National Green Tribunal
Haryana State Pollution Control Board vs M/S. Sweta Estates Pvt. Ltd. Gurugon on 24 February, 2020
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
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Appeal No. 83/2018
(M.A. No. 905/2018)
IN THE MATTER OF:
1. Haryana State Pollution Control Board
Through its Secretary
C-11, Sector-6, Panchkula
Haryana-134109
2. Regional Officer
Haryana State Pollution Control Board
Gurgaon (South), 3rd Floor, HSIIDC Complex
IMT Manesar, Gurgaon
Haryana - 122052 .... Appellant
Versus
1. M/s Sweta Estate Pvt., Ltd., Gurgaon
Through Authorised Signatory
Sh. Rakesh Malhotra
S/o Late Sh. V.P. Malhotra
Resident of HL-19, Anand Vihar
Jail Road, New Deli - 110058 ...Respondent
COUNSEL FOR APPLICANT (S):
Mr. Anil Grover, AAG with Mr. Rahul Khurana, Advocate
COUNSEL FOR RESPONDENT (S):
Mr. Sanjay Upadhyay, Advocate
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JUDGEMENT
PRESENT:
Hon'bleMr. Justice Raghuvendra S. Rathore(Judicial Member) Hon'ble Dr.Satyawan Singh Garbyal (Expert Member) Reserved on: 11th October, 2019 Pronounced on: 24th February, 2020
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?
Dr. S.S. GARBYAL, (EXPERT MEMBER)
1. This appeal has been filed by the appellant i.e., Haryana Pollution Control Board under Section 16 (a) and (f) read with Section 18 of the National Green Tribunal Act, 2010; Section 33 B of the Water (Prevention and Control of Pollution) Act, 1974 and 31 B of the Air (Prevention and Control of Pollution) Act, 1981, against the order dated 15.03.2018 passed by Appellate Authority Haryana in appeal no 43 of 2018 whereby the appeal filed by the respondent unit against the 'approval for prosecution' dated 21.06.2017 given by the Chairman, Haryana State Pollution Control Board was allowed.
2. It has been submitted that the Chairman, Haryana State Pollution Control Board had granted approval for prosecution 2 of the respondent unit on 21.06.2017 because of violations committed by the unit of the provisions under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, as the respondent unit had continued construction activities without obtaining Consent to Establish (CTE) under the Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981 and without obtaining environmental clearance under the Environmental Impact Assessment Notification, 2006.
3. The respondent unit had intended to develop a Housing Complex at Sector - 48, Gurgaon-Sohna Road, Gurgaon, Haryana and environmental clearance from the Ministry of Environment, Forest and Climate Change (MoEF & CC) was obtained on 10.04.2007. The said environmental clearance was granted subject to strict compliance of conditions mentioned therein. The unit was granted NOC for construction of Housing Project on 18.04.2007 by Haryana State Pollution Control Board but it lapsed after two (2) years, on 17.04.2009. It was mandatory for the unit to seek extension of NOC/CTE before expiry of its validity. However, the unit failed to apply for extension of NOC/CTE whereas the construction activities still continued.
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4. After lapse of almost four (4) years, the unit applied for extension of NOC/CTE under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, vide their application dated 25.03.2013. The Haryana State Pollution Control Board returned the application and directed them to apply through online. Thereafter, the application was submitted on 27.02.2013 which was refused vide letter dated 16.06.2014 as it was not conforming to the requirement of the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, as per the policy of the Board. The unit had then submitted new CTE application in April/May 2015. The said application was also refused by the Haryana State Pollution Control Board on 31.07.2015 as the unit had failed to take corrective measures for the deficiencies in the application. The unit had not submitted valid Environmental Clearance, Forest Clearance and Aravali Clearance, as the environmental clearance from MoEF & CC had already expired on 09.04.2012 as its validity was for five (5) years only from 10.04.2017.
5. The unit again applied for Consent to Operate (CTO) on 16.05.2015 and the same was refused on 28.10.2015 by Haryana State Pollution Control Board on the ground that the 4 respondent unit was running without valid environmental clearance and Consent to Establish. Haryana State Pollution Control Board had submitted that the refusal of Consent to Operate was never challenged by the respondent unit.
6. The appellant- Haryana State Pollution Control Board had thereafter issued a show cause notice to the respondent on 29.12.2015 to which they replied on 12.01.2016 that they were not aware about the validity of the environmental clearance and they have applied for it. The appellant-Haryana State Pollution Control Board again issued show cause notice to the respondent on 13.04.2016. The site of the respondent unit was also inspected by the Officers of the Haryana State Pollution Control Board on 03.06.2016 and it was found that the construction was in progress. After the inspection of the site, the Haryana State Pollution Control Board again issued show cause notices on 06.06.2016, 22.06.2016, 12.09.2016 and 22.02.2017 but the respondent failed to provide a copy of extended environmental clearance/fresh environmental clearance. The respondent only replied that it had applied for environmental clearance and same is still under consideration. But they did not stop construction activity at the site.
7. The Regional Office of Haryana State Pollution Control Board, Gurgaon South, recommended prosecution against respondent 5 on 31.03.2017 which was approved by Board on 21.06.2017 and the Assistant Environmental Engineer was authorised to file a complaint before Special Environmental Court at Faridabad. However, the approval for prosecution dated 21.06.2017 was challenged by the respondent before Appellate Authority, Haryana. The Haryana State Pollution Control Board had contended that Appellate Authority Haryana was not having the jurisdiction to deal with the validity of approval for prosecution dated 21.06.2017.
8. Meanwhile, the respondent unit obtained the environmental clearance for 'expansion of Group Housing Colony at Sector - 48, Gurgaon-Sohna Road, Gurgaon, Haryana' from the MoEF & CC on 29.08.2017, with certain specific and general conditions.
9. After obtaining environmental clearance, the unit applied to the Haryana State Pollution Control Board for ex post facto Consent to Establish. The appellant- Haryana State Pollution Control Board granted ex post facto Consent to Establish on 18.10.2017 with certain specific terms and conditions, mentioned therein. Under specific condition no. '4', prosecution case was to be filed against the unit as per approval for prosecution received from the head office vide letter no. HSPCB/2017/926-27 dated 21.06.2017. It has been 6 submitted that respondent Board vide their letter dated 28.02.2012/01.03.2012 had issued order that any industry which comes into operation without obtaining Consent to Establish be granted ex post facto Consent to Establish, in case unit is presently compliant in all respect but simultaneously prosecution action will be taken against the unit which violated the provisions of the Water/Air Acts by not obtaining prior Consent to Establish from the Board, as a past violation. The office order of the Haryana State Pollution Control Board dated 28.02.2012/01.03.2012 reads as under.
"The agenda regarding Ex-post-facto Consent to Establish was placed before the Board in its 161st Meeting held on 08.02.2012 vide agenda item No. 161.18. It has been decided that the industry which comes into operation without obtaining consent to establish, be granted Ex-post Facto Consent to establish in case unit is presently compliant in all respects. But simultaneously prosecution action will be taken against the unit which violated the provisions of the Water/Air Acts by not obtaining prior consent to establish from the Board, as a past violation.
The Hon'ble Punjab and Haryana High Court is taking serious view of the pollution caused by industries/mines/hospital etc., and directing the Board to take stringent action such as closure/prosecution against the violators. In case, the unit is still non- compliant then no Ex-post Facto Consent to Establish should be given and closure/prosecution action be initiated against such units It is clarified that this order shall be implemented prospectively with immediate effect. "7
In view of this order, the Board had granted ex post facto Consent to Establish to the respondent unit on 18.10.2017 with condition that prosecution action be initiated for past violations.
10. While the Appellate Board was in the process to initiate prosecution against the respondent unit before the Special Environmental Court at Faridabad for the offences committed under Section 43 and 44 of the Water (Prevention and Control of Pollution) Act, 1974 and Under Section 37 and 38 of the Air (Prevention and Control of Pollution) Act, 1981, the respondent unit filed appeal before Appellate Authority Haryana in January, 2018 and the same was allowed on 15.03.2018. The approval for prosecution dated 21.06.2017 was quashed. The relevant observation of Appellate Authority Haryana reads as under :
"19. The present is, thus, a case wherein the respondent Board has already granted ex-post-facto consent (CTE), vide order dated 18.10.2017 (Annexure A-9). The respondent Board having granted the CTE ex-post-facto cannot be validly heard to argue that the CTE would be applicable with effect from the date of grant of the order. The adoption of that plea would violate ordinary interpretation of law and would be further violative of the obvious connotation of an ex-post-facto grant.
20. Having noticed the above contentions which only were argued during the course of hearing, we have no hesitation in allowing this appeal and quashing the impugned order. The appeal shall stand allowed accordingly. "8
11. It is the case of the appellant- Haryana State Pollution Control Board that violations of provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 cannot be said to have been condoned by way of ex-post facto grant of Consent to Establish as the Board is not empowered to compound the offences. The office order of the appellant- Haryana State Pollution Control Board dated 28.02.2012/01.03.2012 clearly provide, as stated above, that the industry which comes into operation without obtaining consent to establish, be granted ex-post facto Consent to Establish, in case the unit is presently compliant in all respects but simultaneously prosecution shall be initiated against the unit which violated the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981by not obtaining prior consent to establish from the Board, as a past violation. The appellant Board has, therefore, submitted that the impugned order has defeated the very purpose of Section 41(d) of the Specific Relief Act, 1963. Besides, it has been submitted that approval for prosecution dated 21.06.2007 was an internal communication under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. Therefore, 9 such communication cannot be interfered by Appellate Authority under its appellate jurisdiction.
12. It is an admitted fact that after expiry of the environmental clearance on 09.04.2012 after a period of five (5) years from 10.04.2007, the respondent unit continued its construction activity despite not having valid environmental clearance and Consent to Establish. The respondent unit cannot say that they were not aware about the expiry of the environmental clearance when appellant-Haryana State Pollution Control Board had issued several show cause notices starting from 29.12.2015 and subsequently on 06.06.2016, 22.06.2016, 12.09.2016 and 22.02.2017. It can, therefore, be said that the respondent unit continued its illegal activity with impunity and incomplete disregard to the legal requirements. Merely by stating that it had applied for environmental clearance and the same was under consideration, it cannot continue the constructions activity. The environmental clearance was finally received, for the project, on 29.08.2017 which cannot condone the illegal construction raised without environmental clearance from 09.04.2012 till 29.08.2017, the period during which there was no valid environmental clearance. 10
This Tribunal cannot permit such an illegal activity which adversely affects the environment in any manner. We are, therefore, of the view that the impugned order passed by Appellate Authority Haryana on 15.03.2018 deserves to be set aside and we accordingly do so.
13. Consequently the appeal is allowed and the impugned order dated 15.03.2018 is quashed and set aside. There shall be no order as to cost.
14. The Miscellaneous Application No. 905/2018 does not survive for consideration as the main appeal itself has been disposed of.
............................................ Raghuvendra S. Rathore, JM .................................................. Dr. Satyawan Singh Garbyal, EM Dated: 24.02.2020 Place : New Delhi 11