National Green Tribunal
Yashaswi Fish Meal And Oil Company ... vs Union Of India on 15 March, 2021
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.03, 11 & 12:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 254 of 2020 (SZ) &
I.A. No. 124 of 2020 (SZ)
With
Original Application No. 27 of 2019 (SZ) &
I.A. Nos. 29 & 30 of 2019 (SZ)
With
Appeal No. 05 of 2020 (SZ) &
I.A. Nos.83 & 84 of 2020 (SZ)
(Through Video Conference)
IN THE MATTER OF
Sugandhi Shekar
...Applicant(s)
Versus
Union of India and others. ...Respondent(s)
Date of hearing: 15.03.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
O.A. No. 254/2020 (SZ) & I.A. No. 124/2020 (SZ)
For Applicant(s): Mr. K. N. Praven Kumar
For Respondent(s): Mrs. M. Sumathi for R1
Mr. M. R. Gokul Krishnan for R6 & R7
Mr. K. M. Darpan for R2 to R5, R9 to R14 & R16
1
Mr. H. K. Vasanth for R8
Mr. Prasanna Shetty for R18 to R20
Mr. Aditya Balaji represented
Mr. T. K. Bhaskar for R22
O.A. No. 27/2019 (SZ) & I.A. No. 29 & 30 /2019 (SZ)
For Applicant(s): Mr. K. N. Praven Kumar represented
Mr. Karunakar malik
For Respondent(s): Mr. Surya Prabhu represented
Mr. G. M. Syed Nurullah Sheriff for R1
Mr. K. M. Darpan for R2, R5
Mr. H. K. Vasanth for R3 & R4
Mr. M. R. Gokul Krishnan for R13
Mr. Aditya Balaji represented
Mr. T. K. Bhaskar for R11
Appeal. No. 05/2020 (SZ) & I.A. No. 83 & 84/2020
For Appellant(s): Mr. Aditya Balaji represented
Mr. T. K. Bhaskar
Mr. H. K. Vasanth for R2, R3
Mr. Darpan K.M. for R4
Mr. K. N. Praveen Kumar for R5 to R8 (for I.A)
ORDER
1. As per order dated 14.12.2020, this Tribunal had admitted OA254/20 and issued notice to the respondents and also appointed a Joint Committee to go into the question and submit a report and the case was originally posted to 29.01.2021 for that purpose. Thereafter, the matter was taken up on 23.02.2021 and since it was brought to our notice that O.A. No. 27 of 2019 and Appeal No. 05 of 2020 were also pending before this Tribunal in respect of similar issue, this application was also directed to be posted along with other two cases. That is how these cases 2 have been posted to today for consideration.
2. When the matter came up for hearing today through Video Conference, in O.A. No. 254/2020, Sri. K. N. Praveen Kumar represented the counsel for the applicant. Smt. M. Sumathi represented the 1st respondent, Sri. K.M. Darpan represented respondents 2 to 5, 9 to 14 & 16, Mr. M.R. Gokul Krishnan represented respondents 6 and 7, Mr. H.K. Vasanth represented 8 th respondent, Mr. Prasanna Shetty represented respondents 18 to 20 and Mr. Aditya Balaji represented Mr. T.K. Baskar counsel for 22nd respondent. Though 17th respondent was served with notice, there is no appearance for them. So service is complete.
3. In O.A. No. 27 of 2019, Mr. K. N. Praveen Kumar represented Mr. Karunakar Mahalik represented counsel for the applicant. Mr. Surya Prabhu represented Mr. G.M. Syed Nurullah Sheriff, counsel for 1st respondent, Mr. H.K. Vasanth represented respondents 3 and 4, Mr. Darpan represented respondents 2 and 5, Mr. Aditya Balaji represented T.K. Bhaskar counsel for 11th respondent and Mr. M.R. Gokul Krishnan represented 13th respondent.
4. In Appeal No. 05 of 2020, Mr. Aditya Balaji represented Mr. T.K. Bhaskar represented counsel for the appellant. Mr. H.K. Vasanth represented respondents 2 and 3 and Mr. K.M. Darpan represented 4th respondent.
5. O.A. No. 27 of 2019 was posted to today for consideration of further report tobe filed by the regulators and the Appeal No. 05 of 2020 was posted to today for completion of pleadings. Since all these cases are connected matters relating to 3 the same issue of conducting shrimp culture or Fish Meal Industry in CRZ zone regarding its permissibility etc., we feel that all these cases can be considered together and disposed of by a common judgement.
6. I.A. No. 83 of 2020 in Appeal No. 05 of 2020 was filed by the originally shown respondents 5 to 8 in the appeal to permit them to appear and conduct the appeal on merit as it is at their instance that O.A. No. 254 of 2020 and O.A. No. 27 of 2019 were filed.
7. Further, they have filed an application to implead themselves in the Writ Petition No. 14808/2018 which was disposed of by the Hon'ble High Court of Karnataka on 04.11.2019 and the order impleading was challenged before the Hon'ble High Court of Karnataka by filing Writ Appeal No. 995/2019 which was dismissed by the Hon'ble High Court by Judgement dated 12.06.2019 and as such they are interested in the matter.
8. The appellant has filed their objection to this application, stating that they are unnecessary parties to the proceedings and the applicants were aware of the report of the joint committee and they filed this application only to harass the appellant that they wanted to come on record in this matter and they prayed for dismissing the application.
9. Earlier, this Tribunal had dispensed with notice to the respondents 5 to 8 on the premises that they are not necessary parties to the proceedings as it is a matter between the regulator and the appellant regarding the question as to whether proper notice has been issued or not. However, in the connected matters, these 4 respondents were parties, we feel that it is necessary to recall the earlier order and permit these respondents to participate in the appeal and argue the matter.
10. The learned counsel Mr. Aditya Balaji who represented Mr. T.K. Bhaskar counsel for the appellant in the appeal wanted an adjournment on the ground his senior will have to be heard.
11. It may be mentioned here that they have already filed a counter whatever the senior counsel has to mention may be only on the basis of the contentions raised by them in the counter filed by them to the application filed by the persons sought to be heard in the appeal and this tribunal has considered contention while considering the application.
12. Further, they themselves had impleaded them in the appeal as additional respondents 5 to 8 and only by virtue of the order of this Tribunal, notice was dispensed with them. When this Tribunal is satisfied that they are also to be heard as they are interested in the proceedings and certain other proceedings were pending before this Tribunal in respect of the same issue, then they must be given an opportunity being heard in the appeal as well.
13. Under such circumstances, the contention of the appellant that their presence is not required cannot be accepted and the same is rejected and the interlocutory application (I.A. No. 83 of 2020) is allowed and the respondents 5 to 8 are permitted to participate in the proceedings and the order dispensing with notice to them is recalled.
14. With the above observations, I.A. No. 83 of 2020 is allowed and disposed of. 5
15. I.A. No. 84 of 2020 was filed by the respondents 5 to 8 to vacate the stay.
16. It may be mentioned here that the grievance of the appellant in the matter was that they are not the real persons against whom the action ought to have been taken. Since the identity of the unit has been is under challenge, this Tribunal had stayed the order said to have been passed against them and it is the matter to be heard along with the appeal.
17. So under such circumstances, we feel that there is no necessity to vacate this stay at this stage.
18. So, I.A. No. 84 of 2020 is dismissed with liberty for the applicants to challenge the allegations made by the appellant in the appeal memorandum in the appeal and accordingly IA84/20 is disposed of.
19. I.A. No. 30 of 2019 in O.A. No. 27 of 2019, is an application was filed by the applicant to dispense with the production of the official translation of the Annexure A4 to A10 & A12. The prayer is allowed subject to the correctness of translation, if challenged by the other respondents, then the applicant has to produce the official translation of these documents.
20. With the above observation and the directions, I.A. No.30 of 2019 is disposed of.
21. In Appeal No. 05 of 2020, Coastal Zone Management Authority (CZMA) had filed their status report along with some communication dated 14.09. 2017 which is in Kannada. They have not produced the translated copy of the document as the members of the Tribunal are not conversant with the Kannada Language. 6
22. When this was pointed out, the learned counsel appearing for the Karnataka Coastal Zone Management Authority (KCZMA) submitted that if some time is granted, they will produce the translated copy of the document produced along with the status report.
23. Even in the status report, they have not mentioned regarding the contentions raised by the appellant in the appeal memorandum regarding their identity and violations of principles of natural justice.
24. When this was pointed out, the learned counsel appearing for Karnataka Coastal Zone Management Authority (KCZMA) submitted that they will come with proper counter affidavit addressing this issue as well.
25. In O.A. No. 254 of 2020, the joint committee has filed a report dated nil and e- filed on 01.03.2021 and received on 15.03.2021 which reads as follows:-
REPORT OF THE JOINT COMMITTEE CONSTITUTED BY HON'BLE NGT ( SZ) IN THE OA NO. 254 OF 2020 IN THE MATTER OF SMT SUGANDHI SHEKAR VERSUS UNION OF INDIA RELATING TO ESTABLISHMENT OF FISH MEAL (MILL) AND OIL COMPANY IN COASTAL AREA/RIVER BANKS ALONG THE BANKS OF UDHYAVARA RIVER, UDUPI DISTRICT, KARNATAKA.
1.0. PREAMBLE In the OA No 254 of 2020, filed by Smt Sugandhi Shekar Versus Union of India, the Hon'ble National Green Tribunal (SZ), issued an Order dated 14.12.2020 with the following directions: "
7. Considering the circumstances, in order to ascertain the real state of affairs and also the alleged violation, we feel it appropriate to appoint a Joint Committee comprising of (1) a Senior Officer from Ministry of Environment, Forests and Climate Change (MoEF&CC), Regional Office, Bangalore (2) a Senior Officer from Central Pollution Control Board (CPCB), Regional Office, Bangalore, (3) a Representative Officer of the Karnataka State Coastal Zone Management Authority (KSCZMA) and (4) a Senior Officer from Karnataka State Pollution Control Board (KSPCB) to inspect the area in question and submit a factual as well as action taken report, if there is any violation found.
8. The committee is directed to ascertain as to whether there was any violation 7 of environmental laws in establishing such units in that area, including Coastal Regulation Zone (CRZ) violation, whether necessary permission have been obtained by them for the purpose of starting the units or continuing the units in that area, whether there is any pollution caused on account of functioning of those units and if there is any violation and environmental damage caused on account of their activities including pollution caused to air as well as water then, the committee is directed to assess the environmental compensation apart from taking action for violation in running the units under the respective statues.
9. The committee is also directed to ascertain the Ambient Air Quality (AAQ) and also water quality in that area and if there is any contamination or pollution caused suggesting the remedial measures of rectifying the same as well."
The Regional Office of Ministry of Environment, Forest and Climate Change (MoEFCC), Bangalore has been made as Nodal Agency.
2 2.0 PRELIMINARY MEETING In compliance of above mentioned order, the Integrated Regional Office, Ministry of Environment, Forests and Climate change (MoEF & CC), Bangalore, vide letter No F. No. EP / 12.7 / 60/KAR/ dated 23.12.2020 have requested the concerned Departments / Authorities to nominate senior official for the Committee to complete the task as assigned by the Hon'ble NGT. It was brought to the notice that on the same matter an OA 27 of 2019 has been filed by Shri Kishore Kumar Vs Union of India & Ors. Before the Hon'ble NGT (SZ). Hon'ble NGT(PB) vide order dated 11.10.2019 (Annexure-I) has constituted a Joint Committee comprising senior officers from Central Pollution Control Board, Karnataka State Pollution Control Board, Coastal Zone Management Authority, Karnataka, the District Commissioner, Udupi and District Magistrate, Udupi to inspect the area in question and the industries and submit the factual report. Accordingly, the Joint Committee has submitted a detailed report to Hon'ble Tribunal and again based on the direction of Hon'ble NGT (SZ), the Joint Committee had submitted a report on Environmental Compensation. Copy of both the reports is enclosed at Annexure-II and III. The next date of hearing of OA 27 of 2019 is 02.02.2021.
In view of the above, in the matter of OA No 254 of 2020, on receipt of the nominations from CPCB and KSPCB, preliminary meeting of the Joint Committee was convened on 21.01.2021 to decide the further course of action.
Following Members were attended:
1. Shri Ramesh D. Naik, Senior Environmental Officer, Zonal Office, Karnataka State Pollution Control Board, Mangalore.
2. Smt Sowmya, Scientist D, Central Pollution Control Board Bangalore
3. Shri E. Thirunavukkarasu, Scientist 'E', Integrated Regional Office, Ministry of Environment, Forest and Climate Change, Bangalore. Smt Vijaya 8 Hegde, Environmental Officer, KSPCB, Udupi has also attended the meeting.
3. DELIBERATIONS OF THE COMMITTEE The Joint Committee has carefully examined the issues and direction of Hon'ble NGT in both OAs- 27 of 2019 and 254 of 2020. The major issues raised in both the applications are operation of following three fish meal industries without valid consent for operation (CFO), violation of Coastal Regulation Zone in extending their area of operation and Udyavara is being polluted, the fish and other marine life are dying, one boy also died on account of unknown decease by name Neuro Melioidosis.
1) M/a. Yashaswi Fishmeal and Oil company, Pithrody, Udyavara, Udupi
2) M/s. Hindustan Marine Industries, Pithrody, Udhavara, Udupi
3) M/s. Unity Fishmeal and Oil Company, Pithrody, Udyarava, Udupi The Joint committee has also examined the mandate given by the Hon'ble NGT in the present matter. It was noted that the only carrying out of ambient air quality monitoring is the additional mandate The .Joint Committee has also examined the mandate given by Hon'ble NGT in the present matter. It was noted that the only carrying out of ambient air quality monitoring is the additional mandate to the Committee. The Committee noted that out of these three industries, M/s. Unity Fishmeal and Oil Company, Pithrody, Udyavara, Udupi is not in operation since 2014 and others have valid Consent orders from KSPCB under Water and air (Prevention and Control of Pollution) Acts. Further, these fish meal industries arc water pollution potential activities there are no process emission from these fish meal industries except boiler emission and the earlier Joint Committee has accordingly studied all relevant pollution aspects and submitted a detailed report. KSPCB is monitoring river water quality at two locations adjacent to these industries every month and as per the latest report (month of November, 2020) for the river water quality confirms to the prescribed standards. All the three have violated CRZ provisions and the KCZMA has already initiated action. Further, as per the Hon'ble NGT, environmental compensation has also been calculated by the earlier. Joint Committee and submitted.
4.0 CONCLUSION AND RECOMMENDATIONS After detailed deliberation, the, Joint Committee has made the following conclusion and Recommendations:
Since in another similar matter (OA 27 of 2019), a Joint Committee had been constituted with members including CPCB, KSPCB, KCZMA and the Committee had already inspected the areas, collected and analysed ground and river water samples, examined all relevant pollution aspects, submitted a detailed report and also a separate report on environmental compensation. The same is under consideration of Hon'ble Tribunal (SZ) (next date of hearing of OA 27 of 2019 is on 02.02.2021), this, Joint Committee recommends to appraisal the above facts to Hon'ble NGT (SZ) for perusal 9 and further orders.
26. The respondents 18 to 20 filed their objection in O.A. No. 254 of 2020.
27. However considering the circumstances, we feel that some more time can be granted in O.A. No. 27 of 2019 to file further report as no further report has been filed as directed by this Tribunal regarding the objections raised by the applicant to the earlier report submitted. When this was pointed out, the committee members wanted some more time for filing the further report as directed.
28. The joint committee in O.A. No. 254 of 2020 had submitted that they have considered all these issues in the report submitted by them in O.A. No. 27 of 2019 and since there is no air pollution arises on account of Fish Meal Industries, they may be exempted from conducting Ambient Air Quality (AAQ) Test in this case as no order to that effect was passed in the connected matters as there was no possibility of air pollution being caused on account of operation of these industries. They wanted some more time to file the detailed report regarding the environmental compensation to be assessed. We have considered this submission and the same is accepted and they are exempted from conducting ambient air quality test in this case.
29. The committee is directed to file a further report regarding the other aspects which they have not considered in this report.
30. In the mean time, the appellant in Appeal No. 05 of 2020 is directed to handover the copy of the appeal memorandum and the stay application to the counsel appearing for respondents 5 to 8 within a week, so that they can file their 10 objections, if any, to the appeal memorandum before the next hearing date by serving copy to the counsel appearing for the appellant in advance so that the appellant can also file their rejoinder, if any, to the same before the next hearing date and also for complete the pleadings in all these cases.
31. Further, the committee in both the cases as well as the official respondents are directed to complete their pleadings and file a further report to this Tribunal on or before 12.04.2021 by e-filing in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF along with necessary hard copies to be produced as per rules.
32. The Registry is directed to communicate this order to the members of the committee as well as official respondents immediately through e-mail so as to enable them to comply with the direction.
33. For completion of pleadings and also consideration of report, post all these cases to 12.04.2021.
...................................J.M. (Justice K. Ramakrishnan) ............................E.M (Shri. Saibal Dasgupta) O.A. No.254/2020 (SZ) & I.A. No. 124/2020 (SZ) with O.A. No. 27/2019 &I.A. 29&30/2019 Appeal 05/2020 & I.A. No. 83&84/2020 15.03.2021 (Sr.) 11