Petitioners sought writ to restrain respondents from disposing wet ash at acquired land. Court dismissed petition holding no statutory prohibition existed and land was acquired in 1978-1984.
Petition dismissed as it deserves to be; no costs.
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Court No. - 9
Case :- WRIT - C No. - 3363 of 2021
Petitioner :- Ravindra Kumar And 10 Others Respondent :- Union Of India And 6 Others Counsel for Petitioner :- Abhishek Kumar Chaubey Counsel for Respondent :- A.S.G.I.,Abhishek Srivastava,C.S.C.,Hari Nath Tripathi
Hon'ble Sanjay Yadav,J. Hon'ble Jayant Banerji,J.
Sri Abhishek Chaubey, learned counsel appears on behalf of the petitioner.
Sri Shivam Shukla, learned counsel appears on behalf of respondent no.1. Learned Standing Counsel appears on behalf of respondents no.2, 3, 5 and 7. Dr. H.N. Tripathi, learned counsel appears on behalf of respondent no.4. Sri Abhishek Srivastava, learned counsel appears on behalf of respondent no.6.
Petitioners vide this petition under Article 226 of the Constitution seek mandamus to restrain the respondents from disposing the wet ash discharged from Anpara Thermal Power Project over land of Village Dibulganj (Kuldomri) Pargana Singrauli, Tehsil Duddhi, District Sonebhadra which is low lying area. The grievance apparently emanates from the CTE (Consent to Establish) given by the Uttar Pradesh Pollution Control Board on 04.11.2020.
Facts on the record reveals that the petitioners are in occupation of the land in question duly acquired by the State of Uttar Pradesh way back in the year 1984 for construction of Anpara Thermal Power Plant. That by virtue of Notification under Section 4 (1) and 17 (4) of the Land Acquisition Act, 1894 dated 20.07.1978, 21.01.1979, 02.12.1982, 23.06.1982, 18.01.1983, 04.04.1984 about 5276 acres of land was acquired. The compensation therefor was duly granted to the land owners.
The Project was duly commissioned.
Later, claim arose for rehabilitation, which travelled to Supreme Court forming subject matter of petition for Special Leave to Appeal (Civil) No(s). 27062/2009 (Sahyog Society Vs. State of U.P. and Others) which stood disposed of on 02.03.2012 wherein Their Lordships' observed:
“Pursuant to our order dated 17th October, 2011, Mr. Devi Prasad, Under Secretary, Energy Department, Govt. of U.P. has filed affidavit dated 2nd January, 2012.
Paragraphs 3 to 5 of the said affidavit which are material for us reads as follows :
Learned counsel appearing for the petitioner states that in view of the afore-extracted stand taken in the affidavit, this petition is rendered infructuous and may be disposed of accordingly. It is thus ordered.”
In said SLP an application : IA No. 4/2013 was filed which was disposed of on 29.07.2016 whereby Their Lordship's held:
“These proceedings arise out of an Order dated 2nd March, 2012 passed by this Court whereby this Court had after taking note of an affidavit dated 2nd January, 2012 filed by Mr. Devi Prasad, Under Secretary, Energy Department, Government of Uttar Pradesh, disposed of SLP(C) NO.27062 of 2009 as infructuous.
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From a reading of the order passed by this Court it is evident that the special leave petition was disposed of on a statement made on behalf of the respondents that the benefits due in terms of the rehabilitation policy adopted by the State Government shall be extended to the affected families.
Mr. H.N.Nagmohan Das, learned senior counsel appearing for the petitioner-society, submitted that while some of the affected families have been given the benefit of rehabilitation in terms of the policy, prevalent at the relevant point of time, some others remain to be rehabilitated. He submitted that this Court could monitor the rehabilitation process to ensure that the benefits, legitimately due to the affected families, are actually extended to them.
Mr. Pradeep Misra, learned counsel for the respondent-U.P. Rajya Vidyut Utpadan Nigam Ltd., on the other hand, submitted that the Nigam had deposited a sum of Rs.35,58,00,000/- with the State Government for disbursement towards rehabilitation benefits to the affected parties, out of which Rs.31,31,00,000/- has already been disbursed to those entitled to receive the same. It is further submitted that even though the original number of the affected families was 591 the said number has over a period of time swollen to 3,500/- It is submitted that the present proceedings stand concluded by the order of this Court dated 2nd March, 2012 and all that remains to be done is the implementation of the policy which according to the respondents stand implemented but if there be any grievance qua anyone left out, the same could be raised for appropriate redress in appropriate proceedings before the High Court.
We find considerable merit in the submission made on behalf of the Nigam. It is evident from a reading of our order dated 2nd March, 2012 that the special leave petition was disposed of as infructuous in view of the statement made on behalf of the Nigam that the benefits due to the affected families relating to rehabilitation policy formulated by the State Government shall be extended to them, although the said policy had not been adopted by the Nigam. In that view all that remains to be examined is whether the benefits actually stand extended to those entitled to the same. It is not in dispute that a substantial amount had been deposited, as part of the rehabilitation policy, before the State Government, a substantial part of which amount has been disbursed to those entitled to receive the same. What remains to be done in terms of the policy towards rehabilitation can be examined in
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separate proceedings before the High Court. This Court would not like to express any final opinion on that aspect at this stage, except that it shall be open to the aggrieved parties to approach the High Court for appropriate redress in the light of the statement made on behalf of the Nigam that it is ready to extend the benefit of the policy to the affected families.
Reserving liberty for the aggrieved families to seek appropriate redress in appropriate proceedings before the High Court, we dispose of the present application (I.A.No.4 of 2013) for Directions.”
Evident it is from these orders that there was no condition precedent that the occupiers to continue in occupation of land acquired in 1978/1984 till rehabilitation, yet unauthorizedly person like petitioners remained in occupation.
Be that as it may. That certain orders were passed by the National Green Tribunal on 28.08.2018 in O.A. No.164/2018: Ashwani Kumar Dubey Vs. Union of India and Others, whereon an Oversight Committee under the Chairmanship of Justice (Retd.) Shri Rajesh Kumar made following recommendations in its meeting held on 17.12.2019:
“UPVUN, Anpara:
On the information being received from the various sector that there is a continuous flow of the water carrying fly ash from two sides towards Rihand Reservoir since last more than one year. On 15.12.2019 night at about 6.30 PM committee visited the spot and found that the information given is true. There is continuous flow of water coming from plant alongwith the fly ash filling in Rihand Reservoir. On a query being made that why this is happening, Shri Pradhul Gupta, Senior Engineer states that this flow is not continuous, it is mainly during the rainy season and this happened because of fulfilment of the ash dyke therefore the water is overflowing. It also carries catchment water. It is stated that they are raising the height of the dyke which may likely to take one year at least. He further submitted that they are also developing another compartment which may likely to take six months and they are also making effort to divert the nala which carries natural water to reduce the quantity of water.
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We do not find explanation satisfactory. The fact is that the water carrying fly ash are continuously flowing towards the Rihand Reservoir, the volume of the flowing water is very high and it caries fly ash, it is continuous since last more than one year. Discharge of fly ash to the Rihand Reservoir pollutes the water of reservoir which is the only source of water of the area. We find that the information about the flow of huge water along with fly ash had not been conveyed to SPCB authorities and they have deliberately concealed the facts. It is mentioned here that these two areas are in a very interior and we have to reach these places after travelling about 18 KM kaccha road through forest. Act of pollution amounts to violation of various laws and polluter is liable to be punished. The committee is of the view that since the flow of water alongwith fly ash is continuous, and there is no possibility for its immediate stoppage. The only way to stop the flow is to close operation of the unit and their unit is liable to be closed until they make arrangements and ensure that no water with ashes may go to the Rihand Rreservoir. The committee is also of the view that they are liable for the environment compensation as well as cost of desilting of the ashes from the reservoir on the principle of polluter pay. The UPPCB is directed to assess environmental compensation and take all stringent actions under the provision provided in the various Acts.
After the meeting, Shri H.P. Singh, Chief Engineer came with the request, in writing, which reads as follows:
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We have considered the request. We are of the view that let the matter be referred to the Hon’ble NGT to take a final decision in the matter, on the facts and circumstances. UPPCB is also directed to issue the notice to the plant and take the appropriate action in accordance with the law.”
Consequent whereof and in furtherance to various directions by the NGT an application was filed by M/S Anpara Thermal Power Project UPRVUN on 16.03.2020 with the Consent to Establish for New Unit/Expansion/ Diversification under the Provisions of Water
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(Prevention and Control of Pollution) Act, 1974 as amended and Air (Prevention and Control of Pollution) Act, 1981 as amended. Considering the same the CTE has been granted with the validity period 18.03.2020 to 17.03.2025 with the following parameters and specific conditions:
Parameters:
“2. You are directed to furnish the progress of Establishment of plant and machinery, green belt, Effluent Treatment Plant and Air pollution control devices, by 10th day of completion of subsequent quarter in the Board.
3. Copy of the work order/purchase order, regarding instruction and supply of proposed Effluent Treatment Plant/Sewerage Treatment Plant/Air Pollution control System shall be submitted by the industry till 17/03/2025 to the Board.
4. Industry will not start its operation, unless CTO is obtained under water (Prevention and control of Pollution) Act, 1974 and Air (Prevention and control of Pollution) Act, 1981 from the Board.
5. It is mandatory to submit Air and Water consent Application, complete in all respect. Four months before start of operation, to the U.P. Pollution Control Board.
6. Legal action under water (Prevention and control of Pollution) Act, 1974 and Air (Prevention and control of Pollution) Act, 1981 may be initiated against the industry without any prior information, in case of non compliance of above conditions.
Specific Condition:
1. This consent to establish (CTE) of M/s Anpara Thermal Power Project, UPRVUNL, Sonbhadra is valid for safely disposal of wet fly ash on low-lying area of Gata No.16238 at Dibulganj, Anpara, Sonbhadra in 1,04,908.89 sq.mt. area as proposed.
2. The industry shall develop the area where the wet ash is proposed in such a manner that under ground water is not gets contaminated. The land shall be prepared with proper lining as per the guidelines of CPCB regarding Fly ash disposal in Ash Dykes.
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3. The unit shall also make arrangement for controlling leachate pollution as suggested in study report of IIT, BHU.
4. A proper retaining wall of RCC or any other material of sufficient height shall be constructed at the periphery in the direction of Renusagar Reservoir, and of other material on other sides with sufficient foot board, so that there is no chance of ash mixed water reaching and polluting reservoir and surrounding area.
5. The unit has to pay Environmental Compensation, if ash mixed water gets discharge into reservoir.
6. Ash shall be properly quenched before disposal so that there is no chance of any accident. Proper arrangement shall also be made for treating and recycling water generated from ash slurry.
7. The Unit shall comply with the ambient air quality standard 2009 of CPCB.
8. The industry shall make proper arrangement so that there is no air pollution during windy conditions.
9. Fly ash shall be transported through closed pipe lines as proposed.
10. Fly Ash shall be disposed in such manner, so that no water, air and soil pollution takes place. Industry shall comply with provisions of Fly Ash notification S.O. 254 (E) dated 25.01.2016 and shall submit the compliance report quarterly.
11. Industry shall submit the Ambient Air Monitoring report of NABL accredited laboratory on monthly basis to the Board.
12. Green Belt shall be developed and maintained as per the guidelines issued by the Board vide office order dated 16/02/2018, which is available on Board’s Websitewww.uppcb.com. A time bound program for the development of green belt shall be submitted within 01 month.
13. The dust emission from the proposed sites will be completely controlled and all precautions will be taken as per the provisions of Construction and Demolition Waste Management Rules, 2016
14. Unit shall comply with the provisions of Environment (Protection) Act, 1986, Water (Prevention and Control of
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Pollution) Act, 1974 as amended, Air (Prevention and Control of Pollution) Act, 1981 as amended.
15. All approach roads shall be spirnkled with water to suppress the dust emission.
16. Unit shall submit bank guarantee of Rs.10 Lakh valid for 5 years for compliance of above specific conditions within 15 days in the prescribed format, otherwise this consent to establish will deemed to be automatically revoked.
As the site utilized for the said purpose being that of the Anpara Thermal Power Project acquired way back in the year 1978-1984 and there being no prohibition either statutory or otherwise being shown, we do not perceive any merit in the petition, which deserves to be and is hereby dismissed. No costs.
Order Date :- 18.3.2021 N Tiwari
(Jayant Banerji,J.) (Sanjay Yadav,J.)
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2 issues framed by the court
Whether the land where the petitioner claims discharge of wet ash was acquired by the State in 1978-1984 deprives the petitioner of the right to restrain disposal.
Whether there is any statutory or otherwise prohibition on the proposed land use for ash disposal.
1 provisions across 1 enactments
Ravindra Kumar And 10 Others
Union Of India And 6 Others
Sanjay Yadav
Jayant Banerji
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
