National Green Tribunal
All India Lokadhikar Sangathan vs Govt. Of N.C.T. Of Delhi on 4 January, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 11 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Review Application No. 36/2021
IN
Execution Application No. 11/2017
IN
Original Application No. 159/2013
All India Lokadhikar Sangathan Applicant
Versus
Government of NCT of Delhi & Ors. Respondent(s)
----------------
Government of NCT of Delhi Review Applicant
Date of hearing: 04.01.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Review Applicant: Ms. Jyoti Mendiratta, Advocate in R.A 36/2021 (Govt. of NCT of
Delhi)
ORDER
1. This application seeks review of order dated 21.07.2020 passed by this Tribunal in the above matter. The applicant has referred to the observations in the order dated 10.2.2021 passed by the Hon'ble Supreme Court in Civil Appeal No. 143-144 of 2021, Government of NCT of Delhi v. All India Lokadhikar Sangathan as follows:
"1. xxx ..............................xxx .................................xxx
2. Mr A N S Nadkarni, learned Senior Counsel appearing on behalf of the appellant, submits that:1
(i) The report of the CPCB, NEERI and IIT Roorkee was uploaded on the website of NGT on 20 July 2020;
(ii) The NGT proceeded to pass the impugned order on the very next date, namely, 21 July 2020; and
(iii) The appellant was not furnished with a reasonable opportunity to controvert the contents of the report of the Expert Committee.
Moreover, the order of the NGT indicates that it was apprised that this Court had passed an order on 21 July 2020.
3. The specific ground which has been raised in the civil appeals is in the following terms:
"I Because the impugned judgement/order has been passed without giving any opportunity of filing response/ objections to a voluminous Final Committee's Report dated 16.7.2020 ("the final report") which for the first time was uploaded on website of Ld. NGT on 20.7.2020 i.e. one day before the hearing date and no copy of the said final report was served on the Appellant by CPCB or the Expert Committee. In fact the Appellant for the first time on 21.7.2020 (being the date of impugned order) came to know about the above final report (about 200 pages) from the website of Ld. NGT only and arranged copy of the same by downloading the same from the website."
From the above ground, it appears that the principal submission is that there was a breach of the principles of natural justice by the NGT in passing an order just a day after the report of the Expert Committee was uploaded without furnishing an opportunity of controverting its contents.
4. In view of the above grievance, liberty is granted to the appellant to move the NGT by way of review. The appellant shall also submit, together with the review petition, their objections to the report of the Expert Committee so that in the event of the order being recalled, the appellant can be heard on the merits of their objections. In the event that the appellant files an application for review before the NGT within a period of three weeks from today, no coercive steps shall be taken against them to enforce the impugned order of the NGT in regard to the deposit of the balance of Rs 46 crores until the review petition is disposed of. All the rights and contentions of the parties are kept open.
5. The appeals are disposed of in the above terms.
6. In the event that the appellant is aggrieved by the final order of the NGT in review, or thereafter, liberty is granted to it to move this Court afresh, including on the grounds which are raised in the present appeals."
2. The Tribunal considered the matter earlier vide order dated 07.10.2021 by circulation as per rules and in the light of orders of the 2 Hon'ble Supreme Court, directed listing of the application in open Court to give full opportunity to the review applicant. The applicant was permitted to file any further documents/submissions.
3. We have heard learned Counsel for the review applicant and perused the record.
4. We may note that in the order sought to be reviewed, the Tribunal considered the issue of non-compliance of judgment of the Hon'ble Supreme Court that industries prohibited from operating in Delhi as per Master Plan are to be shifted from Delhi1. In the said judgment it was noted that Delhi was one of the most polluted cities in the world. The quality of ambient air was hazardous and diseases were on the increase. There was lack of open space. On the land occupied by the hazardous industries being surrendered, the same could be used for community needs.2 The issue of compliance of the provisions of the Master Plan was also considered in the later judgments of the Hon'ble Supreme Court. It was noted that hazardous industries had been shifted out of Delhi but certain industries were continuing in residential/non-conforming areas which were also required to be shifted out of Delhi in view of Master Plan-2021. In situ regularization was not permissible. It was necessary that the authority should not consider legalizing illegalities so that Delhi was left for future generations without being polluted. The stand of the Central Government and Delhi government in avoiding implementation of Master Plan was disapproved.3 1 (1996) 4 SCC 351 2 Para 7 ibid 3 (2004) 6 SCC 588 para 60 3
5. The Tribunal noted that in violation of the directions of the Hon'ble Supreme Court the hazardous industries continued to operate in violation of Master Plan and order of Delhi Pollution Control Committee (DPCC) dated 23.03.2012, order of the Delhi High Court dated 11.11.2013 in W.P. (C) No. 6904/2013 and further order of the Tribunal dated 17.10.2014, based on the statement of DPCC that no permission would be granted for continuing hazardous industries in violation of Master Plan.
6. The above situation was reiterated by this Tribunal vide order dated 16.10.2018. The Tribunal, inter alia, required the Delhi Government to deposit compensation of Rs. 50 Crores with CPCB for damage to the environment on account of inaction of its officers which was to be spent for restoration of the environment and could in turn be recovered from erring officers/industries with further direction to comply with the earlier directions of the Tribunal to close the polluting industries in question. The Delhi Government/DPCC filed appeal before the Hon'ble Supreme Court against order dated 16.10.2018 which was disposed of on 14.12.2018 with following directions:
"i. On the subject of decision of Delhi Government to allow industries to continue subject to compliance with the Environmental legislation contrary to the Master Plan.
"Be that as it may, no administrative decision can be taken in violation of the Master Plan"............................................ "Prima facie, the above note only permits a determination of whether a particular industry, factory or activity falls in a specified entry. The negative or prohibited list cannot be amended by an administrative act in violation of the Master Plan."
ii. On the subject of direction to deposit Rs. 50 Crores as compensation for damage to the environment.
"Prima facie, the direction is relatable to the provisions of Section 17 of the National Green Tribunal Act, 2010. Consequently, we direct that in terms of the order passed by the NGT and before the applications for review are entertained, an amount of Rs. 15 crores be deposited within four weeks by 4 GNCTD. The deposit shall abide by the final result of the applications for review."
iii. On the subject of reopening the industries which have been closed in pursuance of order of this Tribunal.
"Ms. Indira Jaising stated that in compliance with the order passed by the NGT, the operation of the industry has been stopped by disconnecting water and electricity connections. This position shall continue until the Tribunal disposes of the review petitions, and thereafter will be subject to the outcome."
7. In pursuance of above, Review Application No. 187/2019 was filed which was dealt with vide order dated 07.02.2019 by constituting an Expert Committee in the manner mentioned in the said order. The matter was thereafter considered on 18.07.2019, 19.11.2019 and 20.03.2020. Finally, the order sought to be reviewed was passed on consideration of report of DPCC dated 17.07.2020 and report of CPCB dated 16.07.2020. The Tribunal observed:
" xxx ............................. xxx ...................................xxx
17. We find the report of the CPCB to be based on scientific study and data verified on the ground. We accept the report and direct further action accordingly. Since there is no carrying capacity for the polluting industries in question as found above, Delhi Govt and DPCC may proceed accordingly. CETP sludge be handled scientifically to avoid further damage and polluting industries be not allowed to continue. Compensation assessed by the Expert Committee for damage to the environment i.e. Rs. 61 Crores, minus the amount already paid be deposited by the Delhi Govt with the CPCB and spent for restoration of environment as per restoration plan to be prepared by the CPCB and DPCC. Thus, all issues framed in para 13 above will stand dealt with by directions in terms of the expert Committee report.
18. DSIIDC has filed an action taken report on 04.05.2020 which has been subsequently updated on 07.07.2020 mentioning that approval of MoEF&CC for Environmental Clearance is awaited. We are informed that stay has been granted by the Hon'ble Supreme Court with regard to deposit of Rs. 35 Crores by Delhi Government but the Tribunal has not been barred from proceedings further.
19. Since the present order is being passed based on actual assessment of damage to the environment which admittedly has not been gone into by the Hon'ble Supreme Court, the Tribunal has no option except to direct deposit as per such assessment subject to such further order as may be passed in this behalf. We are not requiring deposit of Rs.35 crore in terms of order dated 16.10.2018 in view of stay said to have been granted. The Delhi Govt. is free to recover the 5 amount of compensation from the polluters or erring authorities/officers, following due process of law."
8. Only objection put forward by the review applicant is against quantification of compensation. It is submitted that damage to surface water is not based on correct data. Treatment capacity of existing CETP was wrongly found to be inadequate. The loss caused on account of failure in operation and maintenance is also uncalled for. It was wrongly assumed that certain units were not connected to the conveyor system of the CETP. Not meeting of standards in respect of FDS and Fluoride could not be a ground to assess damage when other parameters were being met. In view of report of the DPCC, S.S. pickling units had already removed their plants and machinery. Due to closure action against the said units, pH level improved but this fact was not factored in. Steps have duly been taken up for setting up of TSDF and work is under progress. Assessment of compensation for preparing remediation plan is uncalled for. As DPCC has already assessed compensation against CETP society for unauthorized dumping of hazardous waste, the data was required to be validated in consultation with the stakeholders which was not done.
9. As noted earlier, contrary to the directions of the Hon'ble Supreme Court in the year 1996, the hazardous industries in question were allowed to continue illegally and against the master plan inspite of orders of the Delhi High Court and this Tribunal in the years 2013 and 2014 respectively. It was on account of long and continuous failure of the administration that the Tribunal passed order dated 16.10.2018 requiring the Delhi Government to deposit compensation of ₹50 crores for inaction of its officers for being spent on restoration of the environment which led to order of the Hon'ble Supreme Court dated 14.12.2018. The Hon'ble Supreme Court permitted filing of review petition with a direction that 6 closure of the industries directed by this Tribunal will continue till further orders of this Tribunal. The Delhi Government was required to deposit ₹15 crores as interim, subject to further orders of this Tribunal. The Tribunal accordingly considered the matter vide order dated 07.02.2019 and thereafter on 21.07.2020. There is no objection against the finding that the polluting industries were allowed to continue illegally for a long duration. CETP sludge has remained un-remediated for a long time which is still to be remediated. Only progress report is that the work is in progress. Thus, damage to the environment continues. Such long inaction and failure certainly calls for deterrent action. Further, stand of the review applicant that the industries were closed in 2018 and therefore, there were no damage does not take into account illegality in continuing the industries prior to such closure in pursuance of order dated 16.10.2018, inspite of earlier orders of the Hon'ble Supreme Court, Delhi High Court and this Tribunal. Further objection that pH value had improved from March 2020 to November 2020 cannot be a ground not to levy compensation for the earlier violations. The stand that some of the parameters were met while FDS and fluoride were admittedly beyond standards cannot be a ground not to levy compensation for the damage. Contention that the Committee should have seen the situation after closure and not before is untenable. Assessment of compensation by DPCC against CETP society for unauthorized dumping of waste does not obviate the need for compensation assessed by CPCB based on scientific study and data verified on the ground. As already observed, CETP sludge still remains to be remediated. Compensation already assessed was directed to be adjusted. The amount can be realised from erring industries and authorities and has to be utilised for restoration of environment in accordance with law. In view of serious violations for long time which were 7 allowed to continue by the Delhi Government and its authorities, even on reconsideration of the entire material and the objections put forward, we do not find any ground for review of order dated 21.07.2020.
The Review Application is dismissed.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dr. Nagin Nanda, EM January 04, 2022 Review Application No. 36/2021 IN Execution Application No. 11/2017 IN Original Application No. 159/2013 DV 8