National Green Tribunal
M/S. Eshyasi Pharma Ltd vs Gujarat Pollution Control Board on 19 May, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Appeal No. 15/2021 (WZ)
M/s. Eshyasi Pharma Ltd. Appellant
Versus
Gujarat Pollution Control Board Respondent
Date of hearing: 19.05.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE M. SATHYANARAYANAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Appellant: Mr. Gaurav Chudasama, Advocate
ORDER
1. This appeal has been preferred under Section 16 of the NGT Act against the order of Gujarat Pollution Control Board (GPCB) dated 10.03.2021 requiring the appellant to pay compensation of ₹8,87,500/- for damage to the environment by continuing illegal activity, despite closure order.
2. The GPCB, found following violations during inspection dated 22.07.2020:
"* Unit has provided sodium acetate manufacturing facilities and for that unit has not obtained CTE CCA of Board.
* During visit chlora acetone, salicy luldehyde, ortho nitro, benzaldehude and sulfamide materials are observed in production plant area as well as in raw material issue register which are not raw materials of Consented products.
* Unit has started production of 2-Chloro 5 Propionyl Phenylacctic Acid-CPPM. [2-(Phenylthio) 5 Propionylphenyl)] 1 Acetic Acid=PPP. Diaminomethylene Amino (1-Amino 1 (minomethylene) Thiomethyl (Thiazoledihydrochloride)=ITU, N- Sulfamyl-3-Chloro Proponimidamine Hydrochloride=1F. Benzobromarone, Benzidine derivative, 2-Ehty) Cumarone products without prior permission of the Board (EC/CTE/CCA).
* Unit has provided ventury scrubber attached to GLR-101, which is not in operation and gas emission is observed during visit. pH of this gas fumes found acidic on pH strip and scrubbing media of ventury scrubber is also found acidic. Unit has not provided S.M.F. with ventury scrubber. Unit has not obtained CTE-CCA for process gas stack.
* Small water ponding is observed near ventury scrubber located at the terrace and pH of this ponding water is found acidic.
* Traces of alkaline w/w was observed near ETP as well as behind sodium acetate plant. Traces of alkaline w/w was observed on land and it also found alkaline."
3. On 11.09.2020, the State PCB, passed closure order under the Water/Air Acts. The appellant filed an application for revocation of closure order on 23.10.2020 mentioning the remedial measures taken as follows:
" Sr. Reason of Remedial measures taken
No. closure
6.1 Unit has provided As an immediate action, we have
sodium acetate completely stopped using
manufacturing observed sodium acetate
facilities and for manufacturing facilities and all of
that unit has not the motors, pipelines, condensers
obtained and other ancillary utilities
CTE/CCA of connected to plant machineries in
board. sodium acetate manufacturing
facilities are completely detached.
Photographs of the same are
enclosed as an Annexure-4.
We assure you that only after
getting necessary permission from
concerned authority, we will start
production activity in above-said
manufacturing facilities. "
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4. However, on further inspection the GPCB found that the appellant was still violating and gave notice dated 20.11.2020 as follows:
"1) During the visit of your unit, detailed process flow diagram along with other supporting evidence be produced regarding use of the different raw materials found in your plant premises like sodium acetate product (powder) @ 15 MT, Sodium acetrate (ml) @ 700 Ltr., Acetic acide @ 7000 Ltr. MEG @ 700 kg., IPA @ 1200-1300 Ltr., Methanol @ 6000 Ltd.
2) During the visit of your unit, no any type of register of the quantity of raw material and product is being maintained and hence, the quantity of exact stock could not be verified during the visit. Hence, data of quantity of all the raw material and product lying in the premises be produced along with the supporting evidence and stock register be maintained.
3) 35 drums in which there is acetic acid as stated by you kept in open in the inner side adjacent to the wall of your premises nearby the Haz waste storage are of your unit, be stored in the closed store lifting the same.
4) As stated by you, you have sent the EJCL collecting the same stored in ponding w/w through tanker and hence, explanation in that regard be made with supporting evidence.
5) All the instructions and directions of the Board be strictly followed.
6) Not to make production of any product without prior permission of the Board (EC/CTE/CCA).
7) Previous instructions of the Board be strictly followed.
8) Display Board as per the order of NGT be affixed on the premises of your unit."
5. The GPCB also filed criminal complaint before the Chief Judicial Magistrate, Padra, on 12.11.2020 for prosecution against the appellant. The appellant thereafter gave letter dated 28.01.2021 that it had dismantled the plant. On verification, this was not found to be correct. Notice dated 25.02.2021 was issued by GPCB to the appellant as follows:
"1. At the visit, IF Dry, PPP, Sulfamide, ML of Banzgram (BZN), 2 ethyle cumarone (2EC), FMT Crude, IPA, Sodium bi carbonate, caustic potash flame, Methonol, ITU, CPPM were found stored in your production plant and clarification be made in that regard."3
6. In above background, the impugned order has been passed invoking polluter pays principle for the period illegal production of drugs continued without requisite statutory permissions.
7. We have heard learned Counsel for the appellant. Learned Counsel for the appellant submitted that the closure order erroneously stated that the appellant had not given a reply to the observations during the visit on 22.07.2020. In fact, reply dated 27.07.2020 was given which is annexure A-3. There is no mention of damage to the environment nor CPCB circular about compensation provides for compensation for violations, without showing damage to the environment.
8. We are unable to accept the above submissions to interfere with the impugned order. Even if there is erroneous mention that the appellant had not replied to the observations dated 22.7.2020, the fact remains that the appellant accepted the violations and claimed compliance. It even claimed dismantling of disputed production activity. In these circumstances for the period for which illegal production was carried out, the appellant cannot disown liability. Once production without statutory compliances is established, the appellant cannot say that no compensation can be required to be paid for violation of environmental norms without proof of actual damage. In such circumstances, damage to environment cannot be ruled out nor violation of law can be without consequences. Apart from prosecution, compensation for violations can be collected for restoration of environment. Circular of CPCB is not comprehensive for all situations. Polluter pays principle is part of sustainable development, which in turn is part of right to life and is part of domestic jurisprudence as held in 4 Vellore Citizen Forum v UOI, (1996) 2 SCC 647. We, thus, do not find any error in the impugned order.
The appeal is dismissed.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM M. Sathyanarayanan, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM May 19, 2021 Appeal No. 15/2021 (WZ) AVT 5