National Green Tribunal
Shibu Manuel vs Government Of India Rep By Its Secretary ... on 27 May, 2022
Bench: Adarsh Kumar Goel, K. Ramakrishnan, Satyagopal Korlapati
Item Nos. 01 to 03 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 395/2013/SZ (THC)
SUO MOTU proceedings initiated based
on the representation received from
Justice R. Bhaskaran, Former Judge Applicant
Versus
State of Kerala & Ors. Respondent(s)
WITH
Original Application No. 396/2013/SZ
Shibu Manuel, Secretary, Green Action Force Applicant
Versus
The Govt. of India & Ors. Respondent(s)
WITH
Original Application No. 242/2016/SZ
K. Muhammed Iqbal Applicant
Versus
Kerala State Pollution Control Board & Ors. Respondent(s)
Date of hearing: 27.05.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Item No.1:
For Respondent(s): Mr. G. Prabhu, Advocate represented
Mr. E.K. Kumaresan for R1 to R4 & R7.
Mrs. M. Sumathi, Advocate for R5.
Mrs. Rema Smrithi V.K, Advocate for R8.
Mr. D.S. Ekambaram, Advocate for CPCB.
Item No.2:
For Respondent(s): Mr. G. Prabhu, Advocate represented
1
Mr. E.K. Kumaresan for R2 & R3.
Mrs. Rema Smrithi V.K, Advocate for R4.
Mr. S. Sai Sathya Jith, Advocate along with
Mr. S. Kamalesh Kannan, Advocate for R10.
Mr. R. Thirunavukarasu, Advocate for R12.
Item No.3:
For Respondent(s): Mrs. Rema Smrithi V.K, Advocate for R1 & R2.
Mr. S. Sai Sathya Jith, Advocate along with
Mr. S. Kamalesh Kannan, Advocate for R3.
ORDER
The Issue
1. This order will deal with above three applications in view of common question of pollution of Periyar River stretch in Kerala.
2. Proceedings in O.A. 395/2013 commenced on a letter of a former Kerala High Court Judge dated 04.06.2012, addressed to the Acting CJ of the High Court, leading to registration of W.P. 14947 of 2012, before the Kerala High Court, later transferred to this Tribunal vide order of the High Court dated 21.08.2013.
3. Proceedings in O.A. No. 396/2013 arise out of W.P. 30123 of 2007 filed before the Kerala High Court and transferred to this Tribunal vide order dated 21.08.2013, after being dealt with by the Kerala High Court for about six years.
4. O.A. 242/2016 was directly filed before this Tribunal and later tagged to these matters.
5. Thus, the matter has been before the Kerala High Court and later before this Tribunal for the last 15 years. Inspite of repeated directions in these proceedings and other separate orders of Hon'ble Supreme Court and this Tribunal in other proceedings, covering the issue raised herein, the pollution of Periyar River is still continuing, to the detriment of public 2 health and environment and in breach of public trust doctrine as well as Constitutional obligation of providing clean environment to the citizens.
6. We may refer to averments in Writ Petition 30123 of 2007 projecting the problem. Eloor is a river island on the River Periyar around 17 kms. from its mouth of the Arabian Sea near the city of Cochin, the commercial capital of Kerala. It occupies an area of 11.21 square kilo metres. Eloor supports the largest industrial belt in Kerala with over 247 chemical industries. The industries make a range of chemicals-petrochemical products, pesticides, rare earth elements, rubber processing chemicals, fertilizers, zinc/chrome products and leather products. Most of these industries are over 50 years old and employ the most polluting of technologies. The industries take in large amounts of fresh water from the River Periyar and in turn discharge concentrated effluent with nominal treatment. This leads to the large scale devastation of aquatic life in the river and the farm lands in the region. There are more than 30 effluent pipes spewing toxins into the river directly from the industry. Air emissions range from acid mist to Sulphur dioxide, Hydrogen Sulphide, Ammonia and chorine gas. Air pollution within industrial environment has been noted. A research conducted by the Green Peace analyzed the high rates of death at Eloor due to Cancer, Birth defects, Bronchitis, Asthma and depression as a result of concentrate effluent discharge with nominal treatment.
7. Green Peace investigation of the Hindustan Insecticides Ltd. Udyogamandal Industrial Estate gave a strong indication that activities at the Hindustan Insecticides Ltd. plant in Kochi, Kerala have resulted in substantial contamination of the Kuzhikandam thodu creek with DDT, Endosulfan, HCH (BHC) and a wide range of other hazardous organo- 3 chorine chemicals and are resulting in the ongoing release of many of these chemicals to the environment. DDT and other organo-chorines were also detectable in the wetlands surrounding the plant.
8. There are four thodus - Kuzhikandom thodu, Panachithodu, Pallipuram chal and Unthithodu which all lead to the Periyar River. Respondents 6 to 8 factories are situated very close to the above said four thodus. Due to the dumping of hazardous waste generated from the industrial units of the respondents 6 to 8 factories, the fishes and other livings of the water are dying day by day and also adversely affecting the life and health of the neighboring inhabitants due to the discharge of poisonous smoke, etc at the instance of the nearby factories. The applicant earlier took proceedings against such violations by way of O.P. 20392/03 before the High Court and authorities. Discoloration of Periyar River has become a continuous phenomenon due to the industrial effluents. Sample test reports dated 14/10/06 done by the environmental surveillance center of the Board at Eloor found presence of DDT and Endosulfan in the Kuzhikandom creek beyond the permissible limit. Tests conducted by the board official found that presence of these chemicals was 15 to 20 times above the permissible limit. In the sample test, it is revealed that heavy presence of pesticides like DDT and endosulfan proved that the effluent discharged was from Hindustan Insecticides Ltd., whereby the 4th respondent has issued a closure notice to the 6th respondent. Moreover, the study conducted in April 2005 onwards by the Thiruvananthapuram based NGO, Thanal and the Periyar Malineekarana Virudha Samithi reveals that hundreds of people living near Kuzhikandam creek at Eloor were afflicted with various diseases such as cancer, congenital birth defects, bronchitis, Asthama, Allergic dematitis, nervous disorders and behavior changes. Study conducted among the people of 327 families in 4 the region revealed that industrial pollution caused by discharge of hazardous chemicals, including DDT, hexachlorochyclohexanes, heavy metals, cadmium copper, mercury, led, toluene, manganese and nickel into Kuzhikandom creek had adversely affected the health condition of people in Eloor. But surprisingly, the authorities failed to take meaningful action to remedy the situation. However, the District Collector ordered investigation regarding discoloration of Periyar River. In the light of these averments, directions for remedial action are sought.
9. We now refer to the averments in O.A No. 242/2016 (SZ). It is stated that M/s Cochin Minerals and Routiles Ltd. has been operating on the eastern bank of Periyar in Edayar Industrial Area, manufacturing 140 TPD Synthetic Routiles from the raw materials of ilmenite, coke, hydrochloric acid, lime and chlorine. It indulges in discharge of untreated effluents into River Periyar, causing discoloration in the river. The Local Area Environment Committee (LAEC) constituted under the direction of Supreme Court Monitoring Committee (SCMC) for conducting environmental audit in the industrial units located in Eloor - Edayar, found several suspicious connection points and `T' joints into effluent outlet pipes. There were clandestine pipelines in Effluent Treatment Plant for bypassing the effluents from the treatment process and to discharge directly into the river through the outlet.
Procedural History - verification of facts and directions for remedial action from time to time
10. Considering the allegations of serious violations by the local bodies failing to prevent dumping of solid waste, slaughter house waste, bio- medical waste, plastic as well as effluents discharged by the industries including Hindustan Insecticides Ltd., the Fertilizers and Chemicals Travancore Ltd., Merchem Limited and Cochin Minerals and Routiles Ltd. 5 Bio-medical waste being discharged inter-alia by M/s. Rajakkad Medical Center, Rajakkad and M/s. St. Johns Medical Centre, Rajakkad, the Tribunal constituted a joint Committee of CPCB, State PCB and District Magistrate to prepare an action plan for preventing and remedying pollution. The Tribunal also considered factual reports furnished by Justice A.V. Ramakrishnapillai, a former judge of the Kerala High Court, who was heading a Monitoring Committee constituted by this Tribunal in O.A. No. 606/2018, In re: Compliance of Municipal Solid Waste Management Rules, 2016 and other environmental issues to oversee the remedial action for compliance of SWM Rules, 2016, and directed remedial action. Last order dated 26.11.2021 on review of earlier proceedings considering the action plan proposed by the Additional Chief Secretary
11. Though several orders have been passed by the High Court from 2007 to 2013 and by this Tribunal from 2013 onwards, to avoid repetition, it will suffice to refer to last order of the Tribunal dated 26.11.2021, in light of earlier proceedings, considering the factual reports furnished by Justice Ramakrishnapillai and Additional Chief Secretary, Kerala. It was noted that pollution of the river was taking place in three Districts of Kerala i.e. Idukki, Ernakulam and Thrissur. Local bodies were required to take remedial measures. Minimum flow of the river was not being maintained during the lean season either on account of water not being released from the dam or on account of unauthorized discharges which were required to be plugged. There was also need to prevent discharge of effluents from the industries. The Tribunal quoted the action plan prepared and updated in May, 2021 in respect of identified points emerging from the report of Justice Ramakrishna Pillai - analyzing water quality and taking action in light of the analysis reports, ascertaining causes of the colour changes in 6 the water and fish kill and taking remedial action, remedying black oil like substances found in the river, remedying pollution by bonemeal unit, checking clandestine discharge of pollution through underground pipes, checking clandestine discharge of effluents through the vehicles, checking pollution due to leachate from solid waste dump sites and ensuring continuous surveillance and monitoring by the State PCB at the identified hot spots in the area viz. :-
i) Idukki Stretch (Idukki-Munnar-Neriamangalam).
ii) Perumbavoor Stretch (Neriamangalam-Marampilly)
iii) Ernakulam Stretch (Marampilly-Aluva)
iv) Thrissur Stretch (Kottappuram-Munambam)
12. The report of the Additional Chief Secretary dated 16.08.2021 mentioned short-term and long-term measures for rejuvenation of the Periyar River. 83 identified short-term measures are as follows:-
SI No Activity 1 Identification of industries/ establishments/ commercial complexes/ flats / hotels etc discharging the sewage / waste water to the public drain/ stream/ river from Idukki to Azheekode-Munambam 2 Periodical inspection in the industries/ establishments/ commercial complexes/ flats / hotels etc. 3 Installation of Septage Treatment Plant, Munnar 4 Identification of the establishments/ commercial complexes /flats/ houses/ hotels etc who is discharging the sewage to the public drain leading to Periyar 5 Augmentation and Revamping of existing STP at near Adwaitha Ashramam and to increase the capacity of STP so as to treat more sewage generated in the municipality 6 Augmentation and Revamping of exisiting STP at Aluva Market and to increase the capacity of STP so as to treat more sewage generated in the municipality 7 Installation of Septage /sewage Treatment Plant for erumbavoor Municipality for the township area 8 Discharge of sewage from township to the River through drain near Periyar Hotel shall be stopped.
9 Augmentation and revamping of existing STP at Aluva Market and to increase the capacity of STP so as to treat more sewage generated in the municipality 7 10 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to :he pubic drain and to collect fine based on polluter pay principle 11 Periodical inspection in the Industries, Flats, hotels monitoring of STP,ETP.
12 Installation of modern abattoirs.
13 Procurement of sewer cleaning machines and equipment maintenance 14 Installation of cameras at the waste dumping spots 15 Construction of retaining wall with HDPE liner at Kalamassery dumping yard in order to prevent the leachate discharge from the yard to Thoombungal Thodu 16 Constitution of squads for night surveillance for finding the unauthorized dumping of sewage at NAD wet lands Kalamassery 17 Installation of common STP 18 Operation & Maintenance ETP at market 19 Monitoring of industries in Kalamassery Estate in order to find unauthorized activities during night 20 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain.
21 Installation of cameras at the waste dumping spots 22 Identification of sources of sewage discharged to drain near Pathalam bridge and action to stop the discharge which reach river Periyar from hotels, labour camps etc In case the quantity of sewage generated is assessed to be more STP need to be installed 23 Installation of cameras at the waste dumping spots 24 Periodical inspection in the Industries, Flats, hotels for monitoring of STP,ETP located in Cochin corporation.
25 Inventory of sources of pollution through a rapid study/Study for identification of pollution sources at Edapally thodu 26 Issuing notice to the defaulters waste water discharge and taking follow up actions 27 Periodical inspection in the flats,hotels, shops located along the river 28 Identification of natural drains reaching river and cleaning of weeds, grasses, Removing solid waste, installing waste collection traps etc 29 Clearing of weeds, grasses at the river bank in order to ensure the smooth flow of water 30 Maintaining of Minimum flow in river during lean period and periodical operation of Regulators at River in-order to maintain minimum flow.
31 Common Effluent Treatment Plant at Edayar Industrial Estate 32 Construction of internal roads and proper drainage in Edayar industrial estate 33 Installation of common discharge pipe line at downstream of Pathalam Regulator Bridge 8 34 Installation of Night vision surveillance cameras at the River Bank side 35 Periodical Monitoring of Eloor, Edayar, Kalamassery and Angamaly Industrial belts 36 Monitoring of quality of water at various intake point 37 Installation of additional continuous online River water monitoring station 38 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain 39 Installation of cameras at the waste dumping spots 40 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain 41 Installation of cameras at the waste dumping spots 42 Installation of Septage /sewage Treatment Plant for Kalamassery Municipality for the township area 43 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain 44 Installation of Septage /sewage Treatment Plant for kodungalloor Municipality 45 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain 46 Installation of Septage /sewage Treatment Plant for Eloor Municipality 47 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain 48 Installation of Septage /sewage Treatment Plant for Aluva Municipality 49 Installation of Septage /sewage Treatment Plant for Angamaly Municipality 50 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain 51 Installation of Septage /sewage Treatment Plant for Perumbavoor Municipality 52 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain 53 Installation of Septage /sewage Treatment Plant for Aluva Municipality 54 Installation of Septage /sewage Treatment Plant for N.Paravoor Municipality 55 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain 56 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain and to collect fine based on polluter pay principle.
57 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain and to collect fine based on polluter pay principle.
58 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain and to collect fine based on polluter pay principle.
59 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain and to collect fine based on polluter pay principle.9
60 Identification of the establishments/commercial complexes/flats/houses/hotels etc who is discharging the sewage to the public drain and to collect fine based on polluter pay principle.
61 Cleaning / desilting and side projecting all streams leading to periyar and its tributaries 62 Cleaning / desilting and side projecting all streams leading to periyar and its tributaries 63 Identification of the scientific reason for the colour change in the downstream of Pathalam bund 64 Remediation of contaminated sites along the stretch of periyar river and its tributaries, especially for those areas for which DPR has been made 65 Converting the service stations in the watershed area to zero discharge unit for preventing oil pollution and ensuring water conservation 66 Ensuring rain water harvesting and ground water recharge by industries, commercial establishments and residences 67 Ensuring the treated water reuse in major industries to reduce effluent discharge and pollution load in river due to industrial discharge. Encouraging the best performing industries for sustainable conservation measures. 68 Communicating and publishing monthly water quality data between the department and also for the information of public 69 Organizing awareness programs, webinars, river walk, boating for students and public to increase the public support for river conservation 70 Encouraging water sports and Establishing tourism spots across the river so that both the local and tourist people will feel ownership of river 71 Install trash trap across all tributaries and check dams to collect whatever floating debris coming through it.
72 Build a volunteer force of river keepers incorporating nature lovers, fishermen, anglers, natural photographers, fishing enthusiasts of local population.
73 Legacy waste management by Bio mining in Munar Grama panchayat 74 Solid waste management in Munar Grama panchayat 75 Controlling the excessive use of pesticides for farming 76 NGT- Removing the silt deposit and vegetation obstructing the flow of Periyar river upstream side of Pathalam Lock Cum Regulator.
77 (PRICE ID -2020/5673/IA) NGT - Desilting of the delta formed in Periyar river near Muttinakam Kadavu in Eloor municipality (PRICE ID - 2021/26/IA) 78 NGT desilting and side protection works to Edathodu in periyar river in Eloor Municipality. (PRICE ID- 2021/24/IA) 79 SDRF-Removing the silt deposit and vegetation obstructing the flow of Periyar at upstream side of Pathalam Regulator cum Bridge 80 NGT-Preventing pollution of Periyar through the pipe installed near upstream of Pathalam regulator leading to Edayattuchal paddy field 81 NGT - Desilting and side protection works to Kuthuthodu towards Periyar river in Kadungalloor GP(PRICE ID -2021/20/IA) 82 NGT Desilting and side protection works to Valiyachal thodu towards periyar river in Eloor Muncipality (PRICE ID-2021/21/IA) 83 NGT-Desilting and side protection works to Eerezhuchal Puncha thodu towards Periyar river in Eloor Municipality ;PRICE ID-2021/22/IA) 10
13. Long term measures proposed are:-
SI Activity No 1 Installation of modern abattoirs including poultry and meat rendering plants. 2 Installation of modern abattoirs including poultry and meat rendering plants. 3 Installation of modern abattoirs including poultry and meat rendering plants. 4 Installation of FSTPs for septage treatment at least in block level 5 Installation of FSTPs for septage treatment at least in block level 6 Installation of FSTPs for septage treatment at least in block level 7 Construction of walkway, ring roads etc at the Periyar River bank. 8 Fencing of the river along the banks along the stretches of waste disposal 9 Beautification of the river stretches 10 Collection and disposal of domestic hazardous waste 11 Collection and safe disposal of Electronic waste 12 Collection and safe disposal of domestic biomedical waste
14. The Tribunal found that though the plan mentioned large number of action points, it did not mention the estimated cost, the source of funding and how the timeline will be achieved. Some proposed timelines had already lapsed without result. Thus, the plan remained on paper which required serious attention at higher level in the administration i.e. the Chief Secretary. Relevant observations are quoted below:-
"1to8....................xxx..................................xxx......................xxx
9. We feel that the Chief Secretary, State of Kerala will have to look into the issue seriously and involve himself/herself into those issues and get a proper action plan prepared with shorter timeline with estimate and make a provision for that amount in the budget to implement the same without obstruction or delay."11
Action taken Report filed during today's hearing and further orders
15. In pursuance of order dated 26.11.2021, an action taken report has been filed by the Chief Secretary, Kerala, during today's hearing as follows:-
"It is respectfully submitted that in pursuance to the order of the Hon'ble National Green Tribunal (SZ) on 26.11.2021, the Additional Chief Secretary to Government has submitted his Action Taken Report and the same is enclosed herewith.
1. It has been stated in the said report that after detailed discussions and deliberations with all the stakeholder departments, following decisions were taken:
(a) Common Effluent Treatment Plant (CETP) at Edayar:
The Industrial Units should form a special purpose vehicle or a consortium to set up CETPs and to ensure its operation and maintenance and the respective industries shall provide funds for setting up such facilities. The Industries Department has been directed to seriously look into this aspect and take up detailed and effective discussions with the industrial units. The Kerala State Pollution Control Board also directed to extend necessary help in this regard.
(b) Action Plan for Periyar River:
The Local Self Government is regularly reviewing and monitoring these issues an entrusted Performance Audit Supervisors to conduct field level visits. The Superintending Engineer, LSGD to conduct immediate meeting with local bodies and obtain actions plan for practical solutions. The Superintending Engineer, Irrigation Department informed that Action Plan is being worked out with the support of the District Collector in coordination with the LSGD/LSGIs. It was also reiterated that action in all the areas can be taken up simultaneously for the entire Action Plan so that the pollution in the water bodies are controlled.
(c) Septage & Solid Waste Treatment Plants: - Financial Requisites:12
The Additional Chief Secretary informed the local bodies that the funds require for STPs from the 2021-22 Plan Fund and funds for Solid Waste Management can be availed from the World Bank (IBRD) funds and all assistance in setting up the STPs would be provided by Kerala Water Authority.
3. It is submitted that it was informed by the Chief Secretary that the Action Plan shall be modified with definite timeline and funds thereof and a report on the same will be submitted to the Department of Environment and KSPCB within one month without fail.
4. In these circumstances, it is therefore prayed that Hon'ble Tribunal may grant three months time to submit the Action Plan and thus render justice.
Dated at Chennai on this 27th day of May, 2022."
Further consideration and final Directions
16. The above narrative depicts utter lack of concern for the continuing serious pollution and consequences on public health and environment. It continues to cause deaths and diseases and also affect food safety on account of polluted water being used for irrigation. Reports of the authorities during the last several years do not show improvement in water quality of the River Periyar at any of the locations in question. It is not clear whether the river water is fit for bathing purpose, with Fecal Coliform counts being within acceptable level. Further, the Greater Kochi (Udyogamandal) is one of the critically industrial polluted area, having Comprehensive Environmental Pollution Index (CEPI) at 52.94 (2018). This certainly necessitates that the industries are compelled to adopt Zero Liquid Discharge (ZLD). Further, Periyar River in Kerala falls in the list of identified polluted river stretches under 'Priority-V' category Alwaye - Eloor to Kalamassery, having BOD range between 3-6.0 mg/l. An action plan has been prepared in May 2019 by involvement of various departments like 13 Department of Irrigation, Kerala Water Authority, Kochi Corporation, Local Self Government, Industries, Suchitwa Mission, Kerala Remote Sensing and Environment Centre and the District Administration. The action plan identified short-term and long-term actions but there is no mention of execution of the said plan. Such execution must be expedited without further delay on the pretext of non-availability of funds or non identification of executing agencies. Since discharge of untreated sewage into the river is a criminal offence under the Water Act, the same must be stopped forthwith. River must meet standard of atleast Class-B designated best use classification of CPCB. Plea that Kerala being high rain-fed area does not require any solution untenable.
17. Pollution is crime against humanity and under law of the land. Right to clean environment is part of Right to Life. As already noted, large number of deaths and diseases are attributable to it. Most of the victims are poor voiceless people. Even if victims are poor and helpless, no State under the Constitution can show apathy and pay lip sympathy to the issue inspite of binding Court orders, including continuing contempt of judgment of the Hon'ble Supreme Court dated 22.02.2017 in Paryavaran Surksha Samiti v. Union of India1 fixing deadline of 31.03.2018 for ensuring treatment of polluted water by local bodies as well as industries and directing prosecution and other coercive measures for failure. In compliance of the said judgment which required this Tribunal to monitor, the Tribunal has passed repeated directions. The Tribunal also summoned the Chief Secretaries of all the States/UTs including the Chief Secretary of Kerala for interaction in O.A. No. 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016 (State of Kerala). A detailed order dated 1 (2017) 5 SCC 326 14 25.04.2019 was passed in presence of the Chief Secretary, Kerala. The order covers steps for preventing discharge of untreated sewage and effluents, solid waste management and preventing air pollution in the light of number of orders already passed. The Chief Secretary was to personally monitor remedial steps atleast once a month by constituting an Environmental Cell directly under him. The District Magistrates were to monitor such compliance at their level. The Tribunal expected that within six months from the said order, meaningful remedial action will be completed. We note with regret that even today, long timelines are being proposed with lot of vagueness, without commitment of action against failures. Provision for funds is in the realm of uncertainties. It is difficult to believe that authorities do not have seriousness in dealing with such serious human issue. Allocation of funds for preventing pollution is expected to be top priority. On 'Polluter Pays' principle, cost of remediation is to be recovered from the violators, with deterrent amount of compensation linked to the financial capacity of polluters which is not happening. Polluters and erring officers are required to be prosecuted and made accountable to law for such failures. Good governance principles require adopting best practices, associating industries in treatment of pollution and utilization of treated water for different secondary purposes
- agriculture, industrial, gardening, etc. Serious thinking is required by the authorities in the State of Kerala on such issues so as to result in improvement on the ground.
18. We may also refer to some specific directions of the Hon'ble Supreme Court and this Tribunal in OA No. 593/2017 and OA No. 673/2018 on the subject of controlling industrial pollution, preventing discharge of untreated sewage into the rivers. The Tribunal directed action plans to be prepared and to be monitored by the River Rejuvenation Committees 15 (RRCs), which were directed to be constituted in all States/UTs, for restoration of water quality of 351 polluted river stretches in the country. The relevant extracts from the orders are reproduced below:
"Extracts from the judgement of the Hon'ble Supreme Court in Paryavaran Suraksha Samiti Vs. Union of India, supra "7. Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50%, that of the State Government concerned (including the Union Territory concerned) is 25%. The balance 25%, is to be arranged by way of loans from banks. The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed that the setting up of a common effluent treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced). The reason for the above prolonged period, for setting up "common effluent treatment plants", according to the learned counsel, is not only financial, but also, the requirement of land acquisition, for the same.
x..............................x.....................x....................
10. Given the responsibility vested in municipalities under Article 243-W of the Constitution, as also, in Item 6 of Schedule XII, wherein the aforesaid obligation, pointedly extends to "public health, sanitation conservancy and solid waste management", we are of the view that the onus to operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies).
Given the aforesaid responsibility, the municipalities (and/or local bodies) concerned, cannot be permitted to shy away from discharging this onerous duty. In case there are further financial constraints, the remedy lies in Articles 243-X and 243-Y of the Constitution. It will be open to the municipalities (and/or local bodies) concerned, to evolve norms to recover funds, for the purpose of generating finances to install and run all the "common effluent treatment plants", within the purview of the provisions referred to hereinabove. Needless to mention that such norms as may be evolved for generating financial resources, may include all or any of the commercial, industrial and domestic beneficiaries, of the facility. The process of evolving the above norms, shall be supervised by the State Government 16 (Union Territory) concerned, through the Secretaries, Urban Development and Local Bodies, respectively (depending on the location of the respective common effluent treatment plant). The norms for generating funds for setting up and/or operating the "common effluent treatment plant"
shall be finalised, on or before 31-3-2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the State Governments (or the Union Territories) concerned, shall cater to the financial requirements, of running the "common effluent treatment plants", which are presently dysfunctional, from their own financial resources.
11. Just in the manner suggested hereinabove, for the purpose of setting up of "common effluent treatment plants", the State Governments concerned (including, the Union Territories concerned) will prioritise such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.
12. We are of the view that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We, therefore, hereby direct that "sewage treatment plants" shall also be set up and made functional, within the timelines and the format, expressed hereinabove.
13. We are of the view that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We, therefore, hereby provide that the directions pertaining to continuation of industrial activity only when there is in place a functional "primary effluent treatment plants", and the setting up of functional "common effluent treatment plants" within the timelines, expressed above, shall be of the Member Secretaries of the Pollution Control Boards concerned. The Secretary of the Department of Environment, of the State Government concerned (and the Union Territory concerned), shall be answerable in case of default. The Secretaries to the Government concerned shall be responsible for monitoring the progress and issuing necessary directions to the Pollution Control Board concerned, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data and shall furnish the same to the Bench of the jurisdictional National Green Tribunal. 17
14. To supervise complaints of non-implementation of the instant directions, the Benches concerned of the National Green Tribunal, will maintain running and numbered case files, by dividing the jurisdictional area into units. The abovementioned case files will be listed periodically. The Pollution Control Board concerned is also hereby directed to initiate such civil or criminal action, as may be permissible in law, against all or any of the defaulters.
x........................x........................x.................
16. It however needs to be clarified, that the instant directions and time lines, shall not in any way dilute any time lines and directions issued by Courts or Benches of the National Green Tribunal, hitherto before, wherein the postulated time lines would expire before the ones expressed through the directions recorded above. It is clarified, that the time lines, expressed hereinabove will be relevant, only in situations where there are no prevalent time line(s), and also, where a longer period, has been provided for."
(emphasis supplied) Extracts from orders of this Tribunal in OA 593/2017 :
Order dated 21.05.2020
26. Summary of directions:
i. All States/UTs through their concerned departments such as Urban/Rural Development, Irrigation & Public Health, Local Bodies, Environment, etc. may ensure formulation and execution of plans for sewage treatment and utilization of treated sewage effluent with respect to each city, town and village, adhering to the timeline as directed by Hon'ble Supreme Court. STPs must meet the prescribed standards, including faecal coliform.
CPCB may further continue efforts on compilation of River Basin-wise data. Action plans be firmed up with Budgets/Financial tie up. Such plans be overseen by Chief Secretary and forwarded to CPCB before 30.6.2020. CPCB may consolidate all action plans and file a report accordingly.
Ministry of Jal Shakti and Ministry of Housing and Urban Affairs may facilitate States/UTs for ensuring that water quality of rivers, lakes, water bodies and ground water is maintained.
As observed in para 13 above, 100% treatment of sewage/effluent must be ensured and strict coercive action taken for any violation to enforce rule of law. Any party is free to move the Hon'ble Supreme Court for continued violation of its order after the deadline 18 of 31.3.2018. This order is without prejudice to the said remedy as direction of the Hon'ble Supreme Court cannot be diluted or relaxed by this Tribunal in the course of execution. PCBs/PCCs are free to realise compensation for violations but from 1.7.2020, such compensation must be realised as per direction of this Tribunal failing which the erring State PCBs/PCCs will be accountable."
Order dated 21.09.2020 "11. The Tribunal has already issued directions vide orders dated 28.08.2019 and 21.05.2020 for ensuring that no untreated sewage/effluent is discharged into any water body and for any violation compensation is to be assessed and recovered by the CPCB so that the same can be utilized for restoration of the environment, complying with the principle of 'Polluter Pays' which has been held to be part of 'Sustainable Development' and part of right to life. Control of such pollution is crucial for environment, aquatic life, food safety and also human health. .."
From OA 673/2018:
Order dated 06.12.2019:
6. The Hon'ble Supreme Court noticed the level of degradation of rivers in India and apathy of the authorities as follows:
"58. Rivers in India are drying up, groundwater is being rapidly depleted, and canals are polluted. Yamuna in Delhi looks like a black drain. Several perennial rivers like Ganga and Brahmaputra are rapidly becoming seasonal. Rivers are dying or declining, and aquifers are getting over pumped. Industries, hotels, etc. are pumping out groundwater at an alarming rate, causing sharp decline in the groundwater levels. Farmers are having a hard time finding groundwater for their crops e.g. in Punjab. In many places there are serpentine queues of exhausted housewives waiting for hours to fill their buckets of water. In this connection John Briscoe has authored a detailed World Bank Report, in which he has mentioned that despite this alarming situation there is widespread complacency on the part of the authorities in India.2 "4. We see Yamuna river virtually turned into a sullage.
We take judicial notice of this situation. Similar is the position with Ganges. As it proceeds, industrial effluents are being poured in rivers. Sewage is also being directly put in rivers contributing to the river water pollution. We direct the Pollution Control Boards of the various States as well as the Central Pollution Control Board and various Governments to place before us the data and material with respect to various rivers in the concerned 2 State of Orissa v. Govt. of India, (2009) 5 SCC 492 19 States, and what steps they are taking to curb the pollution in such rivers and to management as to industrial effluents, sewage, garbage, waste and air pollution, including the water management. We club the ending case of water management with this matter.3 xxx.........................................xxx..........................xxx
11. In spite of above, in flagrant violation of law of the land, polluted water in the form of sewage, industrial effluents or otherwise has continued to be discharged in the water bodies including the rivers or the canals meeting the rivers. Violation of law is not only by private citizens but also statutory bodies including the local bodies and also failure of the regulatory authorities in taking adequate steps. There is no corresponding coercive action posing danger to rule of law when large scale violation of law is not being remedied. This leads to lawlessness.
12. It will be appropriate to note the crisis situation in the country on the subject of availability of potable water. The matter has been considered in the report of Niti Aayog on Composite Water Management Index (CWMI).4 Following further information also needs to be noted:
(i) India is suffering from the worst water crisis in its history and millions of lives and livelihoods are under threat.
Currently, 600 million Indians face high to extreme water stress and about two lakh people die every year due to inadequate access to safe water5. The crisis is only going to get worse. By 2030, the country's water demand is projected to be twice the available supply, implying severe water scarcity for hundreds of millions of people and an eventual ~6% loss in the country's GDP6. As per the report of National Commission for Integrated Water Resource Development of MoWR, the water requirement by2050 in high use scenario is likely to be a milder 1,180 BCM, whereas the present-day availability is 695BCM. The total availability of water possible in country is still lower than this projected demand, at 1,137BCM. Thus, there is an imminent need to deepen our understanding of our water resources and usage and put in place interventions that make our water use efficient and sustainable.
(ii) India is undergoing the worst water crisis in its history.
Already, more than 600 million people7 are facing acute water shortages. Critical groundwater resources - which account for 40% of our water supply - are being depleted at unsustainable rates.8 3 M.C. Mehta Vs Union of India- W.P. (Civil) No. 13029/1985 dated 25.11.2019 4 Niti Ayog on "Composite Water Management Index", June 2018, https://niti.gov.in/writereaddata/files/document_publication/2018-05-18-Water-Index- Report_vS8-compressed.pdf.
5 Source: WRI Aqueduct; WHO Global Health Observatory 6Source: McKinsey & WRG, 'Charting our water future', 2009; World Bank; Times of India 7 Source: World Resource Institute 8 Source: World Resource Institute 20
(iii) Most states have achieved less than 50% of the total score in the augmentation of groundwater resources, highlighting the growing national crisis--54% of India's groundwater wells are declining, and 21 major cities are expected to run out of groundwater as soon as 2020, affecting ~100 million people9.
(iv) With nearly 70% of water being contaminated, India is placed at 120th amongst 122 countries in the water quality index.
13. As per statistics mentioned before the Lok Sabha on April 6, 2018, waterborne diseases such as cholera, acute diarrhoeal diseases, typhoid and viral hepatitis continue to be prevalent in India and have caused 10,738 deaths, over the last five years since 2017. Of this, acute diarrhoeal diseases caused maximum deaths followed by viral hepatitis, typhoid and cholera.10
14. As per 'National Health Profile' published by Central Bureau of Health Investigation, Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, a total of 1535 Deaths due to Acute Diarrhoeal Diseases was reported during the year 2013.11 Main Causes of Pollution of Rivers
15. As already noted, well known causes of pollution of rivers are dumping of untreated sewage and industrial waste, garbage, plastic waste, e-waste, bio-medical waste, municipal solid waste, diversion of river waters for various purposes affecting e-flow, encroachment of catchment areas and floodplains, over drawl of groundwater, river bank erosion on account of illegal sand mining. Inspite of directions to install Effluent Treatment Plants (ETPs), Common Effluent Treatment Plants (CETPs), Sewage Treatment Plants (STPs), and adopting other anti-pollution measures, satisfactory situation has not been achieved. As per CPCB's report 201612, it has been estimated that 61,948 million liters per day (mld) sewage is generated from the urban areas of which treatment capacity of 23,277 mld is currently existent in India. Thereby the deficit in capacity of waste treatment is of 62%. There is no data available with regard to generation of sewage in the rural areas.
xxx.........................................xxx..........................xxx
33. We may note the observations of the Hon'ble Supreme Court:
9 Source: UN Water, 'Managing water under uncertainty and risk', 2010; World Bank (Hindustan Times, The Hindu).10
https://www.indiaspend.com/diarrhoea-took-more-lives-than-any-other-water-borne- disease-in-india-58143/ 11 http://pib.nic.in/newsite/PrintRelease.aspx?relid=106612 12 http://www.sulabhenvis.nic.in/Database/STST_wastewater_2090.aspx July 16, updated on December 6, 2016 21 "26. Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the law- abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that Parliament enacted the anti- pollution laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations.13 xxx.....................xxx.................................xxx "61. ..... If the laws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large-scale cannot take place without connivance of the officers concerned. It is also a source of corruption. Therefore, action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens."14 xxx.........................................xxx..........................xxx
35. Vide order dated 22.08.2019 in Original Application 200/2014, dealing with the pollution of river Ganga, the Tribunal issued directions and laid down coercive measures to be taken for discharge of untreated sewage in river Ganga:-
"16. xxx.....................xxx.................................xxx 13 INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION Vs. UNION OF INDIA AND OTHERS (1996) 5 SCC 281 14 M.C. Mehta v. Union of India, (2006) 3 SCC 399 - Public functionaries 22
17. Wherever the work has not commenced, it is necessary that no untreated sewage is discharged into the River Ganga. Bioremediation and/or phytoremediation or any other remediation measures may start as an interim measure positively from 01.11.2019, failing which the State may be liable to pay compensation of Rs. 5 Lakhs per month per drain to be deposited with the CPCB. This however, is not to be taken as an excuse to delay the installation of STPs. For delay of the work, the Chief Secretary must identify the officers responsible and assign specific responsibilities. Wherever there are violations, adverse entries in the ACRs must be made in respect of such identified officers. For delay in setting up of STPs and sewerage network beyond prescribed timelines, State may be liable to pay Rs. 10 Lakhs per month per STP and its network. It will be open to the State to recover the said amount from the erring officers/contractors.
36. Vide order dated 28.08.2019, the Tribunal held:-
"15. xxx...............xxx.......................................xxx "16. xxx.....................xxx.................................xxx
17. As already noted, prevention of pollution of water is directly linked to access to potable water as well as food safety. Restoration of pristine glory of rivers is also of cultural and ecological significance. This necessitates effective steps to ensure that no pollution is discharged in water bodies. Doing so is a criminal offence under the Water Act and is harmful to the environment and public health. 'Precautionary' principle of environmental law is to be enforced. Thus, the mandate of law is that there must be 100% treatment of sewage as well as trade effluents. This Tribunal has already directed in the case of river Ganga that timelines laid down therein be adhered to for setting up of STPs and till then, interim measures be taken for treatment of sewage. There is no reason why this direction be not followed, so as to control pollution of all the river stretches in the country. The issue of ETPs/CETPs is being dealt with by an appropriate action against polluting industries. Setting up of STPs and MSW facilities is the responsibility of Local Bodies and in case of their default, of the States. Their failure on the subject has to be adequately monitored. Recovery of compensation on 'Polluter Pays' principle is a part of enforcement strategy but not a substitute for compliance. It is thus necessary to issue directions to all the States/UTs to enforce the compensation regime, latest with effect from 01.04.2020. We may not be taken to be condoning any past violations.23
The States/UTs have to enforce recovery of compensation from 01.04.2020 from the defaulting local bodies. On failure of the States/UTs, the States/UTs themselves have to pay the requisite amount of compensation to be deposited with the CPCB for restoration of environment. The Chief Secretaries of all the States may furnish their respective compliance reports as per directions already issued in O.A. No. 606/2018."
19. Having regard to the above, since all issues stand identified and there are binding directions of the Hon'ble Supreme Court and this Tribunal to enforce the State's obligation to provide clean environment to citizens, no purpose will be served by endless proceedings before the Tribunal. It is high time that the State takes over its responsibility and higher level monitoring mechanism is evolved.
20. Accordingly, we direct the Chief Secretary, Kerala to forthwith constitute a monitoring committee comprising of four Additional Chief Secretaries of concerned Departments - Environment, Local Self- government, Irrigation/Water Resource and Finance. The Additional Chief Secretary, Environment will be the Coordinator. The Committee may hold its first meeting within two weeks to take stock of the situation of execution of action plan with time-bound targets. Progress on such targets must be reviewed atleast once in a month. The Committee may associate Chairman of the State PCB and District Magistrates of the three concerned districts and any other experts/individual/organization. The minutes of the meeting may be placed on the website of the Environment Department. The Chief Secretary may interact with the Committee atleast once in three months. Constitution of Committee is required for coordinated action. The Committee may consider core steps required to restore the water quality of the river so as to protect the environment and public health. Though all earlier laid down timelines by the Tribunal are over, the Committee must 24 conclude execution of action plans within one year. Having regard to the priority of the issue, the allocation of necessary funds may be given priority. Funds available with the State PCB for restoration of environment may also be utilized, to the extent found viable. The Committee may also ensure that all concerned industries in the catchment area of the Periyar River in the stretch in question adopt Zero Liquid Discharge (ZLD) and are compliant with the norms. The Committee may also ensure remedial action by the State PCB in exercise of statutory powers under the Water (Prevention and Control of Pollution) Act, 1974 against the erring industries/individuals/local bodies.
The Application is disposed of.
A copy of the order be forwarded to the Chief Secretary, Kerala by email for compliance.
If any grievance survives, it will be open to the aggrieved party to take remedy as per law.
Adarsh Kumar Goel, CP K. Ramakrishnan, JM Sudhir Agarwal, JM Dr. Satyagopal Korlapati, EM Prof. A. Senthil Vel, EM May 27, 2022 Original Application No. 395/2013/SZ (THC) and connected matters AB 25