National Green Tribunal
Mr. Dhananjay Patil vs The Collector on 4 November, 2022
Item No.3 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
ORIGINAL APPLICATION NO.71 OF 2019(WZ)
Dhananjay Patil & Ors. ....Applicants
Versus
The State of Maharashtra& Ors. ....Respondent(s)
Date of hearing: 04.11.2022
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Mr.Pravin Sabban, Advocate
Respondents : Ms. Vanita Bhargava, Advocate for R-3
Ms. Manasi Joshi, Advocate for R-4
ORDER
1. This application under Sections 14 and 15 of the National Green Tribunal Act, 2010 has been filed by 18 applicants who are owners of the land admeasuring about 13 Hectors 59 Ares. It is submitted by them that respondent No.3 - M/s Ultra Tech Cement Ltd./Project Proponent purchased the property bearing Survey Nos.61/1, 61/2, 94/1, 95/3, 95/4 and 95/5 from Mrs. Aruna Sambre and others for the purpose of setting up a new project of Cement Block Plant. The said company illegally occupied the tribal land from Mr. Gopal Wagh without obtaining previous sanction from the Collector, bearing Survey No.94/2, admeasuring 0.10.0 Ares. Therefore, the said company is liable to be evicted from the tribal land in accordance with the provisions of Sections 36, 36A and 59 of the Maharashtra Land Revenue Code, 1966 and under Section 3(iv) and (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The said company excavated 12,899 Page 1 of 13 brass soil from the land without Collector's permission and dumped it into the natural water canal, which changed the flow direction of the water affecting the crop cultivation on the applicant's land. The company also did not obtain Sanad under Section 44A from the Additional Collector under the Maharashtra Land Revenue Code, 1966. There was natural water canal irregating crop of the applicants, which the company illegally closed by filling excavated soil, sand and stones into the canal. Further, the chemical effluents released from the said factory emitted chemical pollutants into the said canal which caused loss and damage to the rice crop of the applicant which amounted to Rs.7,24,128/- per annum. The applicants made a complaint and Grampanchayat of Kone issued notice dated 24.10.2010 to the respondent No.3/Project Proponent regarding illegal closure/diversion/obstruction of the natural water canal. Thereafter, the applicants made complaint to the Tahsildar by letter dated 17.08.2010 regarding the said illegal closure/diversion/obstruction of the natural water canal. Thereafter, the Circle Officer, Kone, Taluka Wada, vide letter dated 29.09.2010 called a meeting on 05.10.2010 for enquiry. Thereafter, the respondent No.3 Company made an affidavit on 10.11.2010 undertaking to pay compensation, if any loss is caused to the soil and crop yield from the said land. The Tahsildar, Wada, vide letter dated 01.12.2010, asked the company to restore the natural water canal by demolishing all the obstructions and constructions within eight days. Thereafter, in exercise of powers under Section 48(7) of the Maharashtra Land Revenue Code, vide order dated 10.10.2011, the Tahsildar, Wada ordered the said company to pay royalty and penalty of Rs.7,64,40,200/- The respondent company filed Regular Civil Suit No.180/2021 before the Civil Judge, Senior Division, Link Court, Bhiwandi against the order of the Tahsildar dated 11.02.2011 thereby directing the respondent Page 2 of 13 company for demolition of unauthorised construction made by the company though there is express bar of jurisdiction under Section 28 of the National Green Tribunal Act, 2010 for entertaining any environmental cases in civil court. Despite that, the civil court admitted the said case/suit and passed the order. The respondent company filed Appeal No.268/2011 before the Sub-Divisional Officer, Javhar, challenging the order dated 10.10.2021 passed by the Tahsildar and the same was quashed vide order dated 19.10.2011. The spot panchanama of the affected crops due to water pollution was done by the Taluka Agricultural Officer of Taluka Wada, District Palghar on 21.07.2015 and he submitted report on 15.09.2016, giving details of the annual monetary loss to the applicants. Therefore, the applicants are entitled to compensation from the respondent company under Section 15(3) of the National Green Tribunal Act, 2010. The Taluka Agricultural Officer, Wada carried out the spot inspection. The assessment made by the Taluka Agricultural Officer, Wada towards damages of rice crops was to the tune of Rs.7,24,128/-. Hence, it is prayed that the respondent company - Ultra- Tech Cement Ltd. be directed to be closed and restoration of the natural water canal and soil be ordered. It is also prayed that the applicants be directed to be paid appropriate compensation atleast as assessed by the panchanamas dated 15.09.2015, 24.09.2016 and 21.07.2016 drawn by the Taluka Agricultural Officer, Wada with interest thereon at the rate of 15% per annum till payment of compensation.
2. After filing of this Original Application, the matter was heard by this Tribunal on 04.08.2020 and notices were directed to be issued to the respondents. Pursuant to the service of notice upon the respondents, the affidavits have been filed by them.
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3. The stand taken by respondent No.3/Project Proponent as per their affidavit dated 04.10.2021, is as follows:-
. With regard to the allegation pertaining to purchase of land, it is stated that this issue cannot be raised before this Tribunal in the light of Section 14(1) read with Schedule I of the National Green Tribunal Act. With respect to the allegation regarding diversion of flow of natural water canal, it is submitted that the said issue is settled by a certificate issued by the Sarpanch, Group Gram Panchayat, Chikhale, Taluka Wada vide its NOC dated 29.06.2010, which certifies that flow of nalla that was naturally flowing was closed naturally and the nalla was flowing naturally through Survey No.61(2) and a request was made to correct and revise the Government record and regularise the map as per existing position of nalla. There is no finding by any Authority that the fields were damaged because of the alleged diversion. The remedy is barred by time. Regarding accidental oil spillage, it is submitted that it is wrongly stated by the applicant that the answering respondent has discharged chemical effluents. There was an accidental oil spillage while filling furnace oil in the tank which flowed into the nalla due to rain in 2015. On a complaint being received from the Tahsildar on 21.08.2015, the MPCB issued directions under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31A of the Air (Prevention and Control of Pollution) Act, 1981. The directions were complied with by the answering respondent and were intimated to the MPCB. The MPCB also issued directions vide letter dated 16.11.2015, including appointing IIT/NEERI to identify percolation points of water from the industry meeting the nalla and ordering restoration of quality of nalla water by removing oily layer. The answering respondent appointed M/s Sweep Enviro Private Ltd. affiliated to IIT to identify percolation points study on 06.01.2016 and on 03.03.2016, the answering respondent informed the Sub-Divisional Page 4 of 13 Officer that it had closed all the outlets which had accidentally caused oil spillage from the factory and they have cleared the layers of oil spillage from the nalla and submitted the reports to MPCB regarding the steps having been taken by them. During the periodical inspection carried out by the answering respondent, the oil layer on the surface of the water was found which could be due to some oil component resting in the tree bushes which came up as water level reduced, which was not a fresh discharge from the plant. The answering respondent took suo moto steps to clean the layers of oil. However, the villagers had obstructed the company to initiate the steps in this regard and threatened the officer of the company on compensation issue. There are other industries surrounding the nalla which are discharging chemicals/effluents which may be the real cause for contamination. The plant of the answering respondent was a Zero Liquid Discharge (ZLD) plant. The contamination, if any, was not on account of the answering respondent since inspite of closure of percolation points, oil layer was still present and a detailed study of the area may be carried out, which is not done. Vide inspection report dated 12.12.2017 of MPCB, it was observed that at the time of the visit, oil spillage was not observed and storm water drain was found dry.
The answering respondent is environmentally conscious industry. The MPCB has issued Consent to Operate to the answering respondent, which was renewed on 06.09.2018 for a period from 01.04.2018 to 31.03.2022. The answering respondent has stopped the production of AAC blocks since December, 2018. As per the reply of MPCB, the period of oil spillage was restricted to from 21.08.2015 when the complaint was made till the inspection was carried out by the answering respondent on 14.02.2018, when no traces of oil and grease were found in the soil. Even in the inspection carried out on 12.12.2017, no oil spillage was found. In the latest inspection carried out by the MPCB on 03.02.2021 Page 5 of 13 also, there was no contamination. The principles of proportionality should be adopted in respect of culpability of answering respondent since the oil spillage was for a limited period.
4. The stand of respondent No.4 - MPCB is as follows:-
. The answering respondent granted Consent to Operate to respondent No.3 M/s Ultra Tech Cement Ltd. (earlier known as M/s Grasim Industries Ltd.), Gut No.61/1 & 2, 94/1 &2A, 95/3 to 7 of village Chikhale, Vijaypur, Taluka Wada, District Palghar by letter dated 06.01.2010. The answering respondent had earlier granted Consent to Operate to respondent No. 3, vide letter dated 17.07.2012 for manufacture of fly ash based Autoclaved Aerated Concrete Blocks, Dry Mix Powder and fly ash bricks, which was valid upto 31.03.2018 by stipulating certain terms and conditions therein and its renewal was done on 06.09.2018 with deletion of one product and addition of increase in capital investment - one new product. The answering respondent had earlier received a complaint from the Tahsildar, Wada against respondent No.3 regarding chemical contaminated water being discharged from the said company, through email dated 21.08.2015 whereon the Board officials had visited the site in question on 24.08.2015 and observed that during rainy season, the water was discharged into the adjoining nalla.
The officials of the answering respondent observed oil in the said nalla and hence, they collected samples of nalla water for analysis. It was informed by the industry representative that the incident of oil spillage had taken place near oil storage tanks and due to heavy rain at that time, the oil had found its way to the drain leading to natural nalla. The directions were issued to respondent No.3 by letter dated 07.09.2015 in view of non-compliances. The industry was directed to provide dyke wall for loading/unloading of furnace oil, to provide oil and grease trap, oil skimmer, storm water holding tank with oil skimmer and bank guarantee Page 6 of 13 of Rs.5 lakhs. The officials of the Board visited the industry of respondent No. 3 on 06.11.2015 and it was found that there was no discharge of effluent from the said industry. However, oily layers at 3 to 4 places were observed in the said nalla. The applicant had informed that due to percolation, the effluent is discharged into nearby nalla. The answering respondent had received a report dated 24.09.2015 from the Taluka Agriculture Officer, Wada that due to discharge of chemical contaminated water, there is limitation on the growth of plants, thereby affecting the crop yield. In view of that, the answering respondent had issued a letter dated 16.11.2015 to respondent No.3 directing it to appoint IIT/NEERI to identify percolation points of water from the industry, to restore quality of nalla water by removing oily layer and oil contaminated soil within 15 days and dispose oily material to CHWTSDF and submit compliance immediately and get certification from IIT/NEERI regarding nalla restoration. Accordingly, the IIT, Powai submitted a survey report on 09.12.2016, wherein it was recommended to carry out "Phytoremediation". Based on IIT recommendations, the answering respondent issued interim directions dated 08.02.2017 to respondent No.3 directing it to submit time-bound programme for completion of remediation work as per the report of IIT dated 24.11.2016. However, respondent No.3 failed to submit compliance report on the said interim directions. The answering respondent had extended an opportunity of personal hearing to respondent No.3 on 05.02.2018 wherein it was decided that IIT representative shall make a joint visit to the industry with the representative of the industry and official of the MPCB and shall re-collect samples of soil to determine the quality of the oil residues within and outside the premises and submit a report within 10 days. The answering respondent had collected soil samples on 14/15.02.2018 at three locations, which were got analysed and the same did not show Page 7 of 13 traces of oil and grease. Respondent No.3 has also stopped production of AAC blocks since December, 2018.
5. The respondent No. 4 - MPCB has filed additional affidavit dated 07.10.2021 wherein it is stated that in view of environmental damage caused because of oil spillage, the answering respondent issued notice dated 06.10.2021 for imposition of environmental compensation to the tune ofRs.17,34,375/- on the basis of methodology for assessing the environmental compensation issued by the Central Pollution Control Board (CPCB) and further directed it to submit the bank guarantee of Rs.10 lakhs towards operation and maintenance of pollution control equipments within seven days.
6. From the side of the applicants, in rejoinder-affidavit dated 29.11.2021, it is submitted that there is continuous loss of rice crop till today from the year 2015 as the oil spillage has substantially damaged the soil. As such, the applicants are entitled to get further compensation at MSP for rice crops fixed from time to time for the area by the Government for the year 2015 till today along with interest at the rate of 15% per annum on the respective yearly crop loss compensation. In the spot inspection conducted by the Tahsildar, Wada and Sub Divisional Officer on 26.12.2010 and 10.02.2011, it was prima facie found that the soil was dumped and illegal construction had been made in the nalla, which resulted in loss to rice crops of the year 2016 and the amount towards such loss was arrived at Rs.7,24,128/- on the basis of Minimum Support Price (MSP) for the year 2016. It is further submitted in the affidavit of respondent No.3 dated 15.11.2010 that it has been admitted that the then existing flowing water of nalla/canal/stream at Vijaypur village-Chikale was damaged due to faulty and illegal construction made by them damaging the boundaries of the applicant's crops and lands and the company had agreed to rectify the mistakes. However, the said nalla Page 8 of 13 is not restored to its original position. Therefore, it should be ordered to be restored.
7. It is further stated that on the basis of the letter of District Mining Officer dated 16.08.2011, the Tahsildar, Wada also by order dated 10.10.2011 imposed royalty or penalty of Rs.7,64,40,200/- for illegal excavation of nalla soil of 12899 brass. The said royalty/penalty is to be recovered with interest from the due dates till the date of its payment. Further it is submitted that the rice crop area at Survey No.61/2 of the applicant No.1 admeasuring 0=65 gunthas is fully damaged and is rendered uncultivable due to furnace oil spillage. The same may be purchased by respondent No.3. Thus, in-charge of respondent No.3 company Mr. Agarwal/Parmar in 2016 had offered Rs. Two crores for purchase of damaged lands, but the applicant demanded Rs. Three crores, which is liable to be paid with interest @ 15% from the year 2016.
8. We have heard the arguments of the learned counsel for the applicants and respondent Nos.3 and 4 and perused the record.
9. It is apparent from the pleadings in the application that as many as 18 applicants have initiated the present proceedings against respondent No.3 - Ultra-Tech Cement Ltd., alleging that due to discharge of chemical effluents from the said company, the land belonging to the applicants has got contaminated as oil layers were found to be there in the water, which has resulted into loss to the crops of the applicants, which has been assessed by the Taluka Agricultural Officer, Wada, District Palghar, details of which are given at page 62-A in tabular form of the paper-book. This amount is calculated for the year 2016 as one time loss. The learned counsel for the applicants has agreed to this amount to be paid to them with interest thereon at the rate of 7.5% per annum from 15.09.2015 till the date of its payment. We, therefore, direct that this Page 9 of 13 amount is payable by respondent No.3/Project Proponent to the applicants.
10. We find that Rule 8 of the National Green Tribunal (Practices & Procedure) Rules, 2011 (for short to be referred as "Rules of 2011) provides the procedure for an application to be filed if the relief of compensation is claimed by the applicant, which has not been followed. We find that in the present case, neither the office submitted any report before the Tribunal at the time when the matter was entertained that there was defect in this regard, nor did either party bring this fact to our notice earlier. At the present stage when the matter is being decided finally, we want this defect to be removed and accordingly we direct the applicants to move an application forthwith as per the procedure prescribed under Rule 8 of Rules of 2011 which mandates filing an application in Form II for relief of compensation read with the provision under Rule 12 which provides for payment of court fees. After submission of this application in proper form and the payment of court fees, the office shall submit its report about payment of the court fees and the procedure having been followed. The aforesaid amount, details of which are given at page 62A of the paper-book in tabular form, would be payable to the applicants as per procedure.
11. Section 7A of the Public Liability Insurance Act, 1991 provides that the Central Government shall establish a central fund to be known as the `Environmental Relief Fund', which shall be utilized for paying relief under the award made by the Collector. Sub-section (3) of Section 7A provides that the Central Government may notify a scheme specifying the authority in which the relief fund shall vest, the manner in which the relief fund shall be administered, the form and the manner in which money shall be drawn from the relief fund, etc. Page 10 of 13
12. Section 24 of the National Green Tribunal Act, 2010 provides that where any amount by way of compensation or relief is ordered to be paid by the Tribunal on the ground of any damage to environment, that amount shall be remitted to the authority specified under sub-section (3) of Section 7A of the Public Liability Insurance Act, 1991 for being credited to the Environmental Relief Fund established under that Act.
13. In exercise of the powers conferred under Section 7A, `the Environment Relief Fund Scheme, 2008' was notified by the Ministry of Environment and Forests on 04.11.2008. Clause (3) of the Scheme provides for an `Environment Relief Fund'. Clause (4) of the Scheme provides that the United India Insurance Company Ltd. was appointed as its Fund Manager for five years. United India was subsequently re- appointed as Fund Manager upto 31st December, 2014 and then 30th June, 2015, 31st December, 2015, 31st March, 2016 and 31st March, 2019. As per clause 3(4)(ii) the amount of environment compensation towards environment damages caused must be remitted by the owner into the Relief Fund.
14. Clause (5) of the aforesaid Scheme, 2008 provides for operation of the Fund. It further provides as follows:-
a. The Fund Manager shall open and operate a separate account in any Nationalized Bank for administering the Relief Fund in the name and style of "United Insurance Company Limited - Environment Relief Fund A/C".
b. All owners contributing to the Relief Fund shall inform the Fund Manager and the Collector about payment of the amount in Form-III within fifteen days of making of such payment of contribution to the insurer.
c. Claim settlement shall be made by the Fund Manager as per the sanction order issued by the Collector.
15. Clause (7) of the Scheme provides for the disbursement of Relief Fund as follows:-
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a. An application for claim for relief shall be made to the Collector in Form-I and the Collector shall award the amount of relief to the claimant in Form-II.
b. The Fund Manager shall ensure that the sum awarded is deposited with the Collector within thirty days of the receipt of the demand or as directed by the Collector.
c. The Collector shall disburse this money among the claimants after taking a receipt from them in Form-IV.
d. The Collector shall furnish accounts relating to the disbursement of relief amounts under the Relief Fund within forty five days to the Fund Manager.
e. The Collector shall disburse the money to the claimants as soon as he receives it from the Fund Manager, and in any case not later than fifteen days from the receipt of the amount.
16. The above procedure has been laid down in respect of disbursement of the amount of compensation to be paid to the applicants, which shall be followed in the present case also. The amount of Rs.7,24,128/-arrived at towards loss to rice crops alongwith interst thereon as per above direction shall be deposited by respondent No. 3 - Ultra-Tech Cement Ltd in Environment Relief Fund set up under the Public Liability Insurance Act, 1991, mentioned hereinabove. The aforesaid amount shall be disbursed by the Collector of the concerned district in accordance with the procedure prescribed above.
17. We also find that the Maharashtra Pollution Control Board (MPCB)
- respondent No. 4 has calculated the environmental compensation to the tune of Rs.17,34,375/- on the basis of methodology for assessing environment compensation issued by the Central Pollution Control Board (CPCB) and directed to submit the Bank Guarantee of Rs.10 lakhs towards operation and maintenance of pollution control equipments within seven days. The learned counsel for respondent No. 4 - MPCB has apprised us that the said amount of Rs.17,34,375/- has been deposited by respondent No.3 vide Demand Draft No.511536 dated 09.12.2021 drawn on HDFC Bank, but the Bank Guarantee of Rs.10 lakhs has not been deposited so far. We direct respondent No.3 - Ultra-Tech Cement Page 12 of 13 Ltd to deposit the Bank Guarantee of Rs.10 lakhs as well, as stated in the additional affidavit of the Maharashtra Pollution Control Board within a period of fifteen days from today. We also direct respondent No.4 - MPCB that it shall file an additional affidavit within a period of four weeks from today that an amount of Rs.17,34,375/- has been deposited by respondent No.3 vide the above referred Demand Draft number as well as the Bank Guarantee has been submitted by respondent No.3 as directed above.
18. With the above directions, we dispose of this Original Application.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM November 04, 2022 O.A. No. 71 of 2019 npj Page 13 of 13