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Judgment
Learned Counsel appearing for the applicant arguing on IA No. 692/2023, an application for condonation of delay in filing the review application, has submitted that in fact there is no delay in filing the review application but IA has been filed only as a precautionary measure. He submits that the applicant was not a party before the Tribunal and came to know about the order when the notice dated 28.06.2023 was served upon the applicant and the present application has been filed within 30 days from that date.
In view of the above submission, delay, if any, in filing the review application is condoned and IA No. 692/2023 is accordingly disposed of.
On due consideration, IA No. 693/2023 seeking exemption from filing legible copies and IA No. 700/2023 with a prayer to hear the review application in the open court are also allowed.
The applicant is seeking review of order of the Tribunal dated 17.03.2023 passed in OA No. 859/2022.
The OA was filed on the issue of prevention and remedial action concerning pollution of river Hindon in Uttar Pradesh. The Tribunal had formed a joint Committee vide order dated 25.11.2022 and the report by the Committee dated 27.01.2023 was considered in the order dated 17.03.2023. As per the said report, there were 310 grossly polluting industries which were discharging their effluent in the river. The list of those industries in the tabulated form has been reproduced in the order.
Learned Counsel for the applicant has pointed out that the concerned industry is at serial no. 198 i.e. Bhushan Steel Limited and the review application is at the instance of Tata Steel Limited. He has submitted that insolvency proceedings were initiated against the Bhushan Steel Limited and the present applicant i.e. Tata Steel Limited has succeeded in 2018 in the insolvency proceedings. The submission of learned Counsel appearing for the applicant is that while passing the order dated 17.03.2023, the applicant has not been heard neither on the issue that it is not a polluting industry or on the issue of penalty. He submits that now the show cause notice dated 28.06.2023 has been issued by the Uttar Pradesh Pollution Control Board (UPPCB) taking the observation of the Tribunal in the order as final and stating that the present applicant is liable to pay environmental compensation @ 10% of the turnover.
Having heard the learned Counsel for the applicant and on the perusal of the record, we notice that on the basis of the report dated 27.01.2023, the Tribunal in the order dated 17.03.2023 had taken note of the details of 310 industries discharging their effluent into river Hindon as per GPI inventory 2022-23. The report was found to be casual without any plan of action. The Tribunal finally in the order dated 17.03.2023 had concluded as under:
“xxx ……………………………..xxx………………………………….xxx
From the above, it is patent that there is rampant unregulated industrial and sewage pollution and neglect by the authorities in the State of UP. No meaningful action is being taken errant industries and local bodies. Neither prosecution nor erring industries have been closed nor adequate compensation to meet the cost of restoration with deterrent element considering financial capacity of the industries has been assessed and recovered. Liability of the State for discharging untreated sewage has also not been fixed. There is thus patent violation of judgment of Hon’ble Supreme Court inter alia in Paryavaran Suraksha (2017) 5 SCC 326 and directions of this Tribunal inter alia in O.A. No. 593/2017, OA 673/2018 and O.A. No. 606/2018. Thus, though the report is incomplete in all respects, it shows large scale non compliances.
Accordingly, there is need for remedial action in the interest of rule of law and protection of environment. Responsibility for violation of directions of Hon’ble Supreme Court and this Tribunal and for damage to the environment needs to be fixed.
Before passing any further coercive order for past violations, we direct a joint Committee headed by Chief Secretary, Uttar Pradesh with the involvement of MoEF&CC, NMCG, CPCB, State PCB, concerned District Magistrates and concerned Commissioners/Superintendents of Police, Additional Chief Secretary, Environment and ACS/Principal Secretary, Urban Development Department, State Irrigation and Flood Control, Uttar Pradesh to take remedial action for control of pollution of Hindon without further delay and also to deploy field monitoring teams to assess the real ground situation.
Environment and ACS/Principal Secretary, Urban Development Department, Uttar Pradesh will be the joint nodal agencies for coordination and compliance. The proceedings of the committee need not to wait for further nomination. MoEF&CC, DG, NMCG and Chairman CPCB may ensure nominations to the committee.
The Committee may meet within one week and will be free to function online or offline, undertake visit to the sites and interact with concerned authorities and stakeholders. Remedial action will involve assessment of compensation against erring industries for past violations equal to 10% turnover but not lower than assessed cost of restoration, closure of units which are continuing to cause pollution, prosecution of the owners of the industries under the provisions of the Water (Prevention and Control of Pollution) Act, 1974, following due process of law. The State itself is liable to pay compensation for discharge of untreated sewage @ ₹Two Crore per MLD on the pattern of order of this Tribunal dated 03.08.2022 in O.A No. 1002/2018, Abhisht Kusum Gupta v. State of Uttar Pradesh & Ors. and in recent orders passed in respect of 28 States/UTs in O.A. 606/2018.
The erring industrial units may be put to notice of these proceedings by the State PCB for their response, if any, before this Tribunal.
An action taken report complete in all aspects be filed before this Tribunal on or before 30.06.2023 by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. UPPCB will be the nodal agency for compliance and coordination.
The report may also be uploaded on the website of the State so that all concerned may access it and file their response, if any.”
The above order of the Tribunal makes it clear that the remedial action involving assessment of compensation against the erring industries for past violation was to be taken by following due process of law. Needless to say due process of law clearly means giving an opportunity of hearing and following the principles of natural justice.
The action is to be taken against the erring industries and which are to be identified/shortlisted by the concerned competent authority after considering the relevant reports and gathering the other information and giving an opportunity of hearing to the concerned industries. Therefore, the authorities may not proceed on the basis that 310 industries mentioned in the order of the Tribunal are finally held to be erring industries. The authorities are required to examine the case of each industry after giving them opportunity of hearing and ascertain the position on merit on the basis of material so gathered and produced. The environmental compensation will also be levied in accordance with law.
Meanwhile, it is to be ensured by the concerned authorities that no industrial waste water from the 310 industries or any other unit is discharged into either storm water drain or River Hindan directly.
Thus, the review application is accordingly disposed of.