BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI. APPLICATION No. 92 of 2013 (SZ) (THC)

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1 BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI APPLICATION No. 92 of 2013 (SZ) (THC) (W.P.No of 2009 of the High court of Andhra Pradesh at Hyderabad) In the matter of: M/s. Pattancheru Environ-Tech Ltd., Through its whole time Director B.V. Ramana Murthy, S/o Late B. Uma Maheswara Rao Plot. No , I.D.A., Phase-IV Pattancheru, Andhra Pradesh.. Applicant/Petitioner in the writ petition AND 1. Andhra Pradesh Pollution Control Board Through its Member Secretary Paryavaran Bhawan, 1

2 A-3, Industrial Estate, Sanath Nagar Hyderbad, Andhra Pradesh 2. Joint Chief Environmental Engineer FAC, A P Pollution Control Board Zonal Office 25-31/11, Tulasi Reddy Complex 2 nd Floor R.C. Puram, Medak District 3. The Branch Manager ING Vysa Bank, Pattancheru Medak District 4. The Branch Manager HDFC Bank, Chandanagar RR District 5. The Branch Manager State Bank of India Pattanchery Mandal Medak District 6. The Branch Manager Oriental Bank of Commerce 2

3 Ameerpet, Hyderabad.. Respondents/respondents in the writ petition (Respondent Nos. 3 to 6 were ordered to be not necessary parties to the writ petitions by the Hon ble High Court of Andhra Pradesh at Hyderabad) Counsel appearing: Applicant.. M/s. Lakshmi Kumaran and Sridharan, Advocates Respondents.. Shri T. Sai Krishnan, Advocate for respondent Nos. 1 and 2 Present: ORDER 1. Hon ble Shri Justice M. Chockalingam Judicial Member 2. Hon ble Prof. Dr. R. Nagendran Expert Member 3

4 Dated, 17 th, December, 2014 (Hon ble Shri Justice M. Chockalingam) This application has been taken on the file of the Tribunal consequent to and order of transfer of the Writ Petition filed by the applicant herein before the Hon ble High Court of Andhra Pradesh, Hyderabad in W.P.No of The brief facts of the case as could be made out from the averments in the writ petition are: 2. The applicant company was promoted jointly by the A.P. Patancheru Industrial Belt in the year The applicant s company was incorporated for establishing and running a Common Effluent Treatment Plant (CETP) for treating the industrial effluents generated from industries in the area. The establishment of chemical, pharmaceutical and bulk-drug industries in the Patancheru Industrial Belt has reckoned the area on the industrial map in the years The entire area has seen remarkable economic growth and generated employment to 2 lakh persons. The bulk-drug industries in the area produce about 40% of the total production in the country and 4

5 earn substantial foreign exchange for the country apart from paying about Rs.1000 crores to Government by way of taxes. The CETP emerged as a necessity consequent to the industrial development in the Patancheru area to overcome pollution problem and maintain the ecological balance. With the industrial development in the area, environmental pollution became an issue and a writ petition in W.P (C) No. 1056/1990 was filed in the Hon ble Supreme Court seeking compensation and directions relating to environmental pollution control. The applicant s company was also impleaded as a party respondent in the said writ petition. The applicant company started CETP operations in year The said CETP was established with a capacity of 7500 m 3 per day and the total project cost was Rs crores. In 1996, the management of the plant was taken over by the directors representing the industries and about Rs crores were spent for upgrading the treatment facilities in the plant. Liquid Oxygen Injection Technology was adopted for the first time in the country for biological treatment in the CETP. On , the Hon ble Supreme Court considered the Joint Action Plan (JAP) submitted by the Central Pollution Control Board (CPCB) and directed that the immediate measures as proposed in the said plan was to come into 5

6 force on subject to further order of the court. With respect to medium term measures and long term measures proposed in the said JAP, the Hon ble Supreme Court directed that the State Government as well as the industries would take adequate measures to ensure that those are initiated. In course of proceedings of W.P (C) No. 1056/1990 different options were discussed and vide order dated , the Hon ble Supreme Court directed the parties to finalize one option pursuant to which the pipe-line option was recommended. In November 2000, a revised JAP was submitted before the Hon ble Supreme Court outlining time frame for the pipe line project which was finally approved for implementing the abovementioned option. The revised JAP proposed Environment Impact Assessment (EIA) study, preparation of Environment Management Plan (EMP) for the pipe line project and Environmental Clearance from Andhra Pradesh Pollution Control Board (APPCB) etc., and only thereafter any further activities such as financial agreements, tender, award of work etc., were to be taken up. On , the Hon ble Supreme Court approved the pipe line project and the time frame proposed in the revised JAP was submitted before the court. As per the Hon ble Supreme Court order dated it is clear that the 6

7 parameters for outlet i.e., before the discharge, which was to be conforming to the sewage standard parameters by the CETP as laid down in the JAP. The status report indicating the measures taken by APPCB in W.P. No of 2002 WP (C) No. 1056/1990 was also filed by the APPCB before Hon ble Supreme Court of India. 3. Pursuant to the revised JAP, the applicant company was asked to get an EIA report prepared and the applicant company entrusted the same to Centre for Environment, Jawaharlal Nehru Technological University, Hyderabad to prepare an EIA Report on two aspects namely, (i) Laying pipe line from Patancheru Effluent Treatment Ltd., (PETL) to K and S Main Balanagar, and (ii) Effect of mixing of PETL (P) and PETL(B) effluent with sewage at Sewage Treatment Plan (STP), Amberpet and release its outlet into Musi river and downstream. The rapid EIA on commissioning of 18 km long pipe line and discharge of the treated effluent from M/s PETL to STP at Amberpet was submitted by Centre for Environment, Jawaharlal Nehru Technological University, Hyderabad. The conclusion of the EIA recorded is as under : By providing primary and secondary treatment of combined (Sewage plus industrial wastes) wastes, there maybe a 7

8 reduction of more than 90% in BOD, up to 70% in COD. The metallic ions also get reduced as fraction of these ions are utilized as micro nutrients in the biological growth and wasted as excess sludge. There may be an improvement in the outlet water quality from present level after the provision of treatment at Amberpet. Further, by this treatment facility, the complex nature of the ions (BOD, COD, TDS and SS) will reduce and with the quality of treated water at the outlet can be utilized for irrigation/plan(t) growth/agriculture. The report also contains information on evaluation of environmental impacts and environmental management plans. 4. The work of construction of pipe line commenced on was completed in two years. The finance for the said project came from Andhra Pradesh Government and the Member- Industries. The Writ Petition (C) No. 1056/1990 was transferred by to A.P. High Court and a Fact Finding Committee was constituted by the Order of the Hon ble High Court. A report was submitted to the Hon ble High Court by the Fact Finding Committee wherein the Committee also recommended for expediting the pipe line project. A status report was filed by APPCB before the Hon ble High Court which clearly approved the measures taken. With regard to the 8

9 parameters fixed for pre-treated effluent from the member industries, the Hon ble Supreme Court vide order dated fixed only 4 parameters with respect to pre-treated effluent (inlet). However, vide order dated , the 1 st respondent fixed 20 parameters in relation to effluent (inlet and outlet). The said order was challenged in W.P. (C).No. 441/2005 and batch cases in the Hon ble Supreme Court and the Hon ble Supreme Court disposed of the said writ petition on with the following observation: It is not in dispute that the petitioner meets the inlet standards prescribed by the action plan. It is made clear, however, that the petitioner shall also comply with the outlet standards prescribed and mentioned in the action Plan. However, fulfilment of outlet standards can happen only after the connectivity is established with S.T.P. The connectivity may be given as per the Action Plan. Accordingly the writ petition stands disposed of. 5. The respondents have not undertaken the connectivity of the pipeline with STP at Amberpet. The bulk drug manufacturers association made a representation to the Government to comply with the directions of Hon ble Supreme Court and to permit CETP, Patancheru to discharge the effluent through a 18 km long 9

10 pipeline connected to STP, Amberpet. The Commissioner of Industries, Government of Andhra Pradesh communicated in letter No , dated a copy of the minutes of the meeting held on in the chambers of the Chief Secretary to the Government on the issues raised by the Bulk Drug Manufacturers Association. In the said minutes of the meeting on the subject relating to connectivity of the pipeline it has been observed as under. It was recognized that one of the important elements of the JAP of the APPCB and CPCB is that the standards of the effluents being delivered at the inlet of the 18 km pipeline connected to the STP, Amberpet need to be set having regard to the ultimate discharge from Amberpet. This is because the pipeline will be ultimately discharging the effluents together with sewage effluent 18 km downstream, and hence it would be more appropriate to ensure that the standards at the discharge point of the STP, Amberpet conform to the prescribed specifications. It was agreed that the APPCB, with due information to the CPCB, will in consultation with Municipal Corporation, Metropolitan Water Works etc., let in effluents of different standards as received from the CETP and thereafter measure the technical parameters of the effluents being discharged at STP, Amberpet to 10

11 establish if they meet the prescribed standards. The reports of the competent scientific and technical tests should then be placed before the APPCB who will examine whether the JAP should be revised and if so, in what manner and submit the same to the CPCB/Supreme Court for consideration. 6. The 2 nd respondent, contrary to the order of the Hon ble Supreme Court and the observations of the Chief Secretary without issuing any notice to the petitioner, the applicant herein, passed orders on different dates imposing a penalty of Rs. 2,32,62,000/- from November 2007 to October 2008 further stating that if the penalty amount is not paid action will be initiated for the non-compliance of the order of the Hon ble Supreme Court dated In no part of the order dated the Hon ble Supreme Court empowered the 2 nd respondent to levy and collect penalty from the applicant. The impugned action of the 2 nd respondent is highly discriminatory, unjust, improper and illegal. The 2 nd respondent by letter No. PTN- 25/PCB/ZO/RCP/2005, dated addressed to the applicant s bankers ING Vysya Bank, Patancheru and HDFC 11

12 Bank, Chandanagar Branch, invoked the bank guarantee and encashed the bank guarantee amount of Rs. 50, 00, 000/-. The 2 nd respondent addressed a letter dated to applicant s bankers ING Vysya Bank, Patancheru, HDFC Bank, Chandanagar Branch, State Bank of India, Muthangi Branch and Oriental Bank of Commerce, Ameerpet Branch to freeze the bank accounts of the applicant and requested them to remit the funds available in the applicant s account to the 1 st respondent to implement the orders of the Hon ble Supreme Court. The action of the 2 nd respondent is totally in violation of the orders of Hon ble Supreme Court in W.P. No.441 of 2005, dated and the provision of Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (Water Act, 1974) read with Rule 34 of Water (Prevention and Control of Pollution) Rules, 1975 (Water (P&CP) Rules, As per Rule 34 of the Water (P&CP) Rules. 1975, the 1 st respondent is liable to issue a notice before passing any direction under section 33A of the Water Act, The 2 nd respondent did not issue any notice either to the applicant or to the respondents 3 to 6 before passing the directions to freeze bank accounts of the Applicant which is arbitrary, discriminatory 12

13 and contrary to the principle of natural justice. The action of the 1 st and 2 nd respondents is also in violation of Articles 14 and 19 of Constitution of India. In view of freezing of the bank accounts of the applicant, the working of the CETP came to a standstill. It would adversely affect the functioning of over 100 units where over two lakhs of employees are depending on it for their livelihood. 7. The 1 st and 2 nd respondent, namely, the APPCB, per contra, filed the reply stating that the application is not at all maintainable and deserves to be dismissed in limini. The appeal remedy has not been exhausted and the application has been filed directly. The penalty has been imposed on the applicant after giving due notice and opportunity for violation of the standards as laid down by the JAP which was approved by the Hon ble Supreme Court of India. The applicant who has neither denied nor disputed the violations cannot maintain the challenge to the same by way of this application. The applicant wants to take undue advantage of one particular sentence contained in the order of the Hon ble Supreme Court dated 17/07/2007 in W.P. (C) No: 441 of 2005 by reading it out of context. The very same order clearly mandates that the applicant shall comply with the outlet standards 13

14 prescribed in the JAP. It directs that even after the connectivity is established with the STP, the applicant shall continue to comply with the outlet standards. The same cannot be taken advantage by the applicant to say as though till such time the connectivity is given with the STP, they need not comply with the outlet standards and that penalty cannot be levied for such repeated violation in spite of issuing notice and warnings. 8. During 1984, highly polluting industries like bulk drug and other water polluting industries were established in Patancheru- Bollaram area using grant of subsidies and due to proximity to Hyderabad. The small scale industries could not set up full fledged ETP and they discharged the partially treated effluents resulting in the pollution of Patancheru area during During 1990, the Indian Council for Enviro Legal Action filed a Public Interest Litigation in W.P. (C).No of 1990 before the Hon ble Supreme Court of India regarding pollution problems in the area. From the year 1991 onward the Hon ble Supreme Court has issued various directions for supply of drinking water to the villages affected by pollution, payment of compensation for crop damage and other remedial measures. The applicant company promoted by a group of industries at the Industrial 14

15 Development Area (IDA), Patancheru with the active support of the Andhra Pradesh Industrial Infrastructure Corporation Ltd. (APIIC).came to be incorporated in the year The main objective of the applicant company is to collect, treat and dispose of industrial effluent. The applicant constructed the CETP at Patancheru which was commissioned in September, 1994 with a design flow rate of 7500 m 3 /d. The management of the applicant company was taken from APIIC Ltd. during September, The CETP is having the following units: Terminal pumping station with a capacity of 360 m 3, 4 Equalization tanks with a capacity of 1400 m 3 each with diffused air grid, Primary Clariflocculator with a capacity of 100 m 3 /h, Dissolved air flotation unit with a capacity of 120 m 3 /h, Decanter I & II with a capacity of 20 m 3 /h, 2 Buffer tanks (One is in use) with a capacity of 1575 m 3, 13 Sludge drying beds each measuring 8m x 2m, Aeration tank I with a capacity of 4300 m 3, Aeration tank II with a capacity of 4300 m 3 with 4 x 50 HP fixed aerators and 13 x 30 HP floating aerators, Two Secondary settling tanks having 150 m 3 /h capacity, Oxygen mix flow system with a capacity of 60 HP. One of the Digesters (which was earlier used) was converted for storage of treated effluent. With 5 x 30 HP mortars the treated effluent is 15

16 pumped into 18 km pipeline which joins K & S main for further treatment along with domestic effluents in Amberpet Sewage Treatment Plant. 9. The Hon ble Supreme Court of India in the said writ petition W.P.(C) No of 1990 directed the CPCB and the respondent to jointly submit an action plan for containing industrial pollution in Patancheru area. Accordingly, the CPCB and the respondent submitted an Action Plan, including laying of a pipeline to carry the treated industrial effluent of the applicant s CETP. The JAP, 1998 was approved and endorsed by the Hon ble Supreme Court of India in its order on The CPCB submitted a comprehensive report on effluents management in Nakkavagu basin during March, 1998 to the Hon ble Supreme Court. The report indicated four options. Option 1 contemplated that the industries will treat their effluents to certain specified norms before discharging into the CETP. The CETP must thereafter treat the effluents to sewer standards and discharge the treated effluents to main sewer which leads to the STP. Option 2 contemplated the same treatment as per Option 1, and discharge the treated effluent on land for afforestation. Option-3 contemplated the same treatment as Option 1, and dispose the 16

17 treated effluent into Isakavaagu/Nakkavagu with connecting system as suggested. Option 4 contemplated the discharge of the treated effluent of large industries into Isakaavagu/Nakkavagu with a stringent limit of 30 mg/l of BOD, 250 mg/l of COD and 2100 mg/l of TDS and provide connectivity to the drain. In case of small scale industries (SSI), the effluent was to be treated at CETP and discharged into Isakkavagu/Nakkavagu drain. 10. The CPCB further stated that the Option 1 provides maximum certainty as compared to the other options. On , the Hon ble Supreme Court accepted the revised JAP of the project of providing 18 Km pipeline submitted in November, 2000 in the context of further treatment and dilution at Amberpet STP which should be expanded and upgraded with secondary and tertiary treatment facilities to treat and dispose mainly organic and nutrient rich sewage into Musi river. 11. The Jawaharlal Nehru Technological University (JNTU), Hyderabad, conducted the EIA studies for the 18 km long pipeline project during March, 2001 and supplementary technical studies during December, 2008 and concluded that there will not be any negative impact on the environment due to discharge of treated 17

18 industrial effluents into river Musi river. The Hyderabad Metropolitan Water Supply & Sewerage Board (HMWSSB) took up the work of executing the 18 km long pipeline in the year 2001, the cost being shared by the Government and the applicant. The work of laying the pipelines was completed in the year The Hon ble High Court of Andhra Pradesh constituted a Five Member Fact Finding Committee with former Justice A.Gopal Rao as the Chairman by its order dated The Fact Finding Committee was to submit a status report on the Terms of Reference (TOR) based on which appropriate orders could be passed by the Court. The Committee visited the pollution affected villages and industries in Medak District during December, 2003 and January, The Committee heard the pollution problems from the villagers, visited the agricultural fields, vagus, tanks and collected soil samples, surface water and ground water samples. The Committee submitted its report to Hon ble High Court in March, The Committee observed that the four parameters fixed by the Hon ble Supreme Court will give broad picture on the efficiency of a treatment plant. However, they are not sufficient to evaluate the treatment efficiency in clear terms. In furtherance of the orders of the 18

19 Hon ble Supreme Court, in a matter that originated under the Hazardous Waste Management, a Supreme Court Monitoring Committee was constituted which made inspections all over the country. In the month of October, 2004, the said Monitoring Committee inspected the applicant s CETP and other areas of Hyderabad and came up with a finding that all the measures of the CETPs are not environment friendly. Thereafter, the respondent imposed stringent standards on industries and CETPs. The respondent/appcb issued certain directions vide order dated to the applicant based on the directions issued by the Monitoring Committee, prescribing inlet standards [except dissolved solids (inorganic)] and outlet standards to the applicant. Subsequently, vide order dated the respondent/appcb issued further directions to the applicant prescribing TDS (inorganic) standards at the inlet, in continuation of earlier directions issued by order dated In the order dated passed in W.P.(C). No. 476 of 2005 and 441 of 2005 and batch cases, the Hon ble Supreme Court suggested that the CPCB and the State Pollution Control Board (SPCB) shall meet to sort out the problem, and submit an action plan. Accordingly, the CPCB and the 19

20 respondent/appcb convened a meeting on with CETPs including the applicant herein. With due consideration to the consultation had with the CETPs and the applicant, the CPCB and the respondent/appcb submitted a JAP to the Hon ble Supreme Court. The Hon ble Supreme Court endorsed the action plan and issued an order on The Hon ble Supreme Court directed the APPCB to implement the action plan at the earliest possible time as per the schedule given in the action plan. The impugned orders in the present application are orders issued by the APPCB in due compliance of the orders issued by the Hon ble Supreme Court. As stated earlier, the actual context in which the Hon ble Supreme Court made the observations in respect of the applicant are to the effect that even after connectivity is given to the STP the applicant should continue to maintain the standards. The contention of the applicant regarding the said order is not correct and the applicant cannot be permitted to take advantage of the same when it is totally undisputed that they had exceeded the standards as stated in the impugned orders issued by the respondent/appcb. 13. All possible steps were being continuously taken to lay and connect the 18 km long pipeline with the STP at Amberpet. The 20

21 respondent/appcb had suggested various measures to be implemented by the applicant, as a consequence of which, there was significant improvement in the outlet standards to the level of those prescribed in the JAP, 2007 and there was consistency in the outlet standards only during May, It was only thereafter that the connectivity could be given to the STP, as otherwise it would have led to serious consequences due to discharge of effluent still containing high level of pollution potential factors into the STP. Accordingly, the respondent/appcb sent a communication on addressed to the Managing Director, HMWSSB to give connectivity to the 18 km pipeline to the outlet of the applicant s effluent, through K & S main sewer to the STP at Amberpet. Thereafter, the connectivity was given on in a phased manner and at present all the treated effluent of the applicant is connected to the STP at Amberpet for further treatment and also the applicant and the STP at Amberpet are meeting the prescribed discharge standards. 14. The respondent/appcb vehemently denies that the impugned orders were issued without any notice and in violation of the principles of natural justice. Those averments are totally contrary to the truth and hence not correct. In compliance with the directions of 21

22 the Hon ble Supreme Court contained in the order dated , the respondent/appcb issued directions to the applicant on and to the member industries on for effective implementation of the JAP of CPCB and APPCB. The effective date of implementation of the Joint Action Plan was from and was completed in January, To implement the JAP, the applicant furnished the bank guarantee for Rs. 50 lakhs on At no point of time the applicant objected to the said directions issued on On the other hand, complied with the same by furnishing the bank guarantee as required. The applicant never questioned or challenged the correctness of the directions issued on On having accepted the same at that point of time, the applicant cannot now dispute the same by making lame excuses after violations were noticed and penalties imposed. Though the applicant addressed a communication dated , it only contained a request for apportionment of the penalty amount amongst the various parameters and to levy penalty for violation of each of the parameters and it never objected to the levy of penalty. It would be significant to note that in that letter the applicant had not taken the stand that they are liable to meet the 22

23 outlet standards only after connectivity to the STP as falsely projected now in this application. The respondent/appcb has strictly implemented the JAP and the defaulters were penalized as per the said JAP. As the applicant was not complying with the standards stipulated in the JAP, penalty was imposed for the period November, 2007 to January, The penalty imposed is as approved by the Hon ble Supreme Court of India at the rate of Rs. 300 KLD for violating any parameter. The violations are neither denied nor disputed and in such circumstances, the allegations of violation of principle of natural justice are devoid of any merit. All through, the applicant was part of the process of laying of the standards and the formulation of the JAP, he is not a stranger to make such complaints. The applicant who has the responsibility to check and control the level of pollution, failed in doing the same during the relevant period leading to the imposition of penalty as approved by the Hon ble Supreme Court of India. 15. The impugned orders came to be passed after collection of samples of the effluent from the applicant s CETP over a sufficiently continuous period and each order specifies the values that have exceeded the prescribed standards. No representation dated 23

24 was received by the respondent/appcb. The conduct of the applicant shows that inspite of the orders passed by the respondent/appcb from March, 2008 onward in respect of the exceeding the prescribed level of standards, the applicant paid no regard to the same and on the other hand flagrantly continued the violations resulting in the passing of the various orders. The applicant was well aware of the standards to be adhered to and accepted the same and had only requested for apportionment of penalty on the basis of the number of parameters and did not question or challenge the directions as contained in the order dated The samples were collected in the presence of the officials of the applicant over a sufficiently enough period of time and there is no dispute regarding the analysis reports and the quantities arrived were as per the records maintained by the applicant. The applicant who is bound to maintain the standards and who had admittedly exceeded the standards cannot raise frivolous contentions belatedly for the purpose of avoiding and evading the payment of the penalty. 16. The impugned letter dated is only a reminder and cannot be construed as the order by which the penalty was imposed. If the applicant was actually aggrieved by the respective 24

25 orders imposing penalty, the applicant would have taken appropriate recourse and the very fact that they did not question or challenge the respective orders at the relevant points of time would only show that they have accepted the orders. In such circumstances, the instant application is also liable to be dismissed on the grounds of delay and laches as there has been enormous and unexplained delay in approaching the Court as the first order imposing penalty came to be passed on , whereas the writ petition was filed almost after a year. The applicant cannot take advantage of the reminder and challenge the same. This is clearly an afterthought to evade their liability and responsibility somehow or the other. No representations were submitted in respect of the orders levying penalty. Since the applicant did not pay the penalty imposed and also not complied with the standards, the respondent/appcb vide letter dated invoked the Bank Guarantee for Rs.50 lakhs furnished by the applicant. The respondent/appcb requested the bank authorities to freeze the bank accounts of the applicant and also requested the bank to remit the funds available in its accounts to the respondent/appcb towards the realization of the total penalty amount of Rs.2,32,62,000/-, for the period from November, 2007 to 25

26 October, 2008 vide order dated Pursuant to the interim orders passed by the Hon ble High Court of Andhra Pradesh, the applicant deposited a sum of Rs. 50 lakhs on The CPCB vide order dated directed the respondent/appcb to obtain Bank Guarantee from the applicant for Rs.50 lakhs towards compliance of the directions issued therein. Accordingly the respondent/appcb issued orders dated to the applicant and pursuant thereto the applicant submitted a Bank Guarantee for Rs. 50 lakhs vide letter dated The same is not related to the above application. 18. The impugned orders are passed in accordance with the JAP as approved and directed to be implemented by the Hon ble Supreme Court of India and which had been accepted by the applicant and by following due and proper procedure. In these circumstances, the present application is devoid of any merits or substance and deserves to be dismissed. On the above grounds, the respondent/appcb seeks to dismiss the application. 19. In pursuance of an order of transfer made by the Hon ble High Court of Andhra Pradesh in Writ Petition No of 2009, this 26

27 application was taken on file. The following questions were formulated for decision. (i) Whether the applicant is entitled for a declaration that the action of the second respondent in Proceedings No. PTN- 25/PCB/ZO/RCP/2005 dated as arbitrary, illegal and without jurisdiction and declare that the second respondent has no authority to levy penalty against the applicant. (ii) Whether a direction has to be issued to the respondent/board to refund the amount collected against the bank guarantee and release the bank accounts freezed. (iii) To what reliefs the applicant is entitled to? Points 1 to 3: 20. The Tribunal heard the arguments advanced on either side and looked into all the materials made available and paid its consideration on the same. 21. Admittedly, the applicant is a CETP incorporated in the year 1989 by a group of industries who were operating in the said areas referred to in the application and commenced the operations in the 27

28 year The applicant receives partially treated waste/effluent (inlet) from a number of industries which are operating in the area, treat the effluent to meet the permitted standards and discharges the treated effluent (outlet) to a STP at Amberpet for further treatment. From the STP, the treated water is being discharged into the Musi River since Amberpet is far away from the location of the applicant s CETP through an 18 km long pipeline. The work was taken up by the Hyderabad Metropolitan Water Supply and Sewerage Board (HMWSSB) in the year 2001 and completed in the year In October 2004, a Monitoring Committee appointed by the Hon ble Apex Court of India inspected the applicant s CETP and other areas and reported that all the measures taken up by the CETP were not upto the standards and issued certain directions. The said Committee convened a meeting in which the officials and the applicant/cetp participated for the purpose of discussing the measures as a result of which directions were issued. Following the same, the respondent/board issued directions to all concerned including the applicant/cetp under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 as could be seen from the Annexure-R1 dated As a result of a review meeting 28

29 held in respect of status of compliance of the directions dated stated supra, fresh directions were issued to the applicant as found in Annexure-R2. After making an inspection and having a meeting with the applicant, a Joint Action Plan (JAP) was submitted by the CPCB and APPCB before the Hon ble Apex Court of India in W.P.(C).Nos. 441 and 476 of The said JAP was approved by the Hon ble Apex Court of India and in so far as the applicant/cetp is concerned orders were passed in W.P.(C). No. 441 of While the matter stood so, a direction was issued to the applicant directing the applicant to meet the standards prescribed by the JAP, 2007 as approved by the Hon ble Apex Court on Apart from putting the applicant on notice that the effective date of approved plan is from , a penalty of Rs. 300/- per KLD was imposed for violation as indicated in Annexure-R4. By the impugned proceedings, the APPCB imposed a penalty of Rs. 2,32,62,000/- at Rs. 300/- per KLD for non compliance of the standards both outlet and inlet from November, 2007 to October,2008.which is sought to be quashed in this application. 23. Advancing the arguments on behalf of the applicant, the learned counsel would submit that the applicant should comply with 29

30 the standards strictly once the connectivity with STP is given. It is not in dispute that there was no connectivity during the relevant period. Hence, penalty was not imposable on the applicant for nonconforming to the outlet standards. The Hon ble Apex Court clearly observed that the standards for outlet could happen only after connectivity with the STP was established. Therefore, the outlet norms must be complied with only after the connectivity with the STP was given. Thus, the imposition of penalty for non-compliance of the outlet standards when there was no connectivity with the STP was contrary to the express direction of the Hon ble Apex Court and thus it is not sustainable. It is also submitted by the counsel that the applicant cannot be made responsible for any alleged breach of the inlet standards. In so far as the inlet standards are concerned, the applicant absolutely has no control over the same. The inlet of the applicant is partly treated wastewater/effluent received from the member- industries. If such effluent does not confine to inlet norms, it would mean that the respective industries have not treated the wastewater/effluent properly for which the applicant/cetp could not be held responsible. The responsibility of the applicant is only to ensure compliance of CETP with outlet norms irrespective of the 30

31 quality of effluent received for treatment. The respondent authorities are responsible to monitor the quality of inlet which was provided by the member-industries. The said responsibility cannot be shifted to the applicant/cetp. Thus, the imposition of penalty by the respondents on the applicant was only on account of the failure of the respondents to perform their functions effectively. For imposing penalty, the 1 st respondent relied on the JAP and stated that the JAP provided for imposing the penalty for violation of the standards also. The relevant part of the JAP imposing penalty must be interpreted in such a way as to give a logical meaning. Imposition of penalty on the applicant for non-compliance of the standards of inlet is thoroughly illogical as the applicant/cetp has no control over the quality of the inlet. It is pertinent to note that the monitoring of the compliance of inlet norms is the duty and responsibility of the regulatory authorities, namely, the respondents. Therefore, imposition of the penalty on the applicant for non-compliance of inlet standards is not only arbitrary but illegal. If there were any violation of the norms, the same has to be attributed only to the industries who supplied effluent to the applicant/cetp. The objective of the entire project is to ensure that the effluent ultimately discharged into the river must comply with the 31

32 standards to reduce pollution. The applicant should not be punished for the lapse on the part of the industries. If the interpretation of the respondents for imposing the penalty on the applicant is to be accepted, it would lead to a situation where even when the outlet norms are satisfied, the applicant can still be punished with penalty for the fault of the industries not conforming to the inlet standards. Such an interpretation should not be accepted since it is contrary to the objective of the project. Penalty for violation of the inlet standards is applicable to member-industries and penalty for not conforming to the outlet standards alone is imposable on the applicant. Having imposed the penalty on the industries rightly, any imposition of penalty on the applicant would amount to double jeopardy. Apart from all the above, the quantum of penalty of Rs. 2,32,62,000/- on the applicant is harsh. While the penalty of Rs. 30/- per KLD was imposed on the industry for non-compliance, a penalty of Rs. 300/- per KLD was imposed on the applicant for the same incident of noncompliance which would be contrary to the principles of justice and hence the proceedings have got to be quashed and the amount already collected against the bank guarantee has to be refunded with direction to release the bank accounts freezed. 32

33 24. Countering the above contentions, the learned counsel for the respondents taking the Tribunal to different documents relied on by the APPCB would submit that the imposition of penalty as found in the order was perfectly correct and valid and the application was without any substance whatsoever. 25. As seen above, the respondent/appcb has imposed a penalty of Rs. 2,32,62,000/- at Rs. 300/- per KLD on the applicant/cetp for non-compliance of the standards both outlet and inlet during the period from April, 2008 to October, Aggrieved by the same, the applicant has brought forth this application. 26. At the outset, it would be more apt and appropriate to reproduce the relevant part of the order of the Hon ble Apex Court in W.P. (C ).No. 441 of 2005 dated : It is not in dispute that the petitioner meets the inlet Standards prescribed by the Action. It is made clear, however, that the petitioner shall also comply with the outlet standards prescribed and mentioned in the Action Plan. However, fulfillment of outlet standards can happen only after the connectivity is established with STP. The requisite amount 33

34 has also been deposited by the petitioner. It is made clear that the outlet standards will have to be complied with by the petitioner after the connectivity is given with the STP. The connectivity may be given as per the Action Plan. 27. A reading of the above said order would make it abundantly clear that the outlet standards were to be complied with by the applicant after providing connectivity with the STP which is a part of the Action Plan. The applicant who received partially treated wastewater/effluent (inlet) from the industries after treating the same has to discharge the treated wastewater/effluent (outlet) to the STP at Amberpet for further treatment, which in turn should discharge the same to Musi river. Since Amberpet is far away from the location of the applicant s CETP, a project of laying pipeline for a distance of 18 km was undertaken by the HWSSB in the year 2001 and the same was completed in the year Thus, it is quite clear that during the relevant period, i.e. 11/2007 to 10/2008 there was no connectivity. Thus, imposition of penalty for non-compliance of the outlet standards during the period, in the absence of any connectivity with STP will be contrary to the order of the Hon ble Apex Court. Hence, 34

35 the claim by the APPCB in that regard is liable to be set aside. 28. In so far as the imposing of penalty, the same is assailed by the applicant on the ground that the applicant/cetp has no control over the inlet, that it is the duty of the individual memberindustry to conform to the inlet standards and is the responsibility of the regulatory authority, namely, the APPCB to monitor the standards of inlet which is provided by the individual industries. If there is any violation of the inlet standards, it is attributable only to the individual industry and not to the applicant/cetp and thus the imposition of penalty is illegal. 29. After careful consideration of the available materials, rules thereon and the order of the Hon ble Apex Court, the Tribunal has to necessarily negative the contentions of the applicant s side for the following reasons: 30. A Monitoring Committee appointed by the Hon ble Apex Court of India placed a JAP pursuant to which the proposal for laying a pipeline to carry the treated industrial effluent of the Applicant s CETP and then on to STP was undertaken. In the year 2004, the said Monitoring Committee appointed by the Hon ble Apex Court 35

36 inspected the applicant s CETP along with others when it was noticed that they were not meeting the standards. Following a meeting of the members of the Committee with the officials and the applicant to discuss the measures for directions to the respondent/appcb as found in Annexure- R, the APPCB issued directions to the applicant under Section 33-A of the Water Act, 1974 which reads as follows: 10. The Board after careful consideration of the information `available on record and in exercise of the powers conferred under Section 33-A of the Water(Prevention and Control of Pollution) Amendment Act, 1988 and its amendments thereof, hereby directs the CETP to comply the following directions: 1. The CETP shall not discharge the treated effluent into the proposed 18 km pipeline. 2. The CETP shall accept pretreated effluent from the member industries with the following inlet standards for further treatment and disposal: Inlet standards of CETP Sl.No. Parameter Concentration in mg/l (except ph, temperature 36

37 & radioactive materials) 1 ph Temperature 45 degree C 3 Dissolved Solids (inorganic) Will be prescribed shortly 4 Oil and Grease 20 5 Phenoic Compounds as (C 6 H 6 OH) Ammonical Nitrogen (as N) 50 7 Cynide (as CN) Chromium Hexavalent as (Cr 6) Chromium ( total ) as (Cr) Copper (as Cu) Lead (as Pb) Nickel (as Nl) Zinc (as Zn) Arsenic (as As) Mercury (as Hg) Cadmium (as Cd) Selenium (as Se) Fluoride (as F) 15 37

38 19 Boron (as B) Radioactive Materials: (a)alpha emitters, Hc/ml (b)beta emitters, Hc/ml It was made clear that if the CETP fails to comply with the above prescribed standards within the stipulated period of 30 days, legal action would be initiated under Section 33-A of the Water (Prevention and Prevention of Pollution) Amendment Act, 1988 for closure of the facility in the interest of public health and environment. In order to ascertain the above compliance, a review meeting was convened on and further directions were issued on as found in Annexure-R2. Paragraph 5 of the said communication addressed to the applicant reads as follows: 5. In view of the above, the following directions are issued to CETP under Section 33 (A) of Water (Prevention and Control of Pollution) Amendment Act, 1988 in continuation of directions issued to your CETP vide reference 1 st cited in respect of inlet standards of CETP. 38

39 M/s. PETL, Patancheru, in no case, shall accept effluents for treatment from their member units having TDS more than the standard mentioned above in para 4(l) stipulated to the discharges from member units. (i.e. pre-treated effluent). 1. M/s. PETL, Patancheru shall accept the quantity of effluents from member units as permitted by the Board. 2. The other discharge standards stipulated in order dated issued to M/s. PETL shall remain same. 32. The Hon ble Apex Court made an order on in the aforesaid writ petitions that both CPCB/SPCB should have a meeting to solve the problem. Accordingly, a meeting was convened on wherein it was decided to carry out inspection of JETL/PETL (applicant herein) and related industries jointly by CPCB/SPCB to come out with specific recommendations. In a meeting convened on the representative of the applicant s CETP also participated and expressed their views. The Action Plan proposed in the Joint Inspection Report was finalized by both the CPCB/APPCB with due consideration with consultations with the applicant. Inter alia, it was decided as follows: 6.2. Inlet standards to the CETP: The standards applicable to CETPs are notified under the E P Act. 39

40 Further, Chemical Oxygen Demand (COD) and Total Dissolved Solids (TDS) (inorganic) limits have been additionally prescribed by APPCB as empowered under Water Act, keeping in view the treatability in the CETP, design features of CETP, final disposal point and local conditions. Para 7. The finalized Action Plan for joint submission by CPCB/APPCB to Hon ble Supreme Court in the light of above discussion is as follows: Sl.No. Description Action Plan Time Schedule and other parameters of compliance 1. Inlet standards for the CETPs (i.e. outlet of member industry/tankers received at CETP) All the parameters as stipulated in Schedule-I (S.No.55) of the Environmental (Protection) Rules, 1986 and its amendments thereto Within 3 months 33. It remains to be stated that the JAP submitted before the 40

41 Hon ble Apex Court in the Writ Petition (C) Nos. 441, 446/2005 etc., was accepted. 34. All the above would clearly indicate that the applicant s CETP was a party to all the above meetings wherein it was decided that the applicant CETP should accept the effluent from the memberindustries (inlet) not below the approved standards which are applicable to CETP as notified in Serial No. 55 of Schedule I of the Environmental (Protection) Rules, Having accepted the same without any murmur and also to comply with the same within a period of 3 months therefrom for meeting the said standards, it would be futile on the part of the applicant to state that in so far as inlet is concerned, neither the applicant CETP has control and it is the responsibility of the individual units and it is the duty of the respondent/appcb to monitor the compliance and the applicant cannot wriggle out by making such an unacceptable defence. In view of the above, the contentions putforth by the counsel for the applicant that imposing of penalty on the applicant/cetp after imposing penalty on the industries would amount to double jeopardy cannot be countenanced. Equally, the contention putforth by the applicant s side that the imposition of penalty at Rs. 300/- per KLD on the applicant is 41

42 not only harsh but also contrary to the principles of justice since the respondent/appcb has imposed penalty only at the rate of Rs. 30/- per KLD for the industries for the non-compliance has to be rejected for the simple reason that this rate was actually fixed by a Committee which filed the JAP and was also approved by the Hon ble Apex Court. It is pertinent to point out that the applicant also participated in the meetings convened and conducted by the Committee which resulted in the JAP placed before the Hon ble Apex Court. Not only being a party to those proceedings, the applicant has not even raised its little finger either during the fixation of rates or when the JAP was placed and accepted by the Hon ble Apex Court. Thus, the Tribunal is unable to see any merit in those contentions. 35. It is an admitted position that the penalty of Rs. 2,32,62,000/- was imposed on the applicant for non-compliance of standards for both outlet as well as inlets during the period November, 2007 to October, As could be seen from the available materials during the said period there was no connectivity with the STP as held supra and therefore the applicant is not liable to pay and the respondent/appcb cannot impose any penalty for the outlet for the said period. In so far as the penalty imposed for inlet for the said 42

43 period, it is valid for the reasons discussed above. 36. Hence, it is declared that the impugned proceedings of the 2 nd respondent dated is set aside only to the extent of the penalty for non-compliance of the standards for outlet during the period from November, 2007 to October, 2008 and thus the applicant is liable to pay the penalty in respect of non-compliance of the standards for inlet during the period November, 2007 to October, 2008 to which extent the proceedings of the 2 nd respondent dated is valid and executable. The 2 nd respondent/appcb is directed to serve a fresh proceedings on the applicant in respect of the penalty for non-compliance for inlet for the period from November, 2007 to October, 2008 within a week herefrom and the applicant shall pay the said calculated amount within a period of 3 months from the date of service of the proceedings. Accordingly, with the above directions the application is disposed of. No cost. (Justice M. Chockalingam) Judicial Member 43

44 (Prof. Dr.R. Nagendran) Expert Member Chennai, Dated, 17 th December,