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Judgment
This application seeks review of order of this Tribunal dated 08.09.2022 in O.A. No. 606/2018 (in respect of Maharashtra).
By the said order, the Tribunal dealt with the issue of solid and liquid waste management as per orders of the Hon’ble Supreme Court dated 02.09.2014 in Writ Petition No. 888/1996, Almitra H. Patel vs. Union of India & Ors., (with regard to solid waste management) and dated 22.02.2017 in W.P. No. 375/2012, reported in (2017) 5 SCC 326, Paryavaran Suraksha vs. Union of India, (with regard to liquid waste management).
The Tribunal passed the order sought to be reviewed in continuation of earlier orders mentioned therein. The said order is in the nature of execution of earlier orders which have attained finality.
The Tribunal considered the data presented by the Chief Secretary, Maharashtra showing gaps in sewage and solid waste management showing the status as follows:-
SUMMARY OF STATUS
A: Solid Waste Management
Quantity of waste generation in the State
(in TPD)
Waste Processed (in TPD)
Gap in generation and Processing
(in TPD)
Quantity of waste being disposed in landfills
(in TPD)
Quantity of Legacy waste in the State (Tones)
Status of Bio- mining
24,951
(403 ULBs)
20,294
1776
2881
3,94,19,287
189 out of
273 dump sites cleared
B): Sewage Management
Quantity of sewage generation in the State
(in MLD)
Utilized capacity (in MLD)
Current Gap in treatment (in MLD)
Utilization of treated sewage in
Agriculture/
Horticulture purpose
Industrial purpose
Any other purpose
9758.53
4338.2
5420.33
320 MLD
Considering the above gaps beyond date under the Rules and orders of Hon’ble Supreme Court and resulting damage to the environment and public health, the Tribunal determined liability for past violations and utilization of the compensation amount for restoration of environment. Operative part of the order is reproduced below:-
“Determination of liability for compensation for restoration of environment
Apart from compliance in future, the liability of the State has to be fixed for the past violations in the light of earlier binding orders passed in pursuance of orders of Hon’ble Supreme Court dated 2.9.2014 in WP 888/1996, Almitra Patel and dated 22.2.2017 in WP 375/2012, Paryavaran Suraksha. Order dated 22.12.2016 in Almitra Patel clearly laid down liability for compensation for breach of statutory timelines. Similarly, liability for compensation was laid down for failing to install water pollution control devices after 31.3.2020. The Tribunal has to follow ‘Polluter Pays’ principle under Section 20 of the NGT Act. The State Authorities contributing to the pollution by failing in their constitutional duties are to be held accountable on this principle. Admittedly, timelines under Supreme Court orders and orders of this Tribunal for preventing water pollution and statutory timelines for solid waste management are over. Thus, atleast from 01.01.2021, the ‘Polluter Pays’ principle has to be applied. Compensation has to be equal to the loss to the environment and also taking into account cost of remediation.
In our recent order dated 01.09.2022 in O.A No. 606/2018 (in respect of State of West Bengal), considering scale of compensation adopted in earlier cases including in OA No. 1002/2018, Abhisht Kusum Gupta vs. State of Uttar Pradesh & Ors., compensation was determined @ Rs. 2 Crore per MLD for untreated liquid waste and in OA No. 286/2022 for unprocessed legacy waste compensation was fixed @ Rs. 300 per MT to be utilized for restoration measures, including preventing discharge of untreated sewage and solid waste treatment/processing facilities, as per appropriate mechanism for planning and execution that may be evolved, within three months. Operative part of the said order is reproduced below:-
“Conclusion about quantum of compensation
In the light of above and considering damage to the recipient environment, we hold that apart from ensuring compliance at the earliest, compensation has to be paid by the State for past violations. The amount of compensation is fixed @ Rs. 2 crore per MLD (at which rate compensation has been levied against Noida and DJB in OA No. 1002/2018, Abhisht Kusum Gupta vs. State of Uttar Pradesh & Ors, referred to in para 48 above for detailed reasons mentioned therein). As noted earlier, gap in generation and treatment in West Bengal, as per data furnished is 1490 MLD. Thus, under this head, liability of the State of West Bengal is to pay compensation of Rs. 2980 crores, rounded off to Rs. 3000 crore in view of continuing damage. For failure to process solid waste, unprocessed legacy waste being 1.20 crore MT, compensation is assessed @ Rs. 300 per MT (at which approximate rate compensation has been awarded in OA No. 286/2022 against Municipal Corporation, Ludhiana, for the reasons given therein). This works out to Rs. 366 crore but adding 134 crore for continuing addition of unprocessed waste @ 13469.19 TPD, the total amount is rounded off to Rs. 500 crore. Thus, final amount of compensation under the two heads (solid and liquid waste) is assessed at Rs. 3500 crores which may be deposited by the State of West Bengal in a separate ring-fenced account within two months, to be operated as per directions of the Chief Secretary and utilised for restoration measures, including preventing discharge of untreated sewage and solid waste treatment/processing facilities, as per appropriate mechanism for planning and execution that may be evolved, within three months. If violations continue, liability to pay additional compensation may have to be considered. Compliance will be the responsibility of the Chief Secretary.”
Following the above pattern, we determine compensation payable by the State of Maharashtra. In respect of gap in treatment of liquid waste/ sewage i.e. 5420.33 MLD, compensation works out to Rs. 10840.66 crores and compensation for un-remediated legacy waste to the extent of 3,94,19,287 works out roughly to about Rs. 1200 crores. We round off the compensation amount @ Rs. 12,000/- crores which may be deposited by the State of Maharashtra in a separate ring-fenced account within two months, to be operated as per directions of the Chief Secretary and utilised for restoration measures. The restoration measures with respect to sewage management would include setting up of sewage treatment and utilization systems, upgrading systems/operations to ensure utilization of their full capacities, ensuring compliance of standards, including those of fecal coliform and setting up of proper fecal sewage and sludge management in rural areas. With regard to solid waste management, the action plan would include setting up of required waste processing plants and remediation of left out 84 sites. Bio-remediation/bio-mining process need to be executed as per CPCB guidelines and the stabilized organic waste from biomining as well as from compost plants need to comply with laid down specifications. Other material recovered during such processes are to be put to use through authorized dealers/handlers/users. This restoration plan needs to be planned and executed in a time bound manner without further delay. If violations continue, liability to pay additional compensation may have to be considered. Compliance will be the responsibility of the Chief Secretary.
Award of above compensation has become necessary under section 15 of the NGT Act to remedy the continuing damage to the environment and to comply with directions of the Hon’ble Supreme Court requiring this Tribunal to monitor enforcement of norms for solid and liquid waste management. Moreover, without fixing quantified liability necessary for restoration, mere passing of orders has not shown any tangible results in the last eight years (for solid waste management) and five years (for liquid waste management), even after expiry of statutory/laid down timelines. Continuing damage is required to be prevented in future and past damage is to be restored.
Directions for further follow up
Further, six monthly progress reports may be filed by the Chief Secretary with a copy to the Registrar General of this Tribunal by e-mail at judicial-ngt@gov.in preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF. Copies thereof may be furnished to the NMCG, MoUD and CPCB and also be placed on the website of the State Government.”
Review application does not put forward any tangible ground and is a mere expression of inability to pay compensation. This cannot be an excuse to avoid basic Constitutional responsibility of the State. Moreover, there are binding directions of the Hon’ble Supreme Court on the subject and mandate of statutory rules. Timelines laid down by the Hon’ble Supreme Court and the statutory Rules have already expired. Past assurances and timelines proposed have not been honoured. There is no other manner except coercive measures to enforce the law. Compliance cannot be avoided except at the cost of environment and public health. Funds have been or can be collected from waste generators as per law. In such circumstances, mere expressing financial inability is avoiding constitutional responsibility which is against rule of law. Continued pollution is serious offence by the State and its authorities which cannot be taken lightly. Liability having already accrued, mere statement that the State is unable to arrange funds is not a tenable plea.
Accordingly, the Review Application is dismissed.
I.A. No. 433/2023 will also stand disposed of.