether submitted the details of ash dykes toSPCBs and taken permissions from SPCBs.
2. All Thermal PowerPlants have to talk about the structural design of their Ash Dykes to provethat theirAsh Dykesare proper and scientifically designed.
3. Submission of affidavit by TPPs in compliance of decisions taken in the last meeting of Committee regarding adequacy of Fly Ash Dyke.The status will also be shared about the action taken by TPPs forthird party assessment of Ash Dyke of their plants through expert institutions like NEERVIITs.
4. Thermal Power Plants may submit their roadmap for the future disposal of the stored Fly-Ash as well as the currently generatedFly-Ash.37
5. What effort has been made to fill up the Fly-Ash in the abandoned Coal Mines and Stone Mines? Whether any letter has been written to the Mine- owners or to the concerned Authority in this regard, seeking permission in light of the discussion in the earlie rmeeting(s)?
6. To provide opinion about option of developing mounts of Ash Dyke as done by NTPC Thermal Power Plant, Dadri, where green cover has been developed by covering it with the topsoil.
7. Submission of status by NTPC Vindhya Nagar about necessary clearance from Madhya Pradesh Pollution Control Board about Gorbi mines and disposal of FlyAsh.
8. Preparation of DPR for project of desilting the Rihand Reservoir and bearing of such expenditure by Thermal Power Plants of the area on polluter payprinciple.
All the Thermal Power Plants situated in the State of U.P. and M.P., Members of the Committee, District Magistrate of concerned districts may be informed to attend the meeting with relevant information as perAgenda."
8. The deliberations of the Committee have been summed up asunder:
"Thermal Power Plants -- Ash Utilization:
NTPC-Vindhyanagar:Shri V.K. Maurya, Deputy General Manager (CivilDesign) NTPC, New Delhi along with ShriDebashisSen, Executive Director (Vindhyanagar) states that they could not comply the direction given by the Committee in the earlier meeting and could not submit the affidavit till today. They could not file any reply to the points raised in the Agenda of notice. However, Shri V.K. Maurya tried to explain that their Fly Ash Dyke was constructed in accordance to the norms and time to time, when the height of the Dyke was raised, the technical advices were also taken from the experts. However, no evidence in this regard has been produced before us. Despite asking from us that whether they have brought any reply to the points detailed in the agenda, Mr. Jain another officer states that they have everything. The periodical inspection has been made by the various internal department officers but he admitted that no assessment or report by third party agency has been obtained with regard to Fly Ash Dyke. Prima facie, the Committee is off the view that the officers of the NTPC are still not serious. They have not complied with the direction given by the Committee in the earlier meeting. The affidavit has not been filed. Recently, we came to know that there was a breach of Fly Ash Dyke on 06.10.2019 due to which huge quantity of fly ash slurry travelled alongwith the ground causing damage to crops and the fly ash travelled up to the Rihand Reservoir. If as per the version of Mr. Jain and Mr. Maurya everything was perfectly all right and time to time dykes have been checked why this incident happened. The incident itself shows that there was some deficiency in the construction of Fly Ash Dyke. The whole purpose for asking the affidavit in the earlier meeting was to get 38 their dykes checked properly from the third party experts inasmuch as these dykes were originally constructed much earlier, in the present case in the year 1981. Plant is not able to produce any roadmap for the disposal of the stocked Fly Ash and the currently generated Fly Ash. A continuous process of stocking the Fly Ash is going on, which is causing environmental effect every day. In this view of the matter, the Committee is of the view that the Plant is liable for the compensation/penalty for causing environmental damage every day.
Later on, at the end, they have provided an affidavit. The averments made in the affidavit are vague and casual. The paragraphs are sworn on the 'personal knowledge' and not on the basis of documents. We are not satisfied with the averments made in the affidavit. Sri Jain submitted that some time may be allowed to get the Fly Ash Dyke inspected by the third party agencies. He prays and is allowed one month time to get the Fly Ash Dyke inspected by the third party agencies like IIT or any other agencies, who are experts on the subject. He further submitted that he may be allowed a week'stime thereafter to give the reply of each and every point of the agenda of themeeting.
NTPC Shaktinagar:ShriDebashishChattopadhyay, Chief General Manager submitted an affidavit in respect of the Fly Ash Dyke. From perusal of the affidavit it appears that the averments are vague and general in nature. The averments are sworn on the basis of personal knowledge and not on the basis of the documents. The Committee is not satisfied with the affidavit. Let the Plant may file a fresh affidavit after getting the report from the third party technical agency. He further submitted that due to the breach of the Fly Ash Dyke of NTPC Vindhyanagar and on account of the heavy pressure, their recycled water pipeline has been damaged resulting overflow of the water from the Dyke. He fairly admitted that some quantity of the over-flown water is going to Rihand Reservoir. He, however, assured that within a week the recycled water pipeline will be repaired and they may also get the technical structural stability report about their Fly Ash Dyke from third party agencies namely IIT etc. He submitted that he will submit the Affidavit within a period of one month giving reply of each and every point raised in theagenda NTPC Rihand:ShriRanjan Kumar, G.M. NTPC Rihand submitted an affidavit. The averments made in the affidavit are vague and casual. The paragraphs are sworn on the 'personal knowledge' and not on the basis of documents. We are not satisfied with the averments made in the affidavit. He states that their Plant has already engaged IIT, Kanpur for the inspection and report in respect of the Fly Ash Dykes. The report may likely be obtained within one month. The Committee is of the view that let one opportunity may be given to the Plant to file a better affidavit along with the documents to demonstrate the action taken by the Plant in this regard and also the report of the third party agency in regard to the structural stability of the Fly AshDykes.
LancoAnpara& U.P. State PowerCorporationLtd.: An 39 affidavit has been submitted by the Anpara Thermal Project, a Unit of U.P. State Power Corporation Ltd. The affidavit is vague and general in nature. In support of the averments in the affidavit, no document has been annexed. There is no report of the third party technical agency. They are directed to give a better and detailed affidavit. It is stated that they have only one Fly Ash Dyke in which their fly ash as well as the fly ash of Lanco are being drained. The maintenance of the said Fly Ash Dyke is the responsibility of the Anpara Thermal Project, U.P. State Power Corporation Ltd. In this way, so far as the construction, stability and maintenance of the Fly Ash Dyke isconcerned, Lanco is not responsible. The entire responsibility is upon U.P. State Power Corporation Ltd. The officer of U.P. State Power Corporation Ltd. submitted a report of 2018 wherein the structural stability of the Fly Ash Dyke has been examined. In the said report, it is approved that their Fly Ash Dyke is suitable for further raising of height up to 5 meters. The copy of the said reporthasbeensubmittedbeforeus.TheCommitteeisofthe view that after raising the height, the Plant may get a further report in respect of structural stability in order to overrule any possibility of technical flaw. Shri A.K. Rai, Executive Engineer states that in the Fly Ash Dyke the rainy water of the catchment area also flows and in such a situation during the rainy season when the Fly Ash Dyke is full of water due to heavy rainfall etc. Sometimes the fly ash along with the water also flows to Rihand Reservoir. The Management of the Plant is very serious about this issue and has asked the District Administration to divert the Nala of the catchment area to somewhere to avoid any flow of fly ash in the Rihand Reservoir. The District Magistrate, Sonbhadra states that the Administration is very serious and taking all possible steps to get the Nala diverted. The work is likely to be completed within two months. Both Lanco and U.P. State Power Corporation Ltd. are directed to furnish their reply by filing a fresh affidavit in regard to each and every point of the agenda of themeeting.
Essar Power: The officers of the Company submitted the affidavit regarding their Fly Ash Dykes. They submitted that 80% of the fly ash which had flown due to the breach of the Fly Ash Dyke have been removed and 20% fly ash lying on the earth shall be removed within a period of one month. They submitted that for the assessment of the environmental damage they have engaged NEERI, Nagpur. The document relating to their engagement has been produced before the Committee. They stated that NEERI has asked for six months time to assess the environmental damage. They further submitted that for the structural stability of the Dyke and making it technically sound they have taken the advices from two professors of the IIT Roorkee, namely, Prof. K.S. Hariprasad and Prof. Narendra K. Samadhia. They have visited the spot. They are likely to give their report within a period of fifteen days. On the basis of their report, they may proceed to reconstruct their Fly Ash Dyke. It has also been informed to the Committee that there was a joint inspection done by the officers of the Central Pollution Control Board and the officers of the M.P. Pollution Control Board and on the inspection the report has been submitted wherein they found that the Plant has removed 80% fly ash and they are in the 40 process of removing the remaining 20% of the fly ash. The Committee directs the Plant to submit the report of the IIT within fifteen days and thereafter also submit the progress report, of the steps being taken to reconstruct the Dyke. On the report being received from NEERI, the environmental compensation shall be assessed. Let the Company may give detailed reply of each and every point of the agenda of the meeting by filing an affidavit within onemonth.
Shasan Power Ltd.: The representative of the Plant submitted the affidavit. However, the report of the third party agency certifying the structural stability of the Fly Ash Dykes has not been submitted. They have also not submitted the reply of each and every point raised in the agenda. The representative states that they will get the report about the structural stability of the Fly Ash Dykes and give the reply of each and every point raised in the agenda within one month.
Hindalco Industries -- Mahan Aluminium Project: The Company is engaged in the manufacturing of Aluminium from Alumina and has a Power Plant of 900 MW capacity. It is submitted that they have 02 Fly Ash Dykes, one dyke has been completely filled to the capacity and the other is being used now. For the purposes of raising height of the Fly Ash Dykes they have engaged the BHU for technical advice and on the basis of the advice they will proceed further in the matter. The Committee is of the view that they may also get the report from the third party agency about the initial structural stability of the two Fly Ash Dykes. The Company has submitted an affidavit. The averments in the affidavit are general in nature. They are also directed to file a fresh affidavit giving reply of each and every point raised in the agenda within onemonth.
Bajaj Energy: The representative of the Plant stated that they have received copy of the agenda very late. Therefore, they could not collect the necessary documents. They sought time to furnish the details. Let the Plant may submit an affidavit relating to the structural stability of the Fly Ash Dykes and also give the reply of each and every point raised in the agenda, supported by the certificate from third party agency in this regard. They are directed to give the reply of each and every point of the agenda within a period of one month.
M.P. Power Generating Co. Ltd.: There are 04 (four) Units of this Company,namely:-
(1) ATPS, Chachai, District Anuppur, established in2007. (2) SGTPS, Birsinghpur, District Umariya, established in 2015.
(3) STPS, Sarni, District Betul-- two Plants established in 2013 and2017.
(4) SSTPP, Dongalia, District Khandwa, established in2018.
A consolidated Paper Book has been submitted in respect of all the Units. However, they have not submitted any Affidavit with regard to the Fly Ash Dykes and also the Certificate of the third party agency who are the Technical expert. The officers of the 41 Company pray for one month time to submit the affidavit and the certificate. They have also submitted a roadmap for the disposal of the Fly Ash. A perusal of the roadmap reveals that in comparison to the other Power Plants, their Unit-wise disposal are quitesatisfactory.
However, they admit that even after more than 90% disposal, the stock of Fly Ash still remains and they are making efforts to dispose it by negotiating with the Cement Plants and approaching the Government for permission to fill the Fly Ash in the abandoned Mines. It is submitted that they are hopeful to achieve the target shortly. Let the Company may file the affidavit and the certificate in respect of the structural stability of the Fly Ash Dykes withinone month.
MB Power (Madhya Pradesh) Ltd.: The Company has submitted a presentation in the form of small paper book. However, they have not submitted any Affidavit with regard to the Fly Ash Dykes and also the Certificate of the third party agency who are Technical expert. The officers of the Company pray for one month time to submit the affidavit and the certificate. The representative of the Company states that their disposal of Fly Ash is at present more than 100% and there is very little stock of Fly Ash lying in the Plant. For the further disposal of Fly Ash, they have approached the Southern Coalfields Ltd., Bilaspurto provide abandoned Mines for the purposes of filling of the Fly Ash. He stated that they are continuously approaching the Southern Coalfields Ltd., Bilaspur but they are not giving any reply. A copy of the letter has also been given to the Ministry of Coal, Govt. of India and also to the Madhya Pradesh Pollution Control Board. Sri Hemant Sharma, Director, MPPCL states that he will look into the matter and do the needful The Committee further directs the Southern Coalfields Ltd., Bilaspurto look into the request of the Plant and if it is feasible and there is no impediment, they may allow the filling of their Fly Ash in the abandoned Mines. Let the Company may file the affidavit and the certificate in respect of the structural stability of the Fly Ash Dykes within onemonth. Obra Thermal Power Plant, Obra: The representative of the Plant submitted an affidavit in pursuance of the direction given by the Committee in the earlier meeting. We have perused the affidavit. The manner in which the affidavit has been submitted is not acceptable. It is, in fact, not an affidavit and nothing has been stated properly, supported by any document, as required by the Committee. Let the Company may file a fresh affidavit stating that their Fly Ash Dykes are structurally stable and there is no possibility of any breach, and also annexing the certificate in respect of the structural stability of the Fly Ash Dykes from a third party technical agency. The representative submitted that the Plant is raising the height of the Fly Ash Dykes after taking the advice from the IIT Roorkee. Committee directs that after the completion of the work, they will further get their Dykes inspected by the third party technical agency, namely, NEERI to get the certificate that the Dyke is fully structurally stable and there is no possibility of any breach. He submitted that although, at present, the Fly Ash Dykes is not 42 operational but the Plant has negotiated with the NHAI and also got allotment of abandoned mines from the concerned Authorities. After getting the N.O.C. from the Department, they will fill the Fly Ash in the abandoned mines. In this way, they will be able to dispose off sufficient quantity of the Fly Ash. Let the Company may file a fresh affidavit, supported by documents, stating their Fly Ash Dykes are structurally stable and technically sound and also submit reply of the issues raised in the agenda within one month.
Prayagraj Thermal Power Plant: The representative states that although they have two Fly Ash Dykes but since their disposal of Fly Ash is at present 100%, there is no occasion to store the Fly Ash. The Plant is not facing any problemwith regard to the Fly Ash Dyke. The Plant is, however, not operating in full capacity due to lack of coal in adequate quantity. Since their disposal of Fly Ash is to the nearby Industries, there may not be much problem of storage of fly ash in the Dykes. Jaypee Bina Thermal Power Plant: The representative of the Company filed an affidavit. We have perused the affidavit. Let the Company may file a fresh affidavit within one month enclosing the certificate from the third party technical agency that their Fly Ash Dykes are structurally stable and there is no possibility of any breach. They may also submit the reply to each and every point of the agenda in the saidaffidavit. Jaypee Nigrie Thermal Power Plant: The representative of the Company states that there is 100% disposal of the Fly Ash. There is no stock of Fly ash in the Dykes. Only bottom ash is filled in the Fly Ash Dykes. At present, there may be about 3.9 Lac MT bottom ashin the dykes. He stated that they have sought permission from the concerned Authority to fill up the old lying Ash for filling up in 04 abandoned Stone mines, which are also leased out to them for the quarry of stone. The total capacity of the mines is about 15 lac MT. On the permission being granted, they will be able to consume the entire stock of the bottom fly ash stored in the Fly Ash Dykes. Let the Company may file a fresh affidavit within one month enclosing the certificate from the third party technical agency that their Fly Ash Dykes are structurally stable and there is no possibility of any breach. They may also submit the reply to each and every point of the agenda in the saidaffidavit.
NTPC Meja: The representative of the Plant stated that their Plant has been commissioned in the year 2019. After commissioning of the Plant, the production of the Plant has not been properly carried on initially, for the shortage of the coal and at present due to technical fault. The production may likely to start very soon. Therefore, they are not facing any problem relating to the Fly Ash.
NTPC Dadri: The representative of the Plant states that there is no Fly Ash Dyke in their Plant. In the Plant premises, they have developed a huge Fly Ash Mount wherein they are directly sending dried fly ash from the Plant to the Fly Ash Mount 43 through the pipeline. The permissible height of the Fly Ash Mount is 55 Meters. The Fly Ash Mount is full of trees which works as a binding of fly ash and avoids any damage during the rainy season. The creation of the Fly Ash Mount is a continuous process. There is no effect of Fly Ash effluents and affecting any air pollution and environment. On the contrary, dueto heavy growth of plantation, which is about 2,00,000, over the Fly Ash Mount, the entire area is full of greenery and creates a betterenvironment."
9. In view of above, the Committee observed that the fly ash could be managed by developing a fly ash mount. The Committee has made following recommendations:
(1) All the Thermal Power Plants are directed to get their Fly Ash Dykes inspected by the third party agencies who are Technical expert to certify that their Fly Ash Dykes are technically sound and structurally sustainable and file an affidavit in this regard along with the certificate of the third partyagencies.
(2) All the Thermal Power Plants may makea serious effort for 100% disposal of the currently generated Fly Ash and also for the disposal of the stocked FlyAsh.
(3) All the Thermal Power Plants may approach the District Administration with the request to allot abandoned mines (stone and coal) to them for the permission to fill the Flay Ash.
(4) Generation of Fly ash is a continuous process in all the Thermal Power Plants which is causing pollution of every day - Why the environment compensation on per day basis or month-to-month basis may not be imposed and recoveredforthecontinuouspollutionofairandwater? (5) There are number of Acts relating to air pollution and water pollution. The concerned authorities are directed to initiate the civil and criminal proceedings against these Thermal Power Plants who are causing air pollution and water pollution everyday.
(6) U.P. Pollution Control Board under whose jurisdiction the Rihand Reservoir comes is directed to prepare a D.P.R. for de- silting of Rihand Reservoir for its restoration to its original form.
(7) All the Thermal Power Plants are being cautioned to take the necessary steps, as directed above, failing which they will be subject to the penalty/environmentcompensation."
10. We are of the view that the recommendations on the subject of development of fly ash mounts and filling up of abandoned mines are issues which need to be examined by experts with regard to the safeguards necessary in the process, after studying the impact of environment. It is only after such a study that the development of mounts and filling up of abandoned mines can be undertaken. If there are pre-existing guidelines of MoEF&CC/CPCB on the subject, the same may befollowed.
44
11. As regards desilting of Rihand reservoir, the same needs to be undertaken on scientific basis and cost recovered in the manner apportioned by CPCB. Apart from desilting, structural improvement of the dykes needs to be simultaneously taken up. CPCB may ensure that an action plan is prepared by the power plants whose dykes have breached. The issue of developing fly ash mounts and filling up of abandoned mines may also be got examined by the CPCB from its ExpertCommittee."
46. It was further taken up on 14.07.2020 in O.A No. 164/2018 and the Principal Bench of this Tribunal directed as follows:
"7. Report of the CPCB is on the issue of de-silting and restoration of Rihand Reservoir. It refers to pre-existing guidelines of CPCB on ash disposal in mounds and backfilling of ash in abandoned mines. With regard to the cost apportionment for de- silting/restoration of Rihand Reservoir, The CPCB has concluded asfollows:
"In absence of verified records in these respects, an assessment of contribution of each plant by this approach is difficult. Therefore, the contribution of each power plant might also be revealed by the proposed study to assess sediment volume at various places in thereservoir.
To begin with, the total ash slurry volume generated by each plant on the periphery of Rihand reservoir can be considered as the basis of sharing of the cost of the study to assess sediment volume at various places in the reservoir. For this purpose, the information on annual power generation and coal consumption, average ash content, and annual ash generation as well as annual ash slurry generation based on ash to water ration power plants and collated (Annexure-III). Total ash quantity and ash slurry volume generated over the years by individual thermal power plants located on the periphery of Rihand reservoir on the basis of information collected is presentedbelow:
Thermal Capacity Total ash Total ash Relative Relative Share Share
Power (MW) disposed in slurry share in share in in in
Plant Ash Pond till disposed in total total total total
31.03.2019 Ash Pond till Ash of Ash Ash of Ash
(MMT) 31.03.2019 plants Slurry plants Slurry
(MMT) (multiple of (% of of
of least) plants total) plants
(multiple (% of
of least) total)
Anpara TPS 2630 81.313 569.225 31.7 66.3 22.9% 19.6%
UPRVUNL
Lanco 1200 10.870 46.395 4.2 5.4 3.0% 1.6%
Anpara
Renusagar, 820 2.564 8.584 1 1 0.7% 0.3%
Hindalco
45
Singrauli 2000 89.295 803.654 34.8 93.6 25.1% 27.6%
NTPC
Vindhyachal 4760 104.937 953.855 40.9 111.1 29.6% 32.8%
NTPC
Rihand 3000 66.136 529.008 25.8 61.6 18.6% 18.2%
NTPC
Total / 12610 355.115 2910.801 138.4 339 100% 100%
combined
It is submitted that U.P. Irrigation Department may be directed to coordinate the study to assess sediment volume at various places in the reservoir.
It is further submitted that Anpara TPS and Lanco-Anpara power plants may be directed to stop ash pond overflow discharge into Rihand reservoir."
8. According to the Vidhyachal Super Thermal Power Station, R- 10, the observation of the oversight Committee are completely erroneous and unsubstantiated. Breach was plugged within 30 hours. PFL wall was repaired and it is also incorrect that fly ash transfer to the Reservoir and that the raising of the height was without expert opinion. It is further submitted that compensation of Rs. 10 Crores was not justified. Cash payment of Rs. 1 Crore has been made towards interim compensation. With regard to developing fly ash mound, it is stated that it isnot necessary. Comments of the UPVUN are that necessary action has been taken which may be verified. There is zero discharge from the ash dyke. Reference has also been made to the inspection report by the joint Committee of the CPCB and the State PCB recommending asfollows:
"Recommendations
1.M/s NTPC Shaktinagar to repair the AWRS desloged pipeline within 07 days & to stop discharge of decant water of S1 & S2 dyke immediately by pumping in M/s NTPC Vindhnagar AWRS 03 systemimmediately.
2. M/s NTPC Vidhnagar shall collect back the spread over ash from 53 Ha area with minimal fugitive emission & dispose it in operating dyke. Unit shall submit the time bound action plan in thisregard.
3. M/s NTPC Vindnagar to stop the probable mixing of slurry in Rihand reservoir & Surya drain near decanting pond with no furtherdelay.
4. M/s NTPC Vindhnagar may be asked to deposit 01 Croreto CPCB or MPPCB towards an interim environmentalcompensation w.r.tAryavart Foundation v. M/s Vapi Green Enviro Ltd &Ors. Hon'ble NGT O.A 95/2018 order dated 11.1.2019"
9. We have duly considered the stand of the NTPC- Vidhyachal Super Thermal Power Station as well as the UPUVN. Mere self- serving denial in the face of report based on site visit by a Committee appointed by this Court headed by a former judge of the High Court has no legs to stand. Responsible organisations should 46 refrain from adopting such attitude. We uphold the report of the OC. We also note that the Tribunal has been considering the issue of compliance of Notification dated31.12.2018 issued by the MoEF&CC requiring 100% utilization of fly ash vide order dated 12.02.2020 in Original Application No.117/2014, ShantanuSharma v. Union of India &Ors. In the said order, following directions were issued:-
"32. Thus, our directions are as follows:-
a. The TPPs may take prompt steps for scientific disposal of fly ash in accordance with the statutory notification issued by the MoEF&CC under the provisions of EP Act requiring 100% utilization and disposal of flyash.
b. For the non-compliant TPPs, environmental compensation needs to be determined w.e.f. the cut-off date of 31.12.2017 as stipulated in the Notification dated27.01.2016.
c. CPCB may accordingly compute and levy Environmental Compensation in accordance with the formula referred to above w.r.t. individual TPPs in accordance with law and submit compliance report to this Tribunal before the nextdate.
d. CPCB Guidelines of May 2019 for Utilization/Disposal of Fly ash for Reclamation of Low Lying Areas and in Stowing/Back filling of Abandoned Mines/Quarries may becomplied.
e. Task Force of Ministry of Power and Ministry of Coal may recommend list of abandoned mines/quarries for mine back filling purposes to the CPCB. CPCB may notify the same accordingly for use by the TPPs as per applicable guidelines and permission from StatePCBs/PCCs.
f. A Committee comprising of CPCB and IIT Roorkee may assess the environmental damage with regard to the breach sites at Vidhyanchal TPP an Essar TPP in Singrauli area and submit its recommendation within three months. CPCB shall be at liberty to engage any other technical expert for thispurpose.
g. The Committee comprising of Collector, CPCB and Member Secretary of MP State Pollution Control Board may assess the damage with regard to the breach sites at Vidhyanchal TPP and Essar TPP in Singrauli area to the crop and agricultural productivity and ensure effective restoration/remediation of affective sites within threemonths.
h. CPCB may ensure implementation of action plans approved by it in accordance with timeline as provided in thestatute.
i. A joint Committee comprising of MoEF&CC, CPCB, IIT Roorkee 47 and any other member considered necessary may submit quarterly progress report on recommendations of Expert Committee of NitiAayogfor enhanced utilization of fly ash in various sectors: mines, roads, cement, industries and bricks etc., along with its implementationstatus.
j. The present order is subject to proceedings pending before the Hon'ble Supreme Court and where stay is operative, this order will not operate till stay continues and thereafter abide by orders of Hon'ble SupremeCourt.
Copy of this order may be conveyed to MoEF&CC, Ministry of Power, Ministry of Coal, CPCB, IIT Roorkee and MP State Pollution Control Board. CPCB may put the order on its website and communicate the same to all concerned TPPs."
10. In view of the above, we direct:
i. Fly ash disposal may be undertaken as per the directions in the order of this Tribunal dated 12.02.2020 referred to above.
ii. Fly ash disposal in mounds and backfilling of ash in abandoned mines may be undertaken as per the CPCB guidelines If necessary, Indian Bureau of Mines, Dhanbad may also be consulted so that latest technology is utilized and all necessary safeguards areadopted.
iii. Report of the CPCB regarding Cost apportionment for de- silting/restoration of Rihand Reservoir is accepted and further steps, including further study be undertaken as recommended by the CPCB. The U.P Irrigation Department may coordinate such study.
iv.Anpara TPS and Lanco-Anpara power plants may stop ash pond overflow discharge into Rihand Reservoir to the extent the work remainsunexecuted.
v.The NTPC, Vidhyachal may deposit amount of Rs. 10 Crores as recommended by the Oversight Committee with the State PCB towards interim compensation, deducting the mount already deposited. The plant may also develop RCC wall around the plant in the matterrecommended.
vi.The liability for environmental compensation in respect of UPVUN, Anpara and NTPC Vidhyachal may be assessed by joint Committee of CPCB and the State PCB within two months. The nodal agency will be the State PCB for coordination andcompliance.
vii.The transportation measures may be adopted asper suggestions of the Committee and directions of the Hon'ble SupremeCourt."48
47. Accordingly, with regard to the fly ash and disposal and compensatory regime, the direction issued by Principal Bench of this Tribunal in O.A. No. 164/2018 or any other direction shall govern the issue.
48. So far as the compensation is concerned, it is proved by the report of the Collector that there was damage of crops and applicants are entitled for the damage as claimed. The applicants are also entitled to the interest and the cost of litigation. Since the environmental compensation has not been calculated by the State Pollution Control Board, thus, we leave it to Central Pollution Control Board and Madhya Pradesh Pollution Control Board to calculate according to the calculation method and proceed to realize the amount according to the rules/directions and guidelines. Accordingly we direct as follows:
i. The application for compensation to the tune of Rs.
46,84,576 (Forty Six Lakhs Eighty Four Thousand and Five Hundred Seventy Six) is allowed and the applicants are entitled for payment of the compensation for loss of their crops from the Respondent no. 5. (subject to adjustment of payment, if any, made prior to this to the applicants by the respondent no.5).
ii. The respondent no. 5 is directed to pay the amount of compensation with interest at the rate of 6 % per annum, within two months from the date of application, failing which the applicant will be entitled to realize the amount according to law.
The amount accrued upto the year 2016 shall be calculated at the rate as mentioned above from the date of application and the amount accrued after that will be calculated from the date of 49 accrual of the claim and be deposited to the office of Collector by draft or cheque within two months from the date of order. The Collector shall personally after hearing the parties decide the amount to be distributed to the applicants in a ratio of their land and amounts so calculated be informed to the respondent no.5 so that he may issue the cheque to the tune of that amount in the name of the applicant who are entitled for payment accordingly to the ratio of their land.
iii. An amount of Rs. 1,00,000/-(One Lakh) is also awarded as a cost of litigation to be paid to the applicant by respondneet no.5.
If amount is not paid by the respondent within the time as prescribed, the State/Collector must ensure that it is paid from the State exechequer and be recovered from the polluter, respondent no.5.
iv. The Central Pollution Control Board and the State Pollution Control Board is directed to calculate and proceed with to recover the environmental compensation in accordance with law and to be deposited to the account of Central Pollution Control Board.
v. The respondent is also directed to restore the property and agricultural land damaged due to seepage of waste water and from the ice-dyke.
vi. The orders and directions passed by the Principal Bench of this Tribunal in O.A No. 164 of 2018 will regulate the fly ash managment.
vii. Water quality of the area of the well be checked and 50 immediate remedial measure be taken by the Collector and Local Administration and if it is found that the water is not of the quality then the Collector at the cost of the industry shall immediately make arrangement for availability of drinking water.
49. The original application and the interloctuary application are disposed of accordingly.
50. The Order is signed/pronounced and uploaded today.
Justice Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM JG Original Application No.119/2016(CZ) 51 52