IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Civil Writ Petition No.7036 of 2005 Nirbhai Singh … Petitioner Versus State of Punjab … Respondent 2. Civil Writ Petition No.13881 of 2006 Court on its own motion … Petitioner Versus State of Punjab … Respondent 3. Civil Writ Petition No.14744 of 2007 Sant Singh Namberdar and others … Petitioners Versus State of Punjab and others … Respondents 4. Civil Writ Petition No.4472 of 2009 Tajpur Road Dyeing and Industries Association … Petitioner Versus Union of India and others … Respondents 5. Civil Writ Petition No.8970 of 2009 Dyeing Effluent Treatment Society … Petitioner Versus Union of India and others … Respondents Date of decision: 14th November, 2011 CORAM: HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sumeet Mahajan, Senior Advocate with Mr. Sham Lal Bhalla, Advocate. Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 Mr. Ashok Aggarwal, Senior Advocate with Mr. Amit Aggarwal, Advocate. Mr. Sanjeev Sharma, Senior Advocate with Mr. Shekhar Verma, Advocate. Mr. Harsh Aggarwal, Advocate. Mr. G.S. Brar, Advocate. Mr. G.S. Lalli, Advocate. Ms. Madhu Dayal, Additional Advocate General, Punjab. Mr. A.R. Takkar, Advocate for Punjab Pollution Control Board. Mr. T.P. Singh, Advocate (was present at the time of arguments, now deceased) for Central Pollution Control Board. Mr. Vijay Kaushal, Advocate for Punjab Water Supply & Sewerage Board. Mr. Sanjay Joshi, Advocate for Ministry of Forests and Environment – UOI. Mr. Ashwani Bakshi, Advocate for Tajpur Unit. Mr. Ashish Verma, Advocate for Punjab Small Industries and Export Corporation Ltd. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. Ludhiana is the most affluent, prosperous and largest city of Punjab. The city stands on the old bank of river Sutlej, which is situated on the northern side of Ludhiana city, approximately 15 kilometers away from the City Center. Ludhiana is also known as Manchester of India, being one of the most industrialized towns of northern India. The industries housed in Ludhiana are engaged in manufacture of woolen garments, cotton and synthetic yarns. As per a survey, 95 percent of the 2 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 country’s woolen industry is located in Ludhiana. 30 percent of the country’s cotton industry is also based at Ludhiana. 1/3rd of the total power available in the State of Punjab is consumed in Ludhiana only. The steel based industry situated in this city consists of cycle and auto parts and foundries. Besides this, rubber based industry manufactures tyres and tubes. As much as 70 percent of the country’s cycles and cycle parts are also manufactured at Ludhiana. Industrialization and development had their fallouts too. What ails Ludhiana is suffered by Budha Nullah. Budha Nullah is a seasonal water-stream and passes through the highly populated Ludhiana district. As per the survey carried by the Department of Science, Technology and Environment; Budha Nullah originates from village Kumbh Kalan and its confluence point with the river Sutlej is near village Valipur. Budha Nullah has a sinuous course and the width of the channel varies from place to place. It is a flooding stream during the rainy season. Five writ petitions, out of which two have arisen out of a suo- motu notice taken by this Court, have been on the board of this Court for long. They all concern Ludhiana and Budha Nullah. The issues raised in these writ petitions essentially are the concerns of all well-meaning citizens, i.e. how to make Ludhiana and Budha Nullah pollution-free and ensure public hygiene so that the contaminated water passing through Budha Nullah, which ultimately merges in the river Sutlej, does not become a source of health hazard and cause epidemic. During the course of various hearings, CWP No.7036 of 2005 titled as ‘Nirbhai Singh v. State of Punjab’ became the lead case to evolve a comprehensive plan and strategy to make Ludhiana and Budha Nullah 3 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 free of the ill-effects of rapid, haphazard and unplanned industrial growth. Industrialization and technological progress had caused a negative impact on the environment in terms of pollution and degradation, and had stressed the environmental system due to accumulation of the stock of wastes. Pollution of water, air and atmosphere are the bye-products of economic development, particularly industrialization and urbanization. It is an admitted fact that air and water pollution in the developing countries cause heavy toll of human life through ill-health and premature mortality. It is the poverty struck population, i.e. lowest strata of the society, which suffers most from the onslaught on the nature. Therefore, the first writ petition viz. CWP No.7036 of 2005 titled as ‘Nirbhai Singh v. State of Punjab’ in which suo-motu notice was taken, originated out of a complaint received by the Chief Justice of this Court from a prisoner of Central Jail, Ludhiana. Nirbhai Singh was undergoing rigorous imprisonment for ten years. In his communication addressed to the Chief Justice of this Court he stated that 10/12 chemical factories situated in front of the jail emit black smoke after 5.00 p.m. till the early morning; due to which inmates of the jail suffer from chest/cough ailments throughout the night and itching in their eyes. A grievance was made that the smoke emitted from the chimneys of the factories engulfs the barracks of the jail and makes the prisoners feel as they are confined in gas chambers. It was stated that the prisoners are reminded of the treatment meted to the Jews by Hitler in the gas chambers. A clarion call was given to redress the grievance of the petitioner. This communication was received in the Chief Justice Secretariat on 9th November, 2004. An Administrative Judge of this Court 4 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 directed the District and Sessions Judge, Ludhiana to submit his report after visiting the Central Jail, Ludhiana. In its report, the District and Sessions Judge, Ludhiana submitted that the dyeing mills are situated along Budha Nullah in front of the jail compound and these dyeing mills were constructed in the year 1991. The Deputy Commissioner, Ludhiana, who was requested to initiate necessary action, shifted the responsibility to the Punjab Pollution Control Board (hereinafter referred to as, ‘PPCB’), saying that the dyeing units have received their licences from the PPCB. The PPCB and the 24 dyeing mills passed the blame upon Municipal Corporation, Ludhiana stating that the entire city’s waste/garbage is thrown on the banks of Budha Nullah near the factories and when the same is set on fire smoke emanates out of it which creates pollution in the jail. Since nobody was ready to own-up the responsibility, the Administrative Judge recommended that the communication received from the convict requires judicial intervention. Therefore, the Court suo-motu took cognizance and issued notice on 6th May, 2005. The PPCB in its reply stated that the smoke emitted by nine industries was within the permissible limits prescribed by the Board whereas, in case of two industries the concentration of particulate matter was found to be beyond the said limits. It was further stated that every day 400 tons of municipal solid waste from various parts of the city were brought to the dumping site at Tajpur road and the dumping site is near the industries and at a distance of 500 meters from the Central Jail, Ludhiana. It was further stated that a number of trucks carrying municipal solid waste of Ludhiana city move on the road passing in front of the Central Jail, Ludhiana. The trucks carrying the municipal solid waste are also not in a good condition and a lot of smoke and soot is emitted from 5 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 their exhaust pipes. After the above said reply was filed by the PPCB, a notice was issued to the Municipal Corporation, Ludhiana. The Joint Commissioner, Ludhiana in its affidavit dated 27th July, 2005 stated that the Municipal Corporation, Ludhiana has a dumping ground in the area of village Jamalpur, which is spread over an area of approximately 16 acres. The solid waste generated within the city is duly lifted and transported in covered-body trucks to the dumping ground and sometimes incidents of fire had taken place, however, the fire was immediately doused off. In the affidavit, it was further stated that Municipal Corporation, Ludhiana had already purchased approximately 21 acres of land in the area of Noorpur Bet on payment of Rs.1.25 crores for setting up of a Solid Waste Treatment Plant, for which a memorandum of understanding has already been entered into with a Canada based company. Thereafter, again the District and Sessions Judge, Ludhiana was asked to submit a status report. On 23rd August, 2005 in its status report, the District and Sessions Judge stated that 28 dyeing units are operating in front of the Central Jail and furthermore, migrant labourers and rag-pickers set the garbage on fire and as such foul smell is emitted causing discomfort to the prisoners. When the Court was in the midst of redressing the grievance of the prisoners, a national daily newspaper (The Tribune) published a series of articles under the heading of ‘Killer Drains of Punjab’. One of the articles in its edition published on August 28, 2006 was under the heading of ‘Killer Drain I – Budha Nullah gets more septic – 3 lakh kilolitre sewage discharge daily’. The article stated that from the banks of Budha Nullah at Badi Haibowal, one will witness something utterly grotesque and due to low water and shockingly high untreated domestic 6 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 and industrial sewage discharge, the Nullah has ceased to flow. It raised the concern that for lack of water for dilution of waste and unabated discharge of raw sullage into the Nullah, jet black stinking water is carried by the Nullah and there is no semblance of life. It was observed that one will find animals stuck in the sludge and chunks of freshly scraped animals’ flesh, mainly of pigs, whose meat is openly sold from the outlets thriving on the Nullah’s banks. It was further reported that daily industrial effluent discharge of 60,000 cubic metres comprising poisonous heavy metals like arsenic, chemicals like cyanide, harmful pesticides and toxic organic compounds are thrown in the Nullah. The stench emitted from the Nullah is lethal. People have to endure this as they have no other choice. The article further quoted a Professor from the PGI’s Community Medicine Department, who stated that if remedial measures are not taken, there can be severe outbreak of diseases, some of which have high mortality. The correspondent stated that Budha Nullah, once the lifeline of Ludhiana, is victim of official apathy, as 95 percent of the total waste is discharged by the Municipal Corporation in the Nullah. Furthermore, 12 Municipal Committees throw waste into the river Sutlej and Ludhiana Municipal Corporation was the maximum contributor of pollution load to the river through Budha Nullah. It was further mentioned that Ludhiana, a thriving, affluent and prosperous town; had no Solid Waste Material Treatment Plant. Disposal of the waste into Budha Nullah was conceived as a temporary solution and continuous discharge of pollution into Budha Nullah had contaminated Ludhiana city’s drinking water sources. Furthermore, the water from the Nullah was used for drinking purposes and was a cause of massive outbreak of gastroenteritis. The second part of the article was carried by 7 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 The Tribune in its edition dated 29th August, 2006 and the third part in edition dated 30th August, 2006. In these articles, an incident of a resident of Ludhiana city was reported, who was carrying toxic lead in her bloodstream for years. According to the Gastroenterologist of Repute, increased number of patients with lead poisoning caused by the industrial pollution of ground water were arriving at the hospitals of Ludhiana. It was stated that in the residential areas, which are situated near Budha Nullah, the lead poisoning has been reported in high numbers as electroplating and battery manufacturing units were contributing to the pollution load. A Division Bench of this Court took suo-motu note of the news items published in The Tribune on 28th August, 2006; 29th August, 2006 and 30th August, 2006, and observed that the most prosperous town of the State is on the verge of a huge human tragedy, and thus, intervention of the Court was called for to take immediate and radical remedial measures. The suo-motu notice taken on the articles published in The Tribune was assigned CWP No.13881 of 2006 and was titled as ‘Court on its own motion v. State of Punjab’. During the pendency of these two writ petitions, i.e. (1) CWP No.7036 of 2005 titled as ‘Nirbhai Singh v. State of Punjab’ and (2) CWP No.13881 of 2006 titled as ‘Court on its own motion v. State of Punjab’, on intervention of the Court various steps were taken to clean the Budha Nullah of pollutants. Then another writ petition viz. CWP No.14744 of 2007 titled as ‘Sant Singh Namberdar and others v. State of Punjab and others’ was filed by various residents of village Beniwala stating that this Court should take immediate steps for construction of a drain to Budha Nullah, as due to the stoppage of drain, which carried the 8 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 waste through the village pond to Budha Nullah, there is accumulation of sewer water and rainy water in the village due to overflowing of pond of the village. It was urged that it is causing health hazard. The grievance of the petitioners was a result of the action taken by the authorities to close all the drains, which from various villages carried sewer, sludge and pollutants to the Budha Nullah. When demand of the villagers was being dealt with, industry also came forward raising its own demands by instituting a writ petition viz. CWP No.4472 of 2009 titled as ‘Tajpur Road Dyeing and Industries Association v. Union of India and others’. In this writ petition, a prayer was made that the CPCB be directed to release the subsidy to the extent of 25 percent of the cost of setting up of Common Effluent Treatment Plant (hereinafter referred to as, ‘CETP’) under the ‘Centrally Sponsored Common Effluent Treatment Plant Scheme’. One of the grievances made was that the request of the Dyeing Association that they should be allowed to discharge industrial wastes after treatment into Budha Nullah as water was fit to be discharged into the drains and watercourse, was denied on the grounds, wholly untenable. It was urged that the reasoning advanced by the officers that the experience of 40/50 years shows that the treatment plants were not running regularly and there was no guarantee that the system would run in a foolproof manner should be rejected. In this writ petition, essentially it was prayed that the industry be also allowed to co-exist and the directions issued by the PPCB on various dates under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as, ‘the 1974 Act’) be kept in abeyance. 9 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 Another writ petition, viz. CWP No.8970 of 2009 titled as ‘Dyeing Effluent Treatment Society v. Union of India and others’ was filed by the Dyeing Effluent Treatment Society making a similar prayer as was made in CWP No.4472 of 2009 titled as ‘Tajpur Road Dyeing and Industries Association v. Union of India and others’. Since the issues raised in all these five writ petitions overlap, it will be necessary for us to give the gist of various studies carried out under the aegis of this Court, status reports submitted by various agencies, recommendations of various committees appointed and the detailed orders passed in the last five years. This Court has monitored/goaded the all concerned to take active steps for eradication of various ills, facilitated clearance of bottlenecks, cracked whip for stoppage of all sources which polluted and caused contamination in the water carried by Budha Nullah to the river Sutlej. As the Court proceeded with the problem, which was gigantic in nature, it surfaced that till the city life of Ludhiana improves Budha Nullah cannot be saved. This Court on 19th December, 2006 considered the status report submitted by PPCB on 16th December, 2005 and also the status report submitted by the Executive Engineer of PPCB on 19th December, 2006. After considering the reports, this Court observed that the problem of pollution in Ludhiana city is multi dimensional and the same has occurred on account of unplanned industrialization of the said town. The Court also noticed that no proper sewerage treatment plant has come into existence and the effluents are discharged in the sewer and the same inclusive of industrial waste is being discharged in Budha Nullah, as no solid waste treatment plant commensurate to the waste generated by the city has been set up. After appraisal of the status reports, the 10 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 Court was aghast to note that even though four biomedical treatment facilities were established they were not sufficient to cope up with the biomedical waste which originated daily. The Court called upon all concerned to take corrective measures to deal with the waste and effluents in a comprehensive manner. It also called upon the PPCB, the Municipal Corporation and the Deputy Commissioner, Ludhiana to act in cohesion and draw out a plan taking totality of circumstances so that effluents and the waste do not pollute the air, water and cause soil erosion. All the above said three authorities were directed to submit their reports to the District and Sessions Judge, Ludhiana who was called upon to verify the reports with the aid of any agency having necessary expertise. It will be pertinent to note that the Secretary to Government of Punjab, Department of Science, Technology and Environment had filed an affidavit on behalf of the Chief Secretary, Punjab, in which it was stated that Budha Nullah for the past many decades carries the domestic effluent of Municipal Corporation, Ludhiana and treated/partially treated effluent of various industries located at Ludhiana. In this affidavit it was stated that as per the study conducted by PPCB in August 2006, Budha Nullah carried the pollution load in terms of organic matter (biochemical oxygen demand) as 90 ton per day and total heavy metals as 4.5 ton per day respectively, and the total discharge of sewage effluent by the Municipal Corporation, Ludhiana in Budha Nullah was about 500 million litres per day (MLD). Furthermore, the industrial effluent discharged directly or indirectly through sewer into the Budha Nullah was about 60 MLD and the majority of discharge in the Budha Nullah was of sewage effluent without any treatment. It was informed to the Court that as a 11 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 remedial measure, Punjab Water Supply and Sewerage Board (hereinafter referred to as, ‘PWSSB’) was in the progress of installing three Sewage Treatment Plants (hereinafter referred to as, ‘STP’) at village Bhattian, Balloke and Jamalpur, and these STPs will ultimately be treating 311 MLD of sewage. It was assured to the Court that the STP at Bhattian was likely to be commissioned by the end of December, 2006 and the other two STPs would be commissioned by the end of June, 2007. It was further stated that 864 industries discharge about 60 MLD of effluent into the Budha Nullah and out of these, 816 industries had installed their Effluent Treatment Plants (hereinafter referred to as, ‘ETP’) to treat the effluent. Out of the remaining 48 industrial units which are very small, 9 units were in the process of installing ETPs and the remaining 39 had not installed the same. The PPCB had issued directions under Section 33-A of the 1974 Act as amended in 1988 for closure of 15 units and the action was initiated against 24 units, and the opportunity of personal hearing was afforded to them. The Government in its affidavit suggested that following strategy has been drawn for cleaning of Budha Nullah:  Stoppage of wastewater/municipal waste into Budha Nullah.  Release of additional water from Sutlej into Budha Nullah.  Re-modelling of Budha Nullah.  Bio-fencing along the banks.  Development of catchment area.  Providing a 30m wide bio-fence comprising grasses, shrubs and trees to arrest the pollution from non-point sources entering Budha Nullah. 12 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009  To identify all the point and non-point sources of pollution including sullage or sewage from the villages.  Adoption/Establishment of Bio Gas Plant to recover gas from sewage and solid waste.  Adoption of solar pumping.  To identify Govt. land all along Budha Nullah for afforestation. It was stated that to monitor the progress, a meeting was held by the Chief Secretary Punjab on 22nd September, 2006. The proceedings of this meeting were attached as Annexure R-3 to the affidavit submitted in CWP No.13881 of 2006. A perusal of the proceedings (Annexure R-3) reveals that the meeting called by the Chief Secretary of the State of Punjab was attended by Principal Secretary to Govt. of Punjab, Department of Science Technology and Environment; Principal Secretary to Govt. of Punjab, Department of Industries and Commerce; Principal Secretary to Govt. of Punjab, Department of Technical Education; Principal Secretary to Govt. of Punjab, Department of Irrigation; Chief Engineer Drainage; Principal Secretary to Govt. of Punjab, Department of Rural Development and Panchayat; various officials of the Department of Water Supply and Sanitation, Punjab Small Industries and Export Corporation Ltd. (hereinafter referred to as, ‘PSIEC’), Punjab State Council for Science and Technology, PWSSB and the PPCB. In the meeting, Principal Secretary Irrigation stated that the proposal of diverting water from Sutlej/Sirhind Canal into Budha Nullah at a cost of Rs.21.00 crores was not viable for diverting 300 cusecs of water. It was stated that the land on which Budha Nullah flows has been encroached upon by various persons and certain encroachments were 13 Civil Writ Petitions No.7036 of 2005; 13881 of 2006; 14744 of 2007; 4472 of 2009 and 8970 of 2009 required to be removed. After a detailed discussion, the following decisions were taken by the Committee under the chairmanship of the Chief Secretary Punjab: (i) The Department of Irrigation shall be the Nodal Department to execute the work of cleaning of the Budha Nullah per se and Principal Secretary, Irrigation shall be the Nodal Officer to coordinate the activities and contributions of the various departments. (Action: proposed and assigned to Department of Irrigation) (ii) The Department of Science, Technology & Environment will constitute a Committee of senior officers at the district level to co-ordinate the activities of various Departments/ Organisations involved in the protection of environment in Ludhiana. The objectives and the terms & conditions of this Committee will be laid down separately. This Committee shall submit their recommendations to the State Level Committee to