National Green Tribunal
Anjum vs Uttar Pradesh Pollution Control Board on 21 February, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
APPEAL NO. 28/2023
IN THE MATTER OF:
ANJUM
Son of Latafat,
Naya Gaon
Nangla Bujurg,
P.S Bhopa,
District-Muzaffar Nagar,
Uttar Pradesh - 251308
...Appellant
Versus
1. Uttar Pradesh Pollution Control Board
through Chief Environment Officer Circle-3
Building no. TC-12V,
Vibhuti Khand,
Gomti Nagar, Lucknow- 226010
...Respondent
COUNSELS FOR APPELANT (S):
Mr. Saurabh Rajpal and Mr. Shaiem, Advocates
COUNSELS FOR RESPONDENT(S):
Mr. Pradeep Misra and Mr. Daleep Dhyani, Advocates for UPPCB (Through
VC)
CORAM:
HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
RESERVED ON: JANUARY 12, 2024
PRONOUNCED ON: FEBRUARY 21, 2024
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JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This is an appeal under Section 16 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act 2010') filed by Anjum son of Latafat, being aggrieved by order dated 14.07.2023 issued by Chief Environment Officer, Circle-3, Uttar Pradesh Pollution Control Board (hereinafter referred to as 'UPPCB') imposing environmental compensation of Rs.87,10,000/- for 1742 days i.e., 365 × 5 - 83 which has been computed at the rate of Rs.5,000/- per day.
2. The facts in brief are that First Information Reports (hereinafter referred to as 'FIRs') No. 179/2022 dated 10.07.2022 (case crime no. 179/2022) under Section 278, 285 and 338 IPC and No. 193/2022 under Section 283, 278 and 338 IPC were registered at P.S. Bhopa, Muzaffarnagar, UP against appellant. During investigation, Investing Officer in General diary no. 031 noted that on 13.11.2018, chemical drums were recovered from village Kasampura which contained hazardous chemicals and buried in the field but caused sharp odour in the atmosphere. Those drums were disposed of in presence of Sub-Divisional Magistrate, Jansath, Muzaffarnagar. Regional Officer, UPPCB, Muzaffarnagar vide letter dated 31.01.2023 recommended imposition of environmental compensation of Rs.4,15,000/- upon appellant for violation of 83 days i.e., from 09.07.2022 to 29.09.2022 at the rate of Rs.5,000/- per day. Pursuant thereto, a final order was issued on 08.02.2023 by Officer Incharge, Circle-3, imposing environmental compensation of Rs.4,15,000/- upon appellant and directing him to deposit the same within 15 days. Copy of the order dated 08.02.2023 is on record as annexure A- 3 at page 32.
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3. Thereafter, a show cause notice dated 11.02.2023 was issued proposing environmental compensation of Rs.87,10,000/- upon the appellant for a total period of 1742 days. Copy of show cause notice is not on record but copy of the recommendation/proposal made by Regional Officer, UPPCB, Muzaffarnagar to Chief Environment Officer, Circle-3, UPPCB, Lucknow for computing environmental compensation of Rs.87,10,000/- is on record at page 91 of paper book. It is stated therein that in the industrial generated fly ash, hazardous chemical was added which caused exothermic reaction resulting in death of one person and burn injuries to two persons. It also refers to earlier letter dated 08.02.2023 wherein environmental compensation of Rs.4,15,000/- was imposed but then referring to Tribunal's order dated 29.04.2019 passed in OA 116/2014, Meera Shukla vs. Municipal Corporation, Gorakhpur & Ors. and dated 10.01.2023 passed in OA 744/2022, Moharram Ali vs. State of Uttar Pradesh, period of violation was increased from 83 days to 1742 days and compensation was enhanced from Rs.4,15,000/- to Rs.87,10,000/-, in addition to environmental compensation of Rs.4,15,000/- which was already imposed.
4. Appellant replied show cause notice, copy whereof has been filed at page 105 of the paper book. Thereafter final order was passed on 14.07.2023 imposing environmental compensation of Rs.87,10,000/- upon appellant.
5. Order dated 14.07.2023 has been assailed on the ground that firstly, there is nothing to implicate appellant for alleged violation and order dated 14.07.2023 is entirely based on conjectures and surmises, shows non- application of mind and malicious in law; and secondly, UPPCB has no power of review and once an earlier order was passed on 08.02.2023 imposing environmental compensation of Rs.4,15,000/-, another order 3 raising a further demand of environmental compensation to Rs.87,10,000/- could not have been passed and the same is wholly without jurisdiction as no power of review has been conferred upon UPPCB under any Statute relating to environment i.e., Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act 1974'), Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Air Act 1981') and Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act 1986') or any rules framed thereunder.
6. It is also urged that the land on which fly ash and hazardous chemicals allegedly was stored, belong to Irrigation Department in Village Nangla Bujurg and there was no material before UPPCB to co-relate appellant for alleged violation of environmental laws or for resulting in accident/incident in which three persons sustained burn injuries causing death of one and serious injuries to the remaining two.
7. On behalf of UPPCB, response/reply dated 02.01.2024 has been filed, stating that drums containing chemicals belong to appellant which emitted some gas. On the complaint of villagers, Sub-Divisional Magistrate, Jansath got the said drums buried near the canal which ultimately caused burning injuries resulting in death of one person. Appellant was found guilty of storing hazardous chemicals, led to the accident in which a person died and two got burn injuries. For this reason, compensation of Rs.4,15,000/- was imposed. Later, a notice was issued to appellant for imposing a further liability of environmental compensation of Rs.87,10,000/- by computing the period of violation as 04 years and 282 days i.e.5 years (365 x 5) wherefrom 83 days were deducted. This is pursuant to the findings recorded in Criminal Case as also Joint Committee's Report dated 13.02.2023 filed before Tribunal in OA 744/2022 (supra). Copy of Joint Committee Report has been placed on 4 record as annexure-1 to reply at page 75 of paper book. It is further said that appellant had stored the drums containing chemicals and also dropped chemicals out of drums which caused accident.
8. Learned Counsel appearing for UPPCB has also produced original record for our perusal.
9. We have heard Learned Counsel for the parties and perused the record.
10. Contention of appellant is that there is no material or evidence to show that appellant is guilty of violation of any environmental law and, therefore, imposition of environmental compensation upon appellant, vide impugned order dated 14.07.2023, is patently illegal. He further contended that once an order has been passed on 08.02.2023, imposing environmental compensation of Rs.4,15,000/- upon appellant, quantum of environmental compensation could not have been reviewed, revised and enhanced by subsequent order dated 14.07.2023 as power of review is not suo-moto or inherent but must exists in some statute but no environmental laws confer any such power upon UPPCB to review, therefore, order dated 14.07.2023 is wholly without jurisdiction.
11. Per-contra, Shri Pradeep Mishra, Learned Counsel appearing for UPPCB has referred to order impugned in this Appeal and said that criminal investigation as also earlier Joint Committee Report shows that appellant was guilty of storage and mis-handling of hazardous chemicals, for which he has no consent or authorisation under the relevant laws and since illegal storage and handling of hazardous waste on the part of appellant caused a serious incident in which one person died and two sustained severe burn injuries, hence environmental compensation for the entire period of violation i.e., five years has been imposed upon appellant. 5 ISSUES:
12. Two issues which require adjudication in this Appeal and have arisen in the light of rival submissions, are:
(I) Whether the conclusion drawn by UPPCB, holding appellant guilty of violation of environmental laws, is based on evidence and justified in law?
(II) Whether UPPCB has any power of review and revise an earlier determination of environmental compensation by enhancing it, passing a subsequent order?
13. The first question deals with fundamental issue, whether conclusion drawn against appellant, holding him guilty of violation of environmental laws, justifying imposition of environmental compensation, is based on any evidence or material, which justify his implication.
14. Original record shows that entire interference has been drawn by UPPCB with reference to proceedings of Case Crime No. 193/2022 and 179/2022. Copies of FIR are not part of original record and, therefore, it is evident that FIRs have not been perused by the concerned authorities. There is an official note prepared by a team of 04 officers namely Mr. Jitender Kumar, Scientific Assistant, Mr. Ritesh Kumar Maurya, Assistant Environment Engineer, Mr. Bhuvan Prakash Yadav, Environment Engineer and Mr. Imran Ahmad Khan, Environment Engineer on 03.02.2023 which shows that Case Crime No. 179/2022 under Section 278, 285 and 338 IPC was registered against Naushad Ali son of Mr. Parvash resident of village Nangla Bujurg, Thana Bhopa, Muzaffarnagar, UP and Case Crime No. 193/2022 was registered under Section 283, 278 and 338 IPC against Mohd. Ehsan son of Shri Riyazuddin resident of village Bhikki, Thana Sikheda, Muzaffarnagar, UP. The case diaries prepared by Investigating Officers were examined and therefrom, it was found that appellant was 6 primarily guilty and a case was registered in the Competent Court against him. From that, an inference was drawn that the land at village Nangla Bujurg belong to Irrigation Department. On 12.11.2018, some chemical was poured on already dumped fly ash by appellant. After about 4 years, chemical reaction giving rise to exothermic heat resulted in the accident in which one person namely Mohd. Nabi son of Parvash resident of village Nangla Bujurg died and two others namely Saif Ali son of Moharram and Momin son of Munna, resident of village Bhikki, Thana Sikheda, Muzaffarnagar sustained burn injuries. Therefrom UPPCB drew inference that appellant has violated the provisions of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (hereinafter referred to as 'HOWMTM Rules 2016') and liable for payment of compensation which was initially determined for the period of 83 days i.e., from 09.07.2022 to 29.09.2022 and Rs. 4,15,000/- was computed as environmental compensation. The above proposal was approved by Member Secretary and Chairman UPPCB on the same day i.e., on 03.02.2023. Thereafter, order dated 08.02.2023 was issued.
15. Original record further shows that on 11.02.2023, another note was prepared by a team comprising three officials namely Mr. Jitender Kumar, Scientific Assistant, Mr. Ritesh Kumar Maurya, Assistant Environment Engineer and Mr. Imran Ahmad Khan, Environment Engineer in which earlier facts are similar as contained in the note dated 03.02.2023 but thereafter, it refers to Tribunal's order dated 29.04.2019 passed in OA 116/2014 (supra) and in reference thereto, it recommended environmental compensation for five years i.e., 365 days × 05 years = 1825. Then deducting 83 days for which order was already passed, liability of 1742 days was imposed for which a further sum of Rs.87,10,000/- was computed as environmental compensation. This note was also approved on 7 the same date i.e., 11.02.2023 by Member Secretary as also Chairman, UPPCB.
16. It is said that show cause notice was issued to appellant on 11.02.2023 itself which was replied by appellant vide representation/reply received in the office of UPPCB, Lucknow on 21.04.2023. Thereafter, order was passed on 14.07.2023 by Chief Environment Officer, Circle-2, UPPCB, Lucknow.
17. When questioned, Learned Counsel appearing for UPPCB could not show that any enquiry or investigation conducted on the part of respondent's authorities to find out whether there was any fault on the part of appellant or he has any role in the matter. Shri Mishra, learned counsel refers to case diary document particularly Parcha No. 34 in case crime no. 179/2022 but even such document is not part of original record, hence we do not find as to what was the material considered by respondent authorities in passing the impugned order holding appellant guilty of non- compliance of HOWMTM Rules 2016.
18. Appellant on its part has filed a copy of general diary no. 31 dated 13.11.2018 which shows that in village Kasampura, PS Bhopa, an information of sharp chemical odor was received whereupon the officials reached the site along with drug inspector Muzaffarnagar and found drums emitting sharp smell. Drug Inspector checked the drums and found that no live drug was present in the drum and sharp odor may have emitted due to strong chemical and liquid pesticide etc. All the drums were got buried in the soil with the help of JCB in the presence of Sub-Divisional Officer, Jansath. This happened in 2018. No material has been shown that appellant come into picture till that time. Thereafter, when in 2022, the incident of burning occurred, the authorities came into action, reached the site, got the drums dug out and, thereafter, disposed the same through 8 Treatment, Storage and Disposal Facility (hereinafter referred to as 'TSDF'). This shows that in 2018, when the hazardous material was recovered and buried, the authorities themselves did not follow the procedure of disposal of hazardous material by complying with the provisions of HOWMTM Rules 2016 and they had to be blamed for this violation. The incident occurred in 2022 is direct consequence of the above illegal act of the authorities in violation of environmental laws. In the entire process, there is no material whatsoever on record to bring in appellant showing his active involvement in the matter at any stage. The implication of appellant, therefore, is patently perverse and based on no evidence.
19. Appellant has also placed on record a copy of analysis report of CSIR, Indian Institute of Toxicology Research recording its possible conclusion that there might be Calcium Chloride, Calcium Sulphate or Potassium Chloride and Potassium Sulphate which may have reacted with the moisture leading to exothermic reaction generating huge amount of heat and dissipated horizontally and temperature rose due to chemical reaction. However, no chemical filled drum were found on the sampling site but hazardous chemical was found according to Gas Chromatograph.
20. It is not the case of respondents that in any trial or court proceedings, appellant has been found guilty of storing hazardous chemicals or handling it. No document has been placed before us including the alleged case diary showing involvement of appellant in storing and handling of hazardous chemical and thereby violating the provisions of HOWMTM Rules 2016. The GD no. 031 shows that during investigation by Police it was found that on 13.11.2018, hazardous substance was found and the same was buried in the presence of Sub Divisional Officer, Jansath. That means the hazardous substance was not disposed in compliance of HOWMTM Rules 2016. The apparent default was on the part 9 of the officers who buried hazardous substance in such negligent manner in 2018.
21. Moreover, how the appellant was involved in the matter is totally unexplained. He is neither the manufacture, nor producer, nor trader nor transporter of alleged material. At least, no record shows that he had any occasion to handle hazardous substance in any manner or actually handled it. His implication therefore, is wholly erroneous.
22. In any case, a case diary prepared during the course of investigation by itself is not evidence to draw an inference of guilt against a person even in criminal case, hence, on that basis, in our view, respondents have committed manifest error in holding appellant guilty of committing any violation of environmental laws. In fact, there is no Iota of evidence, whatsoever, to show that appellant has stored and handled any hazardous chemicals and, therefore, in our view, impugned order is founded on no evidence, hence, perverse and unsustainable in law.
23. Issue I is answered accordingly and in favour of appellant.
24. Now coming to issue no. II, Learned Counsel appearing for appellant at the outset stated that it has not challenged order dated 08.02.2023, whereby he was penalised with environmental compensation of Rs.4,15,000/- due to lack of awareness and by not approaching appropriate forum in time.
25. Be that as it may, he contended that once an order has already been passed imposing environmental compensation, no further order having the effect of review and revision of earlier order by enhancing environmental compensation can be passed by respondent since an order of imposition of environmental compensation is a quasi-judicial order having adverse effect upon appellant and such an order cannot be reviewed or revised unless 10 specific power to this effect has been conferred upon the concerned authority under the Statute. Here, no such power in fact has been conferred.
26. When questioned, Learned Counsel appearing for respondent could not dispute that there is no power either under Water Act 1974, Air Act 1981 and EP Act 1986 to review or revise an order demanding environmental compensation, once already passed.
27. Learned Counsel for respondent, however, sought to argue that order computing environmental compensation is an administrative order referable to section 5 of EP Act 1986 and not quasi-judicial or judicial order hence law that power of review cannot be exercised, unless conferred by Statute, is not attracted. He further contended that direction relating to computation or demand for environmental compensation can be issued by Pollution Control Board in exercise of its powers under Section 5 of EP Act 1986 and the said provision nowhere requires PCB to exercise judicial or quasi-judicial powers, therefore, the principle of review as argued by Learned Counsel for appellant would not be attracted in the case in hand.
28. In our considered view, this question is also liable to be returned in favour of the appellant.
29. It is not disputed before us that for violation of provisions of HOWMTM Rules 2016, impugned order of environmental compensation has been passed by respondent in exercise of the power u/s 5 of EP Act 1986.
30. HOWMTM Rules 2016 have been framed in exercise of power under Sections 6, 8 and 25 of EP Act 1986. HOWMTM Rules 2016 provides that for management, handling and storage etc. of hazardous waste, 11 authorisation from Competent Authority is necessary. HOWMTM Rules 2016, as such, do not make any provision for imposing environmental compensation. Rule 21, however, confers power upon various authorities specified in Column (3) of Schedule VII to perform duty as specified in Column III of the said Schedule subject to the provisions of HOWMTM Rules 2016. For violation of HOWMTM Rules 2016, an action can be taken by State PCB as mentioned at Serial no. 4 of Schedule VII which reads as under:
"SCHEDULE VII [See rules 13 (6) and 21] List of authorities and corresponding duties S. No. Authority Corresponding Duties (1) (2) (3)
4. State Pollution Control (i) Inventorisation of Boards or Pollution hazardous and other Control Committees wastes constituted under the Water (Prevention and (ii) Grant and renewal of Control of Pollution) authorisation Act, 1974
(iii) Monitoring of compliance of various provisions and conditions of permission including conditions of permission for issued by Ministry of Environment, Forest and Climate Change for exports and imports
(iv) Examining the applications for imports submitted by the importers and forwarding the same to Ministry of Environment, Forest and Climate Change
(v) Implementation of programmes to prevent or reduce or minimise the generation of hazardous and other wastes.12
(vi) Action against violations of these rules.
(vii) Any other function under these Rules assigned by Ministry of Environment, Forest and Climate Change from time to time.
31. HOWMTM Rules 2016 have been made under EP Act 1986 for giving effect to the provisions of the said Act i.e., EP Act 1986. Section 5 of EP Act 1986, notwithstanding anything contained in any other law but subject to the provisions of EP Act 1986, confers power upon Central Government to issue directions in writing to any person, officer, or any authority and such person, officer, or authority shall be bound to comply with such directions. These directions, as per the explanation, may also include directions with regard to the closure, prohibition or regulation of any industry, operation or process or stoppage or regulation of the supply of electricity or water or any other service.
32. The power to frame HOWMTM Rules 2016 has been conferred upon Central Government by Rule 6. It says that Rules in respect of all or any of the matters referred to in Section 3 can be made. Section 3 confers power upon Central Government to take all such measures as it deem necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution. In particular and without prejudice to the generality of the provisions of sub-section (1), measures may include measures with respect to all or any of the matters enumerated in sub- section (2), given in detail and we reproduce the same from (i) to (xiv) as under:
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"3. POWER OF CENTRAL GOVERNMENT TO TAKE MEASURES TO PROTECT AND IMPROVE ENVIRONMENT.-
...
(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:--
(i) co-ordination of actions by the State Governments, officers and other authorities--
(a) under this Act, or the rules made thereunder, or
(b) under any other law for the time being in force which is relatable to the objects of this Act;
(ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution;
(iii) laying down standards for the quality of environment in its various aspects;
(iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever:
Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;
(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;
(vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;
(vii) laying down procedures and safeguards for the handling of hazardous substances;
(viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution;
(x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;
(xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;14
(xii) collection and dissemination of information in respect of matters relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;
(xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act."
33. It is not disputed that power to give directions under Section 5 of EP Act 1986 includes power to issue similar directions for giving effect to the provisions of HOWMTM Rules 2016 or any other similar rules or directions under EP Act 1986. Environmental compensation was recognised, in the context of environmental laws, being consequence and effect of the Principle of 'Polluter Pays'.
34. This Principle was recognized as part of environmental law in India in Indian Council for Enviro-Legal Action vs. Union of India, (1996) 3 SCC 212. Certain industries producing assets were dumping their waste. Even untreated waste water was allowed to flow freely polluting atmosphere and sub-terrain supply of water which ultimately caused darkening and dirtiness of wells and the streams water rendering it unfit for human consumption. Certain environmentalists' organizations broadly alleging severe damage to villager's health, filed a Writ petition as PIL in 1989 before Supreme Court. By that time, some of the units were already closed. Referring to Article 48-A in Directive Principles of State Policy and 51-A in the Fundamental duties of citizens, Supreme Court observed that said provisions say that State shall endeavour to protect and improve environment and to safeguard the forest and wildlife of the country. One of the fundamental duties of citizens is to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creature. Where a Proponent has established its 15 commercial unit and operate contrary to law flouting norms provided by law, Statutory Regulator is bound to act and if it fails, a judicial forum can direct it to act in accordance with law. Referring to Oleum Gas leak case, i.e., M.C. Mehta vs. Union of India, (1987) 1 SCC 395, Court observed in para 58 that the constitution bench held that enterprise must be held strictly liable for causing such harm as a part of social cost of carrying on the hazardous or inherently dangerous activity. Hazardous or inherently harmful activities for private profits can be tolerated only on the condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of carrying on of such hazardous or inherently dangerous activity, regardless of whether it is carried on carefully or not.
35. Court also referred to its earlier decision in Indian Council for Enviro Legal action vs. Union of India, (1995) 3 SCC 77, wherein concerned PCB identified about 22 industries responsible for causing pollution by discharge of their effluent and a direction was issued by Court observing that they were responsible to compensate the farmers. It was the duty of State Government to ensure that this amount was recovered from the industries and paid to the farmers. In para 67 of the judgment, Court said that the question of liability of respondent units to defray the costs of remedial measures can also be looked into from another angle which has now come to be accepted universally as a sound principle, for example, 'Polluter Pays' principle. On this aspect, Court further observed as under:
"67. ...The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the 16 financial burden of the pollution incident to the taxpayer. The 'Polluter Pays' principle was promoted by the Organization for Economic Co-operation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialized society. Since then, there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.
Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme ([1987] OJC 328/1) makes it clear that the cost of preventing and eliminating nuisances must in principle be borne by the polluter', and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventative action; the need for environmental damage to be rectified at source; and that the polluter should pay."
36. Reading the power to give effect to the 'Polluter Pays' principle and impose compensation and its recovery under Sections 3 and 5 of EP Act 1986, Supreme Court further said in Indian Council for Enviro Legal action vs. Union of India, (supra) that according to the 'Polluter Pays' principle, responsibility for repairing the damages is that of offending industry. Sections 3 and 5 of EP Act 1986 empower Central Government to give directions and take measures for giving effect principle. Court further said:
"...In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment [Protection] Act, 1986. It is, of course, open to the Central 17 Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit."
37. For demanding compensation by applying principle of 'Polluter Pays', the principle of natural justice must be followed. The polluter should be given opportunity. It was recognised specifically by Supreme Court in Vellore Citizen Welfare Forum vs. Union of India, 1996 (5) SCC 647 wherein para 25, direction no. 2, Court said:
"2. The authority so constituted by the Central Government shall implement the "precautionary principle" and the "polluter pays"
principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise."
38. 'Polluter Pays' principle implies liability of the polluter to pay for the damage caused. In Research Foundation for Science vs. Union of India & Others (2005) 13 SCC 186, in para 26 and 29, Court said as under:
"26. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter-pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation.
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 18 and extent of cost and the circumstances in which the principle will apply may differ from case to case."
39. The directions issued by Competent Authority under Sections 3 and 5 may be of different nature and characteristics. Some may be for execution of functioning of the concerned proponent and some may have adverse effect upon his right to carry on process/operation including fastening liability, financial or otherwise. The directions which would have adverse effect upon proponent in the matter of running of its process or project or industry or operation or otherwise confer any liability upon it, such directions, in our view, cannot be issued without complying with the principle of natural justice.
40. Section 5 of EP Act 1986 confers power upon Central Government to issue directions in writing to any person, officer or authority of such person is bound to comply the same. Such directions can be issued by Central Government in exercise of its power and performance its functions under EP Act 1986. Explanation makes it clear that such directions may be penal in nature also for example, it may include direction for closure or prohibition or regulation of any industry, operation or its process or stoppage or regulation of electricity or water or any other services. Such directions may also include computation of environmental compensation by application of principle of 'Polluter Pays'. The power conferred upon the Central Government can be delegated to any officer, State Government or other authority under Section 23 of EP Act 1986 which provide such power of delegation clearly stating that only the power of constitution of authority under Section 3(3) or Rule making power under Section 25 shall not be delegated. Therefore, power to issue directions under Section 5 can be delegated under Section 23 of EP Act 1986.
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41. Pari-materia provisions to Section 5, we find in Section 33A of Water Act 1974 wherein such power has been conferred upon PCB whether State or Central and under Section 31A of Air Act 1981.
42. In our view, such directions when are adverse to any person who is to comply the same, such directions are quasi-judicial in nature for the reason that the authority which exercise such power not only is supposed to follow the principle of natural justice but the exercise of function is analogous to judicial authorities but exercised by non-judicial authorities.
43. Explaining the meaning of the term 'quasi-judicial', Supreme Court in Namit Sharma vs. Union of India, (2013) 1 SCC 745 has observed that it involves deciding a dispute and ascertaining the facts and any relevant law, but differs in that it depends ultimately on the exercise of an executive discretion rather than the application of law. When law commits to an officer, the duty of looking into certain facts not in a way which it specially directs, but after a discretion in its nature judicial, the function is quasi-judicial.
44. Supreme Court in Namit Sharma (supra) refers to the meaning of quasi-judicial in 'Advanced Law Lexicon' (3rd Edn., 2005) by P. Ramanathan Aiyar, wherein it explains the expression 'quasi-judicial' stating that 'of, relating to, or involving an executive or administrative official's adjudicative acts'. Considering the provisions of Right to Information Act, 2005 and the power exercised by Information Commissioner etc., Supreme Court held that Information Commissioner performs adjudicatory functions and a hierarchy of Appeal is also provided. The orders of Information Commission may have the effect of affecting rights of a person and, therefore, it decides a lis also. It thus, can be said that Information Commission is essentially quasi-judicial in nature. 20
45. In State of Himachal Pradesh & Ors. vs. Mahendra Pal, 1995 Supp (2) SCC 731, Supreme Court said that expression 'quasi-judicial' is a term which stands midway a judicial and an administrative function. If an authority has any express statutory duty to act judicially in arriving at the decision in question, it would be deemed to be quasi-judicial. Where the function to determine a dispute is exercised by virtue of an executive discretion rather than the application of law, it is a quasi-judicial function. A quasi-judicial act requires that a decision is to be given not arbitrarily or in mere discretion of the authority but according to the facts and circumstances of the case as determined upon an enquiry held by the authority after giving an opportunity to the affected parties of being heard or wherever necessary of leading evidence in support of their contention.
46. In Harbhajan Singh vs. Karam Singh and Others, AIR 1966 SC 641, Court held that power of review cannot be exercised unless conferred by Statute and any order of review passed in absence of a statutory power of review is without jurisdiction.
47. Under EP Act 1986, Water Act 1974 and Air Act 1981, while exercising power of issuing directions, Competent Authority may issue such directions which may affect the proponent's right of carrying on business i.e., industry etc. and such directions, therefore, must precede with application of principle of natural justice and whenever such power is exercised, it can be said to be an exercise of quasi-judicial power and to that extent, the authority exercising such power would act as a quasi- judicial authority.
48. In order dated 21.07.2020 passed in Appeal No. 9/2020(SZ), Piramal Enterprises Limited vs. Telangana Pollution Control Board in para 23 of the judgment, it is said as under:
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23. Since, compensation being a monitory liability, before fixing the same, an opportunity ought to have been given by the Pollution Control Board to the appellant unit which is the basic principle of following the principles of natural justice of being heard before final orders are being passed."
49. Therefore, we have no manner of doubt that an order passed by respondent imposing environmental compensation and requiring the person to pay the same by applying principle of 'Polluter Pays' is a quasi- judicial order as it imposes financial liability upon it and without giving an opportunity of hearing and complying with the principle of natural justice, such liability cannot be fastened upon it.
50. That being so, the question would be whether an order imposing environmental compensation after considering the entire facts and circumstances, determining a particular period or liability is passed, can such order be reviewed or revised by re-looking into the facts and increasing liability by adding number of days as also enhancing financial liability.
51. Here, it is not the case that an order was passed for some past violation and thereafter, subsequently for subsequent period, violations had continued and for that subsequent period, fresh order has been passed.
52. In the present case, on 08.02.2023, all the earlier facts claimed to have been examined by respondent and thereafter, in its wisdom, it held that environmental compensation should be imposed for a period of 83 days i.e., from 09.07.2022 to 29.09.2022 and appellant should be liable to pay environmental compensation of Rs. 4,15,000/-. Subsequently, by reviewing the same said facts, period has been extended for 05 years prior to the date of disposal of hazardous waste i.e., 29.09.2022 and thereby, taking 1742 days i.e., 365 × 5 - 83, which means the compensation earlier 22 imposed was reduced from the extended period, further liability has been imposed.
53. This clearly shows that impugned order dated 14.07.2023 is a review/revision of the earlier order dated 08.02.2023.
54. It is not disputed before us that there is no power of review conferred either under EP Act 1986 or HOWMTM Rules 2016 in respect of order passed with reference to Sections 3 and 5 of EP Act 1986 applying principle of 'Polluter Pays' for imposing environmental compensation. However, it is admitted that against a direction issued under Section 5 of EP Act 1986, any person aggrieved may file an appeal before this Tribunal under Section 16(h) of EP Act 1986. In other words, a direction issued under Section 5 of EP Act 1986 if quasi-judicial in nature and no Appeal is preferred, the same would attain finality. In this backdrop, we have to examine whether the subsequent order dated 14.07.2023 passed by respondent enhancing environmental compensation amounts to review of its earlier order and whether such power is inherent with the respondent or cannot be exercised unless conferred by Statute.
55. In Anantharaju Shetty vs. Appu Hegada, AIR 1919 Mad. 244, it was said by Madras High Court that law is well settled that a case is not open to appeal unless Statute gives such a right. Power to review must also be given by Statute. A review is practically hearing of an appeal by the same officer who decided the case. Thus, it can be said that such power should not be exercised unless the Statute gives it. The above judgment of Madras High Court has been referred with approval by Supreme Court in Harbhajan Singh vs. Karam Singh and Others (supra).
56. In Patel Chunibhai Dajibhai etc. vs. Narayanrao Khanderao Jambekar & Anr., AIR 1965 SC 1457, exercising revisional power, 23 application was rejected. Later Collector re-considered its previous decision. Supreme Court said that in absence of any power of review, Collector could not subsequently re-consider his previous decision and re- opening of matter was illegally ultra vires and without jurisdiction.
57. In Patel Narshi Thakershi & Ors. vs. Shri Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, the above principle was reiterated and Court said:
"4. ...It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication..."
58. In that case, power to pass order had vested in the State Government which delegated its power to Commissioner. The earlier order was passed by State of Saurashtra but subsequently. State of Gujarat came into existence covering the area concerned and thereupon, Commissioner passed orders setting aside the orders passed by Saurashtra Government taking a different view holding that the Government had no competence to make that orders. Since power of review was not vested with Government, Supreme Court held, even its delegate could not have exercised power of review in absence of provisions conferring power of review.
59. In Major Chandra Bhan Singh vs. Latafat Ullah Khan & Ors., (1979) 1 SCC 321, Court said, "13 ...It is well settled that review is a creature of statute and cannot be entertained in the absence of a provision therefor..."
60. In Dr. (Smt.) Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & Ors., (1987) 4 SCC 525, Court said, "11. It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction..."
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61. In S. Nagaraj & Ors. vs. State of Karnataka & Anr., 1993 SUPP (4) SCC 595, Court said that review literally and even judicially means re- examination or re-consideration. A small corrective approach was permitted and it was observed that rectification of order to remove the clerical or arithmetical error to remove accidental mistakes or clerical or arithmetical orders is always permissible. However, review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility yet in the realm of law, Courts and even the Statutes lean strongly in favour of finality of decision legally and properly made. Thus, correction or mistake may be made but an order cannot be substituted by taking a different view as such a review is not permissible unless power is conferred by Statute.
62. In State of Orissa vs. Commissioner of Land Records and Settlement, (1998) 7 SCC 162, it was held that in absence of provisions in the Statute, power once exercised by a delegate, cannot be reviewed either by the delegator or the delegatee.
63. In Lily Thomas & Ors. vs. Union of India & Ors., (2000) 6 SCC 224, in the concurring judgment, it was observed that dictionary meaning of the word "review" is "the act of looking; offer something again with a view to correction or improvement." It cannot be denied that the review is the creation of a statute.
64. In the context of provisions of Cr.P.C., Supreme Court in Sunita Jain vs. Pawan Kumar Jain & Ors., (2008) 2 SCC 705 said, "33. ... power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect..."
65. In Kalabharati Advertising vs. Hemant Vimalnath Narichania & Others (2010) 9 SCC 437, Court said, 25 "12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction.
13. ...Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction."
66. In Haryana State Industrial Development Corporation Ltd. vs. Mawasi & Others (2012) 7 SCC 200, in para 26 of judgment, Court said, "26. ... power of review is a creature of the statute and no Court or quasi-judicial body or administrative authority can review its judgment or order or decision unless it is legally empowered to do so..."
67. Recently, in Naresh Kumar & Others vs. Govt. of NCT of Delhi, (2019) 9 SCC 416, referring to various earlier judgments of Supreme Court, it has said in para 12, as under:
"12....power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the concerned statute, such power of Review cannot be exercised by the authority concerned..."
68. In the present case, initially order dated 08.02.2023 was passed holding that appellant is liable to pay environmental compensation at the rate of Rs.5,000/- per day for a period of 83 days i.e., from the date of inspection on 09.07.2022 till the date of disposal of fly ash containing chemicals on 29.09.2022. Thereafter, by means of impugned order dated 14.07.2023, respondent's authority has taken a different view holding appellant liable to pay environmental compensation for a period of 05 years i.e., for 1742 days (after deducting 83 days of earlier order for which compensation was already imposed). Consequently, respondent in the impugned order dated 14.07.2023 deducting 83 days for which environmental compensation was determined by order dated 08.02.2023, further determined liability upon the appellant for environmental 26 compensation for remaining 1742 days. This is nothing but a clear review of an order causing serious civil consequences to the appellant and in absence of any power of review vested with the respondent, we find it difficult to uphold the order dated 14.07.2023 and this is wholly without jurisdiction.
69. It is contended before us that show cause notice dated 11.02.2023 shows that respondent authority adopted the approach of imposing environmental compensation for previous 05 years pursuant to the directions given by this Tribunal vide order dated 29.04.2019 passed in OA 116/2014 (supra) and order dated 10.01.2023 passed in OA 744/2022 (supra).
70. We find from record that order dated 29.04.2019 was passed considering two OAs i.e., OA 116/2014 (supra) and OA 437/2015, Vishwa Vijay Singh vs. U. P. Pollution Control Board & Ors. The dispute related to the violation of environmental norms and pollution of Ramgarh lake, Ami River, Rapti River and Rohani River, in and around Gorakhpur in Uttar Pradesh. Therein, no compensation was determined by UPPCB in exercise of its statutory powers but a Committee constituted by Tribunal has made recommendation for imposition of compensation computed by it based on the guidelines evolved by Central Pollution Control Board (hereinafter referred to as 'CPCB'). This Tribunal noted in para 8 that it was brought to its notice that in addition to the amount of compensation determined by CPCB, the quantum may need revision depending on number of days of default. CPCB had fixed the amount only for days after inspection while violation is for longer period. This Tribunal observed that let number of days be calculated and on that basis, further amount be recovered by SPCB and then, in para 9, Tribunal said that UPPCB may assess the amount of compensation applying the formula laid 27 down by CPCB not only for the days mentioned in the Report of CPCB but for the actual days of violation from the beginning but not beyond 05 years from the date of calculation. The above facts show that direction was not for a fixed period of 05 years but for actual number of days of violation. However, if the actual days of violation exceed 05 years then the above order restricted computation of environmental compensation for 05 years. We may also notice that this was not a final order passed in the above matter.
71. Tribunal, therefore, had insisted upon to find out actual days of violation based on material on record and evidence and not founded on conjecture or surmises. Unfortunately, respondent in this case, instead of taking pains to find out firstly, whether appellant was actually involved, and secondly, if so, what was the actual period of violation, has attempted to draw support from here and there without appreciating whether such support is actually available or not and this has rendered the entire exercise bad in law which also comes within the ambit of malice in law. In Kalabharti Advertising (supra), Supreme Court has said that State is under an obligation to act fairly, without ill will or malice-in fact or in law. Legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully or wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to a state, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an obligue or indirect object. It means exercise of a statutory power for "purposes foreign to those it is in law intended". Supreme Court further said, "It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts." 28
72. Here, in a mechanical way, the directions contained in para 9 in the order dated 29.04.2019 in OA 116/2014 (supra) and other connected matters has been referred by respondent without considering that neither it was a final order nor it was in relation with appellant nor it had held that for whatever reason, environmental compensation has to be determined for 05 years irrespective of whether there was actual violation for such period or not.
73. Nothing has been brought on record by respondent to show that there was actual violation on the part of appellant for 05 years prior to the disposal of chemically contained fly ash through TSDF on 29.09.2022 and in absence of any material, evidence and finding to this effect, a mere arbitrary application of the above direction contained in para 9 of the order dated 29.04.2019 in OA 116/2014 (supra) is nothing but a sheer mis- application and mis-appreciation of the facts and law and it vitiate the impugned order.
74. Coming to the order dated 10.01.2023 passed in OA 744/2022 (supra), there is no finding in the said order that appellant Anjum is guilty of causing violation of any environmental laws or norms. On the contrary, in para 8, this Court has said:
"8. We find that illegal dumping of hazardous chemical and fly ash at site in question has been admitted in the said report. It is also stated that said illegal dumping has resulted in one death of an individual and injuries to some others. But neither person or authority or proponent who caused said dumping, has been identified and disclosed in the report nor it is stated as to what action has been taken for payment of compensation to injured and dead persons by District Magistrate, Mujaffarnagar was also member of the Committee. This is very unfortunate."
75. It is in this backdrop, this Tribunal observed that report does not disclose entire facts as required by Tribunal and no appropriate action was taken by the authorities concerned in the matter though damage to 29 environment was confirmed as also loss to the people residing in the area has occurred. Consequently, Tribunal required UPPCB and District Magistrate, Mujaffarnagar to submit a further Action Taken Report about the person responsible for alleged dumping etc. Para 11 to 14 of the order dated 10.01.2023 reads as under:
"11. Let a further action taken report be submitted by State PCB and District Magistrate, Mujaffarnagar clearly stating about the person responsible for alleged dumping, including compliance of consent conditions with respect of Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 and authorizations granted under Hazardous & Other Wastes (Management and Transboundary Movement) Rules, 2016. The report needs to clarify on fly ash management plan with respect of each industry and management of hazardous waste as per authorizations granted. Further, report should state about action taken against such person/proponent for remediation and prevention of further damage to environment and also with regard to payment of compensation to the victims/heirs of deceased persons. The report may be submitted before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
12. Member Secretary, UP PCB, District Magistrate, Mujaffarnagar and Regional Officer, UP PCB, Mujaffarnagar shall remain present in person on the next date before Tribunal to explain as to what action has been taken by them and why delay has been caused in taking appropriate remedial and preventive action in the matter.
13. OA No. 277/2022, Liyakat Ali & Ors vs. State of U.P. may also be listed alongwith this matter on the next date.
14. List for further consideration on 17.02.2023 alongwith OA No. 277/2022, Liyakat Ali & Ors vs. State of U.P."
76. The said order nowhere held the appellant guilty nor recorded any finding against him nor held that appellant is responsible for causing damage to environment and liable to pay environmental compensation. On the contrary, this fact had to be ascertained by respondent as also District Magistrate, Mujaffarnagar and thereafter, against the person found responsible, action was required to be taken. There is nothing to show in the above order relying whereto respondent would have been justified in 30 proceeding against appellant without recording its own finding based on evidence against the fault of appellant. The respondent was not expected to act in a mechanical and arbitrary manner. The reference to order dated 10.01.2023 in OA 744/2022 (supra) to substantiate that the order dated 14.07.2022 has been passed pursuant to the directions of this Tribunal is clearly incorrect and, therefore, the very basis on which impugned action has been passed disappears.
77. It appears that instead of identifying the actual responsible person, respondent in a clandestine manner, had tried to implicate appellant for the damage to environment as to the people in the area concerned due to burn injuries and the responsibilities have been shouldered upon the order of Tribunal without appreciating that those orders nowhere issue any such directions as have been read by respondent. May be, this exercise has been undertaken to evade accountability on the part of respondent in taking appropriate action against the actual and really guilty person. This kind of exercise of power on the part of respondent is vitiated by another principle of law i.e., malice in law. We have already discussed as to when the principle of 'malice in law' is attracted and here is such a case.
78. Respondent UPPCB is a statutory regulator for protection of environment. It is supposed to act with due diligence, devotion, objectivity and accountability. It cannot arbitrarily issue directions or pass orders imposing heavy financial liabilities upon individuals, natural or juristic. Due care, caution and consideration of relevant material to show act of violation on the part of a person is mandatory in the exercise of power by respondent particularly when it is likely to affect civil rights of the person or may cause civil consequences upon him. Abrupt, unmindful and unsubstantiated orders do more injustice than helping the pious cause of protection of environment. Statutory regulator must demonstrate its 31 impartiality, reasonableness and non-arbitrariness in its act. Unfortunately, here is a case where these attributes are seriously wanting. This is nothing but failure on the part of a statutory regulator in discharge of statutory obligations. Its orders which are vitiated in law not only affects the fundamental rights of an individual conferred by Articles 14, 21 and constitutional right under Article 300A but also causes serious inconvenience to the person concerned to which he may be entitled for damages in law. We, therefore, find it appropriate to direct respondent to remain more careful in future while exercising such drastic powers and to ensure that such action should be taken when solidly backed by evidence, demonstrate intelligible discussion of facts and law and leaves no scope of non-compliance of settled legal principles.
79. In the backdrop of the above discussion, we find no hesitation in holding that the impugned order is vitiated in law and cannot be sustained. In the entirety of the facts and circumstances and the discussion made above, we hold that impugned order dated 14.07.2023 whereagainst, the present Appeal has been filed is patently illegal, without jurisdiction and unsustainable in law.
80. Appeal is accordingly allowed. Impugned order dated 14.07.2023 is set aside.
PRAKASH SHRIVASTAVA, CHAIRPERSON SUDHIR AGARWAL, JUDICIAL MEMBER DR. A. SENTHIL VEL, EXPERT MEMBER February 21, 2024 Appeal No. 28/2023 R 32