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BEFORE THE NATIONAL GREEN TRIBUNAL

SOUTHERN ZONE, CHENNAI

APPLICATION No. 92 of 2013 (SZ) (THC)

(W.P.No. 3510 of 2009 of the High court of Andhra Pradesh at

Hyderabad)

In the matter of:

M/s. Pattancheru Environ-Tech Ltd.,

Through its whole time Director

B.V. Ramana Murthy,

S/o Late B. Uma Maheswara Rao

Plot. No. 23-25, I.D.A., Phase-IV

Pattancheru, Andhra Pradesh .. Applicant/Petitioner in

the writ petition

AND

1. Andhra Pradesh Pollution Control Board

Through its Member Secretary

Paryavaran Bhawan,

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A-3, Industrial Estate, Sanath Nagar

Hyderbad, Andhra Pradesh

2. Joint Chief Environmental Engineer

FAC, A P Pollution Control Board

Zonal Office

25-31/11, Tulasi Reddy Complex 2nd Floor

R.C. Puram, Medak District

3. The Branch Manager

ING Vysa Bank, Pattancheru

Medak District

4. The Branch Manager

HDFC Bank, Chandanagar

RR District

5. The Branch Manager

State Bank of India

Pattanchery Mandal

Medak District

6. The Branch Manager

Oriental Bank of Commerce

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Ameerpet, Hyderabad .. Respondents/respondents

in the writ petition

(Respondent Nos. 3 to 6 were ordered to be not necessary

parties to the writ petitions by the Hon’ble High Court of Andhra

Pradesh at Hyderabad)

Counsel appearing:

Applicant .. M/s. Lakshmi Kumaran and Sridharan, Advocates

Respondents .. Shri T. Sai Krishnan, Advocate for respondent Nos. 1

and 2

ORDER

Present:

1. Hon’ble Shri Justice M. Chockalingam

Judicial Member

2. Hon’ble Prof. Dr. R. Nagendran

Expert Member

_____________________________________________________

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Dated, 17th, December, 2014

_______________________________________________________

(Hon’ble Shri Justice M. Chockalingam)

This application has been taken on the file of the Tribunal

consequent to and order of transfer of the Writ Petition filed by the

applicant herein before the Hon’ble High Court of Andhra Pradesh,

Hyderabad in W.P.No. 3510 of 2009. The brief facts of the case as

could be made out from the averments in the writ petition are:

2. The applicant company was promoted jointly by the A.P.

Patancheru Industrial Belt in the year 1989. The applicant’s company

was incorporated for establishing and running a Common Effluent

Treatment Plant (CETP) for treating the industrial effluents generated

from industries in the area. The establishment of chemical,

pharmaceutical and bulk-drug industries in the Patancheru Industrial

Belt has reckoned the area on the industrial map in the years 1980-

1990. The entire area has seen remarkable economic growth and

generated employment to 2 lakh persons. The bulk-drug industries in

the area produce about 40% of the total production in the country and

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earn substantial foreign exchange for the country apart from paying

about Rs.1000 crores to Government by way of taxes. The CETP

emerged as a necessity consequent to the industrial development in

the Patancheru area to overcome pollution problem and maintain the

ecological balance. With the industrial development in the area,

environmental pollution became an issue and a writ petition in W.P (C)

No. 1056/1990 was filed in the Hon’ble Supreme Court seeking

compensation and directions relating to environmental pollution

control. The applicant’s company was also impleaded as a party

respondent in the said writ petition. The applicant company started

CETP operations in year 1994. The said CETP was established with

a capacity of 7500 m3 per day and the total project cost was Rs. 5.70

crores. In 1996, the management of the plant was taken over by the

directors representing the industries and about Rs. 3.00 crores were

spent for upgrading the treatment facilities in the plant. Liquid Oxygen

Injection Technology was adopted for the first time in the country for

biological treatment in the CETP. On 12.05.1998, the Hon’ble

Supreme Court considered the Joint Action Plan (JAP) submitted by

the Central Pollution Control Board (CPCB) and directed that the

immediate measures as proposed in the said plan was to come into

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force on 01.06.1998 subject to further order of the court. With respect

to medium term measures and long term measures proposed in the

said JAP, the Hon’ble Supreme Court directed that the State

Government as well as the industries would take adequate measures

to ensure that those are initiated. In course of proceedings of W.P (C)

No. 1056/1990 different options were discussed and vide order dated

10.10.2000, the Hon’ble Supreme Court directed the parties to

finalize one option pursuant to which the “pipe-line option” was

recommended. In November 2000, a revised JAP was submitted

before the Hon’ble Supreme Court outlining time frame for the pipe

line project which was finally approved for implementing the above-

mentioned option. The revised JAP proposed Environment Impact

Assessment (EIA) study, preparation of Environment Management

Plan (EMP) for the pipe line project and Environmental Clearance

from Andhra Pradesh Pollution Control Board (APPCB) etc., and only

thereafter any further activities such as financial agreements, tender,

award of work etc., were to be taken up. On 06.02.2001, the Hon’ble

Supreme Court approved the pipe line project and the time frame

proposed in the revised JAP was submitted before the court. As per

the Hon’ble Supreme Court order dated 06.02.2001 it is clear that the

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parameters for outlet i.e., before the discharge, which was to be

conforming to the sewage standard parameters by the CETP as laid

down in the JAP. The status report indicating the measures taken by

APPCB in W.P. No. 19661 of 2002 WP (C) No. 1056/1990 was also

filed by the APPCB before Hon’ble Supreme Court of India.

3. Pursuant to the revised JAP, the applicant company was

asked to get an EIA report prepared and the applicant company

entrusted the same to Centre for Environment, Jawaharlal Nehru

Technological University, Hyderabad to prepare an EIA Report on two

aspects namely, (i) Laying pipe line from Patancheru Effluent

Treatment Ltd., (PETL) to K and S Main Balanagar, and (ii) Effect of

mixing of PETL (P) and PETL(B) effluent with sewage at Sewage

Treatment Plan (STP), Amberpet and release its outlet into Musi river

and downstream. The rapid EIA on commissioning of 18 km long pipe

line and discharge of the treated effluent from M/s PETL to STP at

Amberpet was submitted by Centre for Environment, Jawaharlal

Nehru Technological University, Hyderabad. The conclusion of the

EIA recorded is as under :

“By providing primary and secondary treatment of combined

(Sewage plus industrial wastes) wastes, there maybe a

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reduction of more than 90% in BOD, up to 70% in COD. The

metallic ions also get reduced as fraction of these ions are

utilized as micro nutrients in the biological growth and wasted

as excess sludge. There may be an improvement in the outlet

water quality from present level after the provision of

treatment at Amberpet. Further, by this treatment facility, the

complex nature of the ions (BOD, COD, TDS and SS) will

reduce and with the quality of treated water at the outlet can

be utilized for irrigation/plan(t) growth/agriculture. The report

also contains information on evaluation of environmental

impacts and environmental management plans.”

4. The work of construction of pipe line commenced on

04.09.2002 was completed in two years. The finance for the said

project came from Andhra Pradesh Government and the Member-

Industries. The Writ Petition (C) No. 1056/1990 was transferred by to

A.P. High Court and a Fact Finding Committee was constituted by the

Order of the Hon’ble High Court. A report was submitted to the

Hon’ble High Court by the Fact Finding Committee wherein the

Committee also recommended for expediting the pipe line project. A

status report was filed by APPCB before the Hon’ble High Court

which clearly approved the measures taken. With regard to the

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parameters fixed for pre-treated effluent from the member industries,

the Hon’ble Supreme Court vide order dated 12.05.98 fixed only 4

parameters with respect to pre-treated effluent (inlet). However, vide

order dated 05.08.2005, the 1st respondent fixed 20 parameters in

relation to effluent (inlet and outlet). The said order was challenged in

W.P. (C).No. 441/2005 and batch cases in the Hon’ble Supreme

Court and the Hon’ble Supreme Court disposed of the said writ

petition on 17.07.2007 with the following observation:

“It is not in dispute that the petitioner meets the

inlet standards prescribed by the action plan. It is

made clear, however, that the petitioner shall also

comply with the outlet standards prescribed and

mentioned in the action Plan. However, fulfilment of

outlet standards can happen only after the

connectivity is established with S.T.P. The

connectivity may be given as per the Action Plan.

Accordingly the writ petition stands disposed of”.

5. The respondents have not undertaken the connectivity of

the pipeline with STP at Amberpet. The bulk drug manufacturers

association made a representation to the Government to comply

with the directions of Hon’ble Supreme Court and to permit CETP,

Patancheru to discharge the effluent through a 18 km long

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pipeline connected to STP, Amberpet. The Commissioner of

Industries, Government of Andhra Pradesh communicated in

letter No. 19-1-06-0638-06-0638, dated 21.02.2008 a copy of the

minutes of the meeting held on 10.01.2008 in the chambers of the

Chief Secretary to the Government on the issues raised by the

Bulk Drug Manufacturers Association. In the said minutes of the

meeting on the subject relating to connectivity of the pipeline it

has been observed as under.

“It was recognized that one of the important

elements of the JAP of the APPCB and CPCB is

that the standards of the effluents being delivered at

the inlet of the 18 km pipeline connected to the STP,

Amberpet need to be set having regard to the

ultimate discharge from Amberpet. This is because

the pipeline will be ultimately discharging the

effluents together with sewage effluent 18 km

downstream, and hence it would be more

appropriate to ensure that the standards at the

discharge point of the STP, Amberpet conform to

the prescribed specifications. It was agreed that the

APPCB, with due information to the CPCB, will in

consultation with Municipal Corporation,

Metropolitan Water Works etc., let in effluents of

different standards as received from the CETP and

thereafter measure the technical parameters of the

effluents being discharged at STP, Amberpet to

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establish if they meet the prescribed standards. The

reports of the competent scientific and technical

tests should then be placed before the APPCB who

will examine whether the JAP should be revised and

if so, in what manner and submit the same to the

CPCB/Supreme Court for consideration”.

6. The 2nd respondent, contrary to the order of the Hon’ble

Supreme Court and the observations of the Chief Secretary

without issuing any notice to the petitioner, the applicant herein,

passed orders on different dates imposing a penalty of Rs.

2,32,62,000/- from November 2007 to October 2008 further

stating that if the penalty amount is not paid action will be initiated

for the non-compliance of the order of the Hon’ble Supreme Court

dated 17.07.2007. In no part of the order dated 17.07.2007 the

Hon’ble Supreme Court empowered the 2nd respondent to levy

and collect penalty from the applicant. The impugned action of

the 2nd respondent is highly discriminatory, unjust, improper and

illegal. The 2nd respondent by letter No. PTN-

25/PCB/ZO/RCP/2005, dated 06.02.2009 addressed to the

applicant’s bankers ING Vysya Bank, Patancheru and HDFC

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Bank, Chandanagar Branch, invoked the bank guarantee and

encashed the bank guarantee amount of Rs. 50, 00, 000/-. The

2nd respondent addressed a letter dated 10.02.2009 to applicant’s

bankers ING Vysya Bank, Patancheru, HDFC Bank,

Chandanagar Branch, State Bank of India, Muthangi Branch and

Oriental Bank of Commerce, Ameerpet Branch to freeze the bank

accounts of the applicant and requested them to remit the funds

available in the applicant’s account to the 1st respondent to

implement the orders of the Hon’ble Supreme Court. The action

of the 2nd respondent is totally in violation of the orders of Hon’ble

Supreme Court in W.P. No.441 of 2005, dated 17.07.2007 and

the provision of Section 33A of the Water (Prevention and Control

of Pollution) Act, 1974 (Water Act, 1974) read with Rule 34 of

Water (Prevention and Control of Pollution) Rules, 1975 (Water

(P&CP) Rules, 1975. As per Rule 34 of the Water (P&CP) Rules.

1975, the 1st respondent is liable to issue a notice before passing

any direction under section 33A of the Water Act, 1974. The 2nd

respondent did not issue any notice either to the applicant or to

the respondents 3 to 6 before passing the directions to freeze

bank accounts of the Applicant which is arbitrary, discriminatory

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and contrary to the principle of natural justice. The action of the

1st and 2nd respondents is also in violation of Articles 14 and 19 of

Constitution of India. In view of freezing of the bank accounts of

the applicant, the working of the CETP came to a standstill. It

would adversely affect the functioning of over 100 units where

over two lakhs of employees are depending on it for their

livelihood.

7. The 1st and 2nd respondent, namely, the APPCB, per contra,

filed the reply stating that the application is not at all maintainable and

deserves to be dismissed in limini. The appeal remedy has not been

exhausted and the application has been filed directly. The penalty has

been imposed on the applicant after giving due notice and opportunity

for violation of the standards as laid down by the JAP which was

approved by the Hon’ble Supreme Court of India. The applicant who

has neither denied nor disputed the violations cannot maintain the

challenge to the same by way of this application. The applicant wants

to take undue advantage of one particular sentence contained in the

order of the Hon’ble Supreme Court dated 17/07/2007 in W.P. (C) No:

441 of 2005 by reading it out of context. The very same order clearly

mandates that the applicant shall comply with the outlet standards

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prescribed in the JAP. It directs that even after the connectivity is

established with the STP, the applicant shall continue to comply with

the outlet standards. The same cannot be taken advantage by the

applicant to say as though till such time the connectivity is given with

the STP, they need not comply with the outlet standards and that

penalty cannot be levied for such repeated violation in spite of issuing

notice and warnings.

8. During 1984, highly polluting industries like bulk drug and

other water polluting industries were established in Patancheru-

Bollaram area using grant of subsidies and due to proximity to

Hyderabad. The small scale industries could not set up full fledged

ETP and they discharged the partially treated effluents resulting in the

pollution of Patancheru area during 1984-1990. During 1990, the

Indian Council for Enviro Legal Action filed a Public Interest Litigation

in W.P. (C).No. 1056 of 1990 before the Hon’ble Supreme Court of

India regarding pollution problems in the area. From the year 1991

onward the Hon’ble Supreme Court has issued various directions for

supply of drinking water to the villages affected by pollution, payment

of compensation for crop damage and other remedial measures. The

applicant company promoted by a group of industries at the Industrial

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Development Area (IDA), Patancheru with the active support of the

Andhra Pradesh Industrial Infrastructure Corporation Ltd.

(APIIC).came to be incorporated in the year 1989. The main

objective of the applicant company is to collect, treat and dispose of

industrial effluent. The applicant constructed the CETP at Patancheru

which was commissioned in September, 1994 with a design flow rate

of 7500 m3/d. The management of the applicant company was taken

from APIIC Ltd. during September, 1994. The CETP is having the

following units: Terminal pumping station with a capacity of 360 m3, 4

Equalization tanks with a capacity of 1400 m3 each with diffused air

grid, Primary Clariflocculator with a capacity of 100 m3/h, Dissolved

air flotation unit with a capacity of 120 m3/h, Decanter – I & II with a

capacity of 20 m3/h, 2 Buffer tanks (One is in use) with a capacity of

1575 m3, 13 Sludge drying beds each measuring 8m x 2m, Aeration

tank – I with a capacity of 4300 m3, Aeration tank – II with a capacity

of 4300 m3 with 4 x 50 HP fixed aerators and 13 x 30 HP floating

aerators, Two Secondary settling tanks having 150 m3/h capacity,

Oxygen mix flow system with a capacity of 60 HP. One of the

Digesters (which was earlier used) was converted for storage of

treated effluent. With 5 x 30 HP mortars the treated effluent is

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pumped into 18 km pipeline which joins K & S main for further

treatment along with domestic effluents in Amberpet Sewage

Treatment Plant.

9. The Hon’ble Supreme Court of India in the said writ petition

W.P.(C) No. 1056 of 1990 directed the CPCB and the respondent to

jointly submit an action plan for containing industrial pollution in

Patancheru area. Accordingly, the CPCB and the respondent

submitted an Action Plan, including laying of a pipeline to carry the

treated industrial effluent of the applicant’s CETP. The JAP, 1998

was approved and endorsed by the Hon’ble Supreme Court of India

in its order on 12.05.1998. The CPCB submitted a comprehensive

report on effluents management in Nakkavagu basin during March,

1998 to the Hon’ble Supreme Court. The report indicated four

options. Option 1 contemplated that the industries will treat their

effluents to certain specified norms before discharging into the CETP.

The CETP must thereafter treat the effluents to sewer standards and

discharge the treated effluents to main sewer which leads to the STP.

Option 2 contemplated the same treatment as per Option 1, and

discharge the treated effluent on land for afforestation. Option-3

contemplated the same treatment as Option 1, and dispose the

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treated effluent into Isakavaagu/Nakkavagu with connecting system

as suggested. Option – 4 contemplated the discharge of the treated

effluent of large industries into Isakaavagu/Nakkavagu with a

stringent limit of 30 mg/L of BOD, 250 mg/L of COD and 2100 mg/L

of TDS and provide connectivity to the drain. In case of small scale

industries (SSI), the effluent was to be treated at CETP and

discharged into Isakkavagu/Nakkavagu drain.

10. The CPCB further stated that the Option 1 provides

maximum certainty as compared to the other options. On

06.02.2001, the Hon’ ble Supreme Court accepted the revised JAP of

the project of providing 18 Km pipeline submitted in November, 2000

in the context of further treatment and dilution at Amberpet STP

which should be expanded and upgraded with secondary and tertiary

treatment facilities to treat and dispose mainly organic and nutrient

rich sewage into Musi river.

11. The Jawaharlal Nehru Technological University (JNTU),

Hyderabad, conducted the EIA studies for the 18 km long pipeline

project during March, 2001 and supplementary technical studies

during December, 2008 and concluded that there will not be any

negative impact on the environment due to discharge of treated

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industrial effluents into river Musi river. The Hyderabad Metropolitan

Water Supply & Sewerage Board (HMWSSB) took up the work of

executing the 18 km long pipeline in the year 2001, the cost being

shared by the Government and the applicant. The work of laying the

pipelines was completed in the year 2006. The Hon’ble High Court of

Andhra Pradesh constituted a Five Member Fact Finding Committee

with former Justice A.Gopal Rao as the Chairman by its order dated

25.09.2003. The Fact Finding Committee was to submit a status

report on the Terms of Reference (TOR) based on which appropriate

orders could be passed by the Court. The Committee visited the

pollution affected villages and industries in Medak District during

December, 2003 and January, 2004. The Committee heard the

pollution problems from the villagers, visited the agricultural fields,

vagus, tanks and collected soil samples, surface water and ground

water samples. The Committee submitted its report to Hon’ble High

Court in March, 2004.

12. The Committee observed 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

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Hon’ble Supreme Court, in a matter that originated under the

Hazardous Waste Management, a Supreme Court Monitoring

Committee was constituted which made inspections all over the

country. In the month of October, 2004, the said Monitoring

Committee inspected the applicant’s CETP and other areas of

Hyderabad and came up with a finding that all the measures of the

CETPs are not environment friendly. Thereafter, the respondent

imposed stringent standards on industries and CETPs. The

respondent/APPCB issued certain directions vide order dated

05.08.2005 to the applicant based on the directions issued by the

Monitoring Committee, prescribing inlet standards [except dissolved

solids (inorganic)] and outlet standards to the applicant.

Subsequently, vide order dated 26.12.2005 the respondent/APPCB

issued further directions to the applicant prescribing TDS (inorganic)

standards at the inlet, in continuation of earlier directions issued by

order dated 05.08.2005. In the order dated 12.03.2007 passed in

W.P.(C). No. 476 of 2005 and 441 of 2005 and batch cases, the

Hon’ble Supreme Court suggested that the CPCB and the State

Pollution Control Board (SPCB) shall meet to sort out the problem,

and submit an action plan. Accordingly, the CPCB and the

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respondent/APPCB convened a meeting on 02.07.2007 with CETPs

including the applicant herein. With due consideration to the

consultation had with the CETPs and the applicant, the CPCB and

the respondent/APPCB submitted a JAP to the Hon’ble Supreme

Court. The Hon’ble Supreme Court endorsed the action plan and

issued an order on 17.07.2007. The Hon’ble Supreme Court directed

the APPCB to implement the action plan at the earliest possible time

as per the schedule given in the action plan. The impugned orders in

the present application are orders issued by the APPCB in due

compliance of the orders issued by the Hon’ble Supreme Court. As

stated earlier, the actual context in which the Hon’ble Supreme Court

made the observations in respect of the applicant are to the effect

that even after connectivity is given to the STP the applicant should

continue to maintain the standards. The contention of the applicant

regarding the said order is not correct and the applicant cannot be

permitted to take advantage of the same when it is totally undisputed

that they had exceeded the standards as stated in the impugned

orders issued by the respondent/APPCB.

13. All possible steps were being continuously taken to lay and

connect the 18 km long pipeline with the STP at Amberpet. The

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respondent/APPCB had suggested various measures to be

implemented by the applicant, as a consequence of which, there was

significant improvement in the outlet standards to the level of those

prescribed in the JAP, 2007 and there was consistency in the outlet

standards only during May, 2009. It was only thereafter that the

connectivity could be given to the STP, as otherwise it would have led

to serious consequences due to discharge of effluent still containing

high level of pollution potential factors into the STP. Accordingly, the

respondent/APPCB sent a communication on 09.06.2009 addressed

to the Managing Director, HMWSSB to give connectivity to the 18 km

pipeline to the outlet of the applicant’s effluent, through K & S main

sewer to the STP at Amberpet. Thereafter, the connectivity was

given on 07.07.2009 in a phased manner and at present all the

treated effluent of the applicant is connected to the STP at Amberpet

for further treatment and also the applicant and the STP at Amberpet

are meeting the prescribed discharge standards.

14. The respondent/APPCB vehemently denies that the

impugned orders were issued without any notice and in violation of

the principles of natural justice. Those averments are totally contrary

to the truth and hence not correct. In compliance with the directions of

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the Hon’ble Supreme Court contained in the order dated 17.07.2007,

the respondent/APPCB issued directions to the applicant on

25.07.2007 and to the member industries on 31.07.2007 for effective

implementation of the JAP of CPCB and APPCB. The effective date

of implementation of the Joint Action Plan was from 01.08.2007 and

was completed in January, 2009. To implement the JAP, the

applicant furnished the bank guarantee for Rs. 50 lakhs on

23.10.2007. At no point of time the applicant objected to the said

directions issued on 25.07.2007. On the other hand, complied with

the same by furnishing the bank guarantee as required. The

applicant never questioned or challenged the correctness of the

directions issued on 25.07.2007. On having accepted the same at

that point of time, the applicant cannot now dispute the same by

making lame excuses after violations were noticed and penalties

imposed. Though the applicant addressed a communication dated

23.10.2007, it only contained a request for apportionment of the

penalty amount amongst the various parameters and to levy penalty

for violation of each of the parameters and it never objected to the

levy of penalty. It would be significant to note that in that letter the

applicant had not taken the stand that they are liable to meet the

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outlet standards only after connectivity to the STP as falsely projected

now in this application. The respondent/APPCB has strictly

implemented the JAP and the defaulters were penalized as per the

said JAP. As the applicant was not complying with the standards

stipulated in the JAP, penalty was imposed for the period November,

2007 to January, 2009. The penalty imposed is as approved by the

Hon’ble Supreme Court of India at the rate of Rs. 300 KLD for

violating any parameter. The violations are neither denied nor

disputed and in such circumstances, the allegations of violation of

principle of natural justice are devoid of any merit. All through, the

applicant was part of the process of laying of the standards and the

formulation of the JAP, he is not a stranger to make such complaints.

The applicant who has the responsibility to check and control the

level of pollution, failed in doing the same during the relevant period

leading to the imposition of penalty as approved by the Hon’ble

Supreme Court of India.

15. The impugned orders came to be passed after collection of

samples of the effluent from the applicant’s CETP over a sufficiently

continuous period and each order specifies the values that have

exceeded the prescribed standards. No representation dated

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18.04.2008 was received by the respondent/APPCB. The conduct of

the applicant shows that inspite of the orders passed by the

respondent/APPCB from March, 2008 onward in respect of the

exceeding the prescribed level of standards, the applicant paid no

regard to the same and on the other hand flagrantly continued the

violations resulting in the passing of the various orders. The applicant

was well aware of the standards to be adhered to and accepted the

same and had only requested for apportionment of penalty on the

basis of the number of parameters and did not question or challenge

the directions as contained in the order dated 25.07.2007. The

samples were collected in the presence of the officials of the

applicant over a sufficiently enough period of time and there is no

dispute regarding the analysis reports and the quantities arrived were

as per the records maintained by the applicant. The applicant who is

bound to maintain the standards and who had admittedly exceeded

the standards cannot raise frivolous contentions belatedly for the

purpose of avoiding and evading the payment of the penalty.

16. The impugned letter dated 06.02.2009 is only a reminder

and cannot be construed as the order by which the penalty was

imposed. If the applicant was actually aggrieved by the respective

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orders imposing penalty, the applicant would have taken appropriate

recourse and the very fact that they did not question or challenge the

respective orders at the relevant points of time would only show that

they have accepted the orders. In such circumstances, the instant

application is also liable to be dismissed on the grounds of delay and

laches as there has been enormous and unexplained delay in

approaching the Court as the first order imposing penalty came to be

passed on 14.03.2008, whereas the writ petition was filed almost

after a year. The applicant cannot take advantage of the reminder

and challenge the same. This is clearly an afterthought to evade their

liability and responsibility somehow or the other. No representations

were submitted in respect of the orders levying penalty. Since the

applicant did not pay the penalty imposed and also not complied with

the standards, the respondent/APPCB vide letter dated 04.02.2009

invoked the Bank Guarantee for Rs.50 lakhs furnished by the

applicant. The respondent/APPCB requested the bank authorities to

freeze the bank accounts of the applicant and also requested the

bank to remit the funds available in its accounts to the

respondent/APPCB towards the realization of the total penalty

amount of Rs.2,32,62,000/-, for the period from November, 2007 to

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October, 2008 vide order dated 10.02.2009. Pursuant to the interim

orders passed by the Hon’ble High Court of Andhra Pradesh, the

applicant deposited a sum of Rs. 50 lakhs on 31.03.2009.

17. The CPCB vide order dated 31.03.2009 directed the

respondent/APPCB to obtain Bank Guarantee from the applicant for

Rs.50 lakhs towards compliance of the directions issued therein.

Accordingly the respondent/APPCB issued orders dated 09.04.2009

to the applicant and pursuant thereto the applicant submitted a Bank

Guarantee for Rs. 50 lakhs vide letter dated 28.04.2009. The same

is not related to the above application.

18. The impugned orders are passed in accordance with the

JAP as approved and directed to be implemented by the Hon’ble

Supreme Court of India and which had been accepted by the

applicant and by following due and proper procedure. In these

circumstances, the present application is devoid of any merits or

substance and deserves to be dismissed. On the above grounds, the

respondent/APPCB seeks to dismiss the application.

19. In pursuance of an order of transfer made by the Hon’ble

High Court of Andhra Pradesh in Writ Petition No. 3510 of 2009, this

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application was taken on file. The following questions were

formulated for decision.

(i) Whether the applicant is entitled for a declaration that the

action of the second respondent in Proceedings No. PTN-

25/PCB/ZO/RCP/2005 dated 06.02.2009 as arbitrary, illegal

and without jurisdiction and declare that the second

respondent has no authority to levy penalty against the

applicant.

(ii) Whether a direction has to be issued to the

respondent/Board to refund the amount collected against the

bank guarantee and release the bank accounts freezed.

(iii) To what reliefs the applicant is entitled to?

Points 1 to 3:

20. The Tribunal heard the arguments advanced on either side and

looked into all the materials made available and paid its consideration

on the same.

21. Admittedly, the applicant is a CETP incorporated in the year

1989 by a group of industries who were operating in the said areas

referred to in the application and commenced the operations in the

28

year 1994. The applicant receives partially treated waste/effluent

(inlet) from a number of industries which are operating in the area,

treat the effluent to meet the permitted standards and discharges the

treated effluent (outlet) to a STP at Amberpet for further treatment.

From the STP, the treated water is being discharged into the Musi

River since Amberpet is far away from the location of the applicant’s

CETP through an 18 km long pipeline. The work was taken up by the

Hyderabad Metropolitan Water Supply and Sewerage Board

(HMWSSB) in the year 2001 and completed in the year 2009.

22. In October 2004, a Monitoring Committee appointed by the

Hon’ble Apex Court of India inspected the applicant’s CETP and other

areas and reported that all the measures taken up by the CETP were

not upto the standards and issued certain directions. The said

Committee convened a meeting in which the officials and the

applicant/CETP participated for the purpose of discussing the

measures as a result of which directions were issued. Following the

same, the respondent/Board issued directions to all concerned

including the applicant/CETP under Section 33-A of the Water

(Prevention and Control of Pollution) Act, 1974 as could be seen from

the Annexure-R1 dated 05.08.2005. As a result of a review meeting

29

held in respect of status of compliance of the directions dated

05.08.2005 stated supra, fresh directions were issued to the applicant

as found in Annexure-R2. After making an inspection and having a

meeting with the applicant, a Joint Action Plan (JAP) was submitted

by the CPCB and APPCB before the Hon’ble Apex Court of India in

W.P.(C).Nos. 441 and 476 of 2005. The said JAP was approved by

the Hon’ble Apex Court of India and in so far as the applicant/CETP is

concerned orders were passed in W.P.(C). No. 441 of 2005. While the

matter stood so, a direction was issued to the applicant directing the

applicant to meet the standards prescribed by the JAP, 2007 as

approved by the Hon’ble Apex Court on 27.05.2007. Apart from

putting the applicant on notice that the effective date of approved plan

is from 01.08.2007, a penalty of Rs. 300/- per KLD was imposed for

violation as indicated in Annexure-R4. By the impugned proceedings,

the APPCB imposed a penalty of Rs. 2,32,62,000/- at Rs. 300/- per

KLD for non compliance of the standards both outlet and inlet from

November, 2007 to October,2008.which is sought to be quashed in

this application.

23. Advancing the arguments on behalf of the applicant, the

learned counsel would submit that the applicant should comply with

30

the standards strictly once the connectivity with STP is given. It is not

in dispute that there was no connectivity during the relevant period.

Hence, penalty was not imposable on the applicant for non-

conforming to the outlet standards. The Hon’ble Apex Court clearly

observed that the standards for outlet could happen only after

connectivity with the STP was established. Therefore, the outlet

norms must be complied with only after the connectivity with the STP

was given. Thus, the imposition of penalty for non-compliance of the

outlet standards when there was no connectivity with the STP was

contrary to the express direction of the Hon’ble Apex Court and thus it

is not sustainable. It is also submitted by the counsel that the

applicant cannot be made responsible for any alleged breach of the

inlet standards. In so far as the inlet standards are concerned, the

applicant absolutely has no control over the same. The inlet of the

applicant is partly treated wastewater/effluent received from the

member- industries. If such effluent does not confine to inlet norms, it

would mean that the respective industries have not treated the

wastewater/effluent properly for which the applicant/CETP could not

be held responsible. The responsibility of the applicant is only to

ensure compliance of CETP with outlet norms irrespective of the

31

quality of effluent received for treatment. The respondent authorities

are responsible to monitor the quality of inlet which was provided by

the member-industries. The said responsibility cannot be shifted to

the applicant/CETP. Thus, the imposition of penalty by the

respondents on the applicant was only on account of the failure of the

respondents to perform their functions effectively. For imposing

penalty, the 1st respondent relied on the JAP and stated that the JAP

provided for imposing the penalty for violation of the standards also.

The relevant part of the JAP imposing penalty must be interpreted in

such a way as to give a logical meaning. Imposition of penalty on the

applicant for non-compliance of the standards of inlet is thoroughly

illogical as the applicant/CETP has no control over the quality of the

inlet. It is pertinent to note that the monitoring of the compliance of

inlet norms is the duty and responsibility of the regulatory authorities,

namely, the respondents. Therefore, imposition of the penalty on the

applicant for non-compliance of inlet standards is not only arbitrary

but illegal. If there were any violation of the norms, the same has to

be attributed only to the industries who supplied effluent to the

applicant/CETP. The objective of the entire project is to ensure that

the effluent ultimately discharged into the river must comply with the

32

standards to reduce pollution. The applicant should not be punished

for the lapse on the part of the industries. If the interpretation of the

respondents for imposing the penalty on the applicant is to be

accepted, it would lead to a situation where even when the outlet

norms are satisfied, the applicant can still be punished with penalty

for the fault of the industries not conforming to the inlet standards.

Such an interpretation should not be accepted since it is contrary to

the objective of the project. Penalty for violation of the inlet standards

is applicable to member-industries and penalty for not conforming to

the outlet standards alone is imposable on the applicant. Having

imposed the penalty on the industries rightly, any imposition of

penalty on the applicant would amount to double jeopardy. Apart from

all the above, the quantum of penalty of Rs. 2,32,62,000/- on the

applicant is harsh. While the penalty of Rs. 30/- per KLD was

imposed on the industry for non-compliance, a penalty of Rs. 300/-

per KLD was imposed on the applicant for the same incident of non-

compliance which would be contrary to the principles of justice and

hence the proceedings have got to be quashed and the amount

already collected against the bank guarantee has to be refunded with

direction to release the bank accounts freezed.

33

24. Countering the above contentions, the learned counsel for

the respondents taking the Tribunal to different documents relied on

by the APPCB would submit that the imposition of penalty as found in

the order was perfectly correct and valid and the application was

without any substance whatsoever.

25. As seen above, the respondent/APPCB has imposed a

penalty of Rs. 2,32,62,000/- at Rs. 300/- per KLD on the

applicant/CETP for non-compliance of the standards both outlet and

inlet during the period from April, 2008 to October, 2008. Aggrieved

by the same, the applicant has brought forth this application.

26. At the outset, it would be more apt and appropriate to

reproduce the relevant part of the order of the Hon’ble Apex Court in

W.P. (C ).No. 441 of 2005 dated 17.07.2007:

“It is not in dispute that the petitioner meets the

inlet Standards prescribed by the Action. It is

made clear, however, that the petitioner shall

also comply with the outlet standards

prescribed and mentioned in the Action Plan.

However, fulfillment of outlet standards can

happen only after the connectivity is

established with STP. The requisite amount

34

has also been deposited by the petitioner. It is

made clear that the outlet standards will have

to be complied with by the petitioner after the

connectivity is given with the STP. The

connectivity may be given as per the Action

Plan”.

27. A reading of the above said order would make it abundantly

clear that the outlet standards were to be complied with by the

applicant after providing connectivity with the STP which is a part of

the Action Plan. The applicant who received partially treated

wastewater/effluent (inlet) from the industries after treating the same

has to discharge the treated wastewater/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,

35

the claim by the APPCB in that regard is liable to be set aside.

28. In so far as the imposing of penalty, the same is assailed

by the applicant on the ground that the applicant/CETP has no

control over the inlet, that it is the duty of the individual member-

industry to conform to the inlet standards and is the responsibility of

the regulatory authority, namely, the APPCB to monitor the standards

of inlet which is provided by the individual industries. If there is any

violation of the inlet standards, it is attributable only to the individual

industry and not to the applicant/CETP and thus the imposition of

penalty is illegal.

29. After careful consideration of the available materials, rules

thereon and the order of the Hon’ble Apex Court, the Tribunal has to

necessarily negative the contentions of the applicant’s side for the

following reasons:

30. A Monitoring Committee appointed by the Hon’ble Apex

Court of India placed a JAP pursuant to which the proposal for laying

a pipeline to carry the treated industrial effluent of the Applicant’s

CETP and then on to STP was undertaken. In the year 2004, the

said Monitoring Committee appointed by the Hon’ble Apex Court

36

inspected the applicant’s CETP along with others when it was

noticed that they were not meeting the standards. Following a

meeting of the members of the Committee with the officials and the

applicant to discuss the measures for directions to the

respondent/APPCB as found in Annexure- R, the APPCB issued

directions to the applicant under Section 33-A of the Water Act, 1974

which reads as follows:

“10. The Board after careful consideration of the

information `available on record and in exercise of the

powers conferred under Section 33-A of the

Water(Prevention and Control of Pollution) Amendment

Act, 1988 and its amendments thereof, hereby directs the

CETP to comply the following directions:

1. The CETP shall not discharge the treated effluent into

the proposed 18 km pipeline.

2. The CETP shall accept pretreated effluent from the

member industries with the following inlet standards for

further treatment and disposal:

Inlet standards of CETP

Sl.No. Parameter Concentration

in mg/l

(except pH,

temperature

37

& radioactive

materials)

1 pH 5.5-9.0

2 Temperature 45 degree C

3 Dissolved Solids (inorganic) Will be

prescribed

shortly

4 Oil and Grease 20

5 Phenoic Compounds as (C6H6OH) 5.0

6 Ammonical Nitrogen (as N) 50

7 Cynide (as CN) 2.0

8 Chromium Hexavalent as (Cr 6) 2.0

9 Chromium ( total ) as (Cr) 2.0

10 Copper (as Cu) 3.0

11 Lead (as Pb) 1.0

12 Nickel (as Nl) 3.0

13 Zinc (as Zn) 15

14 Arsenic (as As) 0.2

15 Mercury (as Hg) 0.01

16 Cadmium (as Cd) 1.0

17 Selenium (as Se) 0.05

18 Fluoride (as F) 15

38

19 Boron (as B) 2.0

20 Radioactive Materials:

(a)Alpha emitters, Hc/ml

(b)Beta emitters, Hc/ml

107

10 3

31. It was made clear that if the CETP fails to comply with the

above prescribed standards within the stipulated period of 30 days,

legal action would be initiated under Section 33-A of the Water

(Prevention and Prevention of Pollution) Amendment Act, 1988 for

closure of the facility in the interest of public health and environment.

In order to ascertain the above compliance, a review meeting was

convened on 14.12.2005 and further directions were issued on

26.12.2005 as found in Annexure-R2. Paragraph 5 of the said

communication addressed to the applicant reads as follows:

“5. In view of the above, the following directions are

issued to CETP under Section 33 (A) of Water

(Prevention and Control of Pollution) Amendment Act,

1988 in continuation of directions issued to your CETP

vide reference 1st cited in respect of inlet standards of

CETP.

39

M/s. PETL, Patancheru, in no case, shall accept effluents

for treatment from their member units having TDS more

than the standard mentioned above in para 4(l) stipulated

to the discharges from member units. (i.e. pre-treated

effluent).

1. M/s. PETL, Patancheru shall accept the quantity of

effluents from member units as permitted by the Board.

2. The other discharge standards stipulated in order dated

05.08.2005 issued to M/s. PETL shall remain same.”

32. The Hon’ble Apex Court made an order on 12.03.2007 in the

aforesaid writ petitions that both CPCB/SPCB should have a meeting

to solve the problem. Accordingly, a meeting was convened on

19.04.2007 wherein it was decided to carry out inspection of

JETL/PETL (applicant herein) and related industries jointly by

CPCB/SPCB to come out with specific recommendations. In a

meeting convened on 02.07.2008 the representative of the

applicant’s CETP also participated and expressed their views. The

Action Plan proposed in the Joint Inspection Report was finalized by

both the CPCB/APPCB with due consideration with consultations

with the applicant. Inter alia, it was decided as follows:

“6.2. Inlet standards to the CETP: The standards

applicable to CETPs are notified under the E P Act.

40

Further, Chemical Oxygen Demand (COD) and Total

Dissolved Solids (TDS) (inorganic) limits have been

additionally prescribed by APPCB as empowered

under Water Act, keeping in view the treatability in

the CETP, design features of CETP, final disposal

point and local conditions.

Para 7. The finalized Action Plan for joint submission

by CPCB/APPCB to Hon’ble Supreme Court in the

light of above discussion is as follows:

Sl.No. Description Action Plan Time Schedule

and other

parameters of

compliance

1. Inlet standards for the

CETPs (i.e. outlet of

member

industry/tankers

received at CETP)

All the

parameters as

stipulated in

Schedule-I

(S.No.55) of the

Environmental

(Protection)

Rules, 1986 and

its amendments

thereto

Within 3

months

33. It remains to be stated that the JAP submitted before the

41

Hon’ble Apex Court in the Writ Petition (C) Nos. 441, 446/2005 etc.,

was accepted.

34. 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

42

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.

It is pertinent to point out that the applicant also participated in the

meetings convened and conducted by the Committee which resulted

in the JAP placed before 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.

35. It is an admitted position that the penalty of Rs. 2,32,62,000/-

was imposed on the applicant for non-compliance of standards for

both outlet as well as inlets during the period November, 2007 to

October, 2008. As could be seen from the available materials during

the said period there was no connectivity with the STP as held supra

and therefore the applicant is not liable to pay and the

respondent/APPCB cannot impose any penalty for the outlet for the

said period. In so far as the penalty imposed for inlet for the said

43

period, it is valid for the reasons discussed above.

36. 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.

Accordingly, with the above directions the application is

disposed of.

No cost.

(Justice M. Chockalingam) Judicial Member

44

(Prof. Dr.R. Nagendran)

Expert Member

Chennai,

Dated, 17th December, 2014

45