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Judgment
The application is directed against the proposal of respondents 2 and 4 to set up a Sewage Treatment Plant (STP) at Town Survey Nos.545/2, 552/8, 552/9 and 561, Ward No.16 of Karaikudi Town, Sivagangai District on the ground that the said respondents have not obtained Environmental Clearance (EC) under the EIA Notification, 2006. The prayer is also for direction against the Tamil Nadu Pollution Control Board (Board) to consider the proposal strictly in accordance with the siting criteria prescribed by the Board.
Karaikudi Municipality is a Special Grade Municipality situated in an area of 13.75 sq.km with a population of 1,67,014 as per 2011 census. According to the applicant, the Municipality does not have defined residential or commercial zones with the result, small industries, commercial establishments and residences are interspersed throughout the town. According to the applicant, when once the Municipality has proposed to launch STP it is necessarily to mix with other effluents and will not be a domestic sewage simplicitor. At present the Municipality is dumping garbage at T.S.No.468 and 469/1 for the last 30 years at Devakottai Rastha, Karaikudi without obtaining authorisation under the Municipal Solid Waste Rules, 2000 (MSW Rules), consent under the Water (Prevention and Control of Pollution) Act, 1974, (Water Act) Air (Prevention and Control of Pollution) Act, 1981 (Air Act) and EC under the EIA Notification, 2006.
There was no scientific manner in dumping waste which was objected to by the residents of the area. According to the applicant, the Municipality, instead of abating pollution, has decided to establish STP in this land which is in violation of Articles 14 and 21 of the Constitution of India and the STP is proposed to be set up in the midst of thickly populated residential area. The siting criteria for STP prepared by the Board has also been violated. There are 100 residential houses surrounding the STP site where 600 people are living. The land is only in the extent of 0.46 ha which is insufficient for the creation of 100 m buffer zone and other mandatory safeguards. The proposed STP is not 500 m away from the nearest house and nor a No Development Zone (NDZ) has been declared. There are places of worship located within 500 m. By virtue of the proposed STP noxious gases and Methane and other pollutants and bio aerosols are going to cause environmental hazard. According to the applicant, STP is declared as 'red' category by the State Pollution Control Board and Central Pollution Control Board.
The applicant also states that the Principal Bench of the National Green Tribunal in KEHAR SINGH VS. STATE OF HARYANA & OTHERS (Application No.124 of 2013 dated 12.9.2013) held that for establishment of STP, EC is required and in as much as EC has not been obtained, the proposed STP cannot be allowed. The applicant also referred to another judgment of the National Green Tribunal (South Zone Bench in A. GOTHANDARAMAN VS. THE COMMISSIONER, NAGERCOIL MUNICIPALITY & OTHERS (Application Nos.173 and 175 of 2013 dated 17.3.2015) wherein by following the judgment in Kehar Singh's case, the South Zone Bench held that EC is required for STP. The applicant has stated that by Notification dated 27.2.2015 the Municipality has given work order to TWAD Board to implement the process. The floating of tender without following mandatory permission required is not permissible in law. With various legal grounds in consonance with the above said facts, the applicant has filed the above application for the reliefs stated above.
The 1st respondent - MoEF & CC in its reply dated 17.10.2016 has stated that as per the EIA Notification dated 14.9.2006 prior EC is required for Common Effluent Treatment Plant (CETP) and Common Municipal Solid Waste Management Facility (CMSWMF) under Item 7(h) and 7(i) of the schedule to the notification, respectively. The reply specifically states that installation of STP is not covered under the schedule to EIA Notification, 2006 and therefore no EC is required for the said activity. However, it requires "Consent to Establish" and "Consent to Operate" from the State Pollution Control Board.
The 2nd respondent - Municipality for whose benefit the STP is proposed to launch, in the reply of July, 2016 has stated that in order to make a pollution free and healthy environment around the habitat of the people of Karaikudi Municipality, it was decided by the Government of Tamil Nadu to provide a full fledged underground sewage system for Karaikudi Municipality in Sivagangai District and accordingly administrative sanction was accorded for Rs.112.53 Crores on 24.12.2014. In so far as it relates to STP, whose main purpose is for treatment of domestic sewage, it neither falls under A or B category of the schedule to the EIA Notification, 2006 and therefore no EC is required.
TWAD Board viz., the 4th respondent is the executing agency for the Underground Sewerage Scheme (UGSS) for Karaikudi Muniipality. The STP has been designed adopting latest and modern technology of Activated Sludge Process (ASP) with Extended Aeration (EASP) considering the parameters of domestic sewage only. The industrial premises are not within the scope of the project and it is only the residential households, business establishments such as hotels, educational institutions will be provided with House Service Connections (HSC) strictly in accordance with rules and therefore there is no possibility of mixing of any industrial effluent in the proposed UGSS. Further, it is the case of the 2nd respondent that within the limits of Karaikudi Municipality there are no heavy, medium or small scale industries.
It is stated that the proposed site for construction of STP belongs to the Government and by the proceedings of the District Collector, Sivagangai District dated 12.6.2014, an extent of 1 ha and 6632 sq.m of land in Survey No.552/8 has been allotted for STP and the same has been carried over in the government records. In addition to that an extent of 1 ha and 1960 sq.m of land comprised in Survey No.561 has also been classified for STP. The land in Survey No.545/2 having an extent of 0.4604 ha also belongs to the Commissioner of Karaikudi Municipality. Therefore, the extent stated by the applicant is totally false and the site selected for the construction of STP in Survey Nos.545/2, 552/8, 552/9, 561 was inspected by the Board and NOC was issued on 21.8.2014.
It is further stated that there are no residential houses within a radius of 500 m from the proposed STP project and it is located about 1.5 km away from the residential area of Karaikudi Municipality and there are no households in the vicinity of the selected site for about 150 m from the boundary of the site. It was in fact based on the said inspection the Board has issued NOC. Therefore, the total extent of land allotted for the proposed STP project is 2.3531 ha (5.81 acres) and not 0.46 ha as stated by the applicant.
It is reiterated that the technology adopted for the construction of the STP is the latest one and eco-friendly without causing any harm to the surroundings and therefore there is no violation of Articles 14 and 21 of the Constitution of India. It is further stated that Chlorine gas will be used in the STP to disinfect the treated effluent by killing harmful bacteria. Utmost care and precautionary measures will be taken in the Chlorinating system as per the rules. Steps will be taken for providing land around the STP site for developing vegetation. NOC was granted by the Board much before the sanction of the scheme on 21.8.2014 and thereafter some unauthorised buildings would have come around the proposed site. The selection of site itself was transparent and it was only after consultation process and considering all alternatives.
It is the case of the 2nd respondent - Municipality that the raw sewage to be received in the STP will not be in anaerobic or septic form but in a dynamic form suitable for ASP with extended aeration technology. The entire collection of sewage from the individual households will reach STP without any stagnation and within the prescribed time and in case of blockage the same will be cleared by the latest technology. There is no possibility of release of any noxious gases like H2S, Methane, bio-aerosols and pollutants beyond the prescribed limit. While stating that the application has been filed with all imagination, it is stated that the TWAD Board itself has successfully maintained STP based on aeration technology from 1.2.2013 at Chinnamanur Municipality in Theni District without causing any hazard to the households situated nearby.
The classification of STP as 'Red Large' by the Board is only for the purpose of effectively monitoring the function of the STP after commissioning. However, the STP has not been so far categorised as red in any of the Government of India Notification. In continuation of the NOC already obtained from the Board, the application for consent to establish is under process. It is stated that the EIA Notification, 2006 applies only in respect of trade and industrial effluents and in so far as it relates to the STP different standards are prescribed by the Board and it was at a preliminary stage the Board has issued NOC. It is reiterated that the household connection in the sewage system will be strictly given for the households only and the same will not be used for industry and there are no other industries in existence within the Karaikudi Municipal limits. It is reiterated that industries either small or large scale, will never be given any connection into the system and open drains or gutters will not certainly be linked with the system and therefore there is absolutely no chance of mixing of industrial or trade effluents with the domestic sewage.
Sewage collected will be treated properly in the STP as per the rules laid down by the authorities like Tamil Nadu Pollution Control Board, Central Pollution Control Board and MoEF & CC. The treated effluents released from the STP will be as per the Board norms having BOD less than 20 and COD less than 30. There will be no pathogenic organisms like E.Coli etc., and there will not be any health hazard. Therefore, the proposed STP for Karaikudi Municipality is environmentally safe and it cannot be treated as CETP as enlisted in Sl.No.7(h) of the schedule to the EIA Notification, 2006 which require prior EC from SEIAA. In this case it is the Board which has the authority to give consent and the construction of STP will be commenced after the consent to establish is obtained and the operation will be followed after consent to operate is granted by the Board.
The treated effluent from the STP can be used for agricultural purpose and in fact the treated effluent released from Chinnamanur STP is used for farming without any hazard and also giving more yield. While it is true that the discharge of untreated sewage will cause injury to the environment, it is the household sewage which would satisfy the conditions of the regulatory authority which is going to be released from the STP will not be harmful to any one. It is reiterated that no trade or industrial effluents will be linked with the domestic sewage collection system. The environmental effects of the STP are well known and the remedial measures as recommended by the Board are incorporated as EMP in the project report and therefore there is no separate EIA required for STP. It is also stated that all the procedures required for establishing STP in Tamil Nadu are being followed for this STP also. The work order was issued only after obtaining NOC from the Board and consent to establish from the Board is under process. The project involves both the execution of collection system work viz., laying of sewer main in all streets including construction of manholes. The STP project, on completion, will result in improving the health conditions and standard of living of the people in the area.
The 3rd and 4th respondents viz., TWAD Board which is the executing agency of the STP project by the Karaikudi Municipality, in its reply dated 24.5.2016, while reiterating that the proposed project is environmental friendly, stated that the administrative sanction has been obtained from the Government of Tamil Nadu for a sum of Rs.112.53 Crores. It is also the case of the said respondents that as per the EIA Notification, 2006, STP does not fall either under A or B category and therefore no prior EC is required. It is also reiterated by the TWAD Board that the proposed STP is designed based on the latest and modern technology of Activated Sludge Process (ASP) with Extended Aeration (EASP) considering the parameters of domestic sewage only and the industrial premises will not come under the scope of the project. While reiterating that the Board has inspected the place concerned and issued with NOC on 21.8.2014 even before finalisation of the project, it is stated that the proposed STP is located about 1.5 km away from the residential area and the total extent is 2.3531 ha (5.81 acres) as stated by the 2nd respondent. It is also stated that while executing the work Chlorine leak detection and warning system will be installed and there will be no disastrous consequences. Apart from the fact that no bio-aerosols will be let out to harm the children, women or any other and the technology to be adopted is far more superior and advance.
While reiterating the averments made by the 2nd respondent - Municipality and stating that alternatives have been considered before choosing the present site, it is reiterated by the TWAD Board that the Board itself has executed the said advanced system in Chinnamanur Municipality,Theni District and the same is being appreciated by the people to a large extent without causing any harm to any one. It is also stated by the TWAD Board that categorisation of the STP by the Board as 'Red Large' is only for close monitoring purpose and the Government of India has not categorised the project as red category. It is also reiterated that house service connection in this sewerage system will be strictly given for households only and there is absolutely no chance of mixing of industrial or trade effluents with the domestic sewage. The effluents released from the STP will be as per the Board norms having BOD less than 20 and COD less than 30. The TWAD Board also reiterates the statement made by the Karaikudi Municipality that there is no trade effluents linkage with the domestic sewerage system and therefore prior EC is not a mandatory requirement for STP. It is also stated that the work of STP will be started only after 'consent to establish' obtained from the Pollution Control Board. It is also stated that blowers with advanced technology will be installed to avoid any noise pollution. It is also stated that the proposed site for STP has not been contaminated by the solid waste dumped by the Municipality.
In addition to the reply, the TWAD Board has also given the brief details of UGSS to Karaikudi Municipality which are as follows:
"Brief salient details of UGSS to Karaikudi Municipality Collection System
Total length sewer : 144.653 Kms
(Size 150 mm dia to 300 mm
Stoneware pipe and size 200
mm to 900 mm RCC pipe)
Total No. of Manhole : 5559 Nos.
House Service Connection : 31725 Nos. (30225 - Domestic and 1500 - commercial)
Main pumping station (MPS)
Screen well : 1 No. of 9.90 m dia x 4.67 m depth below GL
Grit well : 1 No. of 7.40 m dia x 6.01 m depth below GL
Suction well : 1 no. of 10 m dia x 10.93 m depth Below GL
Pumpsets : 11113 lpm x 19 m head (2 nos.) - 1 DWF
22226 lpm x 19 m head (1 No.)
2 DWF
Pimping main : 500 mm dia CI LA Class pipes for 100 M length
Pump room : 9.0 m x 5.0 m x 4.54 m
Sewage Treatment Plant (STP)
Method : Extended Activated Sludge Process
(EASP)
Design quantity (2031) : 16.00 mld capacity
Summary of Units
1
Receiving chamber : 4.0 x 4.0 x 2.5 (TD)
1 No.
2
Coarse screen chamber 7.0 x 1.0 x 1.25 (TD)
1 set
3
Fine screen chamber: 7.0 x 1.0 x 1.25 (TD)
1 set
4
Grit chamber : 6.0 x 6.0 x 1.5 (TD)
1 set
5
Flow measuring channel : 6.0 x 1.0 x 0.95 (TD)
1 No.
6
Distribution chamber in pre-treatment unit :
4.0 x 4.0 x 2.50 (TD)
1 No.
7
Distribution chamber : 4.0 x 4.0 x 2.50 (TD)
2 Nos.
8
Dechlorination tank : 3.50 x 3.50 x 40 (TD)
1 No.
9
Aeration tank 35 x 24 x 5 (TD)
2 Nos.
10
Secondary Clarifier : 26.0 m dia x 4.5 m (TD)
2 Nos.
11
Chlorine contact tank : 27.0 x 7.0 x 4.0 m (TD)
2 Nos.
12
Return sludge pump : 4.0 m dia 7.25 m TD
1 No.
13
Centrifugal feed sump : 3.5- m dia 2.5o m (TD)
1 No.
14
Admin cum Lab Building 2 floors
12.00 m x 7.00 m x 4.00 m
1 No.
Effluent Disposal
Effluent Disposal the treted effluent will be disposed into the river Thenar after treatment
Land Details
Sl.No
Details
Location
SF.No
Extended of land available
Land ownership
1
STP/MPS
Devakottai Road Opposite to solid waste disposal yard of Karaikudi Municipality Total
545/2 552/8 561 552/9 Total
0.4604 ha
0.4664 ha
1.1968 ha
0.2295 ha
2.3531 ha
(5.81 acres)
Municipal Land Govt Land (Alienation order issued on GO Ms.No.0 Revenue Dept. Dt.10.01.14 Municipal land
Installation cost : Rs.112.53 Crores
AM Cost : Rs.83.18 Lakhs
The 5th and 6th respondent - Board in its reply dated 29.8.2016 has also stated that the proposed underground sewerage scheme in the form of STP by the 2nd respondent - Karaikudi Municipality at Survey Nos.545/2, 552/8, 552/9, and 561of Karaikudi Town does not attract EIA Notification, 2006. However, the municipal authorities are liable to obtain consent under Water Act and Air Act for establishing and operating of the STP. While reiterating that the site was chosen after alternatives were considered and area located near the existing municipal solid wastes dumping yard. It is stated by the Board that the estimated sewage generation is 12.45 MLD and the propose STP is having the capacity of 15.75 MLD considering the future increase in the population. The proposed STP is under Extended Activated Sludge Process Technology and the treated sewage was proposed to be discharged through Thenar river, running near the site.
The application for NOC by the Karaikudi Municipality for setting up of the STP was placed to the Zonal Level Consent Clearance Committee on 14.8.2014 with the following conditions:
"i.This No Objection Certificate shall be used only to acquire/possess the site by the local body.
ii. The No Objection Certificate issued shall not be construed as consent of the Boar.
iii. The Municipality shall obtain proper land use classification certificate from the competent Authority.
iv.The Commissioner, Karaikudi Municipality, Sivagangai District shall acquire the above said land proposed for the construction of sewage treatment plant and shall obtain Çonsent to Establish' under the Water (Prevention and Control of Pollution) Act, 1981 as amended and the Air (Prevention and Control of Pollution) Act, 1981 as amended after submitting land allotment and detailed treatment process along with the design criteria before execution of the project.
v. The Municipality shall adopt advance technology for the sewage treatment and the components of the sewage treatment plant sufficiently above the ground level so as to ensure that the sewage shall not be mixed with storm water during monsoon or to avoid carryover of sediments from the site.
vi. The Municipality shall treat and dispose the treated sewage into the Amaravathi Ayakat Canal of Thenar River with obtaining proper approval from the competent authority.
vii. The Municipality shall establish options to dispose the treated sewage for irrigation as well.
viii. The Municipality shall dispose the solid wastes to the outside agencies for further beneficial use without any accumulation inside the premises.
ix. The Municipality shall take all necessary actions to control the odour and flies problem due to the operation of the treatment plant so that no complaints are received from the nearby public.
x. The Municipality shall maintain buffer zone of atleast 100 meters all around the site and no permission for construction shall be given in the said buffer zone for residential purposes, commercial purposes etc.
xi. The Municipality shall maintain green belt with tall trees having thick canopy cover for a width of atleast 25 m around the boundary of the proposed site.
xii. Compound wall shall be constructed all around the site so as to avoid entry of stray animals or unauthorized persons and vehicles.
xiii. The Municipality shall satisfy the Ambient Air Quality Standard and Ambient Noise Level Standards prescribed by the Board."
It is stated by the Board that the site for the proposed STP is presently vacant and surrounded by Devakottai Rastha Railway Station on Eastern side, MSW dump site on Western side, few houses, St. Arulanandar Church on Northern side and road on Southern and Western sides. The proposal does not contain use of Chlorine and the Board will also recommend non-Chlorine based disinfection methods only. It is stated that the Municipality has not so far obtained consent for establishment.
Further it is stated that the site was inspected by the District Environmental Engineer, Sivagangai on 27.4.2016 and found that no construction activities were started.
The 7th respondent who is a successful bidder selected to execute the project of the proposed STP in its reply dated 30.6.2016, while reiterating the statements made by the other respondents, stated that the proposed project is designed with latest scientific technology and it is an underground sewerage system which is being implemented by many of the Corporations and Municipalities in the State of Tamil Nadu and also other States and that the method is acknowledged internationally and it is an accepted system. The 7th respondent submits that the application is filed with vested interest and the interim order of status quo passed will be detrimental to the interest of the 7th respondent as the materials and equipments purchased for this project are being damaged.
Mr. T. Mohan, learned counsel appearing for the applicant would submit that the selection of the site for the proposed STP is against the guidelines framed by the Board itself and the residential areas are situated within the prohibited distance of the siting criteria. According to him, there is a Church situated within 15 m and the existence of the said Church is not denied and therefore it is against the siting criteria proposed by the Board itself. He would submit that the Municipality cannot disown its responsibility by saying that the Church is unauthorised and that the residences which have come up are at a later point of time after the NOC was issued and the buildings have been put up in an unauthorised manner. The concept of NOC is not permissible under EIA Notification, 2006 and the NOC is not a binding document as per the Notification and therefore according to the learned counsel mere obtaining of NOC will not entitle the Municipality to proceed with the project. He has also relied upon the Google imagery which shows that there is an in existence of some of the dwelling units as well as place of worship within the prohibited distance. The learned counsel would submit that the STP is covered under the red category and the authority contemplated in respect of this category is only Member Secretary of the Board and not the District Environmental Engineer. When MSW site is already there, STP cannot be proposed in the said area which cannot be said to be environmental friendly. He has also referred to various clauses in Form - I contemplated under EIA Notification, 2006 to show that there are clauses indicating about the place of worship etc. The learned counsel has taken us through the elaborate judgment of the Principal Bench of the NGT in Kehar Singh's case wherein it was held that any proposed STP cannot be believed to be a domestic sewerage treatment system alone and there is a possibility of mixing of other effluents and therefore it should be treated as ETP which requires EC from SEIAA. He has also placed reliance of another judgment of the Southern Zone Bench of NGT in A. Gothandaranan's case wherein it has been held that even in respect of STP where there is possibility of mixture of other effluents EC is a mandatory requirement. Therefore, according to the learned counsel, the proposal of the 2nd respondent for the establishment of STP without EC is not permissible in law and the Tribunal should interfere and set aside the same.
Mr.V.S. Sethuraman, learned Additional Advocate General appearing for the TWAD Board would submit that what is proposed by the Municipality is only a domestic sewage treatment system simplicitor with latest technology to be adopted and therefore the question of obtaining prior EC does not arise. According to the learned Additional Advocate General there are different standards of treatment for STP and ETP propounded by the Board. When once the Municipality makes it very clear that under the project, domestic sewage alone will be carried to the STP site for treatment and no other effluent will be allowed to mix, there is no reason for the applicant to presume as if trade and industrial effluents are going to be mixed and therefore it will be an Effluent Treatment Plant (ETP). The learned Additional Advocate General would submit that while ETP would require prior EC under Clause 7(h) of the schedule to EIA Notification, 2006, STP simplicitor does not require any such prior EC. However, it is true that the Board should strictly monitor and see that other effluents does not mix. It is his assertion that when once it is a transport of household effluent through closed underground pipeline, it is not only environmental friendly but also there are no chances of mixing up of household sewage with any other effluent. He would also submit that the TWAD Board will strictly follow the Manual of Sewage Treatment System issued by the Ministry of Urban Development, Government of India. Even for ETP there are guidelines given separately and that will be followed. The learned Additional Advocate General would also submit that the judgment of the Principal Bench of the NGT in Kehar Singh's case has no application since that case is factually different wherein the Tribunal found that it is open sewerage system and therefore there was every possibility of the other effluents being mixed up with the household effluents and in such event the method of treatment should be more severe and it should be treated as ETP. It was in those circumstances, the Principal Bench has held that the ETP requires EC. He has also differentiated the facts in A. Gothandaraman's case to contend that the facts of the said case does not apply to the present scenario wherein it is the specific case of the Municipality that there is absolutely no possibility of any trade effluent being mixed with the domestic effluent which are to be exclusively carried from each of the household and that within the limit of Karaikudi Municipality there are no small scale, medium or large scale industries in existence.
Mr. Abdul Saleem, learned counsel appearing for the 2nd respondent - Municipality would submit that while it is true that NOC given by the Board itself is not sufficient, the Municipality can carry on the activity only after consent to establish is granted and the project can be implemented only after consent to operate is granted by the Board. The obtaining of NOC even in 2014 shows that the Municipality is honest in its approach. The learned counsel would further submit that on record it is clear that there are no small, medium or large scale industrial units in existence in the limits of Karaikudi Municipality and in any event under the proposed STP separate underground pipelines are drawn from each and every one of the households which will never be connected with any other effluents and therefore there is no necessity for any apprehension in the mind of the applicant and others that trade and industrial effluents will also be taken through the closed pipeline. He also submits that there are nine petrol bunks and 12 service stations within Karaikudi Municipality as stated in the affidavit filed by the Commissioner of the Municipality. That apart, there are marriage halls and hotels and there are no small scale industries. In so far as it relates to petrol bunks and service stations are concerned, the Municipality has taken all steps to see that those effluents from the said units does not mix up with the household effluents to be taken through the closed underground pipeline. The siting of the present place is near the dumping site which was in existence from 1972 onwards and there was no residential house and Church nearby at that time and subsequently few houses have come up which are unauthorised and it is his submission that as per the project after the treatment in the proposed STP, the treated water will be let out in Thenar river. He also submits that the TWAD Board which is executing the said project in Chinnamanur, Theni District has been successfully carrying on the same which are the residential area and the present application is an environmental friendly project. He would also submit that the Municipality has a regular and constitutional duty to see that treatment plants are properly maintained for the environmental protection and there is absolutely no justification for the applicant to raise objection to such environmental friendly process. He would also submit that the judgment of the Principal Bench in Kehar Singh's case as well as the judgment of the Southern Bench in A. Gothandaraman's case has no application to the facts of the present case for the reason that there has been finding in those cases that in one case it is a open drainage system with the possibility of mixing of other effluents and therefore even if it is called STP it should be treated as ETP which require prior EC. In so far as it relates to the other case, there has been a finding that there is a possibility of mixing up of domestic and industrial waste and therefore the judgment relied upon in those cases have no application at all. He would also submit that any other stringent condition which may be imposed for the purpose of close monitoring of STP project and that no other effluent is allowed to be mixed at any point of time, can also be imposed and the Municipality is willing to follow the same.
Mrs. M. E. Saraswathy, the learned counsel appearing for the MoEF & CC would also submit that as per the EIA Notification, 2006, STP does not require prior EC. The judgment in Kehar Singh's case is factually different in the sense that in cases of open drainage system which is intended mainly for transport of household sewage, there is possibility on the way for mixing of any other effluents, in which event it can no more be called as STP since the treatment required is more stringent as that of Effluent Treatment Plant (ETP). Therefore, in those circumstances, the STP should be treated as ETP and only in those cases prior EC is required. On the facts of the present case, it is purely the household sewage which is being transported underground in closed pipeline for the purpose of treatment in the proposed site and there is absolutely no possibility of arriving at any conclusion that it requires prior EC.
Mr. Azhagamperumal, learned counsel appearing for the State Pollution Control Board would also submit that the project as such is only for transporting the household sewage in the clear undertaking given by the Municipality and that no other effluent will be permitted to be mixed up. He would submit that while prior EC is not required, certainly the project is to be initiated only after consent to establish is obtained from the Board and the project should be started only after the consent to operate is granted. He made it very clear that while granting consent to establish and consent to operate the Board will explicitly make it very clear that it should be the domestic sewage which alone should be carried through the closed underground pipeline and no other effluents should be allowed. He would also submit that the Board will closely monitor and oversee and find out as to whether the Municipality keeps up its declaration that the stringent conditions imposed while granting consent will be implemented in its true sense and that only the domestic sewage will be treated in the STP an no other effluents are allowed to be mixed.
We have heard the learned counsel appearing for the applicant as well as the respondents, referred to the pleadings and various documents filed by the parties and given our anxious thought to the issues involved in this case. The issues to be decided in this case are:
(1) As to whether the proposed STP by the 2nd respondent Karaikudi Municipality to be implemented through the 3rd and 4th respondent -
(2) As to whether the siting criteria framed by the Tamil Nadu Pollution Control Board has been followed in choosing the site and the legal effects of such siting criteria.
Before adverting to the first issue as to whether the proposed STP by the 2nd respondent - Karaikudi Municipality to be implemented through respondents 3 and 4 requires prior EC, it is relevant to note that the proposed STP is an underground sewerage scheme, adopting latest Activated Sludge Process (ASP) with Extended Aeration Technology, considering the parameters of domestic sewage only. It is the specific case of the 2nd respondent - Municipality that the industrial premises will not come under the scope of the project and House Service Connection (HSC) will be strictly followed and there is no chance of mixing industrial effluents under the proposal. It is also the specific case of the Municipality that there are no residential houses within the radius of 500 m from the proposed project and the site is located about 1.50 km away from the residential area of Karaikudi Municipality and there are no households in the vicinity of the selected site for about 150 m. Therefore, it is clear that the proposed STP is not an open sewerage system.
It is the further specific case of the Municipality that raw sewage to be received in the STP will not be in an anaerobic or septic form but in dynamic form suitable for the ASP with Extended Aeration Technology It is the further case that the entire collection system of sewage from individual households will reach the STP within a specified time without any stagnation during its travel. Further, it is stated that the industries, either small scale or large scale, will never be given connection into this system and open drain or gutter will not be linked with the system. The treated effluents from the STP can be used for agricultural purposes, since it is agricultural friendly and the 2nd respondent Municipality has also a similar STP in Chinnamanur in Theni District which is functioning and the treated effluent is being used for farming.
EIA Notification, 2006 was framed by the Central Government in accordance with the powers conferred under Section 3(2)(v) and sub-section (1) of Section 3 of the Environment (Protection) Act, 1986 read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986 for protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. Section 3(2)(v) of the Environment (Protection) Act, 1986 enables the Central Government to notify measures regarding restriction of area in which any industrial operation or process or class of industries or operation or process shall not be carried out or shall be carried out subject to certain safeguards. In the EIA Notification, 2006 which is a statutory measure notified by the Central Government, prior EC is required for the project or activity from the MoEF & CC in respect of 'A' category project and State Level Environment Impact Assessment Authority (SEIAA) in respect of 'B' category project, as per the schedule to the notification. In the said EIA notification, STP is not included either in 'A' or 'B' category. However, under Clause (h) of the schedule Common Effluent Treatment Plant (CETP) is categorised as 'B' category project for which general conditions apply.
Admittedly, the Board prescribes different norms for STP and CETP, the reason being that STP relates to domestic sewage, while ETP deals with trade and industrial effluents which require different standard and different kind of treatment. Therefore, STP cannot be compared with ETP in the light of different standard of treatment prescribed. There are cases viz, treatment facility under the control of Municipality or Corporation for treating the sewage from household or other residential buildings only, as in the present case.
In so far as it relates to the trade effluents, the Board prescribes strict standard by rigorous process with the installation of separate treatment plant. In cases where number of industrial units join together for the purpose of creating Common Effluent Treatment Plant (CETP) for treatment of effluents discharged during the industrial activity by various units, a Common Effluent Treatment Plant (CETP) formed itself is treated as a separate unit and under Clause 7(h) of the schedule of the EIA Notification, 2006, the said activity requires prior EC from SEIAA.
There may be cases where Sewage Treatment Plant system of a Corporation or Municipality is in the form of open drainage where there is possibility of trade and industrial and other effluents getting mixed up and in such event STP is not the answer for treatment. In such cases the mixture of sewage and trade effluents are to be certainly treated as ETP/CETP and cannot be treated as mere STP. It is in those circumstance where by virtue of open drainage system there is a possibility of trade and industrial effluents to be mixed with the sewage collected from the household, the system requires prior EC from SEIAA.
It was the factual circumstance which was dealt with by the Principal Bench of the NGT in Kehar Singh's case in which one of us (Expert Member) is a party to the judgment, on which strong reliance is placed by the learned counsel appearing for the applicant. In the said case, the site chosen for STP was natural flow/slope gradient and the sewage water was flowing through open drains. That was made clear in paragraph 35 of the judgment that in cases of open drain large amount of industrial waste or domestic wastes are discharged directly or indirectly into the drain. In such cases, it cannot be stated as a mere sewage treatment. It is stated in the said paragraph as follows:
"35. It is an acknowledged fact that the sewage in any town travels through open drains where large amounts of industrial waste, domestic discharge and trade effluents are directly or indirectly discharged into such drains. Before these drains reach the STPs, they undoubtedly contain sewage and other trade effluents, including chemical effluents. In other words, it is mixed effluent and not a sewage waste simplicitor."
This was made further clear in paragraph 44 of the judgment as follows:
"44. Effluent means discharge of any liquid gaseous or other substances into water bodies etc., and would take within its ambit even discharge of sewage coupled with other industrial and trade effluents. Such effluent would be required to be treated at a CETP of which STP itself may be an integral part. As we have already noticed and even anticipated, the drains which carry the sewage also contain other domestic discharge. Industrial and Trade effluents get discharged directly into the drains by the industries or other activities which generate polluted effluents. Thus STP would have to treat effluents which contain even other pollutants than sewage simplicitor".
It is abundantly clear that discharge of any liquid or any other substance into the waterbody etc., the open drainage system would take within its ambit discharge of sewage mixed with other industrial and trade effluents. Therefore, what was decided by the Principal Bench in Kehar Singh's case was in respect of an instance where residential sewage mixed up with trade and industrial effluents which is always possible in the open drainage system and therefore it was held on the factual matrix of the said case that it requires treatment at ETP and STP will be treated as an integral part of CETP which will treat both sewage and trade and industrial effluents. Paragraph 46 of the judgment reads as follows:
"The bare reading of the above shows that establishment, expansion and even modernisation of CETPs require EC, being a category B project. Any treatment plant that deals with such effluents having more than 10% of industrial contributions by volume has to be treated as a combined treatment plant. On the strength of this guide, it becomes clear that the material consideration for determining the nature of the project or activity is the kind of effluent that it receives for the purpose of treatment. There is nothing on record before us to show that the STP in question is so established as to treat exclusively sewage and nothing else. On the contrary, the sketch filed by the respondent (Annexure R.3) shows that the sewage is carried by an open drain and would be so carried to the site of STP (for treatment).It is just by the side of a metal road and travels through the abadi and the sludge is carried through an open drain from the entire city.This is demonstrable of the fact that it is not sewage per se that is taken by the open drain to the site but is a mixture of various distinct effluents.Thus, such an STP would even fall under the entry 7 (h) because this plant would be treating the effluents in the semi-solid form and even sludge and would contain more than 10% of industrial or other contaminated chemical effluents."
(Emphasis is ours)
The other judgment relied upon by the learned counsel appearing for the applicant rendered by the NGT (SZ) in A. Gothandaraman's case is no doubt a case of establishing an underground sewage pumping station (SPS) in Vadiveeswaram, Nagercoil in Survey No.420/51 and construction of STP at Sy.No.M7/9-2, Nagercoil Village but the ground of challenge was that for the said SPS the 1st respondent Commissioner, Nagercoil Municipality has granted permission without alienating the land which is stated to belong to Kottar Bazaar Government Primary School established by the erstwhile Raja of Travancore. In paragraph 6 of the judgment it is stated as follows:
"6. The STP will store Chlorine gas and in the event of any accident the consequences will be disastrous. There is not enough area around the STP for creation of buffer zone or green belt and the gases and bio aerosols released from the site will harm the children, pregnant women and aged citizens in the area besides causing sufferings to the inpatients in the hospitals."
Subsequently in paragraph 39 the Tribunal has made the following observation:
"39. From the reading of the above decision, it would be quite clear that obtaining EC under EIA Notification, 2006 is necessary in the instant case. No doubt, the project in question would bring through conveyance of sewage in the closed pipe network the entire sewage for treatment to the plant along with trade, industrial and other discharges containing high level of pollutants generated from the non domestic establishments. If so, the end product namely, the treated wastewater discharged from the plant may remain contaminated, acidic or unusable for any purpose."
It is made very clear that the Tribunal having gone through the issue in detail came to the conclusion that not only the domestic sewage but trade and industrial effluents containing high level of pollutants from non domestic establishments are also allowed to mix up with domestic sewage and therefore the STP proposed by the respondent is not enough to handle the treatment and ultimately it is not a simple STP for handling domestic sewage but it requires EIA study similar to CETP which requires EC. In paragraph 40 of the judgment, the Tribunal made it very clear that mixing of trade effluents and other waste waters from non domestic sources would compound the problem implying that the Tribunal is not satisfied with the contention of the respondent that the project involves treatment of only domestic sewage. The judgment also made it very clear in paragraph 41 that there is no need to change the site selected for the purpose of establishing SPS and STP and only directed to seek EC from SEIAA on similar lines of the establishment of CETP.
Therefore, it is clear that when once it is concluded that the treatment involves not just domestic sewage but also industrial and trade effluents, it no longer involves setting up of STP simplicitor but it is more or less a CETP which requires prior EC. There are different parameters and inlet and outlet standards for STP and CETPs and there is a change in design, type of machinery and equipment also taking into account the toxicity and obnoxious nature of the effluent to be treated.
Considering the nature of effluents to be treated, the EIA Notification, 2006 prescribes EIA study and obtaining EC for setting up of CETP for treating industrial and trade effluents since such effluents which are highly toxic require careful handling lest there will be environmental and health hazards. But there is no provision of EC for STPs predominantly handling domestic sewage and this goes to show that the framers of law have consciously excluded STPs from EIA Notification, 2006.
On the factual matrix of this case, as elicited, it is the specific case of the 1st respondent - Municipality that the domestic sewage will be collected by house service connections in a closed underground pipeline and will be carried to the STP site. It is also the specific case of the Municipality, as it is seen in the affidavit filed by the Karaikudi Municipality that within the limits of Karaikudi Municipality there are 9 fuel retail stations and 12 automobile water service stations and each of the fuel stations and service stations is required to establish a separate ETP of their own and therefore there is no chance of any trade effluent being mixed up with the domestic sewage. The 1st respondent MoEF & CC is also categoric in its affidavit that installation of STP is not covered under the schedule of EIA Notification, 2006 and therefore no prior EC is required for the said activity.
In view of the above said clear factual background and taking into consideration the EIA Notification, 2006 as a whole we have no hesitation to arrive at a conclusion that the present proposal of STP by the 2nd respondent cannot be compared anywhere near the factual matrix of the case in which decision was rendered by the Principal Bench in Kehar Singh's case and this Southern Zone Bench in A. Gothadaraman's case so as to warrant direction for obtaining prior EC treating it as ETP.
We have also taken such a decision in our judgment under similar circumstances in respect of a proposal of the Coimbatore Corporation regarding STP at Nanjundapuram in Appeal Nos.66 and 67 of 2015 etc., dated 24th April, 2017. Therefore, we are of the considered view that the present STP simplicitor proposed by the 2nd respondent Municipality does not require prior EC. However, we make it very clear that the 2nd respondent - Municipality shall not allow at any cost mixing of any other effluent into the STP pipeline either by breaking of pipelines on the way by any persons or by any other means of tampering. The State Board shall keep a close watch not only on the functioning of STP in accordance with the environmental norms but also throughout the passage where the pipeline runs from the households leading to the STP site. As and when such pilferage is found and any complaint is received, both the 2nd respondent as well as the Board shall take immediate step to rectify and it is always open to any of the public who are affected including the applicant herein to make such representation. Such representation shall be given utmost importance and action taken immediately. Needless to state that we have arrived at the above decision only on the categorical stand of the 2nd respondent and hoping that the same is true and will be continued. With the above direction, we answer the 1st issue that the proposed STP by the 2nd respondent does not require prior EC.
In so far as it relates to the 2nd issue of the siting criteria which was also dealt with by us in the above said judgment regarding the STP at Nanjundapuram proposed by the Corporation of Coimbatore, it is true that the Board has framed Sewage Treatment Plant siting criteria -Guidelines which are as follows:
The STP site should be at least 250 meters away from any lake or pond preferably in the down stream side of lake or pond so that the sewage shall not reach the water bodies.
The STP site should be located more than at least 250 meters away from river or stream and shall ensure that the treated / untreated sewage should not reach the above water sources.
The STP site should be located at least 500 meters away from a notified habituated area and zone of 100 meters around STP site boundary should be declared as no-development zone so that green belt can be developed in that area.
The STP site should be at least 500 meters away from a public utility area such as park, temple, educational institution etc.
The site of STP should be selected on dry lands and the treated sewage shall be utilised on land for irrigation
The local body shall also ensure that the land availability and consent from the land owners for the disposal of treated sewage, which should be mentioned at the time of application for NOC itself.
In case of disposal of treated sewage into marine water bodies, the local body shall obtain CRZ clearance and this should be submitted along with NOC application.
The local body shall obtain appropriate land use certificate from DTCP for STP site.
The local body shall consider the treatment technology while selecting the site in respect of extent of land. Advanced treatment technology will require less footprint area in order to meet the inland surface water standards prescribed by the TNPCB.
A preliminary assessment of public /nearby residents opinion neighbouring the location of STP site is essential.
The said guidelines framed by the Board are executive in nature and cannot be said to have the effect of law to be enforced or having authority of law as it has been pointed by the Hon'ble Supreme Court in GULF GOANS HOTELS CO. LTD VS. UNION OF INDIA (2014) 10 SCC 673. While dealing with the environmental guidelines issued for development of beaches, apart from the direction issued to the State Government by the then Prime Minister, the Notification issued by the Governor for setting up of the Ecological Development Council for Goa inter alia for scrutiny of beach constitution within 500 m of HTL and the order of the Under Secretary, Ministry of Tourism dated 11.6.1986 addressed to the Chief Secretary, Government of Goa, constituting an Inter-Ministerial Committee for considering tourist projects within 500 m. the Hon'ble Supreme Court has rejected the contention that in respect of ecology and environment strict view of environmental degradation should be adopted in the light of Article 21 of the Constitution of India and held that if the guidelines are not statutorily enacted the same cannot be enforced.
The guidelines were at the most held to be expression of opinion and observed as follows:
"19. Article 77 of the Constitution provides the form in which the Executive must make and authenticate its orders and decisions. Clause (1) of Article 77 provides that all executive action of the Government must be expressed to be taken in the name of the President. The celebrated author H.M. Seervai in Constitutional Law of India, 4th Edn. Vol. 2, 1999 describes the consequences of government orders or instructions not being in accordance with clauses (1) or (2) of Article 77 by opining that the same would deprive the orders of the immunity conferred by the aforesaid clauses and they may be open to challenge on the ground that they have not been made by or under the authority of the President in which case the burden would be on the Government to show that they were, in fact, so made. In the present case, the said burden has not been discharged in any manner whatsoever. The decision in Air India Cabin Crew Assn. V. Yeshaswinee Merchant (2003) 6 SCC 277, taking a somewhat different view can, perhaps, be explained by the fact that in the said case the impugned directions contained in the government letter (not expressed in the name of the President) was in exercise of the statutory power under Section 34 of the Air Corporations Act, 1953. In the present case, the impugned guidelines have not been issued under any existing statute.
Clause (2) of Article 77 also provides for the authentication of orders and instructions in a manner as may be prescribed by the Rules. In this regard, vide S.O.No.2297 dated 3.11.1958 published in the Gazettee of India, the President has issued the Authentication (Orders and Other Instruments) Rules, 1958. The said Rules have been superseded subsequently in 2002. Admittedly, the provisions of the said 1958 Rues had not been followed in the present case insofar as the promulgation of the guidelines is concerned.
In the absence of due authentication and promulgation of the guidelines, the contents thereof cannot be treated as an order of the Government and would really represent as expression of opinion In law, the said guidelines and then binding effect would be no more than what was expressed by this Court in State of Uttaranchal v. Sunil Kumar Vaish (2011) 8 SCC 670 in the following paragraph of the report : (CC P.678, paras 23, 24)
"23. It is settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be (Articles 77(1) and 166(1). Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in the rules made by the President or the Governor, as the case may be (Articles 77(2) and 166(2). In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.
A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, can such noting be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166 (1) and (2). The noting in the file lore en a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, land authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overrules or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review."
In any event, these guidelines issued by the Board cannot be considered to be rigid and have to be relaxed based on the technological advancement and scientific improvements in respect of various projects. As and when new scientific and technological process are introduced, the siting criteria even in the form of guidelines are to be changed to suit the scientific advancements. In fact, in the case stated supra regarding Nanjundapuram STP at Coimbatore Corporation, we have clearly referred to such STP with a modern technology installed in places like Mumbai and Pune which are situated adjacent to the residential apartments and found that considering the rapid strides that are made in Science and Technology and new methods are propounded for better ecological and environment protection, it is high time that these guidelines issued by the Board in 2008 may be revised from time to time based on the revised standards for STPs and CETPs notified under the Environment (Protection) Act, 1986 and the rules made thereunder.
In so far as it relates to the siting guidelines of the Board to the factual matrix of the case, it is not even the case of the applicant herein that the proposed STP is adjacent to any residential area even though it is the case of the Municipality that few houses have come up in the vicinity which are by way of encroachment and unauthorised, it is certainly not the case of STP situated either adjacent to a notified housing site or religious place.
It is incidentally relevant to note that the 2nd respondent - Municipal Council has passed a resolution as early as on 30.6.1972 wherein it was resolved that compost depot shall be shifted near the place of Devakkottai Rastha Residential School. Further it is stated that the Municipality has passed a resolution on 11.8.1970 approving the proposed place for STP to be the land for the use of the Municipality and few houses have come later which are unauthorised constructions. In these circumstances, while answering the 2nd issue, we hold that in so far as it relates to the proposed STP by the 2nd respondent which is based on modern technology the siting criteria is susceptible for change based on the technological advancement and shall not stand in the way of development projects like the present one which in our considered view is not only most eco-friendly but also intended for the purpose of treatment of sewage which is being generated by the people the quantum of which increases day by day in alarming proportion posing serious damage to the environment. If the more scientifically advanced and technologically improved methods are followed by such STP, which is absolutely necessary, raising of such objection in the guise of public interest, is certainly a hindrance to the environmental friendly project like the present one. In effect, such hindrance would result in serious environmental damage. The Hon'ble Supreme Court is categoric in its judgment in CHARIMAN, INDORE VIKAS PRADHIKARAN VS. PURE INDUSTRIAL COKE & CHEMICALS LTD & OTHERS (2007) 8 SCC 705 that while compared to the individual right of privacy, it is the larger interest of the society which has to be given utmost importance by observing as follows:
"46. Where, however, a scheme comes into force, although it may cause hardship to the individual owners as they may be prevented from making the most profitable use of their rights over property, having regard to the drastic consequences envisaged thereunder, the statute should be considered in such a manner as a result whereof greater hardship is not caused to the citizens than actually contemplated thereby Whereas an attempt should be made to prevent unplanned and haphazard development but the same would not mean that the court would close its eyes to the blatant illegalities committed by the State and/or the statutory authorities in implementation thereof Implementation of such land development as also building laws should be in consonance with public welfare and convenience. In United States of America zoning ordinances are enacted pursuant to the police power delegated by the State. Although in India the source of such power is not police power but if a zoning classification imposes unreasonable restriction, it cannot be sustained. The public authority may have general considerations, safety or general welfare in mind, but the same would become irrelevant, as thereby statutory rights of a party cannot be taken away. The courts must make an endeavour to strike a balance between public interest on the one hand and protection of a constitutional right to hold property, on the other."
Issue No.2 is answered accordingly holding that the siting criteria is no bar for the proposed project of STP by the 2nd respondent, however subject to the condition that the Municipality shall ensure that the unit is maintained perfectly and should not give any scope for complaint. In case of any leakage of pipeline carrying domestic sewage to the treatment plant, it is the primary responsibility of the 2nd respondent - Municipality to immediately rectify the same to avoid causing any public inconvenience. It is always open to any person in those circumstances to approach appropriate authority for redressal.
Looking at any angle, we are of the considered view that the applicant is not entitled for any relief, as claimed in the application and accordingly the application fails and the same is dismissed, however, without any order as to cost.
Interim order passed, pending the above application is vacated.