Gujarat High Court
Latigres Vitrified Pvt. Ltd vs State Of Gujarat on 8 January, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2664 of 2020
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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With
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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With
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C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
undefined
With
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C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
undefined
With
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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With
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FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
=============================================
Approved for Reporting Yes No
✔
=============================================
LATIGRES VITRIFIED PVT. LTD.
Versus
STATE OF GUJARAT & ORS.
=============================================
Appearance:
MR P B KHAMBHOLJA(5730) for the Petitioner(s) No. 1
CHINTAN H DAVE(7193) for the Respondent(s) No. 3
DELETED for the Respondent(s) No. 2,4,5
NOTICE SERVED BY DS for the Respondent(s) No. 1
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 08/01/2025
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
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1. Heard Mr. Kamal Trivedi, learned Senior Advocate with
Ms Manisha Lavkumar, learned Senior Advocate with Mr. Chintan
Dave appearing for the Gujarat Pollution Control Board, Mr. Kamal
Trivedi with Mr. Vinay Bairagra, learned Assistant Government
Pleader for the Respondent State and Mr. Mihir Joshi, learned Senior
Counsel with Mr.Shalin Mehta, learned Senior Counsel assisted by
Mr.P. B. Khambhoja, learned advocate and Mr. K. K. Sharma, learned
advocate for the respective parties.
2. This group of writ petitions have been filed praying for
the reliefs as under:-
“(A) Allow this petition;
(B) issue appropriate writ, order or direction and be pleased to
quash and set aside the Notice dated 11.09.2019 as well as
subsequent notice dated 11.12.2019 which are issued by
Gujarat Pollution Control Board to make a payment towards
the interim compensation and be pleased to hold that the said
notice dated 11.09.2019 as well as subsequent notice dated
11.12.2019 are issued in breach of Violation of Principles of
Natural Justice as the said Notice is issued relying on the
report dated 16.04.2019 prepared by the Committee
comprising of GPCB, CPCB and NEERI as per the direction
issued in Order passed by Hon’ble NGT dated 06.03.2019
which was never served upon the present petitioner and the
other grounds mentioned in the petition.
(C) By way of interim relief be pleased to stay the further
course of proceedings to be initiated on the basis of the
impugned notice dated 11.09.2019 as well as subsequent
notice dated 11.12.2019 and direct the concerned authorities
to not to take any coercive actions against the petitioner unit
for its operation on the basis of impugned notice.
(D) Pass such orders as thought fit in the interest of justice.”
3. The facts leading to the filing of the present set of writ
petitions have been noted by this Court in the interim order dated
06.08.2021, which is relevant to be extracted hereinunder:-
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”
4. The facts, giving rise to this writ application, may be summarized as
under;
4.1 This litigation relates to the pollution being caused in the Morbi
town of Gujarat on account of the operation of the Ceramic, Silicate and
Freight Industries. The issue came up before the National Green Tribunal
by way of the Original Application No.21 of 2015 (WZ) filed before the
Western Zone Bench at Pune. The main prayer in the said application was
to close the coal based gasifiers used by the various industrial units in
and around the town of Morbi and ensure that the said industries follow
the terms of “Consent of Consolidated Authorization” (CCA) by the Gujarat
State Pollution Control Board (GSPCB) and the directions issued by the
Central Pollution Control Board (CPCB) vide letter dated 21.06.2014.
4.2 It appears from the materials on record that the Tribunal dealt with
the matter vide order dated 08.09.2015. The Tribunal took cognizance of
the judgment and order passed by this High Court dated 23.06.2014 in a
group of writ applications being the Writ Petition (PIL) No.165 of 2013,
directing the industries to follow the new norms laid down by the CPCB.
The order passed by this Court was affirmed by the Supreme Court vide
orders dated 22.07.2014 and 14.02.2015 respectively. The Tribunal
considered the grievance that in spite of the order passed by this Court
and the Supreme Court, the pollution continued unabated. It was pointed
out that only the LNG or CNG should be permitted to be used as fuel
instead of coal gasifiers.
4.3 In the aforesaid context, at this stage, we may give some idea
about the Special Civil Application No.6756 of 2019 that came to be filed
before this Court by a Company engaged in the manufacturing of Coal
Gasifiers Hot Air Generator & Waste Recycling Plant. In the said writ
application, the following reliefs were prayed;
“(A) That Your Lordships may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction thereby
directing the Gujarat Pollution Control Board, the 2 nd respondent
herein to decide the Petitioner’s representation dated 30 th July, 2018
(Annexure-D to the petition) for final permission for long term
utilization of Type-D Gasifier technology developed by the
Petitioner.
(B) That Your Lordships may be pleased to issue a Writ of
Mandamus or any other appropriate writ, direction or order, thereby
directing the GPCB and/or CPCB i.e. Respondent Nos.2 and 3
respectively, to examine and evaluate the modified technology of
Type-D gasifier developed by the Petitioner, and grant approval for
use/utilization of such gasifier if they were found to be in order and
viable.
(C ) Pending hearing and final disposal of the present petition,
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Your Lordships may be pleased to restrain the Respondents, their
servant and agents from taking any action including action of
closure against the manufacturing units operating with the help of
Type-D coal gasifier sold and supplied by the Petitioner.
(D) Pending hearing and final disposal of the present petition,
Your Lordships may be pleased to restrain the Respondents, their
servants and agents from taking any action, including action of
closure against any manufacturing units purchasing and installing
Type-D gasifiers newly developed by the Petitioner.
(E) An ex-parte ad-interim relief in terms of para 27(C) and (D)
above may kindly be granted.
(F) Any other further relief that may be deemed fit in the facts
and circumstances of the case may also pleased be granted.”
4.4 Along with the aforesaid writ application, one another writ
application being Special Civil Application No.6757 of 2019 was preferred
by the manufacturer of Ceramic Products, i.e, the writ applicants herein.
The following relief were prayed for;
“(A) That Your Lordships may be pleased to issue a writ of
Mandamus or a writ of Certiorari or any other appropriate writ,
order or direction thereby quashing and setting aside closure orders
issued by the GPCB directing closure of the Petitioners’ units (i.e.
Annexure-“N”, “O” and “P” to the petition) with all consequential
reliefs and benefits;
(B) That Your Lordships may be pleased to issue a writ of
Mandamus or any other appropriate writ, direction or order,
directing the Gujarat Pollution Control Board, the 2 nd Respondent
herein to consider and decide applications for consent (CTE) and
permission to continue manufacturing activities (CCA) filed by the
Petitioners;
(C ) Your Lordships may be pleased to issue a writ of Mandamus
or any other appropriate writ, direction or order, directing the
Gujarat Pollution Control Board the 2nd Respondent herein, to
examine, check, evaluate and report about modified Type-D gasifier
being used by the Petitioners in their manufacturing units, and to
grant consent and approval for using such modified Type-D coal
gasifier in the Petitioners’ unit if they were fond to be in order in all
respect;
(D) Pending hearing and final disposal of the present petition,
Your Lordships may be pleased to stay for the Petitioners herein the
further implementation and execution of closure orders
(Annexure-“N”, “O” and “P” to the petition) and be further pleased
to direct the Gujarat Pollution Control Board (2 nd Respondent herein)
to issue consent (CTE) and CCA in favour of the Petitioners herein
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thereby allowing the Petitioners to continue their normal
manufacturing activities in their factories shown at the closure title
of this Writ Petition.
(E) Pending hearing and final disposal of the present petition,
Your Lordships may be pleased to direct the Gujarat Pollution
Control Board to examine, check and evaluate the modified Type-D
gasifier technology being used by the Petitioners in their units, and
submit its report before this Hon’ble Court forthwith.
(F) An ex-parte ad-interim relief in terms of para 31(D) and (E)
above may kindly be granted.
(G) Any other further relief that may be deemed fit in the facts
and circumstances of the case may also please be granted.”
4.5 A third writ application being the Special Civil Application No.6774
of 2019 was also preferred by the manufacturer of Ceramic Products with
the following prayers;
“(A) That Your Lordships may be pleased to issue a writ of
Mandamus or a Writ of Certiorari or any other appropriate writ,
order or direction thereby quashing and setting aside closure
orders issued by the GPCB directing closure of the Petitioners’ units
(i.e. Annexure-“F”, “G” and “H” to the petition) with all
consequential reliefs and benefits;
(B) That Your Lordships may be pleased to issue a Writ of
Mandamus or any other appropriate writ, direction or order,
directing the Gujarat Pollution Control Board the 2 nd Respondent
herein to consider and decide applications for consent and
permission to continue manufacturing activities filed by the
petitioners;
(C ) Your Lordships may be pleased to issue a Writ of Mandamus
or any other appropriate writ, direction or order, directing the
Gujarat Pollution Control Board, the 2nd Respondent herein, to
examine, check, evaluate and report about modified Type-D
gasifiers being used by the Petitioners in their manufacturing units,
and to grant consent and approval for using such modified Type-D
coal gasifier in the Petitioners’ units if they were fond to be in order
in all respect;
(D) Pending hearing and final disposal of the present petition,
Your Lordships may be pleased to stay further implementation and
execution of closure orders (Annexure-“F”, “G” and “H” to the
petition) and be further pleased to direct the Gujarat Pollution
Control Board (2nd Respondent herein) to issue consent and CCA
certificates in favour of the Petitioners herein thereby allowing the
Petitioners to continue their normal manufacturing activities in their
factories shown on the cause title of this Writ Petition.
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(E) Pending hearing and final disposal of the present petition,
Your Lordships may be pleased to direct Gujarat Pollution Control
Board to examine, check and evaluate the modified Type-D gasifier
technology being used by the Petitioners in their units, and submit
its report before this Hon’ble Court forthwith;
(F) An ex-parte ad-interim relief in terms of para 23(D) and (E)
above may kindly be granted;
(G) Any other further relief that may be deemed fit in the facts
and circumstances of the case may also please be granted.”
4.6 The final analysis undertaken by this Court of all the above referred
writ applications reads thus;
“16 Thus, the experts have made themselves abundantly clear
that the use of coal gasifiers of any type should be discontinued at
any cost. The experts have also made themselves very clear that
the Ceramic Industries should switchover to a cleaner technology
and should opt for natural gas, i.e., the PNG. In the report, it has
been clearly stated that the natural gas grid/pipelines are already
laid and made functional in the area and most of the Ceramic
Industries have opted for gas connections. If that be so, then why
an exception should be carved out for the writ applicants of the
Special Civil Applications Nos.6757 of 2019 and 6774 of 2019
respectively.
17. We fail to understand why are they insisting for coal gasifiers
may be with an advanced technology. We take judicial notice of the
fact that Morbi and the surrounding area was a hell sometime back,
and the Ceramic Industries, using the coal gasifiers, are solely
responsible for creating this hell. As days were passing by, situation
was getting more and more worst. The situation was so grim that
the issue had to be taken up with the National Green Tribunal and it
is only after the intervention of the National Green Tribunal and
passing of various orders, that steps came to be taken by the GPCB
to restrain the Ceramic Industries from using the coal gasifiers. The
coal gasifier of any type, be it with a better technology, is not at all
advisable. It will lead to further problems. With great difficulty and
with lot of efforts, the situation has been brought in control. Even,
as on date, the air quality is very poor. The menace of coal
gasifiers have not only created air pollution but has also
contaminated the soil to such an extent that the underground water
has also become contaminated.
18. The writ applicants are talking about unemployment etc.
They have no right to say a word in this regard. The report
indicates that the workers, hailing from poor strata of society, were
found to be working in extremely bad conditions. The workers werePage 26 of 51
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being exposed to most unhygienic conditions. Even if there is
unemployment on account of the closure of the Ceramic Industries,
using coal gasifiers, the same can be approved because to ask the
workers to die working in such unhygienic conditions would be still
worst.
19. The workers are exposed to such an environment that within
a short time they would die of silicosis.
20 We find this litigation, more particularly, the Special Civil
Application No.6756 of 2019 very unique. For the first time, we
have come across a case, in which, a private company, engaged in
the manufacturing of coal gasifier, is asking a Writ Court boasting
about its fine technology to issue a writ of mandamus to the GPCB
to look into the technology of the Company and then take a decision
whether to permit the installation of the same in the Ceramic
Industries. What is the Company trying to convey?. Is the
Company trying to advertise its technology by seeking a writ of
mandamus?. Is the GPCB and other statutory authorities duty
bound to look into the technology of the Company, more
particularly, when the same has been looked into by the committee
of experts and the NGT, as noted above. The situation, as on date,
is that at any cost, the coal gasifiers cannot be permitted to be used
in the Ceramic Industries. The coal gasifier, of which, the company
is talking about, also has its own shortcomings. When 60 to 70
percent of the Ceramic Industries have switched over to natural
gas by taking connections from the Gujarat Gas Company, then why
the writ applicants in the present case are still insisting for the coal
gasifier. They are only interested in their own profits. They are
insisting for coal gasifier because they may not be able to bear the
expense of natural gas. This hardly can be a ground for issue of any
writ of mandamus to the GPCB to look into the technology and take
an appropriate decision whether the same would serve the purpose
or not.”
4.7 It appears that the Tribunal constituted an Expert Committee
comprising representatives of the CPCB, GPCB and Head of Department
(HOD), Environmental Engineering Department of M.S. University, Baroda
respectively to evolve the parameters for coal gasifier which could meet
with the standards and directed that the matter be dealt with by the GPCB
in the light of such report.
4.8 The Tribunal, on conclusion of the adjudication, disposed of all the
applications as under;
“21. in view of the above, it is clear that, coal gasifiers are no
longer viable. Inspection by GPCB shows high level of air pollution
which is dangerous for health and environment. “Sustainable
Development’ and Precautionary principles are to be upheld.
22. Purpose of economic development in any region is to provide
opportunities for improved living by removing poverty andPage 27 of 51
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unemployment. While industrial development invariably creates
more jobs in any region, such development has to be sustainable
and compliant with the norms of environment. In absence of this
awakening or tendency for monitoring industrialization has led to
environmental degradation on account of industrial pollution. It is
imperative to ensure that steps are taken to check such pollution to
uphold statutory norms. Adequate and effective pollution control
methods are necessary.
23. We may also note that as per data complied by the CPCB
Morbi- Wankaner is one of the polluted industrial clusters. Vide
order dated 13.12.2018 in Original Application No.1038/2018, this
Tribunal considered the subject matter of critically polluted
industrial clusters and directed preparation of action plans by the
respective States for remedying the sutuation.
24. Even though, this area is polluted but not ‘critically polluted’,
the same may not be covered by the said order, but the fact
remains that there is high amount of pollution as shown by the
latest report of the GPCB quoted above in para no.13. PM10 is equal
to 552.66 and PM2/5 is equal to 289.61. Stringent measures are,
thus, required in the interest of protection of environment and
public health.
25. Accordingly, we allow the applications and direct the GPCB to
close all coal gasifiers industries and units operating with the help
of coal gasifiers without prejudice to such units switching over to
non-coal gasifiers or PNG or technology consistent with the above
report. The GPCB must initiate immediate steps for prosecution of
the industries which have operated in violation of law and recover
compensation for causing damage to the environment and public
health. This amount may be assessed by a Committee with
representatives of CPCB, GPCB and NEERI. The CPCB will be the
nodal agency coordination and compliance. The committee may
suggest restoration plan.
26. The Committee may give its report within one month by e-
mail at [email protected].
27. The Committee may take into account the cost of reversing
the damage caused and also the amount to be recovered which will
operate as deterrent and render any polluting activity non-
profitable.
28. To oversee the execution of this order by the GPCB, we
appoint an Oversight Committee headed by Justice B.C. Patel,
former Chief Justice of Delhi High Court and former Judge of Gujarat
High Court who is already heading an Oversight Committee
constituted by this Tribunal vide order dated 16.01.2019 in
O.A.606/2018. He will also be assisted by a representative of CPCB.
The GPCB will provide all logistics to Justice Patel. Any personPage 28 of 51
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concerned with execution of this order will be at liberty to represent
to the said Oversight Committee.
29. Learned counsel for the GPCB states that expenses incurred
by the NEERI will be paid as per direction of this Tribunal within one
month from today.
30. Industries have filed applications which have no merit and
are not maintainable under Section 14 and 15 of the National
Green Tribunal Act, 2010. Same is the position with regard to the
applications of the manufacturers.
All the applications stand disposed of accordingly.”
4.9 Thus, to put it in short, the Tribunal issued the following directions;
“a) Directed GPCB to shut down coal gasifier & switch over to
PNG
b) GPCB must initiate immediate steps for prosecution of the
industries which have operated in violation of law and recover
compensation for causing damage to the environment and public
health.
c) This amount may be assessed by a Committee with
representatives of CPCB, GPCB and NEERI.
d) The CPCB will be the nodal agency for coordination and
compliance. The Committee may suggest restoration plan.”
5. Ms. Manisha Luvkumar Shah, the learned senior counsel appearing
for the GPCB brought to our notice the following actions taken for the
immediate implementation of the directions issued by the Tribunal;
“a) Directions issued to Morbi Ceramic Assosications (Morbi-
Dhuva Glaze Tiles Association / Gujarat Granito Manufacturer
Association / Gujarat Floor Tiles Manufacturer Association) to
intimate their member units to close down coal gasifier & Switch
over to PNG (Date 09.03.2019)
b) The board has issued Direction to all ceramic units to switch
over to PNG (Date 11.03.2019)
c) Public notice was issued in Three vernacular daily news
papers / (namely Sandesh, Divya Bhashkar, Akila) for
implementation of Hon. NGT order on 12.03.2019
d) Natural Gas Consumption increased to 5.0 MMSCMD from 2.0
MMSCMD (Source: Gujarat Gas Ltd.)
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All the ceramic units having coal gasifier, closed down coal gasifier
& switch over to PNG which was already available to them.
e) Hon. B.C. Patel, Former Chief Justice Delhi High Court visited
Morbi area on 30.03.2019-31/03/2019 for the assessment of
implementation of Hon. NGT order.”
Committee Report (Date 16.04.2019)
The Committee of CPCB, GPCB & NEERI, constituted by the NGT
visited the area & submitted its report. The report mainly
recommends.
a) Short terms measures for remediation of contaminated sites.
b) GPCB to Recover interim Environment Damage
compensation.
c) Long term measures-committee will coordinate study through
expert agency like NEERI, IIPH, AMPRI.
Committee Remarks & Recommendations:
Since there is a need of immediate action for site remediation for
short terms plan, all industries in Morbi region, having ever installed
coal gasifier should be instructed to deposit a interim environmental
compensation based on para 6 of order of Hon’ble NGT Dt. February
19, 2019 in OA No.593/2017 (WP Civil No.375/2012, Paryavaran
Suraksha Samiti & Anr vs. Union of India & Ors.) i.e., environmental
compensation of Rs.5000/- per day (para 6, page no.6) for operation
of one gasifier, which would come to Rs.18,25,000/- per year, for
number of year the gasifier is in possession.
Recommendations: (7.0)
Wastes accumulated in the gasifier premises and wastewater in the
abandoned mines and natural depressions should be pumped out
and sent to appropriate CHW-TSDF for final treatment & disposal.
Once the wastewater is pumped out, the soil/sludge should be
dredged/ scrapped and disposed in the CHW-TSDF.
Since this waste disposal cannot be attributed to particular
responsible unit(s), it should be a collective responsibility of all
ceramic industries having gasifier units of the area.
It is proposed to recover compensation of Rs.5000/- per day on
interim basis for operation of one gasifier, which would come to
Rs.18,25,000/- per year, for number of year the gasifier is in
possession / operation. GPCB should recover the interim
compensation from all units having gasifier(s) as above based on
information available with them about gasifiers.”
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6. It is brought to our notice that the directions came to be issued by
the GPCB to the Morbi Ceramic Associations for the compliance of
remediation. The Ceramic Units came to be directed to pay the interim
environment damage compensation in accordance with the Committee
Report within a period of 30 days from 11.09.2019. The Ceramic Units
represented before the GPCB that they all are operating with the consent
of the Board. It was submitted that none of the writ applicants herein
were heard by the Committee nor the report was provided to them.
7. In such circumstances, referred to above, the writ applicants came
before this Court with the present writ applications.
8. A Coordinate Bench of this Court passed the following order dated
30 January, 2020;
th
“Mr. P.B. Khambholja, learned advocate for the petitioner, seeks
permission to delete the respondents No.2, 4 and 5 from the array
of the respondents since no relief has been claimed against the said
respondents.
Permission as prayed for is granted. The respondents No.2, 4 and 5
stand deleted from the array of the respondents.
Heard Mr. Mihir H. Joshi, Senior Advocate, learned counsel and Mr.
Shalin N. Mehta, Senior Advocate, learned counsel with Mr. P.B.
Khambholja, learned advocate for the petitioner.
It has been inter alia submitted that the impugned notices/orders
have been issued by the Gujarat Pollution Control Board in violation
of the principles of natural justice.
Issue notice, returnable on 17.02.2020.
By way of ad-interim relief, the respondents are directed not to take
any coercive steps pursuant to the impugned legal notices/orders.
Direct service, is permitted. ”
9. We have heard Mr. Mihir Joshi, the learned senior counsel assisted
by Mr. P.B. Khambolja, the learned advocate appearing for the writ
applicants and Ms. Manisha Luvkumar Shah, the learned senior counsel
assisted by Ms. Aishwarya Gupta, the learned counsel appearing for the
GPCB.
10. Mr. Joshi would submit that his clients have practically no idea on
what basis the interim environment damage compensation (EDC) has
been determined. He would submit that his clients were not given any
opportunity by the Committee to make good their case. In such
circumstances, it is too much for the Board to recover the interim
environment damage compensation on the strength of the directions
issued by the National Green Tribunal. Mr. Joshi would submit that the
Tribunal has directed that the damages shall be recovered only from thosePage 31 of 51
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units who are found violating the pollution laws. The assessment of
damage can only be unit wise in accordance with the order passed by the
National Green Tribunal and one composite order encompassing all the
units would create lot of difficulties. In the last, Mr. Joshi would submit
that the final report, determining the final compensation, is yet to come
on record and, in such circumstances, his clients may not be asked to
deposit the interim environment damage compensation.
11. On the other hand, Ms. Shah would submit that the Committee has
identified three institutes for the specific subject related studies. The
three institutes are as under;
“1) NEERI to identify damage caused to environment.
2) Indian Institute of Public Health- to examine and assess the
impact or human health.
3) AMPRI- Bhopal to identify utilization of ceramic waste.”
12. Ms. Shah pointed out that the terms of reference for the study have
been prepared. The GPCB, in principle, has agreed to bear the cost of the
studies. The CPCB is the nodal agency for this purpose. Ms. Shah pointed
out that approximately six to nine months would be consumed for the
above referred three agencies to carry out a detailed study and
recommend measures to be undertaken for the remedial action.
13. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls
for our consideration is whether we should ask the writ applicants to
deposit the requisite amount as stipulated in the notice issued to each of
the writ applicants towards the interim environment damage
compensation in accordance with the report of the Committee.
14. In the case on hand, the notice issued by the GPCB reads thus;
“Directions under Water (Prevention & Control of Pollution) Act–
1974 (Herein after referred to as The “Water Act“) & Air (Prevention
& Control of Pollution) Act– 1981 (Herein after referred to as “The
Air Act“) for implementation of order of Hon. National Green
Tribunal dated 06.03.2019 in OA 20/2017 & 42/2017 &
Recommendation of the committee constituted by Hon. NGT in this
regard.
1. WHEREAS, you, M/s. Latigres Vitrifled Pvt. Ltd. are having an
industrial plant / ceramic unit at SR No.-135/1 & 136-8A NH AT-
JAMBUDIYA TA-MORBI DIST-MORBI, MOR-Jambudia District: Morbi
and
2. WHEREAS, Gujarat Pollution Control Board (GPCB) has
granted you Consent for the manufacture of products mentioned in
the Consolidated Consent and Authorization issued to you at the
aforesaid location from timeto time and
3. WHEREAS , Your unit was having Coal Gasifier, Plant at
aforesaid location, and
4. WHEREAS, it has been reported in inspection report(s) of the
Board that your unit is having coal gasifier plant and/or Your unitPage 32 of 51
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has obtained Consent to Establish (NOC) for Coal Gasifier Plant and
5. WHEREAS, An application was filed before the Hon’ble
National Green Tribunal (O.A. 20/2017 & 42/2017) regarding the
pollution caused by ceramic industries in Morbi- Wankaner area,
due to use of Coal Gasifiers; and
6. WHEREAS, Hon’ble National Green Tribunal, New Delhi has
given order on 06.09.2019 in this matter; and
7. WHEREAS, Hon’ble NGT has directed GPCB to implement the
order & issued following directions in Para-25 of the order;
“Accordingly, we allow the applications and direct the GPCB
to close all coal gasifiers industries and units operating with
the help of coal gasifiers without prejudice to such units
switching over to non-coal gasifiers or PNG or technology
consistent with the above report. The GPCB must initiate
immediate steps for prosecution of the industries which have
operated in violation of law and recover compensation for
causing damage to the environment and public health. This
amount may be assessed by a Committee with
representatives of CPCB, GPCB and NEERI. The CPCB will be
the nodal agency coordination and compliance. The
committee may suggest restoration plan.”
8. Whereas, the committee consisting of representatives of the
CPCB, GPCB & NEERI has submitted a report title “REPORT OF
COMMITTEE ON MATTER OF ENVIRONMENTAL DAMAGE
COMPENSATION & ENVIRONMENTAL RESTORATION OF MORBI
REGION” in April 2019 to Hon. NGT”
9. Whereas, the said report is already conveyed to Morbi
Ceramics Associations vide our letter
no.GPCB/LGL/NGT/MORBI/36(5)/513346 dated 11.07.2019; and
10. Whereas, Committee has recommended in Para 7 (2) for
interim Environment Damage Compensation (EDC) as under;
“It is proposed to recover compensation of Rs.5000/- per day on
interim basis for operation of one gasifier, which would come to
Rs.18,25,000/- per year, for number of year the gasifier is in
possession/operation GPCB should recover the interim
compensation from all units having gasifier(s) as above based on
information available with them about gasifiers.”
11. Whereas, considering the records of GPCB & Information
available with the GPCB, Your unit is having possession of coal
gasifier & details are as under;
A No. of Coal Gasifier Plant 01 (One)
B Duration of possession of coal 2.84 Year (s)
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gasifier
C EDC (Interim) should be levied Rs.18,25,000/-
as per NGT Committee report Rupees Eighteen Lakh Twenty
Five Thousand per year.
Total EDC (Interim) to be levied (Rs.) 01* 2.84 * 18,25,000
(A*B*C)
Total Amount (Rs.) 5180000
Total Amount in Words: Fifty One Lakh Eighty Thousand Rupees.
12. Considering above, for the effective representation of the
order of the Hon. NGT & Recommendation of the Committee, You
are hereby directed :
I) To submit interim Compensation of Rs.5180000 within 30
days.
ii) This amount shall be deposited in GPCB’s Account (Account
Detail is enclosed as Annexure-A)If you fail to comply directions, further stringent actions will be
taken by the Board without any opportunity of being heard
including prosecution under section 41(2) Water (Prevention and
Control of Pollution) Act-1974 & Section 37 of the Air (Prevention
and Control of Pollution) Act-1981 which includes punishment with
imprisonment for a term not less than one year and six months and
may extend to six years with fine.
For and on behalf of
GUJARAT POLLUTION CONTROL BOARD
Sd/-
(D.M. Thaker)
Environmental Engineer.”
15. Similar notices, as referred to above, have been issued to all the
other writ applicants, of course, the amount would vary.
16. As noted above, we are dealing with a very serious issue of
pollution caused by the Ceramic Industries at Morbi. Morbi-Wankaner
ceramic cluster is located about 235 km South-West of Ahmedabad and 65
km North of Rajkot, spread in a 35 km belt in the Morbi District along the
National Highway No. 8A. The production of ceramic tiles accounts for
nearly 80% of the country’s total output. Most of the ceramic industries in
the area were issued the Consolidated Consents & Authorization (CCA)
with the condition of using PNG/LNG as the fuel. With the increase in the
PNG/LNG prices,. the industries switched over to coal gasifier of very poor
technology of gas cleaning without the prior permission from the Gujarat
Pollution Control Board (GPCB), which led to major water, air and land
pollution problems. The Gasifier operators started illegally disposing off
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the wastewater and coal tar, which has contaminated the land and water
environment extensively in the Morbi-Wakaner Industrial area. The Air
pollutant emission from the spray drier units and combustion of coal tar
has drastically polluted the overall environment of Morbi. The burning
issues led to filing of various complaints regarding the pollution in the city
of Morbi & other parts on the outskirts.
17. In response to the complaints, the officials of the Central pollution
Control Board visited few ceramic industries in the month of July 2017.
Based on the report, the Central Pollution Control Board (CPCB) in its
direction U/s. 18(1)(b) of the Water (Prevention & Control of Pollution) Act,
1974, and the Air (Prevention and Control of Pollution) Act, 1981 dated
August 23, 2012, instructed the GPCB to close down all the industries
using coal based gasifier without any prior consent, and to ensure that the
coal gasifiers are dismantled.
18. A Writ Petition (PIL) No.165 of 2013 came to be filed in this High
Court in July, 2013 by one Shri Babubhai Ramubhai Saini regarding the
acute problems of pollution caused by the Ceramic & Silicate Industries in
and around the town of Morbi. The petition, in the nature of public
interest, was preferred seeking a writ of mandamus to the GPCB to
enforce the directions and recommendations of the CPCB. This High
Court, in its order dated 25 th October, 2013, directed the GPCB to
implement, at the earliest, the recommendations of the CPCB inspection
report (2012) and also the directions issued by the CPCB under Section
18(1)(b) of the Water Act, 1974 dated 23 rd August, 2012. It appears from
the materials on record that in compliance of the directions dated 23 rd
August, 2012, the GPCB requested the CPCB to allow trial run for five
different types of modified coal gasifier technologies. An Expert
Committee was constituted by the Forest & Environment Department,
Government of Gujarat to evaluate the modified coal gasifier technologies
theoretically and practically. The Committee prepared a report titled
“Report on coal based gasifier for theoretical and practical evaluation of
technology proposals for Zero Percentage Pollution Discharge”. Based on
the said report and also upon the request of the GPCB, the CPCB issued
modified directions dated 21st June, 2014. In view of the modified
directions issued by the CPCB, this High Court disposed of the matter vide
order dated 23rd June, 2014, directing the Ceramic Industries to follow the
new guidelines/norms.
19. In the aforesaid context, we may refer to and rely upon the decision
of the Supreme Court in the case of Indian Council for Enviro-Legal
Action vs. Union of India, reported in (1996) 3 SCC 212. This judgment
of the Supreme Court is on the principle “polluter pays”. We quote the
relevant observations;
“The question of liability of the respondents to defray the costs of
remedial measures can also be looked into from another angle,
which has now come to be accepted universally as a sound
principle, viz., the “Polluter Pays” Principle.
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[Historic Pollution – Does the Polluter Pay?”
By Carolyn Shelbourn-Journal of Planning and Environmental Law,
Aug.1974 issue.]
“The polluter pays principle demands that the financial costs of
preventing or remedying damage caused by pollution should lie
with the undertakings which cause the pollution, or produce the
goods which cause the pollution. Under the principle it is not the
role of government to meet the costs involved in either prevention
of such damage, or in carrying out remedial action, because the
effect of this would be to shift the financial burden of the pollution
incident to the taxpayer. The `polluter pays’ principle was promoted
by the Organization for Economic Co-operation and Development
[OECD] during the 1970s when there was great public interest in
environmental issues.
During this time there were demands on government and other
institutions to introduce policies and mechanisms for the protection
of the environment and the public from the threats posed by
pollution in a modern industrialized society. Since then there has
been considerable discussion of the nature of the polluter pays
principle, but the precise scope of the principle and its implications
for those involved in past, or potentially polluting activities have
never been satisfactory agreed.
Despite the difficulties inherent in defining the principle, the
European Community accepted it as a fundamental part of its
strategy on environmental matters, and it has been one of the
underlying principles of the four Community Action Programmes on
the Environment. The current Fourth Action Programme ([1987]
O.J.C328/1) makes it clear that `the cost of preventing and
eliminating nuisances must in principle be borne by the polluter’,
and the polluter pays principle has now been incorporated into the
European Community Treaty as part of the new Articles on the
environment which were introduced by the Single European Act of
1986. Article 130R(2) of the Treaty states that environmental
considerations are to play a part in all the policies of the
Community, and that action is to be based on three principles: the
need for preventative action; the need for environmental damage to
be rectified at source; and that the polluter should pay.
Thus, according to this principle, the responsibility for repairing the
damage is that of the offending industry. Sections 3 and 5 empower
the Central Government to give directions and take measures for
giving effect to this principle. In all the circumstances of the case,
we think it appropriate that the task of determining the amount
required for carrying out the remedial measures, its
recovery/realisation and the task of undertaking the remedial
measures is placed upon the Central Government in the light of the
provisions of the Environment [Protection] Act, 1986. It is, of course,
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open to the Central Government to take the help and assistance of
State Government, R.P.C.B. or such other agency or authority, as
they think fit.”
20. We may also refer to a very recent pronouncement of the Supreme
Court in the case of H.P. Bus-Stand Management & Development
Authority vs. Central Empowered Committee, reported in (2021) 4
SCC 309. His Lordship Hon’ble Dr. D.Y. Chandrachud, speaking for the
Bench, has observed as under;
“53. However, even while using the framework of an
environmental rule of law, the difficulty we face is this – when
adjudicating bodies are called on to adjudicate on environmental
infractions, the precise harm that has taken place is often not
susceptible to concrete quantification. While the framework
provides valuable guidance in relation to the principles to be kept in
mind while adjudicating upon environmental disputes, it does not
provide clear pathways to determine the harm caused in
multifarious factual situations that fall for judicial consideration. The
determination of such harm requires access to scientific data which
is often times difficult to come by in individual situations.
54. In an article in the Georgetown Environmental Law Review
(2020), Arnold Kreilhuber and Angela Kariuki explain the manner in
which the environmental rule of law seeks to resolve this imbroglio
[Arnold Kreilhuber and Angela Kariuki, “Environmental Rule of Law
in the Context of Sustainable Development”, 32 Georgetown
Environmental Law Review 591 (2020)]“One of the main distinctions between environmental rule of law
and other areas of law is the need to make decisions to protect
human health and the environment in the face of uncertainty and
data gaps. Instead of being paralyzed into inaction, careful
documentation of the state of knowledge and uncertainties allows
the regulated community, stakeholders, and other institutions to
more fully understand why certain decisions were made.”
The point, therefore, is simply this – the environmental rule of law
calls on us, as judges, to marshal the knowledge emerging from the
record, limited though it may sometimes be, to respond in a stern
and decisive fashion to violations of environmental law. We cannot
be stupefied into inaction by not having access to complete details
about the manner in which an environmental law violation has
occurred or its full implications. Instead, the framework,
acknowledging the imperfect world that we inhabit, provides a
roadmap to deal with environmental law violations, an absence of
clear evidence of consequences notwithstanding.
In the case before us, it is not possible for us to determine in
quantifiable terms the exact effect of the construction of the Hotel-
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cum-Restaurant structure by the appellant and the second
respondent on the ecology of the area. Both of them have tried to
argue that the number of trees felled by them, in the case of the
present construction, is what it would have been, had they only
built a bus stand and a parking space. However, what we can record
a determination on is the way in which the appellant and second
respondent have gone about achieving this object. Specifically, the
parties have engaged in the construction without complying with
the plans drawn by the appellant’s third-party consultants, which
were agreed to by them in the RFP. The construction proceeded
even when the TCP Department tried to halt it, refusing to approve
its plans. Even the post facto refusal by the MOEF for changing the
nature of the diverted forest land was not enough to stop the
parties. Ultimately, when they were forced to halt the construction
by the CEC, they proceeded with it under the guise of an order of
this Court which permitted only legal construction. A combination of
these circumstances highlights not only conduct oblivious of the
environmental consequences of their actions, but an active disdain
for them in favour of commercial benefits. While the second
respondent was a private entity, they were actively supported in
these efforts by the appellant. Hence, it is painfully clear that their
actions stand in violation of the environmental rule of law. Whatever
else the environmental rule of law may mean, it surely means that
construction of this sort cannot receive our endorsement, no matter
what its economic benefits may be. A lack of scientific certainty is
no ground to imperil the environment.
I.2 Role of courts in ensuring environmental protection
56. In a recent decision of this Court in Bengaluru Development
Authority vs Sudhakar Hegde8, this Court, speaking through one of
us (DY Chandrachud, J.) held:
“94. The adversarial system is, by its nature, rights based. In the
quest for justice, it is not uncommon to postulate a winning side and
a losing side. In matters of the environment and development
however, there is no trade-off between the two. The protection of
the environment is an inherent component of development and
growth…
Professor Corker draws attention to the idea that the environmental
protection goes beyond lawsuits. Where the state and statutory
bodies fail in their duty to comply with the regulatory framework for
the protection of the environment, the courts, acting on actions
brought by public spirited individuals are called to invalidate such
actions…
95. The protection of the environment is premised not only on the
active role of courts, but also on robust institutional frameworks
within which every stakeholder complies with its duty to ensure
sustainable development. A framework of environmentalPage 38 of 51
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governance committed to the rule of law requires a regime which
has effective, accountable and transparent institutions. Equally
important is responsive, inclusive, participatory and representative
decision making. Environmental governance is founded on the rule
of law and emerges from the values of our Constitution. Where the
health of the environment is key to preserving the right to life as a
constitutionally recognized value under Article 21 of the
Constitution, proper structures for environmental decision making
find expression in the guarantee against arbitrary action and the
affirmative duty of fair treatment under Article 14 of the
Constitution. Sustainable development is premised not merely on
the redressal of the failure of democratic institutions in the
protection of the environment, but ensuring that such failures do
not take place.
In Lal Bahadur vs State of Uttar Pradesh, (2018) 15 SCC 407. this
Court underscored the principles that are the cornerstone of our
environmental jurisprudence, as emerging from a settled line of
precedent: the precautionary principle, the polluter pays principle
and sustainable development. This Court further noted the
importance of judicial intervention for ensuring environmental
protection. In a recent decision in State of Meghalaya & others vs All
Dimasa Students Union, (2019) 8 SCC 177), this Court reiterated the
key principles of environmental jurisprudence in India, while
awarding costs of Rs. 100 crores on the State of Meghalaya for
engaging in illegal coal mining.
The UNEP report (supra) also goes on to note [UNEP ‘Environmental
Rule of Law First Global Report” (January 2019), P. 213]“Courts and tribunals must be able to grant meaningful legal
remedies in order to resolve disputes and enforce environmental
laws. As shown in Figure 5.12, legal remedies are the actions, such
as fines, jail time, and injunctions, that courts and tribunals are
empowered to order. For environmental laws to have their desired
effect and for there to be adequate incentives for compliance with
environmental laws, the remedies must both redress the past
environmental harm and deter future harm.”
In its Global Judicial Handbook on Environmental Constitutionalism,
the UNEP has further noted[ UNEP, Global Judicial Handbook on
Environmental Constitutionalism (3rd Edn., 2019), P.7]
“Courts matter. They are essential to the rule of law. Without
courts, laws can be disregarded, executive officials left unchecked,
and people left without recourse. And the environment and the
human connection to it can suffer. Judges stand in the breach.”
The above discussion puts into perspective our decision in the
present appeals, through which we shall confirm the directions
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given by the NGT in its impugned judgment [T.N. Godavarman
Thirumulpad v. Union of Inndia, 2016 SCC Online NGT 11196]. The
role of courts and tribunals cannot be overstated in ensuring that
the ‘shield’ of the “rule of law” can be used as a facilitative
instrument in ensuring compliance with environmental regulations.
”
21. We are not impressed by the submission canvassed on behalf of the
writ applicants that they were not given any opportunity of hearing before
determining the interim environment damage compensation. As noted
above, each and every unit at Morbi is responsible for causing
environmental damage. We are informed that the State Government has
to recover around Rs.500/- Crore from the polluters to undertake the
necessary remedial measures. We are of the view that the writ applicants
are liable to pay the interim environment damage compensation. This
payment shall be subject to the final report of the three institutes referred
to above that may come on record in future. We take this opportunity to
request (i) NEERI (ii) The Indian Institute of Public Health and (iii) AMPRI to
expedite the study so that further steps can be taken in that direction.
22. We are of the view that the three institutes, referred to above, may
take some more time before the entire study is completed and an
appropriate report is filed. In such circumstances, we should direct the writ
applicants to deposit 25% of the amount stipulated in each of the notices
towards the interim environment damage compensation. The Gujarat
Pollution Control Board shall proceed to recover 25% of the amount as
stated in the individual notices issued to the writ applicants towards the
interim environment damage compensation. Let this exercise be
undertaken at the earliest.
23. This batch of writ applications shall now be notified for hearing once
the final report comes on record.”
4. We may note that at the time of admission, this
Court has refused to acknowledge the contentions of the writ
petitioners that they were not given any opportunity of hearing
before determining the interim environment damage
compensation. It was recorded that each and every unit at
Morbi is responsible for causing environment damage.
5. It was also observed that the writ petitioners are
liable to pay the interim environment damage compensation
and the payment shall be subject to the final report of the
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three institutes referred to above that may come on record in
future.
6. While saying so, the petitioners were directed to
deposit 25% of the amount stipulated in each of the notices
towards the interim environment damage compensation,
recording that the three institutes which are required to
conduct a study for computing compensation causing
environment damages would require some time to complete
the entire study. The Gujarat Pollution Control Board (GPCB)
has been directed to proceed to recover 25% of the amount as
stated in the individual notices issued to the writ applicants
towards the interim environment damage compensation.
7. It seems that the order dated 06.08.2021 passed by
this Court was subjected to challenge before the Apex Court in
Special Leave to Appeal (C ) No.(s) 16667 of 2021, wherein
vide order dated 29.10.2021, the Apex Court has refused to
interfere in the matter noticing that the Special Leave Petition
was filed against the interim order whereunder the High Court
had ordered for depositing of only 25% of the amount
stipulated in the notices. It was, however, left open for the writ
petitioners / appellants therein to raise any objection to the
notice issued before the High Court. It was further observed
that the petitioners shall be at liberty to raise objections by
way of counter affidavits before the High Court.
8. When the matter was taken up on 28.06.2024,
when the Special Civil Application No. 1808 of 2020 was listed
as leading writ petition, it was noted by us in the order dated
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20.06.2024 that three institutes namely National
Environmental Engineering Research Institute (CSIR – NEERI),
the Indian Institute of Public Health and Advanced Materials
and Processes Research Institute (AMPRI) were conducting
studies in accordance with the order dated 06.03.2019 passed
by the National Green Tribunal (NGT). It was placed before us
by the learned advocate appearing for the GPCB that the
detailed report was to be prepared after evaluation of the
preliminary report, which was to be submitted by three
organizations before the Oversight Committee headed by a
retired High Court Judge constituted by the National Green
Tribunal. Awaiting the said report, we posted the matter on
20.08.2024. Again awaiting the final report of the Oversight
Committee, we posted the matter further on 17.09.2024.
9. When the matter was taken up on 04.12.2024, it
was brought before us with the affidavit dated 03.12.2024 that
three institutes have submitted their reports to the Oversight
Committee on 02.12.2024 / 03.12.2024. In terms of the
directions contained in the order dated 06.03.2019 of the
National Green Tribunal (NGT), an executive summary of the
three reports was being prepared by the Oversight Committee,
which will be submitted to the National Green Tribunal.
10. Taking note of the above, we posted the matter
today, i.e. 08.01.2025, noticing that the Oversight Committee
is to collate reports of three experts body, which have been
entrusted to assess the damages in their expert areas and the
Oversight Committee has been constituted in terms of the
directions issued by the NGT in the order dated 06.03.2019.
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11. Today, when the matter was taken up, the
executive summary of the studies carried out by the three
experts institutes, prepared by the Oversight Committee, filed
along with the affidavit on behalf of respondent No.3, has been
placed before us.
12. A perusal of the relevant paragraphs of the affidavit
placing the said report indicates that:-
”
1. It is further submitted that the Oversight Committee as
constituted vide order dated 06.03.2019 passed by the Ld. NGT
(Supra) was pleased to consider the reports submitted by all the
three agencies viz. AMPRI (Advanced Materials and Processes
Research Institute), IIPH (Indian Institute of Public Health), NEERI
(National Environmental Engineering Research Institute). The
executive summary prepared by the Oversight Committee
attributes compensation to all the 606 industrial units identified
by the present deponent. A formula has been decided to be
adopted for computing the calculation of compensation to be
payable by each industry. The methodology adopted by the
Oversight Committee in the executive summary is based on
equitable distribution of compensation amounting to
approximately Rs. 122 Crores. The distribution is based on the
scale of the industry i.e. small scale determined by investment
being less than 5 Crores, medium scale based investment
between 5-10 Crores and large scale based on investment more
than 10 Crores. The Oversight Committee has also adopted the
scaling methodology elaborated in a formula which considers the
category of the industry, the capacity of the gasifiers, the
number of days the gasifier has been utilized in conjunction with
the class in which the industry falls. The present deponent craves
leave to further elaborate the same during the course of hearing.
Copy of the executive summary of the studies carried out by the
three expert institute (Supra) is annexed hereto and marked as
ANNEXURE – A.
The relevant abstract of executive summary of Oversight
Committee is reproduced hereunder for ready reference of
this Hon’ble Court: –
“Thus, the committee is of the opinion that such
damage compensation shall be attributed to all 606 industrial
units identified by the GPCB. It is evident that identifiedPage 43 of 51
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industries having coal gasifiers from which compensation is to
be levied are categorized as small, medium, and large-scale
industries based on their investment and therefore it
appeared to committee not just to consider them at par when
determining the levy of damage compensation. The financial
capacity, operational scale, and impact by each category of
industry may also differ significantly. To impose an equal levy
on all industries would be inequitable, as it fails to account for
these disparities. Therefore, a methodology for an equitable
distribution of compensation, tailored to the specific size,
capacity of the gasifier for which GPCB has are liable data
would help to ensure that the burden is shared fairly and
justly accordingly.
Further, in light of the absence of concrete, readily
available data/evidences on the factual number of days-hours
of operation of the gasifier(s), the actual quantity of
production taken, the actual quantity of gas consumed, the
actual quantity of coal consumed for each identified industry
for the period of the possession of the gasifier(s) by each of
the identified industry, it becomes challenging to accurately
determine the individual shares of compensation based on
precise operational metrics. Considering this limitation, it is
both fair and reasonable to consider alternative factors, such
as the capacity of the gasifier and the scale of the industry, as
a basis for determining the equitable share of the
compensation. By utilizing these factors, a more balanced and
equitable approach can be achieved while also acknowledging
the practical constraints posed by the unavailability of precise
operational data of individual industries.
In line with the recommendation in the interim report
(April 2019) of the committee; based on the scrutiny of files &
records GPCB earlier had identified 606 industrial units which
have installed coal gasifier & liable for the payment of this
interim EDC. Earlier, therefore, directiveswere issued by GPCB
for deposition of interim EDC to these industrial units. The
same set of industrial units are required to pay compensation
for this amount as calculated by concerned institutes too
based on number of days of possession/operation of the
gasifier.
Therefore, in light of above oversight committee
decided for the equitable distribution of compensation as per
the following scaling factor which is based on the range of the
coal gasifier capacity, scale of each industry and number of
year the gasifier is in possession/operation besides the factor
of number of days has been adequately addressed during
calculation of EDC by respective institutes. This is the most
rational and logical approach in such a situation.”
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2. In this regard it is submitted that based on the investment
made by the respective industries the industries are categorized
into small, medium and large scale industries. The industries
having the investment of less than or equal to 5 crores at
relevant point of time are categorized as small scale industries,
industries having investment of more than 5 crores but less than
or equal to 10 crores at relevant point of time are categorized as
medium scale industries whereas industries having investment of
more than 10 crores at relevant point of time are categorized at
large scale industries. The Oversight Committee has based on
the production of gas of each of the coal based gasifier measured
in Standard Cumic Meters(SCM) per day has further categorized
industries into small, medium and large. The industries having
capacity of less than or equal to 50,000 SCM/day are categorized
as small scale industries, industries having capacity between
50,001 to 1,00,000 SCM/day are categorized as medium scale
industries and industries having capacity of 1,00,001 or more
SCM/day are categorized as large scale industries. The Oversight
Committee has decided to apply factor ranging from 0.8 to 1.3 in
the formula for equitable division of compensation to be levied
on each of the industries. For ready reference of this Hon’ble
Court the formula for determination of compensation is
reproduced hereunder:
Compensation to Total (Factor days of the (Days of possession/
be levied from = compensation x respective group x operation of gasifier
individual industry (TC) (FDg) by the individual industry
_________________ (D)
Total Factor days of _______________________
the all group Number of days of
({FD)g possession/operation
of gasifier of
respective group
(DG)
3. The total amount towards the cost of studies and damage
assessment cost is about 122.05 crores. Hypothetically the
present deponent has calculated the compensation for one
industry viz Affil Vitrified Pvt. Ltd. i.e. mentioned at serial no. 14
in the table at internal pg. no. 37 of the report. By applying
formula, the industry falls under the large category having the
capacity of greater than 1,00,001 SCM/day. The group of such
industries have worked for 37,090 days. thereafter the factor 1.3
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is applied considering the size of the industry. Hence the factor
days of this group will be 48,217. The total factor days of all the
groups applying the respective factor comes to 9,60,828. In our
example the respective industry has used a coal gasifier for 2045
days. therefore the amount of compensation to be paid by this
particular industry will be 33,76,816. The calculation is as under:
–
1,22,04,39,562 X (48217/960828) X (2045/37090) = 33,76,816.
The statement showing the calculation of the days using the
respective factors and the details of calculation of compensation
Affil Vitrified Pvt. Ltd. is annexed hereto and marked as
ANNEXURE-B. ”
13. Mr. Kamal Trivedi, learned Advocate General
appearing on behalf of the State Respondents and GPCB would
submit that the Oversight Committee has computed the
damages, which is attributable to all 606 industrial units
identified by the GPCB. Identified industries having coal
gasifiers, from which compensation is to be levied are
categorized as small, medium and large scale industries based
on their investment so as to determine the levy of damage
compensation in a just and proper manner. The financial
capacity, operational scale, impact by each category of
industry may also differ significantly.
14. It was submitted that the Oversight Committee
found it inequitable to impose an equal levy on all industries,
ignoring these disparities. The methodology is, therefore,
adopted for an equitable distribution of compensation, tailored
to the specific size, capacity of the gasifiers, for which GPCB
has reliable data, to ensure that the burden is shared fairly and
justly amongst all.
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15. Taking note of the above, we may record the
submissions of the learned Senior Counsels appearing for the
petitioners that many of the petitioners have closed their
industries; stopped use of coal gasifiers much earlier and were
not operating their industries for a sufficient long time.
According to them, some of the petitioners had established
their industries using coal gasifiers as per the permission
granted by the GPCB and they have followed the norms laid
down by the GPCB in the permission letter. Some of the
learned counsels for the petitioners had argued that the
petitioners to whom they represent cannot be made liable to
damages and it cannot be levied from them as they cannot be
said to have violated any of the environment laws.
16. It was argued that the categorization of the
industries in three categories by the Oversight Committee is
unfair, inasmuch as, there cannot be any formula for
distribution of environment damages, inasmuch as, the
damages were required to be computed depending upon the
size of the industry, period and quantity of production. It was
sought to be argued by Mr. K. K. Sharma, learned advocate
appearing for some of the petitioners in the connected writ
petitions (seven in number) that the petitioners therein were
not using coal gasifiers at all. Even this is the case of many of
the learned advocates appearing for petitioners in the
connected writ petitions (total 550 matters in number). The
petitioners, thus, seek to dispute their liability for damage
compensation as computed by the Oversight Committee.
Essentially, the challenge is sought to be raised to the report ofPage 47 of 51
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the Oversight Committee on the premise that the Oversight
Committee was required to grant opportunity of hearing to
each of the petitioners herein and the report is in ignorance of
factual data.
17. Be that as it may, we may record that the Oversight
Committee has been constituted pursuant to the order dated
06.03.2019 of the National Green Tribunal (NGT), which reads
as under:-
“21. In view of the above, it is clear that coal gasifiers are no longer
viable. Inspection by GPCB shows high level of air pollution which is
dangerous for health and environment. ‘Sustainable Development’ and
‘Precautionary’ principles are to be upheld.
22. Purpose of economic development in any region is to provide
opportunities for improved living by removing poverty and
unemployment. While industrial development invariably creates more
jobs in any region, such development has to be sustainable and compliant
with the norms of environment. In absence of this awakening or tendency
for monitoring, industrialization has led to environmental degradation on
account of industrial pollution. It is imperative to ensure that steps are
taken to check such pollution to uphold statutory norms. Adequate and
effective pollution control methods are necessary.
23. We may also note that as per data compiled by the CPCB
MorbiWankaner is one of the polluted industrial clusters. Vide order
dated 13.12.2018 in Original Application No. 1038/2018, this Tribunal
considered the subject matter of critically polluted industrial clusters and
directed preparation of action plans by the respective States for
remedying the situation.
24. Even though, this area is polluted but not ‘critically polluted’, the
same may not be covered by the said order, but the fact remains that
there is high amount of pollution as shown by the latest report of the
GPCB quoted above in para no. 13. PM10 is equal to 552.66 and PM2.5 is
equal to 289.61. Stringent measures are, thus, required in the interest of
protection of environment and public health.
25. Accordingly, we allow the applications and direct the GPCB to close
all coal gasifiers industries and units operating with the help of coal
gasifiers without prejudice to such units switching over to non-coal
gasifiers or PNG or technology consistent with the above report. The
GPCB must initiate immediate steps for prosecution of the industries
which have operated in violation of law and recover compensation forPage 48 of 51
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causing damage to the environment and public health. This amount may
be assessed by a Committee with representatives of CPCB, GPCB and
NEERI. The CPCB will be the nodal agency for coordination and
compliance. The Committee may suggest restoration plan.
26. The Committee may give its report within one month by e-mail at
[email protected]
27. The Committee may take into account the cost of reversing the
damage caused and also the amount to be recovered which will operate
as deterrent and render any polluting activity non-profitable.
28. To oversee the execution of this order by the GPCB, we appoint an
Oversight Committee headed by Justice B.C. Patel, former Chief Justice of
Delhi High Court and former Judge of Gujarat High Court who is already
heading an Oversight Committee constituted by this Tribunal vide order
dated 16.01.2019 in O.A. 606/2018. He will also be assisted by a
representative of CPCB. The GPCB will provide all logistics to Justice
Patel. Any person concerned with execution of this order will be at liberty
to represent to the said Oversight Committee.
29. Learned Counsel for the GPCB states that expenses incurred by the
NEERI will be paid as per direction of this Tribunal within one month
from today.
30. Industries have filed applications which have no merit and are not
maintainable under Sections 14 and 15 of the National Green Tribunal
Act, 2010. Same is the position with regard to the applications of the
manufacturers.
All the applications stand disposed of accordingly.”
18. Taking note of the directions issued by the NGT in
the above noted paragraphs of the order dated 06.03.2019, we
find that all the issues sought to be raised before us regarding
the correctness of the report of the Oversight Committee can
only be raised by the petitioners before the NGT. However, it is
open for the petitioners to avail any other alternative remedy if
available in law, inasmuch as, it is not permissible for this
Court to sit over the report of the Oversight Committee as a
Court of appeal, which has been constituted by the NGT while
directing the GPCB to close all coal gasifier industries and units
operating with the help of coal gasifiers and to initiate fresh
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steps for prosecution of the industries, which have operated in
violation of law and recover compensation for causing
damages to the environment and public health.
19. The three expert bodies have submitted their
reports in compliance of the order passed by the NGT, wherein
direction was issued to assess the damages compensation
amount by a committee with representatives of Central
Pollution Control Board (CPCB), Gujarat Pollution Control Board
(GPCB) and National Environmental Engineering Research
Institute (CSIR – NEERI).
20. The Oversight Committee headed by Justice B. C.
Patel, Former Chief Justice of the Delhi High Court and Former
Judge of the Gujarat High Court has been constituted vide
order dated 16.01.2019 by the NGT and direction was issued
that the Oversight Committee shall be assisted by the
representative of the CPCB and the reports of the expert
bodies shall be assessed by the Oversight Committee to
ascertain the damages.
21. In view of the above, we dispose of all the writ
petitions with the observations and directions that we have not
entered into the merits of the claim of any of the petitioners
herein about their liability towards compensation or the issues
pertaining to the quantum of damages computed by the
Oversight Committee. It is open for the petitioners to avail
appropriate remedy available in law.
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NEUTRAL CITATION
C/SCA/2664/2020 JUDGMENT DATED: 08/01/2025
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22. Consequently, in view of the disposal of the said
writ petitions, all the civil applications pending in the
connected writ petitions, if any, stand disposed of.
23. All the issues agitated before us are left open, to be
raised before the NGT or any other competent authority, as
maybe advised.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
SAHIL S. RANGER
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