Disposed

Devanshu Bose v. Agra Development Authority

NGT6 Jul 2022IA No. 172/2022 in Original Application No. 329/2021

Case brief

AI extract

What is this about?

The Tribunal rejected the applicant's plea for waiver of Rs. 25 Lakhs interim compensation ordered for the Agra Development Authority (ADA) due to failure to prevent discharge of untreated sewage. The court directed the ADA and state authorities to take immediate mission mode action, establish a Sewage Treatment Plant (STP), and ensure 100% sewage treatment, citing multiple prior orders and Suprem

What did the court decide?

Rejected the waiver application; directed ADA and state authorities to submit a mission-mode action plan for 100% sewage treatment and disposal within three months.

Devanshu Bose vs Agra Development Authority — Environment and Pollution | NGT (2022)

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Item No. 03

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(Court No. 1)

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

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(By Video Conferencing)

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Original Application No. 329/2021 (I.A. No. 172/2022)

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(With reports dated 07.06.2022, 28.06.2022, 04.07.2022 & 05.07.2022)

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Devanshu Bose Applicant

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Versus

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Agra Development Authority & Ors.

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Respondent(s)

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Date of hearing: 06.07.2022

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CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE PROF. A. SENTHIL VEL, EXPERT MEMBER

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Respondent(s): Mr. Ajay Kumar Dwivedi, Vice Chairman, ADA along with Dr. Rajiv Nanda, Senior Advocate & Ms. Himanjali Gautam, Advocate for ADA Mr. Amrit Abhijat, Principal Secretary, Urban Development Department with Ms. Priyanka Swami, Advocate for the State of UP Mr. Pradeep Misra & Mr. Daleep Dhyani, Advoctes for UPPCB

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ORDER

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Grievance in this application is against failure of the State authorities to prevent discharge of sewage on open land from ‘Nalanda Town’, a housing colony developed by a Builder at Shamshabad Road area of Agra, Uttar Pradesh, estimated to be 1.45 Lakh Litres per day. Agra Development Authority (ADA) is primarily responsible for such failure.

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Vide order dated 01.12.2021, the Tribunal sought a factual report in

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the matter from a joint Committee of ADA, District Magistrate, Agra and

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UPPCB. It was also directed that if budget was not available, necessary funds be raised by collecting charges from inhabitants for protection of environment and public health as per mandate of law under the Constitution and the Water (Prevention and Control of Pollution) Act, 1974.

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The matter was thereafter considered on 24.03.2022 in light of report of the joint Committee dated 22.02.2022, acknowledging that sewage was not being treated and was being discharged on land and also going to a drain. There was no sewer line. The Tribunal held that Agra Development Authority (ADA) had failed to perform its statutory obligation to protect environment and public health and directed ADA to deposit interim compensation of Rs. 25 Lakhs with District Magistrate, Agra for restoration of damage to the environment, as per ‘polluter pays’ principle. Township developed without requisite infrastructure was illegally allowed to be occupied. ADA was also directed to take remedial action to prevent discharge of untreated sewage in open, to be ensured by the Vice Chairman, ADA and overseen by Additional Chief Secretary, Urban Development, UP and State PCB, who were also directed to remain present by videoconferencing. The Tribunal referred to the mandate of law in the judgment of the Hon’ble Supreme Court in (2017) 5 SCC 326, Paryavaran Suraksha Samiti Vs. Union of India which required accountability of erring officer to be fixed in case requisite pollution control devices to prevent water pollution were not installed.

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Report dated 07.06.2022, updated on 05.07.2022, has been filed by ADA, apart from report of the State PCB dated 28.06.2022 and report of the Urban Development Department, UP dated 04.07.2022. The applicant has filed his objections dated 04.07.2022.

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The report of the ADA is that the waste water is now being disposed of by tankers pending establishment of STP for which tenders have been invited. Meetings have been held with the Developer who has issued work order dated 02.05.2022 for the STP. Sewage storage tank is being cleaned. Cost is to be recovered from the residents of the colony. There is also project for sewage disposal in various colonies. STP will start working from 10.08.2022. The report of the State PCB is that compensation has been levied on the Director of the Nalanda town which has been contested. Domestic sewage has been removed and sewage is now being disposed of through STP at Dhandupura, through tankers. According to the Urban Development Department, the project is outside the Municipal boundary of Agra and thus, falls under the Housing and Urban Planning Department and not under the Urban Development Department. Estimate has been prepared for the drainage of the area in question. I.A. No. 172/2022 has been filed by ADA for waiver of Rs. 25 lakhs levied as interim compensation.

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According to the applicant, sewer is stagnant in the colony and only for the period from 22.04.2022 to 10.05.2022 the sewage was collected. The STP is proposed in a park without any provision for maintenance of the proposed STP.

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We have heard the Vice Chairman, ADA and ACS, Urban Development, UP present by Video Conferencing. The situation remains patently unsatisfactory. It is not disputed that untreated sewage was being discharged in open land till orders of this Tribunal. Colony was allowed to be occupied without basic facilities to the detriment of environment and public health. ADA being statutory authority cannot avoid its responsibility only on the ground that it was failure of the builder. Action taken against

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the builder is only after orders of this Tribunal. Even the Development charges collected from the Builder were not utilized for treatment and disposal of the drainage. The fact that compensation of more than Rs. 2 crores is said to have been levied shows that the builder was defaulting for which no action was being taken till orders were passed by the Tribunal. Inadequate and incomplete action now taken is poor substitute for discharge of Constitutional and statutory obligation of the State authorities to provide clean environment. We thus do not find any merit in the application for waiver of interim compensation which stands rejected.

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With regard to the arrangement for treatment of sewage in another STP by carrying the untreated sewage by tankers, it is disappointing to note that about 400 persons are said to be living in the colony without any sewage treatment facility. One would expect for responsible behaviour from State authorities in preventing such situation.

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In the present case, the authorities appear to have failed to stipulate conditions to treat and utilize sewage generated by the housing colony. It was required to ensure that sewerage lines were laid terminating to STPs. It needs to be checked whether such deficiencies are be happening in respect of other residential and commercial complexes, coming up in periphery of urban areas. The authorities may ensure that required facilities are developed in such cases so that such environmental issues are addressed.

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While learned ACS UD may be right that the present location is outside the municipal limits while his department is concerned about urban area, situation in urban area also leaves much to be done. Huge

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gap¹ in generation and treatment of sewage at Agra was noted in earlier orders of this Tribunal dated 15.03.2021 in O.A. No. 176/2020 . It was observed :

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“6. From the reports of the CPCB and the Oversight Committee it is seen that the work executed so far is not adequate. Thus, the capacity for solid waste (including bio-mining) and sewage management needs to be enhanced by addressing the infrastructure gaps, installing more equipments and taking all other necessary measures. The matter has been pending for the last about five years and repeated directions have been issued for taking remedial measures but still the progress is not upto the expectations. There are statutory timelines under the Solid Waste Management Rules, 2016. Rule 22 requiring clearance of legacy waste within 5 years of commencement of Rules i.e. by 07.04.2021. Failure of the Authorities, apart from violation of right of citizens to clean environment, is also violation of the statutory Rules under the Environment (Protection) Act, 1986 (EP Act) which is a serious criminal offence, punishable under the law of the land, by jail sentence and heavy fine, including by concerned government officers. Such failure results in serious harm to public health and environment. Dealing with this situation, this Tribunal, in the light of binding orders of the Hon’ble Supreme Court, vide order dated 10.01.2020 in O.A. No. 606/2018 passed, in the personal presence of Chief Secretary, UP, directed compliance of rules and liability of pay compensation for violation as follows:-

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“ a. In view of the fact that most of the statutory timelines have expired and directions of the Hon‟ble Supreme Court and this Tribunal to comply with Solid Waste Management Rules, 2016 remain unexecuted, compensation scale is hereby laid down for continued failure after 31.03.2020. The compliance of the Rules requires taking of several steps mentioned in Rule 22 from Serial No. 1 to 10 (mentioned in para 12 above). Any such continued failure will result in liability of every Local Body to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body from 01.04.2020 till compliance. If the Local Bodies are unable to bear financial burden, the liability will be of the State Governments with liberty to take remedial action against the erring Local Bodies. Apart from compensation, adverse entries must be made in the ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc. who are responsible for compliance of order of this Tribunal.

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b. Legacy waste remediation was to „commence‟ from 01.11.2019 in terms of order of this Tribunal dated 17.07.2019 in O.A. No. 519/2019 para 28 even though statutory timeline

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1 Generation of National Mission as per NMCG report of April, 2021, sewage generation at Agra is 286 MLD against treatment capacity of 220 MLD through nine STPs.

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for^„ completing‟ the said step is till 07.04.2021 (as per serial no. 11 in Rule 22), which direction remains unexecuted at most of the places. Continued failure of every Local Body on the subject of commencing the work of legacy waste sites remediation from 01.04.2020 till compliance will result in liability to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body. If the Local Bodies are unable to bear financial burden, the liability will be of the State Governments with liberty to take remedial action against the erring Local Bodies. Apart from compensation, adverse entries must be made in the ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc. who are responsible for compliance of order of this Tribunal.

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c. Compensation in above terms may be deposited with the CPCB for being spent on restoration of environment which may be ensured by the Chief Secretaries‟ of the States/UTs. ”

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7. Accordingly, the Chief Secretary, UP may ensure further remedial action in a mission mode, taking into account the recommendations of the CPCB and Oversight Committee by ensuring that adequate measures are taken to bridge the gap for solid and sewage management. Due attention is required on utilization of treated sewage and setting up of adequate capacity for solid waste processing plant to avoid mounting of legacy waste . Leachate re-circulation and treatment has to be ensured as per MSW Rules and keeping monitoring of ground water to check contamination. There is need to devise manifest system for tying up rejects and residues arising out of bio-mining. Further, duly authorized bio-medical, plastics and hazardous waste management facilities need to be set up and operated. The Monitoring Committee constituted in terms of order dated 19.11.1999 of the Hon’ble Supreme Court in W.P. (C) No. 426 of 1992, D.K. Joshi v. Chief Secretary, State of UP & Ors., may also monitor compliance at its level. The Chief Secretary may oversee further action in the matter on monthly basis.”

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Water (Prevention and Control of Pollution) Act, 1974 was enacted 48 years back but state of implementation is so poor that water pollution is rampant inspite of earlier orders of Hon’ble Supreme Court and this Tribunal on the subject. Extracts from some earlier orders are as follows:

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Extracts from order of this Tribunal Order dated 16.09.2021 in OA 544/2019 :

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“ 1to 8…..xxx…………………………xxx………………………………xxx

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9. Contamination of water sources is a punishable offence under the Water (Prevention and Control of Pollution) Act, 1974 for the last 47 years. Under Section 25 of the Act, untreated discharge of sewage in drain is prohibited and is in fact a criminal offence under Sections 42(2) and 44. Section 48 of the Act makes the Head of the Department liable for being punished for such offence. As per directions of the Hon’ble Supreme Court in Suraksha case² an outer limit of 31.03.2018 is fixed for completing the work of all STPs in the Country for laying down the sources of budget and direction is to initiate prosecution for continued failure. This Tribunal has been directed to monitor compliance . We may refer to the specific directions of the Hon’ble Supreme Court and this Tribunal on the subject:

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Extracts from the judgement of the Hon’ble Supreme Court in Paryavaran Suraksha Samiti Vs. Union of India, supra

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“ 7. Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50%, that of the State Government concerned (including the Union Territory concerned) is 25%. The balance 25%, is to be arranged by way of loans from banks . The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed that the setting up of a common effluent treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced). The reason for the above prolonged period, for setting up “common effluent treatment plants”, according to the learned counsel, is not only financial, but also, the requirement of land acquisition, for the same .

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x…………………………x…………………x………………..

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10. Given the responsibility vested in municipalities under Article 243-W of the Constitution, as also, in Item 6 of Schedule XII, wherein the aforesaid obligation, pointedly extends to “public health, sanitation conservancy and solid waste management”, we are of the view that the onus to operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies). Given the aforesaid responsibility, the municipalities (and/or local bodies) concerned, cannot be permitted to shy away from discharging this onerous duty. In case there are further financial constraints, the remedy lies in Articles 243-X and 243-Y of the Constitution. It will be open

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2 (2017) 5 SCC 326

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to the municipalities (and/or local bodies) concerned, to evolve norms to recover funds, for the purpose of generating finances to install and run all the “common effluent treatment plants”, within the purview of the provisions referred to hereinabove. Needless to mention that such norms as may be evolved for generating financial resources, may include all or any of the commercial, industrial and domestic beneficiaries, of the facility. The process of evolving the above norms, shall be supervised by the State Government (Union Territory) concerned, through the Secretaries, Urban Development and Local Bodies, respectively (depending on the location of the respective common effluent treatment plant). The norms for generating funds for setting up and/or operating the “common effluent treatment plant” shall be finalised, on or before 31-3-2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the State Governments (or the Union Territories) concerned, shall cater to the financial requirements, of running the “common effluent treatment plants”, which are presently dysfunctional, from their own financial resources.

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11. Just in the manner suggested hereinabove, for the purpose of setting up of “common effluent treatment plants”, the State Governments concerned (including, the Union Territories concerned) will prioritise such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.

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12. We are of the view that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We, therefore, hereby direct that “sewage treatment plants” shall also be set up and made functional, within the timelines and the format, expressed hereinabove.

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13. We are of the view that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We, therefore, hereby provide that the directions pertaining to continuation of industrial activity only when there is in place a functional “primary effluent treatment plants”, and the setting up of functional “common effluent treatment plants” within the timelines, expressed above, shall be of the Member Secretaries of the Pollution Control Boards concerned. The Secretary of the Department of Environment, of the State Government concerned (and the Union Territory concerned), shall be answerable in case of default. The Secretaries to the Government concerned shall be responsible for monitoring the

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progress and issuing necessary directions to the Pollution Control Board concerned, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data and shall furnish the same to the Bench of the jurisdictional National Green Tribunal.

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14. To supervise complaints of non-implementation of the instant directions, the Benches concerned of the National Green Tribunal, will maintain running and numbered case files, by dividing the jurisdictional area into units. The abovementioned case files will be listed periodically. The Pollution Control Board concerned is also hereby directed to initiate such civil or criminal action, as may be permissible in law, against all or any of the defaulters.

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x……………………x……………………x……………..

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16. It however needs to be clarified, that the instant directions and time lines, shall not in any way dilute any time lines and directions issued by Courts or Benches of the National Green Tribunal, hitherto before, wherein the postulated time lines would expire before the ones expressed through the directions recorded above. It is clarified, that the time lines, expressed hereinabove will be relevant, only in situations where there are no prevalent time line(s), and also, where a longer period, has been provided for.”

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(emphasis supplied)

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Extracts from orders of this Tribunal in OA 593/2017 : Order dated 21.05.2020

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26. Summary of directions:

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i. All States/UTs through their concerned departments such as Urban/Rural Development, Irrigation & Public Health, Local Bodies, Environment, etc. may ensure formulation and execution of plans for sewage treatment and utilization of treated sewage effluent with respect to each city, town and village, adhering to the timeline as directed by Hon'ble Supreme Court. STPs must meet the prescribed standards, including faecal coliform.

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CPCB may further continue efforts on compilation of River Basin-wise data. Action plans be firmed up with Budgets/Financial tie up. Such plans be overseen by Chief Secretary and forwarded to CPCB before 30.6.2020. CPCB may consolidate all action plans and file a report accordingly.

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Ministry of Jal Shakti and Ministry of Housing and Urban Affairs may facilitate States/UTs for ensuring that water quality of rivers, lakes, water bodies and ground water is maintained.

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As observed in para 13 above, 100% treatment of sewage/effluent must be ensured and strict coercive action taken for any violation to enforce rule of law. Any party is free to move the Hon’ble Supreme Court for continued violation of its order after the deadline of 31.3.2018. This order is without prejudice to the said remedy as direction of the Hon’ble Supreme Court cannot be diluted or relaxed by this Tribunal in the course of execution. PCBs/PCCs are free to realise compensation for violations but from 1.7.2020, such compensation must be realised as per direction of this Tribunal failing which the erring State PCBs/PCCs will be accountable.”

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Order dated 21.09.2020

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“11. The Tribunal has already issued directions vide orders dated 28.08.2019 and 21.05.2020 for ensuring that no untreated sewage/effluent is discharged into any water body and for any violation compensation is to be assessed and recovered by the CPCB so that the same can be utilized for restoration of the environment, complying with the principle of ‘Polluter Pays’ which has been held to be part of ‘Sustainable Development’ and part of right to life. Control of such pollution is crucial for environment, aquatic life, food safety and also human health. ..”

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From OA 673/2018

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Order dated 6.12.19:

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6. The Hon’ble Supreme Court noticed the level of degradation of rivers in India and apathy of the authorities as follows:

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“58. Rivers in India are drying up, groundwater is being rapidly depleted, and canals are polluted. Yamuna in Delhi looks like a black drain. Several perennial rivers like Ganga and Brahmaputra are rapidly becoming seasonal. Rivers are dying or declining, and aquifers are getting over pumped. Industries, hotels, etc. are pumping out groundwater at an alarming rate, causing sharp decline in the groundwater levels. Farmers are having a hard time finding groundwater for their crops e.g. in Punjab. In many places there are serpentine queues of exhausted housewives waiting for hours to fill their buckets of water. In this connection John Briscoe has authored a detailed World Bank Report, in which he has mentioned that despite this alarming situation there is

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widespread complacency on the part of the authorities in India.³

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“4. We see Yamuna river virtually turned into a sullage. We take judicial notice of this situation. Similar is the position with Ganges. As it proceeds, industrial effluents are being poured in rivers. Sewage is also being directly put in rivers contributing to the river water pollution. We direct the Pollution Control Boards of the various States as well as the Central Pollution Control Board and various Governments to place before us the data and material with respect to various rivers in the concerned States, and what steps they are taking to curb the pollution in such rivers and to management as to industrial effluents, sewage, garbage, waste and air pollution, including the water management. We club the ending case of water management with this matter.⁴

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xxx…………………………………..xxx……………………..xxx

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11. In spite of above, in flagrant violation of law of the land, polluted water in the form of sewage, industrial effluents or otherwise has continued to be discharged in the water bodies including the rivers or the canals meeting the rivers. Violation of law is not only by private citizens but also statutory bodies including the local bodies and also failure of the regulatory authorities in taking adequate steps. There is no corresponding coercive action posing danger to rule of law when large scale violation of law is not being remedied. This leads to lawlessness.

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12. It will be appropriate to note the crisis situation in the country on the subject of availability of potable water. The matter has been considered in the report of Niti Aayog on Composite Water Management Index (CWMI).⁵ Following further information also needs to be noted:

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(i) India is suffering from the worst water crisis in its history and millions of lives and livelihoods are under threat. Currently, 600 million Indians face high to extreme water stress and about two lakh people die every year due to inadequate access to safe water⁶ . The crisis is only going to get worse. By 2030, the country’s water demand is projected to be twice the available supply, implying severe water scarcity for hundreds of millions of people and an eventual ~6% loss in the country’s GDP⁷ . As per the report of National Commission for Integrated Water Resource Development of MoWR, the water requirement by2050 in high use scenario is likely to be a milder 1,180 BCM, whereas the present-day availability is 695BCM. The total availability of water possible in country is still lower than this projected

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3 State of Orissa v. Govt. of India, (2009) 5 SCC 492

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4 M.C. Mehta Vs Union of India- W.P. (Civil) No. 13029/1985 dated 25.11.2019

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5 Niti Ayog on “Composite Water Management Index”, June 2018, https://niti.gov.in/writereaddata/files/document_publication/2018-05-18-Water-IndexReport_vS8-compressed.pdf.

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6Source: WRI Aqueduct; WHO Global Health Observatory

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7Source: McKinsey & WRG, ‘Charting our water future’, 2009; World Bank; Times of India

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demand, at 1,137BCM. Thus, there is an imminent need to deepen our understanding of our water resources and usage and put in place interventions that make our water use efficient and sustainable.

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(ii) India is undergoing the worst water crisis in its history. Already, more than 600 million people⁸ are facing acute water shortages. Critical groundwater resources – which account for 40% of our water supply – are being depleted at unsustainable rates.⁹

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(iii) Most states have achieved less than 50% of the total score in the augmentation of groundwater resources, highlighting the growing national crisis—54% of India’s groundwater wells are declining, and 21 major cities are expected to run out of groundwater as soon as 2020, affecting ~100 million people¹⁰ .

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(iv) With nearly 70% of water being contaminated, India is placed at 120th amongst 122 countries in the water quality index.

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13. As per statistics mentioned before the Lok Sabha on April 6, 2018, waterborne diseases such as cholera, acute diarrhoeal diseases, typhoid and viral hepatitis continue to be prevalent in India and have caused 10,738 deaths, over the last five years since 2017. Of this, acute diarrhoeal diseases caused maximum deaths followed by viral hepatitis, typhoid and cholera^.11

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14. As per ‘National Health Profile’ published by Central Bureau of Health Investigation, Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, a total of 1535 Deaths due to Acute Diarrhoeal Diseases was reported during the year 2013^.12

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Main Causes of Pollution of Rivers

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15. As already noted, well known causes of pollution of rivers are dumping of untreated sewage and industrial waste, garbage, plastic waste, e-waste, bio-medical waste, municipal solid waste, diversion of river waters for various purposes affecting e-flow, encroachment of catchment areas and floodplains, over drawl of groundwater, river bank erosion on account of illegal sand mining. Inspite of directions to install Effluent Treatment Plants (ETPs), Common Effluent Treatment Plants (CETPs), Sewage Treatment Plants (STPs), and adopting other anti-pollution measures, satisfactory situation has not been achieved. As per CPCB’s report 2016¹³ , it has been estimated that 61,948 million liters per day (mld) sewage is generated from the urban areas of which treatment capacity of 23,277 mld is currently existent in India. Thereby the deficit in capacity of waste treatment is of 62%. There is no data available with regard to generation of sewage in the rural areas.

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8 Source: World Resource Institute

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9 Source: World Resource Institute

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10 Source: UN Water, ‘Managing water under uncertainty and risk’, 2010; World Bank (Hindustan Times, The Hindu).

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11 https://www.indiaspend.com/diarrhoea-took-more-lives-than-any-other-water-bornedisease-in-india-58143/

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12 http://pib.nic.in/newsite/PrintRelease.aspx?relid=106612

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13 http://www.sulabhenvis.nic.in/Database/STST_wastewater_2090.aspx July 16, updated on December 6, 2016

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33. We may note the observations of the Hon’ble Supreme Court:

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“26. Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the lawabiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that Parliament enacted the antipollution laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations.¹⁴

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“61. ….. If the laws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large-scale cannot take place without connivance of the officers concerned. It is also a source of corruption. Therefore, action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens.”¹⁵

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35. Vide order dated 22.08.2019 in Original Application 200/2014, dealing with the pollution of river Ganga, the Tribunal issued

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14 INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION Vs. UNION OF INDIA AND OTHERS (1996) 5 SCC 281

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15 M.C. Mehta v. Union of India, (2006) 3 SCC 399 – Public functionaries

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directions and laid down coercive measures to be taken for discharge of untreated sewage in river Ganga:-

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“16. xxx…………………xxx……………………………xxx

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17. Wherever the work has not commenced, it is necessary that no untreated sewage is discharged into the River Ganga. Bioremediation and/or phytoremediation or any other remediation measures may start as an interim measure positively from 01.11.2019, failing which the State may be liable to pay compensation of Rs. 5 Lakhs per month per drain to be deposited with the CPCB. This however, is not to be taken as an excuse to delay the installation of STPs. For delay of the work, the Chief Secretary must identify the officers responsible and assign specific responsibilities. Wherever there are violations, adverse entries in the ACRs must be made in respect of such identified officers. For delay in setting up of STPs and sewerage network beyond prescribed timelines, State may be liable to pay Rs. 10 Lakhs per month per STP and its network. It will be open to the State to recover the said amount from the erring officers/contractors.

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36. Vide order dated 28.08.2019, the Tribunal held:-

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“15. xxx……………xxx…………………………………xxx

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“16. xxx…………………xxx……………………………xxx

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17. As already noted, prevention of pollution of water is directly linked to access to potable water as well as food safety. Restoration of pristine glory of rivers is also of cultural and ecological significance. This necessitates effective steps to ensure that no pollution is discharged in water bodies. Doing so is a criminal offence under the Water Act and is harmful to the environment and public health. ‘Precautionary’ principle of environmental law is to be enforced. Thus, the mandate of law is that there must be 100% treatment of sewage as well as trade effluents. This Tribunal has already directed in the case of river Ganga that timelines laid down therein be adhered to for setting up of STPs and till then, interim measures be taken for treatment of sewage. There is no reason why this direction be not followed, so as to control pollution of all the river stretches in the country. The issue of ETPs/CETPs is being dealt with by an appropriate action against polluting industries. Setting up of STPs and MSW facilities is the responsibility of Local Bodies and in case of their default, of the States. Their failure on the subject has to be adequately monitored. Recovery of compensation on ‘Polluter Pays’ principle is a part of enforcement strategy but not a substitute for

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compliance. It is thus necessary to issue directions to all the States/UTs to enforce the compensation regime, latest with effect from 01.04.2020. We may not be taken to be condoning any past violations. The States/UTs have to enforce recovery of compensation from 01.04.2020 from the defaulting local bodies. On failure of the States/UTs, the States/UTs themselves have to pay the requisite amount of compensation to be deposited with the CPCB for restoration of environment. The Chief Secretaries of all the States may furnish their respective compliance reports as per directions already issued in O.A. No. 606/2018.”

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It is thus appropriate that remedial measures are speedily taken by the Agra Development Authority overseen by the ACS, Urban Development and ACS, Housing and Development, UP in a mission mode. Such steps should cover the present area as well as urban area of Agra. ACS, Urban Development will be the nodal agency for coordination and compliance. The Committee may hold its meeting within two weeks and after taking stock of the situation and earlier orders of this Tribunal, take further remedial action. The Committee will be at liberty to coordinate with any other Department/Agency. In view of chronic and long pending problem, the Committee may explore steps on the pattern of available best practices to the extent found relevant such as arrangement with relevant establishments to supply sewage treated water for which pipelines are laid by such establishments and part of the sewage treatment cost is also shared by such establishments.¹⁶ This may help better use of treated

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16 1. Chennai industries to now use treated sewage water - The New Indian Express:https://www.newindianexpress.com/cities/chennai/2019/jul/31/chennai- industries-to-now-use-treated-sewage-water-2011837.html

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Surat sewage reuse model goes global - Surat News - Times of India: https://timesofindia.indiatimes.com/city/surat/surat-water-reuse-model-goesglobal/articleshow/85668103.cms

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Surat generating massive revenue by selling treated water to industries: https://www.aninews.in/news/national/general-news/surat-generating-massiverevenue-by-selling-treated-water-to-industries20201217051127/

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Surat Generating Massive Revenue By Selling Treated Water of River Tapi To Industries – News: https://swachhindia.ndtv.com/surat-generating-massive-revenue-by-sellingtreated-water-of-river-tapi-to-industries-54411/

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5. Industries in Ahmedabad to get treated wastewater - Ahmedabad News - Times of India: https://m.timesofindia.com/city/ahmedabad/amc-offers-rs43/kl-treated-wastewaterfor-industries/amp_articleshow/87169850.cms

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sewage to save potable water. We may refer to observations in a recent order dated 19.04.2022 in OA No. 887/2019, Sukhwanti v. State of Haryana & Ors. on the subject:-

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“10…….Further, for maximising use of treated sewage, PCB may identify potential industrial clusters, major industrial sectors and other bulk users to tie-up each STP with the User group. In this regard, provisions of ‘The Haryana Water Resources (Conservation, Regulation and Management) Authority (Amendment) Act, 2022’ may be strictly followed. CPCB may also assist HSPCB in this regard. The Tribunal vide order dated 09.03.2022 in OA No. 29/2020(WZ), Suraj Pradip Ajmera vs. Aurangabad Municipal Corporation directed as follows:

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“10. During the hearing, suggestion has emerged that an interaction be held at the level of Chief Secretary, Maharashtra with inclusion of Secretary, Urban Development, Maharashtra and Technical Experts as may be decided by them including from IIT, Bombay, Regional Officer, CPCB and Member Secretary, State PCB to consider possibility of laying pipeline upto the industrial area for transporting treated sewage to the industrial areas so that the same can be utilized for industrial purpose. Industries Association may be associated in the project of sewage treatment and can bear a part of the cost out of Corporate Social/Environmental Responsibility, depending upon the financial capacity of the member industries. This may result in a permanent and long-lasting cheaper solution. If successful, this experiment may be tried appropriately at such other locations in the State as found appropriate and also customized different locations. The Committee may also study such models elsewhere in the country which reportedly have been successful. The Committee may also consider any other viable strategies for sewage treatment and interception and diversion of sewage, use of appropriate effective and economical technology, making group housing societies Zero Liquid Discharge (ZLD) by recycling treating sewage, after treatment in decentralized manner and utilizing the treated

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6. Gujarat: Now treated wastewater to be piped to two industrial clusters - Cities News, The Indian Express: https://indianexpress.com/article/cities/ahmedabad/gujarat-nowtreated-wastewater-to-be-piped-to-two-industrial-clusters-5713792/

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Nagpur to become the first Indian city to treat and reuse 90% of its sewage: https://theprint.in/india/governance/nagpur-to-become-the-first-indian-city-to-treatand-reuse-90-of-its-sewage/180493/

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India’s 1^st and largest PPP on waste water reuse completed in record time during pandemic; bags FICCI Water Award 2020: https://www.businessstandard.com/content/press-releases-ani/india-s-1st-and-largest-ppp-on-waste-waterreuse-completed-in-record-time-during-pandemic-bags-ficci-water-award-2020121022500841_1.html

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MPCB Note on domestic west water reuse project at Nagpur: https://mpcb.gov.in/sites/default/files/focus-area-reportsdocuments/NMC_%26_KTPS_success_story_28052019.pdf

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STP at Village Kewara, Bhilwara (Rajasthan)– CPCB Bhopal: https://cpcb.nic.in/successstories/upload/1501156301.pdf

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11.C HAPTER 7: RECYCLING AND REUSE OF SEWAGE: http://cpheeo.gov.in/upload/uploadfiles/files/engineering_chapter7.pdf

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sewage for horticulture, flushing, cleaning or other non-drinking purposes. This strategy may help in augmenting availability of potable water particularly in drought affected areas of Aurangabad Region in Maharashtra where potable water had to be transported by trains in the past. The Secretary, Urban Development may act as nodal agency who may call for a meeting within one month.”

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11……………………xxx…………………………xxx……………………..xxx

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12. The Tribunal has considered the issue of utilization of treated sewage to save potable water for drinking purposes inter-alia vide order dated 21.09.2020 in O.A. No. 148/2016 Mahesh Chandra Saxena vs. South Delhi Municipal Corporation & Ors. By the said order, the data of utilization of treated water as given in the CPCB report dated 15.05.2020 and further report dated 16.09.2020 was noted showing huge gap in reuse of treated water, which resulted in potable water being used even for purposes for which treated water could be used. The Tribunal directed all States/UTs to ensure 100% utilization of treated water for secondary purposes, which may be monitored by Central Monitoring Committee headed by Secretary, Ministry of Jal Shakti and assisted by CPCB, NMCG and Ministry of Urban Development.”

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In light of above, let further action taken report be filed by ACS, Urban Development within three months from today by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. The report may also cover the observations in para 9 above. ACS, Urban Development may remain present on the next date by Video Conferencing along with Vice Chairman, ADA and Commissioner, Municipal Corporation, Agra.

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List for further consideration on 11.11.2022.

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A copy of this order be forwarded to Agra Development Authority, ACS, Urban Development, ACS, Housing and Development, UP and Municipal Corporation, Agra by e-mail for compliance.

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Adarsh Kumar Goel, CP

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Sudhir Agarwal, JM

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Prof. A. Senthil Vel, EM

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July 6, 2022 Original Application No. 329/2021 (I.A. No. 172/2022) SN

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Devanshu Bose v. Agra Development Authority

Case brief

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Devanshu Bose v. Agra Development Authority

Case brief

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