Nitta Gelatin India Limited And Ors vs Thressiamma Mathew And Ors

By common Judgment dated 27.02.2017, Original Application Nos.305 of 2013, 309 of 2013 and 149 of 2015 were disposed of. The applications were disposed issuing 24 directions. The Review Applications are filed by Nitta Gelatin India Limited who was respondent Nos. 8, 6 and 5 respectively in Application Nos.305 of 2013, 309 of 2013 and 149 of 2015. The applicant in Original Application Nos.305 of 2013, 309 of 2013 and 149 of 2015 are respectively respondent No.1 in the Review Applications. Review Application Nos. 6, 7 and 8 of 2017 were filed to review the common Judgment in Original Application Nos. 305 of 2013, 309 of 2013 and 149 of 2015. The review applications to review is restricted to the direction Nos. xii, xv, xvi, xviii, xx and xxi.

The specific case of the review applicant is that they are aggrieved of the precautionary direction Nos. xii, xv, xvi, xviii, xx and xxi and the Judgment of the Tribunal in all other aspects are accepted.

The respective directions sought to be reviewed read as follows:

"Direction xv: The respondent industry shall re-lay the existing discharge pipeline, which takes the treated effluent from the ETP to the Chalakkudy river, above the ground level in a time bound manner. The re-laying of the discharge line shall be done in a way as to discharge the treated effluent upstream side, while making arrangement to draw fresh water from downstream side.

Direction xvi: The respondent industry shall take immediate steps for removal and safe disposal of unutilized sludge dumped at Kaliyapuram of Palakkad District, within four months from the date of this judgment. The industry shall also take steps for the removal and safe disposal of all sludge generated and stored within the premises of the industry, within a period of six months.

Direction xviii: The KSPCB shall amend the conditions in the Consent granted to the industry to include standards for TDS and Chlorides in tune with the standards prescribed for drinking water for the treated effluent discharged into Chalakkudy river, as it is a source of drinking water for the public.

Direction xx: The KSPCB shall also take steps to see that the sludge generated by the industry is not used for irrigation purpose in the food crops, in accordance with the instructions of the MoEF&CC.

Direction xxi: The KSPCB shall amend the condition in the Consent order for disposal of sludge to TSDF site.

Direction xii: The respondent industry shall phase out the usage of fire wood in the boilers and alternative eco-friendly fuel only shall be used. "

The case of the applicant is that direction No. xviii to the Kerala State Pollution Control Board (herein after mentioned as KSPCB), to amend the conditions of the Consent granted to the industry to include standards for TDS and Chlorides in tune with the standards prescribed for drinking water, is an apparent error on the face of the record. According to the applicant, vide GSR 801(E) dated 31.12.1993, Schedule VI of the Environment (Protection) Rules, 1986 were amended, deleting the parameters originally provided for TDS and Chlorides and thus subsequent to the said amendment, no parameters are prescribed for TDS and Chlorides and therefore no parameters could be fixed in the Consent order and therefore the direction to amend the consent order in the Judgement is erroneous. It is contended that when the parameters were deleted by the amendment, as Sub-Rule 3-A to Rule 3 specifically provides that the discharge of environmental pollutants from the industries, operations or processes shall not exceed the relevant parameters and standards specified in Schedule VI, the KSPCB cannot be directed to include parameters which are not there in Schedule VI. It is contended that though the proviso, empowers the State Pollution Control Board to prescribe more stringent norms for those parameters which are provided in Schedule VI, new parameters cannot be added and hence the said direction is to be deleted. The applicant would contend that as per the report of the NEERI, dated May 2014 the river water quality downstream of the discharge location of treated effluent indicates that no major impact is observed in the characteristics of river water with respect to major physico chemical parameters including heavy metals which are well within the acceptable limits of the Drinking Water Standards Specification and the report of analysis shows that the company does not contribute to the levels of TDS and Chlorides in the Chalakkudy river and therefore direction No. xviii is liable to be deleted as it is contrary to law. It is also contended that direction No. xv to relay the existing discharge pipeline above the ground level in a time bound manner in such a way to discharge the treated effluent upstream side, while making arrangements to draw fresh water from the downstream side, is impractical and it would only serve to incur hardships and expenses to the industry. It is also contended that the laying of pipe-line above the ground is not feasible due to the topography and the land-use pattern of the region. According to the applicant, majority of the pipeline would have to be taken through paddy fields, affecting its natural drainage and it is safer to carry the effluent underground pipeline as there has been continuous attempt to sabotage the pipe line by unscrupulous elements acting against the review applicant and exposed pipeline would become an easy target for such acts of vandalism. It is also contended that the general policy for laying pipe-line is to lay underground pipe-lines, as is seen in the case of oil and gas pipelines, municipal sewerage and water supply lines etc. The laying of ETP discharge pipeline above the ground upstream of the intake well is not practically possible as it may require acquisition of additional land, both private and public. The option to relocate the intake pump house also requires acquisition of land and major construction has to be taken through paddy field which is against the prevailing Wet Land Act and can obstruct the free flaw of water. It is further contended that the direction No.xvi to remove the unutilized sludge dumped at Kaliyapuram of Palakkad District is also contrary to the facts and the objections of the company. It is contended that the sludge generated from the company was being sold to persons who are willing to buy, as it could be used as raw material for bio-fertilizers. Thus the buyers of the sludge, purchased and removed them. Therefore, the applicant‟s company is not liable to remove the sludge purchased by the third parties. The report of the CPCB, based on which the direction to remove the sludge was issued, is not correct and the sludge satisfies the standards for „organic fertilizer‟ as per the Fertilizer (Central) Order 1985 and hence the said direction is also to be deleted. The applicant would also contend that the direction to phase out the usage of firewood in the boilers is also erroneous as it is an eco-friendly fuel and LPC/CNG are not available at Koratty and the company is using the waste generated from the wood intended for plywood manufacture as fuel and therefore the said condition is also to be deleted. The applicant would also contend that as the sludge is found to be non-hazardous, the direction to transport the same to the TSDF is not desirable and therefore the said condition is also to be deleted. With these prayers the applicant company filed the review applications to review the said directions.

Respondent Nos.1 to 3 filed a common reply contending that the review applications are not maintainable either in law or facts. It is contended that in terms of the judgment of the Tribunal dated 04.11.2015 in Review Application No.32 of 2015 in Original Application No.179 of 2014, the scope of review before the Tribunal is settled and the applications are only to be dismissed as they are not maintainable. It is also contended that directions xviii, xx and xxi are issued to the KSPCB and the KSPCB has no grievance and did not seek review of the directions and the applicant is therefore not entitled to seek review of the said directions. It is contended that the attempt of the applicant is to re-agitate and re-hear the matter which has already been concluded and there is no error apparent on the face of the record to invoke the review jurisdiction. It is contended that even if there is an error if it is not self evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22 (3) (f) of the National Green Tribunal Act as erroneous in law by itself is not a ground to review the judgment. It is contended that the Hon‟ble Supreme Court held that the Court of Review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein and review is possible only on three grounds i.e., (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant‟s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. The words "any other sufficient reason " must mean " a reason sufficient on grounds, or least analogous to those specified in the rule." A review is by no means an appeal in disguise and an erroneous decision is to be set aside by the higher forum, while an error apparent on the face of the record has to be corrected by exercise of .review jurisdiction. As by the amendment of the Order 47 Rule 1 of CPC " any other sufficient reason" has been deleted, the scope of review is further limited and there are no grounds to review the directions sought for. The respondents would contend that out of the 24 directions issued, 18 directions are to be complied by the applicant and the directions were not stayed and still the applicant has not complied the directions including those which are not objected to by the applicant. According to the respondents, the report submitted by the Central Pollution Control Board (CPCB) is the most authentic and legally binding Inspection Report. The directions are issued based on the said report and as the effluent is being discharged by the applicant into Chalakkudy river, which is a source of drinking water for the public, the respondents were directed to attain the quality of drinking water to the effluent discharge and the said direction was in public interest and therefore it cannot be deleted. It is contended that the contention based on the deletion of the parameters for TDS and Chlorides is untenable as that would mean the applicant company could discharge any amount of TDS and Chlorides into a source of drinking water. Having admitted that the Chalakkudy river is a source of drinking water, the applicant cannot be permitted to pollute the same by discharging the effluent not upto the parameter of the drinking water and therefore the direction to the KSPCB to prescribe the parameter for TDS and Chlorides is perfectly legal and correct and warrants no modification. It is also contended that the Foot Note to the Integrated Consent granted to the applicant company was that no other pollutants are permitted and therefore it is implied that the applicant company cannot discharge the TDS and Chlorides into the Chalakkudy river.

It is also contended that the ETP of the applicant has no technology to bring down the levels of TDS and Chlorides and they are only diluting the effluent with water prior to discharge so as to reduce the percentage of TDS and Chlorides and the report submitted by NEERI in May 2014 shows TDS 5474 - 8874, NEERI report dated January 2015 shows it 5710, NEERI report dated May 2016 shows it 1380. The report of the Central Pollution Control Board (CPCB) dated October 2016 shows it 4014, while the permitted standard is only 500 mg./ lit.. So also, while NEERI report of May 2014 shows chlorides 3298, NEERI report of January 2015 shows it 4125 and NEERI report of May 2016 shows it 549. As per the report of the CPCB in October 2016 it shows 2323, while the standard fixed for drinking water is 250 mg. / lit. As per the reports of NEERI and CPCB, the TDS and chlorides discharged per day into the Chalakkudy river is 55-64 tons to 25-17 tons of TDS and 20-68 tons to 14-57 tons of chlorides per day and hence the directions are warranted. It is contended that the said direction is the soul of the judgment and therefore the said direction cannot be deleted. It is also contended that the re-laying of the discharge pipeline was directed as the treated effluent is discharged into the middle of the river and the sample of the effluent cannot be collected from the middle of the river and in such circumstances, the directions are necessary and cannot be deleted. It is also contended that the direction to remove the sludge dumped at Kaliyapuram was issued in the best interest of the public and the said condition cannot be deleted as sought for. The respondents therefore contended that the review applications are to be dismissed.

The Secretary, Kadukutty Gramapanchayat, respondent No.5 in Application Nos.305 of 2013, 309 of 2013 and 149 of 2015 filed the common reply affidavit contending that the applications are only an abuse of process of law. It is contended that all the contentions raised by the review applicant were considered and decided and therefore they cannot be reviewed as sought for by the applicant and the remedy is only to file an appeal, if the applicant company is aggrieved by the directions in the judgment, which were issued applying the precautionary principles so as to protect and improve the quality of environment and preventing and abating the environmental pollution. It is contended that the directions are in tune with the report of CPCB which is the highest statutory authority for the environmental matters in India and the CPCB was directed by the Tribunal to conduct a fresh study and submit a report. It is contended that the attempt of the applicant is to re-hear and re-agitate the matter which is not legally permissible. It is further contended that as against the directions, the NEERI conducted the study after the discharge was received in the river and therefore the report of the NEERI cannot be the basis for any decision. It is held by the Hon‟ble Supreme Court that continuation of industrial activity is possible only when there is functional primary effluent treatment plants and setting up of common effluent treatment plant within the time limits and concerned Pollution Control Boards were directed to initiate action both civil and criminal and hence the directions issued by the Tribunal cannot be deleted as they are necessary for maintaining the environment and ecology. The direction to use eco-friendly fuel was fully justified and cannot be deleted. The direction to re-lay the pipeline was also necessary on the facts and circumstances. It is also contended that by dumping of unutilized sludge at Kaliyapuram of Palakkadu District, the applicant had denied the constitutional rights and civil rights of citizens of that area and the applicant has no right to perpetuate the environmental pollution caused and the Vigilance Court, Thirissur directed to register a crime against the applicant and to conduct investigation bearing in mind that "man is part of the mother nature" and the hazardous waste produced by the applicant company is causing danger to the health and environment. The Panchayat received a copy of letter dated 15.02.2016 issued by the Assistant Director of Agriculture addressed to the Principal Agriculture Office, Palakkad pointing to the fact that there is presence of harmful mercury and such material cannot be considered as organic manure and the people had blocked the vehicles carrying sludge of the applicant company and it was in clear violation and contravention of the Fertilizer Control Order, 1985 and therefore a stop memo was issued by order dated 04.09.2014. It is contended that the sludge dumped at Kaliyapuram is causing severe troubles to Scheduled Tribe Colony situated very near to the dumping yard and water from the dumping yard is percolating to a public thodu which terminates in Gayatri Puzha which is a tributary of Bharathapuzha. It is therefore contended that the direction to remove the sludge is perfectly correct and cannot be reviewed. The respondents also contended that the claim of the company that the TDS and Chlorides could be discharged into the river which is a source of drinking water, cannot be accepted and the sludge and slurry being discharged by the applicant is often seen on the surface of the river water near the manhole. The direction to remove and dispose of sludge at TSDF site is to protect the environment and to serve public interest and there is no valid ground to review the directions. It is therefore contended that the review applications are to be dismissed.

Learned counsel appearing for the applicant and the respondents were heard.

During the course of the argument, the applicant was asked about the feasibility of collection of treated effluent being discharged by the company into the middle of the river, as the pipeline carrying the treated effluent from the company is upto the middle of the river, and that too at more than 10 feet depth, the Managing Director of the applicant company filed an affidavit explaining that the effluent discharged from the company premises is on the southern side and immediately beyond the compound wall of the company is a PWD road and beyond which are paddy fields and the pipeline carrying treated effluent, passes under the PWD road and the paddy fields. The applicant undertook that the company is ready to provide a sampling and viewing point, inside the compound wall of the company. It is also submitted that access to the proposed facility can be provided from the PWD road on the southern side, to the KSPCB exclusively. It is also submitted that the said facility can be kept under the lock and key of KSPCB to provide direct access at any time. It is further submitted that the online monitoring system can be installed in the said facility. It is also submitted that the officers of the KSPCB can have access to the said facility at any time through the gate on the southern side for inspection and the review applicant shall abide by all the directions issued by the KSPCB, subject to its legal rights.

The point for consideration is whether there is any mistake or error apparent on the face of the record or any other sufficient reason to review the judgment as sought for by the applicant and if any review is warranted to what extent?

Under Section 19 (4) (f) of the National Green Tribunal Act, 2010, the Tribunal is specifically conferred with the power to review its order or judgment. Though the provisions of the Code of Civil Procedure stricto sensu are not applicable to the Tribunal, the principles to be applied are the same as provided in the Code of Civil Procedure. Hence the power of review available to the Tribunal, is to be exercised on the principles provided in Order 47 Rule 1 of Code of Civil Procedure. A review is not an appeal and can never be treated an appeal in disguise. If the error alleged is not self evident and can only be detected by a process of reasoning, it is not an error apparent on the face of the record. An erroneous decision can only be corrected by the higher forum when an error apparent on the face of the record can be corrected exercising the power of review. This Tribunal in S.P. Muthuraman Vs. Union of Indian and others (Review Application No.20 of 2015) considered this aspect in detail and held:

" This Tribunal has been specifically conferred with the power of review under Section 19(4)(f) of the National Green Tribunal Act, 2010 (for short „Act of 2010‟), though in terms of Section 19(1) of the Act of 2010, the Tribunal is not bound by the provisions laid down by the Code of Civil Procedure, 1908 and is to be guided by the principles of natural justice. Furthermore, Section 19(2) of the Act of 2010 confers the power upon the Tribunal to regulate its own procedure. To put it simply, the provisions of the Code of Civil Procedure, 1908 are stricto sensu not applicable to the Tribunal but it would be guided by the applied principles of the Code of Civil Procedure, 1908. Thus, when one has to examine the power of the Tribunal to review its decisions, it would be guided by the Principles underlining Order XLVII Rule 1 of the Code of Civil Procedure, 1908. In this Context it becomes necessary for us to examine the scope of reviews jurisdiction of the Tribunal as guided by the provisions of Order XLVII of the Code of Civil Procedure,1908. The Supreme Court of India in the case of State of West Benga and Ors v. Kamal Singh and Anr, (2008) 8 SCC 612 while examining the identical provisions existing in the Central Administrative Tribunal Act which are pari materia to section 19 of the Act of 2010. The Hon‟ble Supreme Court held as under:

Since the Tribunal‟s power to review its order/decision is akin to that of the Civil Court, statutorily enumerated and judicially recognized limitations on Civil Court‟s power of review the judgement/decision would also apply to the Tribunal‟s power under Section 22(3)(f) of the Act. In other words, a Tribunal established under the Act is entitled to review its order/decision only if either of the grounds enumerated in Order 47 Rule 1 is available. This would necessarily mean that a Tribunal can review its order/decision on the discovery of new or important matter or evidence which the applicant could not produce at the time of initial decision despite exercise of due diligence, or the same was not within his knowledge or if it is shown that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason, which, in the opinion of the Tribunal, is sufficient for reviewing the earlier order/decision.

The term „mistake or error apparent‟ by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgement cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgement/decision.

In Moran Mar Basselios Catholicos and Anr. V. The Most Rev. Mar Poulose Athanasius and Ors. 1995 (1) SCR 520, this Court interpreted the provisions contained in Travancore Code of Civil Procedure which are analogous to Order 47 Rule 1 and observed:

Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant‟s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, or least analogous to those specified in the rule."

Dr. Vincent Panikulangara, the learned counsel appearing for respondent No.1 in the review applications, the applicant in the original applications, argued that the attempt is to re-agitate and re-hear the matter which was heard in detail and disposed by the judgment and therefore the applications will not come within the purview of exercising the review jurisdiction.

Mr. Sheejo Chacko, the learned counsel appearing for the Kadukutty Grama Panchayat would also support the submission and would argue that the review applications are only to be dismissed.

Keeping in mind the limited ambit and scope of the power of review provided under Section 19 (4) (f) of the NGT Act, 2010, we have to consider whether there is any mistake or error apparent on the face of the record or whether there are other sufficient reasons to review any of the directions as contended by the applicant.

Direction No. xv is to the respondent industry to re-lay the existing discharge pipeline, which takes the treated effluent from the ETP of the industry to the Chalakkudy river, above the ground level in a time bound manner, in such a way as to discharge the treated effluent upstream side, while making arrangement to draw fresh water from downstream side. The argument of Mr. Anand, the learned Senior Counsel appearing for the applicant company, is that the re-laying of pipe-line as provided in the judgment is not feasible due to the topography and the land-use pattern of the region, especially when there were instances of damaging portions of the underground discharge pipe-line by miscreants. Learned counsel would argue that the said direction was issued so as to ensure the quality of the effluent being discharged from the company to the middle of the river and to verify the standard and the company is prepared to provide all assistance to the KSPCB to take the samples of the effluent being discharged at their choice, even from a place within the exclusive control of the KSPCB and if that could be assured there is no necessity for a direction to re-lay the pipe-line as provided under direction xv.

At the time of the arguments, the Managing Director of the review applicant company filed an affidavit undertaking that the applicant company is ready to provide sampling and viewing point, inside the compound wall of the company with exclusive access to the officials of the KSPCB from the PWD road on the southern side. It is also undertaken that the said facility can be kept under lock and key of the KSPCB to provide direct access to the officials at any time.

Dr. Vincent Panikulangara and Mr. Sheejo Chacko seriously opposed the submissions. According to the learned counsel, the said direction was issued with certain purpose which would be defeated, if the direction is to be deleted or modified. The argument is that as it now stands there is no means to collect the samples of the treated effluent being discharged from the company, as the discharge pipe-line takes the effluent to the middle of the river at a depth of about 10 feet, and any attempt to collect the sample of the effluent being discharged would be unsuccessful, as the effluent would mix with the river water at the discharge point.

In the judgment we have not expressly stated the reasons for providing the said direction. In fact that direction was pursuant to the suggestions in the report submitted by the CPCB. The Tribunal thought it necessary in the interest of justice to incorporate the said directions as at present it is not possible to collect the accurate representative samples of the treated effluent being discharged by the company into the middle of the river. If the quality of the treated effluent being discharged could be assured and the samples could be collected by providing a facility for collection of the treated effluent being discharged out of the company exclusively to the KSPCB, we find it not necessary to re-lay the pipe-line above the ground level. It is more so when it is likely to cause further complications, apart from the expenses. There is every chance for causing damage to the pipe-line, either by miscreants or otherwise. Additionally it may require acquisition of land including the portions of the paddy fields as the discharge pipe-line is laid under the paddy fields. Taking into consideration the animosity between the industry and the people of the locality, we find substance in the submissions that the re-laying of the existing pipe-line would result in much hardship and difficulties. It could be avoided, if there is a proper facility for collection of treated effluent within the exclusive control of the KSPCB.

In such circumstances, considering the undertaking given by the Managing Director of the Company and the necessity to guarantee the quality of the treated effluent being discharged by the company into the river, we modify and substitute direction No. xv is as follows:

The respondent industry shall provide a facility to the KSPCB to collect the samples of treated effluent being discharged from the company. Such facility provided to the KSPCB shall have exclusive access to them to the place where the facility is provided. The respondent industry shall provide such facility to the KSPCB, to keep it under their lock and key where they have direct access at any time of their choice. The online monitoring system shall be installed in the said facility connected to the KSPCB.

Direction No.xv shall be modified as above.

Direction No. xviii is to the KSPCB to amend the conditions in the Consent granted to the industry, to include standards for TDS and Chlorides in tune with the standards prescribed for drinking water, for the treated effluent discharged into Chalakkudy river, as it is a source of drinking water for the public. The argument of Mr. K. Anand, the learned Senior Counsel appearing for the applicant is that while providing the said direction, deletion of the parameters originally fixed for TDS and Chlorides in Schedule VI of the Environment (Protection) Rules, 1986 has not been taken into consideration and therefore there is an apparent error on the face of the record. The argument is that the parameters of TDS and Chlorides originally fixed in Schedule VI of the Environment Protection Rules were subsequently deleted vide. GSR 801 (E) dated 31.12.1993 and therefore subsequent to 1993, the KSPCB cannot fix any condition with regard to the parameters for TDS and Chlorides. Learned counsel argued that Sub-Rule 3-A to Rule 3, specifically provides that the discharge of environmental pollutants from the industries, operations or processes other than those industries operations or processes for which standards have been specified in Schedule I shall not exceed the relevant parameters and standards specified in Schedule VI and therefore when the parameters originally fixed for TDS and Chlorides were subsequently deleted vide GSR 801 (E) dated 31.12.1993, direction No. xviii is contrary to Rule 3 and therefore it has to be deleted. It is also argued that though proviso to Rule 3-A enables the State Boards to specify more stringent standards for the relevant parameters, it can provide such stringent standards only if there is a parameter provided in Schedule VI and when there is no such parameter, the State Boards cannot provide stringent standards by adding additional parameters which are not there in Schedule VI.

Learned counsel appearing for the respondents on the other hand argued that these directions are the soul of the judgement and hence the directions cannot be deleted as the judgement would lose its soul. It is also argued that no industry could be permitted to contend that they are entitled to discharge pollutants into the river, which is a source of drinking water and therefore the prayer to delete the said direction is to be rejected.

Rule 3 of the Environment (Protection) Rules, 1986 provides standards for emission or discharge of environmental pollutants. Sub-Rule (1) provides that for the purposes of protecting and improving the quality of the environment and preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in Schedules I to IV.

Sub-Rule (3) provides that the standards for emission or discharge of environmental pollutants specified under sub-rule (1) or sub-rule (2) shall be complied with by an industry, operation or process within a period of one year of being so specified.

Sub-Rule (3A) (i) provides the standards for emission or discharge of environmental pollutants, the standards for which have not been provided under Schedule I, Sub Rule provides that the parameters of the emission or discharge of environmental pollutants from the industries shall not exceed the relevant parameters and standards specified in Schedule VI. The proviso to the Sub-Rule enables the State Boards to specify more stringent standards for the relevant parameters with respect to specific industry or locations after recording reasons thereof in writing;

Sub-Rule (3A) (i) and (ii) reads as follows:

(3A) (i) Notwithstanding anything contained in sub-rules (1) and (2), on an from the 1st day of January, 1994, emission or discharge of environmental pollutants from the (industries, operations or processes other than those industries, operations or processes for which standards have been specified in Schedule I shall ) not exceed the relevant parameters and standards specified in Schedule VI;

Provided that the State Boards may specify more stringent standards for the relevant parameters with respect to specific industry or locations after recording reasons thereof in writing;

(ii) The State Board shall while enforcing the standards specified in Schedule VI follow the guidelines specified in Annexures I and II in that Schedule.

There is force in the argument of the learned Senior Counsel appearing for the applicant that the stringent standards which could be provided by the State Board in addition to the one in Schedule VI, could be only with regard to the parameters provided in Schedule VI. If that be the case, when Schedule VI does not provide a standard or parameter for a pollutant, by exercising the power provided under the proviso, the State Boards cannot provide a new parameter not provided in Schedule VI. But we cannot

agree with the submissions of the learned Senior Counsel that direction No. xviii is therefore to be reviewed.

As is clear from the admitted facts, the Chalakkudy river is a source of drinking water for thousands who reside near to the river. If there is a likelihood of polluting the river water, which is a source of drinking water of the people, for the public health, it is necessary to ensure that nobody discharges pollutants into the river so as to adversely affect the quality of the drinking water. Though by GSR 801 (E) dated 31.12.1993, the Ministry of Environment Forests and Climate Change (MoEF & CC) amended the Environment (Protection) Rules, 1986, the GSR does not show any reason for the deletion of the parameters originally provided under Schedule VI. The Notification GSR 801 (E) shows that column on Parameter, in the Environment (Protection) Rules, 1986 stands amended by deleting or substituting certain provisions. Under para 2 (d) (i) it is provided that in Schedule VI in Part-A-(i), Serial Numbers 4, 24, 25 26, 28, 31 and 40 and the entries relating thereto shall be omitted. Therefore, the standards originally fixed in Schedule VI with respect to Serial Numbers 4, 24, 25, 26, 28, 31 and 40 stand deleted. As a result there is no standard provided for TDS and Chlorides as they were deleted.

By virtue of Rule 3 of the Environment (Protection) Rules 1986 as amended the standards for emission or discharge of environmental pollutants from the industries shall be as provided in Schedule I or Schedule VI . If so the State Boards cannot fix a standard in respect of TDS and Chlorides. But question is whether it restricts the power of the Tribunal to fix a standard which is required to protect the environment and ecology. If such standard is to be made applicable to the discharge of the treated effluent into a source of drinking water, we cannot agree as the consequence would be disastrous. If there are 50 or 100 industries situated near the river and the water of the river is the source of drinking water for the residents living on the banks of the river as well as nearby Panchayats and all those industries are permitted to discharge high concentration of Chlorides and TDS into the river, by discharging the treated effluent into the river, the people would lose their source of drinking water. It cannot be permitted. It is for the very reason under direction No.xviii, it is provided that the standards prescribed for drinking water for the treated effluent being discharged by the applicant industry, shall satisfy the standard fixed for drinking water. Rule 3-A cannot be read as restricting the powers of the Tribunal to provide such direction for maintaining the environment and the quality of the river water, which is a source of drinking water.

Here it is relevant to mention that the State Board while discharging it‟s functions, has got power under Section 17 of the Water (Prevention and Control of Pollution ) Act, 1974 to lay down standards keeping in view the nature of effluents and tolerable limits of pollution permissible in the water body. Relevant portion under Section 17(1) of the Water (Prevention and Control of Pollution ) Act, 1974 are extracted below:

(f) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up for the treatment of water, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant of any consent as required by this Act;

(g) to lay down, modify or annul effluent standards for the sewage and trade effluents and for the quality of receiving waters (not being water in an inter-State stream) resulting from the discharge of effluents and to classify waters of the State;

(h) to evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soils, climate and water resources of different regions and more especially the prevailing flow characteristics of water in streams and wells which render it impossible to attain even the minimum degree of dilution;

(k) to lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair weather dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream, after the discharge of such effluents;

Even the Environment (Protection) Rules, 1986 provide powers to the State Board not to allow discharge of effluents into the water bodies if the quality of the water is likely to be affected. Proviso 4 of Annexure - I for the purposes of Parts A, B and C under Schedule-VI of Environment (Protection) Rules, 1986 bestow the State Board to regulate the discharge of effluents into the water bodies so that the quality of intended use of the receiving water is not affected. The proviso reads as follows:

"While permitting the discharge of effluents and omissions into the environment, State Boards have to take into account the assimilative capacities of the receiving bodies, especially water bodies so that quality of the intended use of the receiving water is not affected. Where such quality is likely to be affected, discharges should not be allowed into water bodies."

Chalakkudy river is a source of drinking water for a large number of people in Kerala and the industry can‟t be allowed to discharge effluents in such large quantity loaded with high content of TDs and Chlorides.

The argument of the learned Senior Counsel appearing for the applicant is that if the treated effluent to be discharged is to achieve the standards for drinking water, the expenses would be exorbitant. But nobody compels the industry to discharge the treated effluent into the river. The Industry is at liberty to use the treated effluent in the industry itself and thereby reduce the consumption of the river water. It is more so as it is already provided in the judgment that the industry shall achieve zero discharge. In such circumstances, we find no reason to delete or modify the said direction. Therefore the prayer to review direction No. xviii can only be rejected.

Direction No. xvi is to the respondent industry to take immediate steps for removal and safe disposal of unutilized sludge dumped at Kaliyapuram of Pakakkad District and also take steps for the removal and safe disposal of the entire sludge generated and stored within the premises of the industry. Direction No.xx is to the KSPCB to take steps to see that the sludge generated by the industry is not used for irrigation purpose in the food crops, in accordance with the instructions of the MoEF & CC The argument of the learned Senior Counsel appearing for the applicant is that the sludge is not a pollutant and in fact it can be used as organic manure and therefore the direction to the KSPCB is to be deleted. Learned Senior Counsel also argued that the sludge kept and dumped at Kaliyapuram of Palakkad District were purchased from the company and therefore it is not the property of the company and therefore the company cannot be directed to remove and dispose the same. We find no apparent error with regard to the direction to remove the sludge dumped at Kaliyapuram of Palakkad District as the MoEF & CC has already found that it cannot be used for food crops. In any event, even if it is taken that the direction is erroneous, it cannot be corrected in exercise of the powers of review, as it can be challenged only in an appeal and not in an application for review. We cannot agree with the submissions of the applicant that as the company had already sold the sludge, they cannot be directed to remove the sludge. No company is entitled to contend that a pollutant produced by the company, though sold to third party, cannot be directed to be disposed by the company which produced the pollutant. The burden is definitely on the company which produced the pollutant to dispose the same without causing environmental problems. In such circumstances, we find no reason to modify the Direction Nos.xii, xvi, xviii, xx and xxi. In the light of the finding, the prayer to review the direction Nos. xii, xvi, xviii, xx and xxi are rejected.

The review applications are allowed in part, Direction No. xv is modified by substituting Direction No. xv as follows:

The respondent industry shall provide a facility to the KSPCB to collect the samples of treated effluent being discharged from the company. Such facility provided to the KSPCB shall have exclusive access to them to the place where the facility is provided. The respondent industry shall provide such facility to the KSPCB, to keep it under their lock and key where they have direct access at any time of their choice. The online monitoring system shall be installed in the said facility connected to the KSPCB.

Parties to bear their respective costs. The Review Applications are disposed accordingly.