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2011 DIGILAW 2216 (PNJ)

Anil Kumar v. State of Haryana

2011-12-14

M.M.KUMAR, RAJIV NARAIN RAINA

body2011
JUDGMENT Mr. M.M. Kumar, J.: - The present is a Public Interest Litigation filed under Article 226 of the Constitution with the grievance that M/s. Ferost Falcom Distilleries Limited-respondent No. 6 has set up distillery in the area without setting up any treatment plant for treating the pollutant discharged from the same, which adversely affect the environment in and around village Jahri Tehsil and District Sonepat. According to the petitioner the pollutant was being discharged in the open space around the distillery or in a drain. The village area has, thus, become a pond full of poisonous and hazardous liquid waste emitting pungent odour making the life of the entire population of the village and the live stock miserable. 2. In the reply filed on behalf of Haryana State Pollution Control Board-respondent No. 3 (for brevity, ‘the HSPCB’) it has been pointed out that a Committee was constituted pursuant to an order dated 23.1.2001 passed by Hon’ble the Supreme Court in Writ Petition (Civil) No. 725 of 1994. The Committee consists of Additional Secretary in the Ministry of Environment and Forests, Government of India and a Senior Officer to be deputed by the Ministry along with the Chairman, Central Pollution Control Board to monitor the functioning of the distilleries in the State of Haryana. A show cause under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (for brevity, ‘the Water Act’) was issued to the Unit for up-gradation of the Effluent Treatment Plant (for brevity, ‘the ETP’) while refusing consent under the Water Act. The distillery was closed in the year 1996 by Hon’ble the Supreme Court and a leading environment agency, namely, ‘NEERI’ was directed to inspect the Unit and suggest recommendations. ‘NEERI’ had recommended certain modifications of ETP. ‘Thereupon the Unit had filed an affidavit agreeing to comply with the recommendations of ‘NEERI’ and it was re-opened thereafter. 3. It was further asserted by the HSPCB that it is implementing the directions/guidelines issued by the aforementioned Committee. It has also issued directions to the Unit for better treatment of effluents as per the latest technology. The Central Pollution Control Board (for brevity, ‘the CPCB’) in its letter dated 17.4.2002, issued certain guidelines directing the Unit to adopt bio-composting process i.e. utilization of untreated effluent (spent wash) wife press mud of sugar mills. It has also issued directions to the Unit for better treatment of effluents as per the latest technology. The Central Pollution Control Board (for brevity, ‘the CPCB’) in its letter dated 17.4.2002, issued certain guidelines directing the Unit to adopt bio-composting process i.e. utilization of untreated effluent (spent wash) wife press mud of sugar mills. On 18.5.2006, directions were issued to utilize 100% spent wash (trade effluent) for bio-composting process and not to discharge any trade effluent in the drain. Thereafter the Unit was permitted to operate at 25% production capacity i.e. 15 Kiloletres per day against its capacity of 60 Kiloletres per day, vide order dated 17.4.2007. The Unit was also directed to install Multiple Effect Evaporation System with spray drier/incinerator to effect zero discharge beside bio-methanation and bio-composting process on the recommendation of the High Power Committee. The HSPCB has also issued further directions on 12.3.2008 directing the Unit to install RO/Nano Filtration System within six months and submit a revised scheme immediately. 4. On 11.4.2008 (R-7), the Committee advised the HSPCB requiring the Unit to achieve zero discharge by installing requisite pollution control measures (RO/Nano Filtration System/Evaporation/Drier/Incineration System). In pursuance of such directions, the HSPCB has issued directions to the Unit on 31.3.2008. Subsequently, a show cause notice was issued to the Unit pointing out that it has failed to achieve zero discharge and, thus, the provisions of the Water act are not complied with. The Unit in its reply to the said show cause notice stated that it would install Magnetic Flow Meter at the main source of total water supply and also install an Electronic Flow Meter at the final outlet of the ETP. 5. On 29.8.2008, this Court directed the Unit not to resume its fermentation/distillation process without strictly complying with the said directions issued by the HSPCB. On 31.10.2008, it was informed to this Court by the learned counsel for respondent No. 6, on the basis of the affidavit filed by Mr. J.K. Tyagi, General Manger, that the Unit has complied with the directions issued by the HSPCB and an intimation to that effect was sent vide letters dated 29.9.2008 and 17.10.2008. The HSPCB was directed to verify whether the measures directed to be taken by respondent No. 6 have in fact been taken and if so whether the said measures comply with the requirements of the Act and the Rules. The HSPCB was directed to verify whether the measures directed to be taken by respondent No. 6 have in fact been taken and if so whether the said measures comply with the requirements of the Act and the Rules. In that regard a status report was called for from the HSPCB. 6. However, it was pointed out by the petitioner’s counsel that despite the directions of this Court, dated 29.8.2008, respondent No. 6 was continuing with its fermentation/distillation process in total defiance of the order of this Court and without complying with the directions issued by the HSPCB contained in Annexures R-8 and R-10. The said contention was disputed by learned counsel for respondent No. 6 and it was stated before this Court that the distillery was shut down w.e.f. 17.7.2008 and no distillation/fermentation or manufacturing process had taken place. This Court permitted the petitioner to approach the Chief Judicial Magistrate, Sonepat, in case the Unit was found to be carrying on any fermentation/distillation process contrary to the order passed by this Court on 29.8.2008. In pursuance of such opportunity, the Chief Judicial Magistrate, Sonepat, inspected the Unit on 28.11.2008 and found that the fermentation/distillation process was being carried out. 7. On 3.12.2008, the HSPCB placed on record a status report pointing out that RO/Nano Filtration System, has been installed and three-member High Power Committee, would test its functional adequacy jointly with the authorities of the Board. Another status report has been filed by the HSPCB by way of an affidavit dated 9.1.2009 pointing out that the Unit has advanced Rs.44,00,000/- for purchase of Rochem PT-RO & NF System for treating bio-methanated spent wash with a total recovery of 70%, vide cheque dated 19.6.2008. The Unit has since installed Rochem PT-RO system as per the report of the Regional Officer, dated 22.10.2008, and that the fermentation/distillation process has been resumed on 27.11.2008 for taking trial of the said system. It was also pointed out that the Ministry of Environment and Forests, Government of India, has intimated that it is not possible to achieve zero discharge by RO/NF alone. The RO/NF reject is required to be mixed with press mud and convert it into compost. The composting process may not be able to convert soluble salts of sodium and calcium etc. into non-soluble and problem would resurface after some time. The RO/NF reject is required to be mixed with press mud and convert it into compost. The composting process may not be able to convert soluble salts of sodium and calcium etc. into non-soluble and problem would resurface after some time. It has been pointed out that the directions were issued to the Unit to submit the scheme along with the details of composting done to achieve zero discharge. The Unit has been directed to submit its recommendations in respect of sodium, potassium, calcium salts from the recognized laboratory by 16.1.2009. A technical team inspected the Unit on 8.1.2009 and it was observed that the effluent arising from the fermentation and distillation was being taken into the digesters through buffer tank to activate the bio-mass. This process takes 90-120 days for stablisation and thereafter, the effluent can be treated through Reverse Osmosis Sustem/Nano Filtration System. 8. On 13.1.2009, learned counsel representing the Unit apprised the Court that the Unit has resumed production to test Reverse Osmosis/Nano Filtration System by restricting production to 10 Kiloletres per day that such production has been resumed after the ETP was installed as per the directions of the HSPCB. The effluent can be treated after stablisation process after 90 days to determine the efficacy of the effluent treatment steps taken by the Unit. On the other hand, learned State counsel-has submitted that the sample of the effluent would be taken after expiry of 90 days and other appropriate steps were to be taken accordingly to ensure that the Unit meets all the parameters fixed under all the statutory provisions. In this view of the matter, the Division Bench issued the following direction, vide order dated 13.1.2009 :- “Therefore, we deem it appropriate to direct the Board to inspect the efficiency of the RO/Nano Filtration system and the process to mix RO/NF reject with press must resulting into zero discharge of the effluent of the Unit. The Board shall inspect the Unit of respondent No. 6 after the stablisation process is completed on 3.3.2009. To ensure transparency and effectiveness of the inspection and testing of the effluent, we request Dr. Vasundhara Singh, Assistant Processor, Department of Applied Sciences, Punjab Engineering College, Chandigarh and Dr. Madhuri Rishi, Lecturer in Earth Sciences, Panjab University, Chandigarh to remain present during the process of sampling. They shall be paid a sum of Rs. To ensure transparency and effectiveness of the inspection and testing of the effluent, we request Dr. Vasundhara Singh, Assistant Processor, Department of Applied Sciences, Punjab Engineering College, Chandigarh and Dr. Madhuri Rishi, Lecturer in Earth Sciences, Panjab University, Chandigarh to remain present during the process of sampling. They shall be paid a sum of Rs. 20,000/- each as honorarium by respondent No. 6, subject to appointment of such expenses at the final stage. However, the Board shall make arrangement for their traveling, stay etc. at Sonepat. It shall be open to such experts to get the samples tested from a recognized laboratory. The report of such sampling and consequent testing shall be submitted within 10 days of the inspection. Till such time the plant installed by the Unit is tested, it shall not commence its commercial production.” 9. On an application filed by respondent No. 6, order dated 13.1.2009 was modified on 11.2.2009 and it was permitted to operate the system to the extent of producing 10 kilo-liters of rectified spirit per day so that the test about the performance of the ETP installed by the Unit could be undertaken. The Deputy Excise and Taxation Commissioner, Sonepat was directed to monitor the production and ensure that the daily production of the rectified spirit limits does not go beyond the permitted limit of 10 Kilo-liters per day. 10. In compliance with the order dated 13.1.2009, the HSPCB and the experts appointed by this Court inspected the Unit and submitted a report along with an affidavit of Mr. Dinesh Kumar, Regional Officer, HSPCB, Sonepat Region, Sonepat. As per the said report, the sample collected after RO treatment were found to be higher than the permissible limit of 30mg/L prescribed for discharge on land for percolation. It was also reported that the Nano-Filtration system was not working effectively and that the sample collected from outlet of NF system showed the BOD level of 301/mg/L. Even the Bio-Methanation system was not performing effectively according to the report. Thus, certain stops were recommended by the HSPCB which were to be undertaken by the Unit. Having considered the matter at length, the Division Bench made the following observations in its order dated 18.3.2009 :- “At the hearing before us today, learned counsel appearing for respondent No. 3 argued that the Unit has already achieved zero discharge for the past about 5 years. Having considered the matter at length, the Division Bench made the following observations in its order dated 18.3.2009 :- “At the hearing before us today, learned counsel appearing for respondent No. 3 argued that the Unit has already achieved zero discharge for the past about 5 years. We found it difficult to accept that submission at its face value, primarily because, in our opinion, the Unit which has an installed capacity of 60 kilo liters and has a daily requirement of 3.2 lacs liters of fresh water for dilution of mollases, with the Unit running at a capacity of 40 kilo liters a day, would not be in a position to attain zero discharge demanded by the Committee unless a credible process was indicated by which the effluent discharge from the distillery is shown to have been utilized/consumed in toto, leading to a zero discharge situation. It was, at this stage, that the respondent, offered to file an affidavit to buttress its claim of having attained zero discharge by what is according to the Unit bio-composting of the effluent. We had accordingly permitted the respondent to file an affidavit to that effect, which it has done. The affidavit makes certain assertions as regards the process by which the Unit claims to be maintaining zero discharge. How far is it possible to attain zero discharge by adoption of the process indicated in the affidavit is, therefore, a matter on which we would require some assistance from not only the Committee appointed by the Hon’ble Supreme Court, but also the Central Pollution Control Board. We accordingly direct that a copy of the inspection report submitted by the Haryana Pollution Control Board to this Court alongwith copies of two additional affidavits, referred to earlier and filed by respondent No. 6, shall be forwarded to the Chairman of the Central Pollution Control Board, who is according to Mr. Walia, one of the Members of the Three Member High Powered Committee, to place the same before the Committee for its opinion on the following two questions: (i) Whether the Unit can be said to have attained zero discharge as claimed by it; and (ii) Whether it is at all possible to attain zero discharge condition by adoption of the process which the petitioner has indicated in the affidavit.” 11. On 8.10.2009, the Additional Director, CPCB filed an affidavit stating that a team comprising officials of the CPCB was sent for inspection of the Unit at Sonepat, who noted that the Unit had been shut down. The team also collected information on effluent management facilities set up by the unit and found that although the water consumption of the unit is 690 KLD and waster water generation as high as 480 KLD, the water mass balance details provided by the unit did not specify recirculation or reuse of that the CPCB would conduct a fresh inspection of the unit as and when the unit is ready for such an inspection and that upon assessment and evaluation of the measures taken by the unit, the Board could permit or decline permission for resumption of its operations. Learned counsel for respondent No. 6 was agreeable to the said suggestion and stated that the Unit would not resume its operations unless the CPCB evaluates the facilities and the measures taken by it to attain the zero liquid discharge and certifies that the unit is fully complaint with all norms. Accordingly, following directions were issued by this Court vide order dated 8.10.2009 : i) Respondent No. 6 Unit shall not resume its operations except in accordance with law under the directions of the Central Pollution Control Board. ii) The Unit shall be free to make a request to the Chairman of the Central Pollution Control Board for a fresh inspection and evaluation of its pollution control measures aimed at achieving zero liquid discharge. On receipt of such a request, the Chairman would constitute and depute a Committee for inspection and evaluation of the measures. The Chairman shall be free to insist on deposit of such fee for such inspection as may be otherwise permissible. iii) It is only upon consideration of the inspection report submitted to it that the Board shall take a decision whether to permit the unit to resume its operation and if so subject to what conditions if any that it may impose.” 12. Thereafter, the Court was informed that installation of the new system in the Unit has been completed and it may be allowed to commence operations. The Court was further informed that the inspection by the Board should be undertaken between 120 to 180 days after the operation commences. Thereafter, the Court was informed that installation of the new system in the Unit has been completed and it may be allowed to commence operations. The Court was further informed that the inspection by the Board should be undertaken between 120 to 180 days after the operation commences. Accordingly, by order dated 29.9.2010 orders to the above effect were passed. 13. In the order dated 28.3.2011 reference was made to the earlier order dated 8.10.2009. The question which emerges for consideration by this Court was framed ‘Whether the Unit can attain zero discharge condition by adoption of the process already installed in the unit in question’. Accordingly, the Central Pollution Control Board showed its willingness to conduct a fresh inspection of the unit as and when the same was ready for such inspection and directions were issued that respondent No. 6-unit shall not resume its operation and make a request to the Chairman of the Central Pollution Control Board for a fresh inspection and evaluation of its anti pollution measures aimed at achieving zero affluent discharge. A further direction was issued that after consideration of the inspection report the Board shall take its decision whether the unit is to be allowed to resume its operation and, if so, subject to what conditions if any that may be imposed. 14. The Court was informed with regard to the installation of new system in the respondent-unit which was completed and permission was sought to allow its operation. The Court was further informed that the inspection by the Board should be undertaken between 120 to 180 days after the operation commences. Then the discharge of pollution could have been detected and order dated 29.9.2010 to that effect was passed. Thereafter, the respondent-unit commenced operation w.e.f. 5.11.2010 and an inspection by the Central Pollution Control Board was carried out on 134 days after the commencement of the operation. The report of inspection was placed before the Court on 28.3.211, which indicated that the unit did not achieve zero effluent discharge condition. 15. In the order dated 28.3.2011, this Court further observed that ordinarily on the failure of the unit to achieve the zero discharge condition, it was liable to be shut down especially in terms of the undertaking given by respondent No. 6-unit before this Court on 8.10.2009. 15. In the order dated 28.3.2011, this Court further observed that ordinarily on the failure of the unit to achieve the zero discharge condition, it was liable to be shut down especially in terms of the undertaking given by respondent No. 6-unit before this Court on 8.10.2009. However, on the request made by the learned counsel for respondent No. 6-unit highlighting that unit had achieved 80 to 90% stabilization on the day of inspection. After the commencement of the operation, it was appropriate to carry out further inspection after 180 days from the commencement of the operation. The claim made by the learned counsel for respondent No. 6-unit could for the Central Pollution Control Board or by the counsel for the petitioner. On account of the fact that the expert from the Central Pollution Control Board were not present to assist the Court in the matter, this Court granted benefit of doubt to respondent No. 6-unit and the unit was allowed to function with a further rider that a fresh inspection, on payment of usual fee and charges by respondent No. 6, will be carried out by the Central Pollution Control Board on 15.5.2011 when the period of 190 days from the commencement of operation was to be completed. The report dated 23.5.2011 of such inspection has now been placed on record. The concluding para of the report reads as under : “That the Unit has made provision for zero effluent discharge condition through commissioning of Decanter, MEE and Screw Mixer system to produce Distillers Wet Grains & Soluble (DWGS) which is used as cattle feed. The operation of the zero effluent discharge system was also observed to be functioned, on the day of inspection, as no discharge was found.” 16. In view of the above, the learned counsel for the petitioner states that the instant petition has been rendered infructuous as respondent No. 6-Unit has achieved zero affluent discharge condition. However, we made it clear that inspection by the concerned Pollution Control Board be periodically carried out in accordance with the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and if the Unit respondent No. 6, remains unable to maintain the zero affluent discharge condition then this order shall not come in their way to proceed against the Unit-respondent No. 6 in accordance with law. The petitioner would be at liberty to move an appropriate application, if any such violation is found. 17. The petition stands disposed of in the above terms at this stage.