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Judgment
Highly polluting industries were established in Pattancheru Bollaram area having proximity to Hyderabad. The small scale industries could not set up full fledged Effluent Treatment Plant (ETP) and they discharged the partially treated effluents into the river, resulting in the pollution of Pattancheru area. The appellant Company was promoted jointly by Andhra Pradesh Industrial infrastructure Corporation Ltd. and was incorporated for establishing a common Effluent Treatment Plant (CETP) for treating the industrial effluents generated from the industries in that area. A Public Interest Litigation was filed by the Indian Council for Enviro Legal Action in W.P.(C) No.1056 of 1990 before the Hon'ble Supreme Court regarding the pollution problems in the area. The Hon'ble Supreme Court issued various directions in the matter. The Hon'ble Supreme Court directed the Central Pollution Control Board (CPCB) and the Andhra Pradesh Pollution Control Board (APPCB) to jointly submit an Action Plan for containing industrial pollution in Pattanchery village. Accordingly, an Action Plan was submitted including laying of a pipeline to carry the treated industrial effluents to the CETP run by the appellant. The Hon'ble Supreme Court approved the joint Action Plan by order dated 12.05.1998. The CPCB has submitted a comprehensive report on effluents management in Nakkavagu basin during March 1998, indicating four options.
The CPCB further stated that Option 1 contemplates that the industries will treat the effluents to certain specified norms before discharging into the CETP and thereafter, treat the effluents to sewer standards and discharge the treated effluents to the main sewer which leads to Sewage Treatment Plant (STP) and it provides maximum certainty as compared to the other options.
By order dated 06.02.2001, the Hon'ble Supreme Court accepted the revised joint Action Plan of the project of providing 18 km pipeline to take the treated effluents from CETP of the appellant to the Amberpet STP. The work of laying pipeline was completed in the year 2006.
Meanwhile, the matter was transferred to the Hon'ble High Court of Andhra Pradesh and the Hon'ble High Court constituted a Five Members Fact Finding Committee to submit a status report on the Terms of Reference (TOR), based on which appropriate orders could be passed. The Committee submitted the report to the Hon'ble High Court in March 2004. The Committee found that the four parameters fixed by the Hon'ble Supreme Court will give broad picture on the efficiency of a treatment plant. However, they are not sufficient to evaluate the treatment efficiency in clear terms. In furtherance of the orders of the Hon'ble Supreme Court, in a matter that originated under the Hazardous Waste Management (HWM), a Monitoring Committee was constituted to make inspections all over the country and the Monitoring Committee inspected the CETP of the appellant apart from the other areas and came up with a finding that all the measures of the CETPs are not environment friendly. The State Pollution Control Board, thereafter issued necessary directions on 05.08.2005 to the appellant based on the findings given by the Monitoring Committee, prescribing inlet standards {except dissolved solids (inorganic)} and outlet standards to the applicant.
Further directions were issued prescribing TDS (inorganic) standards at the inlet on 26.12.2005.
In Writ Petition (C) Nos.476 of 2005 and 441 of 2005, and batch cases the Hon'ble Supreme Court suggested that the CPCB and the APPCB shall meet to sort out the problem and submit an Action Plan. The CPCB and the respondent APPCB convened a meeting with officials including the appellant. After due consideration, a joint Action Plan was submitted to the Hon'ble Supreme Court. By order dated 17.07.2007, the Hon'ble Supreme Court accepted the joint Action Plan and directed the respondent Board to implement the Action Plan at the earliest possible time as per the schedule given in the Action Plan.
The said Action Plan provides that the CETP shall not discharge the treated effluents into the proposed 18 km pipeline and the CETP shall accept pre-treated effluents from the member industries with the prescribed inlet standards for further treatment and disposal. The inlet standards were fixed in the joint Action Plan. It was also made clear that if the CETP fails to comply with the above prescribed standards within the prescribed period of 30 days, legal action shall be initiated under Section 33-A of the Water (Prevention and Control of Pollution)Act 1974 for closure of the facility in the interest of public health and environment. The Action Plan provides for payment of penalty to CETP as well as the individual industries, in case of failure of the conditions. Under serial No.3 (a) of the finalised Action Plan, the penalty payable by the CETP is at the rate of Rs.300/- per KLD per day for violation of any parameters and the penalty for the member industries is Rs.30/- per KLD per day for violating the parameters.
The Board issued an order directing the appellant to pay a sum of Rs.2,32,62,000/- being the penalty for the period from November 2007 to October 2008. The appellant challenged the said order before the Hon'ble High Court in W.P.No.3510 of 2009, which was later transferred to the Tribunal and registered as Application No.92 of 2013. The appellant challenged the order of imposing penalty contending that the appellant is not responsible for the violation of the parameters of the inlet effluents and instead, the appellants are receiving partially treated wastes/effluent from the individual industries and therefore, the appellant cannot be made liable for the said violations and the penalty imposed is not legal. It is also contended that the Hon'ble Supreme Court has specifically provided that the outlet parameters are to be fixed only after connectivity is given and as connectivity was not given during the period, no penalty is payable or the violation of parameters of outlet.
The Tribunal considered both the aspects in the judgement dated 17.12.2014. The Tribunal held that the order of the Hon'ble Supreme Court dated 17.07.2017 would make it abundantly clear that "the outlet standards were to be complied with by the applicant after providing connectivity to the STP which is a part of the Action Plan. The appellant received partially treated waste water/effluent (inlet) from the industries after treating the same has to discharge the treated waste water/effluent (outlet) to the STP at Amberpet for further treatment, which in turn should discharge the same to Musi river. Since Amberpet is far away from the location of the applicant's CETP, a project of laying pipeline for a distance of 18 KM was undertaken by the HWSSB in the year 2001 and the same was completed in the year 2009. Thus, it is quite clear that during the relevant period, i.e.11/2007 to 10/2008 there was no connectivity. Thus, imposition of penalty for non- compliance of the outlet standards during the period, in the absence of any connectivity with STP will be contrary to the order of the Hon'ble Apex Court. Hence, the claim by the APPCB in that regard is liable to be set aside. "
Regarding the contention of the appellant that the appellant cannot be held liable for violation of inlet parameters, the Tribunal held that "All the above would clearly indicate that the applicant's CETP was a party to all the above meetings wherein it was decided that the applicant CETP should accept the effluent from the member-industries (inlet) not below the approved standards which are applicable to CETP as notified in Serial No.55 of Schedule I of the Environmental (Protection) Rules, 1986. Having accepted the same without any murmur and also to comply with the same within a period of 3 months therefrom for meeting the said standards, it would be futile on the part of the applicant to state that in so far as inlet is concerned, neither the applicant CETP has control and it is the responsibility of the individual units and it is the duty of the respondent/APPCB to monitor the compliance and the applicant cannot wriggle out by making such an unacceptable defence. In view of the above, the contentions putforth by the counsel for the applicant that imposing of penalty on the applicant /CETP after imposing penalty on the industries would amount to double jeopardy cannot be countenanced. Equally, the contention putforth by the applicant's side that the imposition of penalty at Rs. 300/- per KLD on the applicant is not only harsh but also contrary to the principles of justice since the respondent/APPCB has imposed penalty only at the rate of Rs. 30/ - per KLD for the industries for the non-compliance has to be rejected for the simple reason that this rate was actually fixed by a Committee which filed the JAP and was also approved by the Hon'ble Apex Court. Not only being a party to those proceedings, the applicant has not even raised its little finger either during the fixation of rates or when the JAP was placed and accepted by the Hon 'ble Apex Court. Thus, the Tribunal is unable to see any merit in those contentions.
Finding that the penalty of Rs.2,32,62,000/-imposed on the appellant for non compliance of standards for both outlet as well as inlets during the period from November 2007 to October 2008, it was found that the applicant is not liable to that portion of the penalty imposed for the said period. In so far as penalty imposed for the inlet for the said period, it is valid for the reasons discussed above. The impugned proceedings dated 06.02.2009 was set aside to the extent of penalty for non compliance of the standards for outlet during the period from November,2007 to October 2008 holding that the appellant is liable to pay the penalty in respect of non-compliance of the standards for inlet during the said period, to which extent the proceedings initiated by the 2nd respondent is valid and executable. The relevant portion of the judgment reads:
"Hence, it is declared that the impugned proceedings of the 2nd respondent dated 06.02.2009 is set aside only to the extent of the penalty for non -compliance of the standards for outlet during the period from November, 2007 to October, 2008 and thus the applicant is liable to pay the penalty in respect of non-compliance of the standards for inlet during the period November, 2007 to October, 2008 to which extent the proceedings of the 2nd respondent dated 06.02.2009 is valid and executable. The 2nd respondent/APPCB is directed to serve a fresh proceedings on the applicant in respect of the penalty for non-compliance for inlet for the period from November, 2007 to October, 2008 within a week herefrom and the applicant shall pay the said calculated amount within a period of 3 months from the date of service of the proceedings."
The appellant challenged that judgment before the Hon'ble Supreme Court in Civil Appeal No.3772 of 2015 and that appeal was dismissed by the Hon'ble Supreme Court on 11.05.2015. As directed by the Tribunal, Respondent No.2 reconsidered the penalty and by order dated 27.01.2015 , fixed the penalty for non-compliance of the standards for inlet for the period from November 2007 to October 2008 as Rs.8,460,000/-, namely, Rs.12,48,000/- for the month of April 2008, Rs.11,76,000/- for the month of May, 2008, Rs.11,10,000/- for the month of June 2008, Rs.11,64,000/- for the month of July,2008, Rs.1197,000/- for the month of August 2008, Rs.12,72,000/- for the month of September, 2008 and Rs.12,93,000/- for the month of October 2008.
Therefore, in exercise of the powers conferred under Section 33-A of the Water (Prevention and Control of Pollution) Act 1974, the Board directed the appellant to pay the said penalty amount within a period of three months from the date of receipt of the order. The appellant, after the receipt of the order, sent a representation dated 02.03.2015 again disputing the liability to pay the penalty for violation of the inlet standards and additionally contending that the calculation of penalty is in correct and quantity of the outlet has been taken as quantity of inlet. Thereafter, another representation was sent on 15.07.2015 enclosing the inlet and outlet quantity during the relevant period and calculating the penalty based on the inlet quantity furnished, as Rs.70,68,000/- By order dated 13.04.2016, the Board rejected the contention raised in the representation and informed that the quantity of inlet calculated was not challenged before the Tribunal in the earlier proceedings. In any case, the penalty to the inlet effluents and therefore, reiterated the demand for payment of penalty of Rs.84,60,000/-. The appellant filed the appeal thereafter seeking direction to the respondents to recalculate the penalty amount as per inlet effluent quantity and adjust the demand for penalty against the payment already made by the appellant, company.
The case of the appellant is that they are liable to pay penalty only in respect inlet effluent quantity and the liability is only for the quantity of inlet effluents and not the quantity of water and sewage that flow into CETP. The Board has taken inlet of effluent received from member industries and added sewage quantity as total inlet quantity. What is being discharged from the outlet is not only the effluents but also the water and sewage and therefore, the liability is only to pay penalty for inlet effluents and if so calculated, the penalty is only to Rs. 2,53,60,000/- Therefore, the penalty is to be re-calculated.
The respondent filed the reply contending that the appeal is not maintainable. It is pointed out that the appellant is not entitled to set aside the order dated 13.04.2016 which indicate that it was only an order rejecting the contention submitted by the appellant and when the Board passed an order pursuant to the directions of the Tribunal in the judgement dated 17.12.2014 in Application No.92 of 2013. In compliance of the order of the Tribunal, as early as 27.01.2015 the Board passed an order recalculating the penalty as Rs.84,60,000/- and that order is not challenged in an appeal. The appellant challenged the order passed on the representation is not maintainable.
Learned counsel appearing for the appellant and the respondent were heard.
By order dated 27.01.2015, the Board imposed penalty on the appellant in conformity with the directions of the Tribunal in Application No.92 of 2013. By the said judgment, the Tribunal declared that the appellant is liable to pay the penalty fixed on the basis of joint Action Plan approved by the Hon'ble Supreme Court, at the rate of Rs.300 per KLD per day for the period from February 2007 to October 2008 for non compliance of the standards of the inlet, though the appellant is not liable to pay penalty for the non compliance of the standards for outlet during the said period. Confirming the penalty imposed by the Board for the non compliance of standards fixed for the inlet, the Board was directed to serve a fresh proceedings on the appellant in respect of the penalty for non compliance of standards for inlet for the said period within a period of one week and the appellant was directed to pay the said calculated amount within a period of three months. Though the appellant challenged that order before the Hon'ble Supreme Court by way of an appeal, the Hon'ble Supreme Court dismissed the appeal and therefore, the appellant is bound to obey the directions of the Tribunal given in Application No.92 of 2013. As rightly argued by the learned counsel appearing for the respondent, the appellant has no case in the Original Application No.92 of 2013, that the computation of the penalty for the non-compliance of the standards for the inlet is incorrect or that the penalty is claimed not only for the inlet effluents but also to the sewage and water, which is not liable. When the Tribunal had directed the Board to issue a fresh demand based on the penalty for the violation of non-compliance of standards for inlet alone, the Board served the demand calculating the penalty on the violation of the non-compliance of the standards for inlet on 27.01.2015, the appellant did not challenge the same, either on the quantum or the mode of calculation. The order passed on 27.01.2015 is definitely an appealable order. The appellant did not challenge that order. Even the representation disputing the liability and the mode of calculation was submitted after the expiry of the period for filing an appeal. As rightly pointed out by the learned counsel appearing for the respondent, the appellant challenged the judgment of the Tribunal before the Hon'ble Supreme Court only for the demand made under the Act on 27.01.2015. When that appeal was dismissed by the Hon'ble Supreme Court on 11.05.2015, the present appeal was filed thereafter on 13.05.2016, which in fact, was returned and resubmitted on 24.05.2016 and again returned for some defects and resubmitted on 14.06.2016 As on date, the order dated 27.01.2015 has already become final. The appellant cannot challenge that order under the guise of challenging the demand made thereafter by order dated 13.04.2016. Therefore, it can only be found that the appellant is liable to pay the amount demanded under the order dated 27.01.2015 as directed by the Tribunal in the judgment dated 17.12.2014. We find no merit in the appeal and therefore, it is liable to be dismissed.
The appeal is dismissed accordingly with no order as to costs.