National Green Tribunal
Kushabapu Rangnath Pawar vs Padmashree Dr. Viththalarao Vikhe on 4 March, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
**********
Original Application No.143/2017(WZ)
IN THE MATTER OF:
1. Shri Kushabapu Rangnath Pawar
At & Post - Tambhere,
Taluka- Rahuri, District- Ahmadnagar
2. Shri. Dadasaheb Kushabapu Pawar
At & Post -- Tambhere,
Taluka- Rahuri, District- Ahmadnagar
.....Applicant(s)
Versus
1. Padmashree Dr. Viththalarao Vikhe
Patil Sahakari Sakhar Karkhana,
Pravaranagar, Tal. Rahata,
Dist. Ahmednagar, 413712
2. Maharashtra Pollution Control Board
Kalpataru Point, 3rd and 4th floor,
Opp. Cine Planet, Sion Circle, Mumbai,
Maharashtra- 400 022.
.....Respondent(s)
Counsel for Applicant(s):
Mr. Kaushik Kulkarni, Advocate along-with
Ms. Shreya N. Deshpande, Advocate
Counsel for Respondent(s):
Mr. R.B. Mahabal, Advocate for R-1/PP
Mr. Vilas Jadhav, Advocate for R-2/MPCB
Mr. Aniruddha S. Kulkarni, Advocate for CPCB
PRESENT:
Hon'ble Mr. Justice Dinesh Kumar Singh (Judicial Member)
Hon'ble Dr. Vijay Kulkarni (Expert Member)
Reserved on : 30.01.2024
Pronounced on : 04.03.2024
Original Application No.143/2017(WZ) Page 1 of 45
JUDGMENT
1. This Original Application has been filed with the prayers that direction be issued to the respondent No.2- MPCB to submit a report on the polluting activities of respondent No.1-Padmashree Dr. Viththalarao Vikhe Patil Sahakari Sakhar Karkhana and take necessary action including issuing directions to close down the Sugar Factory; and respondent No.1 be directed to restore the land to its original condition.
2. In brief, the facts of this case are that the Applicant No.1-Shri Kushabapu Rangnath Pawar is a farmer and Applicant No.2-Shri Dadasaheb Kushabapu Pawar is son of Applicant No.1, who is involved in farming occupation with his father in their own land bearing Gut No.511, Village: Tambhere, Taluka: Rahuri, District: Ahmednagar. They had planted pomegranates in the year 2009-2010, which is not a six-monthly or yearly crop. Once planted, the farm yields pomegranates for a continuous period of 18 years. In the year 2009-2010, the area under cultivation was 40 Gunthas, which was later on gradually increased to 50 Gunthas till the year 2013-2014. From this crop, the Applicants used to earn an income of approximately Rs. 1,70,958/- in one season, i.e. in the year 2013.
3. It is further mentioned in this application that in the year 2013 only, the Applicants had earned an income of Rs.2,00,000/- from their farm. The applicants' farm had 400 pomegranate trees. One tree on an average yielded 45 kilograms of fruit, wherein if one kilo is supposed to be sold at a minimum Rs.60/- for a minimum yielding period of 15 years' period till 2027-2028, that would be approximately an income of Rs.1,62,00,000/-. Sometime in and around April 2014, the respondent No.1- Padmashree Dr. Viththalarao Vikhe Patil Sahakari Sakhar Karkhana discharged around 50 to 60 tankers of spent-wash on agricultural land bearing Gut No.512, Original Application No.143/2017(WZ) Page 2 of 45 which is adjacent to the pomegranate farm of the applicants (it appears that the applicants want to communicate that Gut No.512, which is adjacent to the farm of applicants, belongs to some other persons on which spent-wash was being discharged and not on the land belonging to them).
4. It is further mentioned in this application that within the days of the discharge of spent-wash, the pomegranate trees in the farm of applicants started drying up seriously because of which, it was realized that it had happened due to an impact of discharge of spent-wash. The entire pomegranate farm gradually got disturbed and tree after tree dried up, causing serious damage to the applicants' farm. They had no other remedy but to remove the trees and treat the land to make it cultivable again. Hence, they filed complaints before the Regional Office of Maharashtra Pollution Control Board- respondent No.2 and also to the Sugar Commissioner, Pune (not party) and others.
5. It is further mentioned in this application that when the spent wash was being discharged, the applicant no.2 had videographed one such tanker discharging the spent-wash and they also inquired with the driver of the said tanker, as to from where he had brought the spent-wash, who had given a copy of the transport slip issued by the respondent No.1 bearing no.6700 dated 29.03.2014, which would clearly show that the said slip was for a tanker bearing no.4213 for discharge of spent-wash. Had it been a carriage of press mud, a tanker would not have been required, as the same could have been carried in a simple regular truck and not in the tanker truck.
6. It is further mentioned in this application that on the complaint made by the applicants, the Field Officer from the Sub-Regional Office of Original Application No.143/2017(WZ) Page 3 of 45 respondent No.2- MPCB visited the applicants' farm on 31.05.2014 and prepared visit report, a copy of the same is annexed as Annexure- F, wherein it was mentioned that there was a pomegranate farm in Gut No.511 and upon inspection, traces of discharge of spent-wash were found in Gut No.512 at some places. Pursuant to it, the respondent No.2 issued a notice dated 17.06.2014 to the respondent No.1 seeking reply in the matter of discharge of spent-wash at Gut No.512 and also details of treatment and disposal of spent-wash generated in the season i.e. 2013-14 with total generation of spent wash, its use for composting and sale of the compost etc.
7. It is further mentioned in this application that in pursuance to the said notice, the respondent No.1 replied to the respondent No.2 vide its letter dated 25.06.2014 stating therein that its technical representatives had visited Tambhere place of Gat No.512 and observed that there was compost leachet/traces. This happened at the time of spraying spent-wash on press mud. The quantity of spent-wash was more on press-mud during preparation of compost. Hence, respondent No.1 immediately stopped the supply of compost to farmers. After meeting the problem for compost, it sorted out the same and assured the respondent No.2 that it would take precaution that such kind of problem will not recur in future.
8. It is further mentioned in this application that with respect to other queries made by the respondent No.2- MPCB, reply is vague. It is pointed out in its reply by the respondent No.1 that the primarily treated spent- wash will be stored and whatever would be left after its treatment, the same would be stored in impervious Lagoons and this was being done by it from the last 30 years with storage capacity of 30 days. Original Application No.143/2017(WZ) Page 4 of 45
9. It is further mentioned in this application that the Government of Maharashtra had constituted a Public Account Committee in pursuance to the observation of the Comptroller and Auditor General in its report of Cooperative Sugar Factories in the year 2006-07 and its report would clearly show that the respondent No.1 was discharging its spent-wash on the land and that the respondent No.1 had built impervious lagoons only in the year 2007. In view of above, it is clear that the respondent No.1 had made intentionally wrong statement, which was accepted by the Officers of respondent No.2- MPCB for the reasons best known to them.
10. It is further mentioned in this application that this was not a single and isolated incidence in the recent past, similar incidences of pollution were caused due to improper discharge of spent-wash in Village- Tambhere. Therefore, a resolution was passed restricting discharge of spent-wash in the Village Tambhere. The said resolution stated that some farmers allowed discharge of spent-wash in their farms, hence the Sugar Factories discharged the same in the roadside gutters. The spent-wash contaminated the ground waters as also the roadside trees, as a result of which roadside trees dried due to its impact.
11. It is further mentioned in this application that applicant no.2-Shri Dadasaheb Kushabapu Pawar had made a complaint to the Mahatma Phule Krushi Vidyapeeth, Rahuri also. Upon receipt of the complaint, a District Level Committee visited the said farm on 01.08.2014, i.e. long after the spent-wash was discharged and gave a 'startling report'. A letter from the District Superintending Agriculture Officer, Ahmednagar District was also received by the applicant No.2 along-with the report of the said Committee. Then, the applicants were shocked and surprised that the said Committee gave a negative report saying that no residue spent-wash was found on Gut Nos.511 and 512 and that the damage to the farm was Original Application No.143/2017(WZ) Page 5 of 45 found due to stoppage of water supply. It is also reported therein that the soil testing did not show any spent wash discharge. Although, it is also mentioned in it that the report prohibits to be used in any judicial proceedings. The said report is nothing else but an attempt to cover up the matter. Respondent No.1 is controlled by famous, influential political leaders. The MPCB, relying on the above-mentioned soil report and committee report, took no further action against the respondent No.1. Further, the said report clearly states that as on April 2014, the spent- wash project of respondent No.1 had no valid permission from the respondent No.2- MPCB, but no action was taken against it. As per the Corporate Responsibility for Environmental Protection laid down by Central Pollution Control Board, the sugar factories were given the timeline till December 2005 for ZLD to be achieved. However, the respondent No.1 did not achieve the same even in the year 2014. The said fact was accepted by MPCB without any further direction to the respondent No.1.
12. It is further mentioned in this application that the applicants were waiting for a positive response from the Sugar Commissioner to take some action in the matter. But even the said authority referred the matter back to the MPCB. Hence, the applicants were left with no option but to approach this Tribunal for the relief, because of substantial loss caused to the applicants due to discharge of spent-wash by the sugar factory of respondent No.1, which is running the factory without any valid permission. Hence, the above prayers have been made.
13. This matter was first considered by the Tribunal on 18.08.2017 when it was admitted and direction was issued to send notices to the respondents.
Original Application No.143/2017(WZ) Page 6 of 45
14. The Tribunal vide Order dated 08.11.2017 found it necessary to assess the damage caused to the lands belonging to the applicants and find out the means to restore the same. A direction was issued to the Central Pollution Control Board (CPCB) and the Maharashtra Pollution Control Board (MPCB) to jointly visit the site in question, collect soil & groundwater samples and assess the damage caused there, on account of release of spent wash and further recommend methodology for restoration of lands and quality of groundwater.
15. In compliance with the above order, the respondent No.2- MPCB has submitted its affidavit dated 16.02.2018 annexing therewith a copy of visit report. In this affidavit, which is based on the visit report, it is mentioned that the groundwater samples collected from the industry premises did not show any contamination. The industry was required to take appropriate measures for the treatment, storage and disposal of distillery effluent (spent wash), such as construction of pucca lagoons in place of earthen lagoons to avoid any possibility of contamination of groundwater in lagoons. It was also recommended that the industry shall control the leakages, spillages and accumulation of effluent within the premises on top priority.
16. In the concluding part of above-mentioned affidavit of respondent No.2, it is recorded that though no contamination was observed in and around the Gut Nos.511 & 512, the results of soil samples were awaited, which were to be submitted later on.
17. There is another affidavit found on record from the side of respondent No.2- MPCB dated 07.07.2018, which is filed in compliance with the earlier order of the Tribunal dated 08.11.2017, wherein it is submitted that, as stated in the affidavit dated 16/02/2018 in paragraph Original Application No.143/2017(WZ) Page 7 of 45 No.3, the soil sample analysis reports were received. A statement of analysis results of 9 soil samples are annexed as Annexure-I. Further, it is mentioned that expert opinion regarding effect of the parameters analyzed like pH, Conductivity, Iron, Copper, Sodium, %Nitrogen, Phosphate, Potassium, Zinc, C/N Ratio and its effect on agricultural productivity was called for from the Competent Authorities i.e. (a) District Superintending Agricultural Officer, Ahmednagar; (b) Mahatma Phule Agricultural University, Rahuri Dist. Ahmednagar; and (c) Central Pollution Control Board, Western Zone Office, Vadodara. In this regard, the Central Pollution Control Board had informed vide e-mail dated 06/07/2018 that the matter had been referred to the CPCB HO PCI-III. It is further mentioned that the expert opinion regarding effect on agricultural productivity was called for from the above-mentioned Competent Authorities. After receipt of the same, furthers steps regarding methodology for restoration of the land and the damage caused in terms of money required for restoration would be worked out.
18. There is another affidavit found on record from the side of respondent No.2- MPCB dated 28.11.2018, which is filed in compliance with the earlier order of the Tribunal dated 08.11.2017, wherein it is submitted that the District Superintending Agricultural Officer, Ahmednagar vide letter dated 12/07/2018 informed that it was not possible for them to give any conclusion about the aforesaid samples and hence, expressed inability to assess the damage caused to the aforesaid lands. Therefore, the Officer of the Board at Ahmednagar, in presence of the applicants and Officials of the Agriculture Department, Government of Maharashtra, had again collected 10 soil samples from the field of Applicants and other nearby fields bearing Gat No.510, 511, 512 and 513, Village : Tambhere. Taluka: Rahuri, District: Ahmednagar and separated Original Application No.143/2017(WZ) Page 8 of 45 the same in two sets and were sealed on 13/07/2018. A copy of the Visit Report is also annexed as Annexure-III. These 10 soil samples were sent for analysis to District Soil Survey and Soil Testing Laboratory, Ahmednagar and Mahatma Phule Krishi Vidyapith, Rahuri, District- Ahmednagar. The Analysis results were received from Mahatma Phule Krishi Vidyapith, Rahuri, District- Ahmednagar on 06/08/2018 and from the District Soil Survey and Soil Testing Laboratory on 28/08/2018 respectively, which were sent to the Central Pollution Control Board for necessary opinion.
19. It is further mentioned in this affidavit by the respondent No.2- MPCB that the Department of Soil Science and Agriculture Chemistry of Mahatma Phule Krishi Vidyapith, Rahuri, District: Ahmednagar vide letter dated 06/08/2018 informed that the soils were low in nutrients with soluble salts contents being within the permissible limit. The soils were slightly alkaline in reaction with optimum content of organic carbon and carbon: nitrogen ratio. The soil quality was suitable for production of agriculture crops in anticipation with correction of micronutrients deficiencies.
20. It is further mentioned in this affidavit by the respondent No.2- MPCB that the Central Pollution Control Board vide e-mail dated 16/11/2018 reported that spent wash from distillery had very high levels of inorganic and organic salts and soil samples contaminated with spent wash discharge tend to have high values of TDS and EC, however, the results did not depict such condition at any locations. The spent wash contaminating soil matrix normally shows higher values of nutrients (NPK) and salts (Na, Ca, Mg, Cl, and SO4) and ESP (Exchangeable Sodium Percentile) and Organic Carbon parameters. However, these parameters indicated such as Na, K, N and C/N ratio only and did not indicate such Original Application No.143/2017(WZ) Page 9 of 45 contamination of soil quality, which would result from the discharge of spent wash.
21. It is further mentioned in this affidavit by the respondent No.2- MPCB that during the second round of soil sampling, which had been carried out by the MPCB on 13.07.2018, there was no significant variation found in soil characteristics with respect to the measured parameters in the reference sample (land of Mr. Ramdas Shankar Musmade, located 100 mtrs. away from complainant land) and the samples collected from complainants land. Presuming that the adjacent plots (Gut No.510 & 513) and the reference sample at 100m distance from the complainant's plots were not impacted by the distillery effluent and could be considered to be background samples, it had to be inferred that there was no impact of alleged uncontrolled spent wash discharge in Gut Nos.511 and 512. It is also recorded that there was no decipherable adverse change observed in the quality of soil in the aforesaid land on account of release of spent wash. Therefore, quantum of environmental damage, if any, in this case is insignificant for assessment.
22. The applicants have filed rejoinder affidavit dated 30.01.2019, wherein it is submitted that the incidence of unauthorized discharge of spent-wash in the farm of the applicants, as stated in the original application is not disputed by the respondent No.1 in its letter dated 25.06.2014, which is annexed to the application as Annexure-H at page no.39 of the paper book. The agricultural land of the applicants was indeed filled with spent-wash and had become unfit for agricultural purposes. Therefore, they had moved the present application in July/August 2017. By sheer efflux of time, the results might have come normal but the fact remains that the applicants has suffered huge loss and mental agony because of the negligent and careless act on the part of Original Application No.143/2017(WZ) Page 10 of 45 the respondent No.1. Therefore, the applicants have filed the present application.
23. It is further mentioned in this rejoinder affidavit by the applicants that on the date of the said discharge, the distillery unit was operating without consent and also several violations have been alleged to have been caused by the respondent No.1. But a new thing, which has been mentioned by the applicants in this affidavit, apart from reiteration of the earlier version of the complaint, is that on 06.04.2016, an accident happened in the premises of respondent No.1, wherein 3 workers died and 12 workers got injured. This occurrence was investigated by the Assistant Director, Department of Industrial Safety and Health, Ahmednagar and observations were made in its report that the capacity of the molasses pump was 60 MT/hr. It is also mentioned in this affidavit by the applicants that the Assistant Director, Department of Industrial Safety and Health, Ahmednagar had given reason as to why the accidence took place. After giving the details thereof, the applicants again reiterated that the respondent No.1 had indeed discharged spent wash in the land of the applicants, which led to the contamination of their land, though by sheer passage of time, the results found by the MPCB might have been different.
24. We find that all these pleadings were considered by the Principal Bench of this Tribunal in its order 06.04.2022, in which in para no.3 of this order, it is recorded therein that "vide order dated 08.11.2017, the Tribunal directed a joint Committee of the CPCB and State PCB to make assessment of the damage. The Committee, however, did not find any damage. In its additional affidavit filed on 28.07.2021, the State PCB mentioned that discharge of coloured effluent from the unit was seen at the time of visit by the official of the State PCB on 06.02.2020 and on that Original Application No.143/2017(WZ) Page 11 of 45 basis, compensation of Rs.1.5 lakh was assessed vide order dated 20.02.2020 which was duly paid by the PP".
25. It appears that the present Original Application along-with prayers cited above were considered by the Principal Bench of this Tribunal and it was found that since the Joint Committee did not find any damage due to the discharge of coloured effluent, having been found to have been discharged from the unit of the respondent No.1, the State PCB had imposed compensation of Rs.1.5 lakh, which was duly paid by the PP. The matter should have been ended there only.
26. By that time, the Tribunal came across the fact of an accident having happened in the premises of respondent No.1, which the learned counsel for applicants drew attention of the Tribunal to the report dated 01.06.2016 of the Director of Industrial Safety, which was considered by the Tribunal at length and thereafter, it was noted therein that it was not clear whether the heirs of the deceased and the injured had been given any compensation, which had to be paid on the principle of absolute liability laid down in MC Mehta's case [(1987) 1 SCC 395] and that the unit of respondent No.1 shall also to ensure that such failures do not recur and safety measures are duly adopted. Thereafter, the Tribunal constituted a Joint Committee comprising CPCB, State PCB and the District Magistrate, Ahmednagar to undertake visit to the site, interact with the stakeholders including the PP to ascertain the status of compliance of environmental and safety norms and also status of payment of compensation to the heirs of the deceased and to the injured persons and to furnish a report before the Tribunal. It was also directed that it may be ascertained as to whether the unit was required to follow Zero Liquid Discharge (ZLD) norms for the spent wash.
Original Application No.143/2017(WZ) Page 12 of 45
27. From this date onwards in respect of the present application, fresh matter appears to have arisen before us, which would be taken to have been brought to our notice by the applicants and on which we have taken cognizance also. Therefore, we have to pursue the same to its logical end.
28. In compliance to the above-mentioned order, the Joint Committee has submitted its report, which is annexed at page nos.193 to 319 of the paper book, which was considered by us vide order dated 23.02.2023. For the sake of convenience, relevant portion of the Joint Committee Report is being reproduced herein below:-
Original Application No.143/2017(WZ) Page 13 of 45 Original Application No.143/2017(WZ) Page 14 of 45 Original Application No.143/2017(WZ) Page 15 of 45 Original Application No.143/2017(WZ) Page 16 of 45 Original Application No.143/2017(WZ) Page 17 of 45 Original Application No.143/2017(WZ) Page 18 of 45 Original Application No.143/2017(WZ) Page 19 of 45 Original Application No.143/2017(WZ) Page 20 of 45
7.0 Conclusions:-
7.1 The Distillery is required to follow Zero Liquid Discharge (ZLD) condition and no waste/treated water should be discharged outside the premises as per Terms & Conditions for compliance of Water Pollution Control, 1 (B) Conditions for trade effluent of CTO dated 30.01.2020 issued by MPCB, for distillery (92 KLPD). The CTO is valid up to 31.08.2022. Original Application No.143/2017(WZ) Page 21 of 45 7.2 The industry has provided Bio-digesters, Reverse Osmosis (RO) Plant/System, Multiple Effect Evaporator (MEE) (5 stage), Bio-Composting (11 Acres of Land) for the treatment of effluent i.e. Spent Wash to achieve ZLD condition. Permeate from RO System and Condensate from MEE is used for cooling tower, distillery fermenter dilution purpose and gardening, as informed. However, the treated effluent/spent wash needs to be used in the process as per condition in CTO. Reject of RO is fed to MEE and concentrate of spent wash from MEE is used for Bio-composting.
7.3 Industry made online application by the industry for the project of distillery expansion from 60 KLPD to 240 KLPD. The proposal examined by the MOEF &CC and it was found that the industry has established distillery in the year 1975 for manufacturing 30 KLPD Alcohol, again expansion was done from 30 KLPD to 60 KLPD. Further, expansion was carried out from 60 KLPD to 92 KLPD in the year 2008 after EIA Notification was published in 2006. Subsequently, CTO has been granted for 92 KLPD distillery and renewal has been granted vide letter no. CONSENT-0000076545/CR-
2001002024 dated 30th January, 2020 and validity is granted up to 31.08.2022. Further, MoEF &CC requested MPCB vide letter dated 17.06.2021 (Annexure-VI) to provide clarity on issuance of Consent to Operate when the PP was carrying expansion from 60 KLPD to 92 KLPD in 2008 after publishing of EIA Notification, 2006 according to which the project falls under preview of EC. As per EIA Notification, 2006 EC has to be obtained from MoEF & CC before commencing operations and issuance of CTO.
In reply to aforesaid letter from MoEF & CC, MPCB made communication dated 21.06.2021 (Annexure-VII) informed that, the Proponent has set up unit of 15 KLPD in 1970 which were expanded to 32 KLPD in 1975 prior to EIA Notification 2006. Again, PP had set up 60 KLPD unit and for Board had issued consent on 15.05.2002. In 2008, Board had issued a combined/amalgamated consent for above said two units (32 KLPD+60 KLPD) quantifying to 92 KLPD.
7.4 MoEF&CC issued Terms of Reference (ToR) vide letter dated 08.12.2021 (Annexure-VIII) in response to on line proposal dated 30.07.2021 for Terms of Reference (ToR) to MoEF &CC for proposed expansion of distillery from 60 KLPD to 240 KLPD, including additional conditions that PP should obtain separate CTO for both existing units (60 KLPD and 32 KLPD) in order to remove any ambiguity on later date in case EC is decided to be granted for the proposed expansion from 6O KLPD- 240 KLPD.
7.5 Recently, obtained Consent to Establish (CTE) dated 24/03/2022 for the expansion 148 KLPD. Public hearing for the expansion of distillery (from 60 KLPD to 24O KLPD) has been convened on 17.02.2022 by Public Hearing Panel (Environment Public Hearing Committee) constituted by Member Secretary, MPCB. The panel consist of Chairman -- Original Application No.143/2017(WZ) Page 22 of 45 Additional District Magistrate, Member-RO, MPCB, Nashik and Member Convener- SRO, MPCB, Ahmednagar. Minutes of meeting sent to MoEF &CC on 10.03.2022. EC is yet to be received by the Distillery.
7.6 Industry has applied for EC for the expansion from 60 KLPD to 240 KLPD and MoEF &CC has issued ToR with additional condition that PP should obtain separate CTO for both existing units (60 KLPD and 32 KLPD) and accordingly, the industry has applied for CTO to MPCB for 60 KLPD distillery and inform that they would dismantle 32 KLPD distillery, as per resolution passed by the industry. MPCB has recently issued the CTO for distillery i.e. 60 KLPD along with other products.
7.7 Industry has taken measures towards safety for molasses tanks and submitted Safety Audit Report to DISH such as a) 80% molasses store in tank and 20% empty space to control of foam and overflow b) zigzag water-cooling system c) recording of temperature. The above safety measures including other provisions under Factory Act, 1948 /Maharashtra factory Act, 1963 and MSIHC Rules 1989 needs to be verified by DISH.
7.8 The distillery unit was not in operation as molasses generating sugar industry was not in operation due to non- crushing season. As per CTO condition (under Terms & Conditions for compliance of Water Pollution Control, 3 (11), the operation of distillery is restricted to 270 days in year that it would not operate during rainy season. Press mud used for Bio-composting was stored in composting yard and, also stored on open land in the premises nearby the canal. The compost material was lying in compost yard which was not found fully covered during the rainy season. The bagging of compost was found in operation. There was no traces of discharge of spent wash into nearby canal near lagoons and also into natural drain passing nearby the industry and traversing towards River Pravara, as observed during the visit.
7.9 The Applicant showed the committee members, spent wash discharged on land near Sayali Motel, Khadakmal, Tambhere on Kolhar- Tambhere road. It is informed by the worker and Owner of Sayali Motel on mobile that unknown tanker has discharged spent wash might be on 04.07.2022. The Applicant alleged that aforesaid industry has discharged spent wash though tankers and provided photos/videos of tankers involved in such illegal activities, but not during the discharge. A complaint has been filed by SRO, MPCB, Ahmednagar in Rahuri Police Station, Taluka Rahuri District Ahmednagar and Dy RTO Shrirampur, Taluka Shrirampur District Ahmednagar mentioning registration number of Tanker (based on the video provided by the Applicant) requesting to take appropriate action and provide the report to SRO, MPCB, Ahmednagar. After identifying the culprit industry, MPCB needs to take appropriate action against the Original Application No.143/2017(WZ) Page 23 of 45 culprit industry. Till the time, MPCB needs to arrange for the lifting of spent wash and remediation of site.
7.10 The committee members interacted with stakeholders- industry representatives, injured persons due to accident (on 06.04.2016) of molasses tank, at the industry. Industry provided medical expenses along with a compensation of Rs. 25000 to the each injured person. The eight injured person are presently working in the factory as employees and mentioned their satisfaction towards medical treatment and paid compensation. One injured person died due to natural death (heart attack) latter, and his son is now working in the industry.
7.11 Regarding compensation to deceased persons, the compensation as per Employee's Compensation Act 1923 & amendment thereof, was deposited by the industry to the office of Labour Commissioner, Ahmednagar as per order of Hon'ble Labour Court Ahmednagar, which was further given to the kin of the deceased person (as shown in para 6.2.1 Table-06, also Annexure-XIV).
7.12 Further, it is informed by the industry vide letter dated 30.08.2022 that son (Shri Yogesh Shashikant Pagare) of Late Shri. Shashikant Bhikaji Pagare, is given permanent employment in the Industry. Two sons of late Shri. Balu Sampat Deore were offered job in the Industry. However, they declined the offer and now have settled abroad. Late Shri Vinod Dada Jondhale did not have any children.
However, his wife died after receiving the compensation from the Industry.
As directed by Hon'ble NGT in para 10 of the order dated 06.04.2022 in this matter that........ "...............The joint Committee may consider reports in respect of similar incidents and orders of this Tribunal while giving its report." the committee assessed compensation based on various orders/judgment of Hon'ble Supreme Court Cases as per various Hon'ble NGT orders and Committee reports on accident matters. It is observed that assessed compensation is more than the compensation paid by the Industry through Labour Commissioner which was calculated based on Worksman Compensation Act 1923 and amendment thereof. Therefore, the committee recommended for the additional compensation to be paid to the kin of deceased person which is mentioned in the para 6.2.2, Table-07 through District administration. Also, the injured (grievous and minor) needs to get Rs. 5,00,000/- and Rs. 2,50,000/- as interim compensations respectively, and based on the nature of injury/disability certificate, further compensation to be provided to them.
8.0 Recommendations -
Based on the above, following recommendations are made- 8.1 Industry has applied for EC for the expansion from 60 KLPD to 240 KLPD and MoEF &CC has issued ToR with additional Original Application No.143/2017(WZ) Page 24 of 45 condition that PP should obtain separate CTO for both existing units (60 KLPD and 32 KLPD) and accordingly, the industry has applied for CTO to MPCB for 60 KLPD distillery and inform that they would dismantle 32 KLPD distillery, as per resolution passed by the industry. MPCB has recently issued the CTO for distillery i.e. 60 KLPD along with other products. The industry shall inform the progress report for dismantling of 32 KLPD distillery to MPCB and concerned authorities. The industry shall not make production more than 60 KLPD before obtaining EC as per proposed expansion i.e. 60 KLPD to 240 KLPD which is under process at MoEF&CC.
8.1 MPCB make take appropriate action for the storage of spent wash/bio-digested spent wash in unlined lagoon.
8.2. Industry should dismantled unlined lagoons at the earliest and groundwater monitoring around the unlined lagoons may be carry out to check contamination, if any. Proper storage arrangement area for yeast sludge, press mud shall be provided.
8.3 Police and RTO Department shall identify the culprit tanker/industry who has illegally discharged spent wash on land near Kolhar- Tambhere road. MPCB shall further take necessary action against the culprit industry. Till the time, MPCB may arrange for the lifting of spent wash and remediation of site.
8.4 Safety measures including other provisions under Factory Act, 1948 /Maharashtra factory Act, 1963 and MSIHC Rules 1989 may be verified by DISH.
8.5 The additional compensation amount to be paid has been assessed by the committee and given in para 6.2.2, Table-07 above which may be paid to the kin of deceased persons by the industry through District Administration. Compensation to the injured persons may also be given as per orders of Hon'ble NGT in different industrial accident cases i.e. grievous injury Rs. 5,00,000/- and minor injury Rs. 2,50,000/- as only Rs. 25000/- given to the each injured persons with medical expenses."
29. The opportunity of filing objections against the above-mentioned Joint Committee Report was given to the parties. In response to which, particularly, from the side of respondent No.1-PP, objection dated 28.10.2023 against the said report has been filed, where-in it is mentioned that the Hon'ble High Court of Bombay, Bench at Goa, by final Judgment and detailed order dated 21.09.2022 in PIL WP No.04/2022, held that transfer and hearing of the Western Zone matters by the Principal Bench is bad in law and in-appropriate. The para nos.46, 47 54 and 55 are said Original Application No.143/2017(WZ) Page 25 of 45 to be the relevant paras by the respondent No.1. Out of these paras, relevant part is extracted- "... In fact, this is a complete usurpation of jurisdiction of the Western Zonal Bench, and it fails every test of law and judicial review....."
30. Based on this, it is argued by the learned counsel for respondent No.1 that the orders, which were passed by the Principal Bench of this Tribunal in this case earlier, were beyond the jurisdiction. But we told the learned counsel for respondent No.1 that the said order would be treated to be applicable prospectively and not retrospectively, therefore, whatever orders, exist on the file to have been passed by the Principal Bench, will stand valid in our estimation. Therefore, we have to go by those directions and ensure that the matter is taken to a logical conclusion. He has also mentioned in this objection that the matter suffered from non-joinder of necessary parties and the applicant suppressed the relevant and material facts in the present application. The applicant has not disclosed that he had filed the complaint before the NGT in the year 2014 long back, which was disposed of by the Registry.
31. We find that the applicants have filed additional affidavit dated 08.07.2023 stating therein that the Tribunal vide order dated 06.04.2022, which was passed by the Principal Bench of this Tribunal at New Delhi, had widened the scope of this matter and therefore, present affidavit is required to be submitted, in order to bring on record all the true and recent facts.
32. It is further mentioned in this additional affidavit by the applicants that the Applicant No.2 had earlier filed an application/complaint in the year 2014, a copy of which is annexed at page no.346 of the paper book, whereon the then Registrar ordered that postal correspondence cannot be Original Application No.143/2017(WZ) Page 26 of 45 entertained and that a regular application in the format as per the NGT (Practice & Procedure) Rules, 2011 may be filed, if so desired. Pursuant to that, the present application was filed in the year 2017. The cause of action in the present matter was continuously arising and finally arose in the year 2017, as pleaded in paragraph No.3 'Limitation of the Original Application'.
33. It is further mentioned in this additional affidavit by the applicants that the respondent No.1 has not stopped carrying out the illegal activities till date and therefore the cause of action for the applicants has been arising on day to day basis. Hence, this case cannot be treated to be barred by limitation. The latest reports and the actions undertaken by the Central Pollution Control Board (CPCB) and the Maharashtra Pollution Control Board (MPCB) would indicate that the cause of action was continuously running for the applicants.
34. It is further mentioned in this additional affidavit by the applicants that the applicant No.1 was father of applicant No.2, who expired on 28/12/2022. The Applicants have filed the present application for compensation and other reliefs under section 18(1) read-with section 15 and 17 of the National Green Tribunal Act, 2010, as per which five years from the date on which cause of action first arose would be treated to be the period of limitation. Therefore, applicants are well within time, as they moved the present application before the Tribunal on 22.05.2014 and subsequently, with correct format, the present application was filed on 03.08.2017.
35. It is further mentioned in this additional affidavit by the applicants that vide order dated 06.04.2022, this Tribunal directed the Joint Committee to visit the site of the industry, interact with the stakeholders Original Application No.143/2017(WZ) Page 27 of 45 including the PP and ascertain status of compliance regarding the environmental and safety norms and it may also be ascertained as to whether the unit of respondent No.1 was required to follow Zero Liquid Discharge (ZLD) norms for the spent wash and also ascertain the status of payment of compensation to the heirs of the deceased and to the injured employees of the respondent No.1's factory. Pursuant to this, a joint visit was conducted by the Committee Members on 18.07.2022 and a report to that effect was submitted before this Tribunal.
36. It is further mentioned in this additional affidavit by the applicants that this inspection was conducted after three months of the passing of the order dated 06.04.2022 and in these three months, no action was taken against the respondent No.1 nor was even committee formed to carry out the inspection. In these three months, the Respondent No.1 got enough opportunity to wipe out all the evidences. Respondent No.1 has not stopped carrying out the illegal activities of throwing the spent wash on the agricultural lands of the villagers till date. During the site inspection, the applicants had shown the land owned by Sayali Motels to the Committee Members, on which the spent wash was discharged on 04.07.2022 in similar fashion, as it was discharged on the agricultural land of the Applicants. It is further submitted that the photos and videos would clearly show the discharge of the same. The cognizance of the same has been taken by the Joint Committee in clause no.2 of the Joint Committee Report. However, no action has been taken till date.
37. It is further mentioned in this additional affidavit by the applicants that the samples were also collected from the site of Sayali Motels and that the analysis report dated 29.07.2022 of the same along-with the Joint Report were submitted, which would clearly depict the high Biochemical Oxygen Demand (BOD) and Chemical Oxygen Demand (COD) levels, which Original Application No.143/2017(WZ) Page 28 of 45 would make it evident that the spent wash was thrown on that land. Along-with the Joint Committee Report, photos of the land owned by Sayali Motels were also submitted, which would show the stagnant spent wash being spread all over the land. The colour of the sample collected was dark brown, which would reveal that the sample contained spent wash.
38. It is further mentioned in this additional affidavit by the applicants that Joint Committee Report would show that the spent wash was stored in the unlined lagoons in the premises of the respondent No.1, which percolated to the soil, resulting in pollution of soil, affecting the cultivable land. This stored spent wash passes through the natural drain thereby meeting the Pravaranagar river and intermediate natural drains from Kolhar, which would reveal from the Joint Committee Report in clause 4.2 that there were total 7 lagoons, out of which 5 were unlined and 2 were lined. The spent wash stored in such 5 unlined lagoons gets percolated to the soil and also passes through a natural drain. As per the terms and conditions for compliance of Water (Prevention and Control of Pollution) Act, 1974 for issuing the Consent to Operate, the respondent No.1 was required to follow the Zero Liquid Discharge condition and that no waste/treated water could be discharged outside the premises. But no such care was taken by the MPCB while granting the consent to operate on 30/01/2020 to the respondent No.1. On 04/07/2022, the discharge of spent wash would also evidently show that the untreated water was not disposed in accordance with the norms of Zero Liquid Discharge, which is evident from the Joint Committee Report.
39. It is further mentioned in this additional affidavit by the applicants that the Respondent No.1 has not complied with the terms and conditions required for Environment Clearance (EC) and yet it received 'consent to Original Application No.143/2017(WZ) Page 29 of 45 operate' fraudulently. The design of Condensate Polishing Unit (CPU) and Multi-Effect Evaporator (MEE) can handle load variations in the Biological Oxygen Demand (BOD) & Chemical Oxygen Demand (COD), which would eventually reduce the usage of fresh water and would help in achieving goal of zero liquid discharge. The analysis report dated 29.07.2022 would show that the Respondent No.1 did not use the above-mentioned systems. The Respondent No.1 had not submitted any documentary evidence to support their contentions and had failed to take precautions and necessary steps to prevent emission and discharge of effluents in air as well as in the water bodies in nearby vicinity. Respondent No I has accepted that there were 2 pakka lagoons constructed, which were completely against the provisions, rules and regulations, as only one pakka lagoon was allowed to be constructed, wherein spent wash could be stored for 30 days. Thereafter, the applicants have reiterated the same version in this affidavit regarding discharge of spent wash in the adjacent field, which was said to have been video-graphed, the whole process of discharge and photos of which were taken, which we have already mentioned above.
40. It is further mentioned in this additional affidavit by the applicants that they had to suffer losses to the extent/tune of an exorbitant amount of 6 to 7 crores and above due to contamination by spent wash in the form of loss caused to his pomegranate crops and has mentioned that they undertake to provide/submit the appropriate and relevant supportive documents as evidence in this regard. They further mentioned that this amount of loss has been determined by them in accordance with law, guidelines/ articles, mentioned in the magazine published by the Rahuri Krushi Vidyapeeth, which was mentioned and calculated by them as per the standard norms, the normal/standard yield of the Pomegranate crops Original Application No.143/2017(WZ) Page 30 of 45 for a plantation of 1 Acre, which comes to approximately 20 lac. and that under normal situation, a plantation of Pomegranate crops usually yields for a continuous period of about 15 years. The Applicants had reaped the benefits of the yield only for 1 year, after which, the said yield was destroyed and demolished completely due to the actions of Respondent No.1. Resultantly, the proposed plantations of the rest 14 years could not be enjoyed/used/benefitted by the Applicants. Based on above, this calculation of loss has been made.
41. It is further mentioned in this additional affidavit by the applicants that the Respondent No.1 itself had admitted that there were traces of spent wash found on the compost, in the enquiry conducted by the sugar factory, which is evident from the reply given by the respondent No.1 to the letter dated 25.06.2014, issued by the Sub-Regional Officer of the MPCB, seeking clarification. It is further mentioned that the primarily treated span wash was stored in Lagoons, which were working for 30 years, nonetheless this is not true. In consonance with the above stated facts, it is evident that currently there are 8 lagoons, out of which two are pakka lagoons and other 6 are kaccha lagoons. The same was also observed in the joint visit of Maharashtra Pollution Control Board (MPCB) and Central Pollution Control Board (CPCB), which is clearly mentioned in their report, however, no action was taken in this regard. The Respondent No.1 distributes this primary treated spent wash stored in the said lagoons to the farmers, which is purported to be sprayed on the compost with a view to and intention of affecting the quality of the soil, which has been strongly objected to by the Applicants because the farmers are being made a scapegoat in this scenario by the Respondent No.1. This distribution or spraying of spent wash on the lands of farmers is a consequence of the Original Application No.143/2017(WZ) Page 31 of 45 permission given by Mahatma Phule Krishi Vidyapeeth, Rahuri, confirming that the spent wash is allowed to be sprayed on compost.
42. It is further mentioned in this additional affidavit by the applicants that the applicants made several complaints right from the year 2014 to various Authorities, such as Hon'ble President of India, the Hon'ble Prime Minister of India and various other Central and State Authorities in this regard but no action was taken from their side. Pressure was built up by the respondent No.1 upon the applicants to withdraw the complaint under repeated threats. Regarding the same, a complaint was made to the Police Superintendent by the applicants.
43. It is further mentioned in this additional affidavit by the applicants that renewal of the consent to distillery unit was refused by the Board on 23/06/2005 and that it was again refused due to non-compliance of norms. The observation made in clause 7.2 in the Joint Committee Report would show that due to percolation of spent wash, around 20 to 25 wells and bore-wells were contaminated. There were still unlined (kacha) 6 lagoons, which were filled by around 30 days of spent wash, which was completely against the provisions, rules and regulations.
44. It is further mentioned in this additional affidavit by the applicants that the Maharashtra Pollution Control Board in its Inspection Report dated 20/02/2014 was found to have mentioned that the respondent No.1 had provided bio-digester followed by compost yard but had not completed the same as only levelling and compacting was completed. MPCB's report would also show that Respondent No.1 had not provided Effluent Treatment Plant (ETP) for the country liquor plant and that the untreated effluent was discharged into sugar by-pass. The ETP plant of the Respondent No.1 is still not functioning and therefore, from the above Original Application No.143/2017(WZ) Page 32 of 45 report, it is clear that the water containing spent wash was discharged on the field adjoining the land of the Petitioner and the water was also discharged in the river as well as in the surrounding fields without treatment.
45. It is further mentioned in this additional affidavit by the applicants that in the year 2016, there was sudden explosion of molasses tank in the premises of respondent No.1, due to which the stored molasses got discharged in the spray pond, on floor near tanks. This accident occurred due to negligence of Respondent No.1 in storing of molasses. The said accident was also published in local newspapers and that in pursuance of this accident, Maharashtra Pollution Control Board took necessary steps and instructed the Respondent No.1 through a letter dated 16.04.2016 to take necessary steps to avoid contamination of the surrounding area. On 22.11.2016, Mr. Bapu Shankar Dighe, social worker wrote a letter to the Secretary of Environment Department, Mumbai and the Member Secretary of Maharashtra Pollution Control Board stating therein that Respondent No.1 discharged effluents in the Pravara Water Canal, pursuant to which the officials of Maharashtra Pollution Control Board made a visit to the Respondent No.1's factory and observed that there have been Violation/Non-Compliance under Water (Prevention and Control of Pollution) Act. 1974, Air (Prevention and Control of Pollution) Act, 1981 and Hazardous Waste (Management and Handling and Trans Boundary movement) Rules, 2008, in pursuance to which, a letter dated 20.12.2016 was issued to the Respondent No.1, which would show that the respondent No.1 did not follow any of the norms of Corporate Responsibility for Environmental Protection.
46. It is further mentioned in this additional affidavit by the applicants that the audit report for the financial year ending on 31.03.2018 given by Original Application No.143/2017(WZ) Page 33 of 45 Maharashtra Pollution Control Board would clearly show the detailed calculations of required quantity and actual quantity found during survey would show that the actual quantities were high than the consent quantities, a copy of the joint visit report dated 16.01.2019 was obtained by the applicants under RTI, which would indicate that the respondent No.1 had not taken proper measures for spent wash collection, treatment, storage and disposal and also indicated that pucca lagoons were to be used rather than the earthen lagoons for the process of storing the spent wash. However, till date the Respondent No.1 had not constructed any of the pucca lagoons, rather the existing earthen lagoons were still in operation, for which Respondent No.1 had paid a penalty of Rs. 1.50,000/- (Rupees One Lac Fifty Thousand Only) to the respondent No.2 for discharge of untreated liquid/spent wash in the river.
47. It is further mentioned in this additional affidavit by the applicants that the Respondent No.2 had granted permission to the respondent No.1 to run the plant despite the absence of the ETP. Therefore, a separate enquiry is required to be initiated against the Respondent No.1 with regards to its manufacturing and wage treatment process from its inception and that the Respondent No.2 is also required to be questioned in this regard. In this additional affidavit, applicants have made a reference of an order passed by this Tribunal in Original Application No.09/2018 between Bhausaheb Gambhire vs. Utech Sugar and others, wherein, in an identical matter, orders dated 31.01.2019 and 16.01.2020 against the said sugar mill were passed for compensation of Rs. 1,00,00,000 /- (Rupees One Crore Only) and 37,20,000/- (Rupees Thirty Seven Lac Twenty Thousand Only) respectively, being an environment compensation for continuing to indulge in illegally operating of the plant. Original Application No.143/2017(WZ) Page 34 of 45
48. It is further mentioned in this additional affidavit by the applicants that the Respondent No.1 does not have incineration technology/ boiler, as they are in the process of providing the same for achieving the Zero Liquid Discharge. Respondent No.1 has just one boiler with wet scrubber and that the same is not in operating condition. The respondent No.1 has also not complied with the consent conditions nor with the terms and conditions of the EC. In the analysis report of the samples collected on the inspection made by the Joint Committee, the concentration of BOD was found extremely high i.e. 550 mg/l against the normal standard of 100 mg/l, which would indicate that the water of the river was contaminated due to the discharge of the Respondent No.1's factory, which was being used in the land for wider cultivation and for drinking purposes. The river water also percolates in the wells and bore-wells adjoining the Pravara river, contaminating their water as well. The news report was also stated in this regard by giving an online link of the same. It is also stated therein about lakhs of fishes died in the said river because of the pollution. The link of the same was also given in para no.84 of this affidavit. The distillery producing alcohol of 40,000 liters and above required to have the incineration technology to achieve the Zero Liquid Discharge. But even after such huge production, the distillery of Respondent No.1 has not put in place the technology to achieve ZLD.
49. It is further mentioned in this additional affidavit by the applicants that Respondent No.1 has three factories, out of which two are distillery producing alcohol, ethanol etc. and all these three factories produce more than 4 to 5 lakh tons of waste, which is then treated thereby producing alcohol and ethanol, resulting in generation of spent wash and molasses. Their generation of molasses and spent wash was four times of the quantity of the sugar production, which was discharged in the gutters on Original Application No.143/2017(WZ) Page 35 of 45 the agricultural lands and ultimately in the river without being treated in the Multi-Effect Evaporator (M.E.E) and a Condensate Polishing Unit (C.P.U).
50. It is further mentioned in this additional affidavit by the applicants that reference is made of the Judgment of Hon'ble Supreme Court in the matter of Paryavaran Suraksha Samiti and another versus Union of India and others, wherein the Hon'ble Supreme Court had taken cognizance of the industries discharging the untreated effluents in the water bodies and also regarding the functionalities of the ETPs (Effluent Treatment Plants) and held that no industry, which require Consent to Operate from the State Pollution Control Board, is permitted to function unless it has functional ETP capable to meet the prescribed norms for removing the pollutants from the effluent before its discharge.
51. Para no.99 of this affidavit contains directions given by the Tribunal after considering the Judgment of Hon'ble Supreme Court cited above, laying down the formula for calculating the environmental compensation to be levied from the polluters. It is also mentioned in this additional affidavit that the same may be treated as an affidavit in continuation of the earlier affidavit filed by the applicant with the main petition and further submitted that taking into consideration the above-mentioned facts and circumstances, the Agricultural Officer- Ahmednagar, the Collector of Ahmednagar, the Sugar Commissioner, Department of Environment, Department of Irrigation and CPCB be also added as parties in the present Original Application, as they are necessary parties, for which an I.A. has been preferred separately, stating cogent reasons for the same.
52. It is further mentioned in this additional affidavit by the applicants that Respondent No.1 is a thick skinned entity, which has fearlessly Original Application No.143/2017(WZ) Page 36 of 45 violated the rules and regulations of environment as well as other laws and that the Responder No.1 has given rise to multiple cause of actions. The applicants, being a local resident of the vicinity of the Respondent No.1, are being unnecessarily pressurized and threatened by several individuals and that the applicants are ready to assist this Tribunal for consideration of the present matter.
53. The respondent No.2- MPCB has filed reply affidavit dated 17.01.2024, in compliance with our previous order dated 18.09.2023, in which we had directed them to file detailed reply affidavit to disclose since when the Consent to Establish and Operate were granted to the respondent No.1-Project Proponent from time to time. Details of the same are mentioned in para no.4 of this affidavit, which are as follows:-
"
Sr Details of Date of
Capacity Validity Date
No. Consent Consent
1. Consent to Rectified Spirit 60 15-05-2002 31-12-2002
Operate KLPD
2. Consent to Rectified Spirit 60 12-09-2006 31-12-2006
Operate KLPD
3. Consent to Rectified Spirit 92 06-05-2008 31-12-2008
Operate KLPD
4. Consent to Rectified Spirit 29-07-2010 31-12-2010
Operate 92 KLPD
(Restricted upto
30 KLPD due to
inadequacy of
5. Consent to compost yard)
Rectified Spirit 92 12-04-2016 31-08-2016
Operate KLPD
6. Consent to Rectified Spirit 92 01-02-2017 For the period
Operate KLPD of 01-09-2016
to 31-08-2017
7. Consent to Rectified Spirit 92 05-09-2018 For the period
Operate KLPD of 01-08-2017
to 31-08-2019
8. Consent to Rectified Spirit 92 30-01-2020 31-08-2022
Renewal KLPD
Original Application No.143/2017(WZ) Page 37 of 45
9. Consent to Rectified 24-03-2022 Up to
Establish Spirit 148
commissioning
KLPD
of the unit.
10. Consent to Rectified Spirit 30-08-2022 31-08-2023
Renewal 60 KLPD
11. Consent to Rectified Spirit
Renewal 60 KLPD 04-01-2024 31-08-2024
12. Consent to Rectified Spirit Up to
Establish for 32 KLPD
04-01-2024 commissioning
Expansion
of the unit.
"
54. Besides above, it has also been mentioned in this reply affidavit of respondent No.2- MPCB that the respondent No.1-Industry had set up 15 KLPD Distillery in 1970, which was expanded up to 32 KLPD in 1975 and thereafter, again the Respondent No.1-Industry had set up 60 KLPD Distillery unit, for which the answering respondent had issued Consent on 15/05/2002 prior to the EIA Notification, 2006. Further, it was also communicated to the respondent No.1 that the Respondent Board had issued a combined/ amalgamated consent for the above two units (32 KLPD+60 KLPD) quantifying to 92 KLPD.
55. During argument, the learned counsel for respondent No.2- MPCB tried to clarify the gaps of years and months in respect of the terms of extension of the validity of the consent and stated that the respondent No.1 did have Consent to Operate throughout, but due to lack of record available with the respondent No.2, these details could not be produced before us, hence these gaps have been left.
56. In this regard, a written submission dated 31.01.2024 has been filed by the respondent No.1- Project Proponent, wherein it is mentioned that as per the general practice adopted by the answering respondent, once the next renewed consent is received, the earlier documents prior to three Original Application No.143/2017(WZ) Page 38 of 45 years, are not maintained by the industry. Further, it is mentioned that the sugar industry generally operates only from October to March (crushing season). Thereafter it closed. The consent was granted and issued only after compliance of the past and for the current season, which was checked in advance. Any arrears of fees etc. were also recovered by the MPCB before issuing the consent. As such the earlier consents are generally not required for any records or proceedings.
57. It is further submitted in this written submission by the respondent No.1-PP that in the present Original Application, the consents of the past period were not the issues pleaded. It is also not pleaded by anyone that the pollution or damage to environment was done because of no consent. With this affidavit, whatever number of gaps period could be available with the respondent No1, the details of which are given by it.
58. We have heard the arguments of learned counsel for parties and perused the record.
59. From the side of applicants, no specific argument has been made by learned counsel Mr. Kaushik Kulkarni and submits before us that whatever he wants to submit by way of an argument today, has already been submitted in the additional affidavit dated 08.07.2023 filed by him, the contents of which we have already mentioned above.
60. The arguments, which were made by the learned counsel for applicants as well as learned counsel for respondents are contained in our previous order dated 30.01.2024, which shall form part of this Judgment.
61. It appears that the applicants want to take advantage of the earlier order dated 06.04.2022, whereby the Principal Bench of this Tribunal had expanded the scope of this application, in view of an accident happened in Original Application No.143/2017(WZ) Page 39 of 45 the premises of respondent No.1 due to bursting of the tank of the unit, resulting in death of three persons and injuries to seven persons. But in this very order, it was clarified by the Principal Bench of this Tribunal in para no.3 that since the Joint Committee did not find any damage due to discharge of coloured effluent from the unit, which was found by the officials of the State PCB at the time of visit and on that basis, State PCB had levied compensation of Rs.1.5 lakh from the respondent No.1- Project Proponent. The applicants' original case would be taken to have been decided in terms of that order.
62. We, after having gone through the evidence on record, which has been cited above in detail, did not find any conclusive proof to the effect that the applicants had to suffer losses to their crop to the tune of an exorbitant amount of Rs.6 to 7 crores, which has been assessed by the applicants in accordance with law, guidelines/articles, mentioned in the magazine, published by the Rahuri Krushi Vidyapeeth.
63. It appears that the figure/amount, which has been arrived at by the applicants, is arbitrary and for want of any evidence therefor, we are not inclined to accept this compensation to be awarded to the applicants.
64. The Principal Bench of this Tribunal had constituted a Joint Committee, the scope of which was also determined by laying terms and conditions therein, pursuant to which the Joint Committee had submitted its report at length, which has already been cited above by us, against which objections have already been filed by the respondent No.1 as well as applicants. Therefore, we have to evaluate this evidence, which has been placed before us in the form of Joint Committee, whether to accept the same or pass our final order based on the recommendation made therein? Original Application No.143/2017(WZ) Page 40 of 45
65. The objections, which have been filed by the respondent No.1- Project Proponent, have been considered by us at length, which cover wide range such as non-joinder of necessary parties, suppression of material facts by the applicants, application being barred by limitation etc. and the Principal Bench not having jurisdiction etc. In this regard, we are of the view that these objections are not material because we have already given our finding to the effect that the decisions, which have been taken by the Principal Bench of this Tribunal earlier, will not be adversely impacted by any Judgment of subsequent date by a higher Court. The main emphasis in this objection laid by the learned counsel for respondent No.1 is on the law point that the amount of compensation should be awarded to the injured persons as well as the dependents of the deceased in accordance with the Workmen Compensation Act, 1923, because all the persons, who died or received injuries, were its own employees, therefore, they were covered under the above-mentioned Act and under that, they have already been adequately paid the compensation amount by the respondent No.1. Therefore, the Joint Committee did not have jurisdiction to re-open the matter of compensation, which has already been paid to the said persons and that higher compensation, which has been recommended by the Joint Committee, should be discarded.
66. In this regard, we are of the view that in the case of M.C. Mehta vs. Union of India & Ors. [(1987) 1 SCC 395], the Hon'ble Supreme Court has held that if any enterprise, which is engaged in an hazardous or inherently dangerous industry, which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone. The enterprise must be held to be under an obligation to provide that the hazardous or Original Application No.143/2017(WZ) Page 41 of 45 inherently dangerous activity, in which it is engaged, must be conducted with the highest standards of safety and if any harm results to anyone on account of such activity in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those, who are affected by the accident as a part of the social cost for carrying on such activity, regardless of whether it is carried on carefully or not. Such liability is not subject to any of the exceptions, which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher. If the enterprises is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its over-heads. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. The measure of compensation in these kinds of cases must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.
67. Relying on the above decision of the Hon'ble Supreme Court, we are of the view that the argument made by the learned counsel for respondent No.1- Project Proponent that in the case in hand, the accident, which had happened in the premises of respondent No.1, should be covered under the Workmen Compensation Act, 1923, as far as awarding compensation to the dependents of the deceased or the injured persons is concerned, is Original Application No.143/2017(WZ) Page 42 of 45 not agreeable to us, rather we would like to go by the law laid down by the Hon'ble Supreme Court, which has been cited above and as per that, we find that the Joint Committee has relied upon various Judgments of Hon'ble Supreme Court such as Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. [MANU/SC/0606/2009] and based on that, it has calculated the additional amount of compensation, to be paid to the dependents of the deceased, in tabular form at page no.216 of the paper book, wherein three deceased namely, 1). Sh. Vinod Dada Jhondhale, 2). Sh. Balu Sampat Deore and 3). Sh. Shashikant Bhikaji Pagare have been recommended to be paid additional amount of Rs.22,22,680/-, Rs.14,21,898/- and Rs.12,70,756/-, which amounts have been arrived at after calculating the compensation amount, on the basis of the said Judgment of Hon'ble Supreme Court and out of that, the amount, which has already been paid to the employees, has been deducted. We do not find any error in the said calculation made by the Joint Committee and approve of the same.
68. We also find in this Joint Committee Report that the Committee Members had met the injured persons, who had been paid Rs.25,000/- each for the injuries received by them and that all the injured had shown their satisfaction with their treatment and compensation, which fact has been mentioned by the Joint Committee in its report in para no.6.1.1 at page no.207 of the paper book. Besides, the respondent No.1 has given some permanent job also to the affected persons, in order to compensate them. We are in agreement with the view expressed by the Joint Committee in this regard.
69. In view of the Joint Committee Report, we dispose of this application with the following directions:-
Original Application No.143/2017(WZ) Page 43 of 45
(i). The respondent No.1- Project Proponent shall make payment of the balance amount of Rs.22,22,680/-, Rs.14,21,898/- and Rs.12,70,756/- to the legal heirs/dependents of the deceased persons namely, 1). Sh. Vinod Dada Jhondhale, 2). Sh. Balu Sampat Deore and 3). Sh. Shashikant Bhikaji Pagare respectively. For this, we direct that these amounts shall be deposited with the District Collector of District Ahmednagar, who shall identify the legal heirs of these deceased persons and after proper identification, the amount would be distributed among them equally. This exercise shall be completed by the above-mentioned authority within a period of two months from the date of uploading of this Judgment;
(ii). The Maharashtra Pollution Control Board (MPCB) shall take appropriate action to ensure that the respondent No.1 shall make provision for storage of spent wash/bio-digested spent wash in in-lined lagoon;
(iii). The MPCB shall also ensure that the respondent No.1 dismantled unlined lagoons at the earliest within a period of three months from the date of uploading of this Judgment and that groundwater monitoring around the unlined lagoons would be carried out by the MPCB to check contamination, if any. It shall also be ensured by the MPCB that proper storage arrangement is made in the area for yeast sludge and press mud;
(iv). The Director of Industrial Safety and Health, Ahmednagar is directed to ensure that the respondent No.1 adopts all the Original Application No.143/2017(WZ) Page 44 of 45 measures provided under the Factory Act, 1948/Maharashtra Factory Act, 1963 and MSIHC Rules 1989; and
(v). We also adopt the recommendation of the Joint Committee with respect to paying an amount of Rs.5 lakh for grievously injured persons and Rs.2,50,000/- for injured persons having minor injuries, except those, who have been provided a permanent job, as they have already been provided Rs.25,000/- by way of compensation and to meet the expenses of treatment to the injuries.
(vi). A compliance report in this regard, by the authority concerned to whom we have issued directions, shall be submitted before the Registry of this Tribunal within a period of four months from the date of uploading of this Judgment.
70. All pending applications, if any, also stand disposed of.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM March 04, 2023 Original Application No.143/2017(WZ) P.Kr.
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