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C/SCA/6756/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6756 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 6756 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 7142 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 6757 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 6757 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 6774 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 6774 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MR.JUSTICE A.C. RAO Sd/-
===============================================================
1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ M/S RADHE RENEWABLE ENERGY DEVELOPMENT PVT LTD Versus STATE OF GUJARAT Page 1 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT Appearance:
for the Petitioner(s) No. 2MR. AMAL PARESH DAVE(8961) for the Petitioner(s) No. 1,2 MR DHAVAL SHAH(2354) for the Petitioner(s) No. 1,2 MR. MIHIR JOSHI, LD. SR. COUNSEL with MR PARESH M DAVE(260) for the Petitioner(s) No. 1,2 GOVERNMENT PLEADER(1) for the Respondent(s) No. 1 MR BHAGYODAYA MISHRA(2971) for the Respondent(s) No. 3 MR DHAVAL M BAROT(2723) for the Respondent(s) No. 4 MS. MANISHA LURKUMAR SHAH, LD. SR. COUNSEL with MR RUTVIJ S OZA(5594) for the Respondent(s) No. 2 MR. S. N. SOPARKAR, LD. SR. COUJNSEL with MS.DILBUR CONTRACTOR(6388) for the Respondent(s) No. 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date : 19/11/2019 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. Since the issues raised in all the captioned petitions are the same, those were heard analogously and are being disposed of by this common judgment and order.
2. The Special Civil Application No.6756 of 2019 has been preferred by a Company engaged in the manufacturing of Coal Gasifier Hot Air Generator & Waste Recycling Plant. The writ applicants have prayed for the following reliefs;
"(A) That Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction thereby directing the Gujarat Pollution Control Board, the 2nd respondent herein to decide the Petitioner's representation dated 30th July, 2018 (Annexure-D to the petition) for final permission for long term utilization of Type-D Gasifier technology developed by the Petitioner.Page 2 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT
(B) That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order, thereby directing the GPCB and/or CPCB i.e. Respondent Nos.2 and 3 respectively, to examine and evaluate the modified technology of Type-D gasifier developed by the Petitioner, and grant approval for use/utilization of such gasifier if they were found to be in order and viable.
(C ) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the Respondents, their servant and agents from taking any action including action of closure against the manufacturing units operating with the help of Type-D coal gasifier sold and supplied by the Petitioner.
(D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the Respondents, their servants and agents from taking any action, including action of closure against any manufacturing units purchasing and installing Type-D gasifiers newly developed by the Petitioner.
(E) An ex-parte ad-interim relief in terms of para 27(C) and (D) above may kindly be granted.
(F) Any other further relief that may be deemed fit in the facts and circumstances of the case may also pleased be granted."
3. The Special Civil Application No.6757 of 2019 has been preferred by the manufacturers of Ceramic Products. The writ applicants have preferred a joint and consolidated writ application invoking Order I Rule I of the CPC. The writ applicants have prayed for the following reliefs;
"(A) That Your Lordships may be pleased to issue a writ of Mandamus or a writ of Certiorari or any other appropriate writ, order or direction thereby quashing and setting aside closure orders issued by the GPCB directing closure of the Petitioners' units (i.e. Annexure-"N", "O" and "P" to the petition) with all consequential reliefs and benefits;Page 3 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT
(B) That Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ, direction or order, directing the Gujarat Pollution Control Board, the 2nd Respondent herein to consider and decide applications for consent (CTE) and permission to continue manufacturing activities (CCA) filed by the Petitioners;
(C ) Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ, direction or order, directing the Gujarat Pollution Control Board the 2nd Respondent herein, to examine, check, evaluate and report about modified Type-D gasifier being used by the Petitioners in their manufacturing units, and to grant consent and approval for using such modified Type-D coal gasifier in the Petitioners' unit if they were fond to be in order in all respect;
(D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay for the Petitioners herein the further implementation and execution of closure orders (Annexure-"N", "O" and "P" to the petition) and be further pleased to direct the Gujarat Pollution Control Board (2nd Respondent herein) to issue consent (CTE) and CCA in favour of the Petitioners herein thereby allowing the Petitioners to continue their normal manufacturing activities in their factories shown at the closure title of this Writ Petition.
(E) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the Gujarat Pollution Control Board to examine, check and evaluate the modified Type-D gasifier technology being used by the Petitioners in their units, and submit its report before this Hon'ble Court forthwith.
(F) An ex-parte ad-interim relief in terms of para 31(D) and (E) above may kindly be granted.
(G) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted."
4. The Special Civil Application No.6774 of 2019 has also been preferred by the manufacturers of Ceramic Products.
Page 4 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTThey have prayed for the following reliefs;
"(A) That Your Lordships may be pleased to issue a writ of Mandamus or a Writ of Certiorari or any other appropriate writ, order or direction thereby quashing and setting aside closure orders issued by the GPCB directing closure of the Petitioners' units (i.e. Annexure-"F", "G" and "H" to the petition) with all consequential reliefs and benefits;
(B) That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order, directing the Gujarat Pollution Control Board the 2nd Respondent herein to consider and decide applications for consent and permission to continue manufacturing activities filed by the petitioners;
(C ) Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order, directing the Gujarat Pollution Control Board, the 2nd Respondent herein, to examine, check, evaluate and report about modified Type-D gasifiers being used by the Petitioners in their manufacturing units, and to grant consent and approval for using such modified Type-D coal gasifier in the Petitioners' units if they were fond to be in order in all respect;
(D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay further implementation and execution of closure orders (Annexure-"F", "G" and "H" to the petition) and be further pleased to direct the Gujarat Pollution Control Board (2nd Respondent herein) to issue consent and CCA certificates in favour of the Petitioners herein thereby allowing the Petitioners to continue their normal manufacturing activities in their factories shown on the cause title of this Writ Petition.
(E) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct Gujarat Pollution Control Board to examine, check and evaluate the modified Type-D gasifier technology being used by the Petitioners in their units, and submit its report before this Hon'ble Court forthwith;Page 5 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT
(F) An ex-parte ad-interim relief in terms of para 23(D) and (E) above may kindly be granted;
(G) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted."
5. The Special Civil Application No.7142 of 2019 has been preferred by the writ applicants engaged in the business of manufacture of Ceramic and Glazed Tiles at Village: Khakhrechi and Rohishala, Taluka: Maliya, District: Morbi. They have prayed for the following reliefs;
"(A) The Hon'ble Court be pleased to issue a writ of mandamus or any other writ, order or direction in the nature of mandamus quashing and setting aside the impugned notices dated 11.03.2019 issued to the present Petitioners by the respondent No.3.
(B) Pending admission and final hearing of the present petition, the Hon'ble Court be pleased to stay the operation and implementation of the impugned notices dated 11.03.2019.
(C ) Ex-parte ad interim relief in terms of paragraph (b) above be granted.
(D) Any other and/or further relief as deemed fit in the interest of justice may kindly be granted."
6. The facts, giving rise to this litigation, may be summarized as under;
6.1 This litigation has something to do with the serious issue of pollution caused by the Ceramic Industries at Morbi. Morbi- Wankaner ceramic cluster is located about 235 km South-West of Ahmedabad and 65 km North of Rajkot, spread in a 35 km belt in the Morbi District along the National Highway No. 8A. The production of ceramic tiles accounts for nearly 80% of the Page 6 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT country's total output. Most of the ceramic industries in the area were issued the Consolidated Consents & Authorization (CCA) with the condition of using PNG/LNG as the fuel. With increase in the PNG/LNG prices. The industries switched over to coal gasifier of very poor technology of gas cleaning without the prior permission from the Gujarat Pollution Control Board (GPCB), which led to major water, air and land pollution problems. The Gasifier operators started illegally disposing off the wastewater and coal tar, which has contaminated the land and water environment extensively in Morbi-Wakaner Industrial area. The Air pollutant emission from the spray drier units and combustion of coal tar has drastically polluted the overall environment of Morbi. The burning issues led to filing of various complaints regarding the pollution in the city of Morbi & other parts on the outskirts.
6.2 In response to the complaints, the officials of the Central pollution Control Board visited few ceramic industries in the month of July 2017. Based on the report, the Central Pollution Control Board (CPCB) in its direction U/s. 18(1)(b) of the Water (Prevention & Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981 dated August 23, 2012, instructed the GPCB to close down all the industries using coal based gasifier without any prior consent, and to ensure that the coal gasifiers are dismantled.
6.3 A Writ Petition (PIL) No.165 of 2013 came to be filed in this High Court in July, 2013 by one Shri Babubhai Ramubhai Saini regarding the acute problems of pollution caused by the Ceramic & Silicate Industries in and around the town of Morbi. The petition, in the nature of public interest, was preferred Page 7 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT seeking a writ of mandamus to the GPCB to enforce the directions and recommendations of the CPCB. This High Court, in its order dated 25th October, 2013, directed the GPCB to implement, at the earliest, the recommendations of the CPCB inspection report (2012) and also the directions issued by the CPCB under Section 18(1)(b) of the Water Act, 1974 dated 23rd August, 2012. It appears from the materials on record that in compliance of the directions dated 23rd August, 2012, the GPCB requested the CPCB to allow trial run for five different types of modified coal gasifier technologies. An Expert Committee was constituted by the Forest & Environment Department, Government of Gujarat to evaluate the modified coal gasifier technologies theoretically and practically. The Committee prepared a report titled "Report on coal based gasifier for theoretical and practical evaluation of technology proposals for Zero Percentage Pollution Discharge". Based on the said report and also upon the request of the GPCB, the CPCB issued modified directions dated 21st June, 2014. In view of the modified directions issued by the CPCB, this High Court disposed of the matter vide order dated 23 rd June, 2014, directing the Ceramic Industries to follow the new guidelines/norms.
6.4 The GPCB, thereafter, started issuing consent to establish (CTE) and amendment in the CCA for the coal gasifier based on the new guidelines and the short term and medium term measures suggested in the report of the Expert Committee of the Government of Gujarat for the up-gradation/modifications of gasifiers which were already installed, or for new gasifiers. The said report suggested and recommended long term measure as establishment of common gasifier system for the Page 8 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT cluster of industries considering the problems faced by the individual gasifier users.
6.5 It appears that three types of coal gasifiers (modified gasifiers) came forward claiming zero liquid discharge. Those were as under;
"Gasifier (up-draft) with indirect cooling/tar catcher with generation of condensate as wastewater and tar respectively where Wastewater disposal through evaporator and coal tar disposal as resource to sodium silicate industries/cement industries.
Gasifier (up-draft) with indirect cooling/tar catcher with generation of condensate as wastewater and tar respectively where wastewater and tar disposal through tar reformer/cracker-cum-wastewater evaporator Gasifier (down-draft) without wastewater and tar generation as cleaning /cooling of gas is not carried out."
6.6 It also appears that the order passed by this Court dated 23rd June, 2014, referred to above, came to be affirmed by the Supreme Court, reserving the liberty to the original petitioner to approach the appropriate forum. In such circumstances, the original writ applicant, namely, Babubhai Ramubhai Saini instituted the Application No.21 of 2015 before the National Green Tribunal at Pune, seeking appropriate directions to the GPCB and CPCB to take action against the ceramic industries causing pollution.
6.7 It appears that the National Green Tribunal constituted a Committee comprising of the officials of the CPCB, GPCB along with the Head of Department, Environmental Engineering, M.S. University, Baroda vide order dated 8th September, 2015 with a direction to suggest parameters and standards for the purpose of coal gasifiers, evolving of Page 9 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT monitoring system and mechanism in order to ensure the proper implementation of standards/norms. It was also prayed before the National Green Tribunal that the GPCB and the CPCB should pass necessary orders of closure of all the polluting industrial units in the city of Morbi and also to close and dismantle all the coal gasifiers being illegally used by the Industrial Units in an around the town of Morbi. Directions were sought against the GPCB and CPCB to ensure that all the Ceramic, Silicate and Frit Industries operating in and around Morbi strictly follow the terms and conditions of the CCA and also comply with the directions issued by the respondent No.3 vide its letter dated 21st June, 2014.
6.8 On 8th September, 2015, a charitable trust running in the name of Bhulabhai Motibhai Public Charitable Trust joined itself in the proceedings before the National Green Tribunal to espouse the very same cause. Few industries also preferred intervention applications and they were also permitted to be joined as the respondents. The National Green Tribunal also permitted intervention of one M/s. Gurukrupa Machtech Pvt. Ltd. (Manufacturer of Coal Gasifier) by permitting it to file its written submissions. However, the Tribunal declined to join M/s, Gurukrupa Machtech Pvt. Ltd. as a party respondent. The Tribunal finally disposed of the said proceedings vide order dated 8th September, 2015 with certain directions.
6.9 The order passed by the National Green Tribunal dated 8th September, 2015 was challenged before the Supreme Court by way of the SLP (Civil) No.584 of 2016. The Supreme Court disposed of the appeal by observing that the National Green Tribunal may reconsider the matter on merits in the light of the Page 10 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT notification dated 25th December, 2015 issued by the respondent No.2-GPCB.
6.10 On 4th February, 2017, the respondent No.4- Babubhai Ramubhai Saini filed the Original Application (OA) No.20 of 2017 with a prayer to direct the GPCB and CPCB to stop the usage of all coal based gasifiers in the Ceramic Industries and to ensure that the GPCB and CPCB take necessary steps in that regard.
6.11 On 26th April, 2017, Babubhai Ramubhai Saini, the respondent No.4 herein, preferred OA No.42 of 2017, seeking appropriate directions from the National Green Tribunal. In the said proceedings, the applicant raised issues with regard to coal-tar residue generated from the coal gasifier in the Ceramic Industries used as a fuel in the Silicate, Frit and Cement Industries.
6.12 Ultimately, the National Green Tribunal passed a final order dated 6th March, 2019, which reads thus;
"According to the applicants, the claim of the manufacturers that now there is improvement in coal gasifiers with zero percentage pollution discharge may not be considered by this Tribunal in view of Expert Committee report in February 2018. Coal gasification is a dangerous process where wastes are generated which are highly carcinogenic. Daily coal tar generation in Morbi has been found by the Committee to be 8 lakh kg per day. Its effect has been noted by the International Agency for Research on Cancer (IARC) which is part of World Health Organization (WHO) as causing cancer of lungs. Accordingly, the applicant seeks direction to shut down and dismantle all gasifiers in furtherance of above report submitted in February 2018 in respect of ceramic industries in Morbi and Wankaner area of Gujarat with a view to prevent air, water and land pollution on 'Precautionary' and 'Sustainable Development' principles.Page 11 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT
12. Learned Counsel for the GPCB submitted that while it will be difficult for him to state that the coal gasifiers are not causing pollution as found by the Committee, the improved technology may be given further trial and to the extent any particular activity is found to be compliant with the norms, such activity may be allowed to be continued.
13. He also mentioned that another Writ Petition is pending before the High Court. It was submitted that GPCB has prepared a policy for defaulter ceramic units. While type A gasifiers have been closed, notice has been issued to 860 ceramic units in April 2018 for closure. Public notice has been issued in three vernacular newspapers for creating awareness. Type G gasifiers were given trial run permission. 67 units were closed and show cause notice given to 262 ceramic units. Trial permission was given for carrying out feasibility study of advanced technology. SOP was issued for prevention of air pollution on 05.06.2018. CCA was granted on 09.02.2018 on the request of Ceramic Association. The Morbi District Administration issued notification against movement of illegal tankers from 10 pm to 6 am. Ambient air quality was monitored and found to be as follows:
"Ambient Air Quality Status:
As per National Green Tribunal committee report average ambient air quality (7 Stations) monitored PM10 = 552.66 μg/m3, PM2.5 = 289.61 μg / m3, SO2 = 152.81 μg /m3. Compared to that, Average ambient air quality monitored (4 Stations) in last 3 months (Aug- 18 to Nov-
18) is PM10 = 199.1 μg /m3, PM2.5 = 60.6 μg /m3. Though not meeting with standards, This shows improvement in air quality of Morbi-Wankner Region."
14. Learned Counsel for the GPCB stated that the above ambient air quality status is based on situation prevailing from August 2018 to November, 2018.
15. One can certainly say that the above report shows alarming situation of ambient air quality.
16. Learned Counsel for some of the industries submitted Page 12 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT that there is a vast difference in the report submitted in February, 2018 on account of results of SGS Laboratory which show the level of pollution to be very high. There are 800 industries in Morbi and Wankaner area and transportation of 5,000 trucks per day which is contributing to the pollution of the air where are other industries such as clay spray driers, paper mills, silicate industries, stone crushers, roofing tiles, coal screener, laminate units, frit industries, refractories, etc. working for 20 hours per day. The said industries are also contributing to the water and air pollution and not ceramic industries alone. The Consolidated Consent Authorization has been given by the GPCB and short term and medium term measures can be taken for upgradation of the gasifiers.
17. We have not been able to find any warrant for Consolidated Consent Authorization in view of the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. Consent to Operate and Consent to Establish have to be given to every individual unit based on the study of its operations and impact on water and air. Thus, it appears that the Consolidated Consent Authorization is per se beyond what is permitted under the law. The said industries are, thus, operating in violation of the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.
18. Chapter 6 of the report of February 2018 presents the conclusion and the recommendations for the study, which is as follows:
"Chapter 6 Conclusions and Recommendations 6.0 Introduction This chapter presents the conclusions and recommendations based on the study at Morbi- Wankaner industrial area, environmental monitoring, inspection of ceramic industries, gasifiers and discussion with different stakeholders.
Page 13 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT6.1 Examination/Evaluation of Gasifier Technologies Type 'A': There are 13 type 'A' gasifiers were found during the inspection by the committee. These gasifiers were not in operation. Some of them were not in operation since long, however, some gasifiers were found with wastewater and tar which shows these gasifiers were operational in immediate past. Since, this type of gasifiers are not permitted, GPCB must ensure that all type 'A' gasifier should be dismantled.
Type 'B': Earlier expert committee (2014) suggested that type 'B' gasifier can be permitted to operate if the wastewater generated during gas cleaning/ condensation is recycled back to the gasifier shell by the use of evaporator. Accordingly, GPCB granted amended CTE/ CCA for the operation of type 'B' gasifiers. However, this committee finds that type 'B' gasifier cannot be operated by recycling condensate wastewater in the gasifier shell as the condensate wastewater generated is in excess of the required moisture for shift reaction. This is the reason, almost all type 'B' gasifier operators illegally discharge wastewater either through open drain, in low lying areas, abandoned mines etc. and /or steam release to atmosphere. During the inspection of industries, it was found that there are 71 gasifiers that operate evaporator and feed wastewater steam inside the gasifier shell. This can only be a temporary phenomenon as complete wastewater cannot be fed on continuous basis. These gasifiers can discharge condensate wastewater outside the premises illegally and it is not possible for GPCB to keep track of the wastewater generated and its recycle. An argument put forth is that the evaporator operates only for a few hour and feed the complete steam inside the gasifier shell. Such argument does not stand as the condensate wastewater generation is a continuous process and even if intermediate tanks of very large capacity is built, all will get filled at some instance during the operation of gasifier. Therefore, this committee recommends that all gasifier of type 'B' must be shut down immediately, dismantled safely.
Type 'C': Condensate wastewater with indirect cooling and Tar (Wet ESP) is stated to be recycled into gasifier shell by heating it at high temperature in the Tar reformer. The recycling operation is carried out on the premises that the moisture fed inside the gasifier shell Page 14 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT will be the stoichiometric requirement of amount of coal tar recycled. The coal tar generated itself is an emulsion of water and coal tar due to its collection mechanism (Wet ESP). The moisture content of coal tar should be sufficient to take part in the shift reaction and any additional moisture may not be needed. The condensate wastewater will be recycled again in the subsequent condensation and this in turn will accumulate the wastewater in the gasifier system as happens in the case of type 'B' gasifier. Thus, after a few days of operation, type 'C' gasifier will generate and accumulate condensate wastewater, which does not have economical treatment option, and therefore its management will always be major issue. Generation of condensate wastewater and coal tar is not recommended.
Type 'D': This is hot gasifier and does not allow condensation of moisture up to kiln. The entire moisture is fed in the kiln. Since this is a hot gasifier, coal tar does not get condensed and is fed directly to the kiln. This was evident from the colour of the flame, which was yellow/orange. A clean producer gas gives blue flame. Raw gas cleaning through road metal/aggregates (kapachi) filter generates large quantity of exposed/used aggregate filter media. Huge quantum of Filter media coated with tar and coal dust whose disposal may be another environmental issue. High molecular weight (class 5) coal tar gets condensed just before the kiln burner and gets solidified as soon as its moisture is evaporated. Solid coal tar cannot be fed from the bottom of the shell. If solid coal tar is fed from the top, it gets vaporized and again reappear in the raw synthetic gas thereby accumulating coal tar in each successive cycles. Type D' gasifier will have the problem of solid coal tar and disposal of large quantity of used contaminated aggregates. Generation of coal tar and contaminated filter media (aggregate) from gasifier is not recommended.
Type 'E': is based on down draft and agro based fuel where no cooling and cleaning of gas is required and therefore no wastewater and tar generation. Bio-mass based fuel does not generate heavy hydrocarbon, and therefore Tar, which is heavy hydrocarbon is not formed. Steam is not added in the gasifier, instead moisture of biomass is considered sufficient for H2 formation. Due to Page 15 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT very low amount of moisture feed, wastewater is not generated. Even if condensate wastewater and coal tar is generated from gasifiers in small amount in Morbi- Wankaner Industrial cluster, its cumulative impact on the ecosystem is very severe as there are very large number of ceramic industries exists. Management and handling of wastewater and hazardous waste (coal tar) from all industries together exceeds the assimilative capacity of the region and therefore any gasifier generating condensate wastewater and coal tar should not be permitted. Instead of further experimenting with older moving coal bed gasifiers (currently existing in Morbi), advanced fluidized bad gasifier should be designed along with all pollution control device for meeting the clean energy demands in Morbi region.
Till a cleaner technology for synthetic gas generation is demonstrated, ceramic industries having gasifiers may opt for PNG. Natural gas grid /pipe connections are already established in area and most of industries are having connections.
6.2 Environmental Status of Morbi - Wankaner Area The general ambience of Morbi -- Wakaner industrial cluster is smell of half burnt coal, VOC, SO2 and poor visibility due to dust and smog. The committee visited different areas along the roads of Morbi - Wankaner and collected sample of surface and ground water. It was observed that most of the storm water drains in the industrial area are carrying condensate wastewater (brown colour) and vitrified tile polishing wastewater (white colour). All these storm water drains join some natural drains and finally meets Kalindri and Bela river in the region. Many low lying areas along the road and nearby abandoned mines contain condensate wastewater, which is disposed illegally. Further travel to inner part of the industrial area showed the very poor industrial solid waste management practice. Wherever open space is found along the river, solid waste, broken tiles, ceramics, polishing sludge etc. are disposed haphazardly. Overall visual experience of the industrial area is that Morbi industrial area is highly polluted and is an economic zone only to create wealth from mother earth (clay, coal) but belongs to none.
Though the visible water colour suggest that it is polluted, a scientific approach require its analysis in Page 16 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT laboratory, and therefore, to quantify the level of pollution samples of air and water were collected from field and analysed in the laboratory. Water analysis result suggest that the discharged wastewater is highly polluted. The ambient air samples collected by the committee and analysed in CPCB (RD, Vadodara) laboratory shows very high & alarming level of PM10, and PM2.5 and SO2 pollution indicating uncontrolled emission from spray drier, ceramic kiln without any flue gas treatment. The concentration of PM10, and PM25and SO2 are exceeding many time more than the National Ambient Air Quality Standards (NAAQS) except two locations for SO2. The concentrations of pollutants are also more due to high industrial density having almost same nature of industrial activities in the Morbi area. This warrants immediate preparation of air action plan and its implementation including proper /adequate pollution control technology for spray dryers, tiles polishing units, restriction & control on haphazard disposal of solid waste (broken tiles, polishing dust, coal ash), improvement in road conditions etc. The pollution control technology primarily demands use of clean technology for coal gasifier, which will eliminate condensate wastewater and coal tar generation followed by scrubbing of dust, SO2 from spray drier and installation of flue gas treatment (scrubber) for removal of Sulphur from burning of synthetic gas in ceramic kiln. The groundwater analysis results shows contamination (high COD) at some bore wells which needs to be further investigated through state level ground water board /authority. Recently, it is informed that brownish color ground water is observed in bore well.
As per Medium term measures given by Expert Committee (Govt. of Gujarat) 2014, a study of spray dryer was to be conducted, from pollution view point, which shall incorporate survey related to the existing air pollution control devices, ascertaining the adequacy of installed system and suggesting addition /alterations to fulfill the prescribed norms within six months by environment departments of Engineering /Technical Institutes and respective Industrial Associations should bear the cost of the study. However, no action is visible at site and the status quo of pollution discharge is maintained.
Page 17 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT6.3 Industrial visits and compliance aspects Ease of handling waste leads to its categorization based on physical state i.e. solid, liquid and gaseous. At Morbi, ceramic industries are generating and discharging waste in all the three states. Solid waste are visible and can be managed if space for its disposal is provided and the existing solid waste management rules are followed. Coal tar generated in gasifier is illegally used in combustion activity thereby causing air pollution as in the entire Morbi industrial area. While using coal tar in combustion, air pollution control device are not installed, thereby releasing pollutant in the atmosphere. There are several emission points like, spray drier, kiln emission, evaporator emission etc. Therefore, the issue of air pollution in Morbi is very serious and alarming. Liquid waste i.e. mostly condensate wastewater from gasifier and polishing waste from vitrified tiles are not disposed after treatment. In fact the condensate wastewater from gasifier cannot be treated economically and therefore the technology of gasifier needs to be upgraded so as not to generate wastewater and tar. Previous committee (expert committee -2014) has suggested some modifications in the existing coal gasifiers including recycling the condensate wastewater through evaporator to achieve zero liquid discharge. Accordingly, GPCB provided amended CCA for such gasifiers, which is presently termed as Type E' gasifier. Another committee (NGT 2015), recommended for excess wastewater (after evaporation) to be incinerated which is part of notification published by GPCB in August 2017, but till date the industries are not sending excess wastewater to any common incineration facility for disposal of wastewater and common incineration facility not developed. However, it is found that such measures do not solve the wastewater problem and therefore this committee recommends to overrule any such provision of wastewater recycling in the moving bed coal gasifier (up- draft existing gasifiers) and incineration of excess wastewater.
In total, 432 industries visited, 411 industries were found to have coal gasifier and the remaining 21 were using PNG for operating the ceramic industry. There are 384 Type 'B' gasifiers visited, 69 gasifiers are without CCA & therefore illegal and 315 with valid CCA. Out of 384 type Page 18 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT 'B' gasifier, 130 gasifiers were not operational and 254 gasifiers were operational where 2 does not have evaporator installed, 96 were not operating evaporator, and 85 were releasing steam of evaporator in to the atmosphere (more than 50 % operational evaporator).
There are 73 type 'B' gasifiers that have provision/practicing direct scrubbing of raw synthetic gas by addition of water pipe line/recirculation line. There are 133 gasifiers that have contaminated cooling water and 32 gasifiers were found to be discharging wastewater inside/outside the premises. All these actions make them non-compliant.
71 industries have exhibited recycling of condensate wastewater in the gasifier shell during the visit of committee members, however, it is not possible to continue such practice for long time due to reasons as elaborated in Chap-2. Therefore, the compliance condition stipulated by the GPCB based on the earlier committee's recommendations is not maintainable and should be cancelled. Regarding management of coal tar generated from coal gasifier, there is large gap between coal tar generation and its authorized use as fuel. A very large quantity of coal tar is illegally used as fuel. By & large, storage, handling & transportation of coal tar is not as per HWM Rules.
There are other difficulties /issues by the industries in handling present coal gasifiers like small scale operations, local suppliers /manufactures of gasifiers without proper Material of Construction (MoCs), without proper operational control, leakages of tar /wastewater, fugitive emissions /smell from open wastewater /tar tanks in the area, industries casual approach for operation of gasifiers, large number of industries /gasifiers in limited area concentrating pollution /safety risks, enforcement difficulties i.e. day to day check on illegal operations not possible with limited manpower and local interferences. Further, other non-compliances observed during industry visits which are elaborated in (chapter-5). All type 'B' coal gasifiers should be shut down immediately and dismantled, irrespective of whether it is complying with the consent condition or not. The plant premises should be cleared of wastewater and tar, else it should be considered as violation.
Page 19 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTThe summary of industrial visits with observations is submitted to GPCB. Action should be initiated by GPCB on industries that are operating illegally in the Industrial area of Morbi as per orders (dated 24.07.2017 & 14.11.207) of Hon'ble NGT, Pune. Majority of gasifiers including almost all type-B gasifier with valid CCA visited by the teams and made observations/conclusions and further visits may not influence the observations/conclusion in any way as the issues related to type-B gasifiers are similar in nature. GPCB should further identify all such gasifiers (with CCA & without CCA) and shut them down. Initiation by the gasifier operators on incineration of wastewater or its bio- chemical treatment should not be considered as a reason for permitting them to operate it further.
Most of the medium term measures (to be taken up by Ceramic Industries Association) mentioned in the recommendations of the expert committee of Govt. of Gujarat (2014) such as Spray dryer study (adequacy for spray dryers, suggestions on addition/alterations to meet norms etc.), implementation of suggested additions/alteration to APCD by member industries within three months, solid waste management, improvement of roads to improve the ambient air quality etc. by industry association(s) are yet to be fulfilled. As per the information provided by the GPCB, five industrial accidents reported in last two years related to gasifier and therefore safety aspects needs to be seriously considered by concerned department.
Till clean technology gasifier demonstrated, available PNG may be used to avoid any environmental issues/damage which are being created due to mismanagement, illegal disposal of tar and wastewater generated from existing gasifiers.
New advance fluidized bed clean technology gasifiers that does not generate condensate wastewater and tar should be encouraged. Such gasifier should be approved for its material of fabrication, all temperature and pressure measuring gadgets, automated monitoring and control system by Directorate of Industrial Safety & Health (DISH) for authorized installation in Morbi."
Page 20 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT19. Thus, as per the above expert study, type A, B, C, D and E coal gasifiers are not viable. If the ceramic industries are to be permitted, their option is to adopt Pipe Natural Gas (PNG). The final conclusion is as follows:
"Even if condensate wastewater and coal tar is generated from gasifiers in small amount in Morbi -- Wankaner Industrial cluster, its cumulative impact on the ecosystem is very severe as there are very large number of ceramic industries exists. Management and handling of wastewater and hazardous waste (coal tar) from all industries together exceeds the assimilative capacity of the region and therefore any gasifier generating condensate wastewater and coal tar should not be permitted. Instead of further experimenting with older moving coal bed gasifiers (currently existing in Morbi), advanced fluidized bad gasifier should be designed along with all pollution control device for meeting the clean energy demands in Morbi region.
Till a cleaner technology for synthetic gas generation is demonstrated, ceramic industries having gasifiers may opt for PNG. Natural gas grid /pipe connections are already established in area and most of industries are having connections."
20. The CPCB has filed its synopsis on 05.01.2019 with reference to the said report, inter-alia, stating as follows: "The Committee (NGT Committee 2017) recommended for closure/dismantling of type-A & B type of gasifiers. Type-C, Type-D and Type-E gasifiers were given trial run permission by GPCB during the visits of the committee. As there is generation of waste water and coal tar in case of Type-C and issues of tar recycling, generation & disposal of huge amount of contaminated/ exhausted filter (aggregates) media in case of Type-D gasifier, these gasifiers are not recommended by Committee. Regarding, Type-E gasifier though, its pollution potential is negligible, its output performance is inadequate to generate required heat for long kiln.
Even if condensate wastewater and coal tar is generated from gasifiers in small amount in Morbi-Wankaner Industrial cluster, its cumulative impact on the ecosystem is very severe as there are very large number of ceramic industries exists. Management and handling of Page 21 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT wastewater and hazardous waste (coal tar) from all industries together exceeds the capacity of the region as evident from monitoring results of water bodies & ambient air and therefore any gasifier generating condensate wastewater and coal tar should not be permitted. Instead of further experimenting with older moving coal bed gasifiers (currently existing in Morbi), advanced fluidized bed gasifier should be designed along with all pollution control devices for meeting the clean energy demands in Morbi region.
Till a cleaner technology for synthetic gas generation is demonstrated, ceramic industries having gasifier may opt for PNG. Natural gas grid/pipe connections are already established in the area and most of the industries are having connections.
The ambient air quality of the Morbi-Wankaner ceramic industrial area was with high and alarming levels of PM1o, PM2.5, 502. The concentrations of these pollutants are exceeding many times more than the National Ambient Air Quality Standards (NAAQS). Particulate Matters (PM) emission primarily from spray dryers, use of coal & tar (illegal) in Hot air generator, and also due to handling of raw materials such as coal, different types of clay, poor road condition and vehicular movement. SO2 from spray drier (coal fired Hot air generators), and use of synthetic gas in ceramic kiln, evaporators. The groundwater analysis results show contamination (high COD) at some bore wells which needs to be further investigated through state level ground water board /authority. Recently, it is informed that brownish color ground water is observed in bore well.
As per Medium term measures given by Expert Committee (Govt. of Gujarat) 2014, a study of spray dryer was to be conducted, from pollution view point, which shall incorporate survey related to the existing air pollution control devices, ascertaining the adequacy of installed system and suggesting addition /alterations to fulfil the prescribed norms within six months by environment departments of Engineering /Technical Institutes and respective Industrial Associations should bear the cost of the study. However, no action is visible at site and the status quo of pollution discharge is maintained.
Page 22 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTThere is urgent need to provide adequate air pollution control devices to all the sources of air emission including spray driers, coal/clay handling systems with proper roads and solid waste management.
A meeting was convened by CPCB on 31.05.2018 to discuss the pollution matter relating to ceramic industries using coal gasifiers in Morbi-Wakaner areas of Gujarat among CPCB & GPCB. In the meeting it was discussed & recorded that as the Senior Scientists of GPCB and CPCB were part of the Committee (NGT Committee 2017), there is no question of disagreeing with any of the observations/recommendations made by the said Committee. It implies that GPCB 'has to implement the recommendation of the said Committee and considering the gravity of problem in the Morbi-Wakaner. It was informed by GPCB that consent to the Units is issued with condition to achieve the ZLD as per the recommendations of Committee earlier constituted by the Gujarat Govt. Strict action against the Units with Type A gasifier has been initiated leading to closure. Action is being taken in respect of Type B gasifier that do not meet the ZLD conditions as per the NGT order dated 14.11.2017. GPCB further informed that they have carried out fresh survey of industrial Units in compliance of an order passed by the Hon'ble High Court of Gujarat and submitted the report to the Court.
Considering that (a) the NGT Committee 2017 has recommended to use for PNG for such time till a cleaner technology for synthetic gas generation is demonstrated;
(b) the natural gas grid /pipe connections are already established in the area; and (c) most of industries are having connections, GPCB was requested to take steps to implement the recommendation of using PNG."
21. In view of the above, it is clear that coal gasifiers are no longer viable. Inspection by GPCB shows high level of air pollution which is dangerous for health and environment. 'Sustainable Development' and 'Precautionary' principles are to be upheld.
22. Purpose of economic development in any region is to provide opportunities for improved living by removing poverty and unemployment. While industrial Page 23 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT development invariably creates more jobs in any region, such development has to be sustainable and compliant with the norms of environment. In absence of this awakening or tendency for monitoring, industrialization has led to environmental degradation on account of industrial pollution. It is imperative to ensure that steps are taken to check such pollution to uphold statutory norms. Adequate and effective pollution control methods are necessary.
23. We may also note that as per data compiled by the CPCB Morbi- Wankaner is one of the polluted industrial clusters. Vide order dated 13.12.2018 in Original Application No. 1038/2018, this Tribunal considered the subject matter of critically polluted industrial clusters and directed preparation of action plans by the respective States for remedying the situation.
24. Even though, this area is polluted but not 'critically polluted', the same may not be covered by the said order, but the fact remains that there is high amount of pollution as shown by the latest report of the GPCB quoted above in para no. 13. PM10 is equal to 552.66 and PM2.5 is equal to 289.61. Stringent measures are, thus, required in the interest of protection of environment and public health.
25. Accordingly, we allow the applications and direct the GPCB to close all coal gasifiers industries and units operating with the help of coal gasifiers without prejudice to such units switching over to non-coal gasifiers or PNG or technology consistent with the above report. The GPCB must initiate immediate steps for prosecution of the industries which have operated in violation of law and recover compensation for causing damage to the environment and public health. This amount may be assessed by a Committee with representatives of CPCB, GPCB and NEERI. The CPCB will be the nodal agency for coordination and compliance. The Committee may suggest restoration plan.
26. The Committee may give its report within one month by e-mail at ngt.filing@gmail.com.
27. The Committee may take into account the cost of reversing the damage caused and also the amount to be Page 24 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT recovered which will operate as deterrent and render any polluting activity non-profitable.
28. To oversee the execution of this order by the GPCB, we appoint an Oversight Committee headed by Justice B.C. Patel, former Chief Justice of Delhi High Court and former Judge of Gujarat High Court who is already heading an Oversight Committee constituted by this Tribunal vide order dated 16.01.2019 in O.A. 606/2018. He will also be assisted by a representative of CPCB. The GPCB will provide all logistics to Justice Patel. Any person concerned with execution of this order will be at liberty to represent to the said Oversight Committee.
29. Learned Counsel for the GPCB states that expenses incurred by the NEERI will be paid as per direction of this Tribunal within one month from today.
30. Industries have filed applications which have no merit and are not maintainable under Sections 14 and 15 of the National Green Tribunal Act, 2010. Same is the position with regard to the applications of the manufacturers. "
7. Submissions on behalf of the writ applicants:-
7.1 Mr. Mihir Joshi, the learned senior counsel assisted by Mr. Paresh M. Dave, the learned counsel appearing for the writ applicants submitted that the writ applicant-Company is manufacturing coal based gasifier, described as the "Modified Type D Gasifier". According to Mr. Joshi, the relief prayed for in the writ application is quite innocuous . The only relief which is prayed for is to direct the Gujarat Pollution Control Board to evaluate such modified Type D gasifier invented by the writ applicant-Company so as to ascertain or verify whether the requirement of "zero discharge" is being fulfilled or not and whether the modified 'Type D' gasifier technology developed by the writ applicant is in the nature of "technology for synthetic gas generation" consistent with the report of the Page 25 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT Committee. According to Mr. Joshi, as the request of the writ applicant for such evaluation has not been acceded by the GPCB and the representation dated 30th July, 2018 (Annexure- O to the writ application) has also not been answered, the writ applicants were left with no other option but to come before this Court with the present petition.
7.2 The submissions of Mr. Joshi can be broadly classified into following categories;
(I) Whether a writ of mandamus is maintainable?
(II) Whether the reliefs prayed for in the writ application were looked into by the National Green Tribunal and whether the writ applicants are estopped, in any manner, from claiming the same relief if at all such reliefs were looked into by the National Green Tribunal and not granted?.
(III) Whether the only option left with the writ applicants is to prefer an appeal, challenging the decision of the National Green Tribunal?.
(IV) Whether the prayer for evaluation of the new modified technology is, in any manner, in conflict with the order of the National Green Tribunal and whether such prayer could be allowed without challenging the final order of the National Green Tribunal?.
(V) Whether the stance of the GPCB and the other respondents that the final order of the National Green Tribunal bars use of any kind of coal gasifier is correct and whether the writ applicants have no scope to improve, by research and development, a coal gasifier having zero discharge?.
Page 26 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT(VI) Whether the stance of the respondents that the "Modified Type D Technology" is in substance "Type D" gasifier" only and as tar is generated in the modified technology also, it is not a technology consistent with the recommendations of the Committee in its report of February, 2018?.
7.3 Mr. Joshi submitted that his client has a legal right to get his technology inspected or tested through the GPCB, and the GPCB owes a legal duty to inspect such equipment so that the manufacturers of the Ceramic tiles and other products (i.e. the writ applicants of the Special Civil Application No.6757 of 2019 and the Special Civil Application No.6774 of 2019) can use such equipment, namely, the modified Type D gasifier and can obtain consent from the GPCB under the Air (Prevention and Control of Pollution) Act and the Water (Prevention and Control of Pollution) Act. It is submitted that by virtue of Section 17(1)(e) of the Air Act, one of the functions of the State Board (i.e., the GPCB) is to inspect "any control equipment" for the purpose of issuing directions as the Board may consider it fit to take steps for prevention, control or abatement of air pollution. According to the learned senior counsel, it is one of the functions of the GPCB to inspect the modified Type D gasifier so as to ascertain whether it controls air pollution or not.
7.4 It is further submitted that the manufacturers of the Ceramic products at Morbi require consent under Section 25 of the Water Act and also under Section 21 of the Air Act for the purpose of the modified 'Type D gasifier'. It is submitted that the GPCB would grant such consent only upon evaluating such equipment and finding out whether the same is in accordance Page 27 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT with the pollution norms. In such circumstances, according to Mr. Joshi, a writ of mandamus is the only remedy to ensure that the GPCB performs its function and duty in accordance with law.
7.5 It is further submitted that the writ applicants have developed or rather invented the "modified Type D gasifier" technology as the writ applicants are engaged in the "trade and business" of manufacturing such equipment. The writ applicants have a fundamental right under Article 19(1)(g) of the Constitution to carry on such trade or business. It is submitted that under the provisions of the Air Act as well as the Water Act, the GPCB is obliged in law to guide or advise the State Government on any matter relating to the prevention, control, or abatement of air or water pollution. In such circumstances, the GPCB should be asked to look into the "modified Type D" gasifier technology.
7.6 Mr. Joshi further submitted that the final order passed by the National Green Tribunal on the basis of the report of the Committee is dated 6th March, 2019. The reliefs prayed for in this petition are with regard to the research and development undertaken by the writ applicants around July, 2018, i.e., after the report of the Committee of February, 2018. Thus, there is a substantial development after the report of the Committee of February, 2018. Mr. Joshi submitted that the applications which were preferred by the writ applicants herein as also by the manufacturers of the Ceramic goods before the National Green Tribunal came to be rejected as not maintainable under Sections 14 and 15 respectively of the National Green Tribunal Act. In such circumstances also, it could be said that the only Page 28 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT remedy now available to the writ applicants is to prefer the present petition and pray for a writ of mandamus. Mr. Joshi submitted that the modified Type D gasifier is an improved and advanced technology and it is consistent with the report of the Committee of February, 2018.
7.7 Mr. Joshi further submitted that the use of coal gasifier is not absolutely barred or prohibited by virtue of the final order of the National Green Tribunal because no such bar or prohibition, for all times to come, was recommended by the Committee in its report of February, 2018. Mr. Joshi further pointed out that the stance of the GPCB before this Court in the present litigation is quite contrary to the stance taken by it before the National Green Tribunal. It is pointed out that in view of the advance technology in the Type D gasifier, the GPCB issued amendments to the CTE (Consent to Establishment) in favour of large number of manufacturers of Ceramic goods including many of the writ applicants of the Special Civil Application Nos.6757 of 2019 and 6774 of 2019 respectively, permitting them to use the Type D gasifiers. It is argued that during the spot visit of such units, no pollution whatsoever was noticed by the officers of the GPCB.
7.8 Mr. Joshi submitted that the modified Type D gasifier is not in substance. the "Type D gasifier". The technology is altogether different. Although tar is generated even in the modified Type D technology, yet the same technology is consistent with the recommendations of the Committee.
7.9 It is further submitted that if the evaluation of the modified Type-D technology is undertaken by the GPCB, then the directions for closure issued by the NGT would not be Page 29 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT violated. The NGT has directed the GPCB to close all the coal gasifier industries and units without prejudice to three eventualities; switching over to the technology consistent with the report of February, 2018 being one of them. Since the modified Type-D gasifier technology is consistent with the above report which has laid emphasis on zero discharge by gasifier technology for synthetic gas generation, the closure orders deserve to be withdrawn, and the Units operating with the new technology of modified Type-D gasifiers, which is consistent with the above report, deserve to be allowed trial run for evaluating and verifying whether the new technology is pollution compliant and zero discharge, or not.
7.10 It is also submitted that the PNG and other natural gases are not only scarce in availability but also very expensive. Therefore, the Committee has recommended use of coal as a replacement to PNG, subject of course to zero discharge and compliance with the pollution norms. At para 2.1 of the report (running page 444 and also at running page 445, 446 and 447 of the report), the Committee has referred to PNG and CNG being scarce resource and synthetic gas using clean technology being much cheaper and economically viable, while also referring to the desire expressed by the Hon'ble Prime Minister for reducing the energy import dependency. Thus, the use of coal for the synthetic gas generation is recommended and desired by the Committee also, and therefore the synthetic gas generation by using coal in the modified Type-D gasifier, which is a clean technology and also much cheaper and economically viable, should not only be allowed and recommended but also encouraged.
Page 30 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT7.11 It is submitted that for this, the evaluation of the "modified Type-D gasifier" technology by the GPCB is, however, essential.
7.12 It is submitted that the stance of the GPCB that none of the units have been closed down in Morbl-Wankaner cluster and all the units (including Petitioners in the Special Civil Application Nos.6757 and 6774 of 2019) are presently operating is ex-facie incorrect, and the statement that all the units are presently functionals is false. It is pointed out that in para 10.1 of the affidavit of the GPCB itself (running page 342), it is stated on oath that there are 566 units having gasifier and no such unit was found in operation. and that 295 industries were in operation using the PNG as fuel. It is stated in the same para that around 925 ceramic units have closed down the coal gasifier since 11/12.3.2019.
7.13 It is further submitted that the Petitioners of the Special Civil Application No.6757 of 2019 and 6774 of 2019 are not operating their units as they have been ordered to be closed down as they were using the modified "Type-D gasifiers"; and the overall impact of closure of units in the area is unemployment of about 63,000 workers, loss of production worth Rs.5,600 crores (approx.) per annum, loss of exports and consequent foreign exchange earning of Rs.2,240 crores (approx.) annually, and investment of about Rs.3,150 crores lying idle.
7.14 It is also submitted that the prayer for evaluation of the modified Type D gasifier technology is being opposed by all the respondents only because the respondents, are large scale manufacturers of ceramic industries and the association of Page 31 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT such large scale manufacturers, intend to eliminate the small and medium scale manufacturers of Morbi and Wankaner area, because such small and medium scale manufacturers having less production cost could sell in domestic market and also by way of export their goods at a cheaper price. The large scale manufacturers of ceramic goods intend to thwart the healthy competition posed by the manufacturers like the Petitioners of the Special Civil Applications Nos.6757 and 6774 of 2019, and also the research and development oriented company like M/s. Radhe Renewable Energy Development Ltd. who has been continuously investing substantial money and efforts in research and development of technology under the recognition and authority of the Ministry of Science and Technology, Government of India; and also by associating with the world renowned entities located in countries like Germany, Australia, Russia, Sweden, USA etc. for technology development. Unfortunately, the State Board, which took a pragmatic view before the NGT for such research and development oriented industry and also for ceramic goods manufacturers using cleaner technology has now taken an unreasonable and arbitrary stance resulting in elimination of a huge class of manufacturers in one entire area in the State of Gujarat, though such stance for not evaluating the Petitioner's equipment for controlling pollution is contrary to the statutory provisions of Sections 17 and 21 of the Air Act and Sections 17 and 25 of the Water Act.
7.15 It is submitted that the Supreme Court has held in the case of M.C. Mehta V/s. UOI and others, (1999) 7 SCC 522 that setting up of plants should be allowed subject to the checks for ruling out the possibility of any security risk. It is Page 32 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT also held in another case of M.C. Mehta v/s. UOI (1997) 2 SCC 353 at para 33 of the judgment that the onus of proof is on the industry to show that its operation with the aid of coke/coal was environmentally benign. The Petitioners have proved this fact by virtue of reports of three independent agencies, namely, the LD College of Engineering, GERMI and PDPU: and also by virtue of the opinion and report of an internationally renowned expert, namely, Prof. P.D. Grover. This Court has observed at para 17 of the judgment in the case of Digvijaysinh Parbatsinh Rana v/s. State of Gujarat, Special Civil Application No.6151 of 2018, decided on 12th June, 2018 that the GPCB may explore the possibility of permitting the ceramic industry to use new technology and the GPCB should consider the request to provide the trial run of the new technology after following the due procedure as required and explore the possibility/availability of such new technology which may help to some extent in stopping further damage to the environment which was being caused at the relevant point of time by using Type-B gasifiers.
7.16. It is further submitted that the development of new technology should always to be encouraged, and the State Board is expected to advise the State Government in such matters. The evaluation of any new technology developed by an industry is therefore not only the statutory function but also a duty and an obligation upon the State Board for allowing or rejecting use of such technology. When an industry is prima facie able to show that the research and development undertaken by it has resulted in the development of a new and better technology, which is economically viable also, then it is the bounden duty of the State Board to evaluate such Page 33 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT technology.
7.17 In such circumstances, referred to above, Mr. Joshi prays that there being merit in the writ application, the same be allowed and appropriate reliefs be granted.
8. Submissions on behalf of the GPCB:
8.1 Ms. Manisha Luvkumar Shah, the learned senior counsel appearing with Mr. Rutvij Oza, for the GPCB has vehemently opposed this writ application.
8.2 Ms. Shah has raised a preliminary contention as regards the maintainability of the present writ application at the behest of the writ applicants who is a manufacturer of a "Modified Type D Gasifier". According to Ms. Shah, the writ applicant has an efficacious alternative remedy of preferring an appeal before the Supreme Court under Section 22 of the National Green Tribunal Act. Ms. Shah submitted that the National Green Tribunal has passed a detailed order dated 6th March, 2019, after considering the technical report of February, 2018, prepared by the CPCB, NEERI and GPCB and also the applications filed by the writ applicants and other applicants, and upon due consideration of the same, has come to the conclusion that the coal gasifiers employing moving bed technology are no longer viable. The National Green Tribunal has thereby directed the GPCB to close down all coal gasifier industries and units operating with the help of coal gasifier without prejudice to such units, switching over to non-coal gasifiers or PNG or other technology & irrespective of whether it is type A, B, C or D.
8.3 Ms. Shah further submitted that the writ applicant has Page 34 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT prayed for consideration of its representation dated 13th July, 2018 for the long term utilization of the "Modified 'Type-D" gasifiers technology developed by the petitioner. It is submitted that the date of the representation would clearly demonstrate that the same was made pending the adjudication before the National Green Tribunal. The National Green Tribunal having considered the report of the constituted committee comprising of the members from the NEERI, CPCB and GPCB along with the submissions, synopsis and applications preferred by the writ applicant and the similarly situated other stake holders was pleased to issue directions for closure of all the coal gasifier industries and units operating with the help of coal gasifiers employing type 'A', 'B', 'C' and 'D' gasifiers up draft and moving bed technology without prejudice to such units switching over to the "non-coal gasifiers or PNG or technology consistent with the above report.
8.4 Ms. Shah further pointed out that the writ applicant had approached the National Green Tribunal on an identical issue by filing I.A. 30 of 2019 filed on 25th February, 2019, noticeably the synopsis dated 25th January, 2019 and 28th January, 2019 were also filed by the petitioner before the National Green Tribunal. An affidavit dated 13th August, 2018 had also been filed by the Petitioner before the National Green Tribunal. Without challenging the orders passed by the National Green Tribunal, the writ applicants are seeking evaluation of the technology which has been in clear terms restricted by the National Green Tribunal after having examined the substantial materials, report, studies and expert opinions. The National Green Tribunal has mandated the stoppage of Type-D technology, the proposed modified "Type-D technology is no Page 35 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT paradigm shift in the existing moving bed technology.
1. The change in the technology as proposed by the writ applicant is no change in the moving bed technology only.
2. It is not "fluidized bed" technology or "entrained bed" technology as suggested in the report of expert committee.
3. Tar & Waste water is generated (as per IIT Delhi report submitted by applicant) from the proposed change in the modified Type-D gasifier hence cannot be accepted.
4. The recycling of tar and coal as fuel does not eliminate the highly carcinogenic pollution emitted in the air ambient discharge.
8.5 Ms. Shah submitted that the National Green Tribunal examined the subject in details, and after being thoroughly satisfied and convinced, has issued directions to the GPCB, CPCB and the oversight committee.
8.6 Ms. Shah submitted that adequate opportunity of being heard was given to the writ applicants before the National Green Tribunal by way of synopsis, affidavits etc. and after considering the matter on merits, the National Green Tribunal declined to entertain the applications on the ground that the same were without merit.
8.7 Ms. Shah pointed out that the National Green Tribunal had constituted an Oversight Committee headed by Justice B.C. Patel, former Chief Justice of Delhi High Court and former Judge of the Gujarat High Court to be assisted by the representatives of the CPCB and GPCB to ensure the execution Page 36 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT of the order and to enable the committee to consider the representation from any person concerned with the execution of the order. Pursuant to such directions, the GPCB submitted its report of compliance of the order passed by the National Green Tribunal to the oversight committee. The CPCB has also submitted a report to the oversight committee for evaluation of the compensation. Thus, the order passed by the Tribunal has been implemented. It is noteworthy that more than 97% of the industries have shifted from coal gasifiers to PNG. It is submitted that pursuant to the order passed by the Tribunal, Public notice and individual notices were issued to all the industries operating with the aid of coal gasifier to switch over to non-coal gasifier or the technology consistent with the above report of the PNG:
8.8 Ms. Shah, thereafter, brought to our notice the impact of the implementation of the order passed by the National Green Tribunal as under;
"That the closure of coal gasifiers and switching over to the cleaner option by opting PNG as a fuel, the following tangible and intangible benefits having emerged:
Reduction of Coal Approx. 7000 MT/Day usage of coal Handling has stopped. Additionally movement of about 350 trucks/day is also reduced on road.
Sulphur Dioxide Gas (as About 700 MT/ Day emission of S02) (Pollutant) Sulfur dioxide gas has stopped. Reduction Sulphur SO2) About 350 MT/Day of discharge of concentration Reduction Sulfur gas has reduced.
Terry waste (which is Approx. 700 MT/Day of Tarry Waste Hazardous Waste) which comprised of highly toxic Page 37 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT Generation eliminated. waste water and tar coated debris is stopped generation of.
Waste Water Generation Generation of Approx. 33 Lakh reduced. liters/Day of waste water has stopped.
Fresh Water Usage of Approx. 3300 KL/Day of Consumption in equal fresh water has stopped. quantum to wastewater. Additionally water demand for Approx. 25,000 people can be catered to.
8.9 Ms. Shah submitted that in order to seek the issuance of a writ of mandamus, the writ applicant needs to demonstrate a legal right vested in him to manufacture modified Type-D gasifiers which have been expressly restricted and prohibited by the National Green Tribunal and a corresponding duty upon the respondent No. 2-GPCB to evaluate the same. The National Green Tribunal has considered the totality of facts including the report submitted by the committee consisting of the NEERI, CPCB and GPCB. The respondent No. 2-GPCB is a constituent of the committee, there are other counter parts who have also evaluated and examined the "Type D" gasifiers and categorically found the technology incompatible with the pollution norms. In the absence of any legal right vested in the writ applicant to claim such evaluation, it is respectfully submitted that the prayers as prayed for by the writ applicant may not be entertained. There is no violation of any legal or fundamental right of the writ applicant to do business as innovators. When a court of competent jurisdiction has prohibited the "Type-D gasifiers based on moving bed updraft technology", the writ applicants cannot adopt this circuitous route of approaching this Court praying for consideration of a representation made by them pending the adjudication of the Page 38 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT matter before the National Green Tribunal: 8.10 Ms. Shah submitted that the report on the Technological and Environment issues related to the coal gasifier in the Ceramic Industries filed by the Committee constituted by the National Green Tribunal is a complete substitution and supersedes the previous reports bearing the same title submitted in October, 2017. Whilst, the report filed in October- 2017 was based on a limited study, the present report as stated in the chapter on the objectives is a wholesome and complete exercise undertaken after inspecting every unit and a complete study of all the available technologies. Our attention was drawn to the relevant extracts from the report submitted by the aforesaid Committee, which are as under:
"Sub Chapter 6.3 Industrial visits and compliance aspects in Chapter 6, is reproduced as under:
"New advance fluidized bed clean technology gasifiers that does not generate condensate wastewater and tar should be encouraged. Such gasifier should be approved for its material of fabrication, all temperature and pressure measuring gadgets, automated monitoring and control system by Directorate of Industrial Safety & Health (DISH) for authorized installation in Morbi".
Sub Chapter 6.1 Examination/Evaluation of Gasifier Technologies in Chapter 6, is reproduced as under:
"Even if condensate wastewater and coal tar is generated from gasifiers in small amount in Morbi Wankaner Industrial cluster, its cumulative impact on the ecosystem is very severe as there are very large number of ceramic industries exists. Management and handling of wastewater and hazardous waste (coal tar) from all industries together exceeds the assimilative capacity of the region and therefore any gasifier generating condensate wastewater and coal tar should not be permitted. Instead of further experimenting with older moving coal bed gasifiers (currently existing in Morbi), advanced fluidized bed gasifier should be designed along Page 39 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT with all pollution control device for meeting the clean energy demands in Morbi region".
Sub Chapter 2.6.1- Alternate Coal Gasifiers in Chapter 2 is reproduced as under:
"The entrepreneurs, who have taken the lead in designing, installing and operating moving bed gasifiers are appreciated, however, due to increasing pollution problem, they are advised to change the technology and shift to fluidized bed gasifier as indigenous entrepreneurs will be able to provide economic substitute to PNG, which is a scare resource. Such advanced fluidized bed gasifiers will allowed with all regulatory clearances (Risk assessment, safety audit etc), whichever appropriate. On its successful performance, additional units should be allowed to be installed".
8.11 Ms. Shah submitted that a bare perusal of the aforesaid paragraphs of the report would indicate that the Expert Committee consisting of the representatives of the GPCB, CPCB and NEERI have clearly opined that to curb the menace of pollution, it is necessary to change the technology and shift to the fluidized bed gasifiers, which does not generate condensate waste water and tar and that too after obtaining all the necessary approvals. It is also emerging from the said report that the condensate waste water and coal tar which are invariable generated from the gasifier, cumulatively have a very serious impact on the eco-system as large number of ceramic industries exist in and around Morbi.
8.12 Ms. Shah further submitted that the gasifier technology is of three types, viz. (1) moving bed gasifier, (2) fluidized bed gasifier and (3) entrained bed gasifier and the writ applicant- company is manufacturing coal gasifier, and for which they are seeking direction for evaluation of "modified Type-D gasifier which is also based on moving bed gasifier technology to which the committee and the Respondent No. 2 as its Page 40 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT constituent has not found to be compliant with the pollution norms. It is further submitted that the writ applicant- company is manufacturing coal gasifier based on the moving bed and updraft technology where there is a generation of coal tar and waste water. The same has a serious carcinogenic effect on the environment and, therefore, the Expert Committee in their February, 2018 report, opined in unequivocal terms that instead of further experimenting with the older moving coal bed gasifiers, the advanced fluidized bed gasifier should be designed and the New Advanced Fluidized bed clean technology gasifiers that do not generate condensate wastewater and tar waste should be encouraged.
8.13 Ms. Shah also submitted that there is a direct nexus between the proceedings concluded before the National Green Tribunal and the present proceedings. From the record, it can be seen that the writ applicants are seeking relief from this Court to direct the respondent authorities to examine and evaluate the modified Type-D gasifier. The same is contrary to the decision rendered by the National Green Tribunal as the Tribunal has already considered all the aspects and contentions of the parties, including the written submissions of the writ applicants as well as the report of the committee which clearly reveals that the coal gasifier which generates condensate wastewater and coal tar should be immediately removed and the advanced fluidized based clean technology gasifiers which do not generate condensate wastewater and coal tar should be encouraged. Ms. Shah further submitted that when the Tribunal has considered the merits of the application preferred by the present writ applicants, for the identical reliefs, this Court may not exercise its extraordinary Page 41 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT writ jurisdiction under Article 226 of the Constitution of India as the statutory provisions provide for the remedy and this Court may be relegate the writ applicants to the remedy available under the statute.
8.14 Ms. Shah, in the last, submitted that there has been an intangible positive impact on the environment due to the change in the technology. The switch over from the moving bed gasifiers to the PNG has drastically reduced the air pollution in the area so as to provide ambient air to the public at large. It is pointed out that due to the implementation of the order passed by the Tribunal, the consumption of coal has been reduced and for transporting the same, the vehicular emission in the area has also substantially reduced.
9. Submissions on behalf of the Respondent No.5- Indian Council of Ceramic Tiles & Sanitaryware;
9.1 Mr. S.N. Soparkar, the learned senior counsel appearing with Ms. Dilbur Contractor for the Respondent No.5 has filed written submissions. The submissions are as under;
"2. The present Petition has been filed on the following premise :
(i) That the National Green Tribunal (NGT) has only banned gasification technology using Coal, as per technology existing on the said date. The purport of the NGT Order cannot be to ban coal gasification in toto.
(ii) In the case of the Petitioner only two issues were raised. The Petitioner have modified their technology and the same have been resolved. The technology of the Petitioner cannot be banned as it becomes 'technology consistent with report'
(iii) The claim of the Petitioner was not considered before Page 42 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT the NGT as the NGT held the Application of the Petitioner to be simplicitor non-maintainable. [Pg 20 Pr. 13, Pg. 24 Pr. 2,]. In fact, the Petitioner even goes to the extent of expressly claiming that the NGT did not decide its Application on merits. [Pg. 357 Pr. 2]
(iv) The Application having been held to be non- maintainable, therefore the Petitioner cannot avail the remedy of statutory Appeal provided under the Act.
(v) The Technology of the Petitioner has been examined by 3 premier institutes and found to be appropriate.
3. At. the very outset, it is pertinent to point that in the said proceedings before the Ld. Tribunal, several reports were filed by the Statutory Authorities including reports jointly prepared by GPCB, CPCB and NEERI. The said reports noted the alarmingly polluted state of Morbi in all three forms, i.e., Solid, Water and Gaseous [Pg. 320]. The committee also examined various types of gasification technologies, i.e., Type-A, B, C, D, & E. After considering the above findings of the committee set up by it regarding the dire state of environment at Morbi, the Ld. Tribunal had come to a conclusion that 'Coal based gasifiers' were no longer viable. [Pg. 325, Pr. 21]. The said finding alongwith the previous paragraph makes it apparent that coal gasification in its all forms has been banned.
4. Consequently, the Ld. Tribunal directed that all gasifiers operating with coal were to be shut down. [Pg. 326, Pr. 25]. Thus, what the Ld. Tribunal has banned is the usage of coal in gasifier technology and not the coal gasification technology as it existed at the time of passing of the Order dated 06.03.2009.
The said directions are not unprecedented. The Hon'ble Apex Court in M. C. Mehra v. Union of India and Ors. (1997) 2 SCC 353 (Popularly known as the 'Taj Corridor Matter'.) The Supreme Court while taking note of the dire state of pollution in and around the Taj Mahal in Agra, had directed that the immediate stopping of glass industries operating with the aid of coke/coal in the Taj Trapezium Zone. The Court had directed that industries must shift to natural gas as an industrial fuel and those industries who could not stop functioning with the aid of Page 43 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT Coke/Coal would have to re-locate in terms of the directions of the Hon'ble Apex Cottrt. [Pg. 384, Pr. 34].
It is relevant to mention that the Ld. Tribunal, while passing the directions has expressly noted that the principles of Sustainable Development and Precautionary Principle of Environmental Jurisprudence were to be upheld. The Hon'ble Apex Court in the judgment quoted above has noted that remediation of damaged environment is a part of process and sustainable development as such the polluters are liable to pay the cost to individual sufferers as well as the cost of reversing the damaged ecology. It is in light of the said principle that the Ld. Tribunal has not only banned coal gasifiers but had also set up a committee to suggest a restoration plan, the cost of which was to be included in other costs to be ascertained by the Committee. [Pg. 326 Pr. 25 and Pg. 327 Pr. 27]
5. The Ld Tribunal also considered the precautionary principle under which the steps must be taken to anticipate, prevent and attack the causes environmental degradation. Having come to the express conclusion that coal gasification process causes environmental pollution and noting the alternative of LNG/CNG gasification process, the Ld. Tribunal directed the banning of the polluting coal.
6. As the direction of the Ld Tribunal are clear, unequivocal and unambiguous, therefore any purported improvement in the process by the Petitioners cannot be considered as the fuel they are using has been banned. The modification claimed by the Petitioner cannot be a ground for interfering with the express and unambiguous direction of the Ld. NGT banning coal.
7. The above submission gains significance, as even otherwise, not only were the contention put by the Petitioner before this Hon'ble Court, in consideration before the Ld. NGT, the same was rejected by the Ld. Tribunal. Even as per the Petitioner, it made written as well as oral submission regarding the development done by during the period of pendency of the proceedings. [Pg. 12 Pr.19]
8. The Ld. Tribunal expressly needs the submission of Page 44 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT the industries that the technology has been modified and improved and there could be no objection to industries continuing to operate alter the use of the new technology. [Pg.311 Pr.2]. The Ld. Tribunal also recorded the submission of the complainant that the claim of manufacturer of zero % pollution should not he considered by the Ld. Tribunal, in light of the highly polluted and degraded state of environment in Morbi area as recorded in the committee report of 2018 [Pg. 315 Pr. 11]. Accordingly with the intention of remedying, the pollution already existing in Morbi town [Pg. 311 .Pr. 1]. It is wrong to allege that the issue was not considered by the Tribunal. The Ld. Tribunal considered all aspects including the contention of the Petitioner and banned the usage of coal as a fuel.
9. The Petitioner is misrepresentation facts when its allege that it has been ousted on the ground of simplicitor maintainability. In fact, after considering all aspects, the Ld. Tribunal came to express conclusion that the stand of the industries and manufacturers had 'No Merit'., [Pg 327 Pt 30.] The lack of merit is clear in the observations of the Ld. Tribunal with respect to the degraded environment of Morbi and the obvious pollution caused by coal gasification.
10. The Petitioner are aware that their claim is despite and in the teeth of the Order of the Ld NGT. For the said reason, the Writ as filed originally impugned the Order dated 06.03.2019. does in fact impugn the action of the Ld Tribunal. Subsequently, with the intention of playing subterfuge, the Petitioner withdrew the prayer challenging the Order of the Ld NGT and sought the directly contingent relief of consideration of its modification. Even in its present form, the Petition impugns the acts of the Ld NGT [Pg. 13 Pr. 21]. Petitioner thus are clearly want to circumvent the law direction of the Ld NGT by abusing the Writ jurisdiction of this Honble Court. The relief prayed for by the Petitioner, in essence, compel the Respondent authorities to commit what would be deliberate violation of the Order of the Ld NGT. It is trite principle of law that a party cannot do indirectly what it cannot do indirectly:
11. As the Petitioner seeks a relief in the teeth of the Ld NGT's Order, therefore the same can only be claimed by Page 45 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT filing an Appeal as provided under Section 22 of the NGT Act. The said Section clearly stipulates that 'any person' aggrieved by an Order passed by the NGT, can challenge the same by filing an Appeal before the Honble Supreme Court. The same would be more applicable in the present case, where a party has been impleaded by way of an express Order but denied the benefit as it was found to be non-meritorious. Thus, the appropriate remedy is for the Petitioner to challenge the Order of the Ld NGT by filing an Appeal before the Honble Supreme Court.
12. Assuming but not admitting that it is not clear as to the whether the claim of the Petitioner was considered or not and what was the scope of the direction issued by the Ld NGT, the same can only be clarified by way of the approaching the Ld NGT again. The extraordinary Writ jurisdiction cannot be exercised to clarify the Order of the Ld NGT, when clearly another efficacious remedy is available to get the same relief.
13. The Petitioner in support of its contention had also submitted that the decision of the Honble Apex Court in MG Mehta v UOI & Ors 1999 7 SCC 522. The said decision came to be passed in an entirely distinguishable and different circumstances. The permission in the said case was sought for a work of National Importance i.e. resurfacing of airport runways [Pg 533 Pr. 11]. Furthermore, the permission to run the Hot Mixer was sought only for a period on one year. [Pg. 523 Pr. 2]. The case of the Petitioner in the said case was that it was not possible to set up and run the Hot Mix plant from anywhere else as (a) The hot mix need to be maintained at very high temperature prior to paying it on runway. If the place of preparation is kept far then it would be not possible to maintain the temperature. [Pg 523 Seriatim c], (b) Preparation at a far away place would entail over 100 trucks having to transport the premix, which would cause traffic jam and be uncertain in light of traffic restrictions [Pg 523 Seriatim f-h]. Additionally, the same could also cause a security risk at Airport [Pg 532 Pr. 9].
In 'the present case, the permission is sought for fulfillment of private interest of the Petitioners. The same in no manner is related to National Interest or importance. Furthermore, there is very much a viable alternative available i.e. usage of gas as a fuel. Hence, Page 46 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT the said judgment cannot be relied upon.
14. The Petitioner have failed to fulfill the requisite for issuance of Writ of Mandamus. The Petitioner have failed to substantiate any right to claim, let alone be entitled to relief as prayed. The Petitioner is the entity which had allegedly modified the technology and not the user of the said technology itself. There is no premise basis in law for the Petitioner to demand the grant of approval by Respondent authorities. Furthermore, for a Writ of Mandamus to be issued, there must also be a corresponding duty on the part of a State or Public Authority: In the present dispute, the Petitioner have failed to state the duty on the part of the Respondent authority to examine and approve any technology, especially when the said issue has been put to rest by the Ld NGT. It is submitted that the Respondent authority are subject to the jurisdiction of the Ld NGT and therefore bound by its Orders.
15. The Petitioner have not provided as to why do they want to revert to coal gasification when the same is not as beneficial as gas. Mere commercial advantage cannot be basis for reverting to polluting fuel, in the presence of an option of a cleaner fuel. In fact, the Ld NGT has specifically directed that compensation to be imposed should be such that it renders any polluting activity such as coal gasification, unprofitable. Thus, the spirit of the Ld NGT's order is to discourage of any polluting activity, even if otherwise found permissible. It is thus submitted that advent of Courts and Authorities should always in favor of the view points which favor the environment the most, rather than forsaking it.
16. Lastly, the Petitioner have not shown the exact cause of action on the basis of which the Petitioner has approached this Honble Court. It is submitted that while the Petitioner has claimed that its representation have not been considered by the Respondent Authority, it has not disclosed any such representation. In case the Petitioner claims that its development are not within the scope of the Ld NGT Order, the Petitioner ought to reveal any representation made by the Petitioner subsequent to the Order of the Ld NGT which has not been considered by the Respondent Authority. In the absence of any such representation, the present Petition is misconceived and Page 47 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT merits to be dismissed.
17. For the said reason, the present Petition, merits to be dismissed."
10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the writ applicants of the Special Civil Application No.6756 of 2019 have made out any case for issue of writ of mandamus to the GPCB.
11. Before we proceed to deal with the rival submissions canvassed on either side, we would like to first look into the findings recorded by the Committee in its report of February, 2018. On the issue of alternate coal gasifiers, the findings recorded by the Committee in its report are as under;
"Alternate Coal Gasifiers Gas produced by partial heating of coal in the presence of water producing H2, CO and light hydrocarbon are called producer gas. If the producer composition is changed by altering the CO and H2 ratio to suit a particular combustion requirement, it will be called synthetic gas. The gasifiers in Morbi are producer gas generators.
The gasifiers can be classified based on the technology used in the shell. Currently, there are three types of technology used worldwide namely packed moving bed, fluidized bed and entrained bed gasifiers. In a moving bed gasifier, there are two possibilities i.e. updraft and downdraft gasifier. In the case of updraft gasifier, air is forced inside the gasifier shell from the bottom. where lowest coal layer is burned at a temperature of 1100 °C and the hot air and steam moves upward through the packed coal bed. In the upper layers of packed coal bed.
the temperature gradually falls and reaches about 400 °C at the outlet of gasifier. The entire coal bed is packed Page 48 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT with coal of 20 to 50 mm coal, which interacts with hot air and steam at varying temperature. Producer gas and tar is formed across the entire depth of coal bed at different temperatures. At lower layer of the shell having higher temperature (1000-1100 °C), CO. H2 and light molecular weight tar (like CH4. C2H2) formation takes place. As the hot air and steam moves up and encounters coal at lower temperatures, relatively lesser quantity of producer gas (CO, H2) and large amount higher chain hydrocarbons or poly aromatic compounds (like PAH. BaP etc.) called tar is formed.
AII these organic molecules (tar) are volatile and remain in gaseous phase at the temperature that is encountered in the gasifier shell and gets condensed, whenever the temperature falls below respective boiling point. In type 'B' & 'C' gasifier, the tar is collected in ESP as the temperature is lowered to such tar condensation levels. In type 'D' gasifier. the temperature of the producer gas is maintained high by jacketing the entire gas pipe line, thereby not letting the tar condensation happen. However at the burner end, the temperature fails and tar condensation takes place. By the time hot gas reaches burner valve from where it is fed to the kiln, the temperature is usually brought to around 200 °C. Usually flow control valve at high temperature cannot be maintained as the seal of the valve (Teflon) may get damaged.
Another type of packed bed gasifier is downdraft gasifier, in which the air encounters highest temperature of solid fuel in the last stage of its journey in the shell. However, such gasifiers can be operated using bio-mass and therefore have the limitation of calorific value and can serve relatively shorter length of kiln. At Morbi, long kiln (more than 300m) are used.
The other two technological alternatives to the gasifier operation is the use of fluidized bed and entrained bed. Both these gasifiers Operate at relatively higher temperature and therefore generate relatively lesser amount of lighter tar unlike the updraft gasifier generating very heavy tar, which are toxic to the ecosystem if not managed properly. Entrained bed gasifiers operating at 1200-1400 °C are employed for generating large quantity of producer gas and are Page 49 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT unlikely to be used by small scale ceramic industries and therefore not discussed here.
Fluidized bed gasifiers operate in a temperature range of 850-950 °C and the amount of producer generated corresponds to the needs of ceramic industries of Morbi and therefore discussed here. In the fluidized bed gasifier, the coal size is up to 6 mm thereby providing large surface area of coal for reaction. Fluidized bed gasifier provides higher retention time for reaction to take place thereby reducing the formation of coal tar. Since the temperature is relatively high, the formation of large molecular weight tar is avoided and only light molecular weight tar (like CH4, 0%) is formed. which remains in gaseous phase at temperature encountered in the entire gas pipe line. The moisture content of coal is required to be maintained at 20% during coal preparation. In case the moisture content is low in the coal, additional pre-defined amount steam can be fed. Separate moisture feeding as done in packed moving bed is not required for fluidized bed gasifier.
For the advance fluidized bed gasifiers, additional coal crushing units will be required, which also requires appropriate dust pollution control device at coal crushing units. In fluidized bed gasifier. the gas needs to be .cleaned of its char, ash, and inert media by using appropriate particle removal device like cyclone.
The currently installed gasifiers in Morbi area uses steel for fabrication, which are not actually certified to be used for high temperature operations. In the case of advanced; gasifiers, care should be taken to ensure that the material of fabrication be certified material suitable for high temperature operations with proper refractory and fulfills all industrial safety norms. The advanced technology gasifier would be costly compared to the currently installed moving bed gasifiers and therefore to ensure its economy, the option of installing single gasifier for a cluster of ceramic industry should be considered. In this case the ceramic industry will be free from the responsibility of operating, maintaining and pollution issues of gasifiers. Only the gasifier operator will have the responsibility of maintaining the gasifier operation and the ceramic industry will get the clean synthetic gas.
Page 50 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTThe entrepreneurs, who have taken the lead in designing, installing and operating moving bed gasifiers are appreciated, however, due to increasing pollution problem. they are advised to change the technology and shift to fluidized bed gasifier as indigenous entrepreneurs will be able to provide economical substitute to PNG, which is a scarce resource. Such advanced fluidized bed gasifiers be allowed with all regulatory clearances (Risk assessment, safety audit etc.), whichever appropriate. On its successful performance, additional units should be allowed to be installed."
12. It appears that the technology, of which, M/s. Radhey Renewable Energy Development Pvt. Ltd is talking about was also looked into by the Committee. The findings in this regards are as under;
"M/s.. Radhey Renewable Energy Development Pvt. Ltd.
Manufacturer of gasifier: M/S Radhey Renewable Energy Development Pvt. Ltd.
Name of Ceramic Industry: M/s. Segam Tiles Pvt. Ltd., Plot No: Survey No. 64, Gala Shapar Road, Village: Gala, Tehsil & Dist.:Morbi, Gala 363642.
Product Vitrified Tiles 7000 MT/ Month
Date of visit/monitoring 31/08/2017
Components of Gasifier:
Coal Consumption, 34 T/day
Monitoring The source emission
monitoring at Kiln and work
zone monitoring carried out at
two locations near gasifier
plant.
The analysis results of source
emission monitoring at kiln
are given in Table 3.3 and
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C/SCA/6756/2019 CAV JUDGMENT
results of work zone
monitoring results are given in
Table 3.4.
Technical features claimed by the gasifier manufacturer:
Aims to utilize hot gas directly in the Kiln.
The raw gas line is kept heated, thereby avoiding the possibility of condensate wastewater generation till kiln end.
Since there is no drop in temperature, there is no need of tar catcher/wet electro static precipitator.
Tar remains in gaseous form & is utilized in furnace as a fuel with coal gas.
Small amount of Tar is generated near kiln end, which gets solidified on cooling. Solidified Tar is broken and again fed along with coal in the gasifier, if it remain in liquid form, it is sprinkled over coal and then again fed in the gasifier.
Filter media used in gas cleaning can be re-generated & reused easily.
Hot filtration technology operates automatically with SCADA & is based on pressure drop.
Coal consumption is reduced by 25 to 30% as compared to wet technology gasifier.
There is about 50% reduction in electricity consumption.
Observations by the committee Apparently there is no wastewater generation in the gasifier system as there is no wastewater outlet along the synthetic gas carrying pipeline or a wastewater storage tank.
There is a likely possibility that wastewater may get generated in the water seals provided for safety along Page 52 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT pipeline from gasifier to Kiln.
Tar is generated near the Kiln burners and is collected in small bucket.
Manufacturer claims that the rate of Tar generation is 1 kg per ton of coal used in gasifier; ' Device for flow measurement of producer gas is not provided.
Raw synthetic gas is cleaned by passing it through a filter media (road metal] gitti/black stone/ Kapachi). The filter media adsorbs black powder, which can be recovered separated}.
Filter media used for adsorption of black powder is removed from the adsorption tank and new batch of clean filter is loaded.
A valve is provided at the bottom of filtration unit (adsorption tank) which can be opened to drain dust laden filtration media i.e. Kapchi. The drain valve is equipped with timer so that the frequency of its Opening & duration of its opening can be set as per requirement.
The exhausted filter media is de-dusted / cleaned of the black dust by shaking it in shaker by shot blasting. The cleaned filter can again be used in the adsorption tank.
Coat feeding from top open hopper to continuous feeding closed hopper is fully automatic and connected with SCADA.
Source monitoring results reveals that the concentration of SO2. N02 and CO exceeds the norms prescribed by GPCB vide notification Dt. December 23, 2015, whereas the concentration PM and TOC are within the norms.
Work zone monitoring results reveals that the concentration of PM10. SO2, CO and coal tar volatiles are within the norms prescribed by GPCB vide notification Dt. December 23. 2015.
During the visits in December 2017 and January 2018, ceramic industries with D-type gasifiers were visited. The major observations are as follows:
Page 53 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTWastewater is generated in water seal/traps. It was informed that due to high temperature, the wastewater in seal/traps gets evaporated and therefore there is always a need to replenish the water seal by adding fresh water.
There is a likely possibility that synthetic gas may carry (evaporate) some amount of water while passing through the water seal. This happens if the synthetic gas remains unsaturated while passing through water-seal. in this case. the water level in the water-seal gets reduced over time.
The data of coal tar generation is not property maintained by the operators. It is informed that 0.5 to 1.0 kg/burner/day. It is also claimed that approximately 40 kg Tar is generated per day in a gasifier that consumes 12.5 Ton coal daily. This tar cannot be recycled into the gasifier.
This is a moving bed gasifier formation of coal tar cannot be avoided.
Since producer gas is maintained hot from gasifier to kiln burner by insulating the pipeline. tar is not condensed out, except in small quantum near burner. The producer gas contains tar, which makes the flame color yellow I orange.
Disposal of huge amount of exhausted filter media (road metal/gitti/ black stone i.e. Kapachl) will be an issue. Used filter media is coated with carbon dust and tar. As claimed by the supplier & some industries, the used aggregates use for road construction. Earlier committee recommended for hot mix plant for making asphalt road, however, huge quantum and quality of the used aggregates needs to be ascertained from respective department /institute. Further, haphazard disposal of such aggregates once quantum is more cannot be ruled out. Huge quantum of Filter media coated with tar and coal dust whose disposal may be another environmental issue.
The technology of this type-D of gasifier are explained in relevant portion in Chapter-2.
Page 54 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTTable 3.3: Source emission monitoring at M/s. Segam Tiles Pvt. Ltd.
(Gasifier supplied by M/s. Radhe Gasifier).
Sampling Date: 31/08/2017
Sr. Name of Unit Kiln Stack GPCB
No. Norms
(mg/m3)
1 Oxygen (%) 10.3
2 Carbon Dioxide (%) 9.5
3 Moisture (%) 3.45
4 Temperature °C 278.7
5 Velocity (m/s) 12.6
6 Particulate Matter 8.4 150
(mg/Nm2)
7 Sulphur Dioxide (mg/Nm2) 400.03 200
8 Nitrogen Dioxide (NO2) 729.6 400
(mg/Nm2)
9 Carbon Monoxide (mg/Nm2) 132 100
10 Total Organic Carbon 7.65 20
(mg/Nm2)
Table 3.4 Work Zone Monitoring Results.
No. Parameter SW/direction NE direction GPCB
of Gasifier of Gasifier Norms
(mg/Nm2)
1 Respirable Dust PM 0.05303 0.11534 05
10 (mg/m2)
2 Sulphur Dioxide 0.0115 0.0138 13
(mg/m2)
3 Carbon Monoxide BDL BDL 55
(mg/m3)
4 Coal Tar volatiles BDL BDL 0.2
(Benzene soluble
fractions,
Anthracene, Benzo
(α), Pyrene,
Phenanthrene,
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C/SCA/6756/2019 CAV JUDGMENT
Chrysene,
Pyrene( (mg/m3)
13. The conclusions drawn by the Committee in its report are as under;
"As per the information provided by the GPCB, four industrial accidents reported in last two years related to gasifier. The recent accident was fatal in M/s. Active Ceramics Pvt. Ltd. Plot no. 627, Lakhdhirpur Road, Ghuntu, Ta-Dist Morbi. The accident occurred on 17.08.2017 and death of worker happened in Hospital on 23.08.2017. The hot wastewater from evaporator splashed on worker and get burned due to broken valve at the bottom of Evaporator.
Safety measures as per recommendations of expert committee formed by Govt. of Gujarat (2014) needs to be properly seen by Directorate of Industrial Safety & Health (DISH) Based on visual observations and analysis of results of water/wastewater from earthen lagoon/ ponds, drains in the area, it may be concluded that discharges from ceramic industries having gasifier are taking place which resulted into contamination of water In earthen lagoons/ponds, drains.
This also shows that ceramic industries do not practice zero discharge condition given by GPCB and illegally discharging wastewater which is supposed to be evaporated in evaporators. The reasons for the illegal discharges may be technical such as improper/non- functional evaporators, excessive steam from evaporator not required for gasification, direct scrubbing of gases instead of indirect cooling/cleaning in gasifier operation and economical i.e. to save expenditure incurred during operation of evaporators etc. Groundwater monitoring shows some contamination due to COD concentration at some wells. Regular monitoring needs to be carried out to ascertain the things.Page 56 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT
As per ambient air quality monitoring carried out by Committee in Dec 2017, Ambient air quality in terms of dust is very bad and alarming in the area and also results of ambient air quality monitoring results shows the same that Particulate Matter (PM10), PM2,5 exceeds the NAAQS at all the locations. The concentration of PM in the area is more due to spray dryers for manufacturing body clay for ceramic tiles, handling of raw material in such industries (different clay, materials, coal etc.), road conditions in the area, movement of trucks (carrying raw material/products) and different vehicles and haphazard disposal of solid waste generated from ceramic industries (mostly vitrified tiles).
The concentration of SO2 is also exceeds the NAAQS at five locations. The presence of high concentration of S02 in the atmosphere confirms that the spray driers use lignite, 'coal fines and coal tar generated in the gasifier for hot air generation (HAG). Besides spray drier units, gasifiers that use synthetic gas for wastewater evaporation and in the ceramic units (kiln) emit large amount of sulfur as these units do not have flue gas de- sulfurization (scrubber) system. The very high concentration of SO2; in Morbi area is alarming and strict action needs to be taken to control emission of S02.
As per Medium term measures given in Expert Committee (Govt. of Gujarat) 2014- a study of spray dryer was to be conducted, from pollution view point, which shall incorporate survey related to the existing air pollution control devices, ascertaining the adequacy of installed system and suggesting addition/alterations to satisfy the prescribed norms within six months by environment departments of Engg./ Tech institutes and respective industries associations should bear the cost of the study but nothing concrete has happened.
Most of the stacks attached with spray dryers emit visible air emission showing inadequate air pollution control systems which required to be improved."
14. The observations of the Committee in its report are as under;
"Observations Page 57 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT During the visit of the committee. some of the pollution issues were observed by the members, which may neither fall under written compliance norms nor have any documented evidence, however, they indicate gross negligence of environment. The visible observations are documented here in text and photographs to understand the poor environmental status of Morbi Wankaner Industrial area.
During the visit to the Industrial area, it was understood that a large number of coal gasifiers were in operation a few days prior to the visit of the committee members. Many of them were shut down temporarily till the committee members complete the inspection and leave the industrial area. Therefore, only those industries, which were in operation during the visit of the committee can be gauged about its compliance issue. If the decision is taken based on the non-compliance of operating coal gasifiers, only those gasifiers, which were operational during the committee's visit will be shut down and non- operational gasifier will be spared. These gasifiers can pollute the environment and the purpose of making a committee and inspection will be defeated.
One of the reason for operating coal gasifiers for clean gas compared to easily available PNG as stated by the locals is that the PNG usage can be quantified by metering device, which can be correlated to the ceramic product quantity. On the other hand, synthetic coal gas cannot be quantified as no proper data recorded is maintained for coal quantity, quality, water consumption, wastewater generation and coal tar generation etc. Some of these data are outside the scope of SCADA system. This helps the manufacturer to hide the product quantity, thereby evading the excise duty (now GST). However, the committee cannot comment on any such activity. The committee did not find even a qualified gasifier operator at any of the units. No proper data on gasifier operation was provided by them.
There are 13 type 'A' gasifiers were found during the inspection by the committee. These gasifiers were not in operation during the visit. Some of them were not in operation since long, however. some gasifiers were found with wastewater and tar which shows these gasifiers Page 58 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT were operational in immediate past. Type 'A' gasifiers were to be closed down and presence of type 'A' gasifier is gross violation of the GPCB regulatory norms. GPCB must ensure that all type 'A' gasifier should be dismantled.
There are 384 type 'B' gasifiers visited by the committee including 315 having valid CCA (as per GPCB record-316 gasifier with valid CCA). Out of them 254 were in operation and 130 were non-operating. There may be many more type 'B' gasifiers installed in the industrial area. GPCB may find out such gasifiers. Irrespective of their compliance status. all type 'B' gasifiers should be shut down and dismantled. Some gasifiers may claim that they were operating the gasifiers with full compliance condition as laid down by CCA and therefore they should be permitted to be continued. This committee does not find type 'B' gasifier, a clean technology and therefore must be shut down.
Gasifier operators stated about the type of their gasifier and accordingly, 5 nos of type 'C' gasifiers were listed. However, it was found that only one gasifier at M/s. Shyam Ceramics permitted under trial run was having tar reformer-cum-wastewater evaporator. Remaining other four gasifiers initially with rotary tar reformer-cum- wastewater evaporator has been modified to evaporators. The tar generated is disposed by having MoU with sodium Silicate/cement industries as per CCA. Therefore. these 4 gasifiers are considered to be type 'B' gasifiers.
As per GPCB records, they have given trial run permission to 15 type 'D' gasifiers out of which. the committee has inspected 11 industries. These gasifiers have started operating for the 3-6 months. GPCB has not given Consent to establish (CTE) to this type of gasifier. These gasifier are installed though consent to establish not issued to them and GPCB has given trial run permission to all these gasifiers for one month. GPCB needs to stop their operation.
2 Ceramic industries are found to have Type-E gasifiers but were not in operation for more than 2 years. These industries were operational with PNG.
Page 59 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTEvaporators are provided by Type 'B' for the wastewater management and to full-fill the Zero liquid discharge condition as per consent. The wastewater (condensate & scrubber water seal) to be converted to steam and reused/recycled back to gasifier. These evaporators are shell & tube type with flue hot gas generated by burning syn gas.
However, these evaporators are not properly designed. There is no control over feeding of steam to gasifier. It is described in chapter-2, that all the wastewater cannot be recycled to gasifier through evaporator by converting in to steam due to various technical/ economical [operation & maintenance reasons and therefore at some point of time the wastewater is discharged out or steam release to atmosphere against consent condition. This consent condition is not technically as well as practically possible (observing the wastewater discharge in environment and steam release to atmosphere). During visits, it was observed that out of 254 operational gasifiers, 156 evaporators were operational and out of these operational evaporators 86 evaporators were releasing steam to atmosphere (Fig 5.6-iii). If all the gasifiers and their evaporators would have been operational, then practice of steam release to atmosphere would have been more. No proper disposal mechanism of the concentrate generated from the evaporator was observed.
Almost all the evaporators are provided with pipe for feeding steam to gasifier, along with vent with butter valve for bypass/ release of steam to atmosphere. Even if it is consider as safety provision, then there is no valve with rupture disc. It is also reported by GPCB officials that this is their routine practice due to reasons as stated in earlier Chapter 2.
Wastewater and tar were found to be spread inside and outside 32 gasifiers premises. During the visits, though some of the industries were feeding condensate wastewater steam to gasifier as per the consent condition and were maintaining zero liquid discharge (ZLD). These compliances can be only during the inspection and there is no mechanism to monitor and control their discharge outside the premises.
Page 60 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTWater seal traps along the gas pipeline to kiln gets polluted and needs to be treated or used in gasifier. This wastewater was found to be stored in drums, some of which were leaking.
Evaporator flue gas scrubber and stack height/ SMF was not adequate and not as per consent conditions in almost all units.
73 gasifiers are practicing/provision direct scrubbing of raw synthetic gas, and 133 gasifiers have contaminated cooling tower water. All these are non-compliances.
There are no proper covers to storage tanks of wastewater and tar collection tank, also there were not proper VOC collection and feeding pipe arrangement to gasifier in many cases thereby violation consent conditions. In most of the case, tar tanks & condensate collection tanks manhole/ openings, condensate collection tanks were kept open or gaps observed in covers, thereby emitting VOC in the nearby area and tar NOCs smell predominant the area.
The industries having valid CCA for gasifiers were having MoU with Sodium Silicate or Cement industries. Manifest system not properly maintained by industries, logbook containing daily records for collection, storage, transportation, disposal, pending stock of tarry waste not maintained (which is supposed to be maintained as per CCA are not maintained) by almost all industries. Absence of such record for tracking movement of Hazardous waste does not encourage granting permission for generation of coal tar in gasifiers. Morbi Industrial area is peculiar as there are large number of hazardous waste (coal tar) generating gasifiers.
Tractors trolleys (10 Ton) are used for transportation of tar which are not having sometimes even registration numbers, GPS system and not as per the provisions of HWM Rules. There are no proper provision of separation of tar and wastewater in many cases and wastewater is collected in tar tanks or vice versa. Sometimes, tractors/tankers collect tar along with wastewater, and wastewater illegally disposed elsewhere in environment and tar is supplied to sodium silicate or other units.
Page 61 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTCoal tar is used illegally as fuel in hot air generators for spray dryers in body clay manufacturing units/ceramic units.
Still there is no proper common collection facility for coal tar is established in the area. Till the date, Consent to Establish (CTE) is given to M/s Morbi Dhuva Glazed Tiles Association and no CCA is issued and all coal tar movement is happening without properly observing HWM Rules.
The bottom ash from gasifier is disposed haphazardly in plants as well as in nearby open land.
Solid waste (broken tiles, sludge/ dust from polished of tiles) are dumped haphazardly in the whole area of Morbi
-Wanakner area. Recently, District Administration allotted abandoned mines/land for the disposal of solid waste.
The system named as SCADA are provided along with Type 'B' gasifiers but it is not really operating SCADA. Plant parameters cannot be controlled or modified through these SCADA system. These systems were installed as requirement to get CCA and not really SCADA system in most of the cases. These systems are not even operated by qualified/operators. in some cases, one can see some parameters but in most of the cases the values were not proper and there were no one to explain the function of this system. It is at the most, parameter indication system which requires calibration and proper operation. But unfortunately in many cases it was not the case.
The operator are not technically qualified and are hardly 10 or 12th pass. This increases the risk of operating the gasifieis There are over 400 gasifiers in limited area of 35 km from Jetapr Pipali road to Wagasia on Wankaher road and concentration of ceramic units are more in Ghuntu road. Lakhahirpur road, Nava Jambuciia, Lalpara area having gasifiers in close vicinity to each other. Due to this, there is concentrating effect of pollution due to more no of source of pollution in limited area. The pollution discharge in the area has exceeded its regional carrying capacity and therefore there is a need to control the Page 62 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT emission/discharge by adequate change in technology.
Due to large number of industries in a very small cluster, day to day vigilance is not practical and very difficult. This is the reason, the Regional Office, GPCB, Morbi is getting complaints of illegal discharges in low laying areas, pollution of river Bela, ground-water pollution etc. Still wastewater disposal observed by teams in the different area as:-
Near Rafeleshwar lake and railway track, River Bela having light brown color water low laying area behind light city ceramics ovt ltd, pipali- jetpar road, Wastewater in low laying area near Metal Road, drain from Rangpar road junction to Chamunda hotel on NH 8A."
15. The final recommendations of the Committee are as under;
"6.1 Examination [Evaluation of Gasifier Technologies Type 'A': There are 13 type 'A' gasifiers were found during the inspection by the committee. These gasifiers were not in Operation. Some of them were not in operation since long, however. some gasifiers were found with wastewater and tar which shows these gasifiers were operational in immediate past. Since, this type of gasifiers are not permitted, GPCB must ensure that all type 'A' gasifier should be dismantled.
Type 'B': Earlier expert committee (2014) suggested that type 'B' gasifier can be permitted to operate if the wastewater generated during gas cleaning/condensation is recycled back to the gasifier shell by the use of evaporator. Accordingly GPCB granted amended CTE/CCA for the operation of type 'B' gasifiers. However, this committee finds that type 'B' gasifier cannot be operated by recycling condensate wastewater in the gasifier shell as the condensate wastewater generated is in excess of the required moisture for shift reaction. This is the reason, almost all type 'B' gasifier operators illegally discharge wastewater either through open drain, in low Page 63 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT lying areas, abandoned mines etc. and/or steam release to atmosphere. During the inspection of industries, it was found that there are 71 gasifiers that operate evaporator and feed wastewater steam inside the gasifier shell. This can only be a temporary phenomenon as complete wastewater cannot be fed on continuous basis. These gasifiers can discharge condensate wastewater outside the premises illegally and it is not possible for GPCB to keep track of the wastewater generated and its recycle. An argument put forth is that the evaporator operates only for a few hour and feed the complete steam inside the gasifier shell. Such argument does not stand as the condensate wastewater generation is a continuous process and even if intermediate tanks of very large capacity is built, all will get filled at some instance during the operation of gasifier. Therefore, this committee recommends that all gasifier of type '8' must be shut down immediately, dismantled safely.
Type 'C': Condensate wastewater with indirect cooling and Tar (Wet ESP) is stated to be recycled into gasifier shell by heating it at high temperature in the Tar reformer. The recycling operation is carried out on the premises that the moisture fed inside the gasifier shell will be the stoichiometric requirement of amount of coal tar recycled. The coal tar generated itself is an emulsion of water and coal tar due to its collection mechanism (Wet ESP). The moisture content of coal tar should be sufficient to take part in the shift reaction and any additional moisture may not be needed. The condensate wastewater will be recycled again in the subsequent condensation and this in turn will accumulate the wastewater in the gasifier system as happens in the case of type 'B' gasifier. Thus, after a few days of operation, type 'C' gasifier will generate and accumulate condensate wastewater, which does not have economical treatment option, and therefore its management will always be major issue. Generation of condensate wastewater and coal tar is not recommended.
Type 'D': This is hot gasifier and does not allow condensation of moisture up to kiln. The entire moisture is fed in the kiln. Since this is a hot gasifier, coal tar does not get condensed and is fed directly to the kiln. This was evident from the colour of the flame, which was yellow/orange. A clean producer gas gives blue flame.
Page 64 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENTRaw gas cleaning through road metal/aggregates (kapachi) filter generates large quantity of exposed/used aggregate filter media. Huge quantum of Filter media coated with tar and coal dust whose disposal may be another environmental issue. High molecular weight (class 5) coal tar gets condensed just before the kiln burner and gets solidified as soon as its moisture is evaporated. Solid coal tar cannot be fed from the bottom of the shell. If solid coal tar is fed from the top, it gets vaporized and again reappear in the raw synthetic gas thereby accumulating coal tar in each successive cycles. Type 'D' gasifier will have the problem of solid coal tar and disposal of large quantity of used contaminated aggregates. Generation of coal tar and contaminated filter media (aggregate) from gasifier is not recommended.
Type 'E': is based on down draft and agro based fuel where no cooling and cleaning of gas is required and therefore no wastewater and tar generation. Bio-mass based fuel does not generate heavy hydrocarbon, and therefore Tar, which is heavy hydrocarbon is not formed. Steam is not added in the gasifier, instead moisture of bio-mass is considered sufficient for H2 formation. Due to very low amount of moisture feed, wastewater is not generated.
Even if condensate wastewater and coal tar is generated from gasifiers in small amount in Morbi Wankaner Industrial cluster, its cumulative impact on the ecosystem is very severe as there are very large number of ceramic industries exists. Management and handling of wastewater and hazardous waste (coal tar) from all industries together exceeds the assimilative capacity of the region and therefore any gasifier generating condensate wastewater and coal tar should not be permitted. Instead of further experimenting with older moving coal bed gasifiers (currently existing in Morbi), advanced fluidized bad gasifier should be designed along with all pollution control device for meeting the clean energy demands in Morbi region.
Till a cleaner technology for synthetic gas generation is demonstrated, ceramic industries having gasifiers may opt for PNG. Natural gas grid/pipe connections are already established in the area and most of industries are Page 65 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT having connections."
ANALYSIS
16. Thus, the experts have made themselves abundantly clear that the use of coal gasifiers of any type should be discontinued at any cost. The experts have also made themselves very clear that the Ceramic Industries should switchover to a cleaner technology and should opt for natural gas, i.e., the PNG. In the report, it has been clearly stated that the natural gas grid/pipelines are already laid and made functional in the area and most of the Ceramic Industries have opted for gas connections. If that be so, then why an exception should be carved out for the writ applicants of the Special Civil Applications Nos.6757 of 2019 and 6774 of 2019 respectively.
17. We fail to understand why are they insisting for coal gasifiers may be with an advanced technology. We take judicial notice of the fact that Morbi and the surrounding area was a hell sometime back, and the Ceramic Industries, using the coal gasifiers, are solely responsible for creating this hell. As days were passing by, situation was getting more and more worst. The situation was so grim that the issue had to be taken up with the National Green Tribunal and it is only after the intervention of the National Green Tribunal and passing of various orders, that steps came to be taken by the GPCB to restrain the Ceramic Industries from using the coal gasifiers. The coal gasifier of any type, be it with a better technology, is not at all advisable. It will lead to further problems. With great difficulty and with lot of efforts, the situation has been brought in control. Even, as on date, the air quality is very poor. The menace of coal gasifiers have not only created air pollution but Page 66 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT has also contaminated the soil to such an extent that the underground water has also become contaminated.
18. The writ applicants are talking about unemployment etc. They have no right to say a word in this regard. The report indicates that the workers, hailing from poor strata of society, were found to be working in extremely bad conditions. The workers were being exposed to most unhygienic conditions. Even if there is unemployment on account of the closure of the Ceramic Industries, using coal gasifiers, the same can be approved because to ask the workers to die working in such unhygienic conditions would be still worst.
19. The workers are exposed to such an environment that within a short time they would die of silicosis.
20. We find this litigation, more particularly, the Special Civil Application No.6756 of 2019 very unique. For the first time, we have come across a case, in which, a private company, engaged in the manufacturing of coal gasifier, is asking a Writ Court boasting about its fine technology to issue a writ of mandamus to the GPCB to look into the technology of the Company and then take a decision whether to permit the installation of the same in the Ceramic Industries. What is the Company trying to convey?. Is the Company trying to advertise its technology by seeking a writ of mandamus?. Is the GPCB and other statutory authorities duty bound to look into the technology of the Company, more particularly, when the same has been looked into by the committee of experts and the NGT, as noted above. The situation, as on date, is that at any cost, the coal gasifiers cannot be permitted to be used in the Ceramic Industries. The coal gasifier, of which, the Page 67 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT company is talking about, also has its own shortcomings. When 60 to 70 percent of the Ceramic Industries have switched over to natural gas by taking connections from the Gujarat Gas Company, then why the writ applicants in the present case are still insisting for the coal gasifier. They are only interested in their own profits. They are insisting for coal gasifier because they may not be able to bear the expense of natural gas. This hardly can be a ground for issue of any writ of mandamus to the GPCB to look into the technology and take an appropriate decision whether the same would serve the purpose or not.
21. Before an applicant could get a writ of mandamus or an order in the nature of mandamus, he has to satisfy the court that the following conditions are fulfilled.
(a) The applicant has a legal right;
(b) The opposite party has a legal duty;
(c) The application is made in good faith;
(d) The applicant has no other alternative remedy; and
(e) The opposite party has refused relief, i.e. demand and refusal.
22. Mandamus is one of the prerogative writs issued by the superior courts (High Court or Supreme Court), which is in the shape of command to the State, its instrumentality or its functionaries to compel them to perform their constitutional / statutory/public duty.
23. A writ of mandamus is an extraordinary remedy to be invoked only upon special occasion and in exceptional circumstances. It is intended to supply deficiency in law. It Page 68 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT cannot be granted merely for the asking but has to be obtained where there is no alternative, efficacious and adequate remedy. It cannot be used as an appeal against the decision of a court, tribunal or an authority exercising statutory power. It can only be issued as a last resort where the court is satisfied that without its aid there would be failure of justice.
24. Mandamus is an action or judicial proceeding of a civil nature extraordinary in the sense that it can be maintained only when there is no other adequate remedy, prerogative in its character to the extent that the issue is discretionary, to enforce only clear legal rights, and to compel courts to take jurisdiction or proceed in the exercise of their jurisdiction, or to compel corporations, public and private, and public boards, commissions, or officers, to exercise their jurisdiction or discretion and to perform ministerial duties, which duties result from an office, trust, or station, and are clearly and peremptorily enjoined by law as absolute and official (P.R. Aiyar, Advanced Law Lexicon, (2005), Vol. III P. 2873.).
25. Mandamus is not a writ of right and is not granted as a matter of course (ex debito justitiae). Its grant or refusal is at the discretion of the court. A court may refuse mandamus unless it is shown that there is a clear legal right of the applicant or statutory duty of the respondent and there is no alternative remedy available to the applicant. (Union of India v. S.B. Vohra, (2004) 2 SCC 150)
26. The discretion of the court, however, is not arbitrary and it must be exercised fairly, reasonably and on sound and well established legal principles.
Page 69 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT27. The court, in the exercise of discretion, must take into account wide variety of circumstances. It must consider the facts of the case, the exigency which calls for the exercise of discretion, the consequences of granting or refusing the writ, the nature and extent of injury likely to ensue by the grant or refusal of the writ, etc. In short, courts discretion must be governed by considerations of public policy, public interest and public good.
28. Thus, we are not in agreement with any of the submissions canvassed by the learned counsel on behalf of the writ applicants for the reason that mandamus can be enforced only, if the writ applicant satisfies the Court that there is an existence of statutory or legal right recognized and protected by law.
29. In Wharton's Law Lexicon, the word 'Right' means; (1) is a legally protected interest (2) is an averment of entitlement arising out of legal rules (3) right is an interest recognised and protected by moral or legal rules (4) right, comprehends every right known to the law.
30. In K.J.Aiyar's Judicial Dictionary, the word 'Right' means;
1) a right is a legally protected interest, 2) a right is an interest which is recognised and protected by law.
31. In Stroud's Judicial Dictionary, the word 'Right' means, is where one hath a thing that was taken from another wrongfully, as by disseisin, discontinuance, or putting out, or such like, and the challenge or claime that he hath who should have the thing, is called right.
Page 70 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT32. Writ of mandamus cannot be issued merely because a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for mandamus. The said position is well settled in a series of decisions.
(a) In Comptroller and Auditor General of India vs. K.S.Jegannathan, reported in AIR 1987 SC 537 = 1986 (2) SCC 679, a Three-Judge Bench of the Hon'ble Apex Court referred to Halsbury's Laws of England 4th Edition, Vol.I. Paragraph 89, about the efficacy of mandamus:
"89.Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
(b) In the decision reported in (1996) 9 SCC 309, State of U.P. and Ors. v. Harish Chandra and Ors., in paragraph 10, the Apex Court held as follows:
"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition.... "
(c) In the decision reported in (2004) 2 SCC 150, Union of India v. S.B. Vohra, the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of Page 71 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(d) In the decision reported in (2008) 2 SCC 280, Oriental Bank of Commerce v. Sunder Lal Jain, in paragraphs 11 and 12, the Supreme Court held thus, "11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Page 72 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.- ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. "
12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53) "15. ... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the instant case, it has not been shown Page 73 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same. Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities...."
33. Mandamus is the most valuable and essential remedy in Administrative Justice resorted to supply want of some appropriate ordinary remedy. The functions of the writ court is to compel the performance of public duty, for which, the person approaching the writ court should statutorily, has a clear, specific and unequivocal, constitutional or statutory or legal right to the relief sought for and the failure on the part of those who are bound to perform certain duties and functions, as laid down by the legislature or directions issued for the purpose of enforcing the provisions of an enactment or of any delegated or subordinate legislation. There must be a legal right and corresponding legal duty.
34. In State of Kerala v. A.Lakshmi Kutty, reported in 1986 (4) SCC 632, the Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only Page 74 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus. The present trend of judicial opinion appears to be that in the case of non- selection to a post, no writ of mandamus lies.
35. When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied)"Page 75 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT
36. A prerogative writ, like, a Mandamus cannot be demanded ex debito justiatiae, but it can be issued by the court in its discretion, for which, it must be shown that, there is a non discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court under Article 226 of the Constitution of India, has to prove that he has a legal right to be enforced against the authority, for the failure of performance of a legal or statutory duty, by the authority against whom, the relief is sought for.
37. To sum up, (a) certain conditions have to be satisfied before a writ of mandamus is issued; (b) the petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something; (c ) there must be in the petitioner a right to compel the performance of some duty cast on the respondents; (d) the duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law; (e) the remedy of a writ of mandamus is not intended to supersede completely the modes of obtaining relief by an action in a Civil Court or to deny defence legitimately open in such actions; (f) the power to issue a writ of mandamus is a discretionary power. It is sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to issue a writ of mandamus; (g) a writ of mandamus is not a writ of course or a writ of right but is, as a rule a matter for the discretion of the Court; (h) in Page 76 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT petitions for a writ of mandamus, the Supreme Court and the High Courts do not act as a Court of appeal and examine the facts for themselves. It is not the function of the Court to substitute its wisdom and discretion for that of the person to whom the judgment in the matter in question was entrusted by law. The Supreme Court does not issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded; (i) a writ of mandamus is not issued to settle private disputes or to enforce private rights. A writ of mandamus cannot be issued against the President of India or the Governor of State; (j) A writ will not be issued unless the Court is certain that its command will be carried out. The Court must not issue a futile writ.
38. We are not inclined to interfere, in any manner, more particularly, when the entire issue has been looked into in details by the National Green Tribunal. It is open for the writ applicants to approach the National Green Tribunal and seek appropriate relief in accordance with law. We are not impressed with the vociferous submission canvassed on behalf of the writ applicants, more particularly, the owners of the Ceramic Industries that their application as well as the application preferred by the Company, manufacturing coal gasifiers, has been held to be not maintainable in law and, therefore, they have no other option but to come before this Court. Our understanding of such observations made by the National Green Tribunal in its order is that such applications preferred by them are not tenable in law. To put it in other words, they are not entitled to seek any relief by preferring Page 77 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT such applications. If the writ applicants are aggrieved by such observation, then they may either prefer a review application before the Tribunal or may challenge the order before the Hon'ble the Supreme Court by preferring appropriate appeal in accordance with the provisions of the National Green Tribunal Act.
Special Civil Application No.7142 of 2019
39. In this writ application, it is the case of the writ applicants that they would like to avail the gas connection. However, till this date, the gas connection has not been provided by the respondent No.3, i.e., the Gujarat Gas Limited. We take notice of the affidavit filed on behalf of the Gujarat Gas Limited, duly affirmed by its Vice President (Secretarial & Legal). The following has been stated in the affidavit-in-reply.
"3.0 GGL is a government company as per the provision of Section 2(45) of the Companies Act, 2013 primarily involved in the business of City Gas Distribution (CGD). GGL supplies natural gas to various industries and also piped natural gas (PNG) to households as well as compressed natural gas (CNG) for usage in vehicles. Amongst various other Geographical Areas in the State of Gujarat. GGL is authorized by Petroleum and Natural Gas Regulatory Board (for short 'PNGRB') to lay, build, operate and expand CGD Network and supply gas therefrom in and around the town of Morbi. The total capital investment made by GGL in the said Geographical Area in and around the Town of Morbi as on 31.03.2019 is approx. Rs.437 Crores.
4.0 In paragraph 11 of the petition, the petitioners have made an averment that the petitioners have applied for obtaining pipeline connection from GGL for securing supply of natural gas. It is stated that the connection is still not made available at the location where the petitioners are conducting the industrial activities. At Annexure-E to the petition, two applications are annexed, Page 78 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT one by Exora Tiles LLP dated 08.03.2019 and the other by Casva Tiles Pvt. Ltd. dated 28.10.2014.
5.0 it is to be noted that the petitioners are industrial customers and in accordance with the standard industry practices, the connection to such customers can be made available only upon execution of commercial arrangement in the nature of gas sales agreement. GGL already has pipeline network covering the entirety of the area of main cluster of ceramics tiles manufactures at Morbi and the units of the petitioners are located in nearby vicinity of such pipeline network of GGL. Thus, thought at present, GGL is pipeline is not extended to the exact location of the Petitioner' units, GGL is ready and willing to extend the pipeline infrastructure and connect the Petitioners' units. However, the Petitioners would be required to engaged with GGL and agree upon the commercial terms for execution of the gas sales agreement in line with industry practice.
Till the time the pipeline is extended, GGL is ready and willing to engage with the Petitioners in working out the modalities to ensure commencement of gas supply to the units of the petitioners.
GGL has written letters dated 04.06.2019 to the petitioners informing them that GGL is planning to extend its gas grid to the industries located in the cluster of Khakhrech/Aniyari. For the purpose, GGL requires an estimate of total consumption required by the industries in the cluster. A format is enclosed along with the letter to be filled in by the industries and sent to GGL so as to assist GGL in estimating the volumes required and to have other necessary details. The said letters are annexed hereto as Annexure-A colly."
40. Thus, it appears from the stance of the respondent No.3 that they are in the process of providing the gas connection to the writ applicants.
41. Ms. Aspi Kapadia, the learned counsel appearing for the respondent No.3 makes a statement, after taking instructions from his client, that within a period of four months, all the Page 79 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019 C/SCA/6756/2019 CAV JUDGMENT necessary modalities would be worked out with the writ applicants and they would be provided with the gas connection in accordance with the rules and the regulations of the company.
42. In such circumstances, referred to above, we need not adjudicate this matter any further. We appreciate the stance of the writ applicants. They are switching over to the use of natural gas which would be beneficial to one and all. We direct the respondent No.3 to take all possible steps at the earliest and see to it that the gas connections are provided to the writ applicants at the earliest.
43. With the above, the Special Civil Application No.7142 of 2019 stands disposed of.
44. So far as the other three petitions are concerned, they are ordered to be rejected with liberty to approach either the National Green Tribunal or the Hon'ble the Supreme Court of India.
45. All connected civil applications are also disposed of.
(J. B. PARDIWALA, J) (A. C. RAO, J) Vahid Page 80 of 80 Downloaded on : Tue Nov 19 20:51:38 IST 2019