National Green Tribunal
Anshul Snacks And Beverages Pvt Ltd vs Bihar Pollution Control Board on 25 July, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
APPEAL No. 20/2022/EZ
IN THE MATTER OF:
M/s Anshul Snacks & Beverages Pvt. Ltd.,
Through Authorised Representative
Mr. Vikas Modi,
Plot No. NS/06, Phase-II,
Bela Industrial Area Muzaffarpur,
Bihar,
....Appellant(s)
Versus
1. Bihar State Pollution Control Board,
Through Chiarman,
Mr. Ashok Kumar Ghosh,
N.S. - B/2, Industrial Area, Patliputra,
Patna - 800010,
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Sanjay Gupta, Advocate
COUNSEL FOR RESPONDENTS :
None
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- 21st July, 2022 Pronounce On:-25th July, 2022 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes 1
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard Mr. Sanjay Gupta, learned Counsel for the Appellant and perused the documents on record.
2. This Appeal has been filed by the Appellant, M/s Anshul Snacks & Beverages Pvt. Ltd., seeking quashing of the letter No. 41 dated 07.01.2022 issued by the Bihar State Pollution Control Board (hereinafter referred to as 'the State Board') imposing Environmental Compensation of Rs. 39,25,000/- (Rupees Thirty Nine Lakhs Twenty Five Thousand only) on the Appellant.
3. Prima-facie, we find that this Appeal filed on 20.05.2020 is barred by limitation since for filing of Appeal under Section 16(c) against an order passed by the Pollution Control Board under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 read with Section 18 of the National Green Tribunal Act, 2010 (hereinafter referred to as 'Act, 2010') limitation is 30 (thirty) days. The proviso to Section 16, however, provides that the Tribunal may, if it is satisfied, that the Appellant was prevented by 'sufficient cause' from filing the Appeal within the said period, allow it to be filed under this Section within a further period not exceeding 60 days.
4. A perusal of the letter dated 07.01.2022 (Annexure A/1, page no. 42 of the paper book), would show that this is only a show 2 cause notice whereby after determining the Environmental Compensation of Rs. 39,25,000/- (Rupees Thirty Nine Lakhs Twenty Five Thousand only), the State Board gave an opportunity to the noticee to file objection to the State Board's action of levying Environmental Compensation within 15 days from the receipt of the notice.
5. The backdrop of this notice is that an Original Application No. 02 of 2022 was taken up suo-motu by the National Green Tribunal, Principal Bench, New Delhi, (hereinafter referred to as 'NGT, Principal Bench') on account of an incident where seven persons died and four sustained injury after a boiler explosion in the factory of the Project Proponent (Appellant herein) in Bela Industrial area, Phase-II, Muzaffarpur, Bihar, in which the NGT, Principal Bench on 11.01.2022 passed the following order:-
"5. In view of above, we constitute a six-member joint Committee comprising MoEF&CC (Integrated Regional Office, Ranchi), CPCB, State PCB, District Magistrate, Muzaffarpur, State Disaster Management Authority and Director, Industries, Bihar for the purpose. The CPCB and the State PCB will be the nodal agency for coordination and compliance. The joint Committee may meet within two weeks and undertake visit to the site and ascertain status of compliance of environmental norms and remedial action. The joint Committee will be free to co-opt any other expert- institution and coordinate with any other concerned Department. The joint Committee may also interact with the stakeholders, including the PP. Earlier reports on the subject on the website of CPCB may also be looked into. The heirs of the deceased may be paid compensation at the rate of Rs. 15 lakhs (in respect of each deceased) and 3 seriously injured victims (those who have been hospitalized) be paid compensation at the rate of Rs.2 lakh each and other injured (not hospitalized) at the rate of Rs. 50,000/- each. The District Magistrate may ensure recovery of such compensation from the project proponent. The project proponent is at liberty to move this Tribunal, if aggrieved. The Committee may give its report within two months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
List for further consideration on 19.04.2022."
6. The order of the NGT, Principal Bench dated 11.01.2022 would also show that the State Pollution Control Board has entered appearance and filed a copy of complaint filed before the jurisdictional CJM against M/s Anshul Snacks and Beverages Pvt. Ltd. (Appellant herein), alleging violation of Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 in operating the factory without 'Consent to Operate'. The NGT, Principal Bench, therefore, observed that the Project Proponent is liable to compensate the environment, heirs of the deceased and the injured and adopt safety norms to prevent such incidents in future. The Tribunal also constituted a Six Members' Joint Committee comprising of; Ministry of Environment, Forests and Climate Change, Integrated Regional Office, Ranchi, Central Pollution Control Board, State Pollution Control Board, District Magistrate-Muzaffarpur, State Disaster Management Authority, Bihar and the Director of Industries, Bihar, and called for a status report. The Tribunal also directed that the heirs of the deceased may be paid compensation of Rs. 15 lakhs each and Rs. 2 lakhs 4 each to those who have been hospitalized and Rs. 50,000/- (Rupees Fifty Lakhs) to other injured but who are not hospitalized. It was also observed that the Project Proponent is at liberty to move this Tribunal (NGT, Principal Bench), if aggrieved.
7. In pursuance of these directions, the State Board determined the Environmental Compensation and issued a notice on 07.01.2022 which is under challenge in the present Appeal.
8. It is stated that the Appellant had filed his objection/representation before the State Board on 11.03.2022 (Annexure A/6, page no. 112 of the paper book), wherein he requested that he may be granted 15 days time to verify the calculation of the Environmental Compensation of Rs. 39,25,000/- (Rupees Thirty Nine Lakhs Twenty Five Thousand only) with further three months time to deposit the said amount towards environmental damages.
9. Thereafter, an order was passed by the State Board on 15.03.2022 (Annexure A/7, page no. 114 of the paper book), specifically stating therein that on 11.03.2022 Advocate Sri Sujeet Gupta had appeared on behalf of the Project Proponent before the State Board and had undertaken to deposit the Environmental Compensation, seeking 3½ months time to deposit the same which was not found reasonable and, therefore, the Project Proponent was granted 30 days time for depositing the Environmental Compensation of Rs. 39,25,000/- (Rupees Thirty Nine Lakhs Twenty Five Thousand only).
5
10. The Appellant thereafter filed an Application before the NGT, Principal Bench on 13.04.2022 seeking the following reliefs:-
1. Allow the present Application and pass a fresh order upon giving opportunity to the Applicant to present its case.
2. Consider the compensation awarded to 5 workmen of the applicant namely Vinod Rai, Ajeet Kumar, Sandeep Kumar, Anar Nath Shah and Lallan Yadav under Workman Compensation Act, 1923 and ex-gratia compensation given by the State Government and PMO and modify the order dated 11.01.2020 passed in OA No. 02.2022 to that extent.
3. Consider the payment of ex-gratia compensation awarded to the legal heirs of other two deceased persons and other hospitalized injured persons and non hospitalized injured persons and modify the order dated 11.01.2022 by award of reasonable compensation to them.
4. Direct the Bihar State Pollution Control Board to reconsider the Compensation of Rs. 39,25,000/-
imposed towards Environmental Damages/Compensation, in view of no visible damage to the environmental including air, water and soil was noticed by the joint committee and/or in alternative given reasonable time to pay the said compensation.
(c) Pass any other and further orders as this Hon'ble Tribunal may deem fit and proper in the light of facts and circumstances of the present matter."
11. The NGT, Principal Bench, by its order dated 22.04.2022 disposed of the Original Application No. 02 of 2022 as well as the IAs with the following observations in para 5 (page no.151-152 of Appeal) which reads as under:-
6
5. We have considered the matter and the submissions advanced. We accept the report of the Committee finding that boiler was operated with high pressure, against safety norms. The unit was operating without requisite consent to operate which was refused on 7.4.2020 and never challenged. The PP has violated Water and Air Acts and has to be held accountable for such violations. Compensation assessed by the PCB on that account cannot be avoided. Though available, no statutory appeal has been filed. In such a situation, no visible damage is required to be separately shown.
Thus, PP is liable to pay compensation except that with regard to workmen, matter is beyond jurisdiction of this Tribunal and victims are to be paid as per the said Act. As regards factual aspect of inapplicability of liability under NGT Act for the workmen, we leave the question to be determined by the District Magistrate who may look into the record and determine who are the employees covered by the Employees' Compensation Act and those not so covered will stand covered by the NGT Act in the matter of compensation, to be paid at the rate already determined. In case, compensation is found payable under the Employees' Compensation Act, District Magistrate may ensure that due compensation is disbursed strictly under the said Act. If deposit has not been made as per timeline, the PP may be required to make further deposit as per the said Act. If and to the extent the victims are not workmen covered by the said Act, compensation may be paid in terms of earlier order of this Tribunal. If the PP does not deposit the same, coercive measures be taken for recovery. Compliance be ensured as far as possible within one month. Any ex gratia payment will be independent of this order. This order will not affect any other liability of the PP. Since victims may be poor people and may not be aware of their rights, we request the Bihar State Legal Services Authority, to provide 7 requisite assistance. The unit may not be allowed to operate without requisite consent and taking of all safety precautions, as suggested by the Committee. The application will stand disposed of.
All pending I.A.s will also stand disposed of."
12. What is noteworthy is that the Appellant in his I.A. filed before the Tribunal had clearly mentioned that an order had been passed by the State Board on 15.03.2022 but he stated that he had sent a further communication to the Board on 13.04.2022 requesting them to grant further 30 days time for necessary compliance. Paras 17 & 18 of the Application read as under:-
"17. That considering the representation/submission of the Applicant Company the Bihar State Pollution Control Board granted 30 days time to comply with its Orders/Directions to deposit the Environmental Compensation/Damages."
18. That there after the Applicant has further set an communication through E-Mail dated 13th April 2022 requesting them to grant further 30 days for necessary compliance and further stated that we shall be appearing before this Hon'ble Tribunal on the next date and make our submissions to this effect."
13. The NGT, Principal Bench in its order dated 22.04.2022 while disposing of the Original Application as well as the IAs, clearly observed that the unit was operating without requisite 'Consent to Operate' which was refused on 07.04.2020 and never challenged. The Project Proponent has violated Water and Air Acts and has to be held accountable for such violations. Though available, no 8 statutory appeal has been filed also. In such a situation, no visible damage is required to be separately shown. Thus, the Project Proponent is liable to pay compensation except that with regard to workmen, matter is beyond jurisdiction of this Tribunal and victims are to be paid as per the said Act.
14. What is noteworthy is that even while disposing of the Original Application No. 02 of 2022 as well as the IAs, the NGT, Principal Bench upheld the Environmental Compensation but merely because it was further observed that no statutory appeal has been filed by the Appellant, the Appellant has filed the present Appeal.
15. We are, prima-facie, satisfied that the present Appeal is barred by limitation. We may also note here that in the first instance, the Appellant has not challenged the final order of the State Board dated 15.03.2022 which was passed after he had filed his representation dated 11.03.2022 and, therefore, the notice dated 07.01.2022 will be deemed to have merged in the order of the State Board dated 15.03.2022.
16. Merely because the Appellant had filed an I.A. before the NGT, Principal Bench and the same was decided on 22.04.2022 would not amount to extension of limitation for filing the statutory Appeal under Section 16 of the National Green Tribunal Act, 2010. The Tribunal even in its order dated 22.04.2022 clearly observed that the Appellant had not filed any appeal against the order imposing Environmental Compensation.
9
17. The final order of the State Board dated 15.03.2022 was well within the knowledge of the Appellant as he has referred to it in para 17 of his I.A. and copy of the order has also been filed as annexure before the NGT, Principal Bench. Inspite of the same the Appellant did not file any appeal challenging the said order either before the NGT, Principal Bench or before us in the NGT, Eastern Zone Bench, within the period of limitation of 30 days.
18. The law is well settled by the Hon'ble Supreme Court that an order of a Court will not extend limitation and limitation will count from the date of the order which gives rise to a cause of action to the Appellant.
(i) (1996) 6 SCC 267) State of Karnataka & Ors. Vs. S. M. Kotrayya & Ors.;
19. In para 9 of the State of Karnataka & Ors. Vs. S. M. Kotrayya & Ors. (Supra), the Hon'ble Supreme Court has held as under:-
"9. Thus considered, we hold that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation.
In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of 10 their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay."
20. As already noted herein above, the final order was passed by the State Board on 15.03.2022 on the undertaking given by the Appellant to deposit the amount of Environmental Compensation, which the Appellant has not appealed against.
21. In view of the law laid down by the Hon'ble Supreme Court in the case of State of Karnataka & Ors. Vs. S. M. Kotrayya & Ors., (Supra), we find that this Appeal challenging the show cause notice dated 07.01.2022 filed on 20.05.2022 is grossly barred by limitation being beyond 30 days and the Appellant has failed to show 'sufficient cause' for condoning the delay under the proviso of Section 16 of the National Green Tribunal Act, 2010.
22. For reasons aforesaid, the Appeal is accordingly dismissed.
23. There shall be no order as to costs.
....................................... B. AMIT STHALEKAR, JM .....................................
SAIBAL DASGUPTA, EM Kolkata, July 25th, 2022, Appeal No.20/2022/EZ AK 11