National Green Tribunal
Court On Its Own Motion Prakash Jadhao vs State Of Maharashtra Through Its Chief ... on 5 September, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 114/2014 (WZ)
(THC)
W.P. no. 3366/2008
(Old No. PIL 39/2013)
Court on its own Motion Applicant
Versus
The State of Maharashtra & Ors. Respondent(s)
Date of hearing: 05.09.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Respondent: Ms. Supriya Dangare, Advocate for MPCB
ORDER
1. Proceedings in this application are a result of transfer of W.P. No. 3366/2008 and PIL No. 39/2013 on the file of the Bombay High Court, Nagpur Bench vide order dated 08.10.2014 as follows:-
"Heard.
On a perusal of the Writ Petition and the provisions of the National Green Tribunal Act, 2010, specially the provisions of Section 14 and Schedule-I thereof, in our view the issues involved in these cases could be effectively decided by the National Green Tribunal (Western Zone), Pune. A request is also made by the learned counsel for the petitioner in Writ Petition No. 3366/2008 to remit the matters to the National Green Tribunal for a decision on the questions involved in the Writ Petition.1
The learned Government Pleader agrees that in the facts of these cases and in view of the relief sought, the National Green Tribunal would be better equipped to decide the substantial questions.
In view of the aforesaid, we remit the Writ Petition and the Public Interest Litigation to the National Green Tribunal, (Western Zone) Pune for consideration."
2. Proceedings before the High Court were initiated suo motu on a letter by Shri Prakash Jadhao, Member of Parliament from Ramtek Constituency, followed by a W.P. No. 3366/2008 highlighting river pollution in Vidarbha region by discharge of untreated sewage and polluting trade effluents, depriving the citizens of potable water. The letter further mentioned that there is illegal excavation of sand from the river bed.
3. Considering that the facts complained of were in violation of Environment (Protection) Act, 1986 and the Water (Prevention and Control of Pollution) Act, 1974, the High Court issued notice on 01.08.2008 and passed several orders for six years till transfer of proceedings to this Tribunal.
4. On receipt of the proceedings from High Court, on 04.12.2014 the Tribunal issued notice to the parties. Vide order dated 17.04.2015, the Tribunal directed the State PCB to ascertain the load of pollution and water quality of the rivers in question.
5. On 07.08.2015, the matter was deferred to await proceedings in another matter pending before the Bombay High Court at Nagpur in W.P. (PIL) No. 38/2010. Again, vide order dated 02.02.2016 proceedings were deferred after referring to order of the Bombay High Court at Nagpur dated 19.11.2015 in W.P.(PIL) No. 38/2010 directing the concerned authorities to monitor compliance of pollution norms. 2
6. None appears for the applicants. We have heard learned Counsel for the State PCB. She fairly stated that no updated status of proceedings in the High Court is available and there is thus no need to defer the proceedings before the Tribunal, transferred by the High Court for speedy disposal. Accordingly, we proceed to deal with the matter.
7. Case set out in the petition on record is that Wainganga river and its tributaries/drains include Wardha, Purna and Kanhan rivers which are also tributaries of Godavari river. Further, rivers Khandu, Khapra, Sipna, Gadga and Dolar are tributaries of Tapti River. Other tributaries are:-
Purna river in Amraoti, Akola and Buldhana Nalganga River in Buldhana Vishwaganga River in Buldhana Nipani River in Buldhana Mann River in Buldhana, Akola Mas River in Buldhana, Akola Utawali River in Buldhana, Akola Vishwamitra River in Akola Nirguna River in Washim, Akola Gandhari River in Akola Aas River in Akola Vaan River in Buldhana, Akola, Amravati Morna River in Akola, Washim Shahanur River in Akola, Amravati Bhavkhuri River in Amravati Katepurna River in Akola, Washim Umaa River in Akola, Washim Pendhi River in Akola, Amravati Chandrabhaga River in Amravati Bhuleswari River in Amravati Aarna River in Amravati Gadga River in Amravati Sipna River in Amravati Khapra River in Amravati Khandu River in Amravati Tigriy River in Amravati Surkhi River in Amravati Burshi River in Amravati 3
8. Grievance is that several industries are discharging pollutants, which include Ballarpur Paper Mill of Chandrapur District. The extent of pollution is said to be 750.9 Crore liters water. Municipal waste discharged is said to be 30 lakh liters. There are also allegations of theft of sand by brick manufacturers.
9. Reply filed by the Industrial Development Corporation, Maharashtra is that CETP has been set up in pursuance of directions of Hon'ble Supreme Court vide order dated 14.10.2003 in SLP No. 657/1995, Research Foundation for Science Technology and National Resource Policy v. UOI. There is MoU between MIDC and Butibori Manufacturers Association on 17.06.2005.
10. Stand of the State PCB is that instructions have been issued to the local Authorities under Section 33 A of the Water Act, 1974 and 31 A of the Air Act, 1981 to prevent pollution. Two other Writ Petition Nos. 6452/2005 and 927/2007 are pending before the Nagpur Bench regarding pollution of Nag river by the Nagpur Municipal Corporation. Directions have also been issued to Collectors to prevent illegal sand mining.
11. The stand of the Nagpur Municipal Corporation is that it has planned rejuvenation of all lakes and rivers in the city. It has appointed contractors and other service providers for 11 lakes and 3 rivers. Project reports have been prepared for each individual lake and river. Water is fit for drinking. Necessary STPs have been installed and sewage is duly treated.
12. The record shows that in PIL No. 39/2013, while taking cognizance of the issue, the High Court appointed an amicus curiae who filed a 4 formal application. Reference was made to the contents of a media report dated 25.04.2013 titled 'Vena River, a victim of neglect'. Further, it refers to the geographical area in the Vidarbha region and the sources of pollution of the rivers and suggests steps for preventing and remedying the pollution.
13. In the light of the above narrative and in absence of any assistance of any affected party, we have considered the matter. We find that there is no specific data about the extent of pollution and its sources. Learned counsel for the State PCB, Ms. Supriya Dangare, submits that as per her information for which there is nothing on record, there was discharge of untreated sewage to the extent of 116.5 MLD.
14. The matter of pollution of rivers generally has been dealt with by this Tribunal inter-alia vide order dated 22.02.2021 in O.A. No. 637/2018, In re: News item published in "The Hindu" authored by Shri Jacob Koshy titled "More river stretches are now critically polluted: CPCB, (with regard to 351 polluted river stretches) and in O.A. No. 593/2017, Paryavaran Suraksha Samiti & Anr. v. UOI & Ors., dealing with the liquid waste treatment in pursuance of the judgment of the Hon'ble Supreme Court in Paryavaran Suraksha case.1 Directions have been issued to prevent and remedy pollution by preparing specific action plans in respect of each polluted stretch to be approved by the CPCB and to execute the same, to be overseen by the Chief Secretaries at the State level and by a joint Committee of NMCG, CPCB and Ministry of Jal Shakti at National level. Relevant extracts from the said orders are reproduced below:-
"xxx..................................xxx..............................................xxx 1 (2017) 5 SCC 326 5
31. As noted earlier, protecting the rivers from pollution is a National necessity. Pollution of rivers has resulted in worst water crisis in the country. This requires control of domestic and industrial pollution, utilization of treated sewage for secondary purposes to prevent use of potable water for such purposes, protecting the catchment areas, regulating activities in flood plains zones, maintaining e-flow which includes conserving the ground water. All these steps are duly mentioned in the Notification dated 07.10.2016 as necessary for control of pollution and rejuvenation of Ganga. This Tribunal in its earlier orders, including orders dated 20.09.2018, 19.12.2018, 08.04.2019, 06.12.2019 29.06.2020 and 21.09.2020, dealt with preparation and execution of action plans for all the 351 polluted river stretches almost on same pattern. The compensation regime has been laid down not only for delay in finalizing action plans but also for delay in commencing and completing the projects on the pattern of regime applicable to Ganga. Similarly, in connected matter (OA 593/2017) relating to setting up of requisite numbers of ETP, CETP and STPs (including modular STPs wherever necessary) as per mandate of law under the Water Act and the judgment of the Hon'ble Supreme Court in Paryavaran Suraksha, supra, also compensation regime has been laid down and compliance of direction of the Hon'ble Supreme Court for rigid implementation mechanism for ensuring compliance by 31.03.2018 has been overseen, as mentioned earlier. Finally, this aspect of monitoring for setting up of all requisite ETPs, CETPs and STPs (including modular STPs wherever necessary) within the timelines and for also taking other steps for control of pollution and rejuvenation of 351 polluted river stretches was left to the CMC to be headed by the Secretary, Ministry of Jal Shakti along with the NMCG and CPCB.
At the State levels, directions have been issued for constituting River Rejuvenation Committee for preparation and execution of the action plans to be overseen by the Chief Secretaries of all the States by constituting 'environment cells' directly under them. The status reports given by the CMC constituted by this Tribunal have already been quoted above.
xxx.................................xxx..........................................xxx
37. In view of the above, we are of opinion that the monitoring by the Tribunal cannot be unending and must now be taken over by the concerned authorities. The roadmap stands laid out. Action plans have been prepared for remediation of all the 351 identified polluted river stretches. Gaps have been identified for ETPs/CETPs/STPs (including modular STPs wherever necessary). Timelines are clear. Sources of funding are clear in the Supreme Court order. HAM model is also available as per Govt. of India Policy mentioned in the report of the CMC. Alternative conventional methods of bio/phytoremediation are also available as mentioned in the report of the CMC. Existing treatment capacity is not fully utilised. New projects, already ongoing or those yet to commence need to be expedited. Consequences for delay in terms of compensation and administrative measures have been clearly mentioned. The river rejuvenation committees in the States/UTs, as per directions of the Chief Secretaries may 6 perform their obligations accordingly which may be monitored by the Central Monitoring Committee, headed by Secretary, Jal Shakti, as directed earlier.
38. We find that the monitoring mechanism introduced as per directions of this Tribunal in the form of RRCs at the States level and CMC at the Central level is to an extent identical to the monitoring mechanism laid down under the River Ganga Rejuvenation, Protection and Management Authorities Notification 2016. However, mechanism under the 2016 notification being statutory and exhaustive, it will be better that the same is adopted for all the river stretches as issues involved are common. The Empowered Task Force on river Ganga headed by Union Minister of Jal Shakti may exercise all powers and discharge all functions in relation to all the polluted river stretches in the same manner as the functions entrusted to it under the River Ganga 2016 order for control of pollution and rejuvenation of polluted river stretches. This is necessary so that the Nation/Central Monitoring Mechanism can be effective, in view of continuing failure of statutory mechanism under the Water Act for preventing pollution of water, resulting in pollution of almost all the rivers and water bodies in the country, posing serious threat to availability of potable water for drinking purposes as well as for safety of food chain. Hardly any accountability has been fixed for such serious failures. It will be open to the MoJS to issue any further appropriate statutory order to give effect to the above directions under the EP Act. The National/Central Mechanism may enforce the earlier directions of this Tribunal for collecting compensation for the failure to commence or complete the projects for setting up of sewage treatment equipments or taking steps for interim remediation measures. This is necessary for accountability for the failure to obey the law. The compensation so assessed may be deposited in a separate account to be used for rejuvenation of the polluted river stretches in the same manner as directed in the case of Ganga quoted above. As directed vide order dated 19.12.2018 in OA 673/2018, responsibility to pay compensation on behalf of the States/UTs will be of the Chief Secretaries. As per scheme of the NGT Act, every order of NGT is executable as a decree of Civil Court2. Further, failure to comply order of the NGT is an offence punishable with imprisonment upto three years or fine upto Rs. 10 crores with additional fine for continuing offence after conviction.3 If the offence is by a Government Department, Head of the Department is deemed to be guilty.4 Cognizance of the offence can be taken by a Court on a complaint of Central Government or any other person who has given notice to the Central Government or its authorized representative. The complaint can be filed before a Court of Magistrate of first class. It is, thus, necessary in view of continuing violation of NGT order, requiring payment of compensation to reiterate the direction of responsibility for payment of compensation, to be of the Chief Secretaries and 2 Section 25 of the NGT Act, 2010 read with Section 51 of the CPC providing for mode of execution which include civil imprisonment.
3Section 26 4 Section 28 7 in default, their liability to be proceeded against for coercive measures for execution or by way of prosecution as per NGT Act, 2010.
39. Our directions are summed up as follows:
(i) In the light of observations in Para 38 above, MoJS may devise an appropriate mechanism for more effective monitoring of steps for control of pollution and rejuvenation of all polluted river stretches in the country. The said mechanism may be called "National River Rejuvenation Mechanism"
(NRRM) or given any other suitable name. NRRM may also consider the observations with regard to setting up of National/State/District Environment Data Grid at appropriate levels as an effective monitoring strategy.
(ii) Chief Secretaries of all States/UTs and PCBs/PCCs must work in mission mode for strict compliance of timelines for commencing new projects, completing ongoing projects and adopting interim phyto/bio-remediation measures, failing which compensation in terms of earlier orders be deposited with the MoJS, to be utilised in the respective States as per action plan to be approved by the NRRM. Other steps in terms of action plans for abatement of pollution and rejuvenation of rivers, including preventing discharge or dumping of liquid and solid waste, maintaining eflow, protecting floodplains, using treated sewage for secondary purposes, developing bio-
diversity parks, protecting water bodies, regulating ground water extraction, water conservation, maintaining water quality etc. be taken effectively. The process of rejuvenation of rivers need not be confined to only 351 stretches but may be applicable to all small, medium and big polluted rivers, including those dried up.
(iii) The Chief Secretaries of all States/UTs may personally monitor progress at least once every month and the NRRM every quarter.
(iv) Directions of this Tribunal in earlier order, the last being dated 21.9.2020 are reiterated.
(v) The NRRM and the Chief Secretaries of all the States/UTs may take into account the observations in Paras 24 to 38 above."
15. The Tribunal, vide order dated 18.12.2019 in OA No. 200/2014, M.C. Mehta vs. Union of India & Ors. (para 23), noted that for setting up of STPs standard cost involved is said to be around Rs. 2 crores per MLD as per works allotted by NMCG. Cost of establishing sewerage networks, including setting up of pumping stations is said to be around Rs. 5 crores per MLD.
8
16. In a recent order dated 03.08.2022 in O.A. No. 1002/2018, Abhisht Kusum Gupta v. State of Uttar Pradesh & Ors., the Tribunal has held that scale of compensation @ Rs. 2 Crores per MLD for discharge of untreated liquid waste with regard to sewage. In case of pollution by industries, compensation has to be referable to the cost of remediation with deterrent element, having regard to the financial capacity of the industry. Relevant extracts from the said order are reproduced below:-
"xxx.....................................xxx.............................................xxx
26. The sewer generated from said 56 non-compliant group housing societies is estimated to about 100 MLD. Estimated amount of pollution required to be treated by DJB is said to be about 90 MGD, as mentioned earlier. Thus, estimated cost of remediation may be about 380 crores. The capital cost of each MLD treatment is about Rs. 2 Crores, apart from running cost5. The damage to environment and public health is much more than the cost of remediation."
17. Having regard to the facts and circumstances already mentioned above, it appears to be necessary to take remedial measures for preventing pollution of the rivers and their tributaries and also for protection of floodplain zones. For this purpose, encroachments, if any, be removed and further encroachments may be prevented. The industries in the catchment area of the rivers be required to adopt ZLD.
18. Accordingly, we direct the Chief Secretary, Maharashtra and State PCB to take stock of the situation by an appropriate mechanism and plan and execute remedial action, in accordance with law.
The application is disposed of.
If any grievance survives, it will be open to the aggrieved parties to take remedies in accordance with law.
5 https://www.cseindia.org/cost-estimation-for-planning-and-designing-of-decentralised-wastewater-treatment- system-2073#:~:text=2.5-3 9 A copy of this order be forwarded to the Chief Secretary, Maharashtra and State PCB by email for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dinesh Kumar Singh, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM September 05, 2022 O.A. No. 114/2014 (WZ) (THC) W.P. no. 3366/2008 (Old No. PIL 39/2013) A 10