National Green Tribunal
Bhag Singh vs Union Of India on 2 April, 2019
Bench: Adarsh Kumar Goel, K. Ramakrishnan
Item No.14 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
M.A. No. 93/2019, M.A. No. 94/2019, M.A. No. 95/2019,
M.A. No. 96/2019 & M.A. No. 97/2019
IN Original Application No. 358/2016
Bhag Singh Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 02.04.2019
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Mr. Manoj Swarup, Sr. Advocate, Ms. Vidisha
Swarup, Mr. Rishi Malhotra, Advocates in M.A
No. 97/2019
Mr. Sanjay Jain, ASG, Mr Ashok Sharma, AG,
H.P, Mr. Vikas Mahajan, AAG, H.P in M.A No.
93 & 94 of 2019
Mr. Krishana Venugopal, Sr. Advocate, Mr.
Kunwar Shashank, Advocates in M.A No.
95 & 96 of 2019
For Respondent (s): Mr. Divya Prakash Pande, Advocate for HPSPCB
ORDER
M.A. No. 95 of 2019 and M.A No. 96/2019 These applications have been filed by GMR Bajoli, Holi Hydropower Pvt. Ltd seeking clarification that order of this Tribunal dated 29.10.2018 on the subject of siting criteria for stone crushers in Himachal Pradesh does not apply to the applicant.
Case of the applicant is that it is undertaking Hydro- electricity project in Chamba, District of Himachal Pradesh on river Ravi. The Ministry of Environment Forest & Climate Change (MoEF 1 & CC) has granted Environmental Clearance on 24.01.2011 and Himachal State Pollution Control Board has given Consent to Operate and Consent to Establish. The project requires concrete and short crete, which is produced by the crushers utilizing excavated materials from the tunnels and dam. The site has been approved by the Site Appraisal Committee with representatives of Forest Department, State Pollution Control Board and PWD. The project has adopted pollution mitigation measures. The State Pollution Control Board has imposed following conditions:
"45) Crusher shall be operated by using the tunnel muck after obtaining permission from the concerned department.
46) The Stone Crusher proposed by the company shall be only for the captive purpose of the hydro project.
47) The Stone Crusher shall be operated only during the construction of the project and thereafter its operation will not be allowed."
80% of the project has already been completed and the remaining will be completed by September, 2019. The activities of the applicant are different from other commercial activities and the project requires the muck extracted in the process crushed at the site itself and utilize for the project.
In the circumstances mentioned above, it is clear that the order of this Tribunal dated 29.10.2018 in O.A. No. 358/2016 does not apply to the case of the applicant. Present case is for utilizing muck generated by the project which is undertaken in public interest with all requisite clearances and the project is not one of 2 stone crushing though such activity is essential part of execution of the project. Order dated 29.10.2018 is clarified accordingly.
The applications are disposed of.
M.A No. 93/2019 and M.A. No. 94/2019
1. These applications have been filed by the State of Himachal Pradesh to seek a modification that Entry No. 14 of Notification dated 29.5.2014 referred to in the order of this Tribunal dated 29.10.2018 does not apply to non-perennial rivulets. Modification is not to correct any unintended error but for all purposes a review of a conscious decision to the contrary.
2. The issue considered in the order of this Tribunal was with regard to location of stone crushers within 100 mtrs of water bodies in violation of siting criteria laid down by the State of Himachal Pradesh under Section 5 of the Environment (Protection) Act, 1986 vide notification dated 29.5.2014. The said notification refers to judgement of High Court of Himachal Pradesh dated 01.6.2012 in CWP No. 7949/2011 and 7951, Desh Raj v. State of H.P & Ors and Yog Raj v. State of H.P & Ors requiring prohibition of location of stone crushers within specified distance of specified water bodies to apply to 'perennial rivulets'. Categories of water bodies earlier specified were "springs, canals, reservoirs and functional water supply schemes." The High Court held that 'perennial rivulets' must also be added for prohibition of location of stone crushers within the specified distance. Accordingly, notification dated 29.5.2014 was issued. It will be appropriate to quote relevant direction of the High Court:-
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"With the economic growth and increase of developmental activities within the State of Himachal Pradesh, large number of stone crushing units have been established within the State. In fact stone crushing is an industry in itself. These units are governed by the Notifications dated 29.4.2003 and 10.9.2004. Considering the long time gap, we are of the considered view that matter needs to be considered afresh by the Government/ appropriate authorities after collecting and collating all relevant material in this regard from all the concerned quarters including other States, general public and stake/duty holders and industry. Therefore, we direct the Chief Secretary to the State of Himachal Pradesh to constitute a Committee comprising of all the concerned Secretaries, including Secretary (Fishery), and examine whether existing guidelines need to be clarified/ elaborated/ amended. This shall be positively done within a period of six months from today. However, till the same is done and considering the urgency in the matter, we issue the following directions:-
i. The term 'village abadi-deh', has to mean revenue village as defined under Revenue Laws of the State. Individual, scattered houses constructed by land owners outside the revenue village, unless they are in clusters shall not be termed as 'abadi-deh'.
ii. The spring, canal, reservoir or functional water supply scheme and natural water spring would include rivulets which are perennial in nature.
iii. While approving the site, the authorities shall take into account the impact of pollution, which the Unit is likely to cause on such water sources as also the flora and fauna.4
iv. Pollution Control Board cannot be allowed to act as a mute spectator. Being a statutory regulator, it has to independently assess the impact which the project is likely to cause on the air, noise and water pollution falling within the meaning and definition of various environmental laws of the land.
v. Before permission of execution of mining lease is accorded, the Director of Industries, through its independent agencies shall verify with regard to the correctness of the report of the Joint Inspection Committee, which accorded approval for establishment of the stone crushing Unit.
vi. Certified copy of minutes of meeting of the concerned Panchayat issuing No Objection Certificate shall form part of the Certificate issued by the Pradhan of the concerned Gram Panchayat.
vii. There shall not be any automatic renewal of registration of the stone crushing unit. All statutory authorities shall ensure disposal of the applications for renewal filed by the owners of the Units within the prescribed period. Under no circumstances there shall be deemed continuation of registration of the Unit after expiry of its original period of registration. It shall be as much a duty of the owner of the Unit as it would be that of the duty holder to ensure that application for renewal is disposed of, in accordance with law, within the stipulated period of time. Disciplinary action against the defaulting officers/officials be promptly initiated.
viii. For protection and conservation of environment, so that there is minimum adverse impact and 5 emission of pollution from the stone crushing unit, it be ensured that the unit-holder plants at least 3 rows of tall fast growing species of trees on all sides of the Unit. This would not only increase the vegetative growth of the area and make the place look beautiful but also act as a wind barrier.
ix. The Unit shall ensure that aggregate is stacked in such a manner that it does not spill over to the Highways/roads which can be cause of road accidents.
x. Sign board at a prominent place outside the stone crushing unit shall be displayed indicating the name of the owner, capacity of the unit, date of registration of the unit as also its expiry, telephone number of the owner and the concerned officer to whom public can make a complaint, if any."
3. Relevant extract from the Notification dated 29.05.2014 is as follows:-
" Sr. Criteria Distance Distance Distance for No. norms for norms for the stone existing stone existing crushers to crushers(crow stone be set up in flight, crushers future, (crow distance in (crow flight, flight, meters) set distance in distance in up prior to meters) set meters) from year 2004 up after year the issuance 2004 to of the May, 2014 Notification.8. a. Minimum 100 - 100
distance from (excluding
spring, canal, spring canal)
functional
water supply
scheme
including its
reservoir.
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b. Minimum - - 100
distance from a
percolation
well, sewerage
treatment
plant, water
infiltration
galleries.
9. Minimum 500 500 500
distance from
lakes, wetlands
and reservoir of
irrigation
scheme, hydro
power projects.
10. Minimum - 500 100(as at
distance from Sr. No.8 (a)
natural water
spring
14. Minimum (100 for - 100
distance from canal)
the canal and
perennial "
rivulets
4. The stand of the stone crushers was that the above development means that 'non-perennial' water bodies are not subject matter of the Regulatory Notification. The Tribunal rejected this stand. It was held that having regard to the 'Precautionary' principle and 'Sustainable Development' principle, interpretation permitting the location of a stone crusher too close to a water body affecting ecology could not be preferred. There was no reason to give limited meaning to the prohibition against location of stone crushers within the prohibited distance of water bodies covered by the notification. A part of the order of NGT is extracted below:-7
"8. A reference to above Entry shows that there is prohibition for location of a stone crusher within 100 meters from springs, canals, reservoirs or functional water supply schemes and natural water schemes. The rivulets of perennial nature are specifically included in the said expression but it cannot be read as excluding non-
perennial water bodies. The object of the regulatory notification issued under the Environment (Protection) Act, 1986 is to protect the ecology from the adverse impact of location of a stone crusher nearby. The intention is not to permit a stone crusher within 100 meters of a water body.
Importance of protection of water bodies can hardly be over-emphasized. Interpretation of a regulatory provision must be consistent with the 'precautionary principle' and 'sustainable development principle'. Location of a stone crusher very close to a water body is against the principle of 'sustainable development' as well as the 'precautionary principle'. The above Notification cannot be read as meaning that stone crushers can be allowed to be located just on the edge of a water body even if such water body is not perennial. Thus, the stone crushers set up within 100 meters of a water body will be illegal and in violation of Environment (Protection) Act, 1986 and the Notification issued thereunder."
5. On Appeal, the Hon'ble Supreme Court, vide order dated 07.01.2019 in Civil Appeal No. 94/2019 in Himachal Grit Udyog & Ors v. U.O.I & Ors, observed that grievances put forward before the Hon'ble Supreme Court could be addressed before this Tribunal at the first 8 instance for which the State could place before the Tribunal 'unimpeachable scientific material' which may provide objective basis to consider a case for modification.
6. The grievances before the Hon'ble Supreme Court , as noted in the above order, are as follows:
i. Many of the stone crushing units were in operation for over two decades and their perspective was not placed before the Tribunal, in absence of their being party; and ii. Direction of the Tribunal may cause dislocation to established stone crushers. If the State was aware of the nature of the direction which has been issued, the State would have rendered assistance in placing the ramifications for consideration of the Tribunal. According to the State, the expression "perennial rivulets" did not mean water bodies which are functional everyday of the year.
7. The Hon'ble Supreme Court observed that difficulty in the above submissions lies in the minimum distance required to be maintained for non-perennial water bodies.
8. The submissions on behalf of the State of Himachal Pradesh raised before this Tribunal are basically mentioned in paragraph No. 13 of the application which refers to a study on the catchment area of particular streams to analyse drainage density. In the process, number of circles having radius of 1 kilometer covering an area of 3.14 Sq. km have been drawn randomly on their catchment areas. Number of perennial/non-perennial tributaries falling in each circle 9 have been counted and averaged to show the number of perennial/non-perennial rivulets falling per Sq. km area for calculating average distance between two khads/nallas and their zone of influence to depict left out area, if any, for the purpose of location of stone crusher unit in case the distance criteria of 100 mtrs from non-perennial rivulets is enforced. It is sought to be inferred that it is not possible to relocate stone crushers beyond 100 mtrs as no space beyond 100 mtrs may be available at various locations.
9. We do not find any merit in the submission that there can be no regulation of location of stone crushers with reference to 'non- perennial' water bodies and distance is required to be maintained only for 'perennial water bodies'. Adverse impact of stone crushing activity on the environment is well acknowledged.1 Water bodies are to be conserved for protection of environment.2 Non-perennial water bodies also need to be protected for purposes such as water harvesting, ground water recharge. Location of stone crushers too close to such water bodies certainly impacts such water bodies which need to be prevented.
10. River bed mining for raw material for stone crushers and dumping of waste mined material back into the river affects water quality and flow of the river by adding pollutants to the river. 1Rural Litigation And Entitlement Kendra Dehradun & Ors V. State Of U.P. & Ors., (1985) 2 SCC 431 M.C. Mehta Vs. Union of India & Ors, (1992) 3 SCC 256 ¶3 2 Hinch Lal Tiwari vs Kamala Devi And Ors v. Kamala Devi And Ors., (2001) 6 SCC 496 10
11. Consent to operate is to be renewed annually and mere fact that a stone crusher is set up earlier can be no ground to allow it to continue even if it has adverse impact on environment. Moreover, the Tribunal has only interpreted the criteria laid down in the notification by an interpretation consistent with environmental norms.
12. Thus, it may be difficult to accept the review petition in absence of any scientific material to show that location of stone crushers within 100 meters, of 'non perennial' water bodies will have no adverse impact on environment.
13. However, instead of straightaway rejecting the Review Petitions, we consider it appropriate to seek an expert opinion from a joint Committee comprising the representatives of Central Pollution Control Board (CPCB), IIT Roorkee (National Institute of Hydrology), Indian Institute of Soil and Water Conservation, Dehradun on the question whether location of a stone crusher close to non-perennial water body can be allowed without adversely impacting environment and if so, subject to what safeguards.
14. The CPCB will be the nodal agency for coordination and compliance.
The State of HP will be at liberty to furnish any relevant material to the CPCB within two weeks.
15. The report may be furnished to the Tribunal within two months by email at [email protected].
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16. A copy of this order be sent to the Central Pollution Control Board (CPCB), IIT Roorkee (National Institute of Hydrology), Indian Institute of Soil and Water Conservation, Dehradun by email.
17. Since the Hon'ble Supreme Court has deferred the enforcement of direction of Tribunal for three months, the same will stand extended till further orders.
List the matter for further consideration on 09.07.2019. The date already fixed on 17.05.2019 stands cancelled. M.A No. 97 of 2019
This application has been filed by certain stone crushers which is in substance identical to M.A No. 93/2019 and 94/2019. The same will be taken up for consideration after the above report is received.
Adarsh Kumar Goel, CP K. Ramakrishnan, JM Dr. Nagin Nanda, EM April 02, 2019 M.A. No. 93/2019, M.A. No. 94/2019, M.A. No. 95/2019, M.A. No. 96/2019 & M.A. No. 97/2019 IN Original Application No. 358/2016 AK 12