BEFORE THE NATIONAL GREEN TRIBUNAL

(WESTERN ZONE) BENCH, PUNE

APPLICATION No. 75(THC)/2014(WZ)

CORAM: Hon’ble Mr. Justice V.R. Kingaonkar

(Judicial Member)

Hon’ble Dr. Ajay A. Deshpande

(Expert Member)

B E T W E E N:

Sukrut Nirman Charitable Trust,

A Public Trust, Through : President, Kanakrai Sobhagchand Sawadia, Age 80 Yrs. Occn : Social Work, R/o. 30-A, Farmland, Ramdaspeth,

Nagpur 440 010 ….Applicant

A N D

1. The State of Maharashtra,

Through : Its Secretary, Animal Husbandry Department,

Mantralaya, Mumbai-400 032

2. The State of Maharashtra, Through : Its Secretary, Department of Environment Mantralaya, Mumbai 400 032

3. The State of Maharashtra,

Through : Its Secretary, Public Health Department Mantralaya, Mumbai 400 032

4. Director of Industries, Directorate of Industries, Govt. of Mharashtra, 1st floor, Mantralaya, Annexe Building, Mumbai 400 032

5. General Manager,

District Industries Centre, Buldana, Distt : Buldana

6. Maharashtra Pollution Control

Board, Through : Chairman, Kalpataru Point,

Third & Fourth Floors,

Opp. Cine Planet, Near Sion Circle, East Mumbai,

7. Maharashtra Pollution Control

Board, Through : Sub Regional Officer,

Sub Region Office, Akola. 8. Collector, Buldana, Tq. & Distt : Buldana,

9. Tahsildar, Shegaon,

Tq. Shegaon, Distt : Buldana, 10. Gram Panchayat, Taroda,

Through : Sarpanch, Tq. Shegaon, Distt : Buldana,

11. M/s. Shahin Frozen Foods, Through : Mr. Sheikh Wazir Sheikh I.Q.

Gat No.193, Taroda, Tq. Shegaon, Distt : Buldana, 12. M/s. Best Cold Storage Pvt. Ltd.,

Through : The Director of Best Cold Storage Pvt.Ltd.,

…Respondents

Counsel for Applicants :

Shri K.S. Savadia, Applicant

Counsel for Resondent Nos.1,6 & 7 Mrs. Supriya Dangare,

Counsel for Resondent Nos.11,

Mr. S.S. Khude, Adv.w/ Mr. R.A. Haque, Counsel for Resondent Nos.12,

Mr. N.S. Sharma i/b. Mr. O.K. Premnandikar, Adv.,

DATE : December 24th, 2014

J U D G M E N T

1. This Application was filed by the Applicant as P.I.L.

No. 44/2012 in the High Court of Judicature at Bombay,

Bench at Nagpur which was transferred to this Tribunal vide

Order of the Hon’ble Division Bench dated 18th June 2014.

The Applicant is a Charitable Trust and claims to be working

in the field of Animal Welfare Laws and Environmental

Damages caused due to the slaughter house activities. By

the present Application, the Applicant seek to challenge illegal

setting up meat processing and cold storage units of

Respondent Nos. 11 and 12.

2. The Applicant submits that M/s. Shahin Frozen

Foods-Respondent No.11 and M/s. Best Cold Storage Pvt.

Ltd.-Respondent No.12 have obtained the consent to

establish and operate the industrial units from the

Respondent No.7 i.e. Maharashtra Pollution Control Board

(MPCB) under the provisions of Water (Prevention and Control

of Pollution) Act 1974, Air (Prevention and Control of

Pollution) Act 1981 and authorization under the Hazardous

Waste (Management and Handling) Rules 1989 and amended

Rules 2000. Respondent Nos.11 and 12 also received

permission from the Respondent No.5 i.e. Directorate of

Industries.

3. The Applicant submits that Respondent-Nos.11 and

12 (Industries) were granted consent for a particular capacity

of meat processing by the MPCB without proper appraisal of

their Applications, manufacturing process and also, the

possible pollution sources and quantification thereof. The

Applicant submits that in case of Respondent No.11, the

consent to establish does not even contain anything about

disposal of solid waste, though it is generated in large

quantities in the industrial operations. The Applicant also

claims similar instance of non assessment of pollution

sources and quantification thereof in case of Respondent

No.12 also. The Applicant submits that the local Gram

Panchyat had also raised severe objections to the particular

project and these objections were not considered by the

MPCB. The Applicant further submits that operation of both

these units, having consent to establish for more than 1200

tons p.m. of meat processing would require large scale animal

slaughtering. The Applicant claims that the slaughtering of

animal has been identified as a major pollution causing

activity and there are several orders of the Apex Court

requiring the environmental regulators like MPCB to strictly

enforce the required norms. The Applicant claims that in the

instant case, MPCB has not verified from where both these

units, having such a large scale meat processing capacity

would source their raw material i.e. slaughtered animals. It

is the contention of the Applicant that the Respondent Nos.11

and 12 will procure the raw material i.e. slaughtered animals

from illegal slaughtering of animals being practiced elsewhere

and the industrial activities of Respondent Nos. 11 and 12

would encourage such unorganized and illegal slaughtering

of animals, causing wide spread pollution and environmental

damages. The Applicant, therefore, submits that the

environmental regulator i.e. MPCB should have applied the

‘precautionary principle’ which has been accepted as one of

the principles of environmental governance in the country by

the Apex Court, in order to verify the availability of raw

material i.e. slaughtered animals from the authorized and

environmentally sound slaughter houses before grant of

consent to establish and even during operation of units.

Applicant therefore claims that the MPCB has failed to have

proper due diligence and Appraisal of the pollution caused,

directly or indirectly, by the activities of Respondent Nos. 11

and 12 before granting them the consent. The Applicant has,

therefore, made following prayers :

(a) Issue a suitable Writ, order or a direction and thereby

direct the Respondent Nos.1 to 10 not to permit the

Respondent No.11 M/s. Shahin Frozen Foods to set up

and run its proposed Meat Processing and Cold

Storage Unit on the land bearing Gat No.193 at Mouze

Taroda (Kasba), Tq. Shegaon, Distt : Buldana.

(aa) Issue a suitable writ, order or direction and thereby

direct the respondent nos.1 to 10 not to permit

Respondent No.12-M/s. Best Cold Storage Pvt. Ltd., to

run its units so far as it undertake the activity of

sorting (de-boning).

(b) Issue an appropriate writ, order or a direction and

thereby quash and set aside the impugned order dated

26th March, 2010 (Annex.P-17) issued by the

Respondent No.9-Tahsildar, Shegaon, Distt –

Buldana, purportedly under Section 44(1) of the

Maharashtra Land Revenue Code, 1966, in favour of

Respondent No.11 M/s. Shahin Frozen Foods.

(c) Issue an appropriate Writ, order or a direction and

thereby quash and set aside the consent to establish

dated 22nd April, 2010 (Annex.P-7) granted by

Respondent No.7 Sub-Regional Officer of the

Maharashtra Pollution Control Board, Akola, in favour

of Respondent No.11- M/s. Shahin Frozen Foods.

(cc) Issue an appropriate writ, order or a direction and

thereby quash and set aside the Consent to Operate

given by Respondent No.6-MPCB to Respondent

No.11-M/s. Shahin Frozen Foods on 27th March, 2012

(Annex.P-21), as well as the modified Consent to

operate issued by Respondent No.7-Sub-Regional

Office of Maharashtra Pollution Control Board, Akola,

to Respondent No.12, M/s. Best Cold Storage Pvt. Ltd.

on 23rd June, 2008 (Annex.P-20) so far as it concerns

sorting (de-boning).

(d) Pending final disposal of the present Writ Petition,

grant an injunction restraining the Respondent No.11-

M/s. Shahin Frozen Foods, its agents, servants or

anyone acting on its behalf from setting up and

running the proposed Meat Processing and Cold

Storage Unit on land bearing Gat No.193 at Mouze

Taroda (Kasba), Tq. Shegaon, Distt : Buldana.

4. Respondent Nos.1 to 5, 8, 9 and 10 have not filed

Affidavits in the matter. However, the main contention and

prayers of the Applicant is related to the consent given by

MPCB and Pollution and therefore, we are of the opinion that

role of above Respondents in the subject matter is limited and

the Application can be effectively decided without their

Affidavits.

5. Respondent No.11 industry filed its Affidavit in the

High Court and opposed the Application. The Respondent

No.11 submits that the Respondent-Industry has started

functioning from 13th April 2012. MPCB has issued consent

to operate to the unit dated 27th March 2012 which is valid

upto 31st January 2015. The Respondent-Industry has

invested an amount of about Rs. 7 Crores for setting up of

the unit and making it operational. The Respondent submits

that they have taken huge loan from the Bank and currently

employing 70 workers in their unit. The Respondent further

submits that there is neither any slaughter house within the

premises of Respondent-unit nor any animals are

slaughtered in the premises of the Respondent. The

Respondent claims that they have taken necessary

permissions from all the regulatory agencies and they are

strictly adhering to the terms and conditions specifically laid

therein, which are being monitored by those respective

Regulatory Agencies.

6. The Respondent No.11 filed additional submissions in

the Tribunal and denied that allegation of the Applicant that

the slaughter houses in Vidarbha Region are not working and

no raw material is available from the authorized slaughter

houses. The contesting Respondent claims that the

contention of Applicant that he is procuring the raw material

i.e. slaughtered animals from the illegal sources which is

resulting in pollution, is without any basis and evidence. The

Respondents submit that the raw material in the form of meat

with bones is received by Respondent No.11 in his factory in

sealed containers by refrigerated trucks and vans in very

hygienic condition. The meat is completely sealed and cold

temperature are maintained. With the result that no air or

water pollution, what-so-ever, is caused during

transportation of the meat. Similarly, after the process of the

de-boning is carried out in the unit of the Respondent No.11,

the finished product is packed in the sealed container and

then transported by means of refrigerated vans resulting in

zero air and water pollution. The Respondent further

submits that the solid waste in the form of bones is sent to

the licensed bone mill in sealed containers. There is no solid

waste remaining after the process of separation of the bones

from the flesh is done. The fat and some part of the flesh

attached to the bones is also dispatched along with the bones

to the bone mill in sealed containers and there is no

environmental hazard and pollution. The Respondent No.17,

therefore, claims that there is no pollution caused due to

their industrial activities and therefore, the Respondents

prayed for dismissal of the Application.

7. The Respondent No.12 also filed separate Affidavit

opposing the Application which is more or less on the same

grounds. In order to avoid repetition of same pleadings, we

need not reproduce it.

8. The Respondent Nos.6 and 7-MPCB filed three

Affidavits which show an interesting trail of events leading to

consent management of these two respondent industries.

MPCB submits that consent to establish was given to

Respondent No.11 on 22-4-2010 for the de-boning (without

slaughtering activity)– 1200 MT/m. Subsequently, consent

to operate was given on 27th March 2012 for the meat

processing of 600 MT/m. MPCB submits that the de-boning

means only removal of bones which does not generate any

type of pollution. Therefore, the Board had granted Consent

to Establish only meat processing activity in Green category

to the Industry in the year 2010. M.P.C.B. submits that,

however, at the time of Consent to Operate, it was noticed

that industry is generating washing effluent and therefore,

consent to operate was granted on 27-3-2012 in Red category

as per the classification of industries issued by CPCB vide

letter dated 4-6-2012. However, in view of discrepancies in

dates, this argument is not valid.

9. MPCB further submits that the Respondent No.12 was

given consent to establish on 23-11-1998 in Green category

for cold storage unit. Subsequently, consent to establish for

expansion was granted on 17-5-2008 in Green category

which included sortening, segregation followed by de-freezing

of meat and other products. Thereafter, amended consent to

operate was granted to the unit on 23-6-2008 in Green

category which included sortening (de-boning), segregation

followed de-freezing and other products 200 MT/m. MPCB

filed another Affidavit subsequently and submitted that this

consent is further amended on 29-11-2014 with de-boning

capacity of 300 tones p.m. and by changing industry category

from Green to Red.

10. The MPCB further submits that they have conducted

inspection of both the Respondent Nos. 11 and 12-Industries

on 27-9-2014 and in case of Respondent NO.11, it was

observed that the industry has not provided mechanical

equipments for aeration treatment. In case of Respondent

No.12, the effluent generated is treated in primary treatment

tank. The solid waste generated from de-boning activities is

sent to Sagar Bone Mill Fatehpur, District Jalna. Based on

the deliberation in the final hearing, MPCB further submitted

the consent details of M/s. Sagar Bone Mill and also, report

of the analysis collected in May 2013 and July 2013 for

Respondent Nos.11 and 12 respectively. It is observed from

that reports that several parameters like suspended solid

BOD, COD, chlorides etc. are exceeding the limits. However,

though MPCB has mentioned the inspection of 27-9-2014

and has made observation on the effluent treatment facilities,

the analysis report of September 2014 are not submitted.

11. Considering the pleadings and the arguments of the

learned counsel, we are of the opinion that following issues

need to be resolved for final adjudication of the matter.

1) Whether the sourcing of the raw material from

slaughter houses need to be appraised by the MPCB

before allowing any downstream operations like meat

processing, based on precautionary principle?

2) Whether the necessary environmental safeguards are

prescribed for the Respondent-Industries by the

MPCB through its consents ?

3) Whether the industries have provided necessary

pollution control system to achieve the specified

norms ?

4) Whether any directions are required to be given to the

Authorities or industries ?

Issue No.1 :

12. Admittedly, both the industries i.e. Respondent

Nos.11 and 12 are involved in meat processing activities. It

is the claim of Respondent Nos.11 and 12 that they bring the

raw material i.e. slaughtered animals excluding hides from

outside and there are no slaughtering activities carried out in

the industrial premises. The main contention of the

Applicant is that the operation of both Respondents would

require about 1000 M.T. p.m. of slaughtered animals and

such slaughtering, if not done at the authorized place, with

appropriate pollution control arrangements, would cause

large scale pollution. The Applicant, therefore, contends that

it is the duty of the Regulating Agency i.e. MPCB to verify the

sources of such raw material on the precautionary principle.

At the same time, the Applicant contends that it is also the

responsibility of the industry-Respondents to declare the

sources of their raw material, considering the pollution

potential of slaughtering involved as the onus of proof is on

them for showing that their projects are environmentally

benign. He further contends that the authorities should have

been more careful while dealing with slaughtering of animals

as the Apex Court has issued directions time and again and

MPCB is having complete information on the slaughter

houses in operation in the State. It is the case of Applicant

that in spite of specific issue raised in the Application, neither

MPCB nor the industry-Respondents have come out with the

clean hands regarding information on sources of raw

material. The Industry-Respondents just negated the claim

of the Applicant without substantial data and information,

duly verified by the regulating agency, regarding sources of

raw material and documentation thereof.

13. We have gone through the submissions of the

Respondent Nos.11 and 12 and note that they have negated

the claim of the Applicant that they are sourcing their raw

material from unauthorized sources and have instead

pleaded that the Applicant should support his

charges/claims by substantial information. The MPCB

Affidavit only mentions that the Respondent No.12 is

sourcing the raw material from Bhopal and Bombay as per

the information given by the Industries. MPCB has not

placed on record any information regarding the sources of

raw material.

14. Coming to the Application of precautionary principle

and burden of proof principle, this Tribunal notes that the

precautionary principle is a concept, which is a part of

doctrine of Sustainable Development in Environmental

Jurisprudence. The Hon’ble Supreme Court in Vellor

Citizens' Welfare Forum Vs. Union of India, “(1996) 5 SCC

647” held that both precautionary principle and polluter’s

pay principle are accepted as a part of Law of the land. The

Apex Court also elaborated the principle to indicate that the

Government and statutory authorities must anticipate,

prevent and eradicate the causes of environmental

degradation in a case where there are threats of severe

damages. It was also held that lack of scientific certainty

should not be used as a reason for postponing the measures

for environmental degradation mitigation and therefore, the

Apex Court held that the onus of proof is on the developer to

show or justify that his action are environmentally benign.

This principle has further accepted by the Hon’ble Supreme

Court in several other matters including “M.C. Mehta

(2002(4) S.C.C. 356)” and also the “A.P. Pollution Control

Board” matter. It can be concluded from the above

discussion that the precautionary principle in its wider terms

has led to special burden of proof in environmental cases and

such burden is placed on those who want to change the

status-quo. In the instant case, Respondent Nos.11 and 12

industries and the Pollution Control Board are the essential

parties who have to take on shoulders this special burden.

During the argument, the learned Advocate for MPCB

submitted that as a part of general appraisal process, the

sources of raw material is not verified by the Board. However,

he has not averse to taking suitable steps if the Tribunal

directs so. We are aware that the industrial operations are

complex in nature and depending for the market, the sources

of raw material as well as sale of the products varies. It may

not be always possible even for the industries to project and

stick to the potential sources of raw material but there is a

need to draw some broad guidelines regarding such

verification and due deligence. One immediate example of

such due deligence is an office memorandum (OM) issued by

the MoEF on 19-4-2012 wherein the identification of coal

linkage for the proposed Thermal Power Plants has been

defined as criteria for consideration of environmental

clearance. The MoEF intended to know the sources of the

coal so that the environmental performance of the power

plant can be assessed. Appropriate indicative information

regarding the raw material could also be sought in the MPCB

consent Application in such specific cases. We are sure that

this particular information, may be even of discreet nature,

can be effectively used by the MPCB for environmental due

diligence.

15. The slaughtering activity has been identified one of the

major polluting activity and the Apex Court has issued

several directions to control of the pollution from time to time.

We, therefore, find a justification in the argument of the

Applicant that the MPCB should have appraised and

monitored the sourcing of raw material from the slaughter

house based on the precautionary principle and onus of proof

on the Respondents. Therefore, issue No.1 is answered in

the AFFIRMATIVE.

Issue No.2 :

16. The meat processing activity is covered under the

consent regime of MPCB under the provisions of Water

(Prevention and Control of Pollution) Act 1974 and Air

(Prevention and Control of Pollution) Act 1981. Some of the

important events related to the consent management of

Respondent Nos.11 and 12 are reproduced below :

Respondent No.11 :

S.No. Date Type of

consent

Category Activities

1. 22-4-2010 Establish Green De-boning, meat processing and

coal storage

2. 27-3-2012 Operate Red De-boning, meat

processing and coal storage.

Respondent No.12 :

S.No. Date Type of

consent

Category Activities

1. 23-11-1998 Establish Green Coal storage

2. 30-6-2001 Operate Green Coal storage.

3. 17-5-2008 Establish Green Sortening, segregating meat etc.

4. 23-6-2008 Operate (Amendment)

Green De-boning

5. 29-10-2014 Operate (Amendment)

Red

De-boning & coal storage

17. It can be said from above that there are so many

deviations/alteration in the consent granted to the

Respondents-Industries. We have carefully gone through the

Affidavit filed by the Regional Officer of MPCB on 29th

September 2014, wherein it is claimed that the de-boning

means only removal of bones which does not generate any

type of pollution and therefore, the Board had granted

consent to establish in Green Category in the year 2010

which falls at Sr.No.10 (chilling plants and coal storage) as

per the Notification SO/1253(E) dated 20-12-1999. It is

interesting to see that in the year 2010, consent is for meat

processing consisting of de-boning (without slaughtering

activity) and cold storage activities granted to Respondent

No.11. On careful reading of the said Notification attached

to Affidavit shows a specific industry activity of meat

processing is at Sr.No.B-23 in the list of Red category.

Similarly, it is mentioned that the consent to operate was

given on 22-3-2012 in Red Category based on CPCB

classification dt. 4-6-2012, we do not know why such

justifications are provided by MPCB which are factually

incorrect from its own submission itself. We feel that such

submissions are nothing but justifying the mistakes carried

out in the past which are in vain. Such misleading

submissions are to be overlooked. We wanted to take a

serious view of the matter but restrained in view of the

subsequent amendment in consents in red category.

18. It is also observed from the tabular information that

time and again the consents have been amended by certain

addition or deletion without much emphasis on inclusion of

appropriate environmental safeguards including Solid Waste

Storage, handling, disposal and also effluent treatment and

disposal arrangements. Even when the matter was pending

before the Tribunal, the consent of Respondent No.12 dated

23-6-2008 was amended from Green to Red category with an

increased capacity of meat processing from 200 to 300

MT/M. It is also observed that enforcement and compliance

of all these conditions is not up to the mark and therefore,

we are of the opinion that the MPCB needs to review the

consent conditions in respect of both these industries in a

comprehensive manner to include the necessary conditions

and safeguards and therefore, the issue No.2 is answered in

the NEGATIVE.

Issue No.3 :

19. The Industrial operation of Respondent No.11 and 12

generate significant amount of Solid Waste which is generally

in the form of bones, with some fat and flesh attached to the

bones. The MPCB has made it mandatory that this solid

waste needs to be disposed to the bone mills for further re-

use and processing. In spite of the specific allegations, the

MPCB has not come on record with the actual quantities of

solid waste generated, may be in last couple of years and

actual quantity of solid waste disposed to the bone mills.

Such information is required to be made available with MPCB

through its regular enforcement inspections and also,

through the environmental statements submitted by the

industries. In any case, the MPCB could have mandated the

industry to maintain records of the solid waste disposal, for

its perusal and verification. The Industries generate solid

waste in large quantities about 2 MT/day and storage of such

waste within the premises over a long period would cause

pollution and nuisance. The consents issued to the

industries now reflect generation of industrial waste water.

During the final arguments the MPCB was asked about the

performance of the effluent treatment plan (ETP) in view of

its critical observations in its visit reports dated 27-09-2014.

The MPCB has filed Affidavit on 12th November 2014 and it

is observed that the analysis reports of 27-11-2013 (sample

collected on 9-5-2013), 24-3-2014 (sample collected on 16-7-

2013) have been annexed, which shows the certain

parameters are exceeding the standards. However, we are

surprised to note that the analysis reports of the sample

collected on 27-9-2014 are not enclosed and also, there is a

significant delay in sampling, analysis and communication of

results. The visit reports of 27-9-2014 shows that

Respondent No.11 is generating effluent from washing

activities of de-boning section which is treated into two stage

treatment, anaerobic followed by conventional treatment, but

they have not provided mechanically aeration for aerobic

treatment. Similarly, the MPCB had noted that Respondent

No.12 is generating effluent which is treated in primary

treatment plant. The visit reports when read with the

analysis reports indicate that all is not well with the pollution

control systems at both the industries and it can be seen that

ETP is not adequate to meet the standards. Accordingly, the

issue No.3 is answered in NEGATIVE.

Issue No.4 :

20. To summarize, we hold that though MPCB should

have been more careful while granting the consent to

establish for these industrial units of Respondent No.11 and

12, there is no case made that the operations of these units

have caused significant environmental pollution. The

shortfalls in pollution control systems and also, necessary

due diligence on sourcing of raw material can be adequately

enforced by MPCB using the power under the Air (Prevention

and Control of Pollution) Act 1981 and Water (Prevention and

Control of Pollution) Act 1974. We are, therefore, not inclined

to quash the consent to establish granted to these industries.

We, therefore, hold that certain specific directions are

required to be given in keeping with precautionary principle,

under the provisions of sections 19 and 20 of NGT Act, 2010,

for ensuring environmental compliance and sustainable

development.

21. Accordingly the Application is partly allowed with

following directions:

1) The MPCB shall direct the industries-

Respondent Nos.11 and 12 to maintain record of

sourcing of slaughtered animals along with

necessary details like consent/clearance available

with those slaughtered houses, based on the

precautionary principle and burden of proof

principle laid down by the Apex Court. These

records shall be verified by MPCB during its

inspections.

2) The Member Secretary of MPCB shall review the

environmental performance and the consents

issued to both these industries and issue

appropriate time bound directions for up-

gradation of pollution control systems and also,

issue necessary amended consents in next four (4)

weeks. All the compliances need to be made by

industries in four (4) months. In case of failure of

industry to ensure substantial compliance in

stipulated time, MPCB shall issue closure

directions to the industry, which shall not be

revoked without permission of this Tribunal.

3) The MPCB shall visit these industries on

bimonthly basis for next two (two) years to

ascertain the compliance of consent conditions.

The Industries shall also be directed to maintain

the necessary records of the solid waste

generation and disposal which shall be verified by

MPCB officials during their inspections.

4) The Respondent Nos.11 and 12 shall pay the

costs of Rs.25000/- each to the Applicant towards

the cost of the Application.

Accordingly, the Application is disposed of.

.…………….……………….,JM

(Justice V. R. Kingaonkar)

..…….……………………., EM

(Dr. Ajay. A. Deshpande)

Date : December 24th, 2014