National Green Tribunal
Rajamal Gurjar vs State Of Madhya Pradesh & Ors. Through ... on 26 September, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH AT BHOPAL (MADHYA PRADESH)
ORIGINAL APPLICATION NO. 35/2023(CZ)
IN THE MATTER OF:
RAJAMAL GURJAR
S/o Shri Gabjilal Gurjar
R/o Gram Dhulvan,
Tehsil Khategaon,
District Dewas
Madhya Pradesh
...Applicant(s)
Versus
1. STATE OF MADHYA PRADESH
Through District Collector,
District Betul,
Collectorate Campus,
Kothi Bazar, Betul,
Madhya Pradesh-460001
2. SUB-DIVISIONAL MAGISTRATE,
Multai, District Betul,
SDM Office, Multai, Betul,
Madhya Pradesh-460661
3. DIRECTORATE GENERAL OF MINES & SAFETY (DGMS)
Through Director,
Regional Office,
Near Metereological Department,
Bahatarai Road, Bilaspur,
Chattishgarh-495006
4. CENTRAL POLLUTION CONTROL BOARD
Through Zonal Director,
E-5, Paryavaran Parisar,
Arera Colony, Bhopal
Madhya Pradesh-462016
5. SUPERINTENDENT OF POLICE,
District Betul,
Kalapath Road,
Vikas Nagar, In Front of Hanuman Mandir,
Betul
Madhya Pradesh-460001
1
6. GRAM PANCHAYAT
Through Sarpanch
Village Narkhed,
District Betul
Madhya Pradesh-460661
7. GRAM PANCHAYAT
Through Sarpanch
Village Shergarh,
District Betul
Madhya Pradesh- 460225
8. GRAM PANCHAYAT
Through Sarpanch
Village Prabhatpattan,
District Betul
Madhya Pradesh-460669
9. GRAM PANCHAYAT
Through Sarpanch
Village Ambhori,
Gram Panchayat Somghad
Multai, District Betul,
Madhya Pradesh- 460660
10. GRAM PANCHAYAT
Through Sarpanch
Village Deogaon,
Gram Panchayat Devgaon
Multai, District Betul,
Madhya Pradesh-460660
11. GRAM PANCHAYAT
Through Sarpanch
Village Mangonakala,
Gram Panchayat Mangonakala Multai,
District Betul,
Madhya Pradesh-460660
12. ICEM ENGINEERING COMPANY PVT. LTD.
Through Director
Head Office: Anand Industries Compound,
Raghunath Nagar, Thane (W)
Maharashtra-400601
Bonding Site: Metal Cladding Division at Post Ambhori,
Taluk A Multai,
District Betul,
Madhya Pradesh-460661
...Respondent(s)
2
Counsel for Applicant(s):
Ms. Diksha Chaturvedi, Advocate
Counsel for Respondent(s):
Mr. Saurabh Kulkarni, Advocate for R-12
Mr. Sachin K. Verma, Advocate for R-5
Mr. Hemant Sable, Advocate for R-6 to 11
Ms. Shikha Singh Chouhan, Advocate for R-4
Mr. Gaurvanvit Jain, Advocate for MPPCB
Mr. K.N. Katare, RO, MPPCB, Chhindwara,
Mr. Yas Tiberwala, ICEM
CORAM:
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Reserved on: July 27, 2023
Pronounced on: September 26, 2023
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This Original Application (hereinafter referred to as 'OA') under Sections 14, 15 and 18 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010') has been filed by Rajamal Gurjar, resident of village Dhulvan, Tehsil Khategaon, District Dewas (State of Madhya Pradesh), stating that he visited Tehsil Multai, District Betul where he observed that respondent 12 i.e., ICEM Engineering Company Pvt. Ltd. (hereinafter referred to as 'Proponent') is causing damage to environment by carrying out blasting activities using explosives in the area which is in vicinity/proximity of several villages. Registered office of proponent is at Anand Industries Compound, Raghunath Nagar, Thane (W), State of Maharashtra but its working unit is at village Ambhori, Tehsil Multai, District Betul, State of Madhya Pradesh.
2. Proponent is engaged in metal cladding and bonding of metal sheets using explosives. Activities of proponent are causing adverse impact on six villages namely, Narkhed, Sherghad, Deogaon, Prabhatpattan, Somgarh 3 and Mangonakala of Tehsil Multai, District Betul.
3. The process of bonding metal sheets using explosives involves the placement of high explosives between metal surfaces that are prepared by cleaning and roughening. An initiator or detonator initiates an explosion that generates a shock wave, causing the metal surfaces to deform and collide, creating a metallurgical bond. The heat generated fuses the metal together, creating a strong bond. Explosion Bonding is performed in a remote isolated area. Explosive is ignited at the Centre using a high velocity Booster. Detonations travel away from the initial point & across the Plate surface at the specified detonation rate. Clad sheet collides with base Plate at a specific velocity and impact angle. Pressure is created at the immediately approaching adjacent surface which are sufficient to take away thin layer of metal from each surface and eject it away in a jet. Thin layer of Macro fusion is formed which looks like wavy weld line. At the collision point, the newly created clean Metal surface impact at high pressure of several GPA which forces metals into metallurgical intimate weld contact solidifies across the complete surface. Although there is much heat generated in the explosive detonation, there is no time for heat transfer to the metal. The result is an ideal metal to metal bond without melting or diffusion.
4. Explosion Bonding creates Metallurgical Bond of High Integrity, confined to a narrow weld region and leaves original Dispersion metal or structures, Cold-Working, Precipitation Hardening essentially undisturbed. In other words, explosion bonding process is a cold process in which inherited properties of parent materials do not get disturbed or changed, except developed stress due to cold work which can be pacified by Heat Treatment (Stress Relieving). The process of bonding metal sheets is done by blasting which has the impact of like an earthquake on account 4 of height intensity tremors which can be felt in a radius of 8 kms from the blast site.
5. Continuous blasting caused by respondent 12 in its industrial activities has caused structural damage to the houses at nearby villages creating cracks in walls and ceilings; the explosion is creating vibrations affecting Wardha Reservoir; chemicals and pollutants hitch in the reservoir water contaminating it making unsuitable for consumption by livestock and humans, also leading to health issues.
6. Hazardous effect and environmental damaging activities caused by proponent were complained by villagers through representations and letters sent to various authorities but no action was taken. Proponent is carrying out blasting activities without proper safeguards; requisite statutory permissions have not been obtained from the concerned authorities; villagers had gone to the extent of protesting against blasting activities surrounding the office of Sub-Divisional Magistrate, Multai, District Betul but nothing proceeded further; Hariram Nagle, Member of Panchayat, Betul sent a representation dated 08.03.2021 to Chief Minister of Madhya Pradesh raising grievance of the entire village and requesting to stop operations of respondent 12 but this has also not resulted into any effective action on the part of Administration; Additional District Magistrate, Betul passed an order dated 08.04.2021, directing Superintendent of Police, Betul and Sub-Divisional Magistrate, Betul to investigate into the matter and submit a report but no such report has been submitted; Wardha Reservoir is just 2 kms away from the Bonding Site and blasting activities carried out by proponent are degrading the water quality causing sediment, debris and other materials to be stirred up in the water; noise produced by blasting is causing stress and disruption to animals in the area and also affecting wildlife habitats which 5 are close to the Blasting Site; blasting for the purpose of metal cladding and bonding metal sheets is also having a significant impact on ground water level in the surrounding area; and force of blast is creating fractures and fissures in the rock formations that hold ground water, causing water to seep out at a faster rate which is leading to depletion of ground water level at a fast rate potentially affecting availability of water for local communities and wildlife.
7. Applicant with the backdrop of the above facts, has prayed that blasting activities of proponent be directed to be stopped with immediate effect; environmental damage caused by proponent be directed to be restored/remediated and huge environmental compensation be levied and imposed on the proponent.
8. Tribunal's order dated 23.05.2023: Tribunal taking cognizance of the complaint, found it appropriate to obtain a factual report, hence constituted a Joint Committee comprising (i) District Magistrate/Collector, Betul (M.P.) or his representative, (ii) One representative from Directorate General of Mines Safety (hereinafter referred to as 'DGMS'), Bilaspur (Chhattisgarh), (iii) One representative from Central Pollution Control Board (hereinafter referred to as 'CPCB') and (iv) One representative from Madhya Pradesh Pollution Control Board (hereinafter referred to as 'MPPCB').
9. Committee was directed to visit the place and submit factual and action taken report within six weeks.
JOINT COMMITTEE'S REPORT:
10. Pursuant to Tribunal's order dated 23.05.2023, Joint Committee inspected the site on 06.07.2023 and has submitted a Report. It is said that process of industry involves bonding of metal sheets using high 6 explosives which are placed on the top layer of metal surfaces and initiator or detonator initiates an explosion that generates a shock wave, causing metal surfaces to deform and collide, creating metallurgical bond. Heat generated fuses metal together, creating a strong bond. Explosive welding or cladding is usually performed on relative thick plates by means of a large scale parallel plates set-up. Several explosive welding configurations were developed mainly in 1960's and 1970's for their potential use in modern industrial applications. Explosive cladding is used to make special bimetallic heat exchanger tubes for protection of electrodes that are used in electrolysis. Explosive line and seam welding are important bonding techniques that allow welding of both, similar and dissimilar metal plates and sheets. In case of manufacturing of tubes, bonding occurs over a small overlapping fraction of the two surfaces which require only a small amount of explosive (for example, 5 g/m for line welds in thin ductile sheets). Explosive foil cladding is also used as an alternative coating technique. Process involved in the present unit i.e., respondent 12 includes bonding of two Metal sheets, one of Mild Steel and one of Stainless Steel, which include heavy cladding using 180-200 kg clad powder at a time.
11. Report says that the unit of respondent 12 commenced its functioning in 2015. It applied for Consent to Operate (hereinafter referred to as 'CTO') on 26.10.2018 which was granted on 22.11.2018 under the category of 'Red Small Industry' with a validity period till 31.10.2023 under Section 25 of Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act, 1974') and Section 21 of Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Air Act, 1981'). Details of production capacity and produce given in CTO are as under:
7
Product Production Capacity
Captive Power Generation by DG Sets 50 KWH/ 60 KVA
General Fabrication 15000 TPA
Manufacturing of metal clader powder 180 TPA
(a mixture of Ammonium Nitrate, TNT &
Salt)
Metal Cladding 15000 TPA
12. Representatives of industry informed the Committee that unit is functioning in two parts as under:
"1. Pre bonding shop, magazine, Ammonium Nitrate Store and process building in 13 acres of own land of industry.
2. Metal cladding process is performed in 63 acres of own land of industry."
13. The unit is located at Ambhori Village, Tehsil Multai, owning an area of 76 acres land. It has two storage sheds for separate storage of Ammonium Nitrate and Tri-Nitro Toluene (hereinafter referred to as 'TNT') and one mixing area. Size of the sheds are as below:
"1. Ammonium Nitrate storage area - 5.93m X 9.43m
2. High Explosive storage area (TNT) - 3.95m X 8.17m
3. Mixing area - 6.74m X10.73m"
14. During the pre-processing of bonding metal plates, a mixture of Ammonium Nitrate, TNT and salt is prepared in a ratio of 44:11:45 which is also known as 'clad powder'.
15. Unit has acquired license from Petroleum and Explosive Safety Organization (hereinafter referred to as 'PESO') for storage of 30000 Kg of Ammonium Nitrate at a time and 9,36,000,00 kg per annum with validity till 31.03.2025. It has also obtained a license from PESO for usage of 600 MT metal cladding powder per annum with a validity up to 31.03.2024.
16. As per the conditions of CTO, daily quantity of outfall limit of trade effluent is 0.050 KLD and daily quantity of sewage outfall is restricted at 8 1.500 KLD. Committee has recorded its observations as under:
"Observations • No record maintenance log book for water discharge has been provided by the industry to the team. While inspection, it was observed that the red coloured effluent generated against floor washing and washing of mixer in which explosive clad powder is prepared, is discharged in the open area without any treatment. As per the consent conditions, the effluent generated from washing of mixer/ other containers are covered under Effluent Treatment. Sample of the effluent has been collected for detailed investigation-
o Result of effluent sample is annexed as Annexure-1 o Sewage water discharge report given by industry is annexed as Annexure -2 • No Septic tank/ soak pit was observed during visit, while as per CTO adequate facility of sewage treatment shall be made for domestic purpose.
• The metal cladding pit (cladding site) is situated at about 2 km from the preparation site, is surrounded by soil dump of 18m height. As per the conditions of the CTO Dust suppressor, green belt, water sprinkler and a soil dump of 12 m height is recommended to maintain acoustic condition. But as per actual no water sprinkler was observed, though the area is mainly surrounded by forest and agriculture land, lack of Green belt around the pit was observed.
• During inspection of villages no severe cases of cracks were found as reported in the petition.
• Ambient air quality monitoring was performed and the results of the prescribed parameters PM10, PM2.5, SO2 and NOx areas follows-
o Result of Air Quality Monitoring Report is annexed as Annexure-
3.
ICEM Engineering co. Pvt. Ltd. Distt. Betul
Analysis Report of Air
S. Name of location Near Near Near
N. Cladding Main Claddin
Unit Gate g Site
1 Parameter Unit Test Range of Result
Analyzed Method Testing
2 Nox- Amb MICRO/ IS:5182 30-80 9.53 10.8 13.34
M³ (Part- 6) µg/M³
9
3 RSPM MICRO/ IS:5182 60-100 36.36 38.35 51.6
(PM10- M³ (Part- µg/M³
Amb) XXIII)
4 SO2- Amb MICRO/ IS:5182 20-80 1.25 2.91 2.5
M³ (Part- µg/M³
XXIII)
5 RSPM MICRO/ IS:5182 40-60 12.63 12.48 -
(PM2.5- M³ (Part- µg/M³
Amb) XXIV)
As per above all the parameter found within the prescribed limit • Noise monitoring was also performed at the cladding site and at the nearest village Somgarh situated at an Arial distance of 2.13 Kms. Samples collected during before cladding, during cladding and after cladding. The maximum result found at the nearest point from the cladding site i.e. at a distance of 200 m was recorded as 106 db and at the same time it was recorded as 63.4 db at village Somgarh. On an average 06 cladding take place per day using Approx 1100 kg of explosive (Approx. 170-200 kg at a time as per requirement). Result of noise are as follows:
o Result of Noise Monitoring Report is annexed as Annexure-4."
xxx.....................................xxx................................xxx • As per CTO condition 75 db sound is permissible within the premises and as per the prescribed limit of ambient noise, the minimum level must be 70 db and maximum level must be 110 db as per WHO Guideline for noise level for industrial area. o WHO Guideline for noise level for industrial area is annexed as annexure-5 • During cladding 200 liters of water is poured on the top of the layer of explosive, for maintaining acoustic condition. It was observed that the effluent generated after cladding process was splashed nearby and it is drained with the help of two pipes to the open areas outside in an uncontrolled manner. It is recommended that the effluent must be collected and sent to the main site for proper treatment.
• An earthen reservoir (Wardha reservoir) is situated at about 4 km away from the cladding site. As per complainant, cracks were reported, but during visit no cracks were observed. Question also raised regarding the deterioration of water quality due to the Tremors of cladding. To investigate this water sample was collected from the reservoir. Analysis report is present on the tables. 10
o Result of Wardha reservoir Water Monitoring Report is annexed as annexure -6 • During visit to the villages mentioned in the petition, the team interrogated local people about their problem in presence of SDM and Tehsildar, panchnama was also being submitted in support of the same. No specific problem was reported by the villagers. Copy of panchnama is being annexed as Annexure - 7 • It was also alleged in the petition that the ground water quality is also being affected by the frequency of cladding. In support of the same ground water samples were also collected from all 06 villages and the analysis result of the ground water is as follows- o Result of Ground Water Monitoring Report is annexed as annexure-6.
Analysis Results of Effluent samples collected:
Name of Untreated Untreated Untreated Untreated Natural Limit location Water Water Water Waste Water as per Sample, Sample, Sample, Water Sample CTO near Outlet Outlet collected of issued Cladding/ from from from Wardha by Cladding Cladding Cladding Explosive Dam MPPCB Site Site Unit Site Unit Preparati 1 2 on Site Parameter Analysed pH 6.71 7.36 7.21 6.38 7.36 5.5-9.0 Chloride 37.6 23.7 25.7 26.73 12.87 1000 mg/l Total 416.0 314.0 324.0 539.0 281.0 -
Solids Dissolved 373.0 263.0 265.0 471.0 247.0 2100 Solid mg/l Suspended 43.0 51.0 59.0 68.0 34.0 100 Solids mg/l B.O.D. 3.3 2.3 2.4 5.0 1.8 30 (3 day's mg/l at 27 °C) C.O.D. 16.0 17.0 18.0 28.0 10.0 250 mg/l
17. Committee has then proceeded to give its recommendations as under:
"Recommendations ▪ Industry shall arrange the industrial waste water and domestic waste water treatment plant and ensure ZLD (zero liquid discharge) in the premises.11
▪ It is recommended to establish proper setup for treatment of the effluent generated from washing of clad mixture in the mixing area and after cladding from the cladding site also.
▪ The ash generated must be collected and stored in covered shed with pucca flour to prevent any environmental damage.
▪ DG set must be provided with proper vent at prescribed height.
▪ It is also recommended to install digital flow meter to regulate the use of ground water and to prevent discharge of untreated effluent.
▪ Record of each process must be maintained in form of log books.
▪ A seismograph analysis is also recommended during cladding.
▪ Regular monitoring of the parameters included in CTO and submission of quarterly report to MPPCB is also recommended.
▪ It is recommended to provide rain water harvesting system in the plant.
▪ For ground water uses NOC must be obtained from CGWA (Central Ground Water Authority).
▪ It is also recommended to install digital water meter to measure the flow of extracted ground water.
▪ Proper acoustic condition must be maintained. It is recommended for more plantations around the cladding side of those trees which are able to protect sound from penetrating."
Reply dated 14.07.2023 filed by CPCB (respondent 4):
18. In general, it is said by CPCB that consent is granted by MPPCB and, therefore, the question, whether consent conditions are being complied or not, is to be verified by officials of MPPCB. CPCB has no role in the matter. However, it is said that prescribed primary water quality criteria for bathing water was notified by Ministry of Environment, Forest and Climate Change (hereinafter referred to as 'MoOEF&CC') vide G.S.R. 742(E) dated 25.09.2000, whereunder, revised criteria are as under: 12
"Table 1 PRIMARY WATER QUALITY CRITERIA FOR BATHING WATER (Water used for organised outdoor bathing) CRITERIA RATIONAL
1. Fecal Coliform 500 (desirable) To ensure low sewage MPN/100 ml: 2500 (Maximum contamination. Fecal Permissible) coliform and fecal streptococci are considered as they reflect the bacterial pathogenicity.
2. Fecal 100 (desirable) The desirable and Streptocpcco 500 (Maximum permissible limits are MPN/100 ml: Permissible) suggested to allow for fluctuation in environmental conditions such as seasonal change, changes in flow conditions etc.
2. pH: Between 6.5-8.5 The range provides protection to the skin and delicate organs like eyes, nose, ears etc. which are directly exposed during outdoor bathing.
3. Dissolved 5 mg/l or more The minimum dissolved Oxygen: Oxygen concentration of 5 mg/l ensures reasonable freedom from Oxygen consuming organic pollution immediately upstream which is necessary for preventing production of anaerobic gases (obnoxious gases) from sediment.
4. Biochemical 3 mg/l or less The Biochemical Oxygen Oxygen Demand of 3 mg/l or less demand of the water ensures 3 day, 27 °C:
reasonable freedom from oxygen demanding pollutants and prevent production of obnoxious gases";13
19. With regard to noise caused by proponent, it is said that Ambient Noise Standards have been prescribed under Schedule II of Environment (Protection) Rules, 1986 (hereinafter referred to as 'EP Rules, 1986') whose adherence has to be assured by the authorities like District Administration and/or MPPCB. With regard to wildlife habitat, Forest Department of Government of Madhya Pradesh is appropriate authority to reply. With regard to complaint of ground water level in surrounding area, CPCB has said that Central Ground Water Board (hereinafter referred to as 'CGWB') is the appropriate authority who has to submit reply. Therefore, in general, CPCB has denied any of its role and states that it is an authority unconcerned with the issue. It is MPPCB and District Administration who has to submit appropriate reply. Reply dated 18.07.2023 filed on behalf of Superintendent of Police, District Betul (respondent 5):
20. Preliminary objections have been raised that application is in the nature of pro-bono public and applicant seems to be a busy body, a got-up litigant having no direct connection with the subject matter and does not satisfy the guidelines required for filing a Public Interest Litigation (hereinafter referred to as 'PIL'), as laid down by Supreme Court in State of Uttranchal vs. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402. On the merits, it is said that respondent 5 got inquiries conducted and found that there is no damage due to alleged blasting activities in or around villages; Proponent is providing employment to about 150 employees/labours; not doing any mining activities and even residential houses are provided to the employees located at the distance of 700 meters from blasting area which have glass windows and there is no adverse impact of blasting activities in the last years; proponents has constructed two man-made talabs adjacent to the plant and third talab is under construction; proponent has obtained various clearances, permissions 14 and No Objection Certificate (hereinafter referred to as 'NOC') from various authorities and had produced 23 such permissions/authorisation to respondent 5 to demonstrate that it is conforming to all statutory requirements and there is no violation.
Reply dated 19.07.2023 filed by proponent (respondent 12):
21. In the preliminary objections, it is said by proponent that applicant has nowhere demonstrated damage, if any, caused to the property and no environmental pollution is demonstrated to have caused on account of the activities carried out by proponent; applicant has no locus-standi to maintain this application and it also does not give rise to any 'substantial question relating to environment' which is the condition precedent for invoking jurisdiction under Section 14 of NGT Act, 2010. Supreme Court in State of UP vs. Uday Education and Weifare Trust has held that Tribunal should consider bona-fide of the litigant approaching Tribunal.
22. With regard to Tribunal's order for constituting Joint Committee, proponent has said that Committee was constituted vide ex-parte order dated 23.05.2023 without giving any notice or opportunity to proponent, hence it deserves to be recalled as it is in violation of principle of 'natural justice'. The plant was set up by proponent for manufacturing explosion bonding of Clad Plates. It was granted CTO under Section 25 of Water Act, 1974 and Section 21 of Air Act, 1981 by MPPCB, Bhopal vide order dated 22.11.2018. Several conditions were mentioned in CTO. Some of the conditions relevant for the present purpose are reproduced as under:
"Conditions pertaining to Water Act, 1974:
2. Trade Effluent Treatment: (if any) The applicant shall provide comprehensive effluent treatment system as per the proposal submitted to the Board and maintain the same properly to achieve following standards:15
pH Between 5.5-9.0
Suspended Solids Not exceed 100 mg/l
BOD 3 Days 27°C Not exceed 30 mg/l
COD Not exceed 250 mg/l
Oil and grease Not exceed 10 mg/l
TDS Not exceed 2100 mg/l
Chloride Not exceed 1000 mg/l
3. Sewage Treatment: Adequate Septic tank & Soak Pit.
Sr. Water Code (Qty. in WC: WWG: Water Remark
No klpd-Kilo Ltr per 23.000 1.550 Source
Day)
1 Domestic Purpose 2.000 1.500 Bore
Well
2 Floor/Utensils 0.050 0.050 Bore Washing of
Washing Well Mixer,
Containers
etc.
3 Others.... 0.950 0.000 Bore For laying
Well water
cover over
explosive
layer.
4 Plantation/ 20.000 0.000 Bore
Horticulture Well
4. The effluent shall be treated up to prescribed Standards and reuse in the process, for colling and for green belt development/gardening within premises. Hence zero discharge condition shall be practiced. In no case treated effluent shall be discharged outside of industry/unit premises.
7. All treatment/control facilities/systems installed or used by the applicant shall be regularly maintained in good working order and operate effectively/efficiently to achieve compliance of the terms and conditions of this consent.
8. The specific effluent limitations and pollution control systems applicable to the discharge permitted herein are set forth as above conditions.
9. Compilation of Monitoring-
i. Samples and measurements taken to meet the monitoring requirements specified above shall be representative of the volume and nature of monitored discharge.
ii. Following promulgation of guidelines establishing test procedures for the analysis of pollutants, all sampling and analytical methods used to meet the monitoring requirements specified above shall conform to such guidelines unless otherwise specified sampling and analytical methods shall 16 conform to the latest edition of the Indian Standard specifications and where it is not specified the guidelines as per standard methods for the examination of Water and Waste latest edition of the American Public Health Association, New York U.S.A. shall be used.
iii. The applicant shall take samples and measurement to meet the monthly requirements specified above and report online through XGN the same to the Board.
10. Recording of Monitoring:
i. The applicant shall make and maintain online records of all information resulting from monitoring activities by this Consent.
ii. The applicant shall record for each measurement of samples taken pursuant to the requirements of this Consent as follows:
(i) The date, exact place and time of sampling
(ii) The dates on which analysis were performed
(iii) Who performed the analysis?
(iv) The analytical techniques or methods used and
(v) The result of all required analysis
iii. If the applicant monitors any Pollutant more frequently as is by this Consent he shall include the results of such monitoring in the calculation and reporting of values required in the discharge monitoring reports which may be prescribed. by the Board. Such increased frequency shall be indicated on the Discharge Monitoring Report Form.
iv. The applicant shall retain for a minimum of 3 years all records of monitoring activities including all records of Calibration and maintenance of instrumentation and original strip chart regarding continuous monitoring instrumentation. The period of retention shall be extended during the course of any unresolved litigation regarding the discharge of pollutants by the applicant or when requested by Central or State Board or the court.
Conditions pertaining to Air Act, 1981:
1. The applicant shall provide comprehensive air pollution control system consisting of control equipments as per the proposal submitted to the Board with reference to generation of emission and same shall be operated & maintained continuously so as to achieve the level of pollutants to the following standards:17
Name of Capacity Stack Fuel Control equipment Prescribed section height to be installed Standards (mtrs) D.G. 62 KVA 3 HSD Acoustic Enclosure, PM-0.20 Sets Muffler g/kw-hr NOx-9.20 g/kw-hr HC-1.30 g/kw-hr CO-3.50 g/kw-hr Metal - - - Dust Suppressor, PM10-100 Cladding Green Belt, Water microgra Pit Sprinkler, 12m high m/m3 at soil dump all periphery around the Metal of factory Cladding Pit premises
2. The applicant shall observe the following fuel pattern:
Name of fuel Quantity H.S.D. 5 Lt/Hr.
2. Ambient air quality at the boundary of the industry/unit premises shall be monitored and reported to the Board regularly on quarterly basis: The Ambient air quality norms are prescribed in MoEF gazette notification no. GSR/826(E), dated: 16/11/09. Some of the parameters are as follows:
a. Particulate Matter (less than 10 micron) - 100 µg/m3 (PM10 µg/m3 24 hrs. basis) b. Particulate Matter (less than 2.5 micron) - 60 µg/m3 (PM2.5 µg/m3 24 hrs. basis) c. Sulphur Dioxide [SO2] (24 hrs. Basis) - 80 µg/m3 d. Nitrogen Oxides [NOx] (24 hrs. Basis) - 80 µg/m3 e. Carbon Monoxide [CO] (8 hrs. Basis) - 2000 µg/m3
3. The industry shall take adequate measures for control of noise level generated from industrial activities within the premises less than 75 dB(A) during day time and 70 dB(A) during night time.
4. The industry/unit shall make the necessary arrangements for control of the fugitive emission from any source of emission/section/activities.18
Additional Air Conditions:
(1) The industry shall install appropriate air pollution control equipment/arrangement at all points of particulate matter emission during stone crushing operation and shall ensure that these are always kept running & in good working order all the time. In case of any failure it shall be immediately rectified or same alternative arrangement shall be made.
(2) Noise from D.G. Set shall be controlled by providing an acoustic enclosure & a proper exhaust muffler.
(3) The acoustic enclosure and exhaust muffler shall be designed for minimum 25 dB(A) Insertion Loss or for meeting the ambient noise standards, whichever is on the higher side.
(4) Installation of D.G. Set must be strictly in compliance with the recommendation of the D.G. Set manufacturer."
23. Respondent 12 started its business in 1964 and created several employment opportunities in India. It is employing more than 200 people. It is a leading manufacturer of Explosion Bonded Clad plates and Dished- ends. It has two facilities, one at Palghar (State of Maharashtra) and another at Multai (State of Madhya Pradesh). The products of proponent are used by Petrochemical, Oil and Gas, Chemical, Infrastructure, Steel, Space, Power and Fertilizer industries. Business of proponent has expanded globally and it is supplying Explosion Bonded Clad Plates and Dished-ends to Bahrain, Egypt, Indonesia, Kuwait, Malaysia, Oman, Saudi Arabia, Singapore, South Africa, Thailand and UAE. Export is a major component of the business of proponent constituting around 70% of turnover. The present facility at Tehsil Multai, District Betul commenced its operation in 2016. Proponent has all requisite permissions and consents etc. It received explosive NOC from District Magistrate under Explosive Rules, 2008 from District Magistrate, Betul vide certificate dated 18.09.2014 permitting mixture of Amonium Nitrate + TNT + Salt of the quantity of 600 kgs in a day. Further, NOC under Explosive Rules, 2008 19 was issued by District Magistrate, Betul on 04.06.2015 for storage of the following kinds and quantities of explosives:
"Kinds and quantitates of explosive:
Name of Class Div. Quantity (at
explosives any one time)
(a) TNT - - 1500 Kgs.
(b) Detonators- 6 3 2000 Nos.
ED
(c) D.F. 6 2 1500 Mtrs.
(d) PETN/cast 3 1 500 Kgs.
booster
(e) Plastic - - 100 Kgs.
explosive
24. From Gram Panchayat, Somdar, proponent received NOC on 05.03.2013 and from Gram Panchayat, Narkhed, it received NOC on 24.09.2013. Certificate of Competency to carry out blasting of explosive in the area was issued under Mines Act, 1952 from 30.06.2021 and valid for 5 years.
25. The nearest village from the location of the proponent is at a distance of 2.1 km. Proponent has not caused any damage to property, environment and ground water etc. as alleged and the authorities responsible for regulation and monitoring have also, not ever, found reason to initiate any action against the proponent. Under specific heads, on the complaints of air pollution, noise pollution etc., proponent in para 26 has given its response in the form of a chart as under:
Sr. Claim Response
No.
1 It is releasing harmful The Respondent No.12 has the Gases and particles required pollution licenses for the work being carried out. The explosion does not create any harmful gases or particles.
2 Air Pollution The Respondent No.12 has the required pollution licenses for the work being carried out. The explosion 20 does not create any harmful gases or particles.
3 Noise Pollution The noise caused due to explosion bonding in well within the prescribed limits. The report is already produced on record.
4 Metal scrap and debris Metal sheets are bonded to each causing land pollution other, so scrap generation in this process is insignificant.
5 Risk of accidents Not a single accident has been recorded at our site since January 2016. The work is done in an extremely controlled environment and with all the safety procedures laid out by the government.
6 Structural Damage The vibration caused due to explosion bonding in well within the prescribed limits. No cracks were observed in the walls and mirrors in our owned buildings that are 500 meters away from the blasting site.
7 Day after day The Respondent No. 12 is carrying impacting causes out Production (blasting) at site adversely environment since January 2016 to till date, but not a single incident happened at our site, and we are contributing towards environment by preparing water supply system (through pond) for nearby plants. There is no adverse effect on nearby environment by this blasting activity at all.
8 Wardha Reservoir No chemicals are released in the
contaminated by Wardha Reservoir as a result of
chemicals and the activity of the Respondent
pollutants No.12.
9 Groundwater Level The vibration caused due to explosion
bonding in well within the prescribed
limits. The groundwater is not
affected by this activity.
26. ARGUMENTS: Learned Counsel for applicant submitted that discharge of effluent without any treatment on open land has been verified by Joint Committee. With regard to air pollution also, conditions of CTO have not been complied with in as much as dust suppressor, green belt, water sprinkler, soil dump of 12 meters height to maintain acoustic 21 condition have not been provided by proponent. Further, it is said that noise pollution at a distance of 200 meters was recorded as 106 db yet joint inspection team in an illegal manner, has referred to WHO guidelines in this regard instead of following Noise Pollution Rules, 2000 which provides maximum permissible noise standards and the noise caused in the present case exceeds such permissible limits. It shows that joint committee has prepared report more with an eye to favour the proponent instead of giving an objective, impartial, independent and correct report.
27. Learned Counsel for proponent on the contrary submitted that it is not violating any environmental laws and norms and, therefore, no action is required to be taken. The minor irregularities and violations noted in the inspection report of joint committee shall be taken care by proponent by making necessary arrangement within a short time.
28. No other Counsel has advanced any oral submissions and they have simply said that Tribunal may take appropriate view in the matter and issue appropriate directions.
DISCUSSION ON MERITS:
29. We have heard Learned Counsels and perused record including relevant technical information, statutory provisions and relevant judicial precedents.
30. In the present case, proponent is engaged in the industrial activity, known as 'Explosion Bonding' or 'Explosion Cladding' or 'Explosion Welding', which is a technically based industrial welding process. The process uses an explosive detonation as the energy source to produce a metallurgical bond between metal components. Explosion bonding is a solid-state welding process. Here, two different metals are forged together under high pressure (using controlled explosive energy).22
31. Proponent is using Trinitrotoluene (also known as 'TNT') which is a high velocity explosive material. TNT is a highly toxic explosive contaminates soil and water. TNT particles can dissolve and spread with time causing soil and water contamination. Impact of explosives on human health are numerous including skin irritation, hepatomegaly, splenomegaly, cataract, cancer, anemia and lever function. TNT is a solid material, yellow, odorless and not found naturally. It is manufactured via aggregation of nitric acid (HNO3) and Sulfuric acid (H2SO4) with toluene (C6H5CH3). It is a nitro aromatic compound highly explosive six membrane and it is solid crystal material at room temperature and yellow colour. It is considered as a nitro caramel explosive which edited to the soil and water in the eco-system due to its high use. TNT and its derivatives have a high toxicity mutagen for prokaryotic and Eukaryotic at the same time. Use of TNT as a mixture with ammonium nitrate commonly called 'Amatol' is well known industrial explosive application.
32. Proponent is also using 'ammonium nitrate' which is a mid-low velocity explosive material. An explosive material may be solid, liquid or gaseous that can cause a sudden, almost instantaneous release of pressure, gas, and heat when subjected to shock, pressure, or high temperature.
33. Ammonia Nitrate is a widely used chemical compound with several important applications. It is used as fertilizer, and as explosive in mining where it is mixed with fuel oil and detonated by an explosive charge. It is also used in industries. Nitrogen is a key compound of the two parts of the compound i.e., NH4 (ammonium) and NO3 (nitrate). Due to dual existence of Nitrogen in both the parts of the compound and that too in such a figuration that plants can access Nitrogen directly from the Nitrate form of the compound, Ammonium fraction can also be gradually converted to 23 Nitrate by soil microorganism. These properties make Ammonium Nitrate a popular choice for Vegetable Growers. Animal farmers use Ammonium Nitrate for pasture and hay fertilization. It is highly soluble. However, the other characteristic of Ammonium Nitrate is that it per se dangerous since highly explosive. It serves as an important component in explosive mixtures used for mining, quarrying and civil construction etc. Ammonium Nitrate is made by the reaction of Ammonia with nitric acid in water followed by careful evaporation of water to yield a solid element. The chemical reaction/process is demonstrated as under:
"NH3 + HNO3 → NH4NO3"
34. Ammonia is usually derived from atmospheric nitrogen and nitric acid is prepared from combustion of ammonia. Manufacturing of Ammonium Nitrate occurs in an aqueous solution since reaction produces a significant amount of heat. Despite several studies, exact mechanism of decomposition and explosion are still not very clear but following reaction has been hypothesized as the main detonation reaction:
"2NH4NO3 → 2N2 + O2 + 4H2O"
35. One reason that Ammonium Nitrate is so explosive is that it contains, in the same molecule, both, a fuel, in the form of the ammonium ion, and a strong oxygen- producing agent, Nitrate. As decomposition occurs, heat is produced which initiates detonation and, as an oxygen source is already present, combustion accelerates rapidly. The result is production of nitrous oxides, oxygen, water, and large amount of heat and kinetic energy. These products cause an expansion in volume one thousand times greater than the initial volume of ammonium nitrate, leading to catastrophic blast damage in the surrounding area.
36. The environmental damage is caused due to release of noxious gases 24 including Nitrogen Oxide, Ammonia and Carbon Monoxide. When Ammonium Nitrate explodes, it causes chemical pollution. Nitrogen Oxide present in air irritate respiratory system. Nitrogen Dioxide is a red, bad smelling gas. Ammonium Nitrate is a Hazardous substance under the provisions of Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016 (hereinafter referred to as 'HOWMTM Rules, 2016').
37. In hazardous substance fact sheet of New Jersey Department of Health, it is mentioned that Ammonium Nitrate when inhaled by passing through skin contact; can irritate and burn the skin and eye; inhaling Ammonium Nitrate can irritate nose, throat and lungs and high levels may cause methemoglobinemia with headache, fatigue, and a blue color to the skin and lips.
38. At high enough concentrations Ammonia can be toxic also to aquatic organisms. After release of Ammonia, vapors dissipate reacting with the moisture in the air to form Ammonium and eventuality return to earth in rainfall. It then quickly binds to the negatively charged soil organic matter and soil clays. Its concentration in soil causes various types of injuries to vegetation including nephrosis, growth reduction, growth stimulation and increased frost sensitivity.
39. It has been found where Ammonia level was greater than two hundred micromol/L that it has caused seizures, encephalopathy and even death can occur. In milder cases, symptoms including irritability, headache, vomiting, ataxia and gait abnormalities were noted.
40. Thus, in general, Ammonia occurs naturally in the environment. It is found in relatively low non-toxic concentrations in soil, air and water and provides a source of nitrogen for plants but higher concentration 25 causes toxic effects on human health, soil, vegetation, air and water etc.
41. It is admitted case of the proponent that for the process of bonding metal plates, it is using mixture of Ammonium Nitrate, TNT and salt in the ratio of 44:11:45. The aforesaid mixture by blasting causes bonding effect on the metal plates. It releases gases and the powder residue/inert left after bursting is discharged in the open fields. The impact on air due to release of gases at the time of bursting of the explosive mixture has to be tested at the time of bursting or immediately thereafter and the effect of discharge of residue/inert of the mixture after bursting has to be tested from the soil and water component at the open field where the same is discharged. There is nothing on record to show that MPPCB or Joint Committee or any other Competent Statutory Regulator has checked/tested/analysed the effect of discharge of such residue as also impact on air pollution at the time of blasting or/and immediately thereafter. Usual scheduled water testing has been done without looking into the nature of chemical components involved in the manner. This shows total negligence and recklessness on the part of so called expert Statutory Regulators and their officials in analysing the facts of the case in the light of the nature of chemical components involved in a particular matter. If we look into the general information available in the scientific documents and literature available in public domain, we find that Ammonium Nitrate as also TNT have various toxic effects on soil, water, air and human health.
42. The waste disposal sites of above explosives may contain soil contamination and ground water contamination. It exceeds the particular prescribed level causing ecological damages including health hazardous to the human being. In the present case, it is an admitted position that red coloured effluent generated against floor washing and washing of mixture 26 in which explosive clad powder is prepared, is discharged in the open area without any treatment.
43. Though as per consent conditions effluent treatment facilities should have been provided but it was not. Evidently proponent has violated conditions of consent.
44. The other kinds of pollution noticed by Joint Committee is non- preparation of metal cladding pit/cladding site as per the conditions of CTO in as much as dust suppressor, green belt, water sprinkler, soil dump was not found though it had to provided. Even the effluent generated after cladding process splashed nearby and drained with the help of two pipes to the open areas outside the premises in an uncontrolled manner and no treatment is provided.
45. This is clear violation of section 24 of Water Act 1974, Air Act 1981 and conditions of CTO.
46. Noise pollution ought to be 75 dB maximum while it was found to be 106 dB and thus exceeding the prescribed noise level and causing noise pollution. Here also Committee has played a mischievous role in as much as it has referred to WHO guidelines to justify noise level caused by proponent though under Noise Rules 2000 different standards have been prescribed which are also referred to in CTO but Committee has illegally ignored such condition. We find no hesitation in holding that noise level of 106 db caused by proponent was in excess to the prescribed standard and also violated the standards provided in CTO.
47. We are also dismayed in noticing that the impact of untreated effluent, discharged in open area, has not been examined or analyzed either by Joint Committee or by the official of Statutory Regulator i.e., 27 MPPCB by testing the effluent in respect of concerned metals/chemicals like level of nitrogen and other toxicity caused by explosives and its volume present in the surface soil and ground water etc. To this extent, Report of Joint Committee, therefore, is wanting and does not give a complete picture.
48. Learned Counsel for proponent however submitted that it may be given some time to provide 'Effluent Treatment Plant' (hereinafter referred to as 'ETP') for treatment of industrial effluent it is discharging in open area but could not dispute that in the past and till date it is violating and contravening the provisions of Water Act, 1974 and Air Act, 1981 by discharging untreated effluent in the open area and also by not taking steps for maintaining air pollution and noise pollution in terms of the conditions prescribed in CTO.
49. We, therefore, hold that proponent is continuously, since commencement of its industrial unit, is violating the provisions of Water Act 1974 and Air Act 1981 by causing water and air pollution and is liable to bear legal consequences for such violations, including payment of environmental compensation applying Polluter Pays Principle as repeatedly held in various judicial precedents of Supreme Court.
50. Deprecating damage caused to surface soil/top soil in Rural Litigation and Entitlement Kendra & Others vs. State of U.P. & Others, AIR 1985 SC 652, Court said that over thousands of years, man had been successful in exploiting ecological system for his sustenance but with the growth of population, demand for land has increased and forest growth is being cut down. Man has started encroaching upon nature and its assets. Scientific developments have made it possible and convenient for man to approach the places which were hitherto beyond his ken. Consequences of such interference with ecology and environment had now 28 come to be realised. It is necessary that the Himalayas, and Forest growth on mountain range should be left un-interfered with so that there may be sufficient quantity of rain. With regard to top soil, Court said that "the top soil can be preserved without being eroded and the natural setting of the area may remain intact ...... tapping of (natural) resources have to be done with requisite attention and care, so that ecology and environment may not be affected in any serious way, (and) there may not be any depletion of water resources and long-term planning must be undertaken to keep up the national wealth. It has always to be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation".
51. Court emphasized that preservation of environment and keeping ecological balance unaffected is a task which not only governments but also every citizen must undertake. It is a social obligation and every citizen must remind to himself that it is his fundamental duty as enshrined under Article 51A(g) of the Constitution.
52. In Sachidananda Pandey vs. State of West Bengal & Others, AIR1987SC1109, dealing with the matter pertaining to environment, Court said that whenever a problem of ecology is brought before it, the Court is bound to bear in mind Article 48A and 51A(g) of the Constitution. When a court is called upon to give effect to the directive principles of fundamental duties, it cannot shirk its shoulders and say that priorities are a matter of policy and so it is a matter for the policy making authorities. The least court must give is, to examine whether appropriate considerations are gone in mind and irrelevancies are excluded. In appropriate cases Court could go further but how much further would depend upon the circumstances of the case. Court may always give necessary directions.
29
53. In M.C. Mehta vs. Union of India, AIR1987SC1086 (Sodium gas leak case), issue of gas leak in a chemical factory and its repercussions came to be considered. Court expanded the doctrine of liability by modifying 'strict liability' principle enshrined in Rylands v. Fletcher to 'absolute liability; and said, "enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and residing in the surrounding areas, poses an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken-the enterprise must be absolutely liable to compensate for such harm and it should be not answer to the enterprise to say that it has taken all reasonable care....".
54. Court also said that larger and more prosperous enterprise, greater must be the amount of compensation payable for the harm caused on account of the activity being carried on by the industry.
55. Open space cannot be utilized to cause damage to environment as is being done in the case hand. In Virendra Gaur vs. State of Haryana, (1995)2SCC577, Court said that Government had no power to sanction lease of land vested in municipality for being used as open space for public use. The word 'environment' is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance". It is duty of State and every individual to maintain hygienic environment. State in particular has duty to shed its extravagant unguided sovereign power and to forge in its policy to maintain ecological balance in hygienic environment. Court further said, "Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and 30 preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed, any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water pollution etc. should be regarded as amounting to violation of Article
21."
56. Court also held that hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a human and healthy environment. Court further said "Therefore, there is a constitutional imperative on the State Government and the Municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the manmade and the natural environment."
57. In Indian Council for Enviro-Legal Action vs. Union of India, (1996)3SCC212, Court said that once activity carried on is hazardous or inherently dangerous, a person carrying on such activity is liable to make good, the loss, caused to any other person, by his activity, irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on. It was held that polluting industries are absolutely liable to compensate for the harm caused by them to the people in the affected area, to the soil and to the underground water.
58. 'Polluter Pays' Principle means absolute liability for harm to the environment, not only to compensate victims of pollution but also cost of restoring environmental degradation. Remediation of damaged environment is part of the process of 'sustainable development'. As such, polluter is liable to pay cost to the individual sufferers as well as cost of reversing the damaged ecology.
59. With respect to 'Polluter Pays' principle, Court in Indian Council for Enviro-Legal Action vs. Union of India (supra), in para 65, said that 31 any principle evolved in this behalf should be simple, practical and suit to the conditions obtaining in the country.
60. In Indian Council for Enviro-Legal Action (supra), issue of damage to mother earth by industries producing toxic chemicals was brought to the notice of the Court. It was found that water in wells and streams turned dark and dirty rendering it unfit for human consumption or even for cattle and for irrigation. Court issued various directions which included closure of industries.
61. In Indian Council for Enviro-Legal Action vs. Union of India, (1996)5SCC281, Court justified so called judicial activism in environmental matters and said that even though it is not the function of court to see day to day enforcement of law, since that is the function of executive, but because of non-functioning/apathy of enforcement agencies to implement law for protection of fundamental rights of people, it had no other option but to act for protection of environment and in substance for protection/enforcement of fundamental right of life enshrined under Article 21 to the people of this country.
62. Friedmann in its jurisprudence has said that no law can be imposed on utterly post value community. The best supplement of a good legislation is an informed citizenry and people of country would wake up to the alarming situation of environment (Paryavaran) and take up their responsibilities, environmental legislation would become instruments of social change.
63. We need initiatives from all concerned authorities, agencies and individuals like, Government, legislature, judiciary, educational institutions, voluntary organizations and informed and educated people to create a social awareness about value and valuables of Indian tradition of 32 respect towards nature. Law of Karma introduced law of possession, action, reaction, compensation and requisition. We create our destiny, mould future and determine character by our thoughts and deeds. What we deserve, we got now and what we shall make, receive in future. We may enjoy nature but have no right to exploit it so as to render it unavailable for such use by coming generations. It is against the principle of intergenerational equity.
64. Section 20 of NGT Act, 2010 requires Tribunal to adjudicate the matter by applying precautionary principle, sustainable development and polluter pays. Long back in In Vellore Citizens Welfare Forum vs Union of India & Others (1996)5SCC647, Court held "In view of the Constitutional and Statutory Provisions---, "Precautionary" Principle and "Polluter Pays" Principle are part of the Environmental Laws of our country".
65. Explaining "Precautionary" principle, Court said that it includes (i) environmental measures - by State Government and statutory bodies must anticipate, prevent and attack causes of environmental degradation, (ii) where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing, measures to prevent environmental degradation and, (iii) the 'onus of proofs' is on the actor or the developer/industrialist to show that the action is environmentally benign.
66. "Polluter Pays" principle was interpreted stating that absolute liability for harm to environment extends not only to compensate victim of pollution but also the cost of restoring environmental degradation. Environmental protection and prevention of pollution is primarily function of executive but unfortunately, they have failed.
67. In M.C. Mehta vs. Kamal Nath & Others, (1998)1SCC388, a two 33 Judges' Bench had an occasion to examine, "whether natural resources can be allowed to be used or processed by private ownership for commercial purpose". The background facts giving rise to above issue are, that a news item was published in daily newspaper 'Indian Express', dated 25.02.1996, under the caption "Kamal Nath dares the mighty Beas to keep his dreams afloat". The news item reveals that after encroachment of 27.12 bighas of land which included substantial forest land, in 1990, a Club was built in Kullu-Manali valley by a private company 'Span Motels Private Limited', which owns a resort- Span Resorts. The land was later regularised and leased out to the company on 11.04.1994. At the time of regularisation, Mr. Kamal Nath was Minister of Environment and Forests. The swollen Beas changed its course, engulfed Span club and adjoining lawns, washing it away. Thereafter, management took steps and by using bulldozers and earth-movers, turned course of Beas by blocking flow of river just 500 meters and creating a new channel to divert River to atleast 1 km downstream. Supreme Court took suo-moto cognizance of the matter, and case was registered as W.P. No. 182/1996 under Article 32 of the Constitution. Notices were issued to the company as well as Mr. Kamal Nath. After considering the pleadings and other material, Supreme Court decided vide Judgment dated 13.12.1996 recording a finding that Motel had encroached upon an area of 22.2 bighas adjoining to the lease-hold area. Earlier, 40 bighas 3 biswas land, alongside Kullu- Manali Road on the bank of river Beas, was granted on lease to the above Motel for a period of 99 years with effect from 1.10.1972 to 1.10.2071. Besides above, the motel encroached upon 22.2 bighas of land further. It also built extensive stone, cemented and wire-mesh embankments all along the river bank. Various activities undertaken by motel show a serious act of environmental degradation on its part. Motel tried to defend construction raised by it on the ground that it was to protect lease land from floods. 34 Court held that motel interfered with natural flow of river by trying to block natural relief/spill channel of the river. With regard to river, it was observed that Beas is a young and dynamic river, runs through Kullu valley, between mountain ranges of Dhaulandhar in the right bank, and Chandrakheni, in the left. The river is fast flowing, carry large boulders, at the time of flood. When water velocity is not sufficient to carry boulders, those are deposited in the channel often blocking flow of water. Under such circumstances, the river stream changes its course by remaining within the valley but swinging from one bank to the other. The right bank of river Beas where motel is located, mostly comes under forest; the left bank consists of plateaus, having steep bank facing the river, where fruit orchards and cereal cultivation are predominant. The area is ecologically fragile and full of scenic beauty, should not have been permitted to be converted into private ownership, and for commercial gains. Having said so, Court refers to the right of public to nature and natural resources and said that public has a right to expect certain lands and natural areas to retain their natural characteristic. Court refers to the work of David B. Hunter (University of Michigan) and Professor Barbara Ward where it was stressed upon that major ecological tenet is that the world is finite. Earth can support only so many people and only so much human activity before limits are reached. Absolute finiteness of the environment when coupled with human dependency on the environment, leads to the unquestionable result that human activities will, at some point, be constrained. There is a commonly recognized link between laws and social value but to ecologists, a balance between laws and values is not alone sufficient to ensure a stable relationship between humans and their environment. Laws and values must also contend with the constraints imposed by the outside environment. Unfortunately, current legal doctrine rarely accounts for such constraints, and thus environmental stability is threatened. 35 Historically, we have changed environment to fit our conceptions of property. We have fenced, plowed and paved. The environment has proven malleable and to a large extent still is. But there is a limit to this malleability, and certain types of ecologically important resources-for example, wetlands and riparian forests - can no longer be destroyed without enormous long-term effects on environmental and therefore social stability. Need for preserving sensitive resources does not reflect value choices but rather is the necessary result of objective observations of the laws of nature. Court refers to the legal theory said to be developed in ancient Roman empire, i.e., 'Doctrine of Public Trust' founded on the idea that certain common properties such as rivers, sea- shore, forests and the air were held by Government in trusteeship for the free and unimpeded use of general public. English law as well as American Law on the subject was also referred to and then it is said in para 34 of the Judgment that our legal system includes Public Trust Doctrine as part of the Jurisprudence. State is the trustee of all natural resources which, by nature, are meant for public use and enjoyment. Public at large is beneficiary of the sea- shore, running waters, airs, forests and ecologically fragile lands. State as a trustee, is under a legal duty to protect natural resources. These resources meant for public use cannot be converted into private ownership. Executive, acting under Doctrine of Public Trust, cannot abdicate natural resources and convert them into private ownership or for commercial use.
68. Supreme Court while disposing of Writ Petition issued certain directions contained in para 39 of the judgment which included that the motel shall pay compensation by way of cost for restitution of environment and ecology of the area. Pollution caused by various constructions made by motel in river bed and banks of river Beas has to be removed and 36 reversed. NEERI was directed to inspect the area and make an assessment of the cost, likely to be incurred for reversing damage caused to environment and ecology. Further, motel is also required to show cause as to why it be not imposed pollution fine in addition to cost for restoration of ecology which it had to pay.
69. The casual approach on the part of Statutory Regulators like State PCBs was examined in M.C. Mehta vs. Union of India, (1998)2SCC435 and criticizing the same, Court issued appropriate directions.
70. Liberal attitude of courts in the matter of quantum of punishment in criminal prosecution for offences relating to environmental pollution was criticized in UP Pollution Control Board vs. M/s Mohan Meakins Ltd. & Others, (2000)3SCC745. It was held that courts cannot afford to deal lightly with cases involving pollution of air and water. Courts must share parliamentary concern on the escalating pollution levels of environment. Those who discharge noxious polluting effluents into streams appeared to be totally unconcerned about the enormity of injury which they are inflicting on the public health at large, the irreparable impairment it causes on the aquatic organisms, to deleterious effect it has on the life and health of animals. Court should not deal with the prosecution for pollution related offences in a casual or routine manner.
71. Whenever a complaint is made about degradation of environment, Court applying environmental rule of law ceased to facilitate a multi analysis of the nature and the consequences of damaging act undertaken by violators and in doing so, it brings a shared understand between science, regulatory decisions and policy perspectives in the field of environmental protection. In the last more than 4 decades, the catena of 37 authorities have been handed down by Supreme Court on various aspects of environment and instead of adding volume to this judgment by referring to those authorities, we find it fruitful to refer to certain principles culled out from the above binding precedents as under:
(i) Protection and preservation of environment part of fundamental right to life under Article 21 of the Constitution. It includes right to information and community participation for protection of environment and human health, right to shelter which encompasses adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation, civil amenities like road etc.
(ii) Preservation of environment and maintenance of ecological balance is a social obligation of every person and also a fundamental duty under Article 51A(g) of the Constitution.
(iii) Enjoyment of life and its attainment including right to life with human dignity encompasses within its ambit protection and preservation of environment, ecological balance, pollution free air and water, sanitation, land etc.
(iv) A balance and harmony have to be maintained in development and environment. Hence principle of sustainable development is the determining factor. Universal human dependence on use of environmental resources for the most basic needs render it impossible to refrain from altering the environment. As a natural corollary, environmental conflicts are ineradicable and environmental protection is always a matter of degree, inescapably requiring choices as to the appropriate level of environment protection and the risk which are to be regulated. This aspect is recognized by the concept of 'sustainable development'.38
(v) Principle of sustainable development has certain salient features/subsidiary principles namely use and conservation of natural resources; Precautionary principle; Polluter Pay principle;
intergenerational equity; new burden of proof; obligation to assist and cooperate, eradication of poverty and financial assistance to the developing countries; doctrine of public trust etc.
(vi) Natural resources including forest, water bodies, rivers, seashores, etc. are held by State as a trustee on behalf of people and specially the future generation. These constitutes common properties and people are entitled to uninterrupted use thereof.
(vii) Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs. It is the duty of the State under Constitution to devise and implement a coherent and coordinated programme its obligation of sustainable development based on intergenerational equity.
(viii) Environment is a matter directly under Constitution. Absence of law will not preclude Court from examining issue of environment. If Court perceives any project or activity as harmful or injurious to environment, it would under obligation to step in.
(ix) Precautionary principle is a fundamental tool to promote sustainable development. It provides for action to avert risks of serious or irreversible harm to the environment or human health in the absence of scientific certainty.
(x) State government and statutory authorities must anticipate, prevent and attack the causes of environmental pollution. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
39
(xi) The onus of proof is on the actor or developer or industrialist to show the actions are environmentally benign.
(xii) Polluter Pays principle means absolute liability for harm to environment extends to compensate victim of pollution and cost of restoration of environmental degradation. It cannot be restricted to cost of item/subject/material and/or natural resources like water, minerals, etc.
(xiii) Whenever there is violation of environmental norms and environment is degraded, violators must be saddled with liability of payment of environmental compensation besides undergo other proceedings including prosecution.
72. The above discussion leads to the inference that by discharging untreated effluent which included mixture of explosives like Ammonium Nitrate and TNT besides salt on the open land and also without taking any measures for prevention of atmospheric pollution causing water pollution and air pollution, both, the proponent has violated environmental laws and norms and doing it continuously till date. Air pollution includes discharge of various chemical gases without precautionary steps for prevention of air pollution and also by releasing noise beyond the prescribed limit.
73. Report of Committee to the extent it is contrary to what has been observed hereinabove and also to the extent it is silent on various chemical tests and instead giving a clean chit to proponent cannot be accepted. Why this type of casual or proponent centric report has been given by this Joint Committee is beyond our comprehension except that State Regulator and its officials were responsible for prevention of pollution of environment by proponent but they failed to discharge their statutory obligations and probably to save themselves, this kind of report has been submitted. We 40 deprecate it.
74. However, the other factual verification regarding discharge of industrial untreated effluent on the open land, non-installation of various devices to check air pollution and creating noise beyond permissible limit, the factual observations of the Committee having not being disputed by the proponent, we find the same to be reliable and the same are taken into consideration for further action by this Tribunal. Accordingly, Report is partly accepted.
75. Now the question is the manner in which principle of 'Polluter Pays' is to be applied in the present case so as to determine quantum of environmental compensation payable by applicant. Though proponent had started its operation in 2016 as admitted by it but since this OA was filed in 2023, we only take into consideration last 5 years for the purpose of computing environmental compensation.
76. Record shows that the mixture of Ammonium Nitrate to the extent of 600 kg per day is/was being used by proponent for Explosion Bonding Clad sheets manufacturing process. The ratio of 3 chemicals is 44:11:49 meaning thereby, 600 kg mixture comprised of 264 kg of Ammonium Nitrate and 66 kg of TNT besides 270 kg of salt i.e., Sodium Chloride (NACL).
77. The toxic effects of Ammonium Nitrate and TNT have been discussed above. We may also place on record that TNT is prepared by mixing Tolune with Nitric Acid and Sulphuric Acid. Both these acids are highly corrosive. Excessive discharge of sodium chloride in the soil renders it highly saline and thereby make it unfit for vegetation and agriculture. It is said that top- soil though generally considered to be not of much value but scientifically and otherwise, it is very precious and once damaged, its restoration takes 41 several decades and sometimes hundred years and more.
78. It is, in this backdrop, we have to consider the question of quantum of environmental compensation to be imposed upon the proponent i.e., respondent 12.
Principle for Computation of Environmental Compensation:
79. The question of assessment of environmental compensation includes the principles/factors/aspects, necessary to be considered for computing/assessing/determining environmental compensation. Besides judicial precedents, we find little assistance from Statute. Section 15 of NGT Act, 2010 talks of relief of compensation and restitution. It confers wide powers on this Tribunal to grant relief by awarding compensation for the loss suffered by individual(s) and/or for damage caused to environment. Section 15 reads as under:
"15. Relief, compensation, and restitution-(1) The Tribunal may, by an order, provide, -
a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
b) for restitution of property damaged;
c) for restitution of the environment for such area or areas, as
the Tribunal may think fit.
(2) The relief and Compensation and restitution of property and environment referred to in clauses (a), (6) and (c) of sub-section of (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose:
Provided that the Tribunal may, if it is satisfied that the' applicant was prevented by sufficient cause from filing the application within 42 the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may, be, compensation or relief received from, any other Court or authority.
80. Sub-section 1 of Section 15 enables Tribunal to make an order providing relief and compensation to (i) the victims of pollution, (ii) other environmental damage arising under the enactments specified in the Schedule I.
81. Tribunal is also conferred power to pass an order providing relief for restitution of property damaged. Section 15(1)(c) enables Tribunal to pass an order providing relief for restitution of the environment for such area or areas, as Tribunal may think fit. Section 15 sub-section 4 says that Tribunal may divide compensation or relief payable under separate heads specified in Schedules II, having regard to the damage to public health, property and environment so as to provide compensation or relief, (i) to the claimants and (ii) for restitution of the damaged property or environment, as it may think fit.
82. Schedule II of NGT Act, 2010 gives a list of heads under which compensation or relief for damage may be granted. It has 14 heads in total out of which items (a) to (f), (l), (m) and (n) relate to loss, damage etc. sustained to the person or individual or their property. Items (i) to (k) relate to harm, damage, destruction etc. of environment or environmental system including soil, air, water, land, and eco-system. Items (i) to (k) of Schedule 43 II of NGT Act, 2010 are as under:
"(i) Claims on account of any harm, damage or destruction to the fauna including milch and draught animals and aquatic fauna;
(j) Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards;
(k) Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-systems;"
83. Items (g) and (h) relate to expense and cost incurred by State in providing relief to affected person; and loss caused in connection with activity causing damage.
84. The damage to environment covers a very wide variety of nature as is evident from definition of environment under section 2 (c) which is inclusive and says; 'environment includes water, air, and land and the interrelationship, which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property'.
85. Section 20 of NGT Act, 2010 requires Tribunal to apply principles of sustainable development, the precautionary principle and the polluter pays principle.
86. In the present case, environmental compensation has to be computed by applying 'Polluter Pays' Principle. This principle was recognized as part of environmental law in India in Indian Council for Enviro-Legal Action vs. Union of India, (1996)3SCC212. Certain industries producing assets were dumping their waste. Even untreated waste water was allowed to flow freely polluting atmosphere and sub- terrain supply of water which ultimately caused darkening and dirtiness of wells and the streams water rendering it unfit for human consumption. Certain environmentalists' organizations broadly alleging severe damage 44 to villager's health, filed a Writ petition as PIL in 1989 before Supreme Court. By that time, some of the units were already closed. Referring to Article 48-A in Directive Principles of State Policy and 51-A in the Fundamental duties of citizens, Supreme Court observed that said provisions say that State shall endeavor to protect and improve environment and to safeguard the forest and wildlife of the country. One of the fundamental duties of citizen says to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creature. Proponent has established its commercial unit and operate contrary to law flouting norms provided by law, Statutory Regulator is bound to act and if it fails, a judicial forum can direct it to act in accordance with law. Referring to Oleum Gas leak case, i.e., M.C. Mehta vs. Union of India, (1987)1SCC395, Court observed in para 58 that the constitution bench held that enterprise must be held strictly liable for causing such harm as a part of social cost of carrying on the hazardous or inherently dangerous activity. Hazardous or inherently harmful activities for private profits can be tolerated only on the condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of carrying on of such hazardous or inherently dangerous activity, regardless of whether it is carried on carefully or not. Court also referred to its earlier decision in Indian Council for Enviro Legal action vs. Union of India (1995)3SCC77, wherein PCB identified about 22 industries responsible for causing pollution by discharge of their effluent and a direction was issued by Court observing that they were responsible to compensate the farmers. It was the duty of State Government to ensure that this amount was recovered from the industries and paid to the farmers. In para 67 of the judgment, Court said that the question of liability of respondent units to defray the costs of 45 remedial measures can also be looked into from another angle which has now come to be accepted universally as a sound principle, for example, 'Polluter Pays' principle. On this aspect, Court further observed as under:
"67. ...The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The 'Polluter Pays' principle was promoted by the Organization for Economic Co- operation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialized society. Since then, there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.
Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme ([1987] OJC 328/1) makes it clear that `the cost of preventing and eliminating nuisances must in principle be borne by the polluter', and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventative action; the need for environmental damage to be rectified at source; and that the polluter should pay."
87. Court further said that according to the above principle of 'Polluter Pays', responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 of EP Act, 1986 empower Central Government to give directions and take measures for giving effect to this principle. Court further said:
46
"...In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment [Protection] Act, 1986. It is, of course, open to the Central Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit."
88. The above principle has been followed in Vellore Citizen Welfare Forum vs. Union of India, 1996(5) SCC 647. In para 25, direction no. 2 reads as under:
2. The authority so constituted by the Central Government shall implement the "precautionary principle" and the "polluter pays"
principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.
89. In Bittu Sehgal and Another vs Union of India & Others (2001)9SCC181, referring the earlier judgments, Supreme Court has said that precautionary principle and 'Polluter Pays' principle have been accepted as part of the law of the land.
90. In Research Foundation for Science vs. Union of India & Ors., (2005)13SCC186, in para 26 and 29, Court, on 'Polluter Pays' Principle, has said as under:
26. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter-pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the 47 constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation.
29. The polluter-pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case.
91. In Karnataka Industrial Areas Development Board vs. C. Kenchappa & Others (2006)6SCC371, principle of 'Polluter Pays' has been explained in detail referring to the earlier judgments in Indian Council for Enviro-Legal Action vs. Union of India (supra) and Vellore Citizen Welfare Forum (supra).
92. Thus, broad principles of environmental laws are given but the methodology for assessing/determining compensation is not provided in the statute. Even Rules framed under NGT Act, 2010 are silent on this aspect. Issue of determination of EC is significant in the sense that it should be proportionate to or bears a reasonable nexus with the environmental damage and its remediation/restoration. Similarly in case of compensation to be determined for a victim, it needs to co-relate to injury caused or damage suffered by such person as also cost incurred for treatment/remediation. Computation of environmental compensation may involve some degree of subjectivity but broadly it must be based on objective consideration as it saddles financial liability upon the violator.
93. Taking into consideration multifarious situations relating to violation of environmental laws vis-a-vis different proponents, nature of cases involving violation of environmental laws can be categorized as 48 under:
(i) Where Project/Activities are carried out without obtaining requisite statutory permissions/consents/clearances/NOC etc., affecting environment and ecology. For example, EC under EIA 2006; Consent under Water Act, 1974 and Air Act, 1981;
Authorisation under Solid Waste Management Rules, 2016 and other Rules; NOC for extraction and use of ground water, wherever applicable, and similar requirements under other statutes.
(ii) Where proponents have violated conditions imposed under statutory Permissions, Consents, Clearances, NOC etc. affecting environment and ecology.
(iii) Where Proponents have carried out their activities causing damage to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc.
94. The above categories are further sub-divided, i.e., where the polluters/violators are corporate bodies/organizations/associations and group of the people, in contradistinction, to individuals; and another category, the individuals themselves responsible for such pollution.
95. Further category among above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc.
96. The next relevant aspect is, whether damage to environment is irreversible, permanent or is capable of wholly or partial restoration/remediation/rejuvenation.
97. Determination/computation/assessment of environmental 49 compensation must, not only conform the requirement of restoration/remediation/rejuvenation but should also take care of damage caused to the environment, to the community, if any, and should also be preventive, deterrent and to some extent, must have an element of "being punitive". The idea is not only for restoration/remediation or to mitigate damage/loss to environment, but also to discourage people/proponents from indulging in the activities or carrying out their affairs in such a manner so as to cause damage/loss to environment.
98. To impose appropriate 'environmental compensation' for causing harm to environment, besides other relevant factors as pointed out, one has to understand the kind and nature of 'Harmness cost'. This includes risk assessment. The concept of risk assessment will include human- health risk assessment and ecological risk assessment. U.S. Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people. For the purpose of human- health risk assessment, it comprised of three broad steps, namely, planning and problem formulation; effects and exposure assessment and risk categorization. The first part involves participation of stakeholders and others to get input; in the second aspect health effect of hazardous substances as well as likelihood and level of exposure to the pollutant are examined and the third step involves integration of effects and exposure assessment to determine risk.
99. Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities. Here also we can find answer following three major steps, i.e., problem codification; analysis of exposure and risk characterization. First part encompasses identification of risk and what needs to be protected. Second step insists upon crystallization of factors that are exposed, degree to exposure and whether 50 exposure is likely or not to cause adverse ecological effects. Third step is comprised of two components, i.e., risk assessment and risk description.
100. In totality, problem is multi-fold and multi-angular. Solution is not straight but involves various shades and nuances and vary from case to case. Even Internationally, there is no thumb-rule to make assessment of damage and loss caused to environment due to activities carried out individually or collectively by the people, and for remediation/restoration. Different considerations are applicable and have been applied. As the term suggest, compensation means a return for loss or damage sustained. Therefore it must always be just and not based on a whim or caprisious.
101. In India, where commercial activities were carried out without obtaining statutory permissions/consents/clearance/NOC, Courts have determined, in some matters, compensation by fixing certain percentage of cost of project. In some cases, volume of business transactions, turnover, magnitude of establishment of proponent have also been considered as guiding factors to determine environmental compensation. In some cases, a lump sum amount has been imposed.
102. Nature is extremely precious. It is difficult to price elements of nature like light, oxygen (air), water in different forms like rain, snow, vapour etc. When nature is exploited beyond it's carrying capacity, results are harmful and dangerous. People do not understand the value of what nature has given free. Recently in Covid-19 wave II, scarcity of oxygen proved its worth. In dreadful second phase of the above pandemic, any amount offered, in some cases, could not save life for want of oxygen. Further, damage to environment, sometimes do not reflect in individuals immediately and may take time but injury is there. In such cases, process of determination of compensation may be different. 51
103. In an article, 'the cost of pollution-Environmental Economics' by Linas Cekanavicius, 2011, it has been suggested, where commercial activities have been carried out without consent etc., and pollution standards have been violated, Total Pollution Cost (hereinafter referred to as 'TPC') can be applied. It combines the cost of abatement of environment pollution and cost of pollution induced environmental damage. The formula comes to TPC(z)=AC(z)+ED(z), where z denotes the pollution level. Further, clean- up cost/remediation cost of pollution estimated to be incurred by authorities can also be used to determine environmental compensation.
104. When there is collective violation, sometimes the issue arose about apportionment of cost. Where more than one violator is indulged, apportionment may not be equal since user's respective capacity to produce waste, contribution of different categories to overall costs etc. would be relevant. The element of economic benefit to company resulting from violation is also an important aspect to be considered, otherwise observations of Supreme Court that the amount of environmental compensation must be deterrent, will become obliterated. Article 14 of the Constitution says that unequal cannot be treated equally, and it has also to be taken care. Determination/assessment/computation of environmental compensation cannot be arbitrary. It must be founded on some objective and intelligible considerations and criteria. Simultaneously, Supreme Court also said that its calculations must be based on a principle which is simple and can be applied easily. In other words, it can be said that wherever Court finds it appropriate, expert's assessment can be sought but sometimes experts also go by their own convictions and belief and fail to take into account judicial precedents which have advanced cause of environment by applying the principles of 'sustainable development', 'precautionary approach' and 'polluter pays', 52 etc.
105. Clean-up cost or TPC, may be a relevant factor to evaluate damage, but in the diverse conditions as available in this Country, no single factor or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to polluter/violator and though there is some element of subjectivity but broadly assessment/computation must be founded on objective considerations. Appropriate compensation must be determined to cover not only the aspect of violation of law on the part of polluter/violator but also damage to the environment, its remediation/restoration, loss to the community at large and other relevant factors like deterrence, element of penalty etc.
106. CPCB Guidelines: This Tribunal, vide order dated 31.08.2018 passed in Paryavaran Suraksha Samiti and another vs Union of India and others OA 593/2017 observed that "CPCB may also assess and recover compensation for damage to the environment and said fund may be kept in a separate account and utilized in terms of an action plan for protection of the environment". CPCB, accordingly, published a report on 15.07.2019, suggesting methodology for assessment of environmental compensation which may be levied or imposed upon industrial establishments who are guilty of violation of environmental laws and have caused damage/degradation/loss to environment. It does not encompass individuals, statutory institutions and Government etc. Report is titled as "Report of the CPCB In-house Committee on Methodology for Assessing Environmental compensation and Action Plan to Utilize the Fund" which was finalized in the meeting held on 27.03.2019. It shortlisted the incidents requiring an occasion for determining environmental compensation. Six such incidents, shortlisted, are:
"Cases considered for levying Environmental Compensation (EC):53
a) Discharges in violation of consent conditions, mainly prescribed standards/consent limits.
b) Not complying with the directions issued, such as direction for closure due to non-installation of OCEMS, non-adherence to the action plans submitted etc.
c) Intentional avoidance of data submission or data manipulation by tampering the Online Continuous Emission / Effluent Monitoring systems.
d) Accidental discharges lasting for short durations resulting into damage to the environment.
e) Intentional discharges to the environment -- land, water and air resulting into acute injury or damage to the environment.
f) Injection of treated/partially treated/ untreated effluents to ground water."
107. For the instances at item (a), (b) and (c), report says that 'Pollution Index' (hereinafter referred to as 'PI') would be used as a basis to levy environmental compensation. CPCB had already published Guidelines categorizing industries into Red, Orange, Green and White, based on the concept of PI. The PI is arrived after considering quantity and quality of emissions/effluents generated, types of hazardous waste generated and consumption of resources. PI of an industrial sector is a numerical number in the range of 0 to 100 and is represented as follows:
PI=f (Water Pollution Score, Air Pollution Score and HW Generation Score).
108. Since range of PI is 0 to 100, increase in value of PI denotes increasing degree of pollution hazard from industrial sector. Accordingly, report says, for determining environmental compensation in respect of cases covered by item (a), (b) and (c), it will apply following formula:
"EC = PI × N × R × S × LF Where, EC is Environmental Compensation in Rs.54
PI = Pollution Index of industrial sector N = Number of days of violation took place R = A factor in Rupees (₹) for EC S = Factor for scale of operation LF = Location factor"
109. The formula incorporates anticipated severity of environmental pollution in terms of PI, duration of violation in terms of number of days, scale of operation in terms of micro and small/medium/large industry and location in terms of proximity to the large habitations. A note is also given under the aforesaid formula and it reads as under:
"Note:
a. The industrial sectors have been categorized into Red, Orange and Green, based on their Pollution Index in the range of 60 to 100, 41 to 59 and 21 to 40, respectively. It was suggested that the average pollution index of 80, 50 and 30 may be taken for calculating the Environmental Compensation for Red, Orange and Green categories of industries, respectively.
b. N, number of days for which violation took place is the period between the day of violation observed/due date of direction's compliance and the day of compliance verified by CPCB/SPCB/PCC.
c. R is a factor in Rupees, which may be a minimum of 100 and maximum of 500. It is suggested to consider R as 250, as the Environmental Compensation in cases of violation. d. S could be based on small/medium/large industry categorization, which may be 0.5 for micro or small, 1.0 for medium and 1.5 for large units.
e. LF, could be based on population of the city/town and location of the industrial unit. For the industrial unit located within municipal boundary or up to 10 km distance from the municipal boundary of the city/town, following factors (LF) may be used:
Table No. 1.1: Location Factor Values 55 S. No Population* Location Factor# (million) (LF) 1 1 to <5 1.25 2 5 to <10 1.5 3 10 and above 2.0 *Population of the city/town as per the latest Census of India #LF will be 1.0 in case unit is located >10km from municipal boundary LF is presumed as 1 for city/town having population less than one million.
For notified Ecologically Sensitive areas, for beginning, LF may be assumed as 2.0. However, for critically Polluted Areas, LF may be explored in future.
f. In any case, minimum Environmental Compensation shall be ₹ 5000/day.
g. In order to include deterrent effect for repeated violations, EC may be increased on exponential basis, i.e. by 2 times on 1st repetition, 4 times on 2nd repetition and 8 times on further repetitions. h. If the operations of the industry are inevitable and violator continues its operations beyond 3 months then for deterrent compensation, EC may be increased by 2, 4 and 8 times for 2nd, 3rd and 4th quarter, respectively. Even if the operations are inevitable beyond 12 months, violator will not be allowed to operate.
i. Besides EC, industry may be prosecuted or closure directions may be issued, whenever required.
A sample calculation for Environmental Compensation (without deterrent factor) is given at Table No. 1.2. It can be noticed that for all instances, EC for Red, Orange, and Green category of industries varies from 3,750 to 60,000 ₹/day.
Table No. 1.2: A sample calculation for Environmental Compensation Industrial Red Orange Green Category Pollution 60-100 41-59 21-40 Index (PI) Average PI 80 50 30 R-Factor 250 S-Factor 0.5-1.5 56 L-Factor 1.00-2.00 Environmental 10,000-60,000 6,250-37,500 5,000-22,500 Compensation (₹/day)
110. We find that R which is a factor in Rupees (₹) is taken to be 100 minimum and 500 maximum. It has suggested that R value be taken as average i.e., Rs. 250/-. On what basis this minimum and maximum has been determined and why average is suggested, beyond any comprehension. We do not find any material in the above report which may throw light for taking value of R as above. Similarly, for determining value of S i.e., Factor for Scale of Operation from 0.5 to 1.5, we find no Guidelines as to on what basis, it has been determined and only on the size of the industry, divided in small, medium and large, the said factor has been prescribed. The note further says that minimum environmental compensation would be Rs. 5000/- per day. From table 1.2, we find that in the highest case i.e., large industry, depending on the level of PI, maximum environmental compensation would be Rs. 60,000/- per day and minimum Rs. 10,000/- per day. The above determination excludes the actual loss to the environment and cost of remediation including damage to flora-fauna and human beings. Moreover, classification of industries for industrial policy, or for some licensing purpose, banking purpose etc. would be wholly irrelevant for environment. A small industry may be capable of causing much more pollution than medium or even large industry. For example, pollution caused by a brick kiln using coal as fuel may be much more than many medium category industries.
111. In respect of items (d), (e) and (f), report says that for determining environmental compensation, one has to consider the matters in two parts, one for providing immediate relief and another long-term relief, such 57 as remediation. In such cases, detailed investigations are required from Expert Institutions or Organizations, based on which environmental compensation will be decided. Second part of report is with regard to utilization of environmental compensation fund. For this purpose, report says that CPCB will finalize a scheme for utilization of fund for protection of environment. Certain schemes identified by CPCB for utilization of the said fund are mentioned in para 1.4.1, as under:
"a. Industrial Inspections for compliance verification b. Installation of Continuous water quality monitoring stations/Continuous ambient air quality monitoring stations for strengthening of existing monitoring network c. Preparation of Comprehensive Industry Documents on Industrial Sectors/clean technology d. Investigations of environmental damages, preparation of DPRs e. Remediation of contaminated sites f. Infrastructure augmentation of Urban Local Bodies (ULBs)/capacity building of SPCBs/PCCs."
112. All the above, except item (e), relate to establishment/infrastructure for monitoring/prevention of pollution which in fact is the statutory duty and function of officials of State PCB and CPCB. It appears that CPCB has attempted to utilize environment fund to meet expenses which is the responsibility of Government.
113. Chapter II of report deals with determination of environment compensation for violations of Graded Response Action Plan (GRAP) in NCR. Here a fixed amount of environmental compensation has been recommended in table 2.1, as under:
"Table No. 2.1: Environmental Compensation to be levied on all violations of Graded Response Action Plan (GRAP) in Delhi-NCR.58
Activity State Of Air Quality Environmental
Compensation
Industrial Severe +/Emergency Rs 1.0 Crore
Emissions
Severe Rs 50 Lakh
Very Poor Rs 25 Lakh
Moderate to Poor Rs 10 Lakh
Vapour Recovery System (VRS) at Outlets of Oil Companies i. Not installed Target Date Rs 1.0 Crore ii. Non-functional Very poor to Severe + Rs 50.0 Lakh Moderate to Poor Rs 25.0 Lakh Construction sites Severe +/Emergency Rs 1.0 Crore (Offending plot more than 20,000 Sq.m.) Severe Rs 50 Lakh Very Poor Rs 25 Lakh Moderate to Poor Rs 10 Lakh Solid waste/ Very poor to Severe + Rs 25.0 Lakh garbage dumping in Industrial Estates Moderate to Poo Rs 10.0 Lakh Failure to water sprinkling on unpaved roads
a) Hot-spots Very poor to Severe + Rs 25.0 Lakh
b) Other than Hot- Very poor to Severe + Rs 10.0 Lakh "
spots
114. Chapter III considers determination of environmental compensation where a proponent has discharged pollutants in water bodies or failed to prevent discharge of pollutants in water bodies and also failed to implement Waste Management Rules. Laying down Guidelines for determination of environmental compensation in this category, report has referred to Tribunal's order dated 06.12.2018 in OA No. 125/2017 and MA No. 1337/2018, Court on its own motion vs. State of Karnataka, stating as under:
"Since failure of preventing the pollutants being discharged in water bodies (including lakes) and failure to implement solid and other 59 waste management rules are too frequent and widespread, the CPCB must lay down specific guidelines to deal with the same, throughout India, including the scale of compensation to be recovered from different individuals/authorities, in addition to or as alternative to prosecution. The scale may have slabs, depending on extent of pollution caused, economic viability, etc. Deterrent effect for repeated wrongs may also be provided."
115. It is suggested that determination of environmental compensation in this category would have two components, (i) Cost saved/benefits achieved by the concerned individual/authority by not having proper waste/sewage managing system; and (ii) Cost to the environment (environmental externality) due to untreated/partially treated waste/sewage because insufficient capacity of waste/sewage management facility. It further says that Cost saved/benefits achieved would also include interest on capital cost of waste/sewage management facility, daily operation and maintenance (O & M) cost associated with the facility. The determination of environmental compensation, therefore, is suggested, applying following formula:
"Therefore, generalized formula for Environmental Compensation may be described as:
EC= Capital Cost Factor × Marginal Average Capital Cost for Establishment of Waste or Sewage Management or Treatment Facility × (Waste or Sewage Management or Treatment Capacity Gap) + O&M Cost Factor × Marginal Average O&M Cost × (Waste or Sewage Management or Treatment Capacity Gap) × No. of Days for which facility was not available + Environmental Externality"
116. Environmental externality has been placed in two categories (i) untreated/partially treated sewage discharge and (ii) improper municipal solid waste management and detailed in table 3.1 and 3.2, as under:
"Table No. 3.1: Environmental externality for untreated/partially treated sewage discharge Sewage Marginal Cost of Minimum and Maximum Treatment Environmental value of Environmental 60 Capacity Externality (Rs. per Externality recommended Gap (MLD) MLD/day) by the Committee (Lacs Rs.
Per Day)
Up to 200 75 Min. 0.05, Max. 0.10
201-500 85 Min. 0.25, Max. 0.35
501 and 90 Min. 0.60, Max. 0.80
above
Table No. 3.2: Environmental externality for improper municipal solid waste management Municipal Marginal Cost of Minimum and Maximum Solid Waste Environmental value of Environmental Management Externality (Rs. per Externality recommended Capacity ton per day) by the Committee (Lacs Gap (TPD) Rs. Per Day) Up to 200 15 Min. 0.01, Max. 0.05 201-500 30 Min. 0.10, Max. 0.15 501-1000 35 Min. 0.25, Max. 0.3 1001-2000 40 Min. 0.50, Max. 0.60 Above 2000 Max. 0.80 "
117. CPCB has further recommend a fixed cap for minimum and maximum cost for capital and O & M component for environmental compensation in table 3.3 and 3.4, as under:
"Table No. 3.3: Minimum and Maximum EC to be levied for untreated/partially treated sewage discharge Class of the City/Town Mega-City Million- Class-I plus City City/Town and others Minimum and Maximum Min. 2000 Min. 1000 Min. 100 values of EC (Total Capital Max. 20000 Max. 10000 Max. 1000 Cost Component) recommended by the Committee (Lacs Rs.) Minimum and Maximum Min. 2 Min. 1 Min. 0.5 values of EC (O&M Cost Max. 20 Max. 10 Max. 5 Component) recommended by the Committee (Lacs Rs./day) Table No. 3.4: Minimum and Maximum EC to be levied for improper municipal solid waste management 61 Class of the City/Town Mega-City Million- Class-I plus City City/Town and others Minimum and Maximum Min. 1000 Min. 500 Min. 100 values of EC (Capital Cost Max. 10000 Max. 5000 Max. 1000 Component) recommended by the Committee (Lacs Rs.) Minimum and Maximum Min. 1.0 Min. 0.5 Min. 0.1 values of EC (O&M Cost Max. 10.0 Max. 5.0 Max. 1.0 Component) recommended by the Committee (Lacs Rs./ day) "
118. Para 3.3 deals with the method of determining environmental compensation for damage/untreated/partially treated sewage by concerned individual/authority. Under this head, CPCB has considered that for population above 1 lakh, requirement of water supply, would be minimum 150 to 200 lpcd and 85% whereof would result in sewage generation. It takes capital cost for 1 MLD STP ranges from Rs.0.63 Crores to Rs.3 Crores and O & M cost around Rs. 30,000 per month. Consequently, it suggested to assume capital cost for STPs as Rs. 1.75 crores/MLD (marginal average cost). Expected cost for conveyance system is assumed as Rs. 5.55 Crore/MLD and annual O& M as 10% of combined capital coast. Based on the above assumptions, Committee has recommended/suggested environmental compensation, to be levied on urban local bodies, by applying formula and here CPCB has suggested two formulas and any of them may be adopted:
"EC= Capital Cost Factor × [Marginal Average Capital Cost for Treatment Facility × (Total Generation-Installed Capacity) + Marginal Average Capital Cost for Conveyance Facility × (Total Generation -Operational Capacity)] + O&M Cost Factor x Marginal Average O&M Cost × (Total Generation- Operational Capacity) × No. of Days for which facility was not available + Environmental Externality × No. of Days for which facility was not available Alternatively;
EC (Lacs Rs.) = [17.5(Total Sewage Generation - Installed Treatment Capacity) + 55.5(Total Sewage Generation- Operational Capacity)] + 0.2(Sewage Generation-Operational 62 Capacity) × N + Marginal Cost of Environmental Externality × (Total Sewage Generation-Operational Capacity) × N Where; N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority Quantity of Sewage is in MLD"
119. Para 3.4 deals with the method of environmental compensation to be levied on concerned individual/authority for improper solid waste management, chargeable from urban local body based on the following formula:
"EC = Capital Cost Factor x Marginal Average Cost for Waste Management × (Per day waste generation-Per day waste disposed as per the Rules) + O&M Cost Factor × Marginal Average O&M Cost × (Per day waste generation-Per day waste disposed as per the Rules) × Number of days violation took place + Environmental Externality × N Where;
Waste Quantity in tons per day (TPD) N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority Simplifying;
EC (Lacs Rs.) = 2.4(Waste Generation - Waste Disposed as per the Rules) +0.02 (Waste Generation - Waste Disposed as per the Rules) × N + Marginal Cost of Environmental Externality × (Waste Generation-Waste Disposed as per the Rules) × N"
120. Here also certain assumed figures have been taken by CPCB. Report says that municipal solid waste generation is approximately 1.5 lakh MT/day in India as per MoHUA Report-2016. As per principles of Solid Waste Management Rules, 2016 and PWM Rules, 2016, total cost of municipal solid waste management in city/town includes cost for door to door collection, cost of segregation at source, cost for transportation in segregated manner, cost for processing of municipal solid waste and 63 disposal through facility like composting bio-methanation, recycling, co- processing in cement kilns etc. It is estimated that total cost of processing and treatment of municipal solid waste for a city of population of 1 lakh and generating approximately 50 tons/day of municipal solid waste is Rs. 15.5 Crores which includes capital cost (one time) and Operational and Management cost for one year. Expenditure for subsequent years would be only 3.5 Crores/annum. For arriving per day waste generation, CPCB has referred to a survey conducted by Environment Protection Training Research Institute (EPTRI) which estimated that solid waste generated in small, medium and large cities and towns is about 0.1 kg (Class-III), 0.3- 0.4 kg (Class-II) and 0.5 kg (Class-I) per capita per day respectively. The committee opined that 0.6 kg/day, 0.5 kg/day and 0.4 kg/day per capita waste generation may be assumed for mega-cities, million-plus UAs/towns and Class-I UA/Towns respectively for calculation of environmental compensation purposes.
121. Sample calculation of environmental compensation to be levied for improper management of municipal solid waste has been provided in table 3.6 which read as under:
"Table No. 3.6: Sample calculation for EC to be levied for improper management of Municipal Solid Waste City Delhi Agra Gurugram Ambala Population (2011) 1,63,49,831 17,60,285 8,76,969 5,00,774 Class Mega-City Million-plus City Class-I Town Class-I Town Waste Generation (kg. 0.6 0.5 0.4 0.4 per person per day) Waste Generation (TPD) 9809.90 880.14 350.79 200.31 Waste Disposal as per 2452.47 220.04 87.70 50.08 Rules (TPD) (assumed as 25% of waste generation for sample calculation) Waste Management 7357.42 660.11 263.09 150.23 Capacity Gap (TPD) Calculated EC (capital 17657.82 1584.26 631.42 360.56 cost component) in Lacs.
Rs.
64
Minimum and Maximum Min. 1000 Min. 500 Min. 100 Min. 100
values of EC (Capital Cost Max. 10000
Component) Max. 5000 Max. 1000 Max. 1000
recommended by the
Committee (Lacs Rs.)
Final EC (capital cost 10000.00 1584.26 631.42 360.56
component) in Lacs. Rs.
Calculated EC (O&M 147.15 13.20 5.26 3.00
Component) in Lacs.
Rs./Day
Minimum and Maximum Min. 1.0 Min. 0.5 Min. 0.1 Min. 0.1
values of EC (O&M Cost Max. 10.0
Component) Max. 5.0 Max. 1.0 Max. 1.0
recommended by the
Committee
(Lacs Rs./Day)
Final EC (O&M 10.00 5.00 1.00 1.00
Component) in Lacs.
Rs./Day
Calculated 2.58 0.18 0.03 0.02
Environmental
Externality
(Lacs Rs. Per Day)
Minimum and Maximum Max. 0.80 Min. 0.25 Max. Min. 0.01 Min. 0.01
value of Environmental 0.35
Externality Max. 0.05 Max. 0.05
recommended by the
Committee
(Lacs Rs. per day)
Final Environmental 0.80 0.25 0.03 0.02 "
Externality
(Lacs Rs. per day)
122. Chapter IV deals with determination/computation of environmental compensation in case of "illegal extraction of ground water" and for this purpose report has referred to Tribunal's order dated 03.01.2019 passed in OA No. 327/2018, Shailesh Singh vs. Central Ground Water Board & Others. The relevant extract of the order quoted in para 4.1 of the report is as under:
"CPCB may constitute a mechanism to deal with individual cases of violation of norms, as existed prior to Notification of 12/12/2018, to determine the environment compensation to be recovered or other coercive measures to be taken, including prosecution, for past illegal extraction of ground water, as per law."
123. Here, broadly, determination of environmental compensation refers to two major aspects i.e., illegal extraction of water as one aspect and illegal use of ground water as second aspect. For determination of 65 environmental compensation for illegal extraction of ground water, formula suggested by Committee is:
"ECGW =Water Consumption per Day x No. of Days x Environmental Compensation Rate for illegal extraction of ground water (ECRGW) Where water Consumption is in m3/day and ECRGW in Rs./m3 Yield of the pump varies based on the capacity/power of pump, water head etc. For reference purpose, yield of the pump may be assumed as given in Annexure-VI.
Time duration will be the period from which pump is operated illegally.
In case of illegal extraction of ground water, quantity of discharge as per the meter reading or as calculated with assumptions of yield and time may be used for calculation of ECGW."
124. Depending on the category of the area for the purpose of ground water i.e., safe, semi-critical, critical and over-exploited and also the purpose for which ground water is used, determination of environmental compensation for illegal use of ground water, has been suggested differently for different purpose/use i.e., for drinking and domestic use; for packaged drinking water units/for mining infrastructure and dewatering projects and for industrial units. Hence all these aspects are separately given in paragraph 4.6.1, 4.6.2, 4.6.3 and 4.6.4 as under:
"4.6.1 ECRGW for Drinking and Domestic use:
Drinking and Domestic use means uses of ground water in households, institutional activity, hospitals, commercial complexes, townships etc. Sl. Area Category Water Consumption (m3 /day) No <2 2 to <5 5 to <25 25 & above Environmental Compensation Rate (ECRGW) in Rs./m3 1 Safe 4 6 8 10 2 Semi Critical 12 14 16 20
3. Critical 22 24 26 30 4 Over-Exploited 32 34 36 40 Minimum ECGW=Rs 10,000/- (for households) and Rs. 50,000 (for institutional activity, commercial complexes, townships etc.) 66 4.6.2 ECRGW for Packaged drinking water units:
Sl. Area Category Water Consumption (m3 /day) No ˂200 200 to 1000 to 5000 & ˂1000 ˂5000 above Environmental Compensation Rate (ECRGW) in Rs./m3 1 Safe 12 18 24 30 2 Semi Critical 24 36 48 60
3. Critical 36 48 66 90 4 Over-Exploited 48 72 96 120 Minimum ECGW=Rs 1,00,000/-
4.6.3 ECRGW for Mining, Infrastructure and Dewatering Projects:
Sl. Area Category Water Consumption (m3 /day) No ˂200 200 to 1000 to 5000 & ˂1000 ˂5000 above Environmental Compensation Rate (ECRGW) in Rs./m3 1 Safe 15 21 30 40 2 Semi Critical 30 45 60 75
3. Critical 45 60 85 115 4 Over-Exploited 60 90 120 150 Minimum ECGW=Rs 1,00,000/ 4.6.4 ECRGW for Industrial Units:
Sl. Area Category Water Consumption (m3 /day) No ˂200 200 to 1000 to 5000 & ˂1000 ˂5000 above Environmental Compensation Rate (ECRGW) in Rs./m3 1 Safe 20 30 40 50 2 Semi Critical 40 60 80 100
3. Critical 60 80 110 150 4 Over-Exploited 80 120 160 200 Minimum ECGW=Rs 1,00,000/- "
125. It is also recommended that minimum environmental compensation for illegal extraction of ground water would be Rs. 10,000/- if it is for domestic purposes, but in other matters, it would be Rs. 50,000/-.
126. These recommendations by CPCB have not been given in the form 67 of a binding statutory provision. Even otherwise, we find that these are only broad suggestions, ignore several relevant aspects which have to be considered while determining environment compensation in a given case therefore, cannot be taken as readymade application to all situations for determining of environment compensation. Moreover, on some aspects there is no suggestion, but it is deferred.
127. We also find that some crucial relevant aspects requiring application of 'Polluter Pays', have not been considered in the above suggestions. CPCB has failed to consider that the purpose of determination/computation/assessment of environmental compensation and levy thereof, involve various factors like (i) cost of damage to environment, (ii) cost needed for restoration/remediation of damage caused to environment, (iii) element of deterrent/provincial, (iv) liability arising for violation of statuary mandatory law relating to environment namely requirement of consent, EC and NOC etc. It is not mere cost of item or subject but computation of something which situation has arisen by an act of PPs due to violation of environmental law causing damage to environment. The loss and its remedy involve complex of components.
128. The elements of nature like air, water, light and soil in materialistic manner may not be priced appropriately and adequately. Most of the time, whenever price is determined, it may be extremely low or highly exorbitant meaning thereby disproportionate. Still, since some of the assets of nature are marketable, on that basis price may be determined but when such elements are damaged or degraded, restoration thereof, in effect is priceless. Many a times, it may be almost impracticable and improbable to recover and remediate damaged environment to its position as it was. Moreover, its cost might be very high. It also cannot be doubted that once there is a pollution or damage to environment, it would affect adversely 68 not only the environment but also inhabitants and all biological organisms. Damage is there, only degree may differ whether to the environment or to the inhabitants and other organisms. To find out simultaneously degree of damage and to ascertain the same in many cases may not be possible or practicable. For example, a polluted air causes respiratory diseases but the people do not get infected and starts reflection of the disease immediately but it takes some time. The time taken in reflection of injury on the person or body also differs from person to person depending upon his immunity and other health conditions. In some cases, damage to environment i.e., air pollution may be fatal to a person who already has respiratory problem. For some a minor inconvenience, minor injury to others, and some may not suffer to the extent of showing symptoms of any diseases at all. When we talk of environmental compensation for causing degradation to environment and for its restoration or remediation, it is not a formal or casual or symbolic amount which is required to be levied upon the violator. It is substantive and adequate amount which must be levied for restoration of environment. CPCB in determining values of fixed quotients and rupees etc., has been very lenient as if only symbolically violator is to be held liable and it must pay a petty amount.
129. Statutory Regulators must realize that the amount is needed for remediation and restoration of damaged environment; enough to be deterrent, to provide adequate compensation where inhabitants are affected adversely and where violator has proceeded in violation of Environmental Laws relating to consents, clearances, permissions etc., to penalize him for such violation to prove to be a deterrent to him and others. Unfortunately, the above guidelines laid down by CPCB have not considered all these aspects and it appears that the same have been 69 prepared in a very casual and formal manner.
130. In respect of computation of compensation for illegal extraction of ground water, CPCB has referred to Tribunal's order in Court on its own motion vs. State of Karnataka (supra) directing it to lay down guidelines to deal with the scale of compensation but has failed to consider that Tribunal has also observed that its scale may have slabs depending on extent of pollution caused, economic viability etc. and deterrent effect.
131. Statutory Regulators have also failed to consider that environmental compensation is not a kind of fee which may result in profiteering to violators and after adjusting a nominal amount of environmental compensation, a violator may find it profitable to continue with such violations. The objective of environmental compensation is that not only the loss and damage already caused, is made to recover and restore but also in future, the said violator may not repeat the kind of violation already committed and others also have a fear of not doing the same else similar liability may be enforced upon them. Unless amount of compensation is more than maximum permissible profit arising from violation, the purpose of environmental compensation would always stand defeated.
132. Loss caused to surroundings of the environment, may also include flora-fauna and human beings. It is in this backdrop that in various matters when the issues were considered by Courts and Tribunal and found necessary to impose environmental compensation upon Proponent/Violator of environmental laws, they have followed different mechanisms. Sometimes, Committee's reports confirming violations have been referred but for quantum of compensation, directions have been issued in different ways. In some cases, CPCB guidelines have been applied while in many other, project cost has been made basis. 70
133. CPCB Guidelines have taken care of industries and municipal bodies. Its application in all cases irrespective of other relevant consideration may prove to be disastrous. Individuals, charitable, social or religious bodies, public sector and government establishments etc., may, in given circumstances justify a different approach. Further, there may be cases attracting aggravating factors or mitigating factors, for example in national emergency some activity got performed violating environmental norms or a proponent is resilient to any advice to adhere law to protect environment and so on. In fact, quantum of EC should have nexus with State's efforts for protection and preservation of environment and control of pollution. Compensation regime must be a deterrent to violators and incentivize eco-friendly proponents. No one should get profited by violating environmental laws and community should also not suffer for violation of environmental norms by defaulting proponents. There is no reason, if beside the aspects noticed above, the computation process also incorporates the elements of inflation, quality of life, and economic prosperity.
134. In the context of "violation of disposal of Bio-Medical Waste" and "Non-compliance of Bio-Medical Waste Management Rules, 2016" and determination of environmental compensation for such violations, Tribunal in OA No. 710/2017, Shailesh Singh vs. Sheela Hospital & Trauma Centre, Shahjahanpur & Others and other connected matters, vide order dated 15.07.2019, accepted report of CPCB, and said:
"10. The compensation regime suggested by the CPCB may be adopted. It will be open to the State PCBs/PCCs to adopt a higher scale of compensation, having regard to the problems faced in such States/UTs.
11. It is made clear that if even after two months the States/UTs are found to be non-compliant, the compensation will be liable to be recovered from the said States/UTs at the rate of Rs. 1 Crore per month till the non-compliance continues."71
135. The above recommendations i.e., in para 10, Tribunal said "compensation regime suggested by the CPCB may be adopted. It will be open to the State PCBs/PCCs to adopt a higher scale of compensation, having regard to the problems faced in such States/UTs". It further says that if State Governments and UTs still remain non-complying for two months, compensation will be recovered at the rate of Rs. 1 crore per month till non-compliance continues.
136. In respect of solid waste, sewage effluent, ground water extraction etc., Tribunal in OA No. 593/2017, Paryavaran Suraksha Samiti and another vs. Union of India and others, vide order dated 28.08.2019 has said in para 16, that as regards environmental compensation regime fixed vide CPCB guidelines for industrial units, GRAP, solid waste, sewage and ground water is accepted as an interim measure. Tribunal further observed that recovery of compensation on 'Polluter Pays' principle is a part of enforcement strategy but not a substitute for compliance. It directed all States/UTs to enforce compensation regime latest w.e.f. 01.04.2020 and made it clear that it is not condoning any past violations. Tribunal directed to enforce recovery of compensation from 01.04.2020 from the defaulting local bodies failing which the concerned States/UTs themselves must pay the requisite amount of compensation.
137. In the matter of illegal mining causing damage to environment, methodology for determining environmental compensation was examined in OA No. 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat) and other connected matters decided on 26.02.2021. Here a report was submitted by CPCB on 30.01.2020, placing on record recommendations made by Committee comprising:
i.) Dr Purnamita Dasgupta, Professor, IEG, Delhi, 72 ii.) Dr K.S. Kavi Kumar, Professor, MSE, Chennai, iii.) Dr. Yogesh Dubey, Associate Professor, IIFM, Bhopal, iv.) Shri Sundeep, Director, MoEF&CC, Delhi and v.) Shri A. Sudhakar, Additional Director, CPCB, Delhi
138. Report was considered by Tribunal vide order dated 17.08.2020. Report said:
"8. The Committee considered two approaches:
(I) Approach 1: Direct Compensation based on the market value of extraction, adjusted for ecological damages. (II) Approach 2: Computing a Simplified NPV for ecological damages.
9. In the first approach, the criteria adopted is:
• Exceedance Factor (EF).
• Risk Factor (RF).
• Deterrence Factor (DF).
10. Approach 1 is demonstrated by Table 1 as follows: Table No. 01: Approach 1
Permitted Total Excess Exceedance Compensation Quantity Extraction Extraction in Charge (in MT or (in MT or (in MT or Extraction: (in Rs.) m3) m3) m3) X Y Z=Y-X Z/X D* (1+RF+DF) Where D=Z x Market Value of the material per MT-or-m3 DF = 0.3 if Z/X = 0.11 to 0.40 DF = 0.6 if Z/X = 0.41 to 0.70 DF = 1 if Z/X >= 0.71 RF = 0.25, 0.50. 0.75, 1.00 (as per table 2)
11. Approach 2 is demonstrated by following formula:
"Total Benefits (B)=Market Value of illegal extraction: D(refer Table 1) Total Ecological Costs (C) = Market Value adjusted for risk factor: D * RF (refer Table 1)."73
12. Final recommendation is as follows:
"Thus, it is recommended that the annual net present value (NPV) of the amount arrived at after taking the difference between the costs and the benefits through the use of the above approach, maybe calculated for a period of 5 years at a discount rate of 5% for mining which is in a severe ecological damage risk zone. The rationale for levying this NPV is based on expert opinion that reversal and/or restoration of the ecological damages is usually not possible within a short period of time and rarely is it feasible to achieve 100% restoration, even if the sand deposition in the river basin is restored through flooding in subsequent years. The negative externalities of the mining activity are therefore to be accounted for in this manner. Ideally, the worth of all such damages, including costs of those which can be restored should be charged. However, till data on site-specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorization charged. However, till data on site-specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorisation is unavailable or pending calculation, the following Discount Rates may be considered:
Severity Mild Moderate Significant Severe
Risk Level 1 2 3 4
Risk Factor 0.25 0.50 0.75 1.0
Discount 8% 7% 6% 5%
Rate
139. Here, in both the approaches, element of illegality committed by PP in carrying on mining was not considered at all. For example, if EC and/or consent is not obtained. Similarly, cost of remediation/restoration was also not taken into consideration.
140. In some cases, compensation has been awarded by Tribunal on lump sum basis without referring to any methodology. For example: (i) in Ajay Kumar Negi vs. Union of India, OA No. 183/2013, Rs. 5 Crores were imposed. (ii) In Naim Shariff vs. M/s. Das Offshore Application No. 15(THC) of 2016, Rs. 25 Crores were imposed (iii) Hazira Macchimar Samiti vs. Union of India, Rs. 25 crores were imposed.
141. In Goa Foundation vs. Union of India & Others (2014)6SCC590, Supreme Court relied on Samaj Parivartana Samudaya & Others vs. 74 State of Karnataka & Others (2013)8SCC209 and held that ten per cent of the sale price of iron ore during e-auction should be taken as compensation. To arrive at the above view, Court observed that this was an appropriate compensation given that mining could not completely stopped due to its contribution towards employment and revenue generation for the State. Further, Court directed to create a special purpose vehicle, i.e., "Goan Iron Ore Permanent Fund" for depositing above directed compensation and utilization of above fund for remediation of damage to environment.
142. In Goel Ganga Developers vs Union of India and Others, (2018)18SCC257, Tribunal imposed Rs.195 Crores compensation since project was executed without EC. Supreme Court made it Rs.100 Crores or 10% of project cost whichever is higher. Supreme Court also upheld Rs. 5 Crores imposed by Tribunal vide order dated 27.09.2016. Thus, total amount exceeded even 10% of project cost.
143. In Mantri Techzone Private Limited vs. Forward Foundation & Others, (2019)18SCC494, Supreme Court affirmed imposition of environmental compensation by Tribunal, considering cost of the project, where there was violation regarding EC/consent and proponent proceeded with construction activities violating provisions relating to EC/Consent.
Tribunal determined environmental compensation at 5% and 3% of project cost of two builders. 5% of project cost was imposed where PP had raised illegal constructions while 3% was imposed where actual construction activity was not undertaken by PP and only preparatory steps were taken including excavation and deposition of huge earth by creating a hillock. Besides, Tribunal also directed for demolition and removal of debris from natural drain at the cost of PP.
75
144. In Goa Foundation vs. Union of India & Others (supra), where illegal extraction of minerals was involved and in Goel Ganga Developers India vs. Union of India (supra), where a construction project was carried out without EC in violation of EIA 2006, Supreme Court permitted computation of environment compensation at 10% of the project cost. In fact, in Goel Ganga case, exemplary cost of Rs. 100 Crores were imposed, and Court said that developer would pay Rs.100 Crores or 10% of project cost whichever is higher.
145. On the issue of assessment of compensation for damage to environment in the matter of illegal mining, recently Supreme Court in Bajri Lease LOI holders Welfare Society vs. State of Rajasthan and others, SLP (Civil) No. 10584 of 2019 (order dated 11.11.2021) has said that compensation/penalty to be paid by those indulging in illegal sand mining cannot be restricted to be value of illegally mined minerals. The cost of restoration of environment as well as the cost of ecological services should be part of compensation. 'Polluter Pays' principle as interpreted by this Court means that absolute liability for harm to the environment extends not only to compensate victims of pollution but also cost of restoring environmental degradation. Remediation of damaged environment is part of the process of "sustainable development" and as such the polluter is liable to pay the cost the individual sufferers as well as the cost of reversing the damaged ecology.
146. In the present case, proponent has not disclosed its annual turn over but the financial information placed in public domain shows that its annual turnover is between Rs.50 to 100 Crores. By way of using explosives of 600 kg/day, if we take 300 working days in a year, the total quantity of mixture of explosives, it would have used in a year will come to 76 1,80,000 kg which will comprised of 79200 kg Ammonium Nitrate, 19800 kg TNT and 81000 kg salt i.e., NACL. If we compute the damage at the rate of very considerate value of just Rs. 100/- per kg of the total explosive used per annum, it will come to Rs. 1.8 Crore per annum and for the last 5 years, it will come to Rs. 9 Crores.
147. Considering the entirety of the facts and the legal authorities as also the relevant statutory provisions, once this is evident that there is violation of environmental laws and norms on the part of proponent, he is liable to pay environmental compensation on the principle of 'Polluter Pays' and also remedial action is needed to prevent any such future violation. Since exact level of damage caused by proponent has not been properly examined by the concerned Statutory Regulator and relevant details are not available to us, we find it appropriate to direct MPPCB to undertake further study of effluent discharged by the proponent, damage caused to surface soil and ground water contamination at the site where the effluent is being discharged, find out the level of toxicity and damage to environment, and assess finally the quantum of environmental compensation payable by respondent 12. In computation of environmental compensation, MPPCB shall follow the principles as discussed and pointed out hereinabove and also the principles laid down by Supreme Court in Sterlite Industries (India) Ltd. vs. Union of India, (2013) 4 SCC 575, Goel Ganga Developers India Pvt. Ltd. vs. UOI, (2018) 18 SCC 257, Mantri Techzone Private Limited vs. Forward Foundation & Others, (2019) 18 SCC 494, Goa Foundation vs. Union of India & Others (2014) 6 SCC 590 and M.C. Mehta (Kant Enclave matters) v. Union of India & Others, AIR1987SC1086 (Sodium Gas Leak Case).
148. In the meantime, as an interim measure, we direct respondent 12 to 77 pay an interim compensation of Rs. 5 Crores (computation details whereof are given above) which shall be deposited with MPPCB within 3 months from today.
149. Amount of interim compensation directed to be paid hereinabove shall be adjusted against the final amount of environmental compensation determined by MPPCB. If the final amount of compensation is more than the interim compensation, balance shall be paid by respondent 12 within such time as directed failing which it shall be recovered in accordance with law.
150. The amount of environmental compensation shall be spent on restoration/ remediation/ rejuvenation of environment in accordance with action plan which shall be prepared by a joint committee comprising CPCB. MPPCB and Collector, Betul within two months. The plan shall include steps for remediation, budgetary allocation and execution. The plan shall be implemented within next three months after preparation. An action taken/compliance Report shall be submitted by 30th March, 2024 with Registrar, Central Zone, Bhopal Bench, and if he finds necessary, shall place report before Bench for further order.
151. MPPCB is further directed to immediately take steps for restraining respondents in operating its industrial units by violating environmental norms and laws and conditions of Consent and if violation continues, to close down the unit till such compliance is strictly observed.
152. OA is allowed in terms of the directions and observations made hereinabove.
78
153. Copy be forwarded to Chief Secretary, State of Madhya Pradesh, MPPCB, CPCB, District Magistrate, Betul, Director General, Mines and Safety, State of Chhattisgarh for information and compliance.
SUDHIR AGARWAL, JUDICIAL MEMBER DR. AFROZ AHMAD, EXPERT MEMBER September 26, 2023 Original Application No. 35/2023(CZ) R 79