-1- IN THE HIGH COURT OF BOMBAY AT GOA SUO MOTU WRIT PETITION NO. 1/2005 ........ Petitioner. Versus 1. The state of Goa through its Chief Secretary, Secretariat, Porvorim, Goa. 2. Secretary, P.W.D., Government of Goa, Secretariat, Porvorim, Goa. 3. State Pollution Control Board, at Patto, Panaji, Goa. 4. The Central Pollution Control Board, New Delhi. ....... Respondents. Mr. S. S. Kantak, Advocate General with Mr. M. Salkar, Addl. Govt. Advocate for respondents No.1 and 2. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. J. Godinho, Advocate for respondent No.3. Mr. J. A. Lobo, Advocate for respondent No.4. CORAM :- S.J. VAZIFDAR & U.D. SALVI, JJ. Date of reserving the Order : 21/04/2010 Date of pronouncing the Order : 28/04/2010 -2- ORAL ORDER : (Per S.J. VAZIFDAR, J.) The above writ petition was registered suo motu on the basis of an editorial captioned “Rain and Dry Taps”, published in the edition of 24th March, 2005 of “The Navhind Times”. As recorded in an order dated 5th April, 2005, the editorial indicates that the people in Goa do not get adequate drinking water despite abundant rain fall every year. The editorial stated that the P.W.D. Secretary admitted that about 34 per cent of water was lost due to leaking taps and pipes, and tanks overflowing. Other newspapers also carried similar articles. Recognizing that the right to unpolluted drinking water falls within the ambit of 'Right to Life', the Division Bench issued notices to the State of Goa, Chief Secretary and the Secretary, P.W.D., and directed them to file affidavits, dealing with four aspects stated therein, in connection with the supply of drinking water and the steps taken by the authorities to provide the same, as also the steps taken to avoid wastage thereof. 2. The Division Bench appointed Mrs. Norma Alvares as an amicus curiae. -3- Before going further, we would like to express our appreciation for the efforts and dedication of the learned amicus curiae, Mrs. Alvares. Without her assistance in the matter, the task of this Court in redressing the prolems, would have been considerably greater. The scope of the petition has increased considerably. No efforts have been spared by the learned amicus curiae in meeting the various aspects that arose from time to time. We must also express our appreciation to the parties and to the learned Advocates appearing on their behalf for having, by and large, addressed the issues in public interest, rather than treating them as merely any other adversarial proceedings. 3. By an order dated 3rd May, 2005, the Goa State Pollution Control Board was impleaded as respondent No.3. 4. Affidavits were filed pursuant to the above orders. As recorded in an order dated 11th July, 2005, the Principal Engineer, P.W.D., stated that the cause of wastage of water was referred to a survey by M/s Mott MacDonald and referred to the Government's proposal to instal the Supervisory Control and Data Acquisition -4- Systems for the Opa Water Supply. It is further stated that the Government has introduced a helpline to deal with the grievances, operated by an independent agency. 5. The orders indicate that the learned amicus curiae raised several important points during the course of the hearings, which were required to be addressed to by the authorities. These include the Government's stand on rain water harvesting, formulation of the policy for industrial siting on river banks, classification of areas in Goa under the Goa Ground Water Regulation Act, and the policy of identifying the non-working meters. 6. The issue of registration of water tankers with regard to transportation of ground water was also raised. 7. Pursuant to the above, reports were filed in this Court, from time to time, regarding the steps taken by the respondents in respect of the above issues. One of the important directions was to the Goa State Pollution Control Board (GSPCB) to place on record the steps taken by it for the purpose of implementation of the -5- environmental atlas of Goa, zonal atlas for siting industries and industrial siting guidelines of Goa, as approved by the Central Pollution Control Board, from time to time. Time was sought on various occasions to take a decision on the siting of industries. 8. By an order dated 6.7.2009, the Division Bench, recorded the statement on behalf of the Advocates for all the parties that the only issue left pertained to zoning requirements of siting of industries on river banks. Before referring to the rest of the orders, it is necessary only to state that even before us, the learned Advocates made a statement that all the other issues had been substantially addressed to during the course of this petition. It is, therefore, not necessary for us to refer to the other issues, in any detail. The learned amicus curiae has submitted a note summarizing the same, which we take on record and mark “X”. Suffice it to state that amongst the steps taken are the establishment of a water supply helpline, the setting up of a Supervisory Control and Data Acquisition System, replacing of leaking pipes in several Talukas and the repairs and replacement of defective meters which is expected to be completed by January, 2011, the disconnection of public taps and the provision of free water -6- connections to the families belonging to below poverty line category, setting up of additional water treatment plants, execution of a tripartite agreement between the Government of Goa, Government of India and the Government of Japan in respect of major water supply projects and the implementation of the Goa Ground Water Regulation Act, 2002. 10. By an order dated 28.1.2010, the Division Bench recorded the learned Advocate General's statement that the guidelines for siting of industries on river banks, submitted by the GSPCB had been accepted, in principle by the Government and are sought to be incorporated in the Regional Plan which is awaiting final approval of the Government. The learned Advocate General further stated that the guidelines were being followed for permitting the new industries on river banks. However, the old guidelines are being followed as far as expansion, modification, and diversification of the existing industries are concerned. Even in respect thereof, EIA clearance is insisted upon, wherever required. Mrs. Alvares submitted that the Government ought to follow the siting guidelines even in cases of existing industries which seek to expand, modify or diversify their activities. The Division -7- Bench stated : “In case the siting guidelines have been accepted by the Government, we see no reason why the Government should not follow them even in case of expansion, modification or diversification of existing industries”. The learned Advocate General sought time to take instructions in this regard. 11. The “Guidelines for Siting of Industries” for North Goa and South Goa by the GSPCB have been filed in the Court. The question that now remains is whether the same ought to be applied not merely in respect of new industries, but also in respect of expansion, modification and diversification of the existing industries. 12. (A) In this regard, Mrs. Alvares invited our attention to paragraphs 3.3 of the Guidelines for Siting of Industries. Air polluting industries have been categorized into four categories A1, A2, A3 and A4. The impact potential of these categories of industries is stated to be more than 7 kms., 5 to 7 kms., 2 to 5 kms. and less than 2 kms., respectively. Water polluting industries are classified under four categories W1, W2, W3 and W4, in respect whereof the impact potential is stated to be very high, high, medium to high and low, -8- respectively. The impact potential is based upon certain technical parameters mentioned in the guidelines. The impact potential on air and water of each industry may vary. For instance, a given industry may fall within the category “A1” in respect of air pollution, but, in category “W2” in respect of water pollution. (B) Ms. Alvares, then drew our attention to paragraph 3.3 which contains a table, indicating air pollution and water pollution in respect of 32 industries. This table is followed by a further table consisting of 19 industries. These 19 industries are at Sr. Nos. 14 to 32, in the previous table. The guidelines state that there is a possibility of finding a few suitable sites, for those of these 19 industries that install state of the art manufacturing process and/or best available treatment technology for wastes/effluents/emissions. (C) In other words, in respect of first 13 industries mentioned in the first table, the guidelines do not refer to a possibility of finding suitable sites for them, even if they install state of the art manufacturing process and/or best available treatment technology for wastes/effluents/emissions. These are extremely high polluting -9- industries. All of them fall within the category “W1” i.e. they are considered to have a high impact potential on water pollution. The first 5 of them also fall within the category “A1” i.e. they have an air pollution impact potential over 7 kms. The next 5 fall within the category “A2” i.e. they have an impact potential on air pollution to the extent of 5 to 7 kms. The eleventh industry falls in the category “A3” i.e. they have an impact potential on air pollution of 2 to 5 kms. and the 12th and 13th industries fall within the category “A4” i.e. they have an impact potential on air pollution within 2 kms. The first 13 industries have a very high impact potential on water pollution. The guidelines in paragraph 3.3.3 clarify that the recommendations for the other 19 industries do not apply even if they fall under zones found to be suitable for industrial siting in or in the immediate vicinity of the urban areas/settlements. 13. The respondents' stand on this aspect of the matter is summarized in paragraphs 6 and 7 of an affidavit dated 6.7.09 of one Sanjit Rodrigues, the Director of Industries, Trade and Commerce, Government of Goa. The affidavit was filed to convey the Government's stand on the suggestion made by the GSPCB. -10- Paragraphs 4 to 7 of this affidavit, read as under : “ 4. I say that the Government is in the midst of finalizing Regional Plan 2021 for Goa. Draft Regional Plan has already been prepared and the same has been notified for public objections. The suggestions of the GSPCB contained in the said 2 documents are made a part of the Draft Regional Plan under item no.3.7.4 (h). 5. The suggestion of the Pollution Control Board therefore will be taken into consideration while finalizing Regional Plan 2021 for Goa. 6. I say that in the meantime and till the Regional Plan 2021 is not finalised, it is decided to follow the guidelines for citing of industries as submitted by GSPCB as far as granting permissions for new water polluting industries on river banks is concerned (Industry Category W1, W2 and W3 under item no.4.1 part C) of the Zoning Atlas submitted by GSPCB. 7. So far as proposal for expansion modification or diversification of existing industries on river bank, it is decided to adopt the existing -11- guidelines and procedure followed by Directorate of Industries Trade and Commerce besides insisting upon Environmental Clearance/EIA wherever required.” 14. Mrs. Alvares submitted that in respect of the said 32 industries and in any event in respect of the first 13 of them, the Government ought to adopt the GSPCB guidelines, including with respect to expansion, modification and diversification of the existing industries on river banks. She invited us to pass this order at least till the Final Regional Plan is published. 15. We see the force in Mrs. Alvares's submission. It is possible, under the guise of expansion/modification/diversification, in fact to enable new industries to come up. For instance, it is possible, by adjusting equity participation, in effect, to set up a new industry by sanctioning a scheme of diversification. There would, thus, be a new owner and a new industry. If, ultimately, in the Final Regional Plan, the same is prohibited, it will be too late. On the other hand, the diversification can also be for a bona fide and genuine purpose, if it -12- is in fact only with a view to complement an existing activity and not an independent activity in itself and does not pertain to those carried on by the said 32 industries. In that event, such a diversification, prima facie, at least would not be objectionable per-se, provided, always, that the same does not, in any manner whatsoever, adversely affect the environment, including in respect of air and water pollution. 16. We see force in the contentions of the learned Advocate General, Mr. Nadkarni, the learned Senior Advocate appearing on behalf of the GSPCB that every expansion or modification does not necessarily affect the environment adversely. There can be expansion in production within the existing capacity by adopting a different technology. This again is provided the new method or technic does not have an adverse impact on the environment, in any manner. A modification may, in certain cases, even have a beneficial impact on the environment. A modification may be pursuant to a new technology, which is environment-friendly, or in any event, less hazardous to the environment than the existing technology. There is no warrant in such cases to bar the Government from even considering such applications. -13- 17. The affidavit indicates the existing procedure for grant of approval of such applications. We would not be justified in proceeding on the basis that every application for expansion, modification or diversification would necessarily have an adverse effect on the environment. In any event, the safeguards that we intend providing in addition to those already existing would allay such apprehensions. 18. In the circumstances, the writ petition is disposed of by following order : (I) The Writ Petition is disposed of by accepting the statements made and recorded in the earlier orders, as well as in terms of the orders and directions passed in this writ petition, from time to time, except as modified hereafter. (II) The statements contained in the affidavit dated 6.7.09 and in particular, paragraph 6 thereof regarding new industries, are accepted. (III) The proposals for expansion, modification and diversification of existing industries, on river banks, may be decided according to the existing guidelines and procedure followed by the -14- Directorate of Industries, Trade and Commerce, including by insisting upon Environmental Clearance/EIA wherever required. However, such applications shall be considered only in the event of the same not having any adverse impact on the environment whatsoever, including by way of air pollution or water pollution and the GSPCB issuing a certificate to that effect and filing the same in this Court. (IV) Till the Final Regional Plan is prepared, every application for expansion, modification or diversification, shall be filed in this Court and intimation thereof shall be given to the learned amicus curiae Mrs. Norma Alvares thereof. Liberty to the learned amicus curiae to apply to this Court including in regard thereto, if necessary. S.J. VAZIFDAR, J. U.D. SALVI, J. ssm.