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2017 DIGILAW 154 (JK)

Phunchok Angchuk v. State of J & K

2017-03-22

DHIRAJ SINGH THAKUR, RAMALINGAM SUDHAKAR

body2017
JUDGMENT : Sudhakar, J. The residents of villages Agling and Spituk of District Leh, nineteen in number, have approached this Court by filing two writ petitions, OWP Nos. 1207/2014 and 613/2016, objecting to the establishment of Sewage Treatment Plant at Agling, Leh. In OWP No. 1207/2014 a prayer was made to direct the respondents not to construct the Sewerage Treatment Plant in Agling Village Spituk of District Leh and to shift the said plant to any other place. 2. In OWP No. 613/2016 the order under challenge is Consent Order No. 1638 of 2016, dated 14.03.2016 issued by Member Secretary, J&K State Pollution Control Board in favour of the Executive Engineer, Public Health Engineering Division Leh, for establishment of Sewage Treatment Plant (hereinafter called “the STP”) at Agling, Leh. The villagers pleaded before the Writ Court that the process of construction of the STP is bad as it does not have the requisite environmental clearance, required by law. It is in the near vicinity of their residential houses and lands. 3. To support this argument emphasis was laid on the Ministry of Environment and Forest notification SO 1533, dated 14.09.2006. According to the appellants, in terms of the said Notification dated 14.09.2006 the State Level Environment Impact Assessment Authority should have been approached by the official respondents before proceeding to take up the project of the STP. Having failed to do so, the project is bad as it does not satisfy the requirement of law on the environment clearance. Reference is made to the Schedule, the relevant portion whereof reads thus:- Schedule (See Paragraph 2 and 7) List of Projects Or Activities Requiring Prior Environmental Clearance Project or Activity Category with threshold List Conditions if any A B 1 Mining, extraction of natural resources and power generation (for a specified production capacity) 7. Physical Infrastructure including Environmental Services 7 Common Effluent Treatment All General condition (h) Plants (CETPs) Projects shall apply 7 Common Municipal Plants All General condition (i) (CMPs) Projects shall apply 4. According to the appellants all projects falling under category B, namely, CETP, have to get the requisite environment clearance. As in this case the respondents are in the process of establishing the STP, the learned Single Judge disposed of both the writ petitions by common order dated 03.08.2016, by allowing the official respondents to go ahead with the installation of the STP at Agling, Leh. As in this case the respondents are in the process of establishing the STP, the learned Single Judge disposed of both the writ petitions by common order dated 03.08.2016, by allowing the official respondents to go ahead with the installation of the STP at Agling, Leh. However, the learned Single Judge emphasized that while establishing the STP the authorities should follow the observations made by the National Green Tribunal in case of Kehar Singh vs. State of Haryana, (Application No. 124/2013 decided on 12.09.2013), to address the environmental issue in proper manner. Paragraph Nos. 10, 11 and 12 of the order of the learned Single Judge reads as follows:- “10. A perusal of pleadings of respondents reveals that the STP which is being setup at Agling, Leh is basically a domestic wastewater treatment plant which involves cleaning up the sewage which is released from domestic and commercial sources. It includes physical, chemical and biological processes to remove these contaminants and produce environmentally safe treated wastewater which can be used for irrigation, besides such treated water improves the water quality of rivers and lakes, thus the same are prevented from being polluted. Further, it is the specific case of respondents that this very STP is not meant for cleaning up waste which is released from particularly dirty sources or heavily industrial companies/factories; rather the same is very important for the inhabitants of the area. 11. Here, in the present case, the main concern of petitioners, as is derived from pleadings of both the petitions, is that as the Sewage Treatment Plant is being setup just 50 meters away from the residential area, the same would emit very foul smell and would adversely affect the lives of inhabitants of the area, besides it would not be possible for the poor farmers to cultivate their land, even it will pollute the water stream which is adjacent to the STP and, above all, the respondents are not following the mandatory standards as are prescribed for establishment of such STPs. 12. Whereas the specific stand of respondents is that with the setting up of STP, not only the agriculture fields near to the vicinity will be provided safe treated wastewater, which is otherwise useful for agriculture purposes, even it would be good for keeping the environment clear, also it would not emit any foul smell. 12. Whereas the specific stand of respondents is that with the setting up of STP, not only the agriculture fields near to the vicinity will be provided safe treated wastewater, which is otherwise useful for agriculture purposes, even it would be good for keeping the environment clear, also it would not emit any foul smell. Further, as regards SO 1595(E), dated 29.04.2016, it has specifically been pleaded by the respondents that the same is a draft notification and would not be applicable in the State till it is finally issued by the Government of India.” 5. Aggrieved of this order these appeals have been filed. 6. We have heard the learned counsel for the parties. 7. In these appeals the learned counsel for the appellants principally pleads as follows:- That in terms of Para 2 of SO 1533, dated 14.09.2006, environment clearance is applicable to category B projects under 7(h) of the Schedule, which has already been extracted above. All such projects require environmental clearance and the STP being part of CETP, it would also require environmental clearance, which has not been sought for and granted in the instant case. Therefore, the consent impugned is bad. Specific reference is made to paragraph 41, 43, 44, 45 and 46 of the order of the National Green Tribunal in Kehar Singh's case to support this plea. 8. This contention of the appellants is being repelled by Mr. Sachin Dogra and by Mr. R.S. Jamwal, learned counsel appearing for the respondents. 9. At the behest of the Court an affidavit has been filed by Dr. Vimal Kumar Hatwal, Joint Director, Ministry of Environment, Forest and Climate Change, who after going through the entire gamut of the case and also after considering the impact of Schedule 7(h) and 7 (i) of Notification SO 1533, dated 14.09.2006, has opined in para 12 as follows:-12. It is submitted that the said project/activity of establishment of Sewage Treatment Plant in question is not within the purview of the EIA Notification, 2006 since the same is not explicitly stipulated in the entries listed in the Schedule to the EIA Notification, 2006.” 10. He has further submitted that the respondents have clearly indicated in the response filed to the writ petitions as well as before this Court that at no point of time the STP would treat industrial pollution of any kind. 11. He has further submitted that the respondents have clearly indicated in the response filed to the writ petitions as well as before this Court that at no point of time the STP would treat industrial pollution of any kind. 11. Learned counsel appearing for the respondents distinguishes the decision of the National Green Tribunal, stating that though STP in certain circumstances may be covered under the definition of CETP but in a case of this nature, there is no industrial or other toxicant fluids being treated by the proposed STP. It would therefore not be covered by the definition of CETP. He relies upon paragraph 45 and 46 of the judgment dated 12.09.2013 of the National Green Tribunal in case of Kehar Singh vs. State of Haryana, which reads as follows: “45. MoEF, Government of India, while dealing with the operational requirements of technical EIA clearance of effluent treatment plants, have, in paragraph 4.1 of the guidance manual stated as follows: “Coverage of CETPs under the Purview of Notification All new CETP projects including expansion and modernization require prior environmental clearance. Based on pollution potential, these projects irrespective of the capacities are classified into Category B. The Notification covers treatment plants which serve different industries not in the same premises for common/combined wastewater. The Notification excludes ETPs serving different production units within the same individual industry premises, which are integrated to operation. Besides there are general conditions, when it applies, a Category B project will be treated as Category A project. These conditions are discussed in subsequent sections. It also covers sludge handling, discharging pipeline and disposal point studies. It covers combined wastewater treatment plants i.e., CETPs accepting sewage also along with industrial effluents for better treat ability. For clarity, any treatment plant having more than 10% of industrial contributions by volume shall be treated as a combined treatment plant. The sequence of steps in the process of prior environmental clearance for Category B and Category A projects are shown in Figure 4.1 and Figure 4.2 respectively. Each stage in the process of prior environmental clearance for the CETP is discussed in subsequent sections. The timelines indicated against each stage are the maximum permissible timelines set in the Notification for said task. Each stage in the process of prior environmental clearance for the CETP is discussed in subsequent sections. The timelines indicated against each stage are the maximum permissible timelines set in the Notification for said task. In case the said task is not cleared/objected to by the concerned Authority, within the specified time, said task is deemed to be cleared, in accordance to the proposal submitted by the proponent. In case of Expansion or Modernization of the developmental Activity: Any developmental activity, which has an EIA clearance (existing project), when undergoes expansion or modernization (change in process or technology) with increase in production capacity or any change in product mix beyond the list of products cleared in the issued clearance is required to submit new application for EIA clearance. Any developmental activity, which is listed in Schedule of the EIA Notification and due to expansion of its total capacity, if falls under the purview of either Category B or Category A, then such developmental activity requires clearance from respective authorities.” 46. The bare reading of the above shows that establishment, expansion and even modernisation of CETPs require EC, being a Category B project. Any treatment plant that deals with such effluents having more than 10% of industrial contributions by volume has to be treated as a combined treatment plant. On the strength of this guide, it becomes clear that the material consideration for determining the nature of the project or activity is the kind of effluent that it receives for the purpose of treatment. There is nothing on record before us to show that the STP in question is so established as to treat exclusively sewage and nothing else. On the contrary, the sketch filed by the respondent (Annexure R 3) shows that the sewage is carried by an open drain and would be so carried to the site of STP (for treatment). It is just by the side of a metal road and travels through the abadi and the sludge is carried through an open drain from the entire city. This is demonstrable of the fact that it is not sewage per se that is taken by the open drain to the site but is a mixture of various distinct effluents. It is just by the side of a metal road and travels through the abadi and the sludge is carried through an open drain from the entire city. This is demonstrable of the fact that it is not sewage per se that is taken by the open drain to the site but is a mixture of various distinct effluents. Thus, such an STP would even fall under the entry 7(h) because this plant would be treating the effluents in the semi-solid form and even sludge and would contain more than 10% of industrial or other contaminated chemical effluents. Such a plant is not only treating the effluents/sewage but also has to ensure that the ultimate discharge from such plant is strictly within the parameters prescribed so that the waste water is capable of being used for irrigation or recycled for other purposes while the other waste/sludge is to be properly disposed of. This is where the respondent has failed to place scientific data on record to show that it is exclusively the sewage which is capable of being treated to bring the ultimate discharge within the prescribed parameters of Bio-chemical Oxygen Demand (BOD) and others and also to ensure its proper re-use or recycling. We can reasonably conclude that the open nallah does not carry only the sewage waste but other effluents as well which are required to be treated by a CETP and the capability of the STP requires scientific and appropriate scrutiny from an expert body before it can be permitted to become operational and it is a fit case where it would cover combined waste water treatment plant i.e. CETP excepting sewage along with industrial effluents.” 12. In the above National Green Tribunal judgment, a clear distinction has been made as to what would come under the definition of CETP. In paragraph 46 it is stated that any treatment plant that deals with effluents having more than 10% of industrial contributions has to be treated as a combined treatment plant. It is further clarified that if there is no industrial contribution of any kind, it would not fall within the definition of CETP. The activity is only STP and not CETP. Hence the respondents' plea is justified. 13. It is further clarified that if there is no industrial contribution of any kind, it would not fall within the definition of CETP. The activity is only STP and not CETP. Hence the respondents' plea is justified. 13. In the present case, the respondents have clearly stated in the affidavit and also supported by the Union Environment Ministry, that the STP in question would not fall in Category B and the requirement of Environmental Clearance does not arise. Therefore, we find no error in the order of the learned Single Judge. 14. Accordingly, the appeals are dismissed.