before the national green tribunal (western...

(J) Appln 42/2013 (WZ) of 16

BEFORE THE NATIONAL GREEN TRIBUNAL

(WESTERN ZONE) BENCH, PUNE

APPLICATION NO.42 OF 2013

CORAM :

HON’BLE SHRI JUSTICE V.R. KINGAONKAR (JUDICIAL MEMBER) HON’BLE DR. AJAY A.DESHPANDE (EXPERT MEMBER)

In the matter of:

1. MAYUR HARISHCHANDRA RASKAR,

At Post: Malinagar, Tal. Malshiras,

Dist. Solapur, Maharashtra.

2. HARISHCHANDRA RAJARAM RASKAR,

At Post: Malinagar, Tal. Malshiras,


APPLICANTS

A N D

1. THE SASWAD MALI SUGAR FACTORY LTD. At Post: Malinagar, Tal. Malshiras,


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2. MAHARASHTRA POLLUTON CONTROL BOARD, Through its Chairman, Kalpataru Point, 2nd -4th Floor, Opp. Cine Planet, Near Sion Cirlce, Sion(East), Mumbai-400 022.

3. THE SUB-REGIONAL OFFICER Maharashtra Pollution Control Board, Sat Rasta, Opp. Govt. Milk Dairy, Solapur, Maharashtra.

4. THE CHIEF EXECUTIVE ENGINEER, Maharashtra State Electricity Distribution Ltd. Prakash Gadh, Next to ONGC, Bandra-Mumbai.

5. MANAGING DIRECTOR, Maharashtra State Electricity Distribution Ltd. Prakash Gadh, Next to ONGC, Bandra-Mumbai.

6. DIRECTOR- GENERAL, Maharashtra Energy Development Agency, 2nd Floor, MHADA Commercial Complex, Opp. Tridai Nagar, Yerwada, Pune-411 006.

7. CENTRAL BANK OF INDIA Through the Branch Manager Branch Malinagar, Tal. Malshiras, DIst- Solapur, Maharashtra.

8. BANK OF BARODA, Branch Akluj, Tal. Malshiras, Dist- Solapur, Maharashtra.

9. RAJENDRA GOPAL GIRME, Age 61, Occ- Managing Director, (Saswad Mali Sugar Factory Ltd, Malinagar) At Malinagar, Tal. Malshiras,

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Dist- Solapur, Maharashtra.

10. VASANT MALHARI TAMHANE, Age-65, Occ-Whole Time Director (Saswad Mali Sugar Factory Ltd, Malinagar) At Malinagar, Tal. Malshiras, Dist- Solapur, Maharashtra.

11. KRISHNAKANT S.KURADE (DIRECTOR)

Age-65, Occ- Business, C/o 1263/4, Hotel Rathik, Jangli Maharaj Road, Shivajinagar,Pune-05,

12. ARVIND EKANAH JADHAV (DIRECTOR),

Age 67, Occ- Agriculture, Barbhai Gat, Malinagar, Tal. Malshiras, DIst- Solapur, Maharashtra.

13. VIJAY SHANKARRAO GIRME (DIRECTOR), Age-70, Occ-Agriculture, A/P:- Flat No.4, Kasturi Apartment, I.T.I Road, Sanewadi, Aundh, Pune-07.

14. PRAVIN ANANTRAO PANDHARE (DIRECTOR) Age-40, Occ-Agriculture & Business, A/P;_ A-1101, Rohan Tapovan, S.No.98, Hissa No.2A/1A, Senapati Bapat Road, Pune-16.

15. NANADKUMAR JAGANNATH GIRME, (DIRECTOR)

Age-55, Occ- Agirulcuture, A/P:- Akesha Garden-II, Plot No.16, Magarpatta City, Hadapsar, Pune-28.

16. SATISH DIGAMBAR GIRME (DIRECTOR) Age-58, Occ-Agricuture, R/o Akluj, Akluj-Indapur Road, Tal. Malshiras, Dist. Solapur, Maharashtra.

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17. PARESH DIGAMBAR RAUT (DIRECTOR) Age-35, Occ-Agriculture, R/o;- Venugopal, 29, Bhosalenagar, Pune-7.

18. ASHWIN KRISHNAKANT GIRME (DIRECTOR)

Age-40, Occ-Agriculture, R/o 5/6, Madhura Apartment, Lane No.10, Prabhat Road, Pune, Maharashtra.

19. GANESH DNYANDEV INAMKE (DIRECTOR)

Age-50, Occ-Agricuture, R/o 23, Panmala, SHivprasad Hsg Society, VItthalwadi Road, Pune-30.

20. VILAS DAMODAR INAMKE (DIRECTOR)

Age-55, Occ-Agriculture, A/P:- Gat No.2, Malinagar, Tal. Malshiras, Dist- Solapur, Maharashtra.

21. PRASANNA JOSHI (C.A)

Age-58, Occ-Chartered Accountant, R/o. 1223, Ishwarkrupa, Shukrawar Peth, Pune-411 002.

22. ANIL DANDAGE,

Board Secretary, S.M.S.F, Age-52, Occ-Service, At Malinagar, Tal. Malshiras, DIst-Solapur, Maharashtra.

23. THE DIRECTOR,

Sugar Development Fund, Krushi Bhawan, New Delhi.

24. STATE LEVEL ENVIRONMENT APPRAISAL COMMITTEE, (SEAC), Environment Department, Government of Maharashtra State,

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15th floor, New Administrative Building, Mantralaya, Mumbai-400 032.

25. STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, (SEIAA) Environment Department, Government of Maharashtra State, 15th floor, New Administrative Building, Mantralaya, Mumbai-400 032.

26. DEPARTMENT OF ENVIRONMENT

Through the Secretary, Environment Department, Government of Maharashtra State, 15th floor, New Administrative Building, Mantralaya, Mumbai-400 032.

27. THE DIRECTOR, Sugar Development Fund, Krushi Bhawan, New Delhi.

………RESPONDENTS

Counsel for Appellant(s):

Mr. Abhijit Kulkari, Mr. Ninad Laud a/w Abhijit Gosavi,

F.M.Mesquita Mr. Nilkanth Raskar, (Power of Attorney), Mr.

Asim Sarode a/w Vikas Shinde, Ms. Neha Pathak a/w Rohini

Randive, Mr Pratap Vitankar for the Applicants.

Counsel for Respondent(s):

Mr. T.N. Subramaniam, Sr.Advocate, Mr. Ajay Gadegaonkar, Mr.

V.M.Mahajan, Mr. Saurabh Kulkarni, Mr. Hariprasad Shetty, Mr.

Havnur a/w Subhash Gandhi, Mr. Kiran Wagai, M/s M.P.Vashi &

Associates, for Respondent Nos.1, 9 to 20.

Mr. D.M.Gupte a/w Supriya Dangare for Respondent Nos.2,3.24

to 26.

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DATE : SEPTEMBER 3rd, 2015

JUDGMENT

1. By filing this Application – the Applicants, have

approached to this Tribunal with following prayers:

PRAYERS:

A) Declare that the resolution passed in EGM of Respondent No.1 Company dated 29/5/2012 in relation to implementation of new co-generation plant is void ab-initio and ultra-vires; B) Quash and set-aside the Consent to Establish dated 15/10/2013, issued by Maharashtra Pollution Control Board in favour of Respondent No.1 Company; C) Quash and set-aside the application for grant of consent to operate dated 13/09/2013 as being in violation of mandatory provisions of applicable laws; D) Pending hearing and adjudication of the present application, stay the operation of the Consent to Establish dated 15/01/2013 issued by Maharashtra Pollution Control Board in favour of Respondent No.1 Company;

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E) Pending hearing and adjudication of the present application restrain the Respondent No.1 Company from commissioning and operating its co-generation plant at proposed site in Survey Nos.13/1,13/2 and 13/3A of Village Malinagar, Tal. Malshiras, Dist. Solapur. 2. This Application has been filed under Ss. 14, 15,

16 and 17, read with Section 18 of the NGT Act, 2010

on 25.11.2013. The Applicants are residents of

Malinagar, Taluka Malshiras, District: Solapur and one

of the Applicant was also on the Board of Directors of

the Respondent Industry, some time back. The

Applicants have mainly relied on the grounds, which

are described in the Application itself, including

illegality of ‘Resolution’ dated 29.5.2012, passed by the

Board of Directors of the Respondent No.1-Industry,

preparation of DPR from a particular Consultant,

besides some of the environmental issues, including

distance of river and proposed activity of co-generation

power plant. The grounds which are listed in para ‘Q’ of

the Application also mention similar issues. The

Applicants have described limitation clause and

submitted that ‘cause of action’ for the Application

‘firstly arose’ on 29.5.2012, when Board of Directors of

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the Respondent No.1, passed resolution on 29.5.2012,

by suppressing material facts regarding DPR and TEV

report. It is submitted that ‘cause of action’ further

arose on 4.7.2012, when the Respondent No.1-

Industry made Application for consent to establish to

MPCB for proposed co-generation power plant. Cause

of action further arose when consent to establish the

co-generation power plant was granted by the MPCB

was on 15.1.2013. In other words, the Applicants have

submitted that cause of action is a ‘continuing’ cause

of action and, therefore, the Application is within

limitation.

3. Second contention of the Applicants is that the

industry is located within area where certain

restrictions have been imposed on the industrial

development by the Government of Maharashtra vide

Government Resolution dated 13.7.2009, commonly

known as “River Regulatory Zone” (RRZ) Policy. It is the

contention of the Applicants that the proposed

industrial development in the form of construction of

co-generation power plant is in violation of such

restrictions and the MPCB has granted consent to

establish on 15.1.2013, in violation of such

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regulations. The Applicants have, therefore, prayed for

“quashing and setting aside” consent to establish and

consent to operate granted to the industry.

4. The Application was heard several times in the

intervening period and it may be noted from the interim

orders that the Tribunal has recorded that there is an

attempt from the Applicant’s side to protract the

litigation through various Misc. Applications filed for

addition of parties, submission of additional documents

so on and so forth.

5. Respondent MPCB has filed affidavit and

submitted that consent to establish was granted

strictly in terms of GR dated 13.7.2009, wherein

expansion/ modification /product mix change at

existing industry in the restricted zone/area, is also

allowed subject to condition that there is reduction in

pollution load. It is case of MPCB that the proposed co-

generation power plant will replace multiple number of

small boilers, which are presently in operation at the

industry. Such small scale boilers have low efficiency

and higher emission rates and, therefore, installation of

co-generation power plant of large capacity in lieu of

several small boilers will definitely result in reduction

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in pollution and also advance air pollution equipments

like electrostatic precipitator, scrubber etc. can be

provided with effective monitoring system.

6. The Respondent –Industry has filed several

affidavits and main limb of its argument is that one of

the Applicant himself is the shareholder of the Industry

and so also, was a member of previous Board of

Directors. The Applicants have filed this Application

with ulterior motive and have not approached the

Tribunal with clean hands. The Applicants have made

several complaints to various authorities and have now

approached the NGT (WZ) Bench, in order to stall the

project which will result into unfair adverse in the

impact on production capacity of the Industry besides

large losses to the shareholder-farmers.

7. Before going into merits of the Application, we

would like to deal with the prayers made in the

Application. It is noted that prayer ‘A’ which is related

to resolution passed in EGM of Respondent No.1

Industry dated 29.5.2012, is clearly outside the domain

of NGT, as prescribed in schedule annexed with the

NGT Act. Further it is observed that consent to

establish for a particular co-generation power plant

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was granted by MPCB on 15.1.2013. Consent to

establish is a factual permission granted by the MPCB,

under provisions of the Water and Air Acts to establish

a particular plant/process/activity along with setting

out the emission norms with particular pollution

control system. Consent to operate is generally issued

after verifying that the industry has provided necessary

pollution control systems, which are capable of meeting

the prescribed norms and standards. In other words,

consent to establish authorizes the industry to go

ahead with installation of such plant and consent to

operate allows the industry to operate the plant.

Considering provisions of the NGT Act, such consent to

establish is required to be challenged before the

Appellate Authority, constituted under provisions of the

Water and Air Acts and decision of such authority can

be challenged before the NGT. In other words, second

Appeal to such consent to establish lies with the NGT.

However, without going into such technicalities for

considering said prayer, which clearly falls within

Section 16 of the NGT Act, 2010, the limitation

available under Section 16 is very specific and is

reproduced as under:

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Section 16 :

“16. Tribunal to have appellate jurisdiction.—any person aggrieved by,-

(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under Section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977);

(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under Section 2 of the Forest (Conservation) Act, 1980 (69 of 1980);

(f) an order or decision, made, on or after the commencement of the National Green Tribunal

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Act, 2010, by the Appellate Authority under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);

(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under Section 5 of the Environment (Protection) Act, 1986 (29 of 1986);

(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);

(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986);

(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act,2002 (18 of 2003);

may, within a period of thirty days from the date of which the order of decision or direction or determination is communicated to him prefer an appeal to the Tribunal:

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days.

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8. The legal proposition related to ‘limitation’ under

Section 16 of the NGT Act, 2010, has been set out

elaborately through several Judgments of Hon’ble

Principal Bench, NGT, as well as this Bench, including

viz (1) Save Mon Region Federation vs Union of

India & Ors (M.A No. 104 of 2012 arising out of

Appeal No.39 of 2012) as well as (2) Medha Patkar vs

MoEF & Ors Ors (Appeal No.1 of 2013). Consent to

establish is granted on 13.1.2013 and the Application

is filed on 25.11.2013. The Applicants have neither

applied for condonation of delay nor have pleaded on

the date of communication of this C to E order.

Needless to say, the prayer ‘B’ which is essentially for

quashing the permission to establish the plant dated

15.1.2013, is covered under Section 16, which provides

for such Appellate jurisdiction of the NGT and,

therefore, such prayer is not within period prescribed

under the NGT Act, 2010, as it is filed much beyond

period of thirty (30) days from the date of

communication of order.

9. Coming to prayer ‘C’, which is related to consent

to operate, granted to the Respondent No.1- Industry

on 13.9.2013, this consent prescribes operational

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standards and essentially deals with performance of

pollution control systems. The main contention of the

Applicants is that consent to establish/operate has

been granted in violation of G.R dated 13.7.2009,

commonly known as RRZ policy. Without going into

merits of this issue, we may take note of the fact that in

the intervening period, this GR has been

revoked/cancelled by the Government of Maharashtra

vide Notification dated 3rd February, 2015 and,

therefore, this contention is no more valid as far as

challenge to consent to establish/operate. We,

therefore, are of the considered opinion that there

survives nothing in the Application and accordingly,

the Application as well as all the Misc. Applications are

required to be disposed of.

10. However, considering sustainable development

based on the ‘Precautionary Principle’ as referred in

Section 20 of the NGT Act, 2010, and particularly, with

regard to proximity of the Industry to river ’Nira’, we

feel it proper to direct the Member Secretary, MPCB to

take a comprehensive review of pollution control

systems at the Respondent No.1- Industry in four (4)

weeks and in case of any deficiency/non-compliance,

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he shall issue necessary directions for compliance/

improvement by the industry which shall be completed

in next six (6) months. The MPCB is at liberty to take

any further action as per Law in case of non-

compliance.

11. The Application along with associated Misc.

Applications are disposed of. No costs.

..……………………………………………, JM (Justice V. R. Kingaonkar)

….…………………………………………, EM (Dr.Ajay A. Deshpande)

DATE: SEPTEMBER 3rd, 2015. PUNE. HKK

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