National Green Tribunal
Mahendra Singh vs State Of Haryana on 3 December, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item Nos. 02 & 03 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 667/2018
Mahendra Singh Applicant
Versus
State of Haryana & Ors. Respondent(s)
WITH
Original Application No. 679/2018
Tejpal Applicant
Versus
State of Haryana & Ors. Respondent(s)
Date of hearing: 03.12.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Mr. Raj Kumar, Advocate
Respondent(s): Mr. Rajul Khurana, Advocate for HSPCB
Mr. Tarun Gupta, Advocate in I.A Nos. 388/2020, 399/2020,
404/2020 to 408/2020
Ms. Pallavi Singh, Advocate in I.A No. 403/2020
ORDER
1. The issue for consideration is illegal operation of stone crushers in District Mahendergarh, Haryana. Objections of the applicant are that the stone crushers are operating in violation of the environmental norms. They are located close to the plantations, reserved forest, educational institutions and in clusters. The area is critical/over exploited in terms of the ground water but ground water is being illegally extracted. There is scarcity of water even for drinking purposes. There is no proper disclosure and evaluation of the source of water for operation of the stone crushers and no steps are taken to mitigate dust and air pollution. The air quality 1 of the area, which is part of NCR, is unsatisfactory and cannot sustain addition of dust pollution generated by the stone crushers.
2. The Tribunal directed the statutory authorities to look into the matter, take remedial action and file a report. The matter was last considered on 24.07.2019 in the light of report dated 23.07.2019 jointly filed by the Deputy Commissioner, the District Town and Country Planning department, the Divisional Forest Officer Mahendergarh and the Haryana Pollution Control Board with regard to compliance of siting criteria, extraction of ground water and the remedial action as follows:-
"
a. Siting criteria
1. There are total 158 Nos. of stone crushers; out of these 118 Nos. are installed/operational and remaining 40 Nos. of stone crushers are under installation at various stages after obtaining CTE from HSPCB on the basis of siting norms reports submitted by the Tehsildar and DFO as per Notification 11.05.2016. Out of 118 Nos. of installed/operational stone crushers, 46 Nos. of stone crusher are not meeting the siting criteria, as mentioned in Table-2 (Sr. no. 1 to 46). Out of 40 Nos. of stone crushers which are under installation at various stages, 26 Nos. of stone crushers are not meeting the siting criteria as per notification dated 11.05.2016 & Notification dated 04.04.2019 as mentioned in Table-2( Sr. No. 47 to 72). Brief details of total 72 Nos. non complying stone crushers is described as below in Table-4:-
Table-4 Sr. Remarks No. Nos.
1. Total Non-Complying stone crushers as per 72 siting criteria 2. Action already taken 31 CTE Revoked Closed by Board due non compliances under Air Act, 1981 CTE Revocation under process Closure and CTO Revocation under process
3. Show cause notices issued non complying units 29 identified after DGPS measurement 4. No Action required at this stage 12 Operational stone crushers granted time for shifting (Annexure II &III) 2 *Already closed by Board described above at Sr. No. 2 =04+01* Under process stone crusher shifting policy w.r.t.
notification 07.11.2017 = 08
2. HSPCB has already revoked consent to establish of following 03 Nos. (as mentioned in Table-2, at Sr. No. 70 to 72) stone crushers which are also individual respondents in OA No. 667 of 2018 titled as Mahendra Singh Vs. State of Haryana and Ors. and OA No. 679 of 2018 titled as Tejpal Vs. State of Haryana and Ors. filed before Hon'ble National Green Tribunal respectively:-
i) M/s. DEV SHRI KRISHNA STONE CRUSHER Khewat No. 45, Khatoni No. 53, M.No. 12, Kila No. 25/2 (3-13) M. No. 15, Kila No. 5 min East (7-0) Total 10 Kanal 13 Marla, Village-Karota, Tehsil-Narnaul, Distt. Mahendragarh.
ii) M/s. Unique Stone Crusher, Khewat No. 15, Khatoni No. 15, M. No. 11, Kila no. 11/2(2-15), 20(7-12) & 21/1 (6-9) Total 16 Kanal 16 Marla, Vill-Karota, Narnaul, Distt. Mahendragarh.
iii) M/s. KSY BUILDCON, Khewat No. 47, Khatoni No. 68, M. No. 9, Kila no. 15/2(3-16), 16(7-19), 24/1/1(0-16), 25/1/1(0-18) Total 13 Kanal, 09 Marla at Vill- Khatoli Jat, Nangal Chaudhary, Distt. Mahendragarh. Copies of CTEs revocation order is attached as Annexure-XIII to XV.
3. HSPCB has initiated action for closure and revocation of CTE/CTO as applicable against all those 29 stone crushers (s mentioned in Table -2, at Sr. No. 1 to 24 & 68 to 72) whose parameters were not accordance with measurement done earlier through Shazra & also are not meeting siting criteria as per the fresh measurement report with DGPS.
4. HSPCB has also issued show cause notices for closure and revocation of CTE/CTO on 23.07.2019 as applicable under provisions of sub section 4 of section 21 of Air (Prevention and Control of Pollution) Act, 1981 against all other 29 stone crushing units (as mentioned in Tablke-2, at Sr. No. 31 to 42 & 51 to 67) which were found non-complying with the report (submitted by Tehsildar on 27.07.2019) after DGPS measurement and further action shall be taken accordingly.
5. Two stone crushers (as mentioned in Table-2, at Sr. No. 29 to 30) have already been closed & sealed by Board due to non-compliance under Air Act, 1981.
6. Five stone crushers (as mentioned in Table-2, at Sr. No. 25 to 29) have already been granted time for shifting/relocation as per notification 11.05.2016 and Govt. Order 11.06.2019, out of these one stone crusher mentioned in Table -2 at Sr. No. 29 has already been 3 closed & sealed by Board due to non-compliance under Air Act, 1981.
7. Eight stone crushers (as mentioned in Table-2, at Sr. No. 43 to 50) are not meeting siting criteria only by the municipal limits notification dated 07.11.2017 of Urban Local Bodies. If draft Urban Local Bodies Notification, dated 08.03.2019 will be finalised as such, then all these 8 stone crushers will fulfil the siting criteria. Further, decision of Govt. of Haryana regarding policy for shifting such stone crushing units as proposed by HSPCB is yet to be finalised by the Govt. of Haryana.
b. Mechanism for drawl of Water
1. Twenty Nos. of operating stone crushers are not taking treated water from STP of PHED as per detailed list provided by PHED (Annexure-XVI). HSPCB had issued show cause notices to submit the source of water being used and permission from any other permitted source. Only five units have submitted reply which was not found satisfactory. HSPCB has initiated action for closure and revocation of CTO against all these twenty stone crushers.
2. Eighteen Nos. of stone crushers falling in dark zone have installed illegal bore-well/tube-well in their premises without any permission from the GWC and illegal bore- well/tube-well has been sealed by the GWC, Narnaul as mentioned in Table-3.
3. Joint Committee in coordination with CGWA shall make an assessment of environmental compensation for illegal extraction of ground water by these stone crushers, in accordance with order of this Hon'ble Tribunal dated 30.11.2018 in Harinder Singh & Ors. Vs. Prateek Buildtech (India) Pvt. Ltd. & Ors and order dated 30.04.2019 in Ramkmar Vs. State of Haryana & Ors. (OA No. 1032/2018)."
3. The Tribunal observed:-
"4. The report shows the State Administration in poor light. The State Administration is the guardian of environment and public health. In this case it appears to be oblivious of its responsibility to check the damage to the environment and to act against the polluters. There is no explanation as to how potable water has been continued to be drawn without any restriction by the State Administration even though the area is critical in terms of ground water and in spite of such illegality brought to notice. It is also not clear as to how blatant violation of air quality norms is being allowed for permitting operation of stone crusher units at the cost of public health and environment. The report does not clarify as to how many stone crushers, if any, are legitimate which do not conflict with the environment. It appears that the State Administration has not cared to 4 fully verify the compliance of environment norms while permitting continuation of the stone crushers, even after proceedings before this Tribunal. Though the Deputy Commissioner and many officers are available, none of them is in a position to give precise information about the number of stone crushers still operating and on what basis they are being allowed.
5. In view of the above unsatisfactory state of affairs, we require the Deputy Commissioner, Mahendergarh to ensure immediate closure of all illegally operating polluting stone crushers in the area and initiation of action by way of prosecution and recovery of compensation which must be deterrent and relatable to the cost of restoration so that illegal activity is not profitable. The compliance of environment norms including the siting criteria, the ambient air quality, the carrying capacity of the area for permitting such polluting activity and health impact on the inhabitants may also be assessed. Such further compliance report be filed before the next date of hearing by email at judicial- [email protected].
6. The Deputy Commissioner, Mahendergarh along with the Regional Commissioner, Haryana State PCB may remain present on the next date also.
7. The Chief Secretary, Haryana may look into the conduct of the officers, who gave earlier reports, in withholding the information which has now been given and give a report before the next date by email at [email protected]."
5. Aggrieved by the above order, the stone crushers filed Civil Appeal No. 6368 of 2019 and six other Appeals on the ground that they were not parties before the NGT which were disposed of by the Hon'ble Supreme Court by a common order dated 02.11.2020 as follows:-
"The National Green Tribunal in an interim order inter alia states that prosecution should be initiated and compensation proceedings for damaging the environment should also take place. Admittedly, none of these persons have been heard by the NGT. On this ground alone, we set aside the order and remand the matter to the NGT to dispose of the matter as soon as possible preferably within four weeks from today. It will be open to all the parties to argue all points before the NGT."
6. Eight applications have been filed being M.A. No.18/2019, M.A. No.19/2019 & I.A. No.388/2020, I.A. No.399/2020, I.A. No.403/2020, I.A. No.404/2020, I.A No. 405/2020, I.A No. 406/2020, I.A No. 407/2020 and 5 I.A No. 408/2020 by the stone crushers for impleadment and further orders. We have heard learned counsel. The applications stand allowed as far as impleadment is concerned but even after giving detailed hearing, we are of the view that further steps in terms of order dated 24.7.2019 need to be taken for the reasons that follow.
7. The grievance of the stone crushers is that as per Notification dated 11.05.2016 issued by the State of Haryana, laying down siting and emission norms, the stone crushers were compliant and had been granted consent to establish in the year 2017. Writ Petition was filed before the Punjab and Haryana High Court against Notification dated 11.05.2016 which was amended on 04.04.2019 laying down distance of 500 mtrs from the educational institutions for the first time. The High Court vide order dated 02.05.2019 stayed coercive measures pending consideration of validity of the distance criteria. The Government of Haryana issued order dated 05.05.2020 extending the time for compliance of siting criteria till 10.05.2021. Further, distance from the municipal limit could not be based on Notification dated 07.11.2017 by which municipal limits were defined but by further draft notification dated 08.03.2019 by which the limits have been changed. It is further submitted that some of the stone crushers have constructed wind breaking boundary wall to prevent air pollution and STP water was used instead of ground water. Isolated stone crushers cannot be discriminated vis a vis stone crushers in clusters which are not being required to follow any norms.
8. Substance of the submissions is that the joint Committee report with regard to violation of siting norms is against the order of the High Court and further decisions of the State. Though this Tribunal has repeatedly held that even subsequently laid down norms and safeguards 6 will bind already established units to give effect to the principle of sustainable development and there is no vested right of a unit established against any future laying down of safeguards to give effect to the Constitutionally guaranteed citizens right to clean environment1 However, to avoid conflicting orders and assuming the argument to be correct, compliance of environmental norms in terms of ambient air quality, health impact on the inhabitants and the carrying capacity of the area cannot be wished away. The only issue which is said to be pending consideration before the High Court is the siting criteria and not the issues of other pollution norms, background concentration of air quality and the carrying capacity in terms of the air quality which is being considered in the present matter by this Tribunal in terms of order dated 24.7.2019 noted earlier.
The carrying capacity is a facet of sustainable development which, among others, will require consideration of air quality, inter-se distance and additive impact of operation of the stone crushers on the air quality and water in the light of the 'Precautionary' principle of environmental law to be enforced by this Tribunal under sections 20 and 15 of the NGT Act, 2010.
9. It is well known that NCR is facing air pollution issues and, in winter months, the problem is further aggravated. Polluting activities, even if otherwise legitimate, are required to be stopped/regulated to avoid adverse health impact on account of air pollution. Stone crushers add to air pollution. On that account as per Graded Response Action Plan for Delhi & NCR (GRAP), the stone crushers in NCR have to be automatically closed when the air quality is 'severe'. Relevant portion of the Graded Response Action Plan is as follows:-
1Order dt 14.8.2019 OA 53/2019, Tej Pal v state of UP, prs 5 to 8 7 "
Severe (ambient PM2.5or Agency responsible/Implementing PM10concentration value is more Agency than 250 µg/m3 or 430µg/m3 respectively) Close brick kilns, Hot Mix plants, Chairpersons Delhi Pollution Control Stone Crushers Committee, State Pollution Control Boards of Haryana, Rajasthan, and Uttar Pradesh Superintendent of Police and Deputy "
Commissioner of respective districts
10. GRAP is self-operating but does not exclude assessment-based restrictions. Permissibility of stone crushers depends on the available air quality and impact of operation of such stone crushers on the environment and public health in a particular area. In this regard, we may notice the observations of the Hon'ble Supreme Court in some matters. In M.C. Mehta v. Union of India, (1992) 3 SCC 256, at page 257, it was observed:
"....Utter disregard to environment has placed Delhi in an unenviable position of being the world's third grubbiest, most polluted and unhealthy city as per a study conducted by the World Health Organisation. Needless to say that every citizen has a right to fresh air and to live in pollution-free environments.
3. For the reasons to be recorded and pronounced at a later stage we order and direct as under:
(1) The mechanical stone crushers established/operating in Lal Kuan, Anand Parbat, Rajokri, Tughlakabad and in any other area of the Union territory of Delhi shall stop operating/functioning with effect from August 15, 1992. No stone crusher shall operate in the Union territory of Delhi from August 15, 1992 onward.
(2) The mechanical stone crushers established/operating in Suraj Kund, Lakhanpur, Lakkarpur, Kattan, Gurukul, Badkhal, Pallinangla, Saraikhaja, Anangpur and Ballabgarh areas of Haryana shall stop operating/functioning with effect from August 15, 1992.
No stone crusher shall operate in the above-said area from August 15, 1992 onward.
811. Again, in M.C. Mehta v. Union of India, (2006) 11 SCC 582, at page 586, it was observed :
"While conducting a study of environmental problems of the Aravalli hills and preparation of action plan for restoration of environmental quality in Gurgaon district, the Central Mine Planning and Design Institute Limited (CMPDI), had inter alia noted that in the Aravalli hills, large number of activities, operations of stone crushers and deforestation besides other activities are causing environmental degradation. These mines are usually located in clusters in remote mineral-rich districts/areas where living standards are lower and understanding of people towards environmental impact is also poor. In the past, the mine operators took no note of environmental damage. In fact, they were not even conscious about it. The attitude of the mining community is to ignore the environmental concerns. In the majority of the cases, the environmental concerns are ignored for making quick profits. The small mines (less than 5 hectares) and the mining of minor minerals which are no doubt small individually but have damaging characteristics when in clusters e.g. the mines of granite, marble, slates, quartzite, etc. (falling under minor minerals) are no less damaging than the others, especially when the processing is taken into consideration. The mining activities result in disturbance of land surface, altering drainage pattern and land use, besides the pollution problems, which may lead to the environmental problems of air, water and noise pollution and solid waste pollution.
12. In People Right and Social Responsibility Centre v UoI, (2010) 14 SCC 769, it was noted that persons at and close to stone crushers suffer from Silicosis disease against which safeguards are to be adopted.
13. In Arjun Gopal & Ors. v. UOI & Ors.2, the Hon'ble Supreme Court noted the adverse impact of unsatisfactory air quality on health and air quality grading as follows:
"5. In India, air quality standards are measured in terms of the Air Quality Index (hereinafter "AQI"). The AQI was launched in India on 17-10-2014 by the Ministry of Environment and Forests. According to the press release of the Press information Bureau of the same date, it consists of a comprehensive set of parameters to monitor and asses the air quality. The AQI considers eight pollutants (PM10, PM2.5, NO2, SO2, CO, O3, NH3, and Pb), and based on the levels 2 (2017) 1 SCC 412 9 of these pollutants six categories of AQI ranging from "Good" to "Severe" have been prescribed. The index also suggests the health effects of the pollution category wise.
The gradation of AQI and its health impact is extracted below:
Table 1 AQI Associated Health Impacts Good Minimal impact.
(0-50) Satisfactory May cause minor breathing discomfort to sensitive people. (51-100) Moderately May cause breathing discomfort to people with lung disease such as asthma, polluted and discomfort to people with heart disease, children and older adults. (101-200) Poor May cause breathing discomfort to people on prolonged exposure, and (201-300) discomfort to people with heart disease. Very Poor May cause respiratory illness to the people on prolonged exposure. Effect may (301-400) be more pronounced in people with lung and heart diseases. Severe May cause respiratory impact even on healthy people, and serious health May impacts on people with lung/heart disease. The health impacts may be (401-500) experienced even during light physical activity.
Table 2 AQI Category, Pollutants and Health Breakpoints AQI PM10 24- PM2.5 24- NO2 24- O3 8- CO 8- SO2 24- NH3 24- Pb category hr hr hr hr hr hr hr 24-
(Range) (mg/m ) 3 hr
Good (0-50) 0-50 0-30 0-40 0-50 0-1.0 0-40 0-200 0-
0.5
Satisfactory 51-100 31-60 41-80 51- 1.1-2.0 41-80 201-400 0.5-
(51-100) 100 1.0
Moderately 101-250 61-90 81-180 101- 2.1-10 81-380 401-800 1.1-
polluted 168 2.0
(101-200)
Poor (201- 251-350 91-120 181-280 169- 10-17 381- 801- 2.1-
300) 208 800 1200 3.0
Very poor 351-430 121-250 281-400 209- 17-34 801- 1200- 3.1-
(301-400) 748* 1600 1800 3.5
Severe (401- 430+ 250+ 400+ 748+* 34+ 1600+ 1800+ 3.5+
500)
14. After noting the above, the Hon'ble Supreme Court first banned the sale and use of fire crackers and then restricted their use with the observations that finally the same may have to be banned.10
15. This Tribunal recently considered the issue in the context of closing/restricting the brick kilns in absence of carrying capacity of the air quality in the NCR3. Relevant observations are as follows:-
"
10. It was concluded from the above data that there was no supporting carrying capacity to operate brick kilns during the entire brick kilns operating season. However, with regard to Districts where supporting carrying capacity was available in particular months such number was worked out for Haryana, UP and Rajasthan as follows:-
"Table 9: Number of brick kilns which can be operated in NCR Districts of Haryana during March-June.
S.No. Name of Load in Excess of Assimilative Carrying To t al N o *No of Zig Zag type Brick Kilns,
District Capacity of Z i g Z a g
which can be operated
ty p e Br i ck
K il ns
March April May June March April May June
1 Bhiwani -28668 80404 116249 85775 132 161 52 16 46
Faridabad
59651 89514 127402 97954 85 25 -5 -42 -13
2 (Ballabhgarh)
3 Gurugram 40885 118701 125489 89308 6 -35 -113 -119 -83
4 Jhajjar 11004 67236 104116 59862 387 376 320 283 327
5 Jind 39179 120169 199410 198435 111 72 -9 -88 -87
6 Kornai 35280 128734 151235 135717 92 57 -37 -59 -44
7 Mahendragarh 9495 76467 58523 51136 42 33 -34 -17 -9
8 Nuh (Mewat) 5275 68834 54998 34432 62 57 -7 7 28
6 Palwal 26345 108801 95323 112446 110 84 1 15 -2
10 Panipat 2536 64014 140884 49665 87 84 23 -54 37
11 Rewari 27098 86219 118932 123567 76 49 -10 -43 -48
12 Rohtak NA 18244 27870 36965 49 NA 31 21 12
13 Sonipat 253 151 102 106
11671 113504 163489 159303 265
14 Charkhi Dadri NA I NA I NA I NA 29 NA NA NA
1\ NA
Note: CAAQMS and AOD values for Charkhi Dadri were not available;
*Negative Values indicate that no brick kiln can be operated Table 10: Number of brick kilns which can be operated in NCR Districts of Haryana during October- February.
S.No. Name of Supportive Carrying Capacity, Kg Total No of
*No of Zig Zag type Brick Kilns, which can be
District
Zig Zag type operated
Brick Kilns
October Novembe December Januar February October November Decembe Januar Februar
r y r y y
Bhiwani -181287 -217834 -161372 -50771 -102713 132 -181 -218 -161 -51 -103
1
Faridabad
-58074 -63482 -86309 -60595 -69744 85 -58 -63 -86 -61 -70
2 (Ballabhgarh)
3 Gurugram -86855 -114707 -95870 -44752 -54086 6 -87 -115 -96 -45 -54
4 Jhajjar -57037 -66156 -35735 -8473 -24508 387 -57 -66 -36 -8 -25
5 Jind -139493 -200348 -87747 -19973 -42386 111 -139 -200 -88 -20 -42
3
Vide order dated 15.10.2020 in O.A No. 1016 of 2019, Utkarsh Panwar v. CPCB 11 6 Karnal -199065 -210841 -124392 NA -74670 92 -199 -211 -124 NA -75 7 Mahendragarh -56697 -40910 -24668 -29829 -17653 42 -57 -41 -25 -30 -18 8 Nuh (Mewat) -41244 -54361 -24796 NA -31520 62 -41 -54 -25 NA -32 9 Palwal -68906 -96790 -52648 -18725 -51021 110 -69 -97 -53 -19 -51 10 Panipat -157739 -148653 -154830 -3515 -110506 87 -158 -149 -155 -4 -111 11 Rewari -132857 -123782 -84895 -66279 -100946 76 -133 -124 -85 -66 -101 12 Rohtak -61359 -79059 -98428 -61270 NA 49 -61 -79 -98 -61 NA 13 Sonipat -105591 -63787 -59724 -165682 -85069 265 -106 -64 -60 -166 -85 14 Charkhi Dadri NA NA NA NA NA 29 NA NA NA NA NA *Negative Values indicate that no brick kiln can be operated The month-wise number of brick kilns which can be operated within the assimilative capacity during March-June and October- February are presented in Table 11 and Table 12 respectively, for NCR districts of Uttar Pradesh.
Table 11: Number of brick kilns which can be operated in NCR Districts of Uttar Pradesh during March-June.
11. Finally, it has been concluded:-
xxx xxx xxx Following is the submission of CPCB on the above points:
i) Based on the evaluation of the data and estimation of the carrying capacity as explained in the previous section, there is no assimilative capacity available in the ambient air environment in the NCR districts of Haryana, Uttar Pradesh and Rajasthan for simultaneous operation of all the existing brick kilns, even after adopting Zig-zag technology. Based on the available assimilative capacity, some brick kilns may operate.
12 to 14 xxx...........................xxx..........................xxx
15. We are unable to find any substance in the objections. CPCB has duly explained that the Carrying Capacity is based on monthly average data on PM 10 generated from CAAQMS and where no such data was available, Aerosol Optical Depths were extrapolated to PM. Further, carrying capacity has been assessed by taking mixing heights into consideration and comparing with identical air shed of districts geographical area and dispersion air volume conditions. With regard to emission load, the load is based on actually monitored values taking stack diameter, velocity, temperature and pressure of flue gases and standard of 250 mg/Nm 3 at 17% O 2. Overall fact is that entire NCR has no carrying capacity to take load of the pollution of the brick kilns as already levels of PM10 and PM2.5 are exceeding daily/annual standards. As per Table 15 of the Report, no brick kiln has scope to operate except, some may, during March to June.
1216. xxx............................xxx.................................xxx
17. In Arjun Gopal & Ors. v. UOI & Ors.4, it was observed that the residents of NCR faced severe air quality standards which were worst in the World. It had serious adverse health impact. Life of citizens in NCR had been brought to virtual standstill. The Capital was smoked into an environmental emergency of unseen proportions. It will be appropriate to extract some observations from the judgment:-
"4. The onset of winter and the festival/marriage season this year, presented to the residents of NCR severe concerns regarding the air quality standards. According to reports, the air quality standards in early November of this year were the worst in the world. It is reported that the PM2.5 levels recorded were "beyond scale" values (see India's Air Quality Among World's Worst Over Diwali Weekend: Report. 4-11-2016, Hindustan Times). The report indicates that 24-hour average of PM2.5 levels in South Delhi in 2016 were 38% higher than on the Diwali night of 2015. The day after Diwali, these levels were twice as high as the day after Diwali in 2015, crossing 650 μg/m3, which is 26 times above the WHO's standards or levels considered safe.
Shockingly, on the morning of 1-11-2016, Delhi woke up to an average PM2.5 level of over 700 μg/m3 -- some of the highest levels recorded the world over and 29 times above WHO standards. The report further states that the WHO guideline for 24- hour average PM2.5 levels is 25 μg/m3 and with an annual average PM2.5 level of 122 μg/m3, Delhi's air is the worst among global megacities with dense populations. We have particularly referred to the PM 2.5 levels because of the extreme effects and near invisibility of this type of particulate matter. PM2.5 or particulate matter 2.5 (PM2.5), refers to tiny particles or droplets in the air that are two-and- one-half microns or less in width. It may be noted that the widths of the larger particles in the PM2.5 size range would be about thirty times smaller than that of a human hair. These particles primarily emanate from vehicle exhausts and other operations that involve the burning of fuels such as wood, heating oil or coal, and of course, use of fire crackers.
5. xxx.............................xxx..................................xxx 4 (2017) 1 SCC 412 13
6. Reports indicate that AQI in Delhi was much above the severe standard, shooting off the AQI 500 mark on many days this November. On the day after Diwali, it was more than 14 times the safe limits (see Delhi's Pollution Levels Peaks at 14-16 Times Safe Limits, 31-10-2016, The Hindu). The adverse health effects of these hazardous levels of pollution are only too evident from the table given above. We do not intend to refer to the multiplicity of reports and data on this front.
7. The hazardous levels of air pollution in the last few weeks has spared very few from its ill effects. The life of the citizens of NCR was brought to a virtual standstill, not to speak about the plight of the thousands of mute flora and fauna in NCR. Schools were declared shut, denizens of the city advised to stay indoors, construction activities stopped, power stations shut and ban imposed on burning of garbage and agricultural waste. The fall in air quality has had a significant impact on people's lifestyle as well. The rising costs to protect against air pollution are substantial. It has come to our notice that people are queuing up to purchase protective masks and air purification systems in the wake of dense smog all over the NCR. In short, the capital was "smogged" into an environmental emergency of unseen proportions.
8. The adverse effects of these extreme levels of air pollution spare no one -- the young, the old, the infirm and even the future generations. A study of the data of the Global Health Depository of the World Health Organisation reveals that India has the world's highest death rate from chronic respiratory diseases and that about 1.5 million people in India die annually due to indoor and outdoor pollution (see Delhi Wakes up to an Air Pollution Problem it cannot Ignore, 15-2-2015, The New York Times). The Kolkata-based Chittaranjan National Cancer Institute (CNCI), in a study commissioned and handed over to the Central Pollution Control Board, found that key indicators of respiratory health, lung function to palpitation, vision to blood pressure, of children in Delhi, between four and 17 years of age, were worse off than their counterparts elsewhere.
It also found that more than 40% of the school children suffer from lung damage (see Landmark Study Lies Buried, 2-4-2015, The Indian Express). We note with apprehension that there are nascent studies that suggest that pollution can lower children's IQ, hurt their test scores and increase the risks of autism, epilepsy, diabetes and even adult-onset diseases like multiple sclerosis (see Holding Your Breath in India, 29-5- 2015, The New York Times).
9. It has been brought to our notice that the severe air pollution in the NCR is leading to multiple diseases and other health related issues amongst the people. It is said 14 that the increase in respiratory diseases like asthma, lung cancer, bronchitis, etc. is primarily attributable to the worsening air quality in the NCR. The damage being caused to people's lungs is said to be irreversible. Other health related issues like allergies, temporary deafness are also on the rise. Various experts have pointed towards multiple adverse effects of air pollution on human health like premature deaths, rise in mortality rates, palpitation, loss of vision, arthritis, heart ailments, cancer, etc.
10. When we refer to these extreme effects, we are not merely referring to the inconvenience caused to people, but to abject deprivation of a range of constitutionally embedded rights that the residents of NCR ought to have enjoyed. Needless to state, the grim situation of air quality adversely affected the right to education, work, health and ultimately, the right to life of the citizens, and this Court is constitutionally bound to address their grave concerns. May we remind ourselves, that this is not the first time that this Court was impelled into ensuring clean air for the citizens of the capital region (see M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 6 SCC 60] , [M.C. Mehta v. Union of India, (1998) 9 SCC 589] , M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 8 SCC 648] and M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 8 SCC 206] )."
18. In the context of banning sale of crackers having adverse impact on the air quality, it was held that even if there were several sources of pollution, a particular polluting activity could be prohibited. No equality could be pleaded in this regard. Right to trade was not absolute and could be restricted for protection of Environment which was a specific Directive Principle of State Policy enforcement of which was a reasonable restriction on fundamental right to trade. The 'Precautionary Principle' of environmental law allows prohibition of a polluting activity even in absence of scientific certainty. ......."
19. Carrying capacity is a facet of sustainable development. It is inherent in 'Precautionary Principle' as well as in 'Inter- generational Equity'. In MC Mehta v. UOI & Ors., construction activity in the catchment area of Badkhal were directed to be restricted/regulated to the level of Carrying capacity. It was observed that:-
"Preventive measures have to be taken keeping in view of the carrying capacity of the ecosystem operating in the environmental surroundings under consideration."
20. In Vellore Citizens' Welfare Forum v. UOI & Ors.5, it was observed that quality of human life is to be improved within the 5 (1996) 5 SCC 647 15 carrying capacity to supporting ecosystem. Relevant extract is as follows:-
"10....... During the two decades from Stockholm to Rio "Sustainable Development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. "Sustainable Development" as defined by the Brundtland Report means "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development" as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists."
21. These observations are reiterated in (2006) 6 SCC 371.6 22 to 23 xxx......................... xxx........................................ xxx
24. The Tribunal has a mandate to follow these principles under Section 20 read with Section 15 of the National Green Tribunal Act, 2010 and can issue appropriate directions for enforcement of these principles, as laid down in Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors.,7 and the Director General (Road Development) NHAI v. Aam Aadmi Lok Manch.8 Environmental rule of law requires strict enforcement of these principles as laid down in Hanuman Laxman Aroskar v. UOI).9
25. This Tribunal in O.A. No. 681/2018, vide order dated 21.08.2020, dealt with the remedial measures for restoration of air quality in 122 Non-attainment cities, including Delhi where air quality is generally beyond norms. The Tribunal directed stopping polluting activities, including brick kilns and assessment of carrying capacity of urban areas to take policy decisions to control polluting potential activities beyond carrying capacity. The Tribunal observed:-
"3. The Tribunal noted the concern arising from such large scale air pollution which grapples the country in spite of statutory mechanism under the Air Act, directions of the CPCB under section 18(1)(b), dated 29.12.2015 and directions of the Hon'ble Supreme Court for control of vehicular pollution10, industrial and construction sector pollution11, power 6 Para 66 to 76 7 2019 SCC online SC 322, Para 43-47 8 AIR 2020 (SC) 3471, Para 75 9 (2019) 15 SCC 401 10 Rural Litigation and Entitlement Kendra, Dehradune and Others Vs State of U.P. Others (1985) 2 SCC 431, M.C. Mehta v. Union of India (2001) 3 SCC 756, M.C. Mehta v. Union of India (1998) 6 SCC 63, M.C. Mehta v. Union of India (2002) 4 SCC 356, M.C. Mehta v. Union of India (1998) 6 SCC 60 11 M.C. Mehta v. Union of India (1997) 2 SCC 353, M.C. Mehta v. Union of India and Shriram Foods and Fertilizer Industries and Anr. (1986) 2 SCC 176, Rural Litigation and Entitlement 16 sector pollution12 and agricultural sector pollution13 and orders of this Tribunal dealing with the said issues 14. The Tribunal also referred to a Comprehensive Action Plan (CAP) for air pollution control for NCR prepared in pursuance of order of the Hon'ble Supreme Court dated 06.2.2017 by the Environment Pollution (Prevention and Control) Authority (EPCA) in consultation with the CPCB and Delhi Pollution Control Committee (DPCC) on 05.04.201715 and Graded Response Action Plan (GRAP) notified by the MoEF&CC on 12.01.2017 stipulating specific steps for different levels of air quality such as improvement in emission and fuel quality and other measures for vehicles, strategies to reduce vehicle numbers, non-motorised transport network, parking policy, traffic management, closure of polluting power plants and industries including brick kilns, control of generator sets, open burning, open eateries, road dust, construction dust, etc.16
4. Implementation of prescribed norms in the light of legal provisions and court directions remains a challenge. The consequence is that India is being ranked high in terms of level of pollution compared to many other countries with enormous adverse impact on public health. Most victims are children, senior citizens and the poor.17
5. The GRAP categorises levels of pollution as severe plus, severe, very poor, moderate to poor. The action to be taken in such situations includes stopping entry of trucks, stopping construction activities, odd and even scheme of private vehicles, shutting of schools, closing of brick kilns, stone crushers, hot mix plants, power plants, intensifying public transport services, mechanized cleaning of road, and sprinkling of water, stopping the use of diesel generator sets, enhancing parking fees, etc.
6. The MoEF&CC has by various notifications put restrictions on activities in Coastal areas, Flood plains, Taj corridor Eco-sensitive zones, etc. in view of ecological sensitivity and impact of such activities on environment if such activities Kendra, Dehradun v. State of U.P. (1985) 2SCC 431, Mohd. Haroon Ansari v. District Collector (2004) 1 SCC 491, Union of India v. Union Carbide Co. (1989) 1 SCC 674, M.C. Mehta v. Union of India (1992) 3 SCC 256, Sterlite Industries (India) Ltd. etc. v. Union of India & Ors.(2013) 4SCC 575 , M.C. Mehta v. Union of India (2004) 6 SCC 588, M.C. Mehta v. Kamal Nath (2000)6 SCC 213 12 Consumer Education and Research Centre v. Union of India (1995)3 SCC 42, Dahanu Taluka Environment Protection group and Ors. v. Bombay Suburban Electricity Supply Company Ltd.
and Ors (1991) 2SCC 539 13 Arjun Gopal and Ors v. Union of India and Ors (2017) 16 SCC 280, Dr. B.L Wadhera v. Union of India and Ors (1996) 2 SCC 594 14 Vardhman Kaushik v. Union of India and Ors. O.A no. 21 of 2014, Vikrant Kumar Tongad v. Environment Pollution (Prevention and Control) Authority and Ors, O.A No. 118 of 2013, Satish Kumar v. Union of India and Ors, O.A. No. 56 (THC) OF 2013, Smt. Ganga Lalwani V. Union of India and Ors. O.A No. 451 of 2018 15 Report No.71, EPCA-R/2-17/L-21, Comprehensive Action Plan for air pollution control with the objective to meet ambient air quality standards in the National Capital Territory of Delhi and National Capital Region, including states of Haryana, Rajasthan and Uttar Pradesh.
16S.O.118(E), Notification, Ministry of Environment, Forest and Climate Change 17 https://www.thehindu.com/sci-tech/energy-and-environment/india-ranks-177-out-of-180- in-environmental-performance-index/article22513016.ece, https://www.ndtv.com/delhi- news/delhis-air-pollution-has-caused-of-death-of-15-000-people-study-1883022.
17are carried out in unregulated areas. This needs to be extended to the NACs in view of impact on public health and environment to give effect to the 'Precautionary' and 'Sustainable Development' principles."
7to13..xxx......................xxxx.......................................xxx
14. According to the CPCB, draft framework has been prepared and SA study completed in four States (for 05 cities). Study was under progress in 14 States (for 54 cities), and at proposal stage in 10 States (for 37 cities). Methodology for carrying capacity has been shared with State PCBs/PCCs. Twelve (12) States/UTs have given the details of the carrying capacity and the remaining have yet to take necessary steps. CC/SA studies are pre requisite for meaningful planning to enforce environmental law. This pre-requisite should have been undertaken long ago. Air quality norms have been statutorily laid down under the Air (Prevention and Control of Pollution) Act, 1981 as well as the Environment (Protection) Act, 1986 and such norms are being flagrantly violated, which has been made by the Parliament a criminal offence. If the rule of law has to have meaning and guilty are to be punished, the policies of the State have to be based on scientific studies to contain polluting activities within the scope of Carrying Capacity."
26. Dealing with the issue of air pollution in manufacture of tiles at Morbi in Gujrat, vide order dated 6.3.2019 OA 20/17 Babubhai v GPCB, this Tribunal directed closure of industries operating with coal unless they shifted to natural gas. This was referred in the earlier order of this Tribunal in the present matter. It was further observed that while under the orders of the Hon'ble Supreme Court, GRAP was laid down providing for closing of specified activities on crossing of air quality norms as laid down in the GRAP, the same did not debar consideration of further situations requiring closure/regulation.
27. Thus, in view of report of the CPCB, at this stage it is not possible to vacate direction not to permit operation of brick kilns in NCR beyond the carrying capacity found by the CPCB. All applications of the brick kiln owners seeking rejection of CPCB report and vacation of interim order against operation of brick kilns, without air quality assimilative capacity permitting such activity will stand rejected subject to further exploring viable options, including change to clean fuel like natural gas. We are conscious that brick kilns may be necessary. Object of this order is not to stop any legitimate business activity but to enforce the right to breathe fresh air which is right to file. The source apportionment studies, placed on record, show that brick kilns contribute 5-7% PM. Air pollution Control devices to be installed by the polluting sources including the brick kilns need to comply not only the consent standards but are also the Ambient Air Quality norms and available assimilative capacity of the region. If the right to fresh air is not enforced, the consequences of brick kilns beyond carrying capacity of the air quality in the area are disastrous in terms of deaths and 18 air borne diseases. This will be contrary to the mandate of the Constitution and the environmental law, particularly the principle of 'Sustainable Development'. It is well established that deteriorated ambient air quality in terms of PM10 and PM2.5 affects respiratory system particularly, the lungs which may make individuals more vulnerable to get other related fatal diseases.18"
16. It is seen from above, that there was no carrying capacity in Mahendragarh District to sustain brick kilns. Thus, stone crushers can also not be allowed in absence of carrying capacity in terms of air quality to sustain operation of stone crushers. Precautionary principle has to be applied having regard to impact of air pollution on health. Right of citizens to breathe fresh air cannot be denied and right of operating stone crushers cannot get preference over and above right to life on specious plea that the stone crushers were set up as per siting parameters allowed by the State without study of impact of the carrying capacity. As already noted, the siting norms is only one of the issues and even if this issue is to be ignored for the time being, there has to be carrying capacity in terms of air quality.
17. Accordingly, we direct that the joint Committee with the addition of the CPCB to take further steps in terms of order of this Tribunal dated 24.07.2019, quoted earlier for compliance of environmental norms in the light of the carrying capacity of the area and the health impact of the operation of stone crushers on the inhabitants. The joint Committee may go by the order of the High Court and the State Government as far as siting criteria is concerned but close illegally polluting stone crushers in terms of all other environmental norms, including the air quality, illegal water extraction. The joint Committee may also study the health impact on the inhabitants and take remedial action. The State PCB will be the nodal https://airqualitynews.com/2020/08/13/the-link-between-air-pollution-and-covid-18
19/http://www.babushahi.com/full-news.php?id=107487 19 agency for coordination and compliance. The statutory authorities taking coercive measures may ensure due process of law.
18. Let an action taken and status report in the matter be furnished before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
List again on 08.04.2021.
A copy of this order be sent to the CPCB, Deputy Commissioner Mahendergarh, District Town and Country Planning Mahendergarh, Haryana Pollution Control Board and the Divisional Forest Officer Mahendergarh by email for compliance.
Adarsh Kumar Goel, CP S.K. Singh, JM Dr. Nagin Nanda, EM December 03, 2020 Original Application No. 667/2018 & Original Application No. 679/2018 AB 20