before the national green tribunal -...

1 (J) Appln. No.7(THC) of 2014 (WZ) (National Green Tribunal, (WZ) Pune

BEFORE THE NATIONAL GREEN TRIBUNAL

(WESTERN ZONE) BENCH, PUNE

APPLICATION NO. 07(THC)/2014(WZ)

CORAM:

Hon’ble Shri Justice V.R. Kingaonkar

(Judicial Member)

Hon’ble Dr. Ajay A. Deshpande

(Expert Member)

B E T W E E N:

1. Janardan Kundalikrao Pharande Age about 58 years., R/o. Nimbut, Tql. Baramati, Distt : Pune

2. Balasaheb Ganpatrao Kakade,

Age about 74 yrs., R/o.Nimbut, Tql. Baramati, Distt : Pune.

3. Vikram Janardan Pharande,

Age about 27 years., R/o. Murum, Tql. Baramati, Distt : Pune

4. Ashok Vishnu Agawane,

Age about 54 yrs., R/o. Nimbut, Tal. Baramati, Distt : Pune,

5. Dilip Prabhakar Pharande

Age about 50 yrs., R/o.Nimbut, Tq. Baramati, Distt : Pune.

6. Rajaram Ramdas Korde,

Age about 51 years., Occn : Mirewadi, Tq. Baramati, Dist : Pune.

7. Dattatraya Ramdas Korde,

Age about 57 yrs., R/o. Murum, Tq. Baramati, Distt : Pune,

8. Sarjerao Sidhu Sapkal,

Age about 67 yrs., R/o. Nimbut, Tq. Baramati, Distt : Pune.

9. Nira River Pradushan Sanghatana


Samitee (unregistered Organization) Organisation of 25 villages, Village Nimbut, Tq. Baramati, Distt : Pune. ……Applicants

A N D

1 Ministry of Environment & Forest Through : Director,(Govt. of India) Office at Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi 110 003 2 M/s. Jubilant Organosys Limited,

(Distillery Plant, Organic Chemical Plant and Captive Power Plant) Private Limited Company, Through : Managing Director Having its office at Nimbut Nira, Tal. Baramati, Distt : Pune.

2-A. M/s. Jubilant Industries Limited, Private Limited Company, Through : Managing Director Having its office at 1A, Sector 16A, Noida 201 301 (UP) Manufacturing address at At village Nimbut, Railway Station, Nira, Distt : Pune.

2-B. M/s. Jubilant Life Sciences Ltd., Through : Managing Director having Its office at Village Nimbut, Railway Station, Nira, Distt : Pune. 3. The Maharashtra Pollution Control Board. Through : Secretary, Having its office at MPCB Kalpataru Point, 3rd & 4th Floor, Sion. Matunga Scheme Road No.8, Opp. Cine Planet, Sion Circle, Mumbai 400 022 4. The Maharashtra Pollution Control Board., Through : Regional Officer, Having its office at Pune-1, 2nd floor, Jog Centre, Wakade Wadi, Pune.


5. The Director of Industries, Having its office at New Administrative Building, 2nd floor, Mumbai 400 032 6. State of Maharashtra, Through : Secretary, (MoEF)_ Having its office 15th Floor, New Administrative Building, Madam Cama Road, Opp. Mantrayaya, Mumbai 400 031. 7. The District Collector, Office of the District Collector, Near Pune Station, Pune. 8. State of Maharashtra, Through : Chief Secretary, Having its office at Mumbai 400 032 9. Union of India, Through : Secretary, Govt. of India, (MoEF), Having its office, at Paryavaran

Bhavan, CGO Complex, Lodhi Road, New Delhi 110 003 …..Respondents

Counsel for Applicant Mr. Sunil Dighe, Counsel for Respondent No.1: Mr. Nehru, w/ Ms. Shweta Bhusar, Counsel for Respondent No.2: Mr. Ravi Kadam, Sr. Counsel, w/ Mr. Prabhakar Joshi w/ Mr. Girish Utangale, Mr.R.B. Muley,

Counsel for Respondent(s) 3 to 6:

Mr. D.M. Gupte w/

Ms. Supriya Dangare

Date: 16th May, 2014

JUDGMENT


1. Originally, Writ Petition (PIL) No.240 of 2009 was

filed by Applicants in the High Court of Judicature at Bombay.

By order dated October 25th 2013, Hon’ble High Court (Coram :

Dr. D.Y. Chandrachud and M.S. Sonak, JJ.) directed transfer of

the Writ Petition to this Tribunal in view of the Judgment of the

Hon’ble Supreme Court in “Bhopal Gas Peedith Mahila Udyog

Sangathan Vrs. Union of India”. The Writ Petition was

thereafter registered as an Application under Section 14, 15, 16

read with Section 18 of the National Green Tribunal Act 2010.

The Applicants’ Counsel sought certain amendments in the

pleadings on basis of analysis of samples conducted later on

through an independent agency. By Order dated January 13th

2014, the request for amendment was allowed.

2. The Applicants, in continuation of their pleadings in the

petition, filed amended pleadings in this Tribunal. However, it

may be noted that they have not filed a composite copy of the

original pleadings alongwith amendment of the pleadings and

the comprehensive application in the format as per Rule 10 of

the National Green Tribunal (Practice and Procedure) Act 2011.

3. Shorn of technicalities and un-essentials, case of the

Applicants is that they are residents of villages Nimbut, Murum

and Mirewadi situated in Pune and Satara Districts. These

three villages are located on bank of river ‘Nira’. For many

generations in past, the residents of these villages are using

water of river ‘Nira” for human consumption, animal

consumption and agricultural use. They have right to get good

quality water for the above purposes. Such is the fundamental


right available to them in view of guarantee of life enshrined in

Article 21 of the Constitution.

4. Respondent No.2 M/s. Jubilant Organic Ltd., is a

Company incorporated under the Companies Act 1956.

Admittedly, this company is now segregated in two different

private limited Companies styled as “M/s. Jubilant Industries

Ltd. and M/s. Jubilant Life Sciences Ltd. Therefore, by way of

amendment dated February 3rd, 2011, these two Companies

have been added as Respondent No.2-A and 2-B alongwith

original Respondent No.2 M/s. Jubilant Organics Ltd. For sake

of brevity, all of them will be referred hereafter, commonly as

“Jubilant Industry”. Jubilant Industry was granted

environmental clearance certificate dated December 23rd, 2008

by Respondent No.1-MoEF for expansion of its molasses based

distillatory unit from 90 KLPD capacity to 200 KLPD capacity of

Organic Chemicals and to set up a new 12 MW Captive Power

Plant at village Nimbut. Respondent No.3 M.P.C.B. also granted

consent to operate for the expansion of industry and the power

plant. Applicants are aggrieved by the Environmental Clearance

Certificate dated December 23rd 2008. Initially, Director of

Industries had issued certificate somewhere in 1963 to one M/s.

VAM Organics Company for manufacturing Acetic Acid and

other chemical products. The Industrial activities of M/s. VAM

Organics Company were later on closed down. The Company

was transferred from one hand to another and eventually was

taken over in 1999 by Jubilant Industry.

5. According to the Applicants, the hazardous waste was

being discharged since long many years, unscientifically, by


M/s. VAM Organics Company and thereafter by M/s. Jubilant

Industry in river ‘Nira’. As a result of such effluent discharge,

including drifting of spent wash, the ground water of the area

nearby river ‘Nira’ is contaminated. As a result of such

obnoxious Industrial Waste Management of Jubilant Industries,

human life of the villagers is endangered, the agricultural food

products, water, soil and bio-diversity in the area is impaired.

Though, a large number of complaints were made time and

again, yet only cosmetic type of actions were taken against

Jubilant Industry which did not deter such obnoxious activities.

6. The Applicants have come out with a case that in spite

of earlier complaints, which were not properly dealt with, the

Respondent No.1 and 3 granted Environmental Clearance (EC)

and consent to operate, respectively, for the expansion activities

of Jubilant Industry. Now Jubilant Industry has started

manufacturing of chemicals and products which are noxious,

including some of them which are internationally banned. The

industry has started manufacturing super phosphate (SPh)

which is harmful for the agricultural and food products of the

area surrounding the villages. The industry, after the expansion

and diversification has also started production of certain

chemical materials like Vinyl, pyridine and latex. So called

preventive actions allegedly taken by the Respondent No. 3 and

4, M.P.C.B., have proved to be inadequate and of no much use.

The Applicants had approached the Hon’ble High Court by filing

Writ Petition (PIL) No.44 of 2001. The Hon’ble High Court gave

certain directions, however, when Jubilant Company undertook

to implement conditions of the M.P.C.B. on the basis that it has


taken over M/s. VAM Organic Company with all the liabilities. It

is alleged, interalia, that the effluent discharged in the river

through “Buvasaheb Nala” causes pollution of the river water

down-stream of the industry and groundwater in the

surrounding area. Not only that the human lives and crops are

affected due to the water pollution but the Flora and Fauna is

also adversely affected due to same.

7. Allegedly, Jubilant Industry has continued to cause

pollution of the river water and ground water by its Industrial

activities. It is essential, therefore, to ensure that the water

pollution is stopped by providing permanent solution. The

Applicants seek that Environment Clearance Certificate dated

December 23rd, 2008 issued in favour of Jubilant Industry shall

be cancelled and other directions be given including, restoration

of the environment, payment of damages and imposition of

penalty.

8. By filing reply-Affidavit of Shri Rajesh Doshi, who is Vice

President and Power of Attorney holder of Jubilant Industry, it is

pointed out that a scheme was submitted to the Hon’ble High

Court at Allahabad for amalgamation of the two (2) Industries

which are now styled as Respondent No.2A and 2B. It is stated

that under the scheme, Jubilant Industries will focus on

production activities of agriculture, I.M.F.L. and Performance

Polymer business whereas Jubilant Life Sciences Industry will

focus on production of pharmaceutical and Life Sciences

products. They alleged that the Applicants attempted to

obstruct working of the Industry and therefore, a prohibitory

injunction was sought from the Civil Court at Baramati. The


Applicants were prohibited from holding Dharana and

organizing rallies within distance of 500m of from the premises

of the Industries. According to the Jubilant Industry, present

Application is barred by principle of “res-judicata” on account of

disposal of the previous Writ Petition (PIL) 44 of 2001 by order

dated February 8th 2006 in view of due compliances of the

directions of the Hon’ble High Court Order dated March 17th,

2001. It is further averred by Jubilant Industry that necessary

control measures have been taken to ensure that coal dust

would not emanate out of the factory premises. The boundary

wall of the factory is constructed up to 14 ft. on all the four sides

to arrest the spreading of the coal dust. Jubilant Industry

claims that it has received Safety Awards from 1998 till the date.

So also, various tests were carried out from recognized

Laboratory which confirmed that the samples of the effluents are

as per the prescribed standards and there is no violation of the

environmental norms. It is categorically denied that discharge of

effluents of Jubilant Industry is obnoxious and has resulted into

adverse impact on life of the people in surrounding area, on the

environment or on the aqua-fauna. According to Jubilant

Industry, water of river ‘Nira’ falls under category-IV as per

classification of water usages and is unfit for human

consumption. Unlined lagoons used by erstwhile Company i.e.

M/s. Polychem have been demolished and only lined lagoons

have been used which are constructed as per Corporate

Responsibility of Environment Protection (CREP) norms

prescribed by the Central Pollution Control Board (CPCB). It is

further contended that the effluent discharged from the acetic


acid plant is treated in Chemical Effluent Treatment Plant

(CETP) and such Treated Water is used for the gardening

purpose. Jubilant Industry claims to have developed a green-

belt and separate garden to make the industry environment and

eco friendly. It is contended that adequate effluent facilities are

made available by Jubilant Industry. It is denied that effluent or

any hazardous waste is dumped in the open ground or the

effluents are discharged in the river body of ‘Nira’.

9. Case of Jubilant Industry further is that the Applicants

failed to avail alternate remedy to prefer an Appeal under

provisions of the Environment (Protection) Act 1986 within

prescribed period of limitation after grant of the Environment

Clearance (EC). Therefore, the Writ Petition as well as the

present Application could not be entertained. It is contended

that M/s. Polychem Ltd. commissioned its factory somewhere in

the year 1963 on left bank of river ‘Nira’ and was engaged in

manufacture of Industrial Alcohol using molasses as raw

material. Subsequently, that Industry started manufacturing of

country liquor and IMFL based on Ethyl Alcohol in the year

1973. The activities of Industrial production had been expanded

later on in the year 1982, 1989 and 1990 for manufacturing

products viz. Vinyl Acetate Monomer (VAM), Polyvinyl Alcohol

(PVA) and Acetic Acid respectively. The manufacturing facilities

were taken over from Polychem Ltd. by VAM Organic Chemical

in 1999 and name of the same company was changed in the

year 2001 as M/s. Jubilant Organic Ltd. It was during course of

the passage of time that the expansion of the Industrial activities


had taken place and the Industry was divided in two different

identities as mentioned earlier.

10. According to Jubilant Industry, necessary

improvements have been made to meet environment standards.

The old spent wash storage lagoons are re-claimed. The

Industry has constructed new impervious lagoons in accordance

with guidelines of the C.P.C.B. The effluent from the acetic acid

plants is being treated in CET. That plant is also not being

operated from December 2008 onwards. The Industry admitted

that the management of molasses based distillery and allied

activities have been changed during passage of the time. It is,

however, denied that due to such change, the high level

pollution of the river water is being caused in as much as

production capacity of the Industry has been enhanced. It is

contended that whatever discharge directly was reaching to the

river water, well-water etc. has been stopped by adopting zero

discharge as per Corporate Responsibility as per the

Environment Protection (CREP) guidelines. The distillery unit is

being run with due precaution so as to ensure that zero

discharge is achieved. It is contended that there are many

villages and industries on the bank of river ‘Nira’. The domestic

sewage, inclination of dead body, effluents discharges from other

industry and water left out from washing of vehicles/clothes etc.

is directly discharged in the river ‘Nira’ and that may be the

reason for contamination if it is so found. In any case, the

Industrial Activities of Jubilant Industries are not causing any

environmental damage, water pollution or threat to the

environment as alleged by the Applicants. On these premises,


Jubilant Industry and other two merged industries sought

dismissal of the Application.

11. Applicant No.1 Janardan filed Affidavit in re-joinder and

reiterated the averments made in the Application. His Affidavit

shows that the claim of the Jubilant Industry is denied. He

relied upon Reports of the Government Agricultural Laboratory

in support of the Affidavit in re-joinder. He also filed additional

Affidavit.

12. There is Affidavit of Rajendra Dhumal who is inhabitant

of village Nira, Tq. Purandar. He supports case of the

Applicants.

13. On behalf of Respondent no.1 and 9 Dr. A. Mehrotra

filed his reply-Affidavit dated March 5th, 2014. His reply-

Affidavit shows that environmental clearance (EC) dated

December 23rd, 2008 was accorded by following due procedure

prescribed vide EIA Notification dated September 14th, 2006.

His Affidavit shows that Jubilant Industry has submitted six (6)

monthly compliance report as per General Condition No.(ix) of

the EC letter dated December 23rd, 2008. He denied that the

environment clearance (EC) was granted without considering the

probable environmental impacts and the fact that the Industrial

Activities will impair environment and ecology in the

surrounding area of the Industry.

14. On behalf of the Respondent Nos.3 and 4, Regional

Officer of the M.P.C.B. filed reply-Affidavit. So also, an

additional affidavit is filed by Shri Anil Mohekar on February 4th,

2014 after filing of the amendment Application. According to the

M.P.C.B., it has prepared Status Reports from time to time. The


compliances were periodically monitored by the M.P.C.B. The

juxta-position as available is spelt out in the Status Report

prepared by Regional Officer of the M.P.C.B., Pune. The Status

Report refers to monitoring work done by ‘NEERI’. The Report

shows that Jubilant Industry has obtained consent to operate

from the M.P.C.B. on May 21st 2013 which is valid up till end of

February 2016 for production of Acetic Ethyl Alcohol, Acetic

Anhydrate liquid CO2. It is stated that the Industry has

discontinued manufacturing of acetic acid and acetate from

2009 onwards. Jubilant Industry has four (4) number of coal

and two (2) number of biogas based boilers to meet the process

steam requirement utilizing about 150—300 TPD of coal &

5000—45000 M³ in boiler, bio-gas per day generated from 400--

1200 m3 day of Distillery effluents. The details of Effluent

Treatment are shown in the Report.

15. The M.P.C.B. Report, however, shows that four (4) dug/

bore wells showed existence of coloured water and five (5) wells

exceeded limits of Alkanity than prescribed norms of 200 ppm.

The report further shows that water in Buvasaheb Nala and an

Arm of river flowing parallel to HRTS was found to be deep

brown in colour. It was found that samples of water upstream

and downstream of Buvasaheb Nala, Saloba Nala had low DO

(Dissolved Oxygen). It was further observed that percentage of

Fluorides was high at location of Saloba and Buvasaheb Nala.

COD was high in three (3) samples. Oil and grease exceeded in

three (3) out of eighteen (18) samples. Thus, the Report of

M.P.C.B. shows certain deficiencies in Control Measures of the

Jubilant Industry.


16. From the pleadings of the parties, it may be gathered

that Jubilant Industry, which is now having two (2) different

identities i.e., Respondent No.2A and Respondent No.2B are the

main contesting parties in the present litigation. The M.P.C.B. is

Regulatory Authority. The allegation against the M.P.C.B. is

that complaints of the Applicants and other inhabitants of the

villages are not properly addressed and no serious action has

been taken against Jubilant Industry. The grievance of the

Applicants against Respondent No.1 MoEF is that the

environment clearance (EC) for expansion of the project activities

is granted without following due process and environmental

norms.

17. Considering rival pleadings and the nature of dispute,

we deem it proper to frame following issues for adjudication of

the Application :

(i) Whether the disposal of the earlier Writ Petition

No. 44 of 2001 bars the present Application due to

Application of the principle of res-judicata ?

(ii) Whether the contamination of water can be

attributed to Industrial mis-managed discharge of

effluents of Jubilant Industry and has resulted into

damage to the fertility of the agricultural lands or the

Flora and Fauna in the area ?

(iii) Whether remedial measures are necessary to

arrest the water pollution, if any, caused by Jubilant

Industry ? If yes, what measures shall be adopted ?

(iv) Whether Jubilant industry is liable to pay any

damages for loss caused to the environment and


particularly loss to the agricultural lands of the

villagers due to loss of fertility ? If yes, to what

extent and to whom ?

(v) Whether the environmental certificate dated

23rd September 2008 is liable to be set aside and the

Jubilant Industry shall be directed to stop expanded

Industrial activity undertaken in terms of the said

Environmental Clearance ?

18. Before we proceed to deal with the above issues, it may

be mentioned that the Applicants have amended the Application

to certain extent in view of the intervening developments. They

have not, however, filed comprehensive amended Application as

such. They have only filed memorandum containing the portion

of amended pleadings. According to them, the Ambient Air

Quality standards have been changed as per Government

gazette dated November 18th, 2009 and therefore, revised

environment policy should be looked into. They submit that

pollution of the water due to addition of chemical called

“Melanoidina” in the distillery effluents is the reason of change

in the water colour which makes it rather dark like brown or

coffee colour. They further submit that the cause of action has

continued because the pollution has remained unabated and as

such, the Application can be duly considered.

19. In the wake of these amendments, Jubilant Industry

filed Misc. Application No.45/2014 seeking recalling of order

dated January 13th, 2014 by which the amendment of the

original petition was allowed. It is alleged that Jubilant Industry

would have certainly resisted the prayer for amendment of the


pleadings but was not given due opportunity. It is contended

that amendment could not be allowed without hearing Jubilant

Industry which is the main contesting party and is likely to be

affected by such order. It is an admitted fact, however, that

none had appeared for Jubilant Industry on the stipulated date

i.e. January 13th, 2014. Because the matter was transferred by

the Hon’ble High Court, it has to be gathered that the parties

were aware of the date fixed in the matter. The Counsel for

Respondent nos.3 to 6 had appeared before the Tribunal. All

said and done, the amendment is not of substantial nature, nor

it causes any prejudice to the rights of Respondent No.2

Jubilant Industry. The amendment only highlights the

intervening developments. So far as the procedural part is

concerned, it may be stated that Section 19 of the National

Green Tribunal Act 2010 gives flexibility to the Tribunal in such

matters. The procedural Rules of the Code of Civil Procedure are

not applicable to the proceedings before the National Green

Tribunal. Unless certain adverse order is to be passed which

will cause serious impact on the rights of party, it may not be

essential to hear the party. The provision of Section 19 of the

National Green Tribunal Act shows that only principles of

natural justice need to be followed. In this view of the matter,

the objection raised by Jubilant Industry is over-ruled and the

Misc. Application (45 of 2014) is dismissed. It be treated as

disposed of accordingly.

20. There are other Misc. Applications bearing Misc

Application No.43 of 2014 filed by Rajendra Dhumal, Ajit

Kamble, Sachin Morey. Another one is filed by Jubilant Kamgar


Union for intervention. They have sought intervention in the

proceeding for different reasons. The first three (3) Applications

are filed by private Applicants on the ground that they are

interested in protecting the environment. They submit that their

presence in the proceeding will be helpful to the National Green

Tribunal for efficacious adjudication of the Application. It

appears that they wish to support the Application. We do not

find their intervention is needed. Hence, the Misc. Application

No. 43 of 2014 is dismissed.

21. Misc. Application No.72 of 2014 is filed by the Workers

Union. The Workers Union allege that the Members of the Union

will be sufferers if the factory units are closed down. They allege

that there are 600—700 persons depending upon the

employment of the Industry, apart from the contractual workers.

Their source of earning will be taken away if the Industrial

Activities are stopped. Hence they seek intervention on the

ground that they are likely to be adversely affected if any adverse

order is passed against the Jubilant Industry. In our opinion,

Jubilant Industry is capable of protecting interest of its workers.

Moreover, the Application is not supported by documents to

show enrolment of the workers and the registration of the Union.

We do not think it necessary to allow the Workers Union to

intervene in the matter because it is not the Industrial dispute

in which the workers will have any particular role or defence as

such. Therefore, the Misc. Application No.72 of 2014 stands

dismissed and is disposed of accordingly.

Re. : (i) :


22. For the purpose of examining this issue, it would be

appropriate to consider the tenor of the Writ Petition i.e. W.P.

(PIL) No.44 of 2001. True it is, that the Applicants had filed said

Public Interest Litigation (PIL) against the Respondents,

including Jubilant Industry, on identical grounds. By an order

dated October 24th, 2001, the Hon’ble High Court passed certain

interim directions while adjourning the matter to the first week

of January, 2002. The interim directions were, however, rather

limited to the extent of directions to the M.P.C.B. to verify the

claim of Jubilant Industry which had alleged that it does not

discharge even a drop of its effluent into any of the existing

lagoon and no effluent is discharged in the river. The interim

directions can be culled out as follows :

i) The M.P.C.B. shall verify whether effluent is

discharged by Jubilant Industry or that it is not so

discharged in the river ‘Nira’.

ii) In any event, the effluent treated in by Jubilant

Industry should be tested and in it so, the M.P.C.B. shall

take into account the parameter laid down in the

statute/Rule. If the M.P.C.B. comes to the conclusion that

no effluent is discharged by Jubilant Industry into river

‘Nira’ and else where and that the effluent effectively

treated at its own Effluent Treatment Plan (ETP), no

further action may be necessary.

iii) Further if it is found that any part of its discharge in

river or elsewhere is contributing to environmental or

water pollution the board by reference to parameter laid

down, by the statute/Rules and if it found that it does not


conform to the standards laid down, the Board to take

appropriate action.

iv) The only direction which we wish give to the Board is

to find out the contamination/pollution. If the River is

polluted upstream on account of the activities of any other

units, it should take action against those units. If it is

found that the pollution of the River water is only on

account of percolation from the spent wash lagoons,

obviously, we have to wait for some time till the lagoons

are dried up.

23. Now, it may be gathered from further proceedings in the

matter that the W.P.(PIL) No.44 of 2001 was finally disposed of

by the Hon’ble High Court on basis of Affidavit of Shri. D.B.

Boralkar, Member Secretary of M.P.C.B. and Visit Report dated

January 29th, 2006 filed in the proceedings of the said Writ

Petition. In order to locate the edifice of the final order, we deem

it proper to reproduce the entire text of paragraphs (3) and (4) of

the said order which are brief and give the conspectus of the

reasons why the Hon’ble High Court thought it fit to dispose of

the said Writ Petition. The relevant part of the order reads as

follows :

“It appears that the site of respondent No.2-Industry

was inspected on 29th January, 2006. The visit Report

summarizes its observations :

“(A) During the visit, distillery is operated for 60 KLPD

capacity and effluent generation is about 720 Mᵌ/day.

Secondary treated effluent is used for ferti-irrigation.

(B) The industry has provided two Nos. of impervious

lagoons for temporary storage of primary treated effluent

(BME) having capacity of 14,000 CUM and 25,000 CUM.


Industry has also provided one no. of impervious

pond of 45,000 CUM capacity for the storage of secondary

treated effluent in their own land.

(C) The industry had submitted time-bound programme

for the utilization of old spent waste stored in old lagoons

and accordingly the total spent accumulated have been

utilized in the bio-compositing process.

(D) For the treatment of spent wash industry has

provided primary treatment (Bio-reactive) and secondary

treatment plant. The treated effluent is stored in the

impervious lagoon and pond before it is used for

compositing and ferti-irrigation purpose.

(E) The industry has already submitted comprehensive

ferti-irrigation scheme in consultation with Rahuri Krishi

Vidhapeeth to the Board and the same is implemented.

(F) The industry has scrapped all the old lagoons step

by step upto 31-12-2005 and reclaimed by using soil and

fly ash. However, it is observed that latest two scrapped

lagoons need to leveled.

(G) The industry has commissioned the Bio-

methanation plant in the month of July 2002.

(H) The industry has approached to the Commissioner

of Imports through ICMA (Indian Chemical Manufacturing

Association) on 10th of August 2004. But no response was

given by them.

The industry has carried out E/A study regarding

the quality of Nira River Water D/s of factory with regards

to flora and fauna though M/s. Mahabal Enviro Engineers

and the same was submitted to the Board.

(I) The industry has submitted the summary of

feasibility report of NEERI for HRTS in which NEERI has

recommended to take trials of HRTS at Nira and trials are

being carried out in 10 Acres of land which was verified

during the visit. The Eucalyptus trees are planted and the

growth is about 10 Mtrs. height, in 5 acres within three

years.

(J) The industry had submitted Bank Guarantees and

renewed it from time to time.


It transpires therefrom that the respondent No.2

industry has complied with the interim directions issued

on 17th March, 2001. The Affidavit of Mr. D.B. Boralkar

also records that the respondent-Industry has complied

with interim directions on 17th March, 2001 and that the

lagoons have been reclaimed in all respects.

In view thereof, nothing further remains to be done

in the Writ Petition. It is disposed of accordingly. No

Costs.

Sd/- (R.M. LODHA, J.)

Sd/- (ANOOP V. MOHTA, J.)”

24. We have reproduced the above two (2) paragraphs in

view of the contention raised on behalf of the Jubilant Industry

that the present Application is barred by principle of “res-

judicata” due to the earlier round of litigation and orders of the

Hon’ble High Court. Shri. Ravi Kadam, learned Sr. Counsel

would submit that after above order of the Hon’ble High Court, it

is necessary to go ahead and see whether any cause of action

has arisen thereafter due to further developments and the

Applicants cannot be permitted to go back to re-agitate the same

grievances founded on the same cause of action. He invited our

attention to order dated February 7th, 2013 passed by the

Hon’ble High Court (Coram : A.M. Khanvilkar & K.K. Tated, JJ.).

By that order Director/Secretary of ‘NEERI’ was requested to

appoint competent person to inspect the site and surrounding

area referred in the Writ Petition (PIL) No.240 of 2009 and

submit report in respect of Air and Water Pollution level, if any.

It is further argued by learned Sr. Counsel Shri. Ravi Kadam


that the Hon’ble High Court noted that Jubilant Industry has

complied with the interim direction issued on March 17th, 2001

and nothing further remained to be done in the context of earlier

Writ Petition (PIL) No. 44 of 2001 and as such, it was disposed of

which does imply that the issue of Water and Air Pollution qua

Jubilant Industry is foreclosed. It is further argued that the

Applicants cannot be permitted to rake up the same issues

again and again which will make it difficult to put an end to the

litigation. The learned Sr. Counsel would submit that if any

compliance is yet to be done, then the Applicants are at liberty

to approach the Hon’ble High Court. He would submit that

Fora of National Green Tribunal cannot be used for execution of

the directions issued by the Hon’ble High Court.

25. We have given our anxious thought to the submissions

of learned Sr. Counsel Shri. Ravi Kadam. What we find from the

order of the Hon’ble High Court is that the earlier Writ Petition

(PIL) No.44 of 2001 was disposed of on the basis of inspection

report submitted by the M.P.C.B. and the Affidavit of Dr.

Boralkar. The order of the Hon’ble High Court shows that the

Jubilant Industry had submitted ferti-irrigation scheme in

consultation with Rahuri Krishi Vidyapeeth to the Board and the

same is implemented. The Industry carried out EIA study of

water quality in ‘Nira’ river with regards to flora and fauna

through M/s. Mahabal Enviro Engineering and the same was

submitted to the Board. It is further stated that Jubilant

Industry has submitted the summary of viability report for HRTS

in which ‘NEERI’ has taken trials of HRTS and Trials have been

carried out within 10 Acers of land which was verified during


visit. The eucalyptus trees are planted and growth is about 10

mtr. high in 5 acers within three (3) years.

26. So, what major achievement is done after the interim

order is that the lagoons were re-claimed in all respects. The

other infirmities are agreed to be removed by submitting time

bound programme, submitting the compliances to the Board etc.

Needless to say, the final order dated 8th February 2006 was

passed in the Writ Petition (PIL) No.44 of 2001 on basis of the

Affidavit of Shri. D.B. Boralkar, Member Secretary and on visit

report of the M.P.C.B. As a matter of fact, relevant

environmental issues were not decided on merits. Nor,

particular issues were dealt with. What appears from the order

is that the Water quality of the river was examined through M/s.

Mahabal Enviro Engineering and the report was submitted to

the Board. We do not know whether the M.P.C.B. had accepted

that report. We also do not know whether the Hon’ble High

Court accepted the said report. All said and done, the Hon’ble

High Court did not give any finding to the effect that Jubilant

Industry was not responsible for discharge of any effluent nor

any pollution was being caused due to the discharge of any

effluents or spent wash of the said Industry in ‘Nira’ river. There

is no finding of the Hon’ble High Court about water quality of the

‘Nira’ river.

27. In our humble opinion, the order of the Hon’ble High

Court, which does not categorically give any finding to the effect

that Jubilant Industry is non-polluting Industry and was not

discharging any pollutant in the water body of river ‘Nira’, the

principle of “res-judicata’ cannot be invoked in the facts and


circumstances of the present case. We cannot over-look that the

environmental litigation is not strictly adversarial in nature. The

‘lis’ is not between the parties as such but it is between the

environment and the alleged polluter of environment. It is aptly

said that rivers, mountains, trees, birds, flora and fauna have no

language, particularly, in legal parlance and, therefore, they

speak through human beings. Such kind of litigation is partly

inquisitive and partly adversarial.

28. Coming to question of applying the Rule of

constructive “res-judicata” in the facts and circumstances of

the present case, it need not be reiterated that the Writ

Petition (P.I.L.) No. 44 of 2001 was disposed of in

accordance with the report of M.P.C.B. which indicated

compliances of the interim directions in that matter. The

Hon’ble High Court of Bombay did not record any finding to

the effect that Jubilant Industry was not responsible for

causing pollution to the water body of river ‘Nira’ due to

discharging of the Industrial effluents. It may be further

noted that the subsequent litigation, Writ Petition (P.I.L.)

No. 240 of 2009 was filed in order to protect interest of the

public members, raising issues of public importance. The

Apex Court in “Rural Litigation and Entitlement Kendra

Vrs. State of U.P.” 1989 Supp.(1) S.C.C. 504, declined to

apply the Rule of constructive “res-judicata” to a P.I.L.

raising issues of public importance on the ground that in a

P.I.L. the disputes raised were not inter-parties and that

constructive res-judicata was a technical defence, which


could not preclude consideration/determination of such

matter. It is observed that every technicality in the

procedural Law is not available as a defence when a matter

of grave public importance is for consideration before the

Court. The Apex Court further observed that even though

the earlier order could be treated as final one, then also in

the dispute like P.I.L., it would be difficult to entertain the

plea of “res-judicata”.

29. So also, in “V. Purushotham Rao Vrs. Union of

India and Ors.” (2001) 10 S.C.C. 305 the issue of

constructive “res judicata” came up for consideration. The

Apex Court noted that considering the Explanation of

Section 141 of the Code of Civil Procedure, proceedings

under Article 226 of the Constitution are excluded from the

expression “proceedings”. Therefore, the Code of Civil

Procedure is not required to be followed in a proceeding

under Article 226, unless the High Court itself has made

the provisions of C.P.C. applicable to the proceedings under

Article 226. The Court further noted, that the principle of

Section 11 as well as Order 2, Rule 2 C.P.C. contemplate an

adversarial system of litigation where the Court adjudicates

the rights of parties and determines the issues arising in a

given case. Public interest litigation or a petition filed for

public interest cannot be held to be an adversarial system

of adjudication and the petitioner in such a case, merely

brings it to the notice of the court as to how and in what


manner the public interest is being jeopardized by arbitrary

and capricious action of the authorities. The Court further

noted that even in the self same proceedings, the earlier

order though final, was treated not to create a bar,

inasmuch as the controversy before the Court was of grave

public interest. After so saying this is what the Court

observed.

“In our considered opinion, therefore, the principle

of constructive “res-judicata” cannot be made applicable

in each and every public interest litigation, irrespective

of the nature of litigation itself and its impact on the

society and larger public interest which is being served.

There cannot be any dispute that in competing rights

between the public interest and individual interest, the

public interest would override.

30. In “Guruvayoor Devaswom managing Committee

Vrs. C.K. Rajan (2003) 7 S.C.C. 569” the Hon’ble Supreme

Court considered the decisions in “Forward Construction

Co. & in Rural litigation & Entertainment Kendra Vrs. State

of U.P.” and reiterated that :

“Although procedural laws apply to P.I.L. cases but

the question as to whether the principles of “res

judicata” or principles analogous thereto would apply

depends on the nature of the petition as also facts and

circumstances of the case”.

Apart from the legal position discussed herein

above, it would be appropriate to refer Section 19 of the


National Green Tribunal Act 2010. Section 19(i) and (ii)

read as follows :

(1) The Tribunal shall not be bound by the procedure

laid down by the Code of Civil Procedure, 1908 (5 of

1908) but shall be guided by the principles of

natural justice.

(2) Subject to the provisions of this Act, the Tribunal

shall have power to regulate its own procedure.

(3) x x x x x x x

(4) x x x x x x x x

(5) x x x x x x x x

31. Bare perusal of the above mentioned section would

indicate that this Tribunal is not bound by the procedure

laid down by the Code of Civil Procedure, 1908. It follows

that the technical defence of Jubilant Industry regarding

applicability of section 11 of the Code of Civil Procedure is

untenable in the eye of Law. Further, this kind of litigation

is not adversarial one and therefore too in view of Dictum in

“V. Purushotham Rao Vrs. Union of India and Ors.” (supra)

the plea of ‘Res-judicata’ is untenable. Moreover, when the

Hon’ble High Court has not dismissed the Writ Petition

(P.I.L.) 240 of 2009 on such a ground during period of about

five (5) years in the past, before the same was transferred to

this Tribunal, we do not think it proper and legal to

entertain such argument advanced on behalf of Jubilant

Industry.


32. We are, of the view that unless the parties go to trial or

any finding is recorded on basis of particular material, after

appreciating rival contentions, the principle of “res-judicata” will

not be applicable in relation to the subsequent litigation. This is

particularly more so when the environmental issues are

involved. For, the litigation may come to an end on basis of

certain statement made by an Industry to undertake

compliances. It may be that subsequently the compliances are

not done or that more deficiencies are noticed in the

working/operation of the Industrial unit which may give rise to

Air/Water Pollution. The subsequent unabated problem of

Water Pollution or Air Pollution cannot be brushed aside on the

ground that the earlier proceedings have been terminated by the

Court on the basis of certain statement made by the Industry or

that certain compliances which were found to be in order. For,

an ETP may be found to be functioning when inspected in 2009

but if it is not well monitored and maintained properly, in 2010

it may not be found working effectively and the pollution may be

noticed due to its mal-functioning. In other words, the cause of

action may be continuing or may be recurring in such a case.

Considering these aspects, we deem it proper to hold that the

present Application is maintainable. There is no bar of “res-

judicata” in dealing with the Application on merits. This would

answer the first issue.

Re : (ii) :

33. There is no dispute about the fact that the Project

Proponent Jubilant Industry submitted Application to

Respondent No.1-MoEF bearing Application No.MRS/021/08


dated 08-09-2008 seeking environmental clearance for

expansion of molasses based distillated units from 90 KLPD to

200 KLPD and other Organic Chemical Products as well as 12

MW new captive power plant. It is imperative that Respondent

No.1-MoEF ought to have conducted appropriate environmental

impact assessment before considering the proposal. So also, it

was essential to examine whether the objections raised by the

Members of public were duly remedied by the Jubilant Industry

and the post violations made were duly remedied/complied with.

It was also necessary that the public hearing conducted for the

purpose ought to have been meaningful in keeping with EIA

Notification dated September 14th, 2006. It is nobody’s case that

the expansion activities required fresh EC certificate. Obviously,

the above referred EIA Notification was applicable at the relevant

time.

34. In substance, the procedure contemplated under EIA

Notification dated September 14th 2006 may be culled out and

set out as below :

a. Categorization of projects - For the purpose of Environment

Clearance the projects are broadly divided into two groups. Category A

projects needs to be considered at the Central Government level

whereas Category B projects are taken up at State Government level.

The project involved herein is Category A project and thus required

Environment Clearance from the Central Government.

b. Requirements of prior Environment Clearance -

On filing application in prescribed format i.e., Form I/Form 1-A including

Terms of Reference proposed by the project proponent, the Expert

Appraisal Committee for the concerned sector (in this case -Mining)

constituted by the Ministry of Environment and Forests, Government

of India examines the proposal and finalizes the Terms of Reference

including additional Terms of Reference, if am/ for the Environmental

Impact Assessment studies with specific reference to the project

location and nature of proposed activities and their likely impacts on


various environmental attributes. It also prescribes the time frame for

the purpose of submitting report, etc.

c. Public Consultation - Based on the Terms of Reference granted to

the project, the proponent throng his appointed consultant/s

conducts the field studies and gathers the baseline data to prepare a

DRAFT Environmental Impact Assessment report. The draft report is

submitted to Ministry of Environment and Forests, Government of

India and the concerned State Pollution Control Board with the

request to hold Public Hearing. The Public Hearing is conducted by the

State Pollution Control Board under the supervision of the concerned

District Magistrate or his nominee as required in the Environmental

Impact Assessment notification. The Public Hearing is desired to be

conducted at the project site or in the close proximity whichever is

convenient giving minimum 30 days clear notice.

The gathered public is initially briefed about the project followed by

detailed presentation on the environmental aspects as provided in the

draft Environmental Impact Assessment report. Subsequently,

opportunity is given to all the interested persons to express their views.

The views expressed are video-graphed and recorded as provided in the

Environmental Impact Assessment notification. The project proponent

or State Pollution Control Board officials or District Magistrate may

clarify any of the doubts expressed by the public. Thereafter, the

summary of the proceedings is drawn then and there and is read out in

the local language.

d. Appraisal - The project proponent, if required, may revise the

DRAFT Environmental Impact Assessment report based on the

inputs of the Public Hearing and prepare a brief note on the

compliance of the issues raised in the Public Hearing: Hie

revised Environmental Impact Assessment report is submitted to

Ministry of Environment and Forests for being placed before the

Expert Appraisal Committee. In the meantime, the records of

the Public Hearing along with video-graph are furnished by

State Pollution Control Board to the Ministry of Environment

and Forests. The complete Environmental Impact Assessment

report and the data furnished are examined by the Ministry of

Environment and Forests/Expert Appraisal Committee in detail.

The Expert Appraisal Committee may or may not recommend for

grant of Environment Clearance. Finally, it is for the Mini's fry

of Environment and forests to take a decision for grant

Environment Clearance subject to specific conditions keeping in

view the precautionary principle and polluter pay principle or it

mm/ reject the Environment Clearance for reasons to be

recorded.

e. Post Environment Clearance Monitoring ~ It is mandatory

on the part of the project proponent to submit half-yearly


compliance report in respect of the stipulated conditions in the

grant of Environment Clearance in hard and soft copy to the

regulatory authority. It is always open for the regulatory

authority to cancel the grant of Environment Clearance, if the

stipulations are not adhered to or there is any danger to the

human habitation and/or serious threats are posed to ecology

and environment of the surrounding which were not

apprehended at the time of grant of Environment Clearance.

35. True, initially production was started by VAM Organics

in 1963 and transfer of the Industry has taken place twice.

What appears from the record is that since at least year 1999

complaints were being made against VAM Organic Chemicals

about pollution of water and air alleging that agricultural lands

were being damaged as a result thereof. Somewhere in January

2001 VAM Organic Chemical published notice about transfer of

the unit to Jubilant Industry. Needless to say, Jubilant Industry

was well aware of number of complaints made by various

villagers in respect of the alleged Water and Air Pollution due to

discharge of effluents caused by VAM Organic Chemicals. It

follows that Jubilant Industry took over the unit with full

knowledge that there were grievances about the alleged

environmental damage caused, as a result of the Industrial

activities of the unit. It is in the wake of such background as

well as the earlier litigation in Writ Petition (PIL) No.44 of 2001

that the issue of continuity of water pollution will have to be

considered.

36. At this juncture, it may be noted that the record shows

that Jubilant Industry appointed Consultant to conduct field

studies and gathered base line data to prepare a draft of

Environment Assessment Report. So also there is nothing on

record to show that such a draft report was forwarded to the


State Pollution Control Board with a request to hold a public

hearing.

From Communication dated August 25th, 2008 (EX/P-

176) it may be gathered that minutes of the public hearing held

on June 13th 2008 were drawn. Perusal of the minutes of the

public hearing go to show that the grievances of public Members

were noted by the Committee. Chairman and the Committee

asked Jubilant Industry officials to clarify the objections raised

by the local people. The explanation given by the official of the

Jubilant Industry is that the unit was taken over in the year

1999 and highly efficient ESP is installed to control the emission

from boilers. It was also stated that the Jubilant Industry

improved the Environmental Management System to meet zero

discharge. It was stated that Jubilant Industry was committed

to maintain zero degree discharge for the proposed project

(expansion project). The minutes of the meeting were

accordingly recorded and forwarded to the authority. The

question is whether the Expert Appraisal Committee could have

over looked the earlier violations of the EC conditions, reported

water pollution and also declined to examine the objections of

the villagers, before granting of the Environmental Clearance

Certificate in question. It is argued on behalf of Applicants that

past conduct of Jubilant Industry ought to have been taken into

consideration. It is argued by learned Counsel Mr.Dighe that

without due verification of the complaints of the villagers,

including the Applicants, Environmental Clearance Certificate in

question could not have been issued. He argued that the

Environmental Clearance Certificate has been issued without


considering the relevant material, particularly the adverse

findings of the MPCB and the fact that show cause notice was

also issued to Jubilant Industry, as to why stern action shall not

be taken against it. He, therefore, submits that the

Environmental Clearance Certificate is granted without due

application of mind and is liable to be quashed.

37. This takes us to the report of the Agricultural

Laboratory of the Maharashtra State (EX-R1) (P-270). The

report shows that downstream water of ‘Nira’ river is unfit for

agricultural use. It is further explicit that the downstream water

of Nimbut reservoir may cause infertility of the agricultural land

and is totally unfit for agricultural use. In other words, the

pollution at various locations of the downstream of ‘Nira’ river of

village Nimbut adjoining the Jubilant Industry was found to be

contaminated. This report is in respect of the period between

15th January 2001 to 10th December 2010. Obviously, the river

pollution continued even after the earlier Writ Petition (PIL)

No.44 of 2001 was disposed of on the basis of the M.P.C.B.

report and Affidavit of Shri. D.B. Boralkar. So also, report of

Joint Director of Animal Husbandry, Investigation Section

Laboratory Pune (ExH.R-2) (P-272) shows that near Saloba Doh

of ‘Nira’ river, the water sample was found unfit for consumption

of animals. Similarly, at Panwatha (common drinking water

storage tank meant for animals) of ‘Nira’ river, the sample was

found unfit for consumption of animals. The M.P.C.B. was

called upon to give status report about the details of the plant’s

effluent treatment, water consumption and compliances of the

direction for controlling the pollution by Jubilant Industry. By


filing additional Affidavit, dated 4th February 2014, Shri Anil

Mohekar, Regional Officer of the M.P.C.B., Pune submitted the

status report. Perusal of the status report shows that the unit of

Jubilant Industry is running molasses based distillery and

manufactures basic organic products. The Industry

manufactures ethyl acetate, ethyl alcohol, acetic anhydride and

liquid CO₂. It appears that Jubilant Industry has discontinued

manufacturing of acetate and anhydride from 2009 onwards.

The effluent from distillery (spent wash) 1270 m3/day is treated

through the bio-digester and Reverse-osmosis plant. The reject

of the reverse osmosis plant is stored in lined lagoons and

permeate is being used in distillery for molasses dilution/cooling

tower. The stored RO reject is used for bio-composting

alongwith press-mud. The observation of the M.P.C.B. at point

2.1.3 indicate that colour of water at 4 dug-borewells was rather

dark. It was found that the wells were having coloured water

from 3 other sources. In other words, the water was not

colourless as per the normal appearance of water. The Alkanity

of 5 wells had exceeded the limit of 200 ppm. The observations

at point 2.1.4 further go to show that water in Buvasaheb Nala

and an Arm of river flowing parallel to HRTS was of deep brown

colour. This is most significant indication of the fact that the

water flowing under Buvasaheb Nala and at the place parallel to

HRTS was found contaminated/polluted. So also, it was found

that the percentage of dissolved oxygen (DO) was higher than

the M.P.C.B. standards in the water of river ‘Nira’. The samples

of upstream and downstream of Buvasaheb Nala and Saloba

Nala as well as Nira sewage were found to bear lower percentage


of dissolved oxygen (DO). This is additional evidence to show

that the water at the place of Buvasaheb Nala and Saloba Nala

was polluted/contaminated. The MPCB Report further shows

that at ETP outlet of Jubilant Industry and in the sewage of

‘Nira’ river the percentage of phosphates had exceeded the

permissible limits. The percentage of chlorides were higher at

location of Buvasaheb and Saloba Nalas. The presence of oil

and grease had exceeded in three (3) samples out of 18 samples,

collected from different places of the treated effluents. The

samples in the river Arm which runs parallel to HRTS, sample

collected from river flowing under Buvasaheb Nala, sample

collected past mixing of Nira sewage were found to be

contaminated due to mixing of oil and grease. The COD

(Chemical Oxygen Demand) was also excessive than the

permissible limits at the said three (3) places. Perusal of the

report of M.P.C.B. shows that several conditions were imposed

by the M.P.C.B. Still, however, the status of the conditions

needed to be complied or present compliances is far from

satisfactory. No doubt, Jubilant Industry installed certain

equipments but the pollution of River water still exists.

38. The reports of the M.P.C.B. also shown that the

Industry was not satisfactorily complying with the directions

given to it. It is significant to note that the report of M.P.C.B.

dated May 15th, 2007 (Ex.I)(P-133) was filed when the Writ

Petition was pending before the Hon’ble High Court. That report

was submitted in pursuance to the directions of the Hon’ble

High Court. It is most significant to note that at point 3.0 in the

report, the M.P.C.B. observed :


“3.0 : PUBLIC COMPLAINTS

In the year 2000, the Complaint was received by the

Board regarding water and air pollution caused due to

operations of the Industry. Considering the non-compliance

of environmental standards and nature of Complaints, the

Board issued directions to the Industry u/s. 33A of the

Water (P.& P.) Act 1974 in the month of December 2000 as

why action shall not be taken against default. After

receiving reply from Industry and extending personal

hearing, interim directions were issued by the Board on 17-

03-2001 stipulating therein conditions regarding control of

water pollution. They are summarized as follows :

(a) Industry shall restrict production activity and effluent

generation to the capacity of composting and

incineration for total utilization thereof.

(b) Industry shall not discharge any fresh effluent into the

lagoons except impervious lagoon, which be lined up

properly only for the purpose of temporary storage till

it is utilized for the composting or incineration

purposes.

(c) Industry shall utilize total effluent stored into the old

lagoons for composting purpose by giving time bound

programme for the utilization thereof. Time bound

programme shall be submitted within one month’s

time.

(d) Industry shall maintain and operate your effluent

treatment plant to the fullest capacity and efficiently

so as to achieve the standards laid down under the

provisions of the Environment (Protection) Act, 1986

and Rules made thereunder.

(e) Industry shall submit the details of ferti-irrigation

scheme to the Board and go for ferti-irrigation in

consultation with the Rahuri Krishi Vidyapeeth as

agreed by Industry during the course of personal

hearing.

(f) Industry shall scrap the lagoons, which are not

impervious step by step and submit the time bound


programme for the same. Industry shall not utilize the

old lagoons for the disposal purposes as they are not

Impervious.

(g) Industry shall complete and commission the bio-

methanisation plant by July 2002 as agreed by

Industry during the course of personal hearing.

(h) Industry shall take immediate steps to contain the

smell nuisance problem. Industry may approach

Excise Department to review the condition about the

mixing of bitterant chemical having 40 % concentration

suitably. Industry shall carry out an impact

Assessment Study with regard to the quality of river

water downstream of industry, the effect of Industry’s

discharge/emission on the surrounding agricultural

field and environment as well as flora and fauna and

submit Report thereof to the Board on or before 30-03-

2002.

(i) Industry shall also submit the details of the Project

being implemented by NEERI for the utilization of the

effluent. A copy of the Report as and when received

shall be submitted to the Board.

(j) Industry shall furnish an irrevocable Bank Guarantee

of Rs.50,000/- ensuring the compliance of the above

interim directions and consent conditions by collecting

earlier Bank Guarantee of Rs.25,500/- which is valid

upto 25-06-2001. The fresh Bank Guarantee of

Rs.50,000/- shall be valid for a period upto one year

and shall be submitted.

39. The conclusion drawn in the report of the M.P.C.B. are

stated at point No.8.0 and may be reproduced at follows :

“After going through the result and physical

observations, it is concluded that the ground water quality

in the area is adversely affected by indiscriminate disposal

of untreated/treated effluent in the past even though today


industry has provided adequate waste water treatment

facility.

The quality of ground water still remains polluted in

the nearby area. It will still require sufficient long time for

restoration of water quality by natural process.

It is observed that the riparian rights of the people for

access to the good quality of water are violated and the

people are deprived of quality water”.

40. The matter does not stop here. The M.P.C.B. issued

directions vide communication dated 17th May 2007 (Ex-II)(P-

148). The directions were issued by the same Member Secretary

(Shri D.B. Boralkar) on basis of whose Affidavit the previous Writ

Petition (PIL) No. 44 of 2001 came to be disposed of. The

directions would show that the water pollution had continued.

The directions given to Jubilant Industry further show that

unabated water pollution could not be controlled by the Industry

inspite of assurances and under taking to comply with the

earlier conditions, including submission of an action plan for re-

mediation of ground water quality. The Industry was directed to

submit action plan for taking effective steps for re-mediation of

ground water quality in the surrounding area in respect of

ground water contamination occurred due to improper

treatment and disposal by M/s. Polychem Limited during period

from 1963 to 1999 and till the lagoons were re-claimed. The

Industry was further directed to supply drinking water to the

affected people. The Industry was informed that if no proper

reply would be given final directions will be issued in the matter.


We do not have any material to know whether such kind of final

directions were given. As stated earlier, the W.P. (P.I.L.) No.44 of

2001 was disposed of by the Hon’ble High Court vide order dated

8th February 2006, probably on basis of Affidavit filed by Shri

D.B. Boralkar, Member Secretary of the M.P.C.B. dated 1st

February 2006 alongwith the site visit report. As stated before,

the same Member Secretary issued the show cause notice dated

17th May 2007 after disposal of the Writ Petition (PIL) 44 of

2001. Needless to say, inspite of so called compliances claimed

to have been made by Jubilant Industry, the water pollution had

remained unabated. The concluding paragraph in the M.P.C.B.

Report (P-147) clearly states :

“Quality of ground-water still remains polluted in the

nearby area. It will still require sufficient long time for

restoration of water quality by natural process. It is

observed that riparian rights of the people for access to the

good quality of water are violated and the people are

deprived of quality water.

41. By order dated March 4th, 2014, we called upon the

Central Ground Water Board, Pune to verify and assess the

report submitted by ‘NEERI’ Nagpur which was on record as well

as the report of M.P.C.B. and give an independent opinion

alongwith action plan in the matter. The sum and substance of

the report submitted by the Central Ground Water Board, Pune

is that findings and recommendations suggested by ‘NEERI’ for

survey and Ground Water Quality are proper and found in order.

It has been reported that the ground water quality is adversely

affected by indiscriminate disposal of treated/untreated effluent


in the past. It is further reported that high concentration for

Alkalinity, Total Dissolved Solids, Total Hardness, Chloride,

Nitrate and Fluoride was observed in most of the dugwell and

bore-well samples. The report shows that the Ground Water

Contamination encountered could be attributed to leaching from

closed unlined lagoons that had been in operation prior to 2006

and improper disposal of untreated and partially treated

effluents in Buvasaheb Nala. It is further observed that the

Industry has discharged treated/untreated effluent in unlined

lagoons occupying an substantial area of 35 acres, during

period of about 43 years, which is a cause for ground water

contamination. It is further reported that such conclusion is

manifested into the occurrence of coloured water, high

alkalinity, heavy metals such as Manganese, Lead, Nickel and

Iron in ground water over a period of time. Thus, it is more than

clear that Jubilant Industry caused contamination of the water

of river ‘Nira’

42. The action plan is submitted by M.P.C.B. alongwith its

affidavit dated March 3rd, 2014. The said action plan is

considered by the Central Ground Water Board, Pune after

discussions with ‘NEERI’ and M.P.C.B. during joint meeting held

on March 12th, 2014. The action plan submitted by the

M.P.C.B. in its affidavit dated March 3rd, 2014 is elaborate. We

approve the said action plan alongwith the modifications

recommended by the Central Ground Water Board, Pune. We

also direct the M.P.C.B. to add the measures Á’, ‘B’, ‘C’ as

recommended by the Central Ground Water Board, Pune in

addition to the recommendations in the action plan alongwith


the modifications. For example, the recommendation of Aquifer

Remediation for meeting ground water quality i.e.

recommendation ‘A’. Acquifer Remediation and recommendation

plan i.e. Recommendation ‘B’ and the ground water levels and

quality mechanism i.e. recommendation ‘C’ stated in the report

of CGWB shall be part and parcel of the remedial measures

which shall be implemented by the Industry (Respondent Nos.2,

2A and 2B) alongwith M.P.C.B. report and the recommendations

with modifications suggested by the CGWB. In this view of the

matter, we do not find it necessary to reproduce the entire action

plan enumerated in the report dated March 19th, 2014 filed by

the Central Ground Water Board, Pune.

43. Perusal Affidavit of Shri Amit Gupta, filed on behalf of

Jubilant Industry go to show that the remedial steps were being

taken and the Industry is ready to take further steps. According

to Jubilant Industry, the water pollution is attributable to

various other Industries and Municipal sewage. It is

categorically denied that industrial effluent is discharged by

Jubilant Industry in ‘Nira’ river. The record, however, speaks

otherwise. We find from the record that the water of river ‘Nira’

is polluted at the place of flow under Buvasaheb Nala. It appears

that Buvasaheb Nala is situated within the premises of Jubilant

Industry. So also, Saloba Nala is situated within proximity of

effluent discharge out let of Jubilant Industry. There is no

reliable material on record to show that any other substantial

contribution is being made by Municipal sewage or other

Industrial effluents for the contamination of ‘Nira’ river. We

cannot expect proof against Jubilant Industry upto the hilt in


order to prove such issue. Under the circumstances, we have no

hesitation in holding that the issue No.(ii) is duly proved and as

such it is answered in the affirmative.

Re : (iii) and (iv) :

44. There is sufficient evidence on record to show that

certain agricultural lands of the villagers are damaged due to the

environmental loss caused on account of pollution of river water

of ‘Nira’. The reports of the agricultural department would

indicate that at some places the water is unfit for agricultural

use. The claim of the Jubilant Industry that H.R.T.S. is effective

and the waste water/spent wash are used for plantation after

recycling is untenable. The growth of small plants cannot be

equated with afforestation and rearing of trees within the

premises of Industrial Unit. The negligible activity of plantation

cannot be treated as afforestation.

45. Thus, there is no proper remedial measure undertaken

by Jubilant Industry. There is no substantial reason to discard

version of the Applicants that farmers have suffered agricultural

losses due to the water pollution caused by Jubilant Industry

which could be, ofcourse, legacy of the past to some extent i.e.

derived from VAM Chemicals. Still, however, when Jubilant

Industry got the unit with all the liabilities, then, it must be held

accountable for the loss caused to the farmers. This is a fit case

in which the principle “polluter’s pay” is applicable. We cannot

over-look mandate of Section 20 of the National Green Tribunal

2010 which provides that the Tribunal shall follow the principle

of “Polluter’s pay” besides the principle of sustainable

development and precautionary principle.


46. We may take brief survey of settled legal position in

the context of pollution of water bodies. The Apex Court in

“Tirupur Dyeing Factory Owners Vrs. Noyyal River A.

Protection Association & Others, 2009 (9) S.C.C. 739”

took survey of the relevant case law viz. :

(i) Indian Council for Enviro Legal Action and Ors.

Vrs. Union of India (UOI) and Ors. (1996) 3 S.C.C.

212.

(ii) Vellore Citizens’ Welfare Forum Vrs. Union of

India (1996) 5 S.C.C. 647

(iii) People’s Union for Civil Liberties Vrs. Union of

India, (1997) 3 S.C.C. 433 : (1997) SCC (Cri) 434.

(iv) A.P. Pollution Control Board Vrs. Prof. M.V.

Nayudu, (1999) 2 SCC 212.

(v) M.C. Mehta Vrs. Union of India, (2009) 12 SCC

118.

47. The Apex Court held that the Members of “Tirupur

Dyeing Factory Owners Association” caused unabated

pollution on account of discharging the Industrial effluents

into Noyyal river to the extent, that the water of the river

was neither fit for irrigation nor potable. It is observed :

“They cannot escape the responsibility to meet out

the expenses of reversing the ecology. They are bound

to meet the expenses of removing the sludge of the river

and also for cleaning the dam. The principles of

“polluter pays” and “precautionary principle” have to be

read with the doctrine of “sustainable development”. It

becomes the responsibility of the members of the


appellant Association that they have to carry out their

industrial activities without polluting the water”

48. The facts of the present case would show that legal

position considered and made applicable in case of

“Tirupur Dying Factory Owners Association” (supra) is

applicable herein. There is no escape from conclusion that

Jubilant Industry is liable to pay damages caused due to

the water pollution, restore the environment and ensure

that there shall be no further pollution in the river “Nira”

due to discharging of industrial effluent of the units run by

the Industries.

49. Though, it appears that certain loss is caused to the

fertility of the agricultural lands of the villagers in the area yet,

quantification of the loss is rather a difficult task. We do not

have any mechanism to assess such a loss. We, however, deem

it proper to consider the fact that the agricultural lands in the

proximity of the Industrial Unit which may fall within a radius of

about two (2) k.m. of Buvasaheb Nala and Saloba Nala need to

be inspected for such purpose. The loss of fertility to the land/s

can be assessed by a Committee constituted for such purpose.

We hold that Jubilant Industry is liable to pay the damages for

losses caused to land owners, to bear cost of remediation and

also to ensure zero discharge effluent in River ‘Nira’. This

answers the issue Nos.(iii) and (iv).

Re : (v) :

50. So far as legality of Environment Clearance Certificate

dated December 23rd, 2008 is concerned, we are of the opinion


that such a question does not survive. Learned Sr. Counsel Shri

Ravi Kadam would submit that the Applicants failed to avail

Appellate remedy by filing an Appeal before the National

Environment Appellate Authority and therefore, now the said

certificate cannot be challenged. He further argued that the

issue about legality of the Environment Clearance Certificate

cannot be agitated before the National Green Tribunal. We are

of the opinion that now such issue has become merely academic.

The validity period of the Environmental Clearance has lapsed in

the last week of December 2013. We have been informed that

due to financial problems and dwindling of market rates for the

products, production of certain products is stopped. Be that

may as it is, now it is not necessary to consider whether the

Environment Clearance Certificate dated December 23rd 2008, is

legal and valid. Consequently, it will have to be said that issue

No.(v) does not survive for consideration. It is accordingly

answered.

51. The net result of the foregoing discussion is that there is

reliable evidence to draw inference about continuation of

Pollution caused to water of ‘Nira’ river as a result of discharging

of Industrial effluent/spent wash by Jubilant Industry. The

water pollution has remained unabated. The so called efforts

taken by Jubilant Industry were inadequate and did not

completely stop the water pollution. The lagoons have dried up.

The mere fact that old spent wash storage without lagoons are

re-claimed, cannot be deemed as adequate measures. Nor it can

be said that installation of new ETP for treatment of effluent for

the Acetic Acid plant will diminish the water pollution and can


be the solution to deal with continuous pollution of the river

water. We are not satisfied with assurances of Jubilant

Industry. In view of the findings recorded on the relevant issues

and the foregoing discussion, we are inclined to allow the

Application and pass the following order/directions :

(i) The Application is allowed.

(ii) The Respondent Nos.2, 2A and 2B or any other

industry which may take over the unit/units shall

not discharge effluents of the Distillery/spent wash

of the Industry in Buvasaheb Nala and Saloba Nala

or any part of the River ‘Nira’.

(iii) The recommendations of ‘NEERI’ and CGWB shall be

complied with by the Respondent Nos.2, 2A and 2B

which shall be regularly monitored by the MPCB

(iv) The MPCB shall give appropriate directions to the

Respondent Nos.2, 2A and 2B in case zero discharge

status is not achieved within period of three (3)

months hereafter, including directions under Section

33 of the Water (Prevention of Pollution) Act, 1980.

(v) The Collector, Pune shall constitute a Committee

consisting of :

(a) An Additional Collector (Chairperson),

(b) Regional Officer of MPCB (Co-ordinator)

(c) A nominee of the Krishi Vidyapeeth, Pune

(expert in soil testing and fertility, loss of

fertility due to water pollution) and having

adequate knowledge about methodology to


quantify such loss in terms of money. (As

nominated by the Vice-Chancellor).

(d) A nominee of Central Ground Water Board,

Pune (As nominated by its Director)

The above Committee shall inspect the land

area within radius of two (2) km of Buvasaheb Nala

and Saloba Nala within period of three (3) months

hereafter. The Committee may take help of any

expert and/or Cadastral Surveyor. The Committee

shall cause evaluation of loss caused to the

agriculturists, if any, due to discharging of industrial

effluents in the water of River ‘Nira’ which

assessment may be done after soil testing,

examination of the past revenue assessment and

other relevant factors. The loss, if any, is noticed

then it also be stated with reference to identify of the

land owner/occupier. The cost of inspection and

work of committee is to be borne by Jubilant

Industry which the Collector shall recover, if not

paid, as if it is land revenue arrears.

(vi) The Respondent No.2, 2-A and 2-B shall tentatively

deposit amount of Rs.25,00,000/- (Rs. Twenty five

lacks) in the office of the Collector, Pune in eight (8)

weeks and shall be liable to deposit/pay any further

amount, if so required, for the purpose of

disbursement to be made by the Collector, Pune on

basis of report of the aforesaid Committee.


(vii) The report of aforesaid Committee shall be submitted

to the Tribunal within period of six (6) months

hereafter. A copy of said Report be given to the

Respondent No.2, 2A and 2B. Any objection on the

said Report, if has to be filed, may be filed within two

(2) weeks thereafter. The Collector, Pune shall

undertake the work for disbursement of

compensation to affected land owners/occupiers as

may be further directed on basis of such Report if it

is so accepted fully or in part, as per further orders of

this Tribunal.

(viii) In case the Respondent Nos.2, 2-A and 2-B will fail

to deposit above amount of Rs.25,00,000/- (Rs.

Twenty five lacks) in the office of Collector, Pune, it

shall be recovered as if it is land revenue arrears

under the Maharashtra Land Revenue Code, 1966,

by the Collectorate, Pune by attachment and sale of

the Industrial Units, stock and barrel.

(ix) The M.P.C.B. shall issue necessary directions to

Respondent 2, 2A and 2B in next four (4) weeks

for securing the time-bound remedial measures,

as recommended by ‘NEERI’ and also the MPCB

alongwith the further recommendations of the

Central Ground Water Board, Pune as per the

report of CGWB dated March 19th, 2014, which

comprehensively shall be treated as part of the

directions of this Tribunal for the purpose of

remedial measures that should be adopted. The


costs of remediation/restitution shall be

estimated by the MPCB. If the measures are not

complied with by the Industrial units in

prescribed time limit, the same shall be recovered

by MPCB from the Industry and the compliances

shall be ensured through the independent

machinery at the costs of the Industry. (The

direction is being issued U/s. 15(b) and (c) of the

National Green Tribunal Act 2010).

(x) The Respondent Nos.2, 2A and 2B shall pay

Rs.20,000/- (Rs. Twenty thousand only) to the

Applicants as costs of the Application and shall bear

their own.

……….…………….………………., JM (Justice V. R. Kingaonkar)

..…...….…….……………………., EM

(Dr. Ajay.A. Deshpande)

before the national green tribunal -...

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