IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 254 of 2009 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= GOVINDBHAI PRAGAJIBHAI DOBARIYA, SARPANCH & 2 -
Petitioner(s) Versus STATE OF GUJARAT & 5 - Respondent(s) ========================================================= Appearance :
MR DIPAK H SINDHI for Petitioner(s) : 1 - 3.
MR PK JANI, GOVERNMENT PLEADER for Respondent(s) : 1,2,4.
MRS KALPANA K RAVAL for Respondent(s) : 3, MR RD RAVAL for Respondent(s) : 5, MR RR TRIVEDI for Respondent(s) : 6, MR BHAVESH P TRIVEDI for Respondent(s) : 6, ========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 12/09/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By way of this petition under Article 226 of the Constitution of India, in the nature of a Public Interest Litigation, seeking direction to the respondents to perform their statutory duties for preventing and controlling the pollution, and to see that the drinking water is not polluted by various industrial units located in Jetpur, who are engaged in the activities of dyeing, printing and washing sarees and clothes, the petitioners, residents of different villages of Taluka Jetpur, District Rajkot have prayed for the following reliefs:-
“(A) To admit this petition and further be pleased to allow this petition with costs in the interest of the justice .
(B) To issue a writ of mandamus and/or writ in nature of mandamus or any other(s) appropriate writ, directions and/or orders, directing the respondent Nos. 1 to 4, it's officer, servants administrators, executors, agents and all other authorized person to discharge & perform their statutory duties for taking appropriate actions for preventing and controlling the pollution and further to take appropriate measures for improving, preserving and conserving the ecology and environment of the Rajkot District of Gujarat State in the interest of justice ;
(C) To issue a writ of mandamus and/or writ in nature of mandamus or any other(s) appropriate writ, directions and/or orders, directing the respondent no.1 to 4, its officers, servants, administrators, executors, agents and all other authorized person to perform their statutory duties for taking appropriate actions closure of industrial units/establishment/undertaking involved in commercial activities of dyeing, printing and washing of sarees and clothes/bandhni, which are operating either without trade licenses or requisite consent/no objection certificate or which are discharging untreated effluents into the stream polluting the river Urben, river Bhadar, Saparvadi dam, various lakes, ponds, canals, wells, inland and sub-subterranean water and other water stream in the area of Rajkot District and Bhatgam of District Junagadh of Gujarat State, in the interest of justice.
(D) To issue a writ of mandamus and/or writ in nature of mandamus or any other(s) appropriate writ, directions and/or orders, directing the respondent no.1 to 4, its officers, servants, administrators, executors, agents and all other authorized person to take appropriate legal actions for removal and demolishing of all the unauthorized and illegal washing ghats operating without effluent treatment plants washing sarees and clothes and discharging untreated trade effluent causing pollution in the area of Rajkot District of Gujarat – State, in the interest of justice.
(E) To issue a writ of mandamus and/or writ in nature of mandamus or any other(s) appropriate writ, directions and/or orders, directing the Central Bureau of Investigation (CBI) to investigate in the matter about the erring officers/servants of the respondent no.1 to 4 who failed and neglect to take appropriate legal actions for preventing and controlling pollution and who abetted and aided the causing of pollution due to their non-action for their personal gain at the cost of environmental pollution and to lodge complaints against such erring officers of the respondent no.1 to 4, in the interest of justice.
(F) To issue a writ of mandamus and/or writ in nature of mandamus or any other(s) appropriate writ directions and/or orders, directing the respondent authorities, its officers, servants, etc. to lodge criminal complaints against the units and its responsible persons/owners who fails to comply with or contravenes any of the provisions of the Environment (Protection) Act, 1986 and of the provisions of The Water (Prevention and Control Pollution) Act, 1974 or rules made or orders of directions issued thereunder, within the area of District – Rajkot, in the interest of justice and to maintain law and order.
(G) To issue a writ of mandamus and/or writ in nature of mandamus or any other(s) appropriate writ, directions and/or orders, directing the respondent authorities, its officers, servants, etc. for constitution of comprehensive Authority/Experts Committee under S.3(3) of the Environment (Protection) Act, 1986 to enquire and investigate into the question of disturbance of ecology and pollution and affection of air, water and environment by reason of discharge of untreated effluent treatment plant and to deal with the entire matters relating to proper administration and implementation of the programs of preventing and controlling the environmental pollution including powers to take all appropriate actions for prevention and control of the pollution caused due to discharge of untreated trade effluent by industrial units/person carrying on the activities of dyeing, printing and washing of sarees and cloths and to deal with the entire matter relating to proper administration and implementation of the programs of improving, rehabilitation, preservation and conservation of environment including water streams, dams, wells, land etc. and all other necessary powers, within the area of the District - Rajkot, State – Gujarat.
(H) To issue a writ of mandamus and/or writ in nature of mandamus or any other(s) appropriate writ, directions and/or orders, directing the respondent no.1 to 4, it's officers, servants, etc. to recover cost of remedial measures from the polluter units/establishment/undertaking etc. required for taking the remedial measures for improvement of environmental pollution caused due to discharge of untreated trade effluent from the units/establishment carrying on activities of dyeing, printing and/or washing of sarees and cloths into the streams and for preservation and conservation of the ecology and environment of the District of Rajkot.
(I) Your Lordships may be further pleased to direct the respondent authorities to strictly comply with the earlier directions issued by this Hon'ble High Court in various petitions ;
(J) Such other relief(s) as this Honourable Court deems just and proper in the facts and circumstances of the case, may please be granted.”
FACTUAL MATRIX
In the present petition, a very grave and serious problem of pollution caused by dyeing and printing industry at Jetpur has been highlighted before this Court. Jetpur is situated in Saurashtra (part of Gujarat) about 65 kms. from Rajkot city. The town of Jetpur has about 1170 dyeing and printing units. Around 40,000 workers earn their livelihood by working in such dyeing and printing units at Jetpur. It appears that the units have formed an association, named, the Jetpur Dyeing & Printing Association (for short, 'JDPA'). It appears that around 30.00 MLD water is used for washing of sarees every day and at the end of the day, the trade effluent is discharged into a pond named as “Fatal Talav”. It also appears that majority of the units use their own water and space facility for washing their printed materials within their units, but those who do not have this facility, send their product to washing ghats located in the surrounding villages covering 40 kms. of the area. Some of the dyeing units, inspite of having their own washing systems, outsource their washing job to increase their daily production. It also appears that some of such washing ghats were illegally constructed and were being used without any permission or sanction from any competent authority. Such ghats have a capacity to cater to the requirement of five to seven dyeing & printing units per ghat.
It also appears that well-developed natural drainage in the surrounding area of Jetpur town tempted the dyeing & printing units to discharge their effluents directly into the nearby drainage without any treatment. This resulted in adverse effect on the water resource. To curb this problem, the authority concerned forced the units to implement the Common Sewerage Treatment plant (for short, 'CETP') for disposal of waste water. However, inspite of such steps being taken by the authority, majority of the units continue to outsource washing job to illegal ghats, and thereby, divert the untreated discharge to natural drainage, and as a result of this, the ground water pollution in streams, ponds, rivulets, rivers got contaminated thereby, directly affecting the cattle and the soil. When such water is being used for the purpose of irrigation, it result in built-up of a secondary salinization/alkalinization, affecting the production of crop.
This petition was filed in the year 2009. This Court has been monitoring this petition for almost more than three years. On 15th January 2009, a Division Bench of this Court took cognizance of this pollution problem for the first time and directed the respondent No.3 - Gujarat Pollution Control Board, to submit its report.
On receipt of the report filed by the Gujarat Pollution Control Board, this Court asked the learned Government Pleader to ascertain whether any unit was functioning illegally without the consent of the Gujarat Pollution Control Board, and if so, what action had been taken by the District Collector. Thereafter, on 24th July 2009, it was reported to this Court that about 900 industrial units are functioning in that area and the District Collector had initiated various course of actions. It was also stated that raw-materials like gum, starch, synthetic dyes, acetic acid, caustic soda and sodium silicate are used by the textile processing units in the dyeing and printing process of fabrics. It was also brought to the notice of this Court that various complaints had been received by the GPCB. After conducting a detailed enquiry, the GPCB noticed that some of the units were causing serious environmental pollution and most of the polluting units had not obtained consent from the GPCB. It was also informed to this Court that, consequently, statutory notices had been issued to all those units. On 24th July 2009, the GPCB filed a report before this Court stating that they had taken action in this regard. It was also brought to the notice of this Court that there are effluent treatment plants and two more were under contemplation.
Considering the seriousness of the matter, this Court directed the GPCB to submit periodical report, with the interval of three months, after assessing the situation, and also directed to state as to what further actions were taken against the polluting units. On 28th June 2010, this Court directed the GPCB and the respondent No.4 to undertake joint measures to demolish all unauthorized washing ghats.
On 27th July 2012, a Division Bench of this Court passed the following order:-
“Inspite of the order dated 28th June, 2010, the 4th respondent has not made clear whether he has taken joint measures with Gujarat Pollution Control Board to demolish unauthorised washing ghats. No affidavit or report has been filed. By way of last chance, we allow two weeks' time to 4th respondent to file action taken report failing which, the 4th respondent will appear before the Court in person on the next date and/or the Court may be impose costs. Post the matter on 12th August, 2010 withing 10 cases in the first board.
The Pollution Control Board may also file report by that date.”
Thereafter, on 9th September 2010, the matter was taken up for further hearing, and on that day, it was informed by the GPCB that 104 illegal washing ghats had already been demolished with the help of the Collector, and 36 more illegal ghats were required to be demolished. The Court was also informed that steps had been taken to identify and demolish those ghats too. On behalf of the Association, a statement was made that the GPCB had cleared the proposal to set up new effluent treatment plants, for which land had already been identified and steps had been taken to set up one new effluent treatment plant at Derdi near Jetpur. With regard to the second plant, land had been identified and purchased, but clearance of Junagadh Municipalty was awaited. A statement was also made that two common effluent treatment plants were already functioning and, if necessary, the GPCB may monitor the two treatment plants. Taking into consideration the steps taken by the respondents, the following directions were issued on 9th September 2010:-
“(i) 5th respondent is directed to complete setting up of one effluent treatment plant at Derdi. So far as other treatment plants are concerned, the matter be taken up with the Municipality and other competent authorities. If there is any difficulty, in the interest of public in general, setting up of such effluent treatment plants is required in the local municipal area, the authority will consider the same in accordance with law.
(ii) The Gujarat Pollution Control Board is directed to demolish 36 identified illegal washing ghats. The Collector and the concerned Mamlatdar will provide suitable assistance in the matter of such demolition and report the progress to the Court. If there are more than 36 illegal washing ghats, the petitioner will give details of such Ghats to the competent authorities. The Gujarat Pollution Control Board, Rajkot and the concerned Mamlatdar in their turn will identify and if so required, demolish such illegal washing ghats.
(iii) If there is any Dyeing and Printing unit which is illegally functioning in the area, without the consent of the competent authority or the Pollution Control Board, it will be open to the petitioner to bring the said fact to the notice of the Gujarat Pollution Control Board at its Rajkot office.
(iv) The competent authority and the Pollution Control Board, Rajkot is directed to monitor the local ETPs and CEPT units atleast once in every two months and submit its report regularly to this Court. The next by- monthly inspection report be filed by the next date of hearing.”
On 23rd November 2010, this Court noticed, from the stand taken by the respondents, that the effluent was being discharged in the agricultural fields. The stand on behalf of the Association was that such effluent was being discharged after treatment and was suitable for the purpose of agriculture as per the agricultural norms. Therefore, this Court passed the following order:-
“From the stand taken by the respondent, it appears that the effluent is being discharged in the agricultural fields. Counsel for the 5th respondent-Association submits that such effluent is discharged after treatment, as per the agricultural norms. However, this Court wants experts' opinion on the question whether discharge of such water is polluting:
(i) Agricultural crops; (ii) Agricultural fields/soil; (iii) Underground water and/or; (iv) adjacent rivers; if any. Learned counsel appearing on behalf of Gujarat Pollution Control Board will give details of the Experts of area; including Professors of Universities who can be requested to carry out inspection and submit report before the Court on this issue.
Let a copy of this order be handed over to learned counsel appearing on behalf of Gujarat Pollution Control Board.
Post the matter on 22nd December 2010.”
On 22nd December 2010, the GPCB provided list of experts, and accordingly, passed the following order:-
“Learned counsel appearing on behalf of Gujarat Pollution Control Board forwarded a list of experts as shown hereunder:
1. Shri N.M.Zalawadia, Professor, Department of Agriculture, Chemical and Soil Science College of Agriculture, J.A.U.Junagadh.
2. Shri N.B.Babria, Professor, Department of Agriculture, Chemical and Soil Science College of Agriculture, J.A.U.Junagadh.
3. Shri M.C.Rathod, Superintendent Geohydrologist, Water Supply and Sewerage Board, Sector-10A, Gandhinagar.
4. Shri Ravi Solanki, Chief Engineer, Water Supply & Sewerage Board, Sector- 10A, Gandhinagar.
Learned counsel for the petitioner and other respondents are directed to state whether they have any objection to formation of the Committee of the aforesaid Experts for inspection, verification and to find out whether the industries at Jetpur are polluting the agricultural fields, crops, underground water, adjacent river etc. And to suggest steps to be taken to avoid such pollution. The respondent- Association of Dyeing and Printing Industry will also state whether they will bear the costs of the Experts. It will be open to the respondents to file their respective affidavits and enclose a copy of the report, if any, submitted earlier by one or the other Experts Body. Post the matter on 24.01.2011.”
On 18th April 2011, it was submitted on behalf of the respondent-Association that some other officials of the Water Supply and Sewerage Board of the State may be made as Members of the Experts Committee in place of two persons as shown at serial Nos.3 and 4 of the order dated 22nd December 2010. Therefore, the learned AGP was directed to give list of one or two Geo-hydrologist of Water Supply and Sewerage Board, Gujarat, and one or two names of Engineers not less than the rank of Executive Engineer possessing thorough knowledge of underground water and river water and would also be a Member of Water Supply and Irrigation Department of the State.
On 21st April 2011, this Court noticed the list of experts as forwarded by the Gujarat Pollution Control Board to find out as to who could inspect and report to the Court that the industries at Jetpur are polluting the agricultural fields, crops, underground water, adjacent river, etc., and to suggest steps, if any, to avoid such pollution. This Court, therefore, constituted a Committee of the following members namely:-
1. Shri N.M.Zalawadia, Professor, Department of Agriculture, Chemical and Soil Science College of Agriculture, J.A.U.Junagadh.
2. Shri N.B.Babria, Professor, Department of Agriculture, Chemical and Soil Science College of Agriculture, J.A.U.Junagadh.
3. Shri M.C.Rathod, Superintendent Geohydrologist, Water Supply and Sewerage Board, Sector-10A, Gandhinagar.
4. Shri Ravi Solanki, Chief Engineer, Water Supply and Sewerage Board, Sector-10A, Gandhinagar.
Mr. M.C. Rathod, Superintendent, Geo-hydrologist of Water Supply and Sewerage Board, Gandhinagar was made a Co-ordinator.
The First Report of the Expert Committee was placed before this Court for its consideration, and on perusal of the said report, this Court recorded the following order dated 5th July 2011:-
“From the progress report submitted by the Experts Committee constituted by the Court, it appears that there is pollution in the water bodies. The flow of the streams/rivers is being contaminated by untreated effluent from washing ghats. The contamination varies with the site situation and the soil characteristics. From the said report, it further appears that the Committee need the help of a Soil Analyst and a Hydro Geologist. If it is so required, they may take the help of them of their choice.
In the circumstances, the dyeing and printing units situated in and around the town of Jetpur in the District of Rajkot are directed to state as to why all the units be not closed as they are polluting the water bodies, rivers, water dam, etc. After closure , it it is found that one or the other unit has taken steps to rectify the defects and is not discharging any effluent in the water bodies, rivers, dam, etc and do not take any advantage of washing in the illegally constructed washing ghats, the Court may order to reopen of such unit.
The Gujarat State Pollution Control Board is directed to come out with a notice in the newspapers, one English and another Vernacular (Gujarati) published from Rajkot and inform the dyeing and printing units that the Court may close all the units if illegally constructed washing ghats are not demolished immediately, and if they do not stop discharging effluent in the water bodies, rivers, dam, agricultural fields, etc., in such a case, no separate notice need be issued to any individual unit.
Post the matter on 27th July 2011 withing five cases.”
Thereafter, on 27th July 2011, on behalf of the Committee constituted by this Court, a prayer was made for extension of time till 30th September 2011, to submit final report. Accordingly, the Committee was granted time up to 30th September 2011, to submit its final report. On the same day, this Court also directed the Committee to submit an interim report showing illegal discharge of effluents, if any, made by any industrial unit which was causing pollution by use of washing ghats. The GPCB was also directed to find out whether any unit was using illegally constructed washing ghats and/or causing pollution, and in such case, the GPCB was directed to request the Electricity Board to disconnect the electric connection and also the competent authority to disconnect the water connection of such units. The GPCB was also directed to issue order for closure of such unit without waiting for further orders from this Court.
On 6th September 2011, the second interim report was filed before this Court by the Superintending Geo-hydrologist, Coordinator of Gujarat Water Supply and Sewerage Board. On consideration of the same, this Court passed the following order:
“Second interim report has been filed by Superintending Geo Hydrologist, Coordinator of Gujarat Water Supply and Sewerage Board by letter dated 25th August 20011. It appears that many of the illicit structures and illegal washing ghats have been demolished. There are certain more illicit structures/unauthorised washing ghats still existing. The Committee has recommended to develop a joint mechanism, which will have a periodical check of the area to see that no such illicit structures are made in near future. Learned counsel on behalf of the petitioner referring to the affidavit filed today submitted that the illegal washing ghats are continuing to discharge effluents directly into the river and in open land, and the Dying Unit Supplying material to the illegal ghat. Though the aforesaid facts has been brought to the notice of the Gujarat Pollution Control Board, but no action has been taken.
Learned counsel appearing on behalf of the association submits that the electrical connections of such units have been disconnected, but it is not made clear as to why illegal washing ghats have not yet been demolished.
We accordingly direct the Collector and the Association of the Units to demolish all the washing ghats in the area by 21st October 2011, failing which, this Court may pass appropriate strictures against the officers of the Gujarat Pollution Control Board, Collector of the District and other Officers.
If the petitioner bring such fact to the notice of the Gujarat Pollution Control Board and no demolition is made within ten days, it will be open to the petitioner to bring such fact to the notice of this Court at any time. Let a copy of this order be handed over to the counsel for the Gujarat Pollution Control Board and the counsel for the Association. Post the matter on 8th November 2011.
In the meantime, the Committee will submit its final report before this Court. If the effluent treatment plant-DERDI pursuant to the earlier order is not constructed, court may pass appropriate order.”
Thereafter, on 28th September 2011, a Final Report was placed before us by the Experts Committee. We deem it fit to quote the observations as under:
“(a) As any activity in a village comes easily to the notice of the concerned Talati, it is apparent that concerned Talatis must be aware about illegal washing ghats. However, they seem to be unconcerned about it and feel that any reporting on this to higher authorities does not come under their preview or responsibility.
(b) It has already been established that the present CETP is not competent enough to tackle treatment of effluents from both Nagarpalika and JDPA units. Two new CET Plants have been proposed by JDPA at Derdi and Bhatgam. Design and estimate for these projects is under process. Delay in these projects has already resulted in illegal outsourcing of washing and mushrooming up of illegal ghats in agricultural lands.
(c) The illegal washing ghats also use some adjoining land for drying the cloths. Thus agricultural land is being used for nonagricultural purposes.
(d) As mechanism of reporting illegal washing does not exist, no action has been taken on any Dyeing and Printing unit for promoting illegal ghats.
(e) In Central Effluent Treatment Plant (CETP) two levels of effluents are drained through a common drainage network of about 35-40 kms.
a. Nagarpalika effluent (About 3.0 MLD)
b. Process house effluent from units of Jetpur Dyeing and Printing Association (JDPA) (about 4.0 MLD-effluent of approximately 1175 JDPA units)
(f) Both the effluents have wide variation in their chemical composition. The Nagar Palika effluent is less contaminated than the effluents of process houses. This dilutes the process house effluent. But during last few years water consumption by Nagarpalika has increased manifold and the effluent has increased by 25 to 30%. The CETP is originally designed for effluents load of 7.0 MLD only. Excess effluent load of Nagarpalika is burdening the CETP of JDPA and hence hampers its efficiency.
(g) The water contaminated by effluents of illegal ghats has different color shades (Green/Yellow/Orange), with foul odour not to the liking of human senses.
(h) The washing ghats located in upstream areas are affecting the ground water as will as river water due to contamination of effluent in downstream area and also deteriorate the soil matrix in the fields where it is used for irrigation.
(i) The effluent contaminated water fall under either salinity or alkalinity or both. This results in secondary Salinization and alkalinization in soils
(j) With a few exceptions, all the water contaminated samples have high sodicity hazards.
(k) On the basis of water quality class, exceptionally (only three samples), all the samples fall in C4S4 class; hence is not suitable for irrigation.
(l) The process house and ETP effluent water have BOD values higher than the permissible limit.
(m) No third party assessment or Periodical performance evaluation (Qualitatively and Quantitatively) of CETP of JDPA is being done at present and hence no impartial report on such aspects is available.
(n) It has been observed that CETP inlet effluent parameters (Qualitatively and Quantitatively) have not been fixed for all CETP members to match with the norms of the CETP design parameters.
(o) In the present modern era lack of an on- line monitoring system (which is a must for effective pollution monitoring) to check important parameters of quality of treated water from out let of CETP is quite visible as no such data on day to day basis is available with any concerned agency.
(p) No method or model to evaluate the water audit exists in the area and farmers use the treated effluent water for irrigation purpose without the basic awareness about the long term effect of treated water on soil matrix and groundwater.
(q) Being rocky terrain, a good drainage system is developed in the area. Several small and medium drains are carrying the effluents from illegal ghats and draining in to the major drainage systems and finally to the rivers. Such inlets to major drainage Systems and main rivers are not being monitored peridocally by and agency. This unchedked polluted flow will have very adverse effects on the overall surface and groundwater regime of the area.
(r) The Quantity of the effluent, released by the units, is fixed by the GPCB at the time of sanction and is also monitored by them. However, a common and effective monitoring system for periodical checks of the effluent quantity to avoid the extra load on CETP has not been established.
(s) It is apparent that all the effluent generated by licensed units of JDPA has some specific production and effluents treatment norms, hence, effluent generated will directly be proportional to the chemicals used. However, there is no mechanism of providing stock positioning record by JDPA to GPCB, with which an assessment model could be developed to check the effluent intensity and concentration at various levels.
(t) The dyeing and printing units are within the vicinity of Nagarpalika but it has no control on JDPA and does not take action on any illegal activity, with effects the environment.
(u) It is observed that maximum illegal washing ghats are situated in the vicinity of water bodies like Uben and Chhaparwadi dams. Irrigation department does not take any action on demolishing of such ghats.
(v) As Jetpur Nagarpalika does not have its own sewerage treatment plant, untreated municipal effluents overloads the CETP and untreated water that does not enter the CETP must certainly be spoiling the close by ecosystem.
(w) Rainfall data of the area reveals that even after better rains in last decade, the impact of rain in dilution of pollutants in ground water is negligible.
(x) It has been observed that steps are not being taken for periodical health survey in the affected areas by some reputed medical teams, under Corporate Social Responsibility (CSR).
(y) JDPA has not made any considerable efforts for R & D to develop suitable technology on “Reuse of effluent water from dyeing and printing industry, after filtration” & JDPA does not have its own effective, qualified and experienced team for monitoring of its CETP.
(``) A mechanism by JDPA to provide names and addresses of defaulting units to GPCB and other concerned agencies for suitable action is missing.
In the said Final Report, the Committee also showed the results of effluent contaminated water samples which were as under:
Physical feature:
The water sample analysis date (Table-1) indicates that:
● All effluent contaminated river water is green in colour.
● The effluent from ETP and washing ghat is found yellow in colour with greenish tint.
● The untreated process house water is found orange in colour with yellowish tint, which gets converted to orange colour when diluted in process house.
● Treated process house water was observed to be of green colour with yellowish tint.
● It was also observed that waste water has foul odour, which is certainly not to the liking of human senses.
Chemical Characteristics
The date (Table-1) showed that:
● The electrical conductivity (EC) values varied from 0.91 ti 19.30 dSm-1 with a mean value of 5.90 dSm-1.
● The maximum values of EC range from 7.57 to 19.30 dSm-1
● The EC values show decreasing order from Process house effluent contaminated water followed by washing ghat, ETP and river water.
● All the water samples, except Chhaparvadi River water at Mewasa and the Uben River at Bhatgam were falling in high category to salinity (C4 class).
● If such type of effluent contaminated water is used directly for irrigation purpose, it in long run may cause secondary salinization in the irrigated fields.
Thereafter, the Committee made the following recommendations:
1. As any activity in a village comes easily to the notice of the concerned Talati, District Collectors (Rajkot & Junagadh) may be directed to instruct Mamlatdar and Talaties to report about existence of any such illegal activities in their areas. Permanent and dedicated teams for demolition of illegal washing ghats are required to be constituted for all affected villages.(Action-District Collector).
2. Derdi and Bhatgam projects of creation of new CETPs must be completed at the earliest. As it may take some time for construction, JDPA meanwhile should assure the authorities that they will run their washing ghats as per the GPCB norms and will not do any illegal out-sourcing for washing. (Action JDPA)
3. The washing ghats have some adjoining land also for drying the cloths. These are the agricultural lands for agricultural purposes only and cannot be used for other purposes; this is a case of change in assigned purpose. Against such activities legal action must be taken by the authorities to ensure that land use does not change. If so, action to the level of land seizure should be recommended. (Action-Revenue Department)
4. Any Dyeing and Printing unit promoting illegal ghats must be closed for a minimum period of 6 months. (Action-GPCB)
5. In Central Effluent Treatment Plant (CETP) two levels of effluents are coming with one drainage systems. The Nagarpalika must have separate sewerage treatment plant for their municipal waste and treated water from this plant should be used to dilute the industrial effluent before sending it to the CETP for subsequent treatment. This will enhance the efficiency of CETP/ (Action- Nagarpalika, JDPA & GPCB)
6. Periodical performance evaluation (Qualitatively and Quantitatively) of CETP and JDPA must be done by third party (like NEERI) (Action-JDPA)
7. CETP inlet effluent parameters ( Qualitatively and quantitatively) should be fixed for all CETP members to match with the norms of the CETP design parameters. (Action- JDPA & CETP members)
8. On-line monitoring system of important parameters at the out let of CETP should be installed by JDPA, so that quality of treated water from CETP can be regularly checked by GPCB authorities for corrective actions, if required. (Action-JDPA)
9. There is a need of effluent water audit. The treated effluent from CETP must be periodically checked by some third party like NEERI or any other agency. This will help to the farmers to assure themselves to use the treated effluent water for irrigation purpose. (Action-JDPA)
10. Being rocky terrain, a good drainage (natural rivulet system) is developed in the area. Several small and medium drains (rivulets) carry the effluents from illegal ghats and drain them in to the bigger rivulets and finally to the major rivers. All inlets of such major drainage Systems and main rivers should be monitored periodically be GPCB. (Action-GPCB)
11. The Quantity of the effluent, released by the units, is fixed by the GPCB at the time of sanction and is also monitored by them. However, a common and effective monitoring system (GPCB + Agriculture + Water expert + administration) should be established for periodical checks of the effluent quantity to avoid the extra load on CETP (Action- All concerned agencies)
12. As the effluent is being generated by JDPA, and all licensed units have some specific production and effluents treatment norms. Stock of the chemicals required for such treatments should be checked periodically be all monitoring agencies. (Action-GPCB)
13. Power supply bills of treatment plants should be checked regularly to ensure the operational status by all monitoring agencies. (Action-GPCB & District Collector)
14. As the dyeing and printing units are within the vicinity of Nagarpalika, they should have control on JDPA. No such activity should be allowed which effects the environment. (Action-Jetpur Nagarpalika)
15. It is observed that maximum illegal washing ghats are situated in the vicinity of water bodies like Uben and Chhaparwadi dams. Irrigation Department shall issue specific directives that no water abstraction activity should be done in the near vicinity of the dam for any washing ghats. Therefore, the irrigation department should take immediate action on closing and demolishing of such ghats and get assurance from the civic body that they will not allow ton develop such washing ghats in future. (Action-Irrigation Department)
16. Nagarpalika should also have some reserve funds available with them to meet the unforessen expenses related to O & M and up- gradation of sewerage treatment plant. (Action-Jetpur Nagarpalika)
17. Rainfall date of the area reveal that even after better rains in last decade, the impact of rain in dilution of pollutants in ground water is negligible. Therefore, it is recommended that ground, water recharge activity by providing suitable recharge structures should be promoted. This will help in control the run-off and storing ground water which will dilute the pollutants. (Action-Water Resources Department)
18. Under Corporate Social Responsibility (CSR), periodical health survey in the affected areas must be done by National Institute of Occupational Health (NIOH) or some reputed hospital teams. This will help to assess the impact of surface/ground water on human health. A permanent record should be maintained. (Action-JDPA)
19. R & D on developing suitable technology on “Reuse of effluent water from dyeing and printing industry, after filtration” is required to be done. JDPA must make sincere efforts to use their effluent water, after treatment as recycled water. (Action-JDPA)
20. JDPA must have its own dedicated team for monitoring of its CETP. The team should comprise of qualified and experienced personnel for Operation & Maintenance. (Action-JDPA)
21. In addition to this, they should follow the earlier use of urea fertilizer in printing design. (Action-JDPA)
22. A long term field experiments need to be taken up with different crops for confirmatory purpose through agricultural university. (Action-Reputed Agricultural University)
23. The farmers shall utilize the effluent contaminated water only if it is treated in the plant and should first get the samples analyzed before using it for irrigation. Similarly, the irrigated soil should also be analyzed periodically. (Action-Individual farmer)
24. JDPA shall provide names and addresses of defaulting units to GPCB and other concerned agencies for suitable action. (Action-JDPA)”
After the receipt of the Final Report of the Committee of Experts, the matter was further adjudicated and it was jointly submitted on behalf of the GPCB as well as the Association that they would like to give suggestions to this Court in respect of the report given by the said Committee. Accordingly, we permitted both the respondents i.e. respondent No. 5 and the GPCB vide order dated 9th February 2012 to give their suggestions to the Committee, which had already submitted its report. The Committee submitted its supplementary report dated 9th April 2012 after considering the suggestions made by the Association dated 22nd February 2012 as well as the suggestions of the GPCB, and after careful study of the suggestions of the Association, the Committee once again revisited some of the sites at Jetpur and also discussed the matter. Accordingly, few suggestions of the Committee were modified. Few salient features of the supplementary report submitted by the Committee on 9th April 2012 are as under:
(1) The Committee recommended that in an emergent situation or gross violation of any of the norms or rules or regulations, it should be kept open for the Gujarat Pollution Control Board to involve other Government machineries even for a limited period.
(2) The Committee agreed that it would not be in the fitness of things to involve Talati of a particular area but the Collector or the Mamlatdar of a particular area could be asked to keep a close watch over the units, and if any illegal activity is noticed, then they should inform the Gujarat Pollution Control Board.
(3) The Committee was of the opinion that dyeing of sarees or clothes by itself would not create pollution as it is a practice followed since time immemorial. However, the Committee suggested that the activity of dyeing should be undertaken in such a manner that it would have no adverse effect on the agricultural activities.
(4) The Committee further suggested that one sewerage treatment plant having the capacity of 50 lac liters per day must be constructed at the cost of the Association and the Association must be asked to operate such sewerage treatment plant on behalf of the Nagarpalika till the Nagarpalika makes its own sewerage treatment plant.
An undertaking on oath has also been filed on behalf of the respondent No.5-Association through its President, wherein, it has undertaken to abide by the recommendations of the Experts Committee including the supplementary report. The respondent No.5 has also undertaken to complete the construction of common Effluent Treatment Plant at Bhatgam within a period of two and a half years i.e. by November 2014, and make it functional. The Association has also undertaken to identify outlet site in place of Derdi by December 2012, and will report about the same to the GPCB. The Association has undertaken to complete the construction within two and a half years from the date of NOC and approval from the GPCB. The Association has also undertaken to treat municipal sewerage by constructing a sewerage treatment plant having capacity of treating 50 lac liters sewerage per day, and after treatment, its treated effluent would be taken over to the CETP for further treatment. The Association has undertaken to complete the construction of such STP within a period of 6 to 8 months from today at its cost and will continue to treat waste water/effluent till Jetpur municipality makes its own treatment plant in approximately a period of five years.
After taking into consideration the aforesaid factual background of the entire litigation, now time has come for us to decide as to whether, we should close this Public Interest Litigation, by issuing appropriate final directions or we should continue to monitor the progress for a further period in the interest of the people at large.
The Supreme Court in Vellore Citizens' Welfare Forum v/s. Union of India, reported in (1996)5 SCC 647, considered in detail the “sustainable development” to the extent which has been recognised under the international law and also its practicability under the environmental laws in India. The Supreme Court in the said judgment held that the “precautionary principle” and “the polluter pays” principle have been accepted as part of the law of the land. The relevant part of the judgment is as under :
“11. Some of the salient principles of "Sustainable Development", as called out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Co- operate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that "The Precautionary Principle" and "The Polluter Pays" principle are essential features of "Sustainable Development." The "Precautionary Principle" - in the context of the municipal law - means :
(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
The "Onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign.
12."The Polluter Pays" principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action v. Union of India, (1996)3 SCC 212. The Court observed:
"We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country".
The Court ruled that:
"...once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact Whether he took reasonable care While carrying on his activity. The rule is premised upon the very nature of the activity carried on".
Consequently the polluting industries are ''absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". The ''Polluter Pays'' principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of ''Sustainable Development'' and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
13.The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48A and 51-A(g) of the Constitution are as under :
"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
48A. Protection and improvement of environment and safeguarding of forests and wild life - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
51A(g). To protect and improve the natural environment including forests, lakes rivers and wild life, and to have compassion for living creatures.”
We heard Mr.Dipak H.Sindhi, learned counsel appearing for the petitioner, Mr.P.K.Jani, learned Government Pleader, appearing for the respondent Nos.1, 2 and 4, Ms.Dharmishta Raval and Mrs.Kalpana K.Raval, learned advocates for the respondent No.3 - GPCB, Mr.M.C.Bhatt, learned senior counsel, appearing with Mr.R.D.Raval for the respondent No.5 - Association and Mr.R.R.Trivedi appearing with Mr.Bhavesh P.Trivedi, learned advocate, for the respondent No.6 - Jetpur Nagarpalika.
Having heard the learned counsel for the respective parties and having gone through the materials on record, we are of the opinion that the level of pollution at Jetpur and surrounding areas was alarming. We are of the view that monitoring for some more time at our end is still necessary to protect the ecologically-fragile Jetpur Taluka. We may only say that it is only when this Court started looking into this matter that the authorities concerned thought fit to take appropriate steps. Over a period of time, the situation has improved to a considerable extent, and we are sure that with the cooperation of one and all, the ecological conditions at Jetpur and its surrounding areas can be made much better and all endeavours must be made to take care of the problem of water pollution and soil pollution. On suggestions being made by the GPCB and other authorities, many units were ordered to be closed down, and most of the illegal washing ghats where illegal washing activities were being undertaken, have been demolished. However, it appears that, there are still few washing ghats which may not be authorised by the GPCB are still continuing with the activity leading to pollution. After assessing the situation and being satisfied about the steps being taken to curb the problem of pollution, we also started passing orders of trial run of such units, whereby the units are given a chance to start its operation and the GPCB would monitor the same and place its report as to whether the units are complying with all the norms and should be permitted to continue its operation. Many individual petitions by the respective unit have been preferred and are still pending before this Court. We have extended the order of the trial run time and again on being satisfied that the concerned unit is complying with the norms and is not creating any pollution. Wherever GPCB have objected saying that the unit has failed to comply with the norms and is creating pollution, we have authorized GPCB to close down such Units.
As stated above, we do not close this Public Interest Litigation but would like to issue few directions and continue to monitor the further progress in the matter for some more time. Thus, we issue the following directions:
(1) In all pending writ petitions of individual units, wherein we have ordered trial run, we direct the GPCB to permit such individual units to give three months trial run from today. However, it is clarified that during this period of three months, the GPCB shall continue to inspect the respective unit periodically, preferably every 15 days, and if it is found by the GPCB at any point of time that a particular unit is creating pollution or is not complying with the directions issued by this Court or the GPCB, it shall be open for the GPCB to immediately pass an order of closure as recommended by the Experts Committee. On expiry of period of three months' trial run, the respective unit shall directly apply with the GPCB for further extension of three months' trial run, and on such application being made, the GPCB shall decide the same and pass necessary orders in accordance with law.
(2) Respondent no.3 – GPCB shall organize a task force or a team, if necessary, and it would also be open for the GPCB to mobilize other departmental officers of the State for strict implementation of our directions as well as the recommendations of the Experts Committee.
(3) There should be periodical inspection of the entire area so far as illegal washing ghats are concerned, and if any person is found operating such illegal washing ghats, the District Collector/Mamlatdar/Association is directed to inform the GPCB so that appropriate steps could be taken by the GPCB.
(4) We also direct the District Collector/Mamlatdar to take immediate steps for demolition of such illegal washing ghats and also to take necessary legal action against the owner of the land who may have permitted construction of such illegal washing ghats.
(5) Respondent No.5 Association is directed to immediately undertake the work of construction of sewerage treatment plant at Jetpur at its cost to treat municipal sewerage, having a capacity of treating at least 50 lac liters of sewerage per day, within a period of 6 to 8 months from today. Respondent No. 5 Association shall continue to treat municipal waste water/effluent till Jetpur Nagarpalika sets up its own plant in approximately five years.
(6) Respondent No. 6 Jetpur Nagarpalika is directed to fully cooperate with the GPCB and other authorities so far as the cleaning its gutters and disposal of its solid waste is concerned.
(7) Respondent No. 5 Association is directed to make CETP at Bhatgam, District Junagadh, operational at any cost, within a period of two and a half years, that is, by November 2014. Respondent No. 5 Association shall exhibit promptness so far as construction of CETP at Bhatgam is concerned, as undertaken by the Association.
(8) Respondent No. 5 Association shall immediately identify outlet sites to the GPCB instead of Derdi for setting up of CETP, within a period of three months from today, that is, by December 2012, and the GPCB is directed to immediately issue necessary NOC in that regard.
(9) Respondent No.5 Association is directed to complete the construction of CETP at such outlet site within a period of two and a half years from the date of obtaining an NOC from the GPCB.
(10) Respondent No.5 Association is directed to strictly comply with the conditions mentioned in Annexures-I and II, and in case of any violation of any of the conditions, it will be open for the respondent No.3 GPCB to take appropriate action in accordance with law.
We have issued comprehensive directions for achieving the end result in this case. We direct the Registry of this Court to notify this matter after a period of six months from today.
We give liberty to the parties to approach this Court as and when necessary.
In view of the order passed in the main matter, all the connected Civil Applications would not survive and are accordingly disposed of.
(BHASKAR BHATTACHARYA, CJ.) /MOIN (J.B.PARDIWALA, J.)