The Principal Bench of National Green Tribunal (New Delhi) has asked the State of Jammu and Kashmir to pay compensation to the tone of Rupees Thirty Two Crores ( Rs. 32,00,00,000/-) for failing to perform its duty to Keep the Doodh Ganga and Mamath Kull a Pollution free and for contributing to the Pollution of the Area and thereby failing to fulfill the Constitutional Duty cast upon the State.
The Bench comprising of HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON,
HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER ,
HON’BLE PROF. A. SENTHIL VEL, EXPERT MEMBER &
HON’BLE DR. AFROZ AHMAD, EXPERT MEMBER, was hearing a petition titled Raja Muzaffar Bhat VERSUS Union of India & Others against failure to prevent illegal mining, discharge of sewage and dumping of solid waste into river Doodh Ganga and Mamath Kull in violation of provisions of the Water (Prevention and Control of Pollution) Act, 1974, judgments of the Hon’ble Supreme Court dated 22.02.2017 inter alia in Paryavaran Suraksha Samiti Vs. Union of India1 and orders of this Tribunal on the subject.
Brief facts of the Case as projected in the petition are that. "Doodh Ganga is a tributary of the Jhelum River. It originates from Pir Panjaal Mountain and thereafter passing through number of villages and towns up-stream to down-stream like Sogam, Chadoora, Wathora, Kralpora, Bagh-e-Mehtab, Channapora, Natipora, Barzulla, Bulbul Bagh, it merges into Hoker Sar Lake, at Lawaypora, Narbal and eventually meets the Jhelum River. Mamath Kull also originates from Pir Panjal Mountains and after passing through number of villages in Budgam District, enters the Mamath Village which is 1 km away from the stream and thereafter first enters the Hokersar Lake and eventually meets the Jhelum River. Rivers Doodh Ganga and Mamath Kull have been subjected to pollution from pesticides from Apple Orchards, discharge of untreated sewage and dumping of municipal solid wastes from the area falling under Srinagar Municipal Corporation and Municipal Committee of Budgam."
Precise submissions been set out in the application are as follows:-
“a) Large quantity of pesticides are flown into the Doodh Ganga River from the Apple Orchards.
b) The Srinagar Municipal Corporation is continuously discharging untreated sewage in river Doodh Ganga from 13 dewatering pumping stations installed at various locations on the banks of river Doodh Ganga.
c) Till date no STPs has been established by the Srinagar Municipal Corporation or any other Government Body in the entire stretch around river Doodh Ganga as a result of which all the untreated sewage from residentials, commercial establishments, shopping malls, butcher houses, poultry shops, laboratories, diagnostic centres and domestic sewage are directly discharged into the river without any scientific treatment.
d) A large number of Municipal Solid Wastes are unscientifically dumped on the banks of river Doodh Ganga and during the present rainy season there is a grave danger of the entire waste to be flowing into the river which is a tributary to River Jhelum.
e) A large amount of municipal solid wastes are being dumped unscientifically on the banks of the Mamath Kull stream by the Municipal Committee of Budgam. There is a grave danger of the entire waste to be flowing into the stream which eventually meets River Jhelum, thereby causing major environmental degradation.”
Consideration by the Tribunal today, finding and directions
12. From the above, it is seen that there are serious lapses on the part of the Administration in waste management and in failing to control illegal mining which has resulted in huge damage to the environment and public health. Remedial action is inadequate on the ground. The same is more in the nature of future promises without much accountability for the past failures. While there is no objection to future remedial action which must be taken, accountability has to be fixed for past violations on polluter pays principle as laid down in Vellore Citizens case, (1996) 5 SCC 647 and under section 20 read with section 15 of the NGT Act.
13. l16.23 MLD of untreated sewage is being discharged into the Doodh Ganga drain. About 90 MTs of legacy waste has been removed from the banks of Doodh Ganga using men and machinery of Municipal Committee Chadoora which remained unprocessed. Thus, there is violation of SWM Rules, 2016 which lay down timelines for taking steps which have already expired without such steps having been taken. Further, there is violation of judgment of Hon’ble Supreme Court in Paryavaran Suraksha Samiti Vs. Union of India, supra, requiring steps for setting up of necessary STPs within timeline mentioned therein which have expired. Huge damage has been caused by illegal mining but beyond stopping illegal mining and recovering small amount, compensation commensurate with the damage already caused has not been recovered.
While fixing the State’s liability, the Bench observed that,
"36. Apart from compliance in future, the liability of the State has to be fixed for the past violations in the light of earlier binding orders passed in pursuance of orders of Hon’ble Supreme Court dated 2.9.2014 in WP 888/1996, Almitra Patel and dated 22.2.2017 in WP 375/2012, Paryavaran Suraksha. Order dated 22.12.2016 in Almitra Patel clearly laid down liability for compensation for breach of statutory timelines. Similarly, liability for compensation was laid down for failing to install water pollution control devices after 31.3.2020. The Tribunal has to follow ‘Polluter Pays’ principle under Section 20 of the NGT Act. The State Authorities contributing to the pollution by failing in their constitutional duties are to be held accountable on this principle. Admittedly, timelines under Supreme Court orders and orders of this Tribunal for preventing water pollution and statutory timelines for solid waste management are over. Thus, atleast from 01.01.2021, the ‘Polluter Pays’ principle has to be applied. Compensation has to be equal to the loss to the environment and also taking into account cost of remediation.
37. Following the recent orders on the subject, we fix compensation for discharge of untreated sewage in the drain at Rs.32 crore and for failure to process solid waste at Rs.3 crore. We had earlier levied interim compensation of Rs. 3 Crores which may be adjusted. Remaining of Rs. 32 Crores be deposited by the State in a ring fenced account to be operated as per directions of the Chief Secretary for restoration of the Environment which will include preventing discharge of sewage in unscientific manner in drains or otherwise and improving the water quality of the drain. Part of the amount may be utilized for restoration of legacy waste dump site and for remediation of the leftover legacy waste."
And lastly the Court observed that, " An action taken report in pursuance of above order particularly with reference to setting up of decentralized and centralized STPs and stopping discharges from waste discharging points to Doodhganga and Mamath Kull. Further, 90 MTs shifted solid waste to other site be remediated including already existing legacy waste and providing status on waste processing plants may be filed by e-mail at judicialngt@gov.in preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF on or before 30.04.2023. The Principal Secretary, Urban Development, J&K may remain present in person by VC on the next date.
List for further consideration on 24.05.2023."