Sanjay Kumar vs State Of U.P And Ors

The applicant has invoked jurisdiction of this Tribunal under Section 14(1) read with section 15, 16 and 18 of the National Green Tribunal Act, 2010, hereinafter referred to the Act of 2010 seeking specific direction of this Tribunal to direct the respondents to immediately stop the illegal discharge of untreated waste water in the pond situated behind the factory of Coca cola and exactly in front of some manufacturing units like M/s. R.A Enterprises, M/s. Manpack and within 0.5 Km distance from Shree Rathi Steel and other Plants, at Industrial Area Masuri-Gulawati Road, Bulandshahr Road Industrial Area, Dhaulana, District Hapur.

Consequently relief is also sought against all the respondents. In response to the notice, the Respondents have entered contest and have filed the detailed reply among whom we notice Respondnet no. 4 M/s Hindustan coco cola beverage pvt. Ltd who was impleaded subsequently on 11th December, 2015 is the contesting respondents.

Pleading were completed. We heard the council appearing on behalf of the applicant as well as respondents substantially for the purpose of deciding the moot question and issue that has arisen for construction i.e. whether the activities of Respondent No. 4 has caused immense damage to environment resulting from untreated waste water release in the pond behind factory and as to whether the act adversing impacted the environment. Besides, during the proceedings in this case after service vide order dated 31st July, 2015, the Respondent No. 3 - Uttar Pradesh Pollution Control Board was directed to inspect the places in question as referred to in para 3 of the application to verify as to whether release of untreated effluent factually referred in this application is being done and if so to collect samples of the effluent in so discharge in the pond. To cause analysis and submit the report thereto to the Tribunal.

The Learned Counsel appearing on behalf of Uttar Pradesh Pollution Control Board submits that the inspection has already done and they confirm the statement made by the applicant that effluents are being released and the samples of effluents have been collected by the Board.

The report was filed to which the applicant and the other respondents had clear access. We have referred to the findings of the report and the subsequent inspection has been conducted.

In the first report it is noticed the Uttar Pradesh Pollution Control Board has confirmed that the pond in existence across the road at the distance of 50 meters in front of M/s. R.A. Enterprises, C-89, Masoori Gulaoti Road, UPSIDC industrial area and M/s. Manpack, C-81, Musoori Gulaoti Road, UPSIDC near Hapur, both units were polluting at the distance of 1 Km. of the backside of the M/s. Cocacola Limited situated in Musoori Gulaoti industrial area. They have mentioned the length of the pond at 50 Meters indepth and 2 meters in width. Due the passage of time the pond reduced to 5,000 Kiloliter and the treated effluent of Hindustan Cocacola Limited the beverage was being discharged in the pond through 1 Km. long underground pipeline. No treated or untreated effluent of any unit was discharged in the pond.

The report therefore in pointed to the facts that the industrial discharge from the Hindustan Coco-Cola Limited was being released into the pond through a pipeline whereas the other industries named in the applicant were not discharging its pollutants.

Thereafter, the reply was filed to the report by the Respondent No. 4 and in view of the disputed question of certain facts and further steps taken by the Coco-cola company two more inspections were ordered by this Tribunal to be conducted by the joint inspection team of Uttar Pradesh Pollution Control Board and Central Pollution Control Board. Those reports are also on record.

However, as could be seen from the contention of the both sides, Respondent No. 4 did not seriously disputed that it was releasing the industrial discharge firstly into the pond but after treatment and thereafter it thought an alternative mode and methodology to avoid release of discharge into the pond and in this regard they were transporting the effluent through the tankers to a distance place. The statement of objection filed.

Subsequently, in terms of our direction dated 14th September, 2015 the joint inspection was conducted by the Central Pollution Control Board and Uttar Pradesh Pollution Control Board and the report has been filed. In the joint inspection report, the committee found:-

Location of pond to be 1.5 Kms. from the backside of wall of M/s. Hindustan Cococola Beverage Limited and the dimension of the pond are 55 x 55 meters x 1.75 meters which should accommodate 5,000 Cubic Mtrs. of effluent.

It is not a natural pond, but it is purely manmade pond.

Facilities constructed by M/s. Hindustan Cococola Ltd. to discharge its untreated effluent and besides the treated effluent through the well-established network of underground pipeline to the pond. The underground pipeline has multiple inlets and outlets which will collect effluent samples from several locations inside the factory.

The pond is receiving effluent from M/s. Hindustan Cocacola Limited, the design heights of the embankment did not permit entry of rainwater from the surrounding areas.

The pond in the surrounding values agricultural field and constructed with a view to the provide treated effluent to the farmers for irrigations

Maintenance of pond was not proper and location of the inlet and the outlets are the same order releasing immediate discharge and overflow of the effluent to be sort floating instead of providing of the request retention time.

The poor maintenance of the pond was promoting growth of mosquitoes, flies and coliform organism.

The inspection team found discharge effluent as follows:

a. Into the pond as well as the overflow of the pond outflow of the pond was broken and poorly maintained.

b. Outlet of the point at one location.

c. Above the discharge was ultimately merging and reaching near the industrial area through Kachha small drain.

d. The samples collected from the handpump located around the 100 meters from the pond and the results are given in the table, the BOD was exceeding to 48 mg/l instead of 30 mg/l standards. Other parameters were found to be within the prescribed limit.

e. The quality of groundwater tested from the handpump showed pH 6.5 and other components of the effluents were found to be in normal parameters but except were found to be in excess.

The findings of the joint inspection team recorded the following observations and makes overall recommendation as follows:-

"By and large the joint inspection team did not find alarming situation, but indicated that the maintenance of the pond must be properly planned and recommendations made should be complied with. However the company had filed its objection which is on record as seen from the proceedings of the state.

Subsequently, the company filed its own report of the analysis of the effluents and decided not to contest the proceedings as adverse litigation, but came forward with the pragmatic and workable preposition.

According, to the Respondent No. 4, it has decided to stop discharge of industrial effluent into the pond but to dispose it at the destination in Hasanpur Nallah through a tankers to which also the applicant objected on the ground it was likely to have direct and indirect effect on environment due to running of the vehicles engaged in such transportation.

Subsequently, one more proposal has been filed by the Respondent No. 4 in which they have stated that the earlier system of transporting the effluent through the tankers to the discharge point, though was practical but as a matter of choice they decided to lay a pipeline directly as may be approved by the Pollution Control Board and UPSIDC. It was brought to the notice of the Tribunal that they had contacted and interacted with UPSIDC for the best solution towards transportation and release or discharge from the industry and in this regard they obtained proposal from the UPSIDC about the route plan of the close pipe drainage upto the release point of the effluent into the Hasanpur Nalla.

According to the Respondent No. 4, UPSIDC has planed or rather proposed underground closed pipeline shown in a red line in the map produced to begin at point 2 and terminate at point 5 of Hasanpur Nalla. From point 1 the plant of M/s. Hindustan Cococola Company. Point 1 the effluent will go through pipeline upto point 2 which is existing. In a dotted Black line shone the present discharge of effluent through UPSIDC drain from point 2 to point 5 has been dispensed with. So by this it is pointed out that the discharge will not find its way into the pond which was the core contentions of the applicant. On this basis it was urged before us that the application should be dismissed as having been become infructuous, in view of the fact the M/s. Hindustan Cococola Private Limited was not releasing any effluent into the pond at present.

Be that as it may, incidentally this was brought to our notice that now the Respondent No. 4 plans to lay a separate pipeline, designed as individual pipeline for its factory which will be laid by UPSIDC from Point 1 to point 5 to carry directly through a shorter route and it will link from point 1 to the middle of Nallah and connect itself to the UPSIDC drain which ultimately enters the treated effluents into the Hasanpur Nalla.

The applicant has not disputed the persuasive contentions of the Respondent No. 4. The proposal placed by the Respondent No. 4, however is in knowledge of the applicant's counsel who have remained absent and even today with no exception they absent.

We have heard the Learned Counsel appearing for the Respondent No. 4. Uttar Pradesh Pollution Control Board and also the Learned Counsel appearing for Central Pollution Control Board. The statutories have not disputed the contentions so by the Respondent No. 4. In the present circumstances we could have proceeded with orders on the previous dates but with a view to give them one more opportunity, listed the case today, but the applicant has again remained absent and hence we have taken up this matter for disposal by disposal for dictation in open court. From the substances of the applicant's case and defense of the Respondent No. 4 and all other circumstances, we are satisfied that main allegation with which the applicant had sought action against Respondent No. 4 is now non-existent. Respondent No. 4 has shown the Tribunal the fact they are not polluting which is confirmed by the Pollution Control Board. They have stopped discharge of the treated and untreated effluent from the plant into the pond in question. The Respondent No. 4 is contention is that they were transporting its effluent through the tankers to Hasanpur Nallah, thereby preventing discharge into the pond which has not been disputed as well. The ultimate contention of the Respondent No. 4 that even transportation of effluent through tanker is dispensed with and now the Respondent No. 4 is implementing the project of laying of pipelines by UPSIDC for the purpose of flow of discharge from the plant into the drain connecting to Hasanpur Nalla as per the design of UPSIDC is not disputed. It is noticed that even though the present system of the Respondent No. 4 releasing effluent into UPSIDC drain which runs point 2 to point 5 will also be dispensed with after laying of the underlying pipeline from point 1 upto the point from where it is connected to the drain connecting the Hasanpur Nallah as shown in the sketch. It is also noticed Respondent No. 4 is now releasing their effluent through the internal pipeline from the plant up to point 2 from where it is connected UPSIC drain which is existing and ends at Hasanpur Nallah.

To this extent we find that this application does not survive for consideration in view of the subsequent development and clear undertaking by Respondent No. 4 that it will not release industrial discharge and/or in any other way become partly to causing of pollution to the water pond or impacting environment.

However, the second issue, we have noticed that in the joint inspection observations and recommendation have been made by the inspecting team.

The Learned Counsel appearing for the Respondent No. 4 admits the fact joint inspection committees report dated 05th July, 2016 contains several observations and recommendations. The Learned Counsel for the Respondent No. 4 upon instructions submits that the Respondent No. 4 having noticed the observations and recommendations which were communicate to it as recorded in the joint inspection report has complied with if and the unit is now compliant.

Mr. Pradeep Misra, Adv. Appearing for Pollution Control Board submits that subsequent inspection has not been conducted for ascertaining as to whether the recommendations have been complied with by the unit. In the circumstance we are of the opinion that though we are placing on record submission of Mr. Misra on instructions that the unit has complied with the recommendations, in the interest of environment, it is necessary that we direct fresh joint inspection by the UPSIDC and the Central Pollution Control Board of the unit, keeping in mind findings recorded the inspection report dated 05th July, 2016 and the submissions of the Learned Counsel that the unit is compliant and has complied the recommendation. The Learned Counsel for the Project Proponent is present. The inspection shall be conducted within one month from now and the report be filed thereafter after serving copy to Respondent No. 4.

With these observations we dispose of this application with no order as to cost. As and when the report is filed the same may be numbered separately and place it before the Tribunal.

In the normal circumstances with a view to ensure that the industrial activity does not impact the environment and keeping in mind the principle "Polluter Pays", reasonable amount had to impose as environmental compensation, for the past acts of the Respondent No. 4, but the Learned Counsel appearing for the Uttar Pradesh Pollution Control Board submits though finding of the first inspection report is not disputed, which attribute of pollution by the Respondent No. 4, as Respondent No. 4 has shown regard to law and has scrupulously complied with the directions as and when issued specially after the first inspection and shut itself down and remained so for quite sometime if may be exempted. He further submitted that in view of the facts Respondent No. 4 has now undertaken to ensure, no adverse effect would be caused to the environment by way of industrial activity by taking appropriate decision, and has agreed to bear with the cost of lying of the pipeline with UPSIDC which was not its primary responsibility, and has deposited Rs. 3.38 Crores towards the cost of lying of pipeline, no environmental compensation be imposed.

In view of this submission, though in normal circumstances we impose environmental compensation, but in this case we are dispensing it in the interest of justice.

With the above directions the Original Application No. 263 of 2015 stands disposed of. No order as to cost.

M.A. No 320 of 2016, M.A No. 1030 of 2016 & M.A No. 571 of 2017

These applications do not survive for consideration as the main application itself stands disposed of.

Thus the M.A. No 320 of 2016, M.A No. 1030 of 2016 & M.A No. 571 of 2017 also stand disposed of accordingly.