National Green Tribunal
Arvind Manohar Mahajan vs Ms Benzo Chem Industies Pvt Ltd on 22 November, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
Review Application No. 07/2022 (WZ)
IN
Original Application No. 124/2017 (WZ)
(I.A. No. 156/2022, I.A. No. 158/2022 &
I.A. No. 173/2022)
Arvind Mahajan & Ors. Applicant(s)
Versus
M/s. Benzo Chem. Industries Pvt. Ltd. & Ors. Respondent(s)
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M/s. Benzo Chem. Industries Pvt. Ltd.
26/28-A, Cawasji Patel Street,
Fort, Mumbai-400001 Review Applicant
Date of hearing: 22.11.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
IN CHAMBER BY CIRCULATION (Some of the members joining by VC)
ORDER
1. This application filed by the respondent project proponent (PP) seeks review of order of this Tribunal dated 29.08.2022 in OA No. 124/2017(WZ), Arvind Mahajan & Ors. vs. M/s. Benzo Chem. Industries Pvt. Ltd. & Ors., requiring the PP to take remedial action for compliance of environmental norms and asking the statutory regulators to fix accountability for past violations, while fixing interim compensation on polluter pays principle. 1
2. The review application earlier came up for hearing before Members at Pune Bench but vide order dated 30.9.2022, the said Bench directed that the review application should be considered by all the Members who passed the order dated 29.8.2022. Accordingly, the matter is being dealt with by all the Members who were party to order dated 29.8.2022.
3. As the order would show, the Tribunal considered remedial action against damage to the environment by the operation of the PP in the light of material on record, particularly the stand of the State PCB. It was held that effluents were illegally discharged by the PP in the MIDC drain which adversely affected the environment and the fertility of agricultural land in the area. On testing of the water samples, parameters were found beyond norms. Cyanide was also found therein. The State PCB had issued directions to the unit to pay compensation for damage to the crops. The PP disputed the allegations and claimed that it was compliant and had taken steps for restoration of the environment. This stand of PP was disputed by the applicant.
4. In the light of above rival stands, the Tribunal considered the question of compliance and accountability for the violations. It was held:
"xxx ....................................xxx.......................................xxx
12. Question for consideration is whether the unit was and is compliant and if not its accountability for past or continuing non compliances.
13. It is patent that from 2010 till atleast 2.10.2020, the unit remained non-compliant. We have already referred to first violation seen in the year 2010 and subsequent reports of 2017, February 2018 and NEERI report of June 2019 show that the violations continued. Even in August 2020, the State PCB recorded violations and the PP filed undertaking on 2.10.2020 to take further remedial action. Thus, there could be no question of matter being beyond limitation. Relief can be confined to five years before filing of the application. Though status after 2020 is not on record, the PP has to take remedial action as well as be held accountable for past violations of ten years. There are rival oral versions about current status -2
version of the applicants that violations are still continuing and version of the PP that violations have now been remedied.
14. Analysis reports of groundwater indicate deterioration in water quality on account of cationic and anionic imbalances. However, trace/micro pollutants could not be detected through GC/MS. Contamination of groundwater may be attributable to discharge of concentrated effluents from solar evaporation ponds. As per CTO granted by MPCB on 26.04.2016, the industry was to be operated on ZLD mode and thus has not been complied.
15. In view of above, a joint Committee of CPCB and State PCB may visit the site and ascertain compliance status in terms of ground water contamination, status of soil contamination, impact on crops/production and other associated aspects of environmental damage. MPCB may consider compliance of stipulation under CTO after 2010 with reference to imposition of ZLD and liability to pay environmental compensation on polluter pays principle for restoration of environment. If the violations are still continuing, the State PCB may need to close the unit till compliance. For the past violations, for 5 years prior to filing of application and thereafter atleast till October 2020 compensation has to be levied which we quantify at Rs. 25 crores, following principles laid down inter alia in MC Mehta, (1987)1 SCC 395, Sterlite (2013) 4 SCC 575 and Goel Ganga (2018) 18 SCC 257. As per information in public domain, operative revenue range of the PP is Rs. 100 to 500 crores. Learned Counsel for the PP, on instructions, states that its turnover is Rs. 250 to 300 crores. CSR amount as per section 135 of the Companies Act 2013 is 2% of profit per year. Taking into account totality of circumstances, we determine liability of the PP for violations from 2012 to 2020 at Rs.25 crore which is 10% of the turnover for one year i.e. Rs. 250 crores or 1% of turnover for 10 years at that rate. This amount may be deposited with MPCB within three months for being utilized for restoration of environment, as per restoration plan to be prepared by the CPCB, State PCB, District Magistrate and Director, Agriculture Department, Maharashtra and nominee of Ground Water Department of Maharashtra within three months. The restoration plan may take into account decontamination of groundwater with duly approved process and contaminated soil remediation by amelioration, as considered appropriate. The State PCB will be the nodal agency for coordination and compliance. If any amount is leftover after restoration of adjoining area, the same may be utilized in accordance with the District Environment Plan of District Buldana. Compliance report shall be posted on MPCB website within six months."
5. In the review application, the stand of the PP that it had already taken measures to remedy the situation is reiterated and it is submitted that the finding of the Tribunal is erroneous. It is submitted that the unit is in industrial area where other industries are also operating which may 3 be the cause of pollution. Sample collection was unsupervised and thus correctness thereof was open to doubt. There is no justification for constituting a joint Committee for assessing the compensation as such committee could not be entrusted the functions of the Tribunal. The unit is providing large scale employment. Compensation of Rs. 25 crore was not justified as methodology to assess compensation evolved by the CPCB cannot be ignored.
6. We have duly considered the grounds of review and do not find any merit therein. The scope of review is not to revisit the conscious decision taken on merits. Points raised have already been adjudicated upon and finding recorded against the PP. The joint Committee has not been entrusted the functions of this Tribunal but asked to perform statutory functions of the regulators. CPCB formula can neither override the jurisdiction of this Tribunal nor nullify the mandate in judgments of the Hon'ble Supreme Court which have been referred to in the order, sought to be reviewed. As already mentioned in several orders of this Tribunal, including order dated 7.12.2021 in OA No. 144/2020, Bhaskar Rao Vemuri vs. State of Andhra Pradesh, the said formula may at best operate at floor level. Para 8 is quoted below:
"8. Principles for determining environmental compensation are well known and are based on restitution principle with deterrent element, as per financial capacity of the unit. While floor level compensation may be calculated on adhoc basis using rule of thumb, the same cannot have universal application, without considering the cost of remediation and financial capacity of the unit. In this regard, reference is made to law laid down in MC Mehta v. Union of India, (1987)1 SCC 395, pr 31, Indian Council for Enviro Legal Action Sterlite Industries (India) Ltd. v. Union of India (1996) 3 SCC 212 Pr 12,13,60,67, Uphaar Cinema, (2011) 14 SCC 481 Pr 101-108, Sterlite (2013) 4 SCC 575, pr 45-47, Goel Ganga Developers v. Union of India & Ors. (2018) 18 SCC 257 and MC Mehta, (2018) 18 SCC 397, pr 134. In the present case, the Committee has found serious violations resulting in damage to the environment spread over for long period. There is still failure to take remedial measures. There is loss of five lives within one year, apart from injuries to others. The turnover of the unit is 150 crores, as 4 shown from the document filed by the unit itself (page 360 of the paper book), which is insurance policy dated 10.08.2021 issued by the Future Generali. Premium for the insurance policy is Rs. 1,04, 13, 307/- from 01.07.2021 to 30.06.2022. Having regard to serious continuous violations and financial capacity of the unit, compensation has to be atleast 5% of the annual turnover i.e. 7.5 crore, under the head of loss to the environment. We assess the same accordingly. There is no scope of reduction of compensation as sought. The compensation already assessed under the said head may be excluded from the said amount. The amount may be deposited by the unit with the State PCB within three months, failing which State PCB may take coercive measures, including closure of the unit, till compliance by disconnecting the electricity. The amount may be utilized for restoration/improvement of the environment in the area by preparing an action plan by a five-member expert committee comprising of MoEF&CC, CPCB, State PCB, Prof. P. Jagannadha Rao, Dept. of Chemical Engineering, Andhra University, Vishakhapatnam and District Magistrate, Nellore with State PCB as the nodal agency for coordination and compliance. The execution of the action plan may also be overseen by the same Committee through an appropriate agency. The Committee may meet within two weeks, verify remedial steps taken to prevent any future incident compliance of environmental norms, including those claimed by the unit. The Committee may interact with the stake holders, including the management, staff and representatives of public. Proceedings may be conducted online, whenever considered necessary, except the site visit. Execution may be completed as far as possible within six months. Proposed compensation may be paid to the victims as early as possible."
7. As noted above, the CPCB formula is based merely on the days of violations without taking into account the extent of violation, cost of restoration and deterrent element with reference to financial capacity of the violator which are necessary components as per law laid down by the Hon'ble Supreme Court.
8. We, thus, do not find any merit in the review application which is dismissed.
All pending I.A.s will also stand disposed of.
Adarsh Kumar Goel, CP 5 Sudhir Agarwal, JM Dinesh Kumar Singh, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM November 22, 2022 Review Application No. 07/2022 (WZ) IN Original Application No. 124/2017 (WZ) I.A. No. 156/2022, I.A. No. 158/2022 & I.A. No. 173/2022 DV 6