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SCA/13130/2009 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13130 of 2009
For
Approval & Signature:
HON'BLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HON'BLE
MR.JUSTICE K.M.THAKER
=========================================================
SHRI VERAVAL SAMASTA KHARVA GYATI, THROUGH NARANDAS GOVIND - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance :
MR ASIM PANDYA FOR HL PATEL ADVOCATES for Petitioner(s) : 1, MR JK SHAH ASST. GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
NOTICE SERVED BY DS for Respondent(s) : 2, 4, MR RITURAJ M MEENA for Respondent(s) : 2, None for Respondent(s) : 3, MR SANDIP SINGHI FOR SINGHI & CO for Respondent(s) :
4, ========================================================= CORAM :
HON'BLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HON'BLE MR.JUSTICE K.M.THAKER Date : 26/07/2010 CAV ORDER (Per : HONOURABLE MR.JUSTICE K.M.THAKER) With the allegations that the flora and fauna in Arabian sea and Devka river have been affected on account of the pollution caused by the respondent No.4-company, the petitioner has preferred present petition, as Public Interest Litigation.
However, as the discussion would show, the allegations are without any supporting facts, figures, details or any material whatsoever.
The petitioner, a charitable trust at Junagadh, is registered under the provisions of the Bombay Public Trust Act, 1950. The members and the beneficiaries of the petitioner trust are fishermen engaged in the business of fishing in Arabian sea near Veraval. The petitioner has averred in the petition that it has filed the petition on behalf of and for the benefit of the beneficiaries of the trust and other persons affected by the pollution caused by the respondent No.4-company. The petitioner has made allegation to the effect that the respondent No.4-company is discharging untreated industrial effluent through open channel into the sea caused serious damage to the environment in violation of the provisions under the Environment Protection Act, 1986; Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control) Act, 1981. On such allegations, the petitioner has prayed for below mentioned reliefs:-
15(a) This Hon'ble Court may be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction directing respondent no.1 to 3 to take immediate actions against respondent no.4 for violation the provisions of the Environment Protection Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control) Act, 1981.
(b) This Honourable Court may be pleased to issue appropriate writ, order or direction restraining respondent no.4 from discharging untreated industrial effluent or the effluent which does not meet with the standard prescribed under the Water (Prevention and Control of Pollution) Act, 1974 into the Arabian Sea.
(c) This Honourable Court may be pleased to issue appropriate writ, order or dir5ection directing respondent no.4 to restore the environmental damage caused by it in the manner that may be suggested by respondent no.2.
(d) This Honourable Court may be pleased to direct respondent no.4 to pay in public law remedy an ad-hoc compensation of Rs.1 lakh to each person engaged in the business of fishing who is affected by the pollution caused by respondent no.4.
(e) Pending admission and final disposal of the present petition, this Honourable Court may be pleased to appoint a Committee of experts to submit a report on the nature of pollution caused by respondent no.4, its effects on environment and suggest the modes of checking environmental pollution and restoring the environment damage caused by respondent no.4.
In response to the notice, the respondents have appeared and in their respective affidavits in reply, the allegations have been denied.
Mr.
Asim Pandya learned advocate for Mr. H.L.Patel Advocates has appeared for the petitioner and Mr. Meena, learned advocate has appeared for the respondent No.2-Gujarat Pollution Control Board. Mr. J.K.Shah, learned AGP, has appeared for respondent No.1-State of Gujarat and respondent No.3-Collector, Junagadh and Mr. Sandip Singhi for Singhi & Company has appeared for the respondent No.4-company.
Heard the learned counsel for the respective parties.
The petitioner trust has alleged in the petition that the respondent No.4-company discharges untreated industrial effluent through open channel, which has caused degradation of soil quality and has affected flora and fauna in the area and the marine life upto 15 to 20 Nautical Miles in the sea has come to virtual extinction. The discharge of industrial effluent in the sea has polluted the sea water. It has also been alleged that the plant of the respondent No.4-company emits huge quantity of fly ash in the air which is beyond permissible limit and contrary to the Air Act and thereby, the respondent No.4-company causes air pollution. It has also been alleged that the untreated industrial effluent discharged in the river also affected the quality of soil and that despite several representations and complains made before the respondent authority, any steps have not been taken against the respondent No.4-company. It has been alleged that in the course of manufacturing activities carried on by the respondent No.4-company, which is manufacturing rayon and other products in its unit situate at Veraval, industrial effluent in liquid and gaseous form is generated.
The thrust of the petitioner's allegations in the petition and submissions during the hearing was to the effect that the discharge of industrial effluent in the sea has polluted sea water which causes corrosion of the engines of the fishing boats of the members of the petitioner trust and due to polluted water, the life span of fishing nets reduce to great extent, which imposes huge burden on the fishermen. Due to pollution, which effects the marine life, the members of the petitioner trust are deprived of their catch of fish and the fish yield in the area has reduced to such an extent that the member of the petitioner trust have to travel farther away in their boats to catch fish. The quality of fish has also deteriorated and most of the people reject the fish caught from the said area, which has resulted into reduction in consumption and export of fish. It has been alleged that the respondent No.4-company has, thus, snatched away the livelihood of the members of the petitioner trust. The pollution caused by the respondent No.4-company has also resulted into skin diseases and health hazards.
At the outset, we are constrained to note, particularly having regard to the fact that the members and beneficiaries of the petitioner trust are fishermen and the allegations in the petition which has been submitted as Public Interest Litigation are with reference to the effect which the alleged polluting activities of respondent No.4-company have caused to the fishermen and their business of fishing, that the petition is bereft of any relevant details, except the allegations, which have been made without any supporting date. Except the 3 news paper reports and 2 medical certificates which are annexed to the petition and are accompanied by the copy of the representations/complains made by the association of the fishermen, the petition is baron and it does not contain any material in support of the allegations.
The petition does not give out the details of the effluent discharge nor does it give out the details about the alleged gaseous emission and also does not give out even general idea about the alleged reduction in marine life or the type of the adverse effect on the flora and fauna.
Therefore, notice to the Pollution Control Board was simultaneously issued who, in due course, filed reply affidavit, to which we shall advert hereafter. As noted earlier, the respondent No.4 has filed reply affidavits and denied the allegations.
It is claimed by the respondent No.4-company that its factory/plant is situated in industrial zone at Veraval and it is engaged in manufacturing viscose filament yarn, caustic soda and other allied by-products. The company has also installed and commissioned a captive power plant. The respondent No.4-company has claimed that it has received and all-throughout it has held, the consent/authorization granted by the respondent No.2-Pollution Control Board under the provisions of Environment Protection Act, 1986, Air (Prevention & Control of Pollution) Act, 1981 and Hazardous Waste (Management & Handling) Rules, 1989 and the last, amongst the series of consent orders granted by the respondent No.2-Board, is the consent order issued vide letter dated 24.6.2009 which is valid till 31.3.2010 while the authorization is valid upto November-2010. It has also claimed that it has been discharging the treated effluent in accordance with the terms of the consent granted by the respondent No.2-Board. The respondent No.4-company has also claimed that as a measure of long terms solution for discharge of treated effluent, the respondent company was instructed by the respondent No.2-Board to lay pipeline for discharging the treated effluent into deep sea and that in view of such instructions, it has laid a closed pipeline with diffuser system for discharging the treated effluent into the sea after obtaining requisite statutory permission and consents. The said pipeline is about 1.5 kms. in length and it has been commissioned since November-2009.
It has been further stated that the effluent generated from various sections of its plants is treated in the effluent treatment plant which has been installed and commissioned by the respondent No.4-company so as to meet with the prescribed standards for effluent discharge. The various equipments installed by the respondent company as part of its effluent treatment plan, which includes:-
Sr. No. Name of Unit.
No. of Unit.
1. Lime Preparation Tank.
22. Lime Storage Tank/Homogenizer 2/1
3. Zinc Clarifier 2
4. pH indicators
3.
5. Polyelectrolyte Preparation Tank
- Cubic
- Circular 2
6. Sludge thickener 1
7. Centrifuge/Belt Press 5/1
8. Suspended Solid Clarifier (SSCF) 1
9. Caustic ETP 1
10. Guard Pond 1 The respondent company has claimed that the Pollution Control Board is regularly inspecting the manufacturing unit and samples of the treated effluent discharged by the company are regularly collected and in the results, it is found that the treated effluent discharged by the company meets with the parameters prescribed by the Pollution Control Board. It has also claimed that the respondent No.4-company undertakes bioassay test of the treated effluent which is the relevant method for testing and determining the survival of fish. The test is carried out by Junagadh Agricultural University and Fisheries Research Station which is recognized as environmental laboratory by the Central Pollution Control Board and the test results have indicated that the treated effluent discharged from the factory meets the bioassay test norms i.e. 90% survival of fish after 96 hours in 100% of the treated effluent. The copies of the analysis reports of the Junagadh Agricultural University and the summary of the various reports from the university is also placed on record by the respondent No.-4company, which reads thus:-
Details of Sample collected by fisheries Research Station (JAU) Port Okha Bio assay limit Date of sampling pH Bio-assay Result.
90% Survival of fish after 96 hr in 100% effluent 22/01/2009 7.5 No mortality in 100% concentration /Volume 20/02/2009 7.6 No mortality in 100% concentration/Volume 23/03/2009 7.5 No mortality in 100% concentration/Volume 21/04/2009 7.7 No mortality in 100% concentration/Volume 25/05/2009 7.6 No mortality in 100% concentration/Volume 13/06/2009 7.5 No mortality in 100% concentration/Volume 9/7/2009 7.6 No mortality in 100% concentration/Volume 27/08/2009 7.8 No mortality in 100% concentration/Volume 24/09/2009 7.5 No mortality in 100% concentration/Volume 10/10/2009 7.6 No mortality in 100% concentration/Volume 8/11/2009 7.6 93.4% survival rate (LC 6.6) value in 100% concentration 10/12/2009 7.5 No mortality in 100% concentration/Volume So far as the allegations regarding fly ash and emission of effluent in air are concerned, the respondent No.4-company has dealt with the said allegation in para 7 of the reply affidavit and stated as under:-
First of all the coal/lignite is stored in the closed covered coal yard. The closed covered coal yard helps to control particulate emissions. Within the shed area water sprinkler system is installed to further control the particulate emissions. The Respondent no.4 has also installed dry fog based dust suppression system within the coal handling plant to control sub micron particle of dust. From the coal storage area the coal are taken through conveyer belt to coal crusher plant within the factory premises. The Respondent no.4 has installed bag filter system in coal crusher plant to control particular emissions. From the coal crusher plant, the coal is fed to the boiler combustion chambers for co-generation. Fly ash and bottom ash are generated during the process of combustion in the boiler. The bottom ash is drained through bottom ash cooler and conveyed to closed bottom silos through pneumatic conveying system. The fly ash from the combustion boilers is collected in three stages Electro Static Precipitator and conveyed to fly ash silos through closed pneumatic conveying system. The ash collected in the silos are, inter alia, used by the group cement plant for manufacture of port land cement and the fly ash is also utilized within the factory at Veraval for manufacture of fly ash bricks which are used for construction purpose within the factory premises.
It may be noted that the aforesaid assertions by the respondent No.4-company and/or any other details and material produced on record, have not been controverted in any manner by the petitioner.
So far as emission from the flue gas and process stake is concerned, the respondent No.4-company has claimed that it has installed air pollution control equipments which control the emission and keeps it within the parameters prescribed by the Pollution Control Board. The equipments comprising the air pollution control plant are as under:-
List of Air Pollution Control Equipments Sr.
No.
Name of Unit.
Air Pollution Control Measures Effect of Air Pollution Control Equipments.
1. Power Plant Electrostatic precipitators (ESP), Circulating Fluidized bed Combustion Boiler & Lime dosing system To Control particulate emission, Oxides of Nitrogen & Oxides of Sulphur
2. Boiler House Bag Filter & Cyclone Separator To control particulate emissions.
3. Coal Yard Water sprinkler system & dry fog based Dust suppression system To control sub micron particle of dust.
4. Coal Crusher Plant Bag Filter To control sub micron particle of dust.
5. Sodium Hypochlorite Plant Three stage scrubbing system by chilled caustic.
Recovery of traces of gas Sodium Hypo Chlorite is recovered as by product.
6. Hydrochloric Acid Plant Bubble cap tray followed by packed bed scrubber To control vapor Hydrochloric Acid & Acid mist.
7. Sulfuric Acid Plant Alkali scrubbers To control Carbon disulphide & Hydrogen sulphide emission.
8. Rayon Plant A Air Washers, & Exhaust Fans To control Carbon disulphide & Hydrogen sulphide emission.
B Alkali scrubbers Hydrogen sulphide is scrubbed by Caustic soda with the help of two stage absorption systems in series to produce sodium sulphide.
9. Sodium Sulphate Plant.
Water scrubber To control Sodium Sulphate aerosols.
It is also stated that the Pollution Control Board is also regularly taking samples from the chimneys-stacks and the analysis reports have revealed that the emission have remained within prescribed parameters. The respondent company has also claimed that during 2009, an ambient air quality was examined by 3rd party auditor namely, ATIRA and the reports by ATIRA have certified that the respondent company is achieving prescribed parameters in respect of ambient air (including RSPM also).
The respondent No.4-company has also stated in the affidavit that it maintains in-house laboratory equipped with various equipments for conducting pollution related analysis. The details of the equipments in the laboratory and its photographs are annexed to the affidavit. It is claimed that the monthly in-house analysis reports are also forwarded to the Pollution Control Board. It has also claimed that staff of about 15 personnel (engineers, chemists and operators) is maintained exclusively for attending the different treatment facilities installed and commissioned at the company's factory at Veraval and it has also activated a cell/committee for environment, health and safety management which plans, monitors and executes the environment and safety related matters and that it has also created a green belt area with about 35000 trees and plants within the premises of the factory. The respondent company also boosts that it has received awards for outstanding achievement in environment management, excellence in energy management and achievement in energy conservation and it has been granted ISO 9001:2000 (Quality Management System Standard), ISO 14001:2004 (Environmental Management System), OHSAS 18001:2007 (Occupational Health and Safety Management System Standard), etc, the certificates, which substantiate its submission that the respondent company is meeting with and maintaining the environmental standards and parameters.
None of the details stated in the reply affidavit of the respondent No.4-company and/or the contents annexed to the affidavit are disputed or denied by the petitioner. Any counter affidavit, controverting the details stated by the respondent No.4 company has not been filed by the petitioner.
On the other hand, the officer (environmental engineer) of respondent No.2-Pollution Control Board has filed an affidavit.
In its reply affidavit, the respondent No.2-Board has stated that pursuant to the request by the respondent No.4-company for consent under the provisions of Air Act and Water Act and also for necessary authorization, the respondent No.2-Board has granted consolidated consent and authorization. It appears that the disposal point in the sea, for discharging the effluent, was determined by the respondent No.2-Board and upon instructions/advise by the respondent No.2-Board, the respondent No.4-company has laid the pipeline upto the disposal point and the trial runs for the discharge of effluent treatment through the pipeline has already been undertaken. The respondent No.2-Board has also stated in its affidavit that during the visit by the officers it was noticed that all the units of the effluent treatment plan ( ETP for short)were in operation. The respondent No.2-Board has also stated in its affidavit that the effluent is discharged after treatment in the ETP and the same is being discharged in the sea through the pipeline laid by the respondent No.4-company. After drawing and testing the samples of waste water and on the basis of the analysis report, the respondent No.2-Board has stated in its affidavit that all the parameters were within the prescribed and permissible limits. It has also been stated that the samples of flue gas were also collected and the analysis reports have confirmed that the parameters are within the prescribed and permissible limits and that the air pollution prevention control measurements were found in operation. Likewise, with reference to fly ash, the respondent No.2-Board has, after having drawn the samples and getting it tested, stated that except RSPM all other parameters were found within prescribed and permissible limits including parameters of the ambient air samples. So far as the norms pertaining to RSPM is concerned, a show-cause notice was served. The respondent No.2-Board has made reference of the visits taken by its officers in February, April, June and October-2009 and that the samples taken during those visits were found within prescribed and permissible limits. With reference to the allegations about the effect on the marine life, particularly with reference to fish, the respondent No.2-Board has stated that :-
8. That the last visit on 21/2/2009 of the unit concerning the complaint received from the present petitioner's regarding the fish mortality due to the discharge of affluent, no dead fishes were observed on the seashore and on the bank of river. The collected wastewater sample from the final outlet of the effluent treatment plant shows that all the parameters are within the permissible limit. During all these visits, no mortality of fish was observed by the officers of the board. However, because ambient air quality RSPM was found to be slighter higher than the prescribed limit, the regional officer has been asked to carry out a vigorous monitoring of the industry to find out the reasons for a higher RSPM.
After its above referred affidavit (of January-2010), the respondent No.2-Board made another affidavit in February-2010 wherein the respondent No.2-Board has stated thus:-
1. I am working with the respondent as an environmental engineer. In pursuance of my last affidavit, we had carried out rigourous monitoring of the unit in question and we have taken latest sample reports under Air (Prevention and Pollution) 1981 and Water Act. The samples have been taken from exactly the same location from which the earlier ambient samples were taken. Analysis report of Air (Prevention and Pollution) 1981 and Water Act dated 2/1/2010 are annexed with this reply and marked as Annexure R1 .
2. As per the latest analysis report, all the parameters mentioned in the consent and authorisation including RSPM are now within permissible limits.
3. The regional office, Junagadh has taken samples under Water Act also. Looking to the said sample report, it is now clear that all parameters of effluent is well within permissible limits. A copy of the latest analysis report as per the Water Act is annexed with this reply and marked as Annexure R2 .
After the aforesaid second affidavit of respondent No.2-Board, the respondent No.4-company filed another affidavit in June-2010 wherein the respondent No.4-company has, with reference to the allegations that due to the discharged effluent, the fish in the sea and river are adversely effected, mention the details about the bioassay test and stated thus:-
6. That the Junagadh Agricultural University, Fisheries Research Station, Okha Port (an environmental laboratory recognized by Central Pollution Control Board) had carried out Bio Assay test of treated effluent in respect of survival of fish for the months of January to May, 2010. The test results indicates that the final treated effluent discharged from the factory of the Respondent No.4 meets the requirements of Bio Assay Test norms i.e. 90% survival of fish after 96 hours in 100% of the treated effluent. The copies of the Analysis reports of Junagadh Agricultural University for the months of January to May, 2010 are annexed hereto as ANNEXURE E (Colly.) At this stage, it deserves to be noted, and it is pertinent, that the petitioner has not given any comparative data and/or placed any material (except couple of news paper reports) from which it can be ascertained that the effluent discharged by the respondent No.4-company actually has had any adverse effect on the marine life and flora and fauna in the area.
It is equally pertinent that even after the affidavits by respondent No.4-company and respondent No.2-Board, the petitioner has not come out with any data from which one can make even educated guess about the effect on marine life.
The petition is devoid of any facts, figures and details and there is complete absence of any material to substantiate the diverse allegations made by the petitioner. Any facts or figures about the alleged reduction in the fish yield and/or any material to support the allegation that the marine life is on the verge of extinction or that the emission in the air and/or the effluent discharged is having any hazardous effect on the health of people or soil and potable water, etc. are not placed on record by the petitioner. It is pertinent that any comparative figures or data pertaining to earlier position vis-a-vis present position are also not placed on record which may demonstrate atleast prima facie, that as compared to the earlier position the marine life or the flora and fauna in the surrounding area have been adversely affected and that has happened as a result of the effluent discharged by the respondent No.4-company.
Though the petition did not contain any relevant details, which may persuade the Court to carry the probe further, since the petition raised environmental issue, with a view to ascertaining the factual aspects and with a view to getting the correct and complete picture of the fact - situation at the site and the surrounding area, notice to the respondents was issued. In response to the notice, the respondent No.2-Board and respondent No.4-company have, as mentioned above, filed their reply affidavits. Even after the said reply affidavits, the petitioner has not come out either with any counter affidavit dealing with the assertions made in the said reply affidavits or with any facts and figures to support its allegations or to controvert the submissions of the respondent No.4-company. The reply affidavits, the assertions made therein, the material produced on record along with the said affidavits, have remained uncontroverted.
In view of the details placed on record by respondent No.4-company and having regard to the affidavits by respondent No.2-Board (which corroborate the assertions of the company) coupled with complete absence of any facts, figures, material of whatsoever nature from the side of petitioner, the bald and unsubstantiated allegations by the petitioner cannot be entertained, more so when any of the assertions, details, facts, figures and material placed on record by the respondent No.4-company and/or respondent No.2-Board are not disputed or controverted much less countered by any data. The lack of relevant facts and figures is highlighted by the absence of counter/rejoinder affidavit. The relief as prayed for cannot be granted for want of any material to substantiate the allegations. The petition, therefore, fails and deserves to be rejected. Accordingly, it is hereby rejected.
However considering the fact that the respondent No.2-Board had to direct the respondent No.4-company to lay the pipeline for discharge in the sea and the discharge point had to be determined by the Board and since the RSPM were, though only for a brief period, were noticed to be on higher side, we feel it necessary to direct that :-
(1) At least for next 3 years the respondent No.4-company shall get Bio Assay test conducted every 4 months . Thetreafter the said test may be conducted as per the normal routine.
(2) The respondent No.2-Board shall, in addition to its regular and statutory inspections, additionally carry out surprise special visits and inspections thrice in a year with special concentration on potential of health hazard, the effect on the potable water and soil, emission of gases in the air and discharge of effluent and their contents.
(3) During the regular and statutory visits and the special visits, as aforesaid, the respondent No.2-Board shall also specifically observe (and this should be made regular feature) and note as to whether all equipments of the air pollution control plant, effluent treatment plant, etc. are effectively operating or not and whether they are being properly maintained or not or they remain in shut down condition.
(4) The Factory Inspector is also directed to make monthly visits and prepare report as to whether statutory requirements are being fulfilled or not and whether the pollution control equipments are being effectively run or not.
Since the Factory Inspector is not party to the proceedings, the registry shall forward a copy of this order to the office of Factory Inspector, Veraval/Junagadh and Chief Inspector of Factory for necessary action(s).
(5) The Junagadh Agricultural University, while conducting the Bio-Assay test, may also endeavor to ascertain as to whether there is any abnormal or cognizable reduction in the marine life in the area.
(6) If at anytime any defect, or default or shortfall in compliance with or breach of prescribed parameters by the respondent No.4 company is noticed by any agency and/or if the effluent treatment/pollution control equipments and the plants are found to be in non-operating/closed mode and/or if it is found that the conditions of consent/authorisation are not being diligently observed, then the concerned and responsible authorities shall immediately take appropriate corrective and penal action, as may be required, including cancellation of consent/authorisation.
(7) A copy of every inspection report along with the action taken report, if any, shall be forwarded to the Collector. The Collector shall keep overall supervision and give appropriate instructions, if and when necessary to ensure compliance in all respect.
The registry shall forward a copy of this order to the Collector, Junagadh.
If any special charges/fees for any of the aforesaid purpose are required to be paid, the same shall be borne by the respondent No.4-company.
With the aforesaid observations and directions, the petition stands disposed of. Notice discharged. No cost.
{ S.J.MUKHOPADHAYA, C.J. } { K.M.THAKER, J. } kdc Top