National Green Tribunal
Neha Galvanizer (India) Private ... vs West Bengal Pollution Control Board on 30 January, 2023
Item No.03 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Appeal No.23/2022/EZ
Neha Galvanizer (India) Private Limited
Having its registered office at
Jalan Industrial Complex,
Gate No.1, Village Jangalpur, Biprannapara,
P.O. Begri, P.S. Domjur,
District-Howrah
Pin-711411, West Bengal
Being represented by its Director
Sri Dharmendra Kumar Daga
........Appellant(s)
Versus
1. West Bengal Pollution Control Board
Having its office at Paribesh Bhawan Building,
10A, Block-LA, Sector-III,
Salt Lake, Kolkata
Pin-700106, West Bengal
Being represented by its Chairman
2. Chief Engineer, Operation & Execution Cell
West Bengal Pollution Control Board
Having its office at Paribesh Bhawan Building,
10A, Block-LA, Sector-III,
Salt Lake, Kolkata
Pin-700106, West Bengal
3. Environmental Engineer (O & E),
Member & Convenor-Technical Cell,
West Bengal Pollution Control Board
Having its office at Paribesh Bhawan Building,
10A, Block-LA, Sector-III,
Salt Lake, Kolkata
Pin-700106, West Bengal
........Respondent(s)
Date of hearing: 30.01.2023
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
For Appellant(s) : Mr. Shovan Ghosh, Advocate
For Respondent(s) : Mr. Nayan Chand Bihani, Adv. (in Virtual Mode) a/w
Mr. Dipanjan Ghosh, Adv. for R-1 to 3
1
ORDER
1. Heard Mr. Shovan Ghosh, learned Counsel appearing for the Appellant and Mr. Nayan Chand Bihani, learned Counsel (in Virtual Mode) assisted by Mr. Dipanjan Ghosh, learned Counsel appearing for the Respondent Nos.1, 2 & 3, West Bengal Pollution Control Board.
2. The Appellant in this Appeal is seeking quashing of the order dated 06.05.2022 passed by the West Bengal Pollution Control Board, directing the Appellant to submit Environmental Compensation of Rs.3,15,000/- (Rupees Three lakhs fifteen thousand only) and also execute a Bank Guarantee of Rs.5,00,000/- (Rupees Five lakhs only) valid for 12 months in favour of the West Bengal Pollution Control Board. This order has ben passed in exercise of powers under Section 33A of Water (Prevention & Control of Pollution) Act, 1974 (hereinafter known as Water Act, 1974) and Section 31A of Air (Prevention & Control of Pollution) Act, 1981 (hereinafter known as Air Act, 1981).
3. Briefly stated the facts of the case are that the West Bengal Pollution Control Board carried out an inspection of the Appellant's premises on 22.10.2019 and thereafter, submitted an Inspection Report dated 09.11.2019. The Inspection Report dated 09.11.2019 reads as under: -
"Observation Pickling tank-02 nos., Rinsing tank-03 nos. & [A] Sources of generation Scrubber-02 nos. of Liquid waste [B] Facilities available for ETP (9 KLD), comprising of the following:-
Treatment Collection tank Chemical dozing-cum-settling tank (polyelectrolyte &costic soda) Sand & gravel Filter Reuse/discharge to Panchayat drain via premises drain. No sludge drying bed observed.
Sludge is manually scooped from time to time after 2 emptying the settling tank.
[C] Generation of sewage Sewage (generated from WC) goes to septic tank/soakpit and Its treatment/disposal [D] Observation & ETP is operated in batches. During inspection, the ETP comments on performance was in operation. One (01) no. effluent sample was of treatment facility of collected from final outlet of ETP & one no. untreated liquid waste quenching water collected nearby ETP sent to Central
Laboratory for analysis & the last sampling dated 19.7.19 report shows non compliance w.r.t. the discharge standard (pH, Iron, TSS, Zinc). Quenching water was being discharged without any treatment.
[E] Sources of generation (i) Pickling tank - 02 nos. of gaseous emission (ii) Zinc bath - 01 no. (56 MT)
(iii) Zinc melting furnace - 01 no. (FO-fired)
(iv) DG set - 01 no. (82.5 KVA) [F] Facility available for (i) Pickling tanks are provided with arrangement for treatment of gaseous lateral collection of fumes & connected to an APCS emission comprising of a scrubber & stack-18m GL.
(ii) Zn-bath is provided with lip-hoods & connected to an APCS comprising of a scrubber & stack - 18m GL.
(iii) Zn-melting furnace is connected to a stack of height 18m GL.
(iv) The DG set is of 'Green' type and provided with stack of adequate height.
[G] Observation & The galvanizing section was running during the comments on performance visit. There was significant fugitive emission from Zn-bath of treatment facility for & pickling section. The APCS was not in operation during gaseous emission visit. The APCS was operated after inspecting officials directed the unit but its condition was not satisfactory as the collection of fumes was not adequate.
[H] Observation on noise ---------
pollution generated from
industrial process along
with measured levels (if
measurement required)
[I] Information regarding None
solid waste generation
and disposal/storing
facility
[J] Information regarding (i) Zinc ash/dross- stored in HDPE drums & sold out
Hazardous waste to registered recyclers.
generation and onsite (ii) ETP sludge- stored in PP bags & disposed to
3
storing facility CHWTSDF but not kept as per hazardous rules.
(iii) HDPE drums given out to drum washing units. [K] Status of Hazardous Valid upto 30/11/2022.
Waste Authorization
[L] Storing of Hazardous ---------
Chemicals under MSIHC
rules
[M] Status of consent to Possess valid NOC ----
establish At present whether NOC required Yes
If yes, whether applied for NOC No
If yes, NOC applied on ----
[N] Status of consent to Possesses valid consent to Yes
operate operate
If yes, validity upto 31/10/2019
If no, whether applied for consent The unit has
on 9.9.19 to extend its CFO submitted a letter
validity
If yes, applied on ----
[O] Any other relevant information:
The unit was in operation during visit. The unit is engaged in the production of galvanized MS angles/channels. House-keeping of the unit was found not at all satisfactory and the approach route to the ETP was blocked by raw materials & finished products.
Remarks/Comments/Recommendation:
(i) The unit shall obtain CFE&CFO for the 82.5 KVA DG set (as in the previous CFO CO83990 dtd. 15/12/2015 the capacity of DG set was recorded as 50 KVA)
(ii) The unit should rectify & upgrade Zn bath APCD & Pickling APCD and should not run without proper and effective APCS.
(iii) During inspection quenching water was being discharged without any treatment.
The unit should not discharge any untreated effluent without adequate treatment to meet discharge norms.
(iv) The unit should improve its overall housekeeping."
4. Another inspection was carried out on 27.10.2021 and the report prepared. The Inspection Report reads as under: -
Inspection Reference As per Schedule of inspection for Oct., 2021 for Howrah R.O. Name of the Industry M/s Neha Galvanizer (India) Pvt. Ltd.
Address Jalan Industrial Complex, Gate No.1,
Biprannapara
P.O. & Pin Code Begri; 711411
4
P.S. Domjur
District Howrah
Local Body/Authority Begri GP
Power supply authority WBSEDCL
Category of industry Red (Galvanizing)
Date & Time of inspection 27/10/2021; 15:05 hrs. to 15:35 hrs.
Date of previous visit 22/10/2019
Inspecting officers Smt. B. Majumdar, EE & Sri C. Dawn,
AEE
Persons met during inspection Sri Chittaranjan Naik, Manager
Observation Pickling tank-02 nos., Rinsing tank-03
[A] Sources of generation of nos. & Scrubber-02 nos.
liquid waste
[B] Facilities available for ETP (capacity-9 KLD) comprising of the
treatment following:
Collection tank Chemical dozing tank-
cum-settling tankSand & gravel
filterdischarge to outside drain via
premises drain.
ETP was not running during visit &
was seen in defunct state.
There is no sludge drying bed. No
storage of sludge was found during
visit & unit could not produce any
document regarding disposal of
sludge. No treatment chemicals were
found near the dilapidated ETP which
is almost inaccessible due to storage
& pile up of raw materials and
finished products in the ETP area. All
these clearly indicate that unit never
runs its ETP and untreated polluted
effluent is directly discharged as a
regular practice.
[C] Generation of sewage and Sewage (generation from WC) goes to
its treatment/disposal septic tank/soakpit.
[D] Observation & comments The ETP was seen to be in defunct
on performance of treatment state.
facility of liquid waste
[E] Sources of generation of (i) Pickling tank-02 nos.
gaseous emission (ii) Galvanizing bath-01 no. (56 MT)
(iii) Zinc melting furnace-01 no. (F.O.-
fired) 5
(iv) DG set-01 no. (82.5 KVA) [F] Facility available for (i) Pickling tanks are provided with treatment of gaseous an APCS comprising of side emission collection arrangement of fumes, scrubber & stack-18m GL.
(ii) Galvanizing bath is without any APCS.
(iii) Zine melting furnace is provided with a stack-18m GL.
(iv) The DG set is of 'Green' type.
[G] Observation & comments During visit, galvanizing activity was on performance of treatment going on. Huge fugitive emission was facility for gaseous emission taking place.
[H] Observation on noise -----------
pollution generated from
industrial process along with
measured levels (if
measurement required)
[I] Information regarding solid None
waste generation and
disposal/storing facility
[J] Information regarding (i) ETP sludge- no storage was seen &
Hazardous waste generation no document of disposal through
and onsite storing facility CHWTSDF could be produced by
the unit.
(ii) Zinc ash/dross- nothing shown by
the unit personnel.
[K] Status of Hazardous Valid upto 30/11/2022.
Waste Authorization
[L] Storing of Hazardous ----------
Chemicals under MSJHC
rules
[M] Status of consent to Possess valid NOC ----
establish At present whether NOC required Yes
(for the DG set of 82.5 KVA)
If yes, whether applied for NOC No
If yes, NOC applied on ----
[N] Status of consent to Possesses valid consent to operate Yes
operate If yes, valid upto Is
valid upto 31/10/2023
If no, whether applied for consent ----
If yes, applied on ----
[O] Any other relevant information:
The nit, engaged in galvanizing of MS items, was running during visit. APCS 6 was inoperative & defunct. Huge fugitive emission was taking place. ETP was defunct and inaccessible, surrounded completely with raw materials & finished galvanized products. Environmental Information Board at the entrance was found to be blank.
Remarks/Comments/Recommendation:
1) Unit was found running without the APCS & ETP in operation
2) Huge fugitive emission was taking place.
3) ETP was defunct & inaccessible. The unit was issued show-cause notice dt.29/11/2019 for earlier observed non-compliances. In spite of the unit's assurance through its reply letter dt. 11/12/2019, commitment proved to be false. APCS & ETP are not operated, ETP is inaccessible & no updation of Environmental Information Board is done.
4) Stern regulatory action including closure with disconnection of electricity is recommended."
5. It is stated that after the first inspection a notice was issued to the Appellant on 29.11.2019 to which the Appellant also submitted his reply on 11.12.2019. After the inspection of 27.10.2021, a notice was issued to the Appellant by the West Bengal Pollution Control Board dated 15.12.2021 directing the Appellant to appear before the West Bengal Pollution Control Board in a hearing with all statutory licenses etc. The notice mentioned that the hearing would be held on 28.12.2021. The notice dated 15.12.2021 is Annexure- D, page no.37 to the Appeal. In response, a Director of the Appellant-Company appeared in the hearing and also submitted a letter dated 28.12.2021 stating therein that presently the Air Pollution Control Device (APCD) and Effluent Treatment Plant (ETP) of the Unit are in running condition. After the hearing was concluded the impugned order dated 06.05.2022 was passed against the Unit.
6. Mr. Shovan Ghosh, learned Counsel for the Appellant submitted at the outset that the provisions of the Rule 4 sub-Rule (3a) of the Environment (Protection) Rules, 1986, have not been complied with 7 inasmuch as before passing the impugned order, no notice as required in Rule 4 was given to the Appellant.
7. Reliance has been placed upon the judgment of the High Court of Delhi dated 11.03.2020 passed in W.P. (C) No.2693/2020, Public Works Department, GNCTD vs. Central Pollution Control Board.
8. Learned Counsel next submitted that the document filed at page no.39 is a typographical error and shows the date of the letter as 28.12.2021 as well as the date of its receiving by the West Bengal Pollution Control Board as 28.12.2021 whereas this letter is a typed copy of the document filed as Annexure-E, page no.38 to the Memo of Appeal and had been served on the State Pollution Control Board as far back as 24.11.2021 and the Appellant had already informed the West Bengal Pollution Control Board that the Air Pollution Control Device (APCD) and Effluent Treatment Plant (ETP) of the Unit was in running condition and, therefore, if at all Environmental Compensation had to be computed it could be computed only upto 24.11.2021 since thereafter, no inspection was carried out by the West Bengal Pollution Control Board till the date of hearing i.e. 28.12.2021 and even thereafter, till the date of passing of the impugned order on 06.05.2022, whereas the West Bengal Pollution Control Board has computed the Environmental Compensation assuming violation for a period of 63 days i.e. from the date of inspection 27.10.2021 till the date of hearing i.e. 28.12.2021.
9. Disputing the contention of the Appellant the Respondents have filed counter-affidavit dated 03.11.2022.
10. Mr. Nayan Chand Bihani, learned Counsel assisted by Mr. Dipanjan Ghosh, learned Counsel submitted that if the two 8 Inspection Reports of 22.10.2019 and 27.10.2021 are examined, large scale Environmental violations have been committed by the Appellant's Unit. Learned Counsel referred to paragraphs [D], [G] and [O] of the Inspection Report dated 09.11.2019 of the inspection carried out on 22.10.2019. Learned Counsel also referred to the second Inspection carried out on 27.10.2021 and referring to paragraphs [B], [D] and [G], he submitted that even after two years large scale Environmental violations by the Appellant-Unit were observed. Learned Counsel also submitted that the number of days for computing Environmental Compensation as 63 days is correct since during the hearing on 28.12.2021, the Appellant submitted a letter stating that all statutory compliances as required in law had been complied with. The document at page no.39 to the Memo of Appeal which is a letter from the Appellant to the Environmental Engineer, is dated 28.12.2021 and shows the date of receiving in the office of the West Bengal Pollution Control Board as 28.12.2021 and therefore, the period of Environmental Violation from 27.10.2021 to 28.12.2021 is absolutely correct.
11. We may refer to the first Inspection Report dated 09.11.2019 of an inspection carried out on 22.10.2019 and we find that with regard to: -
Paragraph [B], the observation is that-during inspection no sludge drying bed was observed and the same was manually scooped from time to time after emptying the settling tank.
Paragraph [D] of that Report-the finding is that the discharge standard of pH, Iron, TSS, Zinc showed non-compliance and that quenching water was being discharged without any treatment. 9 Paragraph [G] of the Report-showed that during the visit the galvanizing section was running. There was significant fugitive emission from Zn-bath & pickling section. The Air Pollution Control System (APCS) was not in operation during the visit. The Air Pollution Control System was operated after inspecting officials directed the Unit but its condition was not satisfactory as the collection of fumes was not adequate.
Paragraph [J]-the Hazardous Waste and Effluent Treatment Plant sludge was not kept as per Hazardous Waste Rules.
During the visit, it was also observed that House-keeping of the Unit was found to be not at all satisfactory and the approach route to the ETP was blocked by raw materials & finished products.
The following Remarks/Comments/Recommendations were made by the West Bengal Pollution Control Board which read as under: -
Remarks/Comments/Recommendation:
(i) The unit shall obtain CFE&CFO for the 82.5 KVA DG set (as in the previous CFO CO83990 dtd. 15/12/2015 the capacity of DG set was recorded as 50 KVA)
(ii) The unit should rectify & upgrade Zn bath APCD & Pickling APCD and should not run without proper and effective APCS.
(iii) During inspection quenching water was being discharged without any treatment. The unit should not discharge any untreated effluent without adequate treatment to meet discharge norms.
The unit should improve its overall housekeeping." The Report dated 09.11.2019 has also been extracted hereinabove.
10
12. Thereafter, the premises were again inspected on 27.10.2021. This Report has also been extracted hereinabove.
In Paragraph [B], the team observed that-the Effluent Treatment Plant (ETP) was not running during the visit and was seen in a defunct state. There is no sludge drying bed. No storage of sludge was found and the Unit could not produce any document regarding disposal of sludge. No treatment chemicals were found near the dilapidated ETP which is almost inaccessible due to storage & pile up of raw materials and finished products in the ETP area which clearly indicated that the Unit never operated its ETP and untreated polluted effluent is directly discharged as a regular practice.
In paragraph [D], it was observed that-the ETP was seen to be in a defunct state.
In paragraph [G], it was observed that-huge fugitive emission was taking place.
In paragraph [J], with regard to ETP sludge, the Report mentions that-no storage was seen and no document of disposal through CHWTSDF could be produced by the Unit.
The Hazardous Waste Authorization was valid upto 31.11.2022. The Appellant's Unit had a Consent to Operate (CTO) which was valid upto 31.10.2023.
In paragraph [O], it was observed that-during the inspection, the Unit was running but Air Pollution Control System was inoperative & defunct. Huge fugitive emission was taking place. ETP was defunct and inaccessible. Environmental Information Board at the entrance was found to be blank.
11
The Remarks / Comments / Recommendations made by the West Bengal Pollution Control Board have already been extracted hereinabove and read as under:-
Remarks/Comments/Recommendations:
1) Unit was found running without the APCS & ETP in operation.
2) Huge fugitive emission was taking place.
3) ETP was defunct & inaccessible. The unit was issued show-
cause notice dt.29/11/2019 for earlier observed non-compliances. In spite of the unit's assurance through its reply letter dt. 11/12/2019, commitment proved to be false. APCS & ETP are not operated, ETP is inaccessible & no updation of Environmental Information Board is done.
4) Stern regulatory action including closure with disconnection of electricity is recommended.
13. From the above analysis of the two Inspection Reports, we find that Environmental violations have been continuing from 22.10.2019 upto 27.10.2021. The Appellant-Unit has failed to take remedial measures to prevent Environmental violations noted in the Inspection Report dated 09.11.2019. We fail to understand as to how the West Bengal Pollution Control Board has computed Environmental Compensation only from 27.10.2021 till 28.12.2022. So far as computation of the number of days from 27.10.2021 upto 28.12.2021 is concerned, we find that the Appellant had already intimated to the West Bengal Pollution Control Board vide their letter dated 28.12.2021, Annexure-E, page no.38, of compliance of Air Pollution Control Device and Effluent Treatment Plant. This letter at the top of the page shows the receiving in the office of West Bengal Pollution Control Board as 24.11.2021. Learned Counsel for the West Bengal Pollution Control Board submitted that this document is not legible and its typed 12 copy at page no.39 shows that the date 28.12.2021 and the receiving by the West Bengal Pollution Control Board also shows the date 28.12.2021 and in the Memo of Appeal also the Appellant has submitted that during the course of hearing, he had submitted a letter dated 28.12.2021 mentioning that all statutory compliances had been completed by it in pursuance of the spot Inspection Report dated 27.10.2021.
14. We may however observe that whether the document Annexure-E is legible or illegible, this copy would be available with the West Bengal Pollution Control Board and they could have verified themselves whether this letter was received in their office on 24.11.2021 or 28.12.2021. The Appellant has nowhere stated that he did not make a representation in November, 2021 which was received in the office of the West Bengal Pollution Control Board on 24.11.2021, therefore, this fact could have been verified by the West Bengal Pollution Control Board itself.
15. We may also observe here that there has been a serious lapse of the part of the West Bengal Pollution Control Board inasmuch as after 24.11.2021 or even after 28.12.2021, no inspection of the Appellant's Unit has been carried out by the Board till the passing of the impugned order on 06.05.2022, to verify whether the Environmental lapses noted in the two Inspections carried out on 22.10.2019 and 27.10.2021 had been remedied by the Appellant's Unit or not.
16. Prima facie, we find that from 22.10.2019 till the inspection carried out on 27.10.2021, the Appellant's Unit has not taken any remedial steps to stop the Environmental violations observed in paragraph [B], [D], [G], [J] and [O] of the Inspection Report dated 09.11.2019 13 till the second inspection was carried out on 27.10.2021 which again mentions Environmental violations committed by the Appellant-Unit.
17. In (2000) 3 SCC 745, U.P. Pollution Control Board vs. Mohan Meakins Ltd. & Ors., the Hon'ble Supreme Court was considering a case of criminal prosecution of the Directors of the company/violator and held as under: -
"11. Where an offence under the Act has been committed by a company every person who was in charge of and was responsible to the company for the conduct of the business of the company is also made guilty of the offence by the statutory creation. Any director, manager or other officer of the company, who has consented to or connived in the commission of the said offence, is made liable for the punishment of the offence. This is clearly discernible from Section 47 of the Act.
"47. Offences by companies-Where an offence under this Act has been committed by a company every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to the proceeded against and punished accordingly:
Provided that nothing contained in this sub-
section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he 14 exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-
section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or, is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
12. In the above context what is to be looked at during the stage of issuing process is whether there are allegations in the complaint by which the Managers or Directors of the Company can also be proceeded against, when the Company is alleged to be guilty of the offence. Para 12 of the complaint reads thus:
"That the accused persons from 2 to 11 are Directors/Managers/Partners of M/s Mohan Meakins Distiller, Daliganj, Lucknow, as mentioned in this complaint are responsible for constructing the proper works and plant for the treatment of their highly polluting trade effluent so as to conform to the standard laid down by the Board. Aforesaid accused persons are deliberately avoiding to abide by the provisions of Sections 24 and 26 of the aforesaid Act which are punishable respectively under Sections 43 and 44 of the 15 aforesaid Act, for which not only the Company but its Directors, managers, Secretary and all other responsible officers of the accused Company, responsible for the conduct of its business are also liable in accordance with the provision of Section 47 of the Act."
The appellant has further stated in para 23 of the compliant that "the Chairman, Managing Directors and Directors of the Company are the persons responsible for the act and therefore, they are liable to be proceeded against according to the law".
13. Shri P. Chidambaram, learned Senior Counsel who argued for the respondents made a fervent plea to rescue the Directors of the Company on the ground of lapse of a long time now since the institution of the complaint. Lapse of seventeen years is no doubt considerable, but the Board is not the least to be blamed for it. Since it is not a pleasant task to probe into the causes which contributed for such a long delay we choose to refrain from doing that exercise. Nonetheless, lapse of such long period cannot be a reason to absolve the respondents from the trial. It must reach it logical culmination. Courts cannot afford to lightly deal with cases involving pollution of air and water. The message must go to all concerned. The courts will share the parliamentary concern on the escalating pollution level of our environment. Those who discharge noxious polluting effluents into streams may be unconcerned about the enormity of the injury which it inflicts on the public health at large, the irreparable impairment it causes on the aquatic organisms, the 16 deleteriousness it imposes on the life and health of animals. So the courts should not deal with the prosecution for offences under the Act in a casual or routine manner. Parliamentary concern in the matter is adequately reflected in strengthening the measures prescribed by the statute. The court has no justification for ignoring the seriousness of the subject.
14. We are, therefore, not inclined to accede to the plea made by Shri Chidambaram on the ground of lapse of long period now. Of course this lapse of long period is a good reason for expediting the trial. Now the deck is clear and hence the trial court can proceed with a faster pace and accelerated velocity.
15. If any of the accused applies for dispensing with his personal presence in the Court, after making the first appearance, the trial court can exempt him from continuing to appear in the Court by imposing any condition which the Court deems fit. Such conditions can include, inter alia, that a counsel on his behalf would be present when the case is called, that he would not dispute his identity as the particular accused in the case, and that he would be present in court when such presence is imperatively needed.
16. Subject to the above observations, we set aside the impugned judgment of the High Court as well as the order of the Sessions Court. We direct the trial court to proceed with the case in accordance with law and dispose of it as expeditiously as possible."
17
18. In (2005) 13 SCC 186, Research Foundation for Science (18) vs. Union of India & Anr., expounding the polluter-pays principle, the Hon'ble Supreme Court held as under: -
"29. The polluter-pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case."
19. In (2009) 9 SCC 737, Tirpur Dyeing Factory Owners vs. Noyyal River Ayacutdars Protection Association & Ors., the Hon'ble Supreme Court held as under: -
"34. Undoubtedly, there has been unabated pollution by the members of the appellant Association. They cannot esacape the responsibility to meet out the expenses of reversing the ecology. They are bound to meet the expenses of removing the sludge of the river and also for cleaning the dam. The principles of "polluter pays" and "precautionary principle"
have to be read with the doctrine of "sustainable development". It becomes the responsibility of the members of the appellant Association that they have to carry out their industrial activities without polluting the water." 18
20. Therefore, we are of the view that the West Bengal Pollution Control Board needs to re-examine the issue in the light of the observations made hereinabove by us and compute Environmental Compensation from 22.10.2019 till 27.10.2021. This exercise shall be carried out after giving due notice to the Appellant's Unit and opportunity of being heard. The judgment of Delhi High Court in Public Works Department GNCTD (Supra) would also be applicable. The West Bengal Pollution Control Board shall also carry out a fresh inspection of the site within ten days and prepare a fresh Report and if violation of Environmental Norms are found, the same shall also be taken into consideration while computing Environmental Compensation. The West Bengal Pollution Control Board shall thereafter, proceed to pass a fresh order in accordance with law. The impugned order dated 06.05.2022 is accordingly set aside.
21. With the aforesaid observations, Appeal No.23/2022/EZ is disposed of.
22. There shall be no order as to costs.
.....................................
B. Amit Sthalekar, JM ....................................
Prof. A. Senthil Vel, EM January 30, 2023 Appeal No.23/2022/EZ MN 19