National Green Tribunal
Ms Srimukha Precision Products vs Tamil Nadu Pollution Control Board on 19 July, 2022
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Appeal Nos. 21 to 32 of 2022 (SZ)
IN THE MATTER OF
M/S. RC Das Engineering Pvt Ltd,
Representing by its Managing Director,
Plot No. 61, 70, 3rd Main Road,
Ambattur Industrial Estate (SP)
Ambattur, Chennai
Chennai- 600090
...Appellant in Appeal Nos. 21 to 24 of 2022
M/s. Srimukha Precision Products,
Representing by its Managing Partner,
Mr. Hariharan Ramamoorthy,
Plot No. 95, SIDCO Industrial Estate
Pattravakkam, Chennai
... Appellant in Appeal No. 25 of 2022
M/s. Srimukha Precision Products,
Representing by its Managing Partner,
Mr. Hariharan Ramamoorthy,
Plot No. 95B, Pattaravakkam Village,
Ambattur Taluk, Tiruvallur District
... Appellant in Appeal No. 26 of 2022
M/s. Srimukha Precision Products,
Representing by its Managing Partner,
Mr. Hariharan Ramamoorthy,
Plot No. 29, Ambattur Village,
Ambattur Taluk and Thiruvallur District
... Appellant in Appeal Nos. 27 and28 of 2022
M/s. Srimukha Precision Products,
Representing by its Managing Partner,
Mr. Hariharan Ramamoorthy,
Plot No. D4, Ambattur IE,
Chennai 600098
... Appellant in Appeal Nos. 29 and 30 of 2022
M/s. Meenas Polymers,
Representing by its Propretor,
No. 86E/2A, SP, Developed Plot,
Ambattur Industrial Estate,
Chennai.
....Appellant in Appeal Nos. 31 and 32 of 2022
Versus
1. The Chairman
Tamil Nadu Pollution Control Board
Guindy,
Chennai
2. District Environmental Engineer,
Tamil Nadu Pollution Control Board,
Ambattur,
1
Chennai- 600058
...Respondents in all Appeals
For Appellant(s): Mr. R. Saravana kumar (in all Appeals)
For Respondent(s): Mr. Sai Sathya Jith for R1 and R2 (in all Appeals)
Judgment Reserved on: 11th July, 2022
Judgment Pronounced on: 19th July, 2022
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. The above captioned appeals are directed against the common order of the Appellate Authority, Tamil Nadu Pollution Control Board dated 18.02.2022. As the issue involved in all the appeals are identical and common, with the consent of both the Learned Counsels appearing for the appellants as well as respondents, the appeals are jointly heard and disposed of by the following order.
2. Excepting the appellants in Appeal nos. 31 and 32 of 2022, the rest of the appellants are involved in Engineering units categorised as "Green."
3. The genesis of the above appeals is from Original Application no. 268 of 2016 (Southern Zone) filed by the Korattur People‟s Welfare and Awareness Trust seeking a direction to restrain the respondents therein to directly letting in untreated effluent into Korattur Lake through the canals or in any manner. In the said application a direction was issued by this Tribunal directing the Pollution Control Board to issue show-cause notice wherever the ETP or STP was not up to the satisfaction and also to find out whether the said units were functioning with the consent of the Pollution Control Board. If the Pollution Control Board found that the units were functioning unauthorisedly, it was open to the Board to take appropriate action against the erring units.
4. In compliance to the above directions a Joint Committee was constituted to inspect the industries belonging to all categories to find out the nature of the violations, if any, committed by them and take appropriate action wherever required. Accordingly, the Joint Committee had conducted 2 surprise inspection of the industries and collected soil and water samples from different points and conducted the analysis of the same. The Joint Committee also had obtained action plan from the stakeholders, both short and long terms on various aspects and a detailed report was filed before this Tribunal.
5. As per the report there were totally 2976 units of which 784 had obtained valid consent and few of them were closed and vacated the premises. 956 units were brought under the „Green‟ category based on the pollution index. The Joint Committee further reported that there were 153 defaulting industries and recommended the Pollution Control Board to impose Environmental Compensation for the violations.
6. The Pollution Control Board after conducting inspection had found that 153 industries were discharging the sewage. The respondent Board also proceeded to levy Environmental Compensation to the above 153 industries who were identified as defaulting industries and the compensation was levied for different period as calculated by the Joint Committee. The appellants herein are a few among the 153 industries challenging the levy of compensation by the respondent Board.
7. The primordial contention of the Learned Counsel for the appellant was that:
i) The surprise inspection of the industries by the respondent Board pursuant to the Joint Committee report was without any notice to the individual industries. Since they were not afforded an opportunity to put forth their contention the entire exercise is vitiated as violation of „Principles of Natural Justice‟.
ii) The appellant-industrial units cannot be the cause for contamination resulting in the Environmental Compensation and they are not responsible for polluting of the lake as there is no discharge of untreated effluent by these industries.
iii) The levy of compensation for the earlier period prior to 01.04.2020 was without jurisdiction as the Principal Bench of the National Green Tribunal, New Delhi had passed the order only on 28.08.2019 and the compensation prior to said period is not recoverable.3
8. Learned Counsel appearing for the Pollution Control Board has set out in detail the violations committed by each of the industries and the basis on which levy of compensation was made.
8.1 The appellant units in Appeal Nos. 21, 22, 23, 24, 29 and 30 were categorized as „White‟ which does not require consent from the Pollution Control Board. However, the Board issued B.P. No. 6 dated 02.06.2016 stating that the appellant units would fall under „Green‟ category since it involves painting activity.
8.2 The appellants in Appeal Nos. 21 and 22 of 2022 relate to M/s R.C. Das Engineering Pvt. Ltd. The said unit seems to have obtained consent for the period from 24.03.2014 to 31.03.2015. Thereafter, the unit was functioning without consent. Therefore, a show-cause notice was issued on 31.08.2017 however, there was no response for the show-cause notice nor did the appellant applied for renewal of consent which constrained the Pollution Control Board to make a fresh inspection on 25.09.2017 and found that there was no valid consent obtained by the unit. Hence on 17.10.2017 a closure of the industry and stoppage of power supply was issued. Immediately, thereafter on 30.10.2017 the unit had applied for renewal of consent and the consent was issued from 30.10.2017 to 31.03.2019 revoking the earlier closure order. Hence there was levy of compensation for 37 days amounting to Rs. 2,77,500/-.
8.3 Appeal Nos. 23 and 24 of 2022 once again relate to the M/s R.C. Das Engineering Pvt. Ltd which had consent for a period from 24.03.2014 to 31.03.2015. The show-cause notice was issued on 22.09.2017 and closure of the unit and stoppage of power supply was directed on 19.10.2017. thereafter, based on the online application made by unit on 30.10.2017, after inspection, a consent order was issued for a period from 30.10.2017 to 31.03.2019 as there was default period of 40 days whereby the unit was running without a consent, a compensation of Rs. 60,000/- was levied.
8.4 Appeal Nos. 25 and 26 of 2022 relate to M/s. Srimukha Precision product unit-I here also the earlier consent issued by the Board was valid up to 31.03.2015 and there was no response for the show-cause notice issued on 02.06.2017 and there was no renewal application also filed.On 12.08.2017, the unit was called upon for a personal hearing by the Board and on 25.09.2017 an inspection was conducted as there was no valid consent after 31.03.2015 a closure order was issued on 16.10.2017. Later based on an online application inspection was done on 24.10.2017 and consent was issued for a period from 4 25.10.2017 to 31.03.2021. As the unit is coming under the "Orange" category a levy of Rs. 7,50,000/- was made.
8.5 Appeal Nos. 27 and 28 of 2022 also relate to the same M/s. Srimukha Precision product unit-7. The said unit was issued with the consent of the Pollution Control Board on 04.01.2018 which is valid up to 31.03.2023. the said unit was inspected on 06.12.2019 and it was found that the unit was generating hazardous waste such as coolant oil, waste oil and used cotton waste in the premises. The used coolant oil was disposed into the SIDCO sewer along with the sewage disposed from the unit which reaches the 3 MLD STP operated by Chennai Auto Ancillary Industrial Infrastructure Upgradation Company at south phase thereby upsetting the overall performance of the STP. It was found that the unit had not submitted records for proposed disposal of the coolant oil which was disposed in to the sewer line leading to pollution. In view of the above referred violations the closure order and stoppage of power was ordered on 05.12.2019 and levy of compensation of Rs. 1,12,500/- was made.
8.6 Appeal Nos. 29 and 30 of 2022 also relate to M/s. Srimukha Precision product Unit. The said unit was issued consent by the Board on 03.01.2018 which was valid up to 31.03.2019. Earlier, the unit was called for personal hearing as there was no valid consent. This unit had also not applied for renewal of the consent through online, therefore an inspection was caused on 25.09.2017 during which it was observed that the unit was in operation without valid consent of the Board. After issuance of the closure order on 16.10.2017 the unit had applied online for renewal of consent based on which an inspection was done on 24.10.2017 and the consent was granted revoking the earlier closure order on 25.10.2017 which was valid up to 31.03.2021. On 22.02.2021, a levy of Rs. 2,70,500/- as compensation was made against the unit which is under challenge now.
8.7 Appeal Nos. 31 and 32 of 2022 are with respect to M/s Meenas Polymers which is engaged in manufacturing of powder paint which is an "Orange" category industry. The said unit had a valid consent till 31.03.2014 and thereafter it was functioning without a valid consent from the respondent Board. Therefore, a show-cause notice was issued on 31.08.2017 followed by an inspection on 28.09.2017 after which the unit was closed on 17.10.2017 and the power supply was disconnected on 03.11.2017. later based on the online application for renewal of consent by the above unit an inspection was conducted on 10.11.2017 and renewal of consent was granted till 31.03.2026. for 5 the violation of running of unit without valid consent from the respondent Board an Environmental Compensation of Rs. 90,000/- was levied on the appellant.
9. From the above factual details it can be seen that levy of compensation which is under challenge is based on the violations for not renewing the consent granted earlier by the Pollution Control Board.
10. As referred supra, it was the direction given in O.A. No. 268 of 2016 filed by the Korattur People‟s Welfare and Awareness Trust which triggered the drive by the Pollution Control Board to find the unauthorised industries being operated within the Ambattur Industrial Estate which were discharging the trade effluent of heavy material and also discharge of either partially treated or untreated sewage from the industries into those lakes and contaminating the same.
11. The Grievance of the appellants is that the entire drive was based on the Joint Committee report in the earlier Original Application of which these appellants have no knowledge and they were not made party to the proceedings. These appellants are the industrial units which are among the 153 units identified as defaulters by the Joint Committee. The above factual details furnished would go to show that each of the industry was inspected independently and it was found that they were all operating without consent during the period mentioned in the impugned proceedings of the respondent Board.
12. The period of violation is between 15 and 40 days and the violations is that units were operating without obtaining valid consent/renewal of consent from the Board. Learned Counsel appearing for the appellants would submit that earlier direction given by this Tribunal was to check contamination caused by the industrial units in the Ambattur Industrial Estate by discharging the untreated sewage and effluents into the korattur Lake. Whereas, the levy of compensation now is based on violations of not having a valid consent. No doubt the instructions were caused by the Board to check whether there was discharge of effluent into the water bodies but incidentally it was found that the operation of unit was without renewal of the consent orders which is violation of the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 and also violation of the condition of the consent order. As such violations empower the Board to levy compensation which is in accordance with the 6 Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974, the appellants cannot be permitted to challenge the same by distinguishing one violation with the other.
13. It is not in dispute that the appellant-industrial units did not have the valid consent/renewal of the consent order for the period mentioned in the impugned proceedings of the Pollution Control Board. All the appellant-industrial units earlier had the valid consent and the violation is only failure to renew the same. Therefore, it will not be open to the appellants to contend that failure to renew the consent is due to inadvertence or a bonafide omission. It is only the inspection that was triggered by the order passed by this Tribunal in the above referred Original Application but the fact remains that the appellants had violated and the same cannot be brushed aside.
14. Whether it is for causing pollution to the water and top soil of the lake or it is for not having a valid consent order, it is violation for the appellant unit for which the respondent Board is liable to take action. Merely because the appellant-industrial units are dry industries and no trade effluent is generated will not absolve their liability or the responsibility of obtaining consent from the respondent Board for running the unit. Since, want of renewal of consent orders is also a serious violation under Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974, the levy of compensation for such violations is statutorily permitted and the Board cannot be faulted with the same.
15. Learned Counsel appearing for the respondent in support of his contentions had placed his reliance on Vellore Citizens‟ Welfare Forum vs. Union of India and Ors reported in (1996) 4 SCC 647. The relevant Paragraphs are as follows:
11. Some of the salient principles of "Sustainable Development", as culled-
out from Brundtland Report and other international documents, are Inter- Generational Equity, Use and Conservation of Nature Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the vies that "The Precautionary Principle" and "The Polluter Pays" principle are essential features of "Sustainable Development". The "Precautionary Principle" - in the context of the municipal law - means:
(i) Environment measures - by the State Government and the statutory Authorities must anticipate, prevent' and attack the causes of environmental degradation.7
(ii) Where there are threats of serious and irreversible damage lack of scientific certainly should not be used as the reason for postponing, measures to prevent environmental depredation.
(iii)The "Onus of proof" is on the actor or the developer/industrial to show that his action is environmentally benign.
12. "The Polluter Pays" principle has been held to be a sound principle by this Court Indian Council for Enviro- Legal Action vs. Union of India. The Court observed, ".....We are of the opinion that any principle evolved in this 'behalf should be simple practical and suited to the conditions obtaining in this country". The Court ruled that ".....Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on".
Consequently the polluting industries are "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas".
The "Polluter Pays" principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
13. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48A and 51A(g) of the Constitution are as under:
"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, The State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
48A. (g) Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. 51A.(g) To protect and improve the natural environment including forests, takes, rivers and wild life, and to have compassion for living creatures."
Apart from the constitutional mandate to protect and improve the environment there are plenty of post independence legislations on the subject but more relevant enactments for our purpose are: The Water (Prevention and Control of Pollution Act 1974 (the Water Act), The Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment Protection Act 1986 (the Environment Act). The Water Act provides for the constitution of the Central Pollution Control Board by the Central Government and the constitution of one State Pollution Control boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use or streams and wells for disposal of polluting matters. Also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the later Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve the quality of the air and to prevent. control and abate air pollution in the country. We shall deal with the Environment Act in the later part of this judgement.
14. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.
816. The same was reiterated in the Judgement of the Hon‟ble National Green Tribunal, Eastern Zone Bench, Kolkata in O.A. No. 110 of 2015(EZ) which reads as follows:
"......10. It is, therefore, clear that the excavating Brick Earth for manufacturing bricks without obtaining EC is a violation of the provisions of EIA Notification, 2006 and operating the brick kiln without obtaining consent from the State Pollution Control Board is violation of the Water Act, 1974 and the Air Act, 1981 and therefore these non-complaint units have caused environmental degradation for which they are liable to compensate the loss applying the principle of „polluter pay‟."
17. The above dictums also confirm that the non-compliance of consent conditions is punishable with the environmental compensation as admittedly, in all the appeals it is a case of only failure to renew the consent order.
18. Learned Counsel appearing for the appellants specifically invited attention to Para-21(iii) of the Principal Bench‟s order dated 28.08.2019 to emphasis on the point that the compensation levied for earlier period is without authority. The above objection was also dealt with by the Learned Appellate Authority, Pollution Control Board and confirmed the levy of compensation.
19. As we are also in agreement with the above finding, the same is confirmed.
20. As the appellants had argued only the levy of compensation and had not challenged the quantum of compensation levied, the said question is also not been gone into.
21. In view of the above discussion all the appeals are dismissed affirming the order of the Appellate Authority, Tamil Nadu Pollution Control Board.
22. There will be no order as to costs.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No Appeal Nos. 21 to 32 of 2022(SZ) 19th July, 2022. (AM) 9 Before the National Green Tribunal Southern Zone (Chennai) Appeal Nos. 21 to 32 of 2022 M/s R.C. Das Engineering Pvt Ltd & Ors Vs. The Chairman, TNPCB and Ors.
Appeal Nos. 21 to 32 of 2022(SZ) 19th July, 2022. (AM) 10