National Green Tribunal
Dr. P.G. Najpandy vs Chief Secretary on 8 February, 2024
Item No. 4
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Execution Application No. 11/2023(CZ)
in
Original Application No.76/2021(CZ)
(I.A.No.137/2023)
Dr. P.G. Najpandey & Ors. Applicant(s)
Vs
State of Madhya Pradesh & Ors. Respondent(s)
Date of Hearing: 08.02.2024
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant(s): Mr. Prabhat Yadav, Adv.
For Respondent(s) : Mr. Prashant M. Harne, Adv.
Mr. Yadvendra Yadav., Adv.
ORDER
1. Hon'ble Supreme Court of India in WP(C) 728/2015 vide order dated 29.10.2021 issued directions to take actions against those who sale banned fire crackers. Accordingly Home Ministry of Govt. of MP issued directions on 31.10.2021 to all Collectors and Superintendent of Police of MP for inspection and testing of fire crackers and for taking an undertaking from sellers of fire crackers that they will abide the directions of MP Govt. But this circular of Govt. of MP became a white wash since undertakings were not taken from sellers of fire crackers during the year 2022-23 and thereafter also sampling and testing of fire crackers has not still been done.
2. The contention of the applicant is that the undertaking and testing as narrated by directions issued by the M.P. Govt. have not been carried out, which resulted in violation of direction of Hon'ble Supreme Court and 1 further aggravating the air quality index in the region, adversely affecting the health of the public.
3. Learned counsel for the applicant has further relied on the news item of Times of India published on 01.02.2023 which says that if you live in Madhya Pradesh your life will be five year shorter due to Air Pollution. M.P. is tenth (10th) most polluted State in India. We do not express any opinion about reporting on the Times of India but that is a reporting which expressed the public opinion with regard to the pollution in the area.
4. It is further submitted that the order dated 27.01.2021 regarding use of fire crackers has not been complied with in-spite of the fact that two years has passed since issuing of these directions. Though the District Magistrates of Madhya Pradesh were allotted the duty to enforce the directions but due to reasons best known to the Administrative Authorities, the statutory duty to control the air quality index has not been done.
5. It is contended that non-compliance of the order took a serious incident in factory of firecrackers in village Baragarh, Magadha Road, Harda, Madhya Pradesh on 06.02.2024 in which the matter is reported by the Danik Bhaskar and Times of India and later on by the State Authorities about the human death of more than 11 persons and persons of more than 100 houses have been affected and directed to vacate their houses.
6. Vide order dated 19.10.2023 in above Execution Application No. 11/2023, the orders of the Hon'ble Supreme Court of India dated 23.10.2018 was repeated and orders passed in Original Application No. 76/2021 (CZ) was directed to be enforced in letter and spirit but the same has not been complied with strictly. Some of the observations are quoted below:-
i. The Chief Secretaries and DGPs may issue and circulate an appropriate order in above terms with appropriate enforcement guidelines to all the District Magistrates and Superintendents of Police, PCBs/PCCs.2
ii. As a consequence, production and sale of crackers other than those mentioned in Suggestions II and III is hereby banned.
iii. The manufacture, sale and use of joined firecrackers (series crackers or laris) is hereby banned as the same causes huge air, noise and solid waste problems.
iv. The sale shall only be through licensed traders and it shall be ensured that these licensed traders are selling those firecrackers which are permitted by this order.
v. PESO is directed to review the clinical composition of fireworks, particularly reducing Aluminium content, and shall submit its report in respect thereof within a period of two weeks from today. For undertaking this exercise, PESO would also associate FRDC. vi. PESO will ensure fireworks with permitted chemicals only to be purchased / possessed /sold /used during Diwali and all other religious festivals, of any religion whatsoever, and other occasions like marriages, etc. It shall test and check for the presence of banned chemicals like lithium /arsenic / antimony / lead/mercury.
vii. PESO will ensure suspension of the licences of manufacturers of such fireworks items and appropriate disposal of such stock.
viii. Extensive public awareness campaigns shall be taken up by the Central Government/State Governments /Schools/ Colleges informing the public about the harmful effects of firecrackers. ix. All the official respondents, and particularly the police, shall ensure that fireworks take place only during the designated time and at designated places, as mentioned above. They shall also ensure that there is no sale of banned firecrackers. In case any violation is found, the Station House Officer (SHO) of the police station of the area concerned shall be held personally liable for such violation and this would amount to committing contempt of the 3 Court, for which such SHO(s) would be proceeded against.
x. The "onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.
xi. As per the Noise Control rules, the responsibility for enforcement of noise pollution control measures is of the „authority‟, which includes authorized officers, District Magistrates, Police Commissioner or any officer not below the rank of Deputy Superintendent of Police designated for the maintenance of air quality standards in respect of noise. There is further provision that any loudspeaker or sound producing instrument /equipment can be used only after obtaining written permission. Festive occasions are defined as notified National or State functions, including the Republic Day, the Independence Day, State Day or other notified day."
7. Considering the fact that earlier directions issued by this Court which have been issued by this Court from time to time in the larger public interest and having found that such use of banned fireworks affects the health of the other innocent citizens including the senior citizens and the children, it is the duty of all the States/State Agencies to see that the directions issued by this Court in the earlier orders reproduced hereinabove are strictly complied with. No authority can be permitted the violation of the directions issued by this Court and permit banned firecrackers under the guise of celebration.
Celebration cannot be at the cost of the other's health. Under the guise of celebration, nobody can be permitted to infringe the right to health of the others, guaranteed under Article 21 of the Constitution of India and nobody can be permitted to play with the life of the others, more particularly the senior citizens and the children. It is made clear that there is no total ban on use of firecrackers. Only those firecrackers are banned, as directed 4 hereinabove, which are found to be injurious to health and affecting the health of the citizens, more particularly the senior citizens and the children.
8. In view of the order of passed by Hon'ble Supreme Court of India in Arjun Gopal vs. Union of India dated 29.10.2021 quoted above, we further direct the authorities of the State and respondents to strictly comply the directions issued by the Hon'ble Supreme Court in above quoted case.
9. The matter again reviewed on 08.11.2023 and this Tribunal observed as follows :-
"Learned counsel for the State has submitted that necessary regulatory order by the State Govt. has been issued and compliance is regularly monitored by the state authorities. Sh. Mahaveer Singh Munjalde, Additional DCP, Bhopal is present personally and submitted that the necessary orders for compliance was issued for the authorities concerned and the district administration has continuously monitoring the compliance of the order."
10. In the matter of O.A. No. 20/2024 with regard to the fire incident in the fire crackers unit at Harada, vide order dated 06.02.2024, the Tribunal observed that :-
1. That the industry (fire crackers) was running in violation of Explosive Rules, 2008 notified by the Ministry of Commerce and Industry, Department of Industry Policy and Promotion notification especially in violation of Rules 71, 82 and 83 and other rules which are quoted below :-
71. "Possession in licensed premises.--(1) A person holding licence for possession of explosives granted under these rules shall store the explosives only in premises specified in the licence.
(2) The licensed magazine or store house shall be kept securely closed or locked at all times except when goods are being placed in or taken from it or when it must be kept open for some 5 other purpose in connection with the management of such premises.
(3) The keys of the licensed magazine shall, at all times be kept secured in licensee's own custody or of his authorised agent and shall be produced for opening the magazine or store house whenever so required by an inspecting officer.
(4) The name and address of the person alongwith passport size photograph with whom the keys will be kept shall be furnished to the licensing authority and the Controller having jurisdiction.
82. Store house for fireworks or safety fuse.--
(1) Store house shall be used only for possession of fireworks not exceeding five thousand kilograms or safety fuse not exceeding fifty thousand meters and not for sale.
(2) A person holding licence for possession and sale of fireworks or safety fuse from a shop shall be eligible for a licence for one store house per shop.
(3) The store house shall be constructed as per Specification 3 of Schedule VII.
83. Explosives permitted for possession and sale from shop.--(1) No explosives, other than fireworks, gun powder, small arm nitro compound and safety fuse, permitted in licence shall be stored in a shop for possession and sale.
(2) Construction of shop.--The shop shall be constructed of a brick, stone or concrete and the shop shall be closed and secured so as to prevent unauthorised person from having access thereto.
(3) The premises shall have storage area not less than nine square meters and not more than twenty five square meters.
(4) The shop shall --
a) be located on the ground floor of a building completely separated from other parts of the building by substantial walls having independent entrance and emergency exit 6 from open air and having doors opening outwards, if applicable;
b) not be situated in the sub-level or basement or mezzanine floor;
c) not be situated under the upper floor used for the purpose of dwelling;
d) not be situated under or nearby any staircase or lift;
e) be accessible for fire fighting; and
f) have no electrical apparatus or battery or oil lamp or similar equipments capable of producing spark or ignition and all electrical wiring in the shop be fixed and effectively sealed or conduited or mechanically protected; the main switch or circuit breaker be provided at the immediate accessible position outside the premises.
86. Safety distances to be maintained.--(1) Factory or magazine--The factory licensed for manufacture or magazine licensed for possession, sale or use of explosives shall maintain safety distance specified in Schedule VIII and condition of licence, as the case may be.
(2) Store house.--The store house licensed for possession of fireworks or safety fuse shall maintain safety distance of three metres from protected works and minimum fifteen metres from any such premises or any other premises used for storage of similar explosives, flammable or hazardous materials.
(3) Shop.--The shop licensed for storage and sale of small arms nitro-compound, fireworks or safety fuse shall be at a distance of minimum fifteen metres from any such premises or any other premises used for storage of similar explosives, flammable or hazardous materials.
88. Fireworks to be sold from licensed premises only.-- No person shall sell fireworks from any premises other than those licensed under these rules.
92. Precautions to be observed at site.--(1) The electric power at the blasting site shall be discontinued as far as practicable before charging the explosives.
7(2) No work other than that associated with the charging operations shall be carried out within fifteen metres of the holes unless otherwise specified to the contrary by the licensing authority.
(3) When charging is completed, any surplus explosives, detonators or fuses shall be removed from the vicinity of the hole and stored at a distance which would prevent sympathetic detonation in the event of a charge detonating in any hole.
(4) The holes, which have been charged with explosives, shall not be left unattended till the blasting is completed.
(5) Care shall be taken to ensure that fuse or wires connected to the detonators are not damaged during the placing of stemming material and tamping.
2. Section 101 requires the prior approval before construction for manufacture, possession for sale, use of explosive and the district magistrate has been made responsible for permitting it. Rule 101 (3) provides the precautions which are required to be taken by the Chief Controller or Controller while granting the prior approval. Accordingly the approval/consent of the District Magistrate, Chief Controller or Controller and Director/Chief of Fire Safety is required to be verified as to whether these permission has been granted or not and as to whether necessary precautions has been taken.
11. Steps required to avoid such incident :-
i. "The question is how such accidents can be avoided. There is National Disaster Management Authority (NDMA) of the Government of India, which has issued guidelines for Chemical Disasters (Industrial).
ii. The common causes for chemical accidents, deficiencies, safety management system and human errors are noted. The chemical accidents fire, explosion and/or toxic release were resulting irreversible pain, suffering and death. To minimise such accident and to improve emergency preparedness at all levels, substantial efforts are still 8 required to predict the occurrence of disaster. (Page xvii} iii. It is also stated that it has been realised that effective Chemical Disaster Management (CDM) is possible by the adoption of preventive and mitigation strategies as most chemical disasters are preventable in comparison to natural disasters that _are difficult to predict and prevent. Statutory inspection, safety audit and testing of emergency plan, onsite emergency plan, offsite emergency plans, medical emergency plans, information on chemical, technical information have been, given importance.
iv. It is indicated that the disclosure of information via Material Safety Data Sheets (MSDS) by occupiers to workers on chemical hazards is a statutory requirement. The information in MSDS is generally complex and exhaustive, therefore, supervisory staff and workers find it difficult to comprehend the information available to them. (In the instance case, the workers have not been questioned by the officers of the DISH in this regard. Why? If they would have been questioned, the officers would have known that the unit is conveying about the hazardous chemicals).
v. It is specifically indicated that No Objection Certificates (NOCs) for establishing a storage facility often lack sufficient scientific knowledge and need to undergo appropriate training.
vi. Before granting the permission of storage by the relevant authority, if they would have studied the effect of mixing the chemicals even by accident, they would have realized that certain material cannot be kept nearby, if they would not have allowed in that area and would have asked to store at separate place the accident could have been avoided.
vii. There must be the facility of atleast (1) a siren in case of an emergency in such area where industries of like nature 9 are operating.
viii. Stock of the storage to be checked regularly and be recorded in appropriate register.
ix. There should be risk assessment study of chemical/ Hazardous plants at certain intervals.
x. There should be some operator with experience and minimum qualification of dealing with these hazardous matters.
xi. CCTV must be operative for the entire the procedure with a facility to look the same by the officer responsible and data should be saved atleast at different places including one outside the plant facility. This will help the people to get the data even if something happens in the plant facility.
xii. It is necessary to appoint adequate number of Scientists and other officers as well as other staff considering the number of industries so as to effectively monitor the manufacturing units. The MPSEIAA, MPPCB, the offices in the district level controlling the pollution matters/environmental matters/industries of like nature must be examined and if the post is vacant that must be fulfilled without any further delay so that the proper inspection shall be made periodically.
xiii. Heavy and strict vigil over all the units is required and the Government should take appropriate steps for appointing adequate staff in the district headquarters and the other headquarters.
xiv. The manpower in the industrial area supervising the units must be related to the number of units in the area considering the incidents and the quality of the inquiry made by the department. It is desirable that the proper 10 training should be imparted to the officers to improve the efficiency.
xv. There must be a stock register making the entry compulsory with regard to the stock in the unit and that should be periodically reported to the competent authority at the interval of 15 days and the position of the storage in the area have a direct entry and exit so that the movement should be easy and in case of any emergency, the storage hazardous materials can be shifted immediately. There must be SOP for storage of the materials.
xvi. In view of the incident which took place on account of the fire incident in the firecrackers unit, the government must come out with a policy with regard to SOP and the stock with provisions to check periodically to avoid reoccurrence of incident on account of hazardous materials and it is absolutely necessary to carry out a study of storage and transfer of these materials.
xvii. All industrial zone/ special economic zone, industrial area should have their own local crises group. The district crisis group should give surprise visit to the factories regularly at least once in a quarter and check the operation of the factories and at the end of the visit they should generate a report and submit to the State Crisis Group.
xviii. As per the Chemical Accidents (Emergency Planning, Preparedness and Response), Rules 1996 brought out under the Environmental (Protection) Act, 1986, it is mandatory to have State Crisis Group (SCG) and District Crisis Group (DCG) to help the State Disaster Management Authority (SDMA) and District Disaster Management Authority (DDMA) under the Disaster Management Act 2005.
xix. There should be Emergency Response Center/Disaster Management Center within the industrial zone and special 11 economic zones.
xx. The officers responsible for periodical inspection have failed to submit the report periodically to the State authorities and the unit and industry failed to report the correct figures with regard to the stock of the unit which caused serious casualties and damage to property and human beings.
xxi. The requirement of the hospital in an industrial zone and particularly industries, engaged in hazardous material is must.
xxii. Hospital at the minimum distance of 50 km. should have specialized in chemical burns and injuries arising out of accident on account of hazardous material.
xxiii. District Crisis Group must undertake mock drill under off-
site emergency plan and crisis management in every industrial cluster and on failure actions should be taken against DCG.
xxiv. The Government must make a panel of safety auditors to inspect the factory independently twice in a year and they should submit their report directly to the state authorities. The Safety Auditor should be made answerable to the government.
xxv. The occupiers of both new and existing industrial activities must be checked by the Government by the Safety Auditors, accredited by the Government.
xxvi. There should be at least 500mtr. buffer zone from the residential zone but in case of hazardous chemicals material of the buffer zone should be 1000 mtr. minimum in view of the nature of the hazardous material which may be decided as a policy matter on the basis of any expert report by the State Government.
1212. Learned counsel for the applicant Mr. Prabhat Yadav has submitted that if the proper precautions has been taken by the State Authorities the incident at Harda, M.P. would have been avoided.
13. Learned counsel appearing for the State Mr. Prashant M. Harne, has submitted that the State Authorities are taking proper and strict action and enforcing the guidelines.
14. The Registrar has submitted a report that in Original Application No. 142/2016 the matter was taken up by this Tribunal against the pollution by the unit and the environmental compensation was assessed and realised to the tune of Rs. 20 lakh which is lying in the account of the NGT.
15. Learned counsel for the State Mr. Prashant M. Harne and learned counsel for the CPCB Mr. Yadvendra Yadav have submitted that this amount may be better utilised for the improvement of the environment and the damages, remedial measures to the injured, deceased or the surviving family members and the committee may be constituted for proper management of the amount. Accordingly, in view of the office report, amount so deposited in original application no. 142/2016 (Rs. Twenty Lakh) is directed to be transferred to the account of State PCB, MP (Member Secretary) and this amount may be transferred by cheque or draft as appropriately to be decided by the Registrar in consultation with the bank authorities for proper utilisation of this amount, the committee of the following members are constituted :-
i. Principal Secretary, Environment, M.P. ii. Member Secretary, Pollution Control Board, M.P. iii. Principal Secretary, Revenue, M.P. iv. Principal Secretary, Urban, M.P.
16. On specific plan prepared by the Disaster Management or the District Management Authority/Collector, the above amount may be utilized for the environmental matter of the incident, which took place in Harda on 06.02.2024 in the State of Madhya Pradesh.
1317. The amount shall be subject to audit by the State authorities as per existing rules. The copy of the order be communicated to the Principal Secretary, Environment, M.P. for compliance and to report. Further action plan and compliance by the respondents be submitted within three weeks.
List it on 06th March, 2024.
Sheo Kumar Singh, JM Dr. Afroz Ahmad, EM 08th February, 2024 E.A. No. 11/2023 (CZ) PN 14