Dombivli Common Effluent Treatment Plant vs Maharashtra Pollution Control Board

The present appeal is filed by Dombivli Common Effluent Treatment Plant (D-CETP) challenging the directions issued under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 by Respondent - Maharashtra Pollution Control Board (MPCB) vide letter dated 2nd July, 2016 directing the Appellant to stop receiving effluent from its member industries within 72 hours or till D-CETP submits concrete time bound proposal for upgradation, maintenance and operation of existing CETP, so as to achieve the consented standards. The Appellant is an association of industries representing around 145 chemical industries in Dombivli. The Appellant Common Effluent Treatment Plant (D-CETP) operates the CETP of 1.5 MLD hydraulic capacity which was commissioned in 1999 and was designed to treat the trade effluent from all chemical industries in Dombivli Industrial area.

The Appellant submits that the Tribunal, in O.A. No.37/2013, has dealt with the environmental pollution issues related to Dombivli, Ambernath, Ulhasnagar and Badlapur, resulting in pollution of River Ulhas and after perusing the record and pleadings, a final judgment was delivered by the Tribunal on 2nd July, 2015 with several directions to the industry association as well as Government Authorities. The Tribunal has also noted the non-compliance by other CETP in Dombivali industrial area i.e. Dombivli Better Environment System Association (DBESA) which has capacity of 16.5 MLD that caters to the effluent generated mainly from the textile industries and also, imposed the cost of environmental degradation. It is submitted that this order was firstly challenged before the Hon'ble High Court of Bombay and now subsequently, the matter is pending before the Hon'ble Apex Court, as regards the environmental compensation costs.

The Appellant submits that in the execution proceedings of O.A. No.37/2013, the Tribunal had made certain adverse observations against the Respondent Board and also the MIDC for their failure to comply with the directions of the Tribunal and to ensure compliance of CETP discharge standards for various CETPs. It is the contention of the Appellant that due to such adverse observations and also certain notices by the Tribunal, the Respondent Board had taken action against the industries and the Appellant D-CETP.

The Appellant submits that they have received several Show Cause Notices and directions in a short span of time and such communications were adequately responded by them. A Show Cause Notice was issued to the Appellant by the Respondent Board on 24th May, 2016 which was immediately responded to. Further a Notice dated 20th May, 2016 was also received for uploading the online monitoring data, which was duly complied and a compliance was submitted to the Board vide reply dated 3rd June, 2016. The Appellant submits that the Chairman of Respondent Board also held meeting of all the stakeholders including the Appellant and MIDC representatives on 2nd June, 2016 and they were directed to ensure that by 15th June 2016, the treated effluent discharge was in compliance with the consented standards. The Appellant alleges that they were not properly heard nor Board took any initiative to address technical issues as well as other grievances raised by the Appellant. These issues according to them are related to mixing of effluent from chemical and textile industries and non-compliance by certain unidentified industries which were required to be enforced by MPCB as a regulatory authority resulting in shock loads. The Appellant further submits that they submitted the action plan in compliance with the decisions taken in the meeting dated 2nd June, 2016 to MPCB on 5th July, 2016. The Appellant claims that in the meantime they had taken several measures and made progress towards efficient operation of the plant; inasmuch as collected capital contribution from the industries and initiated preparation of detailed project report for the proposed upgradation.

The Appellant further submits that to their surprise they received the impugned order directing shut down of the CETP without adequately hearing them and also without proper application of mind from MPCB. The grievances of the Appellant against the impugned order arise on following grounds:

(i) The impugned order has been passed without following the principles of natural justice, equity and fair play.

(ii) The impugned order has been passed without application of mind and also without verifying the factual position effecting the CETP performance.

(iii) Though the order is issued for non-compliance by the CETP, in fact there is failure of the Respondent Board to ensure that all the industries discharge their waste to the CETP as per the consent and the designed standards.

(iv) The impugned order is in violation of the principles of Polluter Pays and Sustainable Development as many of the units are small scale industries and comply with the standards, but due to fault of some non-complying industries all the industries are being punished by the Board indiscriminately.

The Appellant had, therefore, prayed for quashing of the impugned order.

The Respondent - MPCB appeared and filed reply affidavit dated 10th August, 2016 and submitted that the Respondent Board before issuance of the impugned directions on 2nd July, 2016 had given reasonable opportunities to the Appellant CETP from time to time. The Respondent Board further submitted that the D-CETP failed to comply with various directions issued by Respondent Board from time to time thereby causing pollution in the surrounding areas. The Respondent Board further submitted that though the Appellant had submitted a proposal for upgradation of the CETP on 28th July, 2016, no concrete action plan has been submitted by the Appellant in order to achieve the consented standards. The Respondent Board further submitted that the proposal submitted by the Appellant CETP vide letter dated 28th July, 2016 has given two options. In Option-A, it is proposed to merge two CETPs i.e. DBESA CETP (16.5 MLD capacity) and D-CETP (1.5 MLD capacity) so that there can be an effective treatment and management in the industrial area. Option-B proposes restart of D-CETP on tanker collection basis to avoid COD shock loads. The Board submits that both these options are not feasible and practical and therefore, rejected both these options.

Considering the limited conspectus of the appeal proceeding, the only issue before us is to decide whether the impugned order can withstand the test of legal touchstones of reasonability, proportionality and application of mind besides principles of natural justice.

Before proceeding on the contentions raised in the appeal, we had asked the Board to give its' view on the upgradation proposal submitted by the Appellant. MPCB on 4th November, 2016 filed an affidavit and submitted that initially the D-CETP can restart with effluent intake of 25% of D-CETP hydraulic capacity and the plant can be stabilized and after such stabilization, the performance of the plant can be assessed for further decision in the matter. Thereafter, Board filed another affidavit on 29th November, 2016 wherein Board presented its views on the action plan prepared by the Appellant CETP of October, 2016 and also observations of the Joint Committee constituted by MPCB in its meeting held on 19th November, 2016. The Joint Committee has recommended the following suggestions:

i. DECTP members (chemical units) shall not discharge treated/untreated effluent/ concentrated COD streams/solvents to common sewer, which in turn affects the performance of DBESA CETP. Each unit generating high COD stream shall have arrangements to segregate and provide on-site treatment/ disposal at CHWTSDF.

ii. DCETP shall explore possibility of collection of effluent considering compatibility of waste using dedicated tankers under sole supervision and control of DBESA CETP management directly from the member industries following strict management practice, which will include provision of one/two days holding tank (s) for effluent by each member industry under lock & key, transport effluent to DCETP as per properly designed treatment scheme by CETP operator through the GPS enabled robust third party tracking system in line with ICC-Chemical tracking system.

iii. DCETP shall use sewage from MIDC residential area only for seeding purpose and / or to contain extent nutritional augmentation only and shall not use sewage directly from nearby nalla for dilution purpose.

iv. DCETP Action Plan for CETP improvement is by & large acceptable, however, it needs to submit concrete proposal for collection of effluent by using GPS enabled tracing system with timeline & budget provision.

v. In the meantime, the DCETP may be allowed to take 25% i.e. 0.35 MLD and initiate process of stabilization of treatment system initially for a period of 3 months.

Learned Counsel appearing on behalf of Respondent Board during the final arguments submits that these recommendations have been accepted by the Board. Respondent - MPCB has filed another affidavit on 23 rd February, 2017 wherein Board has given its detailed opinion on merger of two CETPs - DBESA and D-CETP. The relevant portion of the remarks of the opinion of the Board are reproduced below:

"Remark

• Hence there is significant difference in the inlet of both CETPs therefore noncompliance was observed at DCETP since the designed inlet of DCETP is 2500 mg/L while DBESA design inlet is 1600 mg/L COD.

• As per the CPCB monitoring, the presence of recalcitrant COD in the outlet of DCETP which will be only diluted in the DBESA since the treatment scheme is similar to the both places. If load is increased to DBESA, there is a possibility that DBESA may become noncompliance due to over hydraulic load & pollution load.

• Merging of the two CETPs may increase the inlet COD of DBESA to 300 mg/L which is presently designed for 1600 mg/L & proposed upgradation is for 2500 mg/L (approved from NEERI & MIDC)

• Hydraulic capacity of DBESA is presently not adequate to handle additional 1.5 MLD effluent from DCETP.

• The existing infrastructure at DBESA is majorly for the treatment of the textile effluent besides that they also receive the treated effluent (.975 MLD from Gharda & Evonik) from large scale chemical industries which achieves the consented standard.

• The technological set up in the DBESA is different from the DCETP since DCETP has additional bio towers which helps in better oxidation.

• The DCETP effluent carries more soluble COD which will add direct load to the bio reactors of about 4.5 Tons COD per day operating at DBESA whereas DCETP has bio tower prior to bio reactor where pollution load is reduced considerably."

Before dealing with the issues raised in the appeal, it would be necessary to describe the present Effluent collection and treatment system at Dombivli industrial area. The Dombivli industrial area has been developed by State of Maharashtra as one of the major industrial zones in the State to accommodate various types of industries, predominantly chemical and textile industries. The industrial area is divided into two phases. In Phase-I, the CETP commonly known as DBESA having installed capacity of 16 MLD with 1600 mg per litre as inlet COD has been commissioned and in operation. This CETP is mainly for the textile industries.

However, in Phase-I of the industrial area there are 29 chemical industries which are generating about 1.18 MLD of industrial effluent. There are about 113 textile industries generating 9.05 MLD of industrial effluent. This industrial waste generated from both chemical and textile industries is collected through a common underground effluent collection system to a sump from where this waste is pumped as an inlet to the DBESA CETP. It is pertinent to note that the 29 chemical industries referred above are member of Appellant D-CETP and not of this DBESA CETP, though their waste is taken to the DEBSA CETP through the sump for treatment and disposal.

The Phase-2 of Dombivli industrial area also accommodates both chemical and textile industries. The CETP in the present appeal i.e. DCETP is operational in this phase which is designed for 1.5 MLD of industrial effluent with 2500 mg/lt as inlet COD criteria. There are 90 member chemical industries of this CETP generating 0.657 MLD of industrial waste in this Phase-2. There are also 34 textile industries generating 5.5 MLD of industrial effluent. The effluent from these chemical and textile industries is collected through a common underground effluent collection system in a effluent collection sump in this phase and from there, about 1.5 MLD is pumped as inlet to the Appellant D-CETP for treatment and disposal.

The balance industrial effluent, about 5.5 MLD, is lifted from this sump and taken to the effluent collection sump located in Phase-I for further treatment in the DBESA CETP located in Phase-I of the industrial area.

From the above discussion, it is manifest that there is an intrinsic system of effluent collection and its apportionment between two CETP existing in the industrial area. Needless to say that with the present combined effluent collection and distribution to the CETP's, the entire waste from the chemical and textile industries is getting mixed and then pumped to the two CETPs without any segregation of the effluent based on the membership of the CETPs. The Tribunal had considered the performance of the CETPs in this industrial area in OA No. 37/2013 and had taken a serious view of the non-compliance of CETPs for a very long time. Not only that, considering the regular and unabated pollution being caused by these CETPs, the Tribunal had even issued show-cause notices to the MoEF and CPCB for not taking any effective intervening action. Admittedly, this action of the Board which is challenged in this appeal is in consequence to such strong view taken by the Tribunal.

It is necessary to consider the performance of the present D-CETP in the context of previous litigation. The Respondent Board had issued the Appellant D-CETP and also many of their member industries several notices, interim directions etc. Perusal of record would show that various notices and directions have been issued to Appellant D-CETP in a short period of time. Some of them are summarized below:

a. MPCB letter No. MPCB/ROK/TB/SCN/383 dated 24-5-2016 for closure of DCETP and member industries.

b. Proposed direction under section 33(A) of the Water (P&CP) Act, 1974 & under section 31 A of the Air (P & CP) Act, 1981 dated 03.02.2016 issued by Regional Officer, Kalyan.

c. Prosecution notice u/s 43, 44 read with section 24, 25/26 Water Act (P & CP) 1974 dated 02.04.2016 issued by Member Secretary MPCB.

d. Direction under section 33 (A) of the Water (P & CP) Act, 1974 & under section 31 A of the Air (P & CP) Act, 1981 for installation of SCADA dated 22.04.2016 issued by Member Secretary MPCB.

e. Direction under section 33 (A) of the Water (P & CP) Act, 1974 & under section 31 A of the Air (P & CP) Act, 1981 with respect to short term and long term measures dated 09.05.2016, issued by Regional Officer, Kalyan.

f. Proposed direction under section 33(A) of the Water (P & CP) Act, 1974 & under section 31 A of the Air (P & CP) Act, 1981 dated 20.05.2016 issued by Regional Officer, Kalyan.

g. MPCB letter No. MPCB/JD (WPC)/CD/TB-2646 dated 02.07.2016 for closure.

It is a matter of concern that the Board at its various levels including Regional Office and the Head Office had initiated separate and parallel legal proceedings and their seem to be absolute lack of co-ordination in taking a principled and unified approach by the Board to deal with this serious issue of pollution. Still, however, the Board seems to be in the dilemma about the steps required to be taken to improve the performance of the D-CETP. It is an admitted fact that the Appellant CETP has been designed with certain inlet effluent parameters i.e. BOD and COD. The MPCB is on record that the industrial effluent which is coming to the sump no. 2 i.e. an inlet to the Appellant D-CETP regularly has a very high COD and BOD. Such inlet quality, obviously, is a result of unauthorized and indiscriminate discharge of high concentration effluents by the industries in the catchment of Sump No. 2. MPCB has given consent to the industries to discharge their effluent strictly as per their consented standards and conditions; and one of the conditions for the small scale chemical industries is to discharge the effluent well within the design inlet criteria of the CETP. The medium and large scale industries are required to have their own ETPs and discharge the effluent as per industry specific parameters. Obviously the industries located in this Phase -2 are not complying with such condition which is resulting in high BOD and COD at Sump No. 2.

Now the question which needs to be considered is to whether the Appellant D-CETP can be held responsible for such an act of a few or many of their member industries or other non-member industries located in the catchment of Sump no. 2? Moreover, whether only such member industries of D-CETP located in catchment of Sump-2 are responsible for this high BOD/COD observed at Sump-2?

It is an admitted fact that all the industries are required to obtain consent to operate from MPCB and are required to perform within the standards and conditions prescribed in the consent individually granted to the industry. The CETP is required to treat the waste received from its member industries as per the inlet and outlet standards as prescribed by the Board. The CETP do not have or exercise any statutory control over the member industries to regulate the discharge, except enforcing their contractual relationship with their members to accept a particular type, quality and quantity of waste. Obviously, the MPCB which is a statutory authority under the environmental regulations is responsible to enforce the provisions of Water Act and regulate the discharge of effluents from individual industries, and has a lion's share in such a failure to achieve the enforcement of the discharge standards by the industries. No doubt the CETP is also responsible in a way that they are not able to control or influence their member industries from discharging untreated effluent into the sump. Neither, they have taken any proactive steps for identification and disclosure of rogue industries which are affecting the entire CETP operations resulting into such mess.

At the same time, we are also concerned with the fact that there are about 29 Member industries of the Appellant CETP which are located in the Phase-I and contribute to another CETP i.e. DBESA. We fail to understand why the Board has selectively taken action against the Appellant CETP which is getting a feed from Sump No. 2 and avoided taking any action against one or all in the industry catchment of Sump No. 2 in phase 2 i.e. 90 chemical industries and 34 textile industries which are contributing their effluent to the Sump-2. In fact, they are the generators of the industrial effluent affecting the CETP operations.

At the same time, it is also not very clear why the 29 chemical industries who are members of the Appellant CETP but are sending their industrial effluent to another CETP i.e. DBESA being closed by the Board though they are not sending their waste to the CETP in question. Considering such circumstances, the impugned action seems to be a reactive measure by the Board in order to show their effort to tackle the pollution in Dombivli area. It would have been more prudent if an integrated and holistic approach would have been taken by the Board in view of the fact that the waste from both the phases are getting mixed and then treated through different CETPs.

For this very reason, we had asked the Board to ponder over the prayer of the Appellant for merger of both the CETP. The MPCB has come out with the negative opinion as submitted vide affidavit dated 22nd February 2017 by the Regional Officer of the Board at Kalyan. He has given some specific reasons which have been listed above and main reason quoted is that the design inlet criteria's are different for both CETPs. At the same time, it is an admitted fact that the effluent from both the phases is getting mixed and the wastes from the member industries are not strictly treated by their respective CETP, which would necessitate the reconsideration of such opinion.

It is an admitted position that the Appellant D-CETP has failed to perform satisfactorily as per the standards prescribed over a very long period in spite of various directions by the Board as well as the Tribunal and, therefore, the MPCB seems to have been forced to take the impugned decision, though a more integrated and holistic approach would have been more appropriate in the present case. Still, however, considering the fact and circumstances of the matter, we do not find any reason to disbelieve the intentions of the Board to discipline the effluent management system in Dombivli by taking such drastic action. In fact, this is the first time when any CETP has been closed for non-performance with an expectation and hope that such a strong action taken by the Board would work as a deterrent for other CETPs to perform efficiently.

The learned Counsel appearing for Appellant D-CETP while admitting lapses from the Appellant D-CETP assured to take all such measure as directed by MPCB and the Tribunal to improve their performance in a time bound manner under strict supervision of MPCB. At the same time, he expressed the grievance that the other CETP in the industrial areas i.e. DBESA is also not performing as per the standards of MPCB though no such action has been taken by MPCB against that CETP. The learned Counsel for MPCB submits that Board will take necessary action as per law in the case if DBESA is not meeting the standards. We are not inclined to enter into this controversy as presently we are in appeal action where the scope of proceeding is very limited. But, we would like to record that the Board needs to take a consistent and transparent approach while enforcing the regulations uniformly.

There is catena of judgments related to need of effectively controlling the industrial pollution. Hon'ble Apex Court in Civil Appeal No.6776 of 2009 Tirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars Protection Association and Ors. has held that:

"15. In Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212 this Court ruled that once the industrial activities carried out are found to be hazardous or inherently dangerous, the person carrying on such activities are liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying out his industrial or commercial activities. Therefore, the polluting industries are absolutely liable to compensate for the harm caused by it to villagers or other affected persons of the area, to the soil and to the underground water and hence, the industry is bound to take all necessary measures to prevent degradation of environment and also to remove sludge and other pollutants lying in the affected area. As the liability of the polluter is absolute for harm to the environment it extends not only to the victims of pollution but also to meet the cost of restoring the pollution free environment.

In Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715; this Court considered various constitutional provisions including Articles 47, 48-A, 51-A(g) and came to the conclusion that it is the duty of the State to protect and preserve the ecology, as Article 21 of the Constitution guarantees protection of life and personal liberty and every person has a right to pollution free atmosphere. Therefore, the "precautionary principle" and the "polluter-pays" principle have been accepted as a part of the law of the land being the part of environmental law of the country.

Similar view has been reiterated in People's Union for Civil Liberties v. Union of India and Anr. (1997) 3 SCC 433; A.P. Pollution Control Board v. Prof. M.V. Nayudu AIR 1999 SC 812; and M.C. Mehta v. Union of India (2001) 9 SCC 142, observing that environment and ecology are national assets. They are subject to intergenerational equity. The sustainable development principle is a part of Articles 21, 48-A and 51-A(g) of the Constitution of India.

In M.C. Mehta v. Union of India (2004)12 SCC 118 this Court explained the scope of "precautionary principle" observing that it requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment. The concept of "sustainable development" has been explained that it covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs. It means the development, that can take place and which can be sustained by nature/ecology with or without mitigation. Therefore, in such matters, the required standard is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. The development of the industries, irrigation resources and power projects are necessary to improve employment opportunities and generations of revenue; therefore, cannot be ignored. In such eventuality, a balance has to be struck, for the reason that if the activity is allowed to go, there may be irreparable damage to the environment and there may be irreparable damage to the economic interest. A Similar view has been reiterated by this Court in T.N. Godavaram Thirumulpad (104) v. U.O.I. and Ors. (2008) 2 SCC 222; and M.C. Mehta v. Union of India and Ors. (2009) 6 SCC 142.

In case in spite of stringent conditions, degradation of environment continues and reaches a stage of no return, the court may consider the closure of industrial activities in areas where there is such a risk. The authorities also have to take into consideration the macro effect of wide scale land and environmental degradation caused by absence of remedial measures. The right to information and community participation for protection of environment and human health is also a right which flows from Article 21 vide Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group and Ors. AIR 2006 SC 1489; T.N. Godavaram Thirumulpad v. UOI and Ors. (2002) 10 SCC 606; Research Foundation for Science Technology Natural Resource Policy v. UOI and Ors. (2005) 10 SCC 510; N.D. Jayal and Anr. v. UOI and Ors. AIR 2004 SC 867; M.C. Mehta v. Kamal Nath AIR 2002 SC 1515; Mrs. Susetha v. State of Tamil Nadu and Ors. AIR 2006 SC 2893.

Undoubtedly, there has been unabated pollution by the members of the Appellant Association. They cannot escape the responsibility to meet out the expenses of reversing the ecology. They are bound to meet the expenses of removing the sludge of the river and also for cleaning the dam. The principles of "polluters-pay" and "precautionary principle" have to be read with the doctrine of "sustainable development". It becomes the responsibility of the members of the Appellant Association that they have to carry out their industrial activities without polluting the water. A large number of farmers have suffered because of the pollution caused by them. They could not cultivate any crop in the said land. The committee had made a complete survey and assessed the loss and identified the families which are entitled to compensation. This Court only stayed the operation of the direction of the High Court to the extent that the units of the members of the Appellant Association would be closed on 31st July, 2007. The said interim order has been extended from time to time. None of the other directions have been interfered with. A period of more than two and a half year has been passed. Many steps have been taken but the Association has to ensure the compliance of the orders passed by the High Court fully and in order to do, it is desirable that the Association be giving three months time to ensure compliance of directions to make the CETPs functional and pay the balance amount for cleaning the dam and river and meet the compensation to the adversely affected persons within a period of three months from today. The Pollution Control Board is directed to ensure that no pollution is caused, giving strict adherence, to the statutory provisions."

Under these circumstances, particularly in view of non-compliance of consented discharge standards by the Appellant D-CETP over a long time, in spite of several opportunities given by the Board, we do not find any major irregularity or unreasonableness in the impugned order which will warrant the quashing of the impugned order.

At the same time, the closure of CETP is not a final solution to abate the pollution. The Tribunal has to apply principles of sustainable development; precautionary principle and polluter pays principle while adjudicating the matters. In the present case, the closure of CETP has resulted into closure of its 119 member industries which has affected the livelihood of the dependents. It would, therefore, be necessary to find a midway in pursuit of principles of sustainable development. We had, therefore, asked the Board and also Appellant to come out with a clear cut CETP improvement and upgradation program to ensure that its performance matches the consented standards. It is a matter of concern that in spite of significant time given right from August-2016 till date, we do not find any concurrence for upgradation which can assure compliance of standards on a sustainable basis. The Appellant had earlier submitted the proposal in October, 2016 which was further improved and a final action plan for upgradation of the CETP has been submitted vide affidavit dated 29th March 2017. The MPCB has also recommended allowing the CETP to take 25% effluent and stabilize the treatment system and gradually increase the hydraulic load depending upon the performances.

However, all such prepositions are practically difficult to achieve in view of the prevalent combined effluent management system in the industrial area where the waste from chemical and textile industries is getting mixed with each other and there is no segregation of industrial effluent in terms of CETP membership. We are not very confident about the technical feasibility of such a preposition of 25% hydraulic load which is canvassed by the MPCB. We are of the prima facie opinion that the best option could be merger of both the CETPs particularly in view of the fact that the DBESA i.e CETP in Phase-I is being upgraded with an additional capacity of 26 MLD over and above present 16 MLD capacity. We can also note from the record submitted by the MPCB that the proposed upgradation is designed for 2500 mg/lt inlet COD which is similar to the design inlet of Appellant D-CETP i.e. 2500 mg/lt.

It is also required to be noted that the capacity of D-CETP is hardly 1.5 MLD whereas after upgradation the capacity of DBESA would be about 42 MLD. The merger of CETP would also enable a single point discharge which can be effectively enforced by the MPCB. It is also noticed that a effluent disposal pipe line for disposing the treated effluent from both these CETPs after mixing them for further disposal at Khambalpada. We, therefore, do not see any reason for non-consideration of such merger proposal, unless there are any compelling technical issues requiring existence of separate CETPs. However, no such information or records have been placed before the Tribunal in the present proceedings. We are, therefore, of the considered opinion that MPCB needs to examine this option afresh, without any prejudice, with all technical information, for a sustainable resolution of effluent pollution problem in Dombivli industrial area.

Hon'ble Apex Court in Lafarge Umiam Mining (P) Ltd VS Union of India (2011) 7 SCC 338 has held that "as the sustainable development in an ongoing process, the ireradicable existence of conflict in decision making is recognized. Therefore, application of margin of appreciation doctrine and doctrine of proportionality in such cases is prescribed." It would be, therefore, be necessary for the Tribunal to bear such an approach in mind while passing the orders based on principles of sustainable development and precautionary principle.

Considering the facts and circumstances, and also the pleading and arguments advanced by learned counsels, we issue the following directions:

a) The present Appeal challenging the impugned order is dismissed.

b) The Appellant CETP through its member industries is allowed to initially operate with effluent intake of 25 % of the design hydraulic capacity and stabilize the CETP within one month. MPCB shall regularly monitor the performance of the CETP and after three months of the performance of this CETP with 25% hydraulic load, shall file a compliance affidavit with its recommendations for further increasing the capacity to the Tribunal.

c) Considering the pollution caused by the D-CETP an environmental compensation cost of Rs. 10 lakh (Rupees Ten Lakh) is imposed on Appellant D-CETP which shall be deposited with the MPCB to be used for environmental purposes including the plantation in the Dombivli industrial area.

d) We direct the Maharashtra Pollution Control Board through its Chairman to devise an integrated and holistic action plan for effluent management system in Dombivli industrial area including consideration of merger of the CETPs within one month and report the compliance to the Tribunal.

Appeal No.38/2016 stands disposed of with no cost. M.A. No.347/2016 no longer survives with the disposal of the main appeal and, therefore, stands disposed of accordingly.